By: Martin J. Mayer, General Counsel
California State Sheriffs’ Association
In 1987, the United States Supreme Court established criteria to be considered when deciding if restrictions on inmates by correctional facilities were constitutionally justified. Restrictions could include, but are not limited to, banning contact visits with attorneys and family; requiring shackling of inmates when they are out of their cells; and/or limiting mail to post cards only. Basically, the restrictions will be evaluated by analyzing (1) whether there is a legitimate governmental need; (2) is there a less intrusive alternative means available; (3) what impact does it have on the inmate, correctional staff, and resources; and (4) is the restriction an overreaction to the concern expressed?
Specifically, in Turner v. Safely, 482 U.S. 78, the Court said “In determining reasonableness, relevant factors include (a) whether there is a ‘valid, rational connection’ between the regulation and a legitimate and neutral governmental interest put forward to justify it, which connection cannot be so remote as to render the regulation arbitrary or irrational; (b) whether there are alternative means of exercising the asserted constitutional right that remain open to inmates, which alternatives, if they exist, will require a measure of judicial deference to the corrections officials’ expertise; (c) whether and the extent to which accommodation of the asserted right will have an impact on prison staff, on inmates’ liberty, and on the allocation of limited prison resources, which impact, if substantial, will require particular deference to corrections officials; and (d) whether the regulation represents an ‘exaggerated response’ to prison concerns, the existence of a ready alternative that fully accommodates the prisoner’s rights at de minimis.”
County of Nevada v. Superior Court (Siegfried)
In 2013, defense attorneys were notified by the Nevada County Jail Commander that contact visits between them and their clients would no longer be allowed at the jail, absent extenuating circumstances, and that they would meet in visiting rooms with glass partitions. The Sheriff’s Office articulated concerns regarding an increased inmate population, as well as a reduction in jail staffing. Contact visits would still be allowed at the courthouse since security in place there permitted such visits.
Defense attorneys in the county filed suit and the superior court judge initially concluded that “confidential attorney-client contact visits . . . be made available at the jail absent circumstances justifying suspension of such visits in individual cases.” The County filed a writ petition with the Court of Appeal which, ultimately, held that “the trial court did not abuse its discretion . . . “in ordering contact visits between attorneys and inmates.
[Full disclosure, JONES & MAYER represents the County of Nevada and Sheriff Keith Royal in this matter.]
One significant issue identified by the Court of Appeal was that, due to the structure of the partitioned room, it was possible for persons outside the room to overhear conversations between attorneys and inmates. Although there is a phone system in the room, “an attorney testified that she never uses the telephone in the partitioned rooms because she has to shout anyway and it is hard to take notes, show documents to her clients, read the file and also hold the telephone in her hand.” Evidence showed that soundproofing was only on one side of the room, thereby allowing conversations to be overheard.
The Court of Appeal ruled that “jail inmates have a constitutional right to (A) confidentially confer with counsel, and (B) have contact visits with counsel as part of their right to meaningful access to the courts.” As such, “when others can overhear attorney-client communications, there is an impermissible chilling effect on the constitutional right to counsel.” The Court did note, however, that “as the county points out, however, there is no constitutional right to ‘unrestricted contact visits with counsel.’”
The decision was originally unpublished, which meant it would have no impact on future cases and only affected the parties in the case. However, the defense attorneys petitioned to have the case published. The County opposed the request and argued that the decision was “fact specific” and involved the physical structure of the Nevada County jail and, therefore, had no impact on other jurisdictions. Unfortunately, it was published and now impacts all correctional facilities in the state.
People v. Superior Court (Mesiti)
A second matter regarding courts being asked to override a sheriff’s concerns about security involves the case of People v. Superior Court (Mesiti). Mark Edward Mesiti is an inmate in the Stanislaus County jail, charged with multiple counts of sexual assault and murder. His is a death penalty case and, as a result, he is considered a maximum security inmate. The County Jail requires that all such inmates be shackled when outside of their cell which is located in the Safety Housing Unit (SHU) or outside the Unit.
Counsel for Mesiti filed an ex parte motion with the Superior Court to allow unshackled visits with his Counsel and members of his Defense Team. The Superior Court conducted a hearing on the ex parte motion on April 1, 2015, which included witness testimony, before the Honorable John D. Freeland who granted the motion. The order required that the Defendant’s “writing hand be unshackled” during visitations with his counsel while in the Stanislaus County Jail. The Sheriff and County filed a writ petition with the California Court of Appeal urging the Court to issue an immediate stay and to direct the superior court order to vacate its order.
[Full disclosure, the firm of JONES & MAYER represents Stanislaus County and Sheriff Adam Christianson in this matter, as well.]
The Sheriff, in his petition explained that “shackles used to transport maximum-security inmates provide for the hands to be shackled in front of the inmate’s body. In addition, the wrist shackles are connected to a chain that goes about the inmate’s waist area. The inmate is able to grasp and review documents and sign documents with his or her hands shackled to the front of his body. The ankles of the inmate are also shackled together.”
Furthermore, “When an inmate is finished meeting with his or her visit with legal counsel, a deputy sheriff comes to the visitation room to re-shackle the inmate’s hand, if it has been unshackled for the visit, and to remove the chain connecting the inmate to the floor and transport him or her back to his or her cell. Accordingly, a deputy sheriff has to bend down to the ground next to the inmate to unshackle the inmate from the floor chain during this process. If the inmate has one hand free, he or she is more readily able to pick up an item, such as a pen or pencil, which might be used to assault a staff member, the inmate’s attorney, or another inmate after the inmate who met with legal counsel is transported back to his or her cell.”
It was explained, as part of the Turner analysis set forth above, that “(t)he Policy is designed for the express purposes of the safety and security of the facility, whenever a maximum-security inmate is out of his unit, be it in court, medical appointments, or attorney visits, they are always in full shackles and they are never removed while the inmate is outside of his unit. This Policy prevents the necessity of unshackling and re-shackling of inmates by deputy sheriffs, an inherently dangerous exercise, as noted above. In addition, if adhered to, the Policy makes it more difficult for inmates to obtain and hide weapons or other contraband because the movement of their hands is restricted.”
While the matter was pending before the Court of Appeal, defense counsel demanded another hearing, claiming that the Sheriff was not complying with the court’s order of April 1, 2015. Following that hearing the superior court, on its own motion, vacated its first order and held that the shackling of Mesiti did not violate his constitutional right to counsel.
In a minute order, dated May 5, 2015, the superior court stated that based on all the evidence presented, in both hearings, “the court now concludes that the shackling of both hands during meetings with counsel does not interfere with the defendant’s right to counsel. To the contrary, the defendant is able to meet privately with his attorney in a room . . . .” The Court found that being shackled did not interfere with private communications between attorney and client, nor with the ability of the inmate to review documents. The only hindrance is the ability of the inmate to make notes and, the Court states, counsel can do that for him.
This judge, unlike the Court of Appeal in the Nevada County case, analyzed the four Turner factors as they applied specifically to this situation and concluded that “the jail regulations are valid as they are reasonably related to legitimate penological interests.”
Subsequently, the Court of Appeal denied the writ petition. Defense counsel is, obviously, upset that the trial Court changed its original decision and, at the time of this writing, is contesting that action.
Conclusion
Historically, courts defer to the administrators of correctional institutions when it comes to establishing regulations for the safety of inmates, staff and visitors, such as attorneys. The courts are obligated to analyze any such restrictions utilizing the four factors set forth in Turner v. Safley.
In Mesiti, the Court concluded as to those factors that, (1) “the shackling policy is to protect the security of the facility;” (2) as to an alternative means, the only hindrance was the inmate’s inability to take notes but the attorney could do that for him; (3) “it is clear that shackling defendants, particularly those charged with murder, promotes safety of inmates, staff and the public. . .; and (4) “there is [no] evidence that the sheriff’s policy is an exaggerated response to security concerns.”
Correctional facilities must be able to meet this burden and that’s not always possible. On May 30, 2015, a federal district court judge ruled that the policy of the Ventura County Sheriff’s Office, which allows jail inmates to only receive postcards, is unconstitutional. Among other things, the policy prevented inmates from receiving mail such as Prison Legal News, which is a project of the Washington-based Human Rights Defense Center, and focuses on inmate rights, court rulings and news regarding correctional facilities across the country. As a result, the Prison Legal News filed suit in federal court against the County and the Sheriff alleging a violation of the First Amendment.
The federal court ruled that while the county presented evidence that jail officials had found contraband in cells before the postcard-only policy, they did not prove that the contraband actually was smuggled in through the mail. The evidence “fails to address whether banning letters entirely (as opposed to simply inspecting them) meaningfully reduces the threat of contraband,” the court said. It called the postcard-only policy “arbitrary and irrational.” Furthermore, the Court said, “defendants provide no credible evidence that rescinding the postcard-only policy would make the county’s facilities less secure. Nor do they proffer evidence that inspecting letter mail would have a ‘significant ripple effect’ on the allocation of resources.” The Sheriff’s Office is, as of the date of this article, considering its legal options.
The bottom line is that the burden will always be on the correctional administrator to justify any such restrictions.
As in all matters involving the interpretation of law, it is imperative that the advice and guidance of an agency’s legal counsel be sought and, when appropriate, followed. In that way, the potential for litigation and liability is significantly reduced.
Martin J. Mayer is a name partner in the public sector law firm, Jones & Mayer, and has served as General Counsel for CSSA for more than 30 years.