Crimes against Human Decency
Cuyahoga County's fight against inmates' right to in-person visitation
With yet another death in the Cuyahoga County Jail, the fight for humane living conditions for those detained by the county rages on. Now, the Sheriff’s Department, who is responsible for the Cuyahoga County Jail, is intent on permanently eliminating in-person visitation rights at the proposed facility in Garfield Heights. This has caused some controversy and unrest by community activists. Let’s talk about it.
How Did We Get Here?
During the height of the first COVID-19 pandemic, the Sheriff’s Department put a variety of policies and technologies in place to alleviate the risk the virus posed on those detained by the county. These measures included a massive release of various types of offenders, in coordination with the Court of Common Pleas, and the introduction of remote arraignments and at-home video visitation.
Over time, the public health risks posed by COVID-19 have changed, but the county’s elimination of in-person visitations at the Cuyahoga County Jail has not.
Is This a State Thing?
No, in fact, ODRC allows for both in-person and video visitations at its prisons. Even the three privately-run prisons in the State of Ohio offer in-person visitations. Only one of those prisons - the North Central Correctional Complex (NCCC) in Marion - isn’t equipped for in-person and video visitations, only offering in-person visitations.
If the epitome of regressive penal thought (private prisons) offers in-person visitations to inmates in the custody of ODRC, then why can’t Cuyahoga County?
What Does the Research Say?
Studies show mixed results. Some studies show that visitation combats recidivism. Other studies suggest that the positive effects of visitation are highly contextualized, and various personal and incarceral factors contribute to the impact of visitation on penal outcomes. Still, other studies demonstrate that, while visitation may have no impact on recidivism on its own, the benefits of socialization may arise by providing support networks for inmates throughout their incarceration and post release.
The widespread use of video visitation is a recent phenomenon, and as a result, research is still being undertaken into the comparative benefits of in-person versus video visitation. One study shows that the use of video visitation throughout the major part of the first COVID-19 pandemic helped to preserve familial relationships while in-person visitation was restricted. Other studies show that video visitation is not without its own, unique, technological issues, while it does provide benefits.
In a study conducted by the Vera Institute, which is a nonprofit organized to end mass incarceration, and funded by the National Institute of Justice, which is an office of the U.S. Department of Justice, it was affirmed that visitation is critical to combating recidivism and facilitating re-entry and found that video visitation did not incite an increase in rule violations among inmates. They also found that the use of video visitations increased the amount of visitations per inmate, even though overall utilization was low, which was likely caused by quality and cost concerns by inmates.
Nevertheless, video visitations aren’t all they’re sold to be, and many have argued that they’re in widespread use as a product of the prison-industrial complex. As such, even if the technology may provide some benefit, it cannot be allowed to replace in-person visitation, which may need to be a battle fought on political grounds.
At the same time, there are a wide variety of potential legal challenges to the use of video visitations in lieu of in-person visitation, though these are untested and may present a prohibitively high bar to success because of federal court politics. Because of the success of the Heritage Foundation, the Federalist Society, and other conservative think tanks at manipulating the courts to match their ideology, the venue for any suit testing the legality of video visitations is especially salient.
In the State of Ohio, however, this might be a settled issue.
Is This Even Legal?
Yes, but context is key.
The Ohio Administrative Code, like the Ohio Revised Code, isn’t the most eloquently composed set of rules out there, and the rules it establishes for full-service jails aren’t exactly comprehensive, allowing for considerable leeway in implementation. The state delegated jail standards to ODRC and tasked them with enforcement.
OAC Rule 5120:1-8-07(A) provides that a full-service jail must have
… a secure visiting area that physically separates the inmate and visitor with capability for two-way conversation and non-obscured and/or video visitation.
From the jump, this is a weird rule for a few reasons. First, what’s the purpose of having a “secure visiting area” if video-only visitations are permissible? Second, why would you need to specify that the area “physically separates the inmate and visitor” when the concept of video visitation necessarily entails this? And third, what was the intended grammatical construction of this sentence, and how should “and/or video visitation” be understood in relation to the surrounding grammatical clauses?
The ambiguities of this rule in its present state are alleviated by the history of the rule, which paints a markedly different picture of visitation requirements.
Looking back to 2014 when the rule underwent a language revision, it’s clear that the rule we have today simplified what was originally intended:
There is a secure visiting area that physically separates the prisoner and visitor with capability for two-way conversation and viewing through a twenty four inch by twenty four inch vision panel or provisions for video visitation.
This version of the rule suggests that the function of the “capability for two-way conversation” and the “provisions for video visitation” are exclusively different, with the first regulating sound and the second regulating sight. This doesn’t fully alleviate the grammatical ambiguities of “or provisions for video visitation,” however, but the language of the 2014 rule does suggest a grammatical nuance that was lost to time.
This theory is supported by the version of the rule that was rescinded and replaced in 2003, which saw a drastic overhaul of the minimum requirements for full-service jails:
Each jail shall provide a secure visiting area free from obstructions or obstacles to normal conversation or viewing.
While this version of the rule doesn’t address the legality of video visitation, it does clarify that the latter components of the present rule aren’t describing the same thing and are, in fact, intended to describe two separate issues: sight and sound.
A rewording of the present rule to reflect this analysis would be something like:
There must be a secure visiting area that physically separates the detainee and the visitor or visitors. This area must provide capabilities for the detainee and visitor or visitors to engage in a normal, two-way conversation. This area must also provide for unobstructed viewing of the detainee by the visitor or visitors and of the visitor or visitors by the detainee. Video visitation may be provided to allow for unobstructed viewing insofar as the detainee is present in the secure visiting area with the visitor or visitors and that video visitation does not replace capabilities for the detainee and visitor or visitors to engage in a normal, two-way conversation.
Without a law defending the right to in-person visitations, without a resolution of the General Assembly to compel ODRC to craft and promulgate a clarified rule, or without a decision by the courts that would clarify this rule’s interpretation, we are left to the whims of ODRC who, it’s safe to say, don’t have detainee rights at top of mind.
But What About Privacy?
The recent report published by the Wren Collective comprehensively addresses the risks to the reasonable and legal privacy of detainees that the elimination of in-person visitation creates. While any ordinary Ohioan would suppose that detainees would be afforded basic, reasonable privacy rights during visitations, the law disagrees.
OAC Rule 5120:1-8-07(I) provides that, for a full-service jail,
Visits between inmates and members of the public will be monitored and may be recorded by any means for safety and security reasons.
While it’s unclear what the extent of “will be monitored” is, this rule doesn’t leave room for misunderstanding of the reality that there is no reasonable expectation of privacy for detainees and their visitors during visitations. This rule also doesn’t distinguish between in-person and video visitations, meaning that even the traditional method of visitations is fair game for surveillance throughout the encounter.
The 2003 language, which was rescinded and replaced by the 2014 amendments, provided for a very different visitations environment:
Staff shall be prevented from listening to visitor conversations.
Even before that, the language rescinded by the 2003 amendments offered stronger protections for detainee and visitor privacy during visitations. As part of the rule requiring a “secure visiting area,” the pre-2003 rule requires that
The area shall be equipped with sufficient seating and lighting and shall provide reasonable privacy.
The requirement that the space “provide reasonable privacy” was rescinded and replaced with the more restrictive rule we have in the present.
So What Is to Be Done?
First and foremost, the Cuyahoga County Council must reign in the wanton discretionary powers of the Sheriff, especially as it relates to the County Jail.
In the interim, Council should appoint a Jail Czar to oversee the transition from the Justice Center to Garfield Heights. In the long run, Council must codify protections for detainees’ civil rights by exceeding requirements imposed by ODRC on full-service jails and making this county a positive example of penal reform. These requirements at minimum include mandatory allowance for in-person visitations.
Second, the Ohio General Assembly must reign in the careless rulemaking of ODRC by codifying jail standards, returning control over Ohio’s jails and prisons to the voter.
In the interim, the General Assembly should issue a resolution urging the Governor to compel ODRC to amend its visitations rule to codify the right to in-person visitations by administrative rule. In the long run, the General Assembly must codify such a right and adopt enhanced minimum jail standards that improve the conditions to which detainees and inmates in Ohio’s jails and prisons are cruelly subjected.
Finally, we the people, as citizens of this Great State of Ohio must hold our elected officials to account and demand that the rights of detained persons and inmates are upheld unilaterally across the state while simultaneously demanding a massive reduction in the jail and prison population and a return to community sentencing. This requires concerted state and local investment in prevention and post-release programming for detained persons, inmates, and their families alike, coupled with community-level investment in public housing, infrastructure, and respectable jobs.
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