Inmate video visitation and the First Amendment: 3 landmines to avoid
As of July 2018, over 600 correctional facilities had implemented some form of video visitation
By Linda Bryant
Many jails across the country, in an effort to reduce costs and offer inmates more opportunities for connection with loved ones and friends, increasingly rely on inmate video visitation. According to the American Bar Association, as of July 2018, over 600 correctional facilities across the country had implemented some form of video visitation. Jails invoke laudable justifications for incorporating video visitation into their offerings: to prevent the influx of contraband into their facility, to free up limited officer time, and to offer family and friends more opportunities to connect with their loved one.
However, there are three inmate video visitation landmines that can create legal challenges for jail administrators. If these landmines exist in your facility, you can expect lawsuits asserting your jail is violating the constitution by unreasonably restricting an inmate’s First Amendment right to communicate and associate with others.
1. Video Visitation That Supplants In-Person Visitation
Often, a jail moves toward supplanting in-person visitation with video visitation. This is the wrong approach unless you want to be an easy target for plaintiffs’ lawyers. Lawsuits challenging video visitation are increasing against jails that use the technology to justify a decrease in or to eliminate in-person visitation. These lawsuits are ending in settlements requiring in-person visitation, payment of large fees associated with civil litigation alleging a violation of constitutional rights, and state laws clarifying that in-person visitation may not be supplanted by video visitation.
The American Bar Association’s Criminal Justice Section’s Standards on the Treatment of Prisoners, adopted by the ABA’s House of Delegates in 2010, warns about eliminating in-person visitation. Standard 23-8.5(e), the standard governing visitation, states: Correctional officials should develop and promote other forms of communication between prisoners and their families, including video visitation, provided that such options are not a replacement for opportunities for in-person contact. 
Jail leaders should also heed the 2016 American Correctional Association Public Correctional Policy on Family-Friendly Communication and Visitation, which states: Correctional agencies should promote communication between offenders and their family and friends and adopt family-friendly policies that … use emerging technologies as supplements to existing in-person visitation. 
The bottom line is to remember the key phrase: SUPPLEMENT, NOT SUPPLANT!
2. Kickbacks and Excessive Fees
A common business model for video visitation and large phone contracts between vendors and jails is for the vendor to charge for a call or video visitation session – sometimes at an unreasonably high cost – and provide some of the revenue earned back to the jail. The 2016 ACA Public Correctional Policy referenced earlier again provides the lodestar: Do not place unreasonable financial burdens upon the offender or their family and friends. The policy goes on to state: Establish rates and surcharges that are commensurate with those charged to the general public for like services … any deviation from ordinary consumer rates should reflect actual costs associated with the provision of services within a correctional setting. 
Look, this has to be said: Anytime you have a jail profiting off the fundamental human need to communicate with family members and friends, or when exorbitant fees are charged to simply exercise this right, you’re going to raise a lot of eyebrows. It’s going to appear you are exploiting people and doing so knowingly and unconstitutionally. The incredible responsibility jail leaders have for the “care, custody, and control” of individuals, many of whom have not been convicted, does not include the ability to profit off of those same individuals, or to charge those same individuals for a lesser-quality form of visitation (where the constitutionally preferred in-person visitation is free).
While reasonable fees are defensible, exorbitant fees and kickback models are viewed with a healthy dose of skepticism by the courts. And no matter what, if you are charging fees for visitation in the absence of any opportunity for in-person visitation, you should talk to your lawyer quickly.
3. Faulty Technology
We’ve all been frustrated by bad or lost reception during an important phone call or Facetime, Skype, Teams or Zoom session. Now imagine if your only means of communicating with the outside world was limited to a few minutes each week, and through a provider nowhere near as cutting-edge as some of the better-known telecommunications or social media giants. Through no fault of your own, your call (which your loved one paid for while also trying to pay other bills and put food on the table for your kids) is cut short. Or, the video freezes. Or the audio is out of sync with the video.
Any of these technological glitches lead to a horrible user experience. So you end up having to manage your frustrations and concentrate doubly hard to hear half the conversation. You wind up frustrated during the call. It’s hard enough for an adult to cognitively piece together sentences and conversations in these instances; imagine if you’re trying to communicate with your small child in this manner. That small child will soon lose patience and do something else, wasting the precious few minutes you receive to visit with family.
A study by the Minnesota Department of Corrections found in-person visits decreased inmate recidivism by 13 percent.  Other research has shown that in-person parent-child visits improve outcomes for children with incarcerated parents as well as for the inmates.  All jail professionals know the value of any program that reduces recidivism. Faulty inmate video visitation technology, or a faulty video visitation experience, swallows the visitation session itself and detracts from rather than enhances the purpose of visitation: maintaining strong bonds with loved ones and the community to ensure success upon release.
Jail leaders must remember that being able to connect with loved ones helps reaffirm one’s humanity in an otherwise dehumanizing situation and serves to ease an inmate’s return to the community upon release. Against this backdrop, inmate video visitation is like any technology – it can be beneficial or destructive. Avoiding the three landmines listed above will help ensure video visitation enhances your jail’s visitation offerings without endangering inmates’ constitutional rights or reducing their chances of successfully transitioning back into society.
1. American Bar Association. Standard 23-8.5: Visiting. Standards on Treatment of Prisoners.
2. American Correctional Association. Public Correctional Policy on Family-Friendly Communication and Visitation. Public Correctional Policies (see page 82).
3. Minnesota Department of Corrections. The Effects of Prison Visitation on Offender Recidivism.
4, Poehlmann J, Dallaire D, Booker Loper A, et al. Children’s contact with their incarcerated parents: Research findings and recommendations. American Psychologist. 2010 Sep; 65(6): 575–598.
About the author
Linda Bryany, JD, CJM, was appointed by the Governor of Virginia to the Virginia Parole Board. Parachutist-qualified, she served as a Captain on active duty in the U.S. Army and a Major in the Army Reserves. For over 17 years, she prosecuted violent crime and homicides for the city of Norfolk, VA, rising through the ranks to become a Deputy Commonwealth’s Attorney. In 2013, Linda was appointed to serve as Deputy Attorney General for the Criminal Justice and Public Safety Division of the Virginia Office of the Attorney General, where she oversaw the litigation of all lawsuits against the Virginia Department of Corrections. She has also served as the assistant superintendent and compliance attorney for a mega-jail that houses special management inmates. Currently, Linda is a consultant for Lexipol’s Corrections solutions and a consultant and instructor for the American Jail Association.