Article by Miriam Kerler
The United States carceral system tears families apart. It strips incarcerated people of the relationships that define their humanity and shape their identity, while harsh prison conditions diminish their self-worth and sense of individuality. In prison, a person shares a six-by-eight-foot prison cell with a stranger, wears a jumpsuit distinguishing them by a random string of numbers, and experiences an institutionalization that causes irreparable damage to their psyche. Meanwhile, family and friends are left to worry about their incarcerated loved one's well-being while learning to cope with the gaping hole left by their absence.
The separation of incarcerated people from their loved ones profoundly implicates the right of intimate association—a right defined as the fundamental freedom to form and preserve close personal relationships, free of unjustified government interference. Yet prisons treat visitation as a privilege, removable as a disciplinary sanction and often cancelled during frequent prison lockdowns. Additionally, visitors must overcome myriad obstacles just to enter the visiting room, which may or may not include a glass barrier, keeping them from sharing a kiss, a hug, or the slightest touch with their incarcerated loved one. While these measures may seem draconian or inhumane, they are entirely legal following the United States Supreme Court's 2003 decision in Overton v. Bazzetta, in which the Court upheld a series of prison regulations that prohibited incarcerated people from even noncontact visitation with their loved ones.
Despite the entrenchment of Overton and its devastating consequences, this Article argues that Overton left the door open for further development of the right to intimate association in prison and that, in exploiting that opening, courts should examine the fundamental values underlying the freedom of intimate association when deciding challenges to prison visitation restrictions. This Article demonstrates how the exercise of intimate association rights benefits incarcerated people, their loved ones, and communities, and applauds recent state legislation that protects this important right when the federal courts fail to do so.
About the Author
Miriam Kerler, Christopher N. Lasch Clinical Teaching Fellow in the Civil Rights Clinic at the University of Denver Sturm College of Law.
Citation
100 Tul. L. Rev. 953