Interference with Attorney, Paralegal, or Law Student Visit
Attorneys, paralegals, and law students are entitled to special protections when they visit an incarcerated client. The rights of attorneys, paralegals, and law students to enter prison without harassment were litigated in a Suffolk Superior Court case called Greenblatt v. Fair– a copy of that decision is attached. Two sections of the Department of Correction regulations also govern visitation in prisons. Visits by legal professionals are covered in 103 CMR 486.00 et seq. Visitation, in general, is covered by 103 CMR 483.00 et seq., some of which apply to legal visits.
If an attorney, paralegal, or law student is asked to submit to any body search in order to enter prison, or if any other privileges extended by regulation to legal visitors are denied, they should contact the Department of Correction legal department at (617) 727-3300 ext.124, and ask to speak to the attorney of the day. Due to resource restraints, MCLS is unable to advocate on behalf of legal professionals who experiences interference with a legal visit. We can offer advice to any legal professional who experiences interference with a legal visit on how to advocate for him or herself. If you are calling from a prison or jail while you are trying to get access to your client, please call this office at 1(800)882-1413, ask for the intake attorney and explain that you need to speak to someone right then due to your circumstances.
Visitation Problems at County Facilities
Chapter 103, section 950 of the Code of Massachusetts Regulations sets out the rules for visiting incarcerated individuals in county facilities. These regulations give general information for those who want to visit a person in a jail or house of correction and also set out the rules regarding searches of visitors and concerning what a visitor must do if he or she is barred from visiting the jail. Each county jail and house of correction has its own particular visitation rules that specify the hours of visits, which individuals can get visits on each day of the week, what the clothing requirements are for visitors, etc. You can get those local rules from each jail or house of correction.
Unfortunately, MCLS does not represent people who have problems visiting their friends and relatives.
If you have been barred, or if you are an incarcerated individual whose visitor has been barred, you should follow the procedures in 103 CMR 950.05. If you are barred, you are entitled to written notification of the bar, and you are entitled to a review of the bar if you ask for one in writing.
950.05: Exclusion of Visitors
The visiting plan shall contain policy and procedure including, but not limited to, the following:
- Any visitor, even one who has obtained prior permission to visit, may be denied entrance to the facility or told to terminate a visit and leave the premises;
- A visitor who is denied entrance or asked to leave shall be told the reason for such action, except when it is deemed that to specify the reason might jeopardize security interests or the safety of any person or the facility;
- The officer(s) responsible for denying entrance or terminating a visit shall file a written report with the Sheriff/Facility Administrator, in accordance with Sheriffs Department policy. This report shall include the name of the visitor and the inmate visited, the time for the denial or termination, and the reasons for the action;
- When the Sheriff/Facility Administrator denies, suspends, or places restrictions on visiting privileges, the visitor shall be notified in writing of the reasons for such action, unless specification of the reason would jeopardize security interests or the safety of the individuals or the facility. The visitor may request a review of such action by writing the Sheriff/Facility Administrator. The Sheriff/Facility Administrator shall respond to all such requests in writing informing the visitor of the reasons for upholding, eliminating or modifying the original action;
- A statement that visiting privileges may be suspended for a specific time and procedures for reapplication of visiting privileges;
- Nothing in 103 CMR 950.00 shall in any way impair the Sheriff s or a designee’s authority pursuant to M.G.L. c. 127, s. 36 to exclude a visitor whenever, in the administration’s opinion admitting that person to visit would be injurious to the best interest of the facility or the administration of the facility; and,
- Before any attorney or any of the officials listed in 103 CMR 950.03(2)(b) is excluded, the Sheriff/Facility Administrator or other officer in charge shall be consulted. The attorney or official may immediately appeal any exclusion to the Sheriff.
950.04: Searches of Visitors
The visiting plan shall contain policy and procedure for the conducting of searches of visitors, and shall include, but not be limited to, the following
- A large sign posted in the lobby or other entrance warning that, “ALL VISITORS ARE SUBJECT TO BEING SEARCHED”, and containing the same wording in Spanish, “TODAS LAS VISITAS ESTAN SUJETAS A REVISION”, or a language which is understood by a significant number of visitors;
- A search procedure effective in preventing the smuggling of articles into the visiting area of the facility; to include that visitors successfully pass through a metal detector or scanner, or a pat down, and that any articles they are carrying may be thoroughly searched,
- If the search procedure is to include a more extensive search than mentioned above (up to and including a strip search), the following shall be included: (a) authorization from the Sheriff/Facility Administrator or designee for such search; (b) the visitor must be informed that he may leave the facility rather than submit to such a search. If he agrees to said search, a record of consent must be documented noting date, time, individual being searched and individuals conducting search; (c) the officer(s) conducting a more extensive search shall file a written report concerning the search with the Sheriff/Facility Administrator prior to the end of his tour of duty. The report shall contain the name of the visitor, the names of the searching officers and of the official who approved the search, the extent of the search, and what, if anything, was found;
- No search of a visitor’s body cavities (anal or genital) shall be conducted by corrections personnel. If a search less intrusive than a body cavity search (of anal or genital body cavities) is insufficient to eliminate suspicions that the visitor is smuggling, the visitor shall be denied admission;
- Any person refusing to submit to any aspect of the search procedure shall be denied entrance to the facility. Where the refusal occurs under circumstances indicating that the most likely motive for refusal is to prevent discovery of concealed articles, where a suspicious pattern of refusals is apparent, or where a visitor engages in offensive or assaultive behavior during the search process, visiting privileges may be suspended or terminated;
- Pat searches that involve removal of more than just external clothing and accessories shall be conducted by a correctional employee of the same sex as the visitor, conducted in private, and documented with a written report. Searches are to be conducted in a professional and courteous manner; and,
- Papers and documents carried in or out by any judge, attorney, law student, paralegal, the governor, any legislator or member of the parole board may be inspected for concealed articles but may not be read.
950.03: Identification and Sign-In
The written plan shall contain a means to identify and register visitors to the facility and shall include, but not be limited to, the following:
- A visitor shall be required to produce a current photographic identification such as a Massachusetts driver’s license or a passport. (Exceptions may be made by the Sheriff/Facility Administrator or his designee);
- As a condition of entry, every visitor except the officials listed in 103 CMR 950.03(2)(b) is required by statute to make and subscribe a statement under penalties of perjury stating true name and residence, whether or not he has been convicted of a felony and, if visiting an inmate, his relationship. Each institution shall provide either a sign-in sheet or “request to visit inmate” form for the purpose of 103 CMR 950.00.
- if the visitor answers that he has been convicted of a felony, the visitor may be required, as a condition of entry, to provide a statement of the crime(s) for which he was convicted and the sentence served.
- the following persons generally may not be asked to provide the statement generally required by 103 CMR 950.03(2): the Governor, a member of the Governor’s Council, a member of the General Court, a Justice of the Supreme Judicial, Superior or District Court, the Attorney General, a District Attorney, the Commissioner, a Deputy or Associate Commissioner of Correction, Sheriff, County Commissioners, a member of the Parole Board, a Parole or Probation Officer, or others as designated by the Sheriff/Facility Administrator. Any such officer shall be required to sign his name, business address and the office which brings him within the exemption from the normal sign-in requirement.
- Each visitor shall be asked by the admitting officer before entrance into the facility if he has a weapon. All weapons shall be given to the officer prior to entry to the facility.
Visitation Problems at State Prisons
Chapter 103, section 483 of the Code of Massachusetts Regulations sets out the rules for visiting incarcerated individuals in county facilities. These regulations give some general information about visiting someone in prison as well as stating the rules regarding searches of visitors and what you can do when a visitor is barred from visiting. Each institution has a set of visiting rules which is more specific about visitation times and the rules and dress code for visitors. This information can be obtained from the institution.
Unfortunately, MCLS is unable to provide advocacy to people who have experienced problems with visiting their family or friends in prison.
If you have been barred from visiting, or if you are an incarcerated person whose visitor has been barred, the procedures in 103 CMR 483.16 must be followed. If you are suspended from visiting, you are entitled to written notice and the opportunity to respond in writing within fifteen working days. The superintendent should give you a response within two weeks of a request for re-entry. You should also ask for an informal meeting with the superintendent, which is permitted in section 6.
483.16: Exclusion of Visitors
- Any visitor, even one who has obtained prior permission to visit, may be denied entrance to the institution or told to terminate a visit and leave the premises. M.G.L. c. 266, s. 123 makes it a criminal trespass to refuse to leave an institution after being ordered by an officer to do so.
- A visitor who is denied entrance or asked to leave shall be told the reason for such action, except when it is deemed that to specify the reason might jeopardize security interests or the safety of any person.
- Where the problem is something that clearly can be remedied, the visitor may be told that he may return to the institution at some specified time in the near future (such as the next day or the next visiting period) or upon satisfaction of some stated condition (such as having sufficient identification or being properly dressed). In cases where this is not appropriate, the visitor shall be told to await notification from the superintendent before returning to the institution.
- The officer(s) responsible for denying entrance or terminating a visit shall, except where such denial or termination is based on prior order of the superintendent, or on a failure to obtain prior permission to visit where such permission is required by 103 CMR 483.11, file an incident report with the superintendent, prior to the end of the shift. This report shall include the name of the visitor and the inmate-visitee, the time of the denial or termination and the reasons therefor. If the visitor has been informed that he may return at some specified time in the near future or upon satisfaction of some condition, the report shall so indicate.
- The superintendent or a designee shall promptly review all visitor incident reports and conduct whatever factual investigation deemed necessary. After such review, and within one week or receipt of the incident report, the superintendent shall do one of the following.
- In a case where the visitor has been told that he may return to the institution at some specified time or upon the satisfaction of some stated condition, the superintendent may take no action, thus allowing the resumption of visits to occur.
- The superintendent may notify the visitor that he may return to the institution to resume visiting.
- The superintendent may notify the visitor in writing that he may resume visiting under specified conditions.
- The superintendent may notify the visitor in writing that visiting privileges are suspended for a specified period up to one year and that he may reapply for admission at the end of the period or that readmission will be automatic. The written notice shall contain a statement of the reasons for the superintendent’s action except when, in the opinion of the superintendent, specifying reasons might jeopardize security interests or the safety of any individual. A copy of each such notice shall be sent forthwith to the Commissioner, and a. copy shall be given to the inmate who is visited by the visitor.
- Every superintendent’s notice pursuant to 103 CMR 483.16(5)(c) and (d), shall advise the visitor that he may seek a review or reconsideration of the barring, suspension, or restrictions by the superintendent by sending him a letter within 15 business days. The visitor’s letter shall include a detailed narrative describing the incident and setting forth the reason the visitor feels the bar, suspension or restriction should be lifted. The visitor may also request an informal meeting with the Superintendent or a designee.
- The superintendent shall review any visitor’s letter and shall respond no later than two weeks from receipt of a letter seeking review or reconsideration of any bar, suspension or restriction still in effect. The superintendent may take any action he deems necessary to resolve questions raised by a visitor’s letter including, but not limited to, additional investigation of the facts, consultation with the Commissioner, the Department’s legal office, or the conducting of an informal meeting or conference. After review, the superintendent may eliminate, reduce, or modify the specific limitations on visiting. No person shall be penalized for exercising the rights of appeal provided by 103 CMR 483.00.
- Before any attorney or any of the officials listed in 103 CMR 483.11(2)(a), is excluded, the superintendent or other officer in charge shall be consulted. The superintendent shall consult with the General Counsel regarding any attorney and the Commissioner regarding any of the officials listed in 103 CMR 483.11(2)(a), prior to any bar. The superintendent shall then make the decision as to whether exclusion is appropriate. Within 15 business days of any such exclusion, the superintendent shall take any of the actions listed in 103 CMR 483.16(5). In addition to rights to seek reconsideration or review by the superintendent, pursuant to 103 CMR 483.16(6), the attorney or official may immediately appeal any exclusion to the Commissioner.
- Whenever an inmate is transferred out of an institution whose regular visitor is currently suspended or barred from visiting, the superintendent of the institution to which he is transferred shall be notified by the sending institution of the suspension or bar. The suspended visitor may apply to the superintendent of the new institution for permission to visit. The superintendent may allow the visit, or deny visitation for a period not to exceed the original suspension.
- Nothing in 103 CMR 483.00 shall in any way impair the superintendent’s authority pursuant to M.G.L. c. 127, s. 37 to exclude a visitor whenever, in the superintendent’s opinion, admitting that person to visit would be injurious to the best interests of the institution, or the superintendent’s and Commissioner’s authority pursuant to M.G.L. c. 127, s. 36 to deny permission to visit.
483.15: Conduct of Visitors
Visitors shall be expected to dress and conduct themselves reasonably and not to engage in physical contact with inmates that is excessive or inappropriate for a public place. Serious deviations from appropriate standards of behavior may result in administrative action such as warning, termination of a visit, or suspension or loss of visiting privileges.
483.14: Searches of Visitors
- Each superintendent shall have posted a large sign in the lobby or other entrance warning that, “ALL VISITORS ARE SUBJECT TO BEING SEARCHED,” and containing the same wording in Spanish, “TODAS LAS VISITAS ESTAN SUJETAS A REVISION.”
- Each superintendent shall establish a search procedure that is effective in preventing the smuggling of articles of articles into the visiting area of the institution. The search procedure may include as a prerequisite to admission that visitors successfully pass through a metal detector and/or scanner, and/or a personal search, and that any articles they are carrying be thoroughly searched. Where a visitor is unable to clear a metal detector and/or scanner, the visitor may be asked to remove and submit for examination by a staff member outer articles of clothing that may be causing a high reading. The search procedure may also include personal searches of visitors who have already passed the initial screening and proceeded into the institution.
- A personal search of a visitor may not be conducted without prior authorization of the shift commander. The visitor shall be granted the opportunity to leave the institution rather than submit to a personal search unless; (a) The employee has those arrest powers granted by the authority of M.G.L. c. 127, s. 127 and; (b) The employee has probable cause to believe that the visitor has committed an arrestable offense; and (c) The employee has probable cause to believe that the visitor has seizable evidence concealed on his person. Under these conditions, a personal search incident to arrest may be conducted.
- Officers on duty at any institution may ask a visitor seeking admission to submit to a strip search, in order to assure the officers that the visitor is not smuggling any articles.
- Before conducting any such strip search, a correctional officer shall relate to his Shift Commander his reason for suspecting that the visitor may be carrying concealed articles. Strip searches may take place only with the approval of the Superintendent or a designee. If the visitor agrees to the strip search, the visitor shall record such consent by signing a log book kept for that purpose. The searching employee shall enter the date and time of the search and sign the log as well.
- The visitor shall be granted the opportunity to leave the institution rather than submit to search and may leave at any time during the strip search unless;
- The employee has those arrest powers granted by the authority of M.G.L. c. 127, s. 127 and;
- The employee has probable cause to believe that the visitor has committed an arrestable offense; and
- The employee has probable cause to believe that the visitor has seizable evidence concealed on his person. Under these conditions, a personal search incident to arrest may be conducted. (c) The officer(s) conducting any strip search shall file an incident report concerning the search with the superintendent prior to the end of the shift. The report shall contain the name of the visitor, the names of the searching officers and of the official who approved the search, the extent of the search, and what, if anything, was found.
- Employees may only conduct a visual inspection of a visitors oral, anal or genital cavities. Any more intrusive form of search requires a search warrant. The assistance of the District Attorney for the county in which the institution is located shall be requested in that event.
- Any person refusing to submit to any aspect of the search procedure shall be denied entrance to the institution. Where the refusal occurs under circumstances indicating that the most likely motive for refusal is to prevent discovery of concealed articles, where a suspicious pattern of refusals is apparent, or where a visitor engages in offensive or assaultive behavior during the search process, his visiting privileges may be suspended or terminated. The procedures outlined in 103 CMR 483.16, shall be followed.
- Employees conducting searches shall do so in a professional and courteous manner.
- Personal searches and strip searches shall be conducted by a correctional employee of the same sex as the visitor. Searches that involve removal of more than external clothing and accessories shall be conducted in private.
- Papers and documents carried in or out by any judge, attorney, law student, paralegal, the Governor, any legislator or member of the parole board may be inspected for concealed articles but shall not be read.
Visitation Rights of Unmarried Incarcerated Fathers
Visitation Rights of Unmarried Incarcerated Fathers
In order to obtain a court order requiring visitation privileges when the mother has refused to allow your children to visit you in jail or prison, you must first establish that you are the father. This can be done in two ways:
- File a voluntary acknowledgment of paternity signed by both you and the mother of the child; or
- File a Complaint to Establish Paternity in the Probate Court. This Complaint should ask that the Probate Court rule you are the father. In such a complaint, you could also ask the Court to order visitation.
If it appears unlikely that the mother will cooperate in any way, you will have to file a Complaint to Establish Paternity. The court is required to prepare forms that can be used by persons proceeding pro se (without an attorney). You should write the court and ask them to send you the appropriate paternity forms. Tell them that you are indigent and ask them to send you an Affidavit of Indigency.
You should file the Complaint in the Probate Court of the county where your child(ren) resides. You should also send the court an Affidavit of Indigency, which the court should provide for you, together with a simple motion you should prepare to request visitation. It is best if possible to name one of your female relatives in your motion as the person who can take your children to prison to see you; the courts tend to be most open to visitation in prison under those conditions. It would also be a good idea to write a cover letter to the court explaining that you are in prison and asking to be informed of any additional steps you must take.
Once you have filed the Complaint, the court will send you a summons. This can be served by leaving a copy of the summons and complaint at your ex’s last and usual residence and by mailing copies to her as well, at her last and usual residence.
If you have additional questions or concerns that you would like assistance with, please call us during our intake hours on Monday (or Tuesday if Monday is a holiday):
1:00pm – 4:00pm
or write us a letter to:
50 Federal Street
Boston, MA 02110
For more information about how to reach us, please visit the contact us page
PRISONERS’ LEGAL SERVICES
50 Federal St., 4th Floor, Boston MA 02110