By Fred Cohen
Prison is not a familiar world to most readers of Hearinghealthmatters.org. And, why should it be? There are, however, some 2.3 million inmates in our prisons, and millions more people—friends and family of prisoners, clergy, lawyers, and doctors–who visit prisons for a variety of reasons.
The U.S. Supreme Court has never cleanly held that inmates have a basic constitutional right to visits from outsiders, but I believe that even the present, highly conservative Court would draw the line at a prison policy that totally prohibited all visits. This would, I believe, be cruel and unusual punishment under the Eighth Amendment to the Constitution.
What, then, is a visit? Visual contact from afar? Spending the night, or an afternoon in close physical proximity? Touching? Conversing only? A visit from St. Nicholas? Even Webster’s is all over the definitional landscape here, ranging from a short stay or sojourn to temporary residence as a guest. An extended stay with a friend, in my view, is not a visit; it is more like being a short-term tenant.
RIGHTS OF HARD-OF-HEARING PRISONERS AND THEIR VISITORS
Hearing-impaired inmates clearly have a right under the ADA (Americans with Disabilities Act) to have their disability accommodated in the context of hearing and obeying orders, participating in a disciplinary hearing, or taking part in therapeutic activity. But what about the ADA rights of hearing-impaired visitors who are unable to hear the inmate being visited when the visit is non-contact, i.e., a booth and telephone, or when it is a contact visit, and thus free of barriers, but the noise levels prevent the visitor from hearing?
This issue is addressed in Durrenberger v. Texas Dept. of Criminal Justice, 757 F.Supp.2d 640 (S.D. Tex. 2010). Durrenberger is a friend of Jeremy Bryson who is serving a prison sentence for aggravated assault on Durrenberger. (Apparently Texas friendships get a bit rough at times). Durrenberger’s hearing impairment is accepted by the court as a disability and allows him to prevail on his claim to reasonable accommodation.
During a number of visits, Durrenberger simply has not been able to communicate with his inmate friend, either because of ambient noise in an open space or the lack of amplification during a non-contact visit. He has given up visiting for now out of frustration.
Durrenberger need not be accommodated with a contact visit because of the inmate’s earlier act of violence against him. He is, however, entitled to a amplification device for use in the visitation booth telephones or perhaps access to the attorney/client booth, which allows physical proximity and relative quiet.
It is very curious why Texas chose to wage this fight when an inexpensive amplification device would have settled the matter. Durrenberger also was seeking money damages for “failed visits,” but did not prevail on that claim.
Certainly, accommodating Durrenberger is the right thing to do. As a federal district court (i.e., trial court) ruling, the decision has very limited precedential value. Still, I suspect it will be used frequently by hearing-impaired prison visitors to assert similar claims.
Fred Cohen, LLB, LLM, has been a full Professor at a number of leading law schools. He was a founder of the Graduate School of Criminal Justice at the State University of New York at Albany. He now serves as the federal court-appointed Monitor in Fussell v. Wilkinson, which encompasses medical and dental care in Ohio’s prisons. Mr. Cohen is author of The Mentally Disordered Inmate and the Law as well as of a number of casebooks, treatises, and articles on law and deviance in general. His posts have also appeared on the Law and Hearing blog at Hearinghealthmatters.org.
