Wesson v. Johnson, No. 27918

• Docket Nº: No. 27918
• Citation: 579 P.2d 1165, 195 Colo. 521
• Case Date: June 12, 1978
• Court: Supreme Court of Colorado

Page 1165

579 P.2d 1165 195 Colo. 521 Charles WESSON, on behalf of himself and all others
similarly situated, Plaintiff-Appellant,
v.
Bert J. JOHNSON, Sheriff of Adams County, Defendant-Appellee. No. 27918. Supreme Court of Colorado,En Banc. June 12, 1978.

[195 Colo. 522]

Page 1166

Jonathon B. Chase, Boulder, American Civil Liberties Union Foundation of Colo., for plaintiff-appellant.

Paul Q. Beacom, Dist. Atty., Robert J. Braswell, Asst. Dist. Atty., Marc P. Mishkin, Deputy Dist. Atty., Brighton, for defendant-appellee.

PRINGLE, Chief Justice.

This is a class action brought pursuant to 42 U.S.C. § 1983 (1970), whereby plaintiff claims that he and all other pretrial detainees in the custody of the defendant in the Adams County Jail have been denied their constitutional right to a program of contact visitation. The trial court held that there was a constitutional right to contact visitation but that security requirements precluded implementation of such a program in the Adams County Jail. We reverse the judgment of the trial court.

Persons in the plaintiff's class are detained in jail awaiting trial on criminal charges. These are persons who, under our American system of justice, are presumed to be innocent of any crime and who, if they had sufficient funds, would be free on bail enjoying freedom while awaiting trial. ¹The[195 Colo. 523]

Page 1167

sole purpose of their detention is to secure their presence at trial. See, Stack v. Boyle, 342 U.S. 1, 72 S.Ct. 1, 96 L.Ed. 3 (1951); Lucero v. District Court of the Twelfth Judicial District, 188 Colo. 67, 532 P.2d 955 (1975); People v. Sanders, 185 Colo. 153, 522 P.2d 735 (1974); and People v. Jones, 176 Colo. 61, 489 P.2d 596 (1971).

With these general observations in mind, we turn now to the claim that there is a constitutional right to contact visitation for pretrial detainees. The right to touch, see and hear visitors has an important psychological impact upon persons who are confined. Further, family relationships have been held to be entitled to protection under the United States Constitution. See, e.g., Zablocki v. Redhail, 434 U.S. 374, 98 S.Ct. 673, 54 L.Ed.2d 618 (1978); Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1971); Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967); Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965). Any restrictions upon pretrial detainees must be narrowly drawn so as to minimally interfere with such a relationship. On this point, the following language from O'Bryan v. County of Saginaw, Mcihigan, 437 F.Supp. 582 (E.D.Mich.1977) is instructive:

"The right to contact visitation is inherent in the least restrictive means test which must be applied to pretrial detainees. As this Court recognized in the Bay County Jail Inmates case, the general rule is that a pretrial detainee should be able to visit with whomever he or she pleases in the most conducive setting possible for substantial periods each week. Jones v. Wittenberg, supra, 330 F.Supp. 707, at 717. This right takes on increased meaning where visitation with...