You asked about the (1) gag order imposed in the Cheshire murder case and (2) Department of Correction's (DOC) policies on visitation and written communication with inmates. We understand that your interest is based on visits from an author to one of the defendants in the Cheshire murder case and communications between them.

SUMMARY

In the criminal case against Steven Hayes and Joshua Komisarjevsky, Judge Richard Damiani imposed a gag order in a hearing on November 6, 2007. It applies to the New Haven State's Attorney's Office and its agents and the defense including the defendants, defense counsel, and their agents. It prohibits them from making extrajudicial statements relating to the case or its issues that are intended for or a reasonable person would expect to be used for public dissemination by any means of communication and that raise a reasonable likelihood of material prejudicial impact upon any subsequent trial of these cases. In another hearing on August 7, 2009, Judge Damiani clarified that the gag order applies to corrections and law enforcement officers and others under the control of the state's attorney's office.

DOC Administrative Directive 10.6 sets out the procedures for visiting inmates. It covers the visitor application process; restrictions or bans on visits; visiting procedures; and cancelling, terminating, or denying a visit.

DOC Administrative Directive 10.7 sets out procedures for inmates' written correspondence. It covers bans on inmates writing to certain people; when outgoing correspondence can be read, restricted, or confiscated; and inspecting incoming correspondence and when it can be read, restricted, or confiscated.

GAG ORDER

State's Attorney Michael Dearington provided us with copies of the portions of the court transcripts where Judge Damiani issued the gag order.

In a hearing on November 6, 2007, Judge Damiani stated:

“I make the same findings I made before regarding the search warrants that the information that is published is prejudicial to the defendants right to a fair and impartial trial. I've already found, and I find again today, that the defendants right to a fair trial is paramount to the right of public access. Will it work – the order I am going to impose today – I am not imposing it upon laypeople or witnesses, I am going to be imposing it upon both the state's attorney's office and defense, and their agents…

I am going to adopt Judge Fasano's order in the Grant case (State v. Grant, Superior Court, CR 6481390 (1999)) and it's going to reflect that the New Haven State's Attorney's Office and its agents, the defense including the defendants, defense counsel and their agents are prohibited from making extrajudicial statements relating to the case or the issue of the case that are intended for or that a reasonable person would expect to be used for public dissemination by any means of communication and that raise a reasonable likelihood of material prejudicial impact upon any subsequent trial of these cases” (Superior Court, G.A. 23 of New Haven, State v. Hayes, transcript, November 6, 2007).

At a later hearing and in response to a statement by State's Attorney Dearington that some corrections officers blogged about something involving the cases, Judge Damiani clarified that the gag order applies to corrections and law enforcement officers and others under the control of the state's attorney's office. Judge Damiani stated:

“So, for the record today, corrections officers are bound by the gag order, as other law enforcement officers are, as agents of the state involved in this case. If you want a copy of the transcript, get it, and send it to whoever you want. But, if anyone, corrections, law enforcement, anyone that's under your control breaches that gag order, we'll have a hearing and I will do what I have to do” (Superior Court, Judicial District of New Haven, State v. Hayes & Komisarjevsky, transcript August 7, 2009).

DOC VISITATION POLICY

DOC Administrative Directive 10.6 sets out the procedures for visiting inmates. DOC recently updated this directive effective August 15, 2009. Below we describe the relevant portions of the directive that applied from August 15, 2006 until that date (we did not compare the two to see how they changed).

We summarize the general procedures for visiting and not those applicable to privileged or professional visits. Privileged visits are special meetings with a judge, the governor, a legislator, the attorney general, a probation officer, a Sentence Review Board member, a Commission on Human Rights and Opportunities member, the claims commissioner, a Board of Pardons and Paroles member or employee, an elected government official, the corrections ombudsman, or the inmate's attorney or attorney representative for an authorized purpose other than a social visit. Professional visits are special meetings with a credentialed individual from the community (such as a law enforcement official, social worker, or member of the clergy) for an authorized purpose other than a social visit.

Other directives may be relevant to a particular inmate's situation, such as directives governing inmate discipline.

Application for Visitation

Under the directive, an inmate who anticipates regular visits from someone must submit the name and address of the potential visitor to an assigned counselor on a visitor list form. The counselor sends a prospective visitor a list of visitation rules and an application which must be completed, signed, and mailed to the counselor. An immediate family member may be granted a courtesy visit while a visitor application is pending.

The visitor application requires the potential visitor to provide (1) his or her name, address, phone number, birth date, and relationship to the inmate; (2) if under age 18, information on his or her parent or guardian; (3) information on criminal convictions and whether he or she is on probation or parole; (4) whether he or she visits other inmates; (5) whether he or she is a DOC volunteer; (6) any disabilities that require special accommodation; and (7) whether he or she has ever been a victim involving the inmate.

The unit administrator must verify application information or any other information deemed significant. A criminal history and warrant search verifies criminal history information. A personal interview with the applicant can be required.

Rules for Approving Certain Visitors

The unit administrator must approve visits by:

1. a current or ex-offender convicted of a crime (the unit administrator must consider certain factors listed in the directive when making a decision);

2. a DOC employee who is an inmate's immediate family member (other DOC employees cannot be placed on a visiting list);

3. visitors (immediate family members only) on multiple inmate visiting lists at the same facility; and

4. visits between an inmate and his or her victim.

Placement on List, Removal from List, and Appealing Decisions

The directive states that a visitation application is normally approved unless there is a reasonable belief that authorization may jeopardize safety or security. Reasons for denial include issues of contraband, disruptive behavior, or failure to comply with facility rules. A person can be removed from a visitation list for similar reasons.

DOC must notify an inmate in writing within 30 days of approving, denying, or removing a person from a list and must state the reasons for doing so. A proposed visitor can appeal a denial to the unit administrator within 10 days of notice and the unit administrator must respond within 15 days. The unit administrator's decision is final.

A visiting list is active wherever an inmate is transferred.

Number of Approved Visitors Allowed

An inmate can have up to five approved visitors (including children) on a list for a level 5 facility (the most secure type of facility), seven in a level 3 or 4 facility, and 10 in a level 2 facility. Privileged or professional visitors do not count toward these numbers.

Special Visits

The unit administrator can allow special visits when conditions require it or the visitor is not on the visiting list. Special visits include visits from someone who (1) is awaiting approval under extraordinary or unusual circumstances, (2) has traveled from out-of-state for a one-time visit, (3) may assist the inmate in release planning or provide counseling, or (4) is a family member engaged in facility programming or an event.

The directive states that special visits are encouraged to be within routine visiting hours and requests for visits during non-routine hours normally require two business days notice.

Restrictive Housing Status

Visits are not generally allowed for inmates in the following types of restrictive housing: punitive segregation (punishment for a disciplinary violation), administrative detention (when an inmate is under investigation for discipline, criminal conduct, or dangerous activities), or transfer detention (when an inmate is reclassified to a security level that is higher than the facility provides and is awaiting transfer). Legal visits (presumably visits by an inmate's attorney) can be approved by the unit administrator or his or her designee as needed.

Visits to inmates in other restrictive housing situations are allowed with additional restrictions (see DOC Administrative Directive 9.4 with Attachment A) .

Visiting Procedures

Each facility must provide an area for visits that permits supervision consistent with the facility's security level. The unit administrator can allow outdoor visits if space allows in all types of facilities except for level 5 facilities.

Visitors age 16 or over must be verified by a driver's license or other appropriate photo identification on arrival and before admission to the visit. Visitors and their vehicles and personal property can be searched. The directive and statutes (see CGS § 18-81v) include provisions on use of metal detectors. All visitors must successfully pass through a metal detector or other detection system to gain access to the facility (other directives and procedures govern this and notice must be prominently posted). DOC records the name of each visitor, the inmate visited, and the date and time of visit.

Visits must be conducted in a quiet, orderly, and dignified manner. Staff supervising the visiting area can terminate a visit for not complying with the directive or posted facility rules. Visitors must dress in a proper fashion with reasonable modesty. Revealing, seductive, or offensive clothing or attire that may present a safety or security risk can result in a visitor being denied access or being removed.

Visitors cannot deliver or receive any item, including written correspondence, to or from the inmate. On prior notice to staff, a professional or privileged visitor can exchange legal papers with an inmate.

The inmate visiting rules under the directive prohibit a visitor from bringing personal items into the visiting room, including paper, and state that it is a crime for anyone not authorized by law to convey a letter or other missive intended for any inmate or to convey one to the outside.

The directive includes other provisions such as limiting the number of visitors allowed at the same time and requiring posting rules.

Types of Visits

Under the directive, contact visits are meetings between an inmate and an approved person that are not separated by a screen or solid glass partition. These visits can be allowed in level 2, 3, and 4 facilities but inmates are not entitled to this type of visit. Inmates on any type of restricted status, in the close monitoring program, or on chronic discipline or high security status are not allowed contact visits. The unit administrator can allow a contact visit for a privileged or professional visitor even if the inmate is not otherwise allowed them. The directive includes specific rules for contact visits for level 4 inmates.

A non-contact visit is when the inmate and visitor are physically separated by a screen, solid glass partition, or other partition. This type of visit can be used when an inmate presents a reasonable security concern including when an inmate:

1. is an escape risk or has a history of it,

2. has a history of introducing contraband or disruptive behavior,

3. has security risk group activity (such as gang activity),

4. does not conform to rules or staff direction,

5. refuses to participate in recommended programs or work assignments, or

6. has a history of inappropriate sexual behavior.

A non-contact visit can also be used when information indicates a reasonable threat of disruption to facility safety, security, or order.

Cancelling, Terminating, or Denying a Visit

The directive authorizes the ranking custody supervisor to cancel, deny, or terminate a single visit or all visits at any time (1) facility security and order requires it or (2) there is a reasonable belief that continuing the visit could jeopardize safety, security, or good order. Violating visiting rules is grounds for terminating a visit.

When access is denied or a visit terminated, DOC personnel must fill out an incident report. An inmate can be disciplined and a visitor referred for criminal prosecution if warranted.

An inmate can be denied future visits for a specific period of time under DOC's provisions on discipline. A unit administrator can deny future visits by a visitor whose visit is terminated.

DOC INMATE WRITTEN CORRESPONDENCE POLICY

DOC Administrative Directive 10.7 sets out procedures for inmates' written correspondence. DOC recently updated this directive effective June 30, 2009. Below we describe the relevant portions of the version of

the directive in effect from August 1, 2005 until that date (we did not compare the two to see how they changed). In addition to the directive, DOC regulations set out similar provisions governing inmate correspondence (Conn. Regs. § 18-81-28 et seq.).

Under the directive, DOC must process correspondence without unnecessary delay. The directive does not limit the number of letters inmates can write or receive at personal expense, unless a disciplinary penalty is imposed under DOC's policies. Thus, other DOC directives, such as the disciplinary code, may be relevant to regulation of a specific inmate's correspondence.

Correspondence Prohibited with Certain People

The directive prohibits an inmate from writing to the following people:

1. the victim of a crime the inmate stands convicted of, is serving or served a sentence for, or is facing a pending disposition for;

2. anyone under age 18 if the parent or guardian objects in writing;

3. an inmate in another facility unless he or she is an immediate family member;

4. a parolee or inmate on community confinement unless the unit administrator and addressee's supervisor expressly permits it;

5. anyone the inmate is restrained from writing under a court order; or

6. any other person when prohibiting the correspondence is generally necessary to further the substantial interests of security, order, or rehabilitation.

Reading and Restricting Outdoing Correspondence

If the DOC commissioner or unit administrator has reason to believe that it is generally necessary to further the substantial interests of security, order, or rehabilitation, the unit administrator can direct that (1) a specific inmate's outgoing correspondence be read or (2) all outgoing correspondence by read randomly.

The unit administrator's designee (but not the same person who made the initial mailroom review) can restrict, confiscate, return to the inmate, retain for further investigation, refer for disciplinary proceedings, or forward to law enforcement officials outgoing general correspondence if it contains or concerns:

1. transporting contraband into or out of the facility;

2. plans for escape, criminal activity, or activities that violate DOC or facility rules;

3. violations of unit rules;

4. information that would create a clear and present danger of violence and physical harm to someone;

5. letters or materials written in code;

6. mail which attempts to forward unauthorized correspondence for another inmate; or

7. threats to the safety or security of staff, other inmates, or the public.

If correspondence is rejected, DOC must notify the inmate and provide the reasons for it. The inmate can make a written request to the unit administrator for review of the decision within five days. The unit administrator must make a final decision and state his or her reasons in writing. DOC can delay providing notice to the inmate for an appropriate investigation of a crime or violation of DOC or facility rules.

Restrictions on outgoing correspondence must be unrelated to suppressing expression and cannot be solely based on unwelcome or unflattering opinions or factually inaccurate statements.

Incoming Correspondence

Under the directive, incoming correspondence is opened and inspected for contraband and money. If the commissioner or unit administrator has reason to believe that reading is reasonably related to legitimate penological interests, the unit administrator can direct that (1) a specific inmate's incoming correspondence be read or (2) all incoming correspondence by read randomly.

The unit administrator's designee (but not the same person who made the initial mailroom review) can restrict, confiscate, return to sender, retain for further investigation, refer for disciplinary proceedings, or forward to law enforcement officials correspondence or material that would reasonably jeopardize legitimate penological interests. This applies, but is not limited, to material that contains or concerns:

1. transporting contraband into or out of the facility;

2. plans for escape, criminal activities, or activities that violate DOC or facility rules;

3. violations of the directive's provisions or unit rules;

4. information that would create a clear and present danger of violence and physical harm to someone;

5. material which reasonably could cause physical or emotional injury to the inmate recipient as determined by appropriate mental health staff;

6. letters or material written in code;

7. threats to the safety or security of staff, other inmates, or the public;

8. certain types of sexually explicit material as specified in the directive; or

9. other correspondence where rejection is reasonably related to a legitimate penological interest.

The inmate and sender must be notified of rejection and the reasons for it and either can seek review by written request to the unit administrator within ten days. The unit administrator must make a final decision and state his or her reasons in writing. Notice of rejection can be delayed for an appropriate investigation of a crime or violation of DOC or facility rules. If reasonably practicable, correspondence is returned to the sender after a final decision to reject is made and any investigation is completed.

Privileged Correspondence

Correspondence is privileged if it is addressed to or received from federal, state, and local elected and appointed officials. This includes judges, the governor, the legislature, the attorney general, the DOC commissioner or officials appointed by him, the Board of Pardons and Paroles, the Sentence Review Board, the Commission on Human Rights and Opportunities, the claims commissioner, and elected government

officials. It also includes any written correspondence addressed to or received from the Connecticut Correctional Ombudsman or attorneys, including organizations providing legal services to inmates.

The directive contains different provisions for handling privileged correspondence.

Other Provisions

Exceptions to the directive's procedures require the commissioner's prior written approval.

Information obtained from correspondence by correctional staff under the directive's provisions can be disclosed only as reasonably necessary to promote legitimate penological, law enforcement, or public safety purposes.

The directive also contains provisions governing incoming publications and materials, sending funds into or out of facilities, and mailing expenses for indigent inmates.

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