Monday, March 22, 2021

Video calls for Deaf persons in prison and civil confinement

Here's a case from January 2021 in the United States Court of Appeals for the Fourth Circuit.  Here's a map of the circuits.

This case is called Heyer v US Bureau of Prisons [BOP] and is an appeal of a case from the Eastern District of North Carolina.

Heyer is civilly committed as a sexually dangerous person.  A civil detainee is someone who has completed his criminal sentence but is still not released into public because of a high likelihood of re-offending.  

Heyer was born deaf and communicates in ASL [American Sign Language].  This case begins with several pages on the Deaf community, communication, and English ability.  It provides a very detailed description of how members of the Deaf community communicate, how "standard English" is generally difficult for them to learn, and that most have an English proficiency level of approximately 6-8 years old.  It ends with the opinion that to a deaf person, a video call, similar to Skype, is the equivalent of a telephone call.

The Bureau of Prisons allowed Heyer to communicate with family and friends by letters, email, personal visits, and TTY, but did not allow Heyer to use video call equipment.  The stated reason is because of the difficulty of preventing Heyer from engaging in prohibited conduct.

Heyer, a civil detainee, is entitled to more considerate treatment and conditions of confinement than a prisoner.  But even if he was a prisoner, the US Supreme Court has provided a test to analyze the conditions of confinement, both of prisoners and civil detainees - “Prison walls do not form a barrier separating prison inmates from the protections of the Constitution.” Turner v. Safley, 482 U.S. 78, 84 (1987).

First, the court found that yes, the prohibition on video calls did infringe on Heyer's constitutional righrs.  Because of that, the restriction must be reasonable and, since Heyer is not serving a criminal sentence, the restriction must also be non-punitive.

Factor One asks whether there is a rational connection between BOP’s ban on video calls and BOP’s legitimate interests, or if that connection is so remote as to render the policy arbitrary or irrational.  The court ruled in favor of BOP on this factor - there is a rational, non-arbitrary connection between the ban on video calls and BOP's interests..

Factor Two asks whether Heyer has alternative means of exercising his First Amendment rights.  Because of the nature of Deaf communication, the court ruled in favor of Heyer here.

Factor Three requires the court to weigh the impact that accommodation of the constitutional right will have on guards, other inmates, and prison resources generally.  The court found in favor of Heyer here.

Factor Four asks Heyer to identify alternatives to a total ban on video calls that would accommodates his rights at minimal cost to BOP’s interests. The court found in favor of Heyer here.

The analysis is lengthy and detailed.  I would encourage you to read the case if you're interested in the Deaf community and communication.

The Court ruled "Heyer’s constitutional rights are not defined merely by his status as a civil detainee or his past conduct. They are also defined by his status as a Deaf individual cut off from his community in a manner more complete than even foreign language prisoners. The evidence at trial established that Heyer lacks any ability to communicate with the Deaf community. And the district court clearly erred by crediting BOP testimony about the risks of [video] calls without considering the wealth of testimony about safety features that have managed those risks for every other form of communication it makes available."

The Court's ruling basically required BOP to allow Heyer to have access to video calls.

Do you agree with the court's conclusion?  Why or why not?

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