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In Re Espinoza (Cal. Ct. App. - Jan. 27, 2011)

By Shaun Martin

I agree with this disposition.  The regulations say that you can't have conjugal visits with your wife if you've previously been found guilty of distributing drugs while in prison.  Makes sense.  That's true even if you slung your dope during one of your prior stints -- as opposed to your current one -- in the pen.  Some parts of the regulations only look at your activity during the past twelve months.  This one doesn't.  So you've got no right under the regulations, or under the Due Process Clause, to sleep with your spouse while you're in prison.

Sorry about that.  But you gotta think about that before you smuggle in dope.  Your bad, not ours.

Despite my overall agreement with the opinion, there's one tiny part that I'd delete.  Justice Hollenhorst holds that there's no Due Process right at stake because Espinoza "is not being denied contact visits wtih his spouse or other family members in the prison's visiting room.  He simply faces restriction on the manner in which he may visit his spouse.  Thus, there is an alternative avenue open for Defendant to maintain his family relationship with his spouse."

True enough.  But Espinoza's "alternative avenue" to maintaining a "family relationship" with this spouse is qualititively different to the one he's seeking.  Big time.  I don't think Justice Hollenhorst -- or anyone else -- would like it if the only way he could have a "family relationship" with his spouse was to do so in a crowded prison visiting room.  I know I wouldn't.  There are contacts I'd like to have that don't involve being watched by 100 other inmates and their children.  So, yes, there's an "alternative" available, but to me, that doesn't say much (if anything) about the nature or merits of Espinoza's claim, or the importance of the right he seeks.

It's important.  He's just lost it.  No need to deny the former by attempting to minimize the importance of intimate relations with the person with whom you've chosen to spend the rest of your life.

Full post as published by California Appellate Report on January 27, 2011 (boomark / email).