Death row inmate looks to Seventh Circuit for spousal visitation rights

CHICAGO (CN) — A Seventh Circuit Court of Appeals panel expressed some doubts on Tuesday about whether the Federal Bureau of Prisons acted improperly when it denied a death row inmate’s visitation request.

Shannon Agofsky, a death row inmate at the U.S. Penitentiary in Terre Haute, Indiana, sued the Federal Bureau of Prisons in 2021 after his wife — whom he married while incarcerated — was denied visitation rights.

Meghan Palmer, one of Agofksy’s attorneys from Washington-based firm Ali and Lockwood, argued on Tuesday that the bureau applied the wrong guidelines when it denied his request.

“Mr. Agofksy has been married for five years and has never been allowed to see his wife in person, and the reason is that BOP has refused to follow its own regulations,” she said.

Agofksy was sentenced to death in 2004 after he beat a fellow inmate to death at a Texas federal prison. At the time, Agofsky was already serving a life sentence for a 1992 murder in which he tied the president of a bank to a chair and threw it into a lake.

He married a German woman who lives in Germany in 2019 and requested a no-contact visit with her shortly thereafter. The bureau promptly denied Agofsky’s request, with the sole reason being that he did not know his wife prior to imprisonment.

Federal prisoners are permitted to see visitors — with some guidelines, including approval by designated prison staff. Deference for visitation is typically given to members of an inmate’s immediate family, including an inmate’s spouse.

However, visitors like friends and associates are subject to a prior relationship requirement — meaning an inmate must have known the potential visitor before they were incarcerated.

Palmer maintained on Tuesday that the prior relationship standard should not apply to Agofsky’s wife, because spouses are considered immediate family.

Agofsky wrote in an appellant brief that the bureau approved several of his other family members as additions to his visitation list, such as his mother, sibling and aunt.

U.S. Circuit Chief Judge Diane Sykes, a George W. Bush appointee, noted that the bureau denied the request because Agofksy didn’t follow the prison’s regulations when he married the woman in 2019.

Palmer called the focus on marriage regulations a red herring in this case because the bureau has already expressly recognized Agofsky’s marriage, while Sykes called the regulations “highly relevant.”

“Problem is the prison knew nothing about her because he circumvented the prison’s regulations about requests for marriage,” Sykes said.

Laura Myron, an attorney with the Federal Bureau of Prisons, brought up that the first time the bureau learned that Agofsky was married was when he requested visitation rights for his wife.

“She coming to the bureau as a stranger, and the response reflects that,” Myron said, referring to Agofksy’s wife.

When Agofksy requested visitation rights for his wife, the bureau told him that he would need to prove that he had no prior relationship with his wife prior to incarceration partly because she was not referenced in his pre-sentence report.

“Agofsky’s visitation request based on his unapproved marriage implicated ‘several safety and security factors,’ including ‘BOP’s inability to run a thorough background check on the spouse, a German citizen and resident; Agofsky’s failure to follow BOP policy by marrying without first seeking permission as required by BOP policy; and Agofsky’s special security factors, including the danger he posed to the inmate population and staff based on his prior violent conduct,’” the bureau wrote in an brief.

Palmer said that the prison and warden is well within their right to ask about an inmate’s prior relationship to their spouse but applying that standard as a reason to deny a visitation request is improper.

U.S. Circuit Judge Amy St. Eve, a Donald Trump appointee, asked Palmer if she thought that security concerns were a sufficient reason for denying a visitation request.

“It is unusually strong language. The default is that family gets to visit, and you have to have a really strong reason to deny family, and so it’s not just that any security concern would defeat that presumption and that is the presumption that Mr. Agofsky is entitled to,” Palmer said.

In his brief, Agofksy likened this case to that of another federal prisoner, Daniel Troya, who met his spouse after he was incarcerated and was similarly denied visitation rights on the grounds that he did not know his wife prior to his incarceration.

Troya was eventually granted visitation rights after the bureau settled the lawsuit.

“This makes no sense: the fact that BOP allowed the visit as a way of ending litigation tells us little about the state of their policies as to everyone else who hasn’t brought a lawsuit,” Agofsky wrote.

The three-judge panel —rounded out by U.S. Circuit Judge Michael Brennan, a Trump appointee — did not indicate when they might issue a ruling on the matter.

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