Petition for Writ of Certiorari — James Paul Desper, Petitioner v. Harold W. Clarke, Director, Virginia Department of Corrections, et al.

No. 21_________________________________________________

IN THE

SUPREME COURT OF THE UNITED STATES

_________________________________________________

JAMES PAUL DESPER,

Petitioner,

v.

HAROLD CLARKE, et al.,

Respondents.

_________________________________________________

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Fourth Circuit

_________________________________________________

PETITION FOR A WRIT OF CERTIORARI

_________________________________________________

ERICA J. HASHIMOTO

Counsel of Record

GEORGETOWN LAW CENTER

APPELLATE LITIGATION

PROGRAM

111 F STREET, NW

WASHINGTON, D.C. 20001

(202) 662-9555

eh502@georgetown.edu

Counsel for Petitioner

QUESTIONS PRESENTED

In Overton v. Bazzetta, 539 U.S. 126 (2003), this Court recognized

that a prison regulation that permitted visitation with a prisoner’s own

minor children, stepchildren, grandchildren, and siblings but prohibited

visitation with all other children under age eighteen was facially valid.

Id. at 129, 133. Four circuits have since recognized that an arbitrary and

indefinite denial of visitation between a parent and minor child violates

the constitutional right of association. In the decision below, the Fourth

Circuit held that an individual “who has committed a sex offense against

a minor” has no constitutional right to “in-person visitation with his

minor daughter.” App. 10a–12a. It reached that conclusion and affirmed

a dismissal in this case despite allegations that, for over five years, prison

officials have barred a father and his daughter from seeing one another

for, in the prison’s words, “no specific reason,” App. 140a.

The questions presented are:

I.

Whether a prison’s indefinite ban on visitation between a minor

child and her parent without any particularized justification

violates the right of familial association.

II.

Whether the decision below should be summarily reversed.

i

PARTIES TO THE PROCEEDING

Petitioner James Paul Desper was the plaintiff in the U.S. District

Court for the Western District of Virginia and the plaintiff-appellant in

the U.S. Court of Appeals for the Fourth Circuit.

Respondents Harold Clarke, Director of the Department of

Corrections; A. David Robinson, Chief of Operations; Jane/John Doe, for

each member of the Sex Offender Visitation Committee and the Sex

Offender Program Director; Jane/John Doe, Corrections Operations

Administrator; Maria Stransky; and Marie Vargo were defendants in the

U.S. District Court for the Western District of Virginia and defendantsappellees in the U.S. Court of Appeals for the Fourth Circuit.

ii

TABLE OF CONTENTS

QUESTIONS PRESENTED ...................................................................... i

PARTIES TO THE PROCEEDING ..........................................................ii

TABLE OF CONTENTS ......................................................................... iii

TABLE OF AUTHORITIES ...................................................................... v

INTRODUCTION ...................................................................................... 1

OPINIONS BELOW .................................................................................. 4

JURISDICTION ........................................................................................ 5

RELEVANT CONSTITUTIONAL PROVISIONS .................................... 5

STATEMENT OF THE CASE .................................................................. 5

REASONS FOR GRANTING THE WRIT .............................................. 12

I.

The Fourth Circuit’s Answer to the Question this Court Left Open

in Overton Conflicts with that of Four Other Circuits. ................. 14

II.

This Court Should Answer the Important and Recurring Question

this Case Presents. ......................................................................... 22

III.

The Decision Below Misapplied this Court’s Well-Established

Precedent for Review of Prison Administrative Decisions. ........... 26

CONCLUSION ........................................................................................ 28

iii

APPENDIX

Opinion of the U.S. Court of Appeals for the Fourth Circuit Affirming

the District Court’s Judgment (June 15, 2021) ...................................... 1a

Opinion and Order of the U.S. District Court for the Western

District of Virginia Granting Respondents’ Motion to Dismiss (Jan.

29, 2019) ................................................................................................ 24a

Petitioner’s Pro Se Complaint (Dec. 6, 2017)........................................ 37a

Petitioner’s Supplemental Exhibit (March 21, 2018) ......................... 113a

Respondents’ Motion to Dismiss (April 6, 2018)................................. 115a

Petitioner’s Amended Pro Se Complaint (April 23, 2018) .................. 128a

iv

TABLE OF AUTHORITIES

Cases

Ashcroft v. Iqbal, 556 U.S. 662 (2009) .................................................... 26

Dunn v. Castro, 621 F.3d 1196 (9th Cir. 2010) ....................................... 18

Easterling v. Thurmer, 880 F.3d 319 (7th Cir. 2018) ..................... passim

Flynn v. Burns, 289 F. Supp. 3d 948 (E.D. Wis. 2018). .......................... 23

Jones v. N. Carolina Prisoners’ Lab. Union, Inc., 433 U.S. 119

(1977) .................................................................................................... 26

M.L.B. v. S.L.J., 519 U.S. 102 (1996)...................................................... 22

Manning v. Ryan, 13 F.4th 705 (8th Cir. 2021)................................ 18, 19

Meyer v. Nebraska, 262 U.S. 390 (1923) ................................................. 16

Moore v. East Cleveland, 431 U.S. 494 (1977) ........................................ 16

Overton v. Bazzetta, 539 U.S. 126 (2003) .................................. 1, 2, 10, 12

Pell v. Procunier, 417 U.S. 817 (1974) .................................................... 27

Roberts v. U.S. Jaycees, 468 U.S. 609 (1984) ............................ 1, 3, 16, 20

Thornburgh v. Abbott, 490 U.S. 401 (1989) ............................................ 26

Turner v. Safley, 482 U.S. 78 (1987) ............................................... passim

Wilson v. Layne, 526 U.S. 603 (1999)...................................................... 18

Wirsching v. Colorado, 360 F.3d 1191 (10th Cir. 2004) ......... 3, 17, 22, 23

v

Statutes

28 U.S.C. § 1254 ........................................................................................ 5

28 U.S.C. § 1331 ........................................................................................ 5

Other Authorities

Chesa Boudin, Children of Incarcerated Parents: The Child's

Constitutional Right to the Family Relationship, 101 J. Crim. L. &

Criminology 77 (2011) .......................................................................... 23

Lauren E. Glaze & Laura M. Maruschak, Bureau of Justice Statistics,

Dep’t of Justice, Special Report: Parents in Prison and Their Minor

Children (2008), available at

http://bjs.ojp.usdoj.gov/content/pub/pdf/pptmc.pdf .............................. 23

Constitutional Provisions

U.S. Const. amend. I ................................................................................. 5

U.S. Const. amend. XIV, § 1...................................................................... 5

vi

INTRODUCTION

This Court has explained that the intimate relationship between a

parent and child deserves “constitutional protection.” See Roberts v. U.S.

Jaycees, 468 U.S. 609, 618–19 (1984) (cited in Overton v. Bazzetta, 539

U.S. 126, 131 (2003)). Even in prison, where the state may impinge upon

an individual’s constitutional rights, the Court has declined to “imply,”

let alone conclude, “that any right to intimate association is altogether

terminated by incarceration or is always irrelevant to claims made by

prisoners.” Overton, 539 U.S. at 131.

The Overton Court had no occasion to address that question because

it reviewed a regulation that allowed prisoners to share visits with

members of their “immediate family,” including minors who were the

“children, stepchildren, grandchildren, or siblings of the inmate.” Id. at

129. The regulation only barred from visitation other children, such as

minor nieces, nephews, and children for whom “an inmate’s parental

rights have been terminated.” Id. This Court upheld the regulation, but

only after applying its well-established test for whether a prison

administrative decision that “impinges on inmates’ constitutional

rights . . . is reasonably related to legitimate penological interests.” See

1

Turner v. Safley, 482 U.S. 78, 89 (1987); Overton, 539 U.S. at 131–32.

And the Court had no need to address a prison’s “de facto permanent ban

on all visitation,” id. at 134, or the application of that type of restriction

“in an arbitrary manner to a particular inmate,” id. at 137.

Five circuits have now stepped into the gap Overton left: Four agree

that a prison’s arbitrary and indefinite denial of visitation between a

parent and minor child violates the constitutional right of association.

These courts recognize that “prison officials may not restrict an inmate’s

visitation with family members without balancing the inmate’s interests

against legitimate penological objectives.” Easterling v. Thurmer, 880

F.3d 319, 323 n.6 (7th Cir. 2018).

The Fourth Circuit has refused to follow this approach for any

parent previously convicted of a sexual offense involving a minor. In the

Fourth Circuit, such a prisoner has no constitutional right to “in-person

visitation with his minor daughter.” App. 10a–12a. It reached that

conclusion even though the prison imposed an indefinite ban on visitation

between a father and his daughter for, in the prison’s words, “no specific

reason,” App. 140a. It went on to question whether any aspect of the

constitutional right of intimate familial association exists in prison. See

2

App. 11a–12a. In doing so, the Fourth Circuit rejected the reasoning of

Overton and lower courts that call for a particularized inquiry into

whether prison administrators’ visitation restrictions have “a rational

connection” to “a legitimate governmental interest.”

Wirsching v.

Colorado, 360 F.3d 1191, 1199–1201 (10th Cir. 2004). And it did so

despite other courts’ view that a “prisoner—even a sex offender—who

alleges that a permanent ban on visits with his minor children has no

legitimate justification states a valid constitutional claim,” Easterling,

880 F.3d at 322–23 & n.6.

The Fourth Circuit’s decision reflects the need for this Court to

answer the question Overton left open.

No bond is as close or as

important as a constitutional matter as that shared by immediate family

members. This bond “involve[s] deep attachments and commitments to

the necessarily few other individuals with whom one shares not only a

special community of thoughts, experiences, and beliefs but also

distinctively personal aspects of one’s life.” Roberts, 468 U.S. at 619–20.

Yet the Fourth Circuit construed Overton to provide sweeping discretion

for prison administrators to ban visitation in this case without any stated

justification, let alone regard for the particular relationship between a

3

father and his minor daughter who longs to see him. This Court should

intervene and conclude that such a ban violates the right of familial

association.

In the alternative, this Court should summarily reverse.

The

Fourth Circuit considered the allegations of an arbitrary denial of parentchild visitation in this case to be implausible because, in the Fourth

Circuit’s view, the prison had a reason for its denial. But the Fourth

Circuit reached that conclusion in the absence of any explanation from

any prison official about why the prison denied the request. The Fourth

Circuit instead substituted its own reasons for why it might have

explained the denial of visitation.

That approach disregarded this

Court’s longstanding precedent that leaves “administrative judgment” to

prison officials, not to courts to invent their own explanations when

officials provide none or—as here—affirmatively disclaim having any.

See Turner, 482 U.S. at 89.

OPINIONS BELOW

The decision of the U.S. Court of Appeals for the Fourth Circuit

(App. 1a–22a) is reported at 1 F.4th 236. The opinion and order of the

4

U.S. District Court for the Western District of Virginia are unreported

and are available at App. 24a–36a.

JURISDICTION

The Fourth Circuit, exercising jurisdiction under 28 U.S.C. § 1331,

entered judgment on June 15, 2021.

App. 23a.

This Court has

jurisdiction under 28 U.S.C. § 1254(1).

RELEVANT CONSTITUTIONAL PROVISIONS

The First Amendment to the U.S. Constitution provides:

Congress shall make no law respecting an establishment of

religion, or prohibiting the free exercise thereof; or abridging

the freedom of speech, or of the press; or the right of the people

peaceably to assemble, and to petition the Government for a

redress of grievances.

U.S. Const. amend. I.

The Fourteenth Amendment to the U.S. Constitution provides, in

part: “nor shall any State deprive any person of life, liberty, or property,

without due process of law.” U.S. Const. amend. XIV, § 1.

STATEMENT OF THE CASE

1. James Paul Desper is father to a fifteen-year-old daughter, K.D.,

and the only parent active in her life. App. 114a, 84a. Mr. Desper is

incarcerated at the Augusta Correctional Center in Virginia, where he

5

and his daughter initially enjoyed six years of regular, in-person visits.

App. 131a, 137a, 140a. Mr. Desper’s daughter was accompanied by her

legal guardian, who described the regular visits as “very good” and

beneficial to K.D. App. 84a.

In March 2014, the Virginia Department of Corrections amended

its regulations governing visitation. According to the amendment:

Offenders with any conviction requiring registration in the

Sex Offender and Crimes against Minors Registry will not be

allowed to visit with any minor until granted a sex offender

visitation exemption. (Minors currently approved for such

visits on the effective date of this operating procedure may be

allowed to continue visiting pending review for an exemption.)

App. 66a.

The regulation and its exemption process applied to Mr.

Desper, who had a conviction requiring registration after he pleaded

guilty to one count of indecent liberties with a sixteen-year-old when he

was twenty-three years old. App. 97a, 101a–02a, 138a; see also App. 83a

(acknowledging additional conviction for a sexual offense involving an

adult of limited mental capacity). Officials initially permitted Mr. Desper

and his daughter to continue regular visits after the regulation took

effect. App. 137a. Around December 2015, officials removed K.D. from

Mr. Desper’s visiting list “without notice” and began denying her

requests to visit him. App. 134a–35a.

6

Mr. Desper applied for an exemption from the Department’s

regulation to continue receiving visits from his daughter in March 2016.

App. 135a.

Mr. Desper met the regulation’s threshold eligibility

requirements: He had not had any disciplinary charges for more than six

months; the minor visitor was his biological child; and no court order

restricted visitation. App. 66a, 83a, 134a–36a.

The regulation next requires that the prospective visitor’s guardian

complete

a

questionnaire

and

that

the

applicant

complete

a

questionnaire as well as an assessment that includes a mental status

evaluation. See App. 66a–67a. Mr. Desper completed each step, and his

daughter’s guardian submitted a questionnaire explaining the benefits of

visitation to K.D. See App. 83a–84a, 135a.

A Sex Offender Visitation Committee reviews the application

materials and makes a recommendation regarding whether to permit the

parent and child visitation.

App. 67a.

A Corrections Operations

Administrator reviews the recommendation and makes a final decision.

App. 67a. Applicants denied visitation must wait one year before they

may reapply. App. 67a.

7

Although officials denied Mr. Desper and his daughter’s application

in mid-June 2016, Mr. Desper and his daughter’s guardian did not learn

that until roughly seven months later. App. 90a. In February 2017, after

Mr. Desper had written to the Department of Corrections asking about

the application, his daughter’s guardian received an email from the

Department. App. 90a, 106a, 112a. The email notified her that the

Department had denied K.D. visitation with her father and indicated she

could reapply one year after the denial, in June 2017. App. 112a. Mr.

Desper followed up by sending a letter to the Department to ask for

“reasons why” it had denied visitation.

App. 108a.

He received no

response. App. 139a.

In June 2017, Mr. Desper and his daughter applied for an

exemption a second time. App. 139a. Again, the Department denied the

application and did not notify either Mr. Desper or his daughter’s

guardian about the denial. App. 139a–40a.

K.D.’s guardian then called to ask about the denial. App. 140a. A

Department official told her: “there was no specific reason why the

visitation was disapproved.” App. 140a. Mr. Desper and his daughter

have not had any form of visitation since December 2015—they have not

8

seen one another’s faces in person or on a screen for almost six years. See

App. 137a.

2. Mr. Desper filed pro se a 42 U.S.C § 1983 suit asserting, in

relevant part, a violation of his constitutional right to familial association

under the First Amendment, as incorporated against the States through

the Fourteenth Amendment. App. 39a–42a. His complaint alleged that

named Department officials (collectively, “the Officials”) arbitrarily and

indefinitely denied his daughter visitation with him. App. 40a–42a.

The Officials moved to dismiss for failure to state a claim. App.

117a.

They argued that prisoners have no constitutional right to

visitation. App. 120a–24a. They also argued that, even if such a right

existed, the Department’s regulations governing visitation were

supported by legitimate interests in safety and rehabilitation.

App.

121a–22a.

The district court granted the motion to dismiss. App. 24a. It

doubted that the First Amendment protects any right to visitation in

prison. App. 28a–29a. It then held that, even if the First Amendment

does protect such a right, the Department’s regulations were reasonably

related to “the state’s interest in protecting children from sexual

9

misconduct and in promoting sex offender treatment success.” App. 29a–

31a.

3.

Mr. Desper appealed, and the Fourth Circuit appointed

undersigned counsel. The Fourth Circuit heard argument and affirmed

the dismissal.

The Fourth Circuit concluded that no constitutional right “requires

a prison to allow an inmate who has committed a sex offense against a

minor to have in-person visitation with his minor daughter.” App. 10a–

12a. It explained that allowing such an individual to have in-person

visitation with his daughter “seems directly ‘inconsistent with proper

incarceration.’” App. 11a–12a (quoting Overton, 539 U.S. at 131). The

Fourth Circuit then reasoned that, even if there were such a right, Mr.

Desper failed to state a claim that Department Officials “arbitrarily

denied [him] visitation in a way that violated the associational right he

assert[ed].” App. 14a. Although the Fourth Circuit acknowledged Mr.

Desper’s allegation that a prison official told his daughter’s guardian

“that ‘there was no specific reason why the visitation was disapproved,’”

the court viewed Mr. Desper’s claim of an unreasoned denial to be

10

implausible in light of the court’s own review of Mr. Desper’s application

for visitation. App. 14a.

11

REASONS FOR GRANTING THE WRIT

The breadth and impact of the decision below on intimate familial

relationships demonstrate the need for this Court to provide guidance on

question it left unanswered in Overton.

Overton upheld a prison

regulation that denied visitation with children under age eighteen other

than “those children closest to” a prisoner. Overton, 539 U.S. at 129–30,

133. The regulation allowed visitation with the prisoner’s own children,

stepchildren, grandchildren, and siblings. Id. at 129–30. And Overton

left open the possibility of challenges to a “de facto permanent ban on all

visitation,” id. at 134, and the application of that type of visitation

restriction “in an arbitrary manner to a particular inmate,” id. at 137.

Four circuits have now recognized that a prison’s arbitrary and indefinite

denial of visitation between a parent and minor child violates the

constitutional right of association. Not the Fourth Circuit. It has closed

the door to even that narrow right for a parent who has been convicted of

a sexual offense involving a minor. The Fourth Circuit reached that

conclusion after emphasizing that Overton had left for another day the

question of whether a prisoner has any constitutional right to parentchild visitation. This Court should answer that question and conclude

12

that a prison’s indefinite ban on visitation between a parent and minor

child without any particularized justification violates the right of familial

association.

The Court should use this case to do so. The issue is important, as

it affects the most intimate relationship subject to the right of

association: that of parents and their minor children. It also involves the

unique ability of parents to nurture bonds with their children through

face-to-face conversations.

Yet, without guidance from this Court

regarding the extent to which prison officials may interfere with these

intimate relationships, the Fourth Circuit read Overton’s reasoning

about prison visitation in general to reach its sweeping conclusion.

The decision below is also wrong and, if this Court does not order

merits briefing, it should summarily reverse.

Although the Fourth

Circuit considered Mr. Desper’s allegations of an arbitrary and indefinite

denial of parent-child visitation to be implausible, it did so only by

reviewing the visitation application Mr. Desper submitted to prison

officials and relying on reasons those officials never gave for denying

visitation. Both aspects of the decision below are contrary to this Court’s

precedents governing review of prison administrative decisions.

13

I.

The Fourth Circuit’s Answer to the Question this Court Left

Open in Overton Conflicts with that of Four Other Circuits.

This Court should address the question it had no need to decide in

Overton. Lower courts have consistently recognized since Overton that a

prison’s arbitrary and indefinite denial of parent-child visitation violates

the constitutional right of familial association.

The Fourth Circuit

acknowledged this trend and that Overton itself declined to “‘imply[] that

any right to’ familial association ‘is altogether terminated by

incarceration or is always irrelevant to claims made by prisoners.’” App.

8a, 12a (quoting Overton, 539 U.S. at 131). But because Overton did not

directly address this question, the Fourth Circuit refused to follow the

“weight of authority” that limits prison officials’ ability to “restrict an

inmate’s visitation with family members” unless the officials first balance

“the inmate’s interests against legitimate penological objectives.” See

Easterling, 880 F.3d at 323 n.6. The breadth of the decision below and

its divergence from four other circuits’ approach to Overton calls out for

this Court’s review.

1. Overton rejected a facial challenge to a regulation that allowed

a prisoner to receive visits from “those children closest to him or her.”

Overton, 539 U.S. at 129. So long as prisoners maintained parental

14

rights, they could share visits with their own children, as well as

“stepchildren, grandchildren, or siblings.”

Id. at 129–30, 133.

The

regulation at issue in Overton barred visitation only with children further

removed from a prisoner’s immediate family, like “minor nieces and

nephews and children as to whom parental rights have been terminated.”

Id. at 133. In upholding that regulation, this Court applied its wellestablished standard to examine whether a prison regulation is valid

even though it “impinges on inmates’ constitutional rights,” Turner, 482

U.S. at 89. See Overton, 539 U.S. at 132. And the Court decided the

regulation was valid after reviewing a well-developed trial record

establishing that “the regulation ha[d] a ‘valid, rational connection’ to a

legitimate governmental interest.” Id. at 132–36 (quoting Turner, 482

U.S. at 89).

Although Overton left undecided whether prison officials must

have a legitimate penological justification to bar a minor child from

seeing her incarcerated parent, it was not silent on the issue. This Court

recognized “that the Constitution protects ‘certain kinds of highly

personal relationships’” and acknowledged precedent “outside the prison

context” considering “a right to maintain certain familial relationships,

15

including association among members of an immediate family and

association between grandchildren and grandparents.” Id. (quoting

Roberts, 468 U.S. at 618, 619–620; citing Moore v. East Cleveland, 431

U.S. 494 (1977) (plurality op.), and Meyer v. Nebraska, 262 U.S. 390

(1923)).

Overton concluded by expressly declining to address whether “a de

facto permanent ban on all visitation for certain inmates,” id. at 134, or

application of that type of provision “in an arbitrary manner to a

particular inmate,” id. at 137, would survive constitutional scrutiny.

2. Today, four circuits have stepped into the vacuum Overton left

and agreed that an arbitrary and indefinite denial of visitation between

a minor child and her incarcerated parent would violate the

constitutional right of association.

The Seventh Circuit’s decision on this question is instructive.

Easterling, 880 F.3d at 323 n.6. It recognized this Court’s precedent

protecting

prisoners’

“limited

constitutional

right

to

intimate

association.” Id. at 322 (citing Turner, 482 U.S. at 95–96, and Overton,

539 U.S. at 131–32). And it concluded “that prison officials may violate

the Constitution by permanently or arbitrarily denying an inmate”—

16

even one previously convicted of a sexual offense—“visits with family

members in disregard of the factors described in Turner and Overton.”

Id. at 321, 323.

The Tenth Circuit also recognizes that parents retain a right of

association with their minor children. See Wirsching, 360 F.3d at 1198,

1201. As with all prison administrative decisions that “imping[e] on

inmates’ constitutional rights,” it applied Turner to decide whether a

prison’s decision to ban visitation between a father—who refused to

participate in a “treatment program for sex offenders”—and his minor

child withstood constitutional scrutiny.

See id. at 1195, 1198–1201.

Although the Turner inquiry demands deference to prison administrative

judgments, the Tenth Circuit emphasized that a prison’s ban on

visitation between a father and “his children is indeed a harsh restriction,

significantly more severe than the ban on family visits upheld in

Overton.” Id. at 1201 (footnote omitted). The Tenth Circuit, in turn,

cautioned prison officials “to ensure that restrictions upon visitation with

a prisoner’s children are justified by the circumstances” and suggested

that officials “seriously consider less draconian restrictions—such as

closely monitored, noncontact visitation,” id.

17

The Ninth Circuit similarly explained that a parent’s relationship

with “his or her child, even in prison, merits some degree of protection.”

Dunn v. Castro, 621 F.3d 1196, 1205 (9th Cir. 2010). And it followed

Overton in expressly declining to “hold or imply that incarceration

entirely extinguishes the right to receive visits from family members.”

Id. (citing Overton, 539 U.S. at 131–32). Rather, it asked whether prison

officials “arbitrarily or irrationally” restricted an incarcerated parent’s

visitation with his minor child.

Id.

Even review of a temporary

restriction on visitation between a prisoner “believed to have engaged in

improper conduct with a minor” and that prisoner’s “own children” was

“‘by no means open and shut’” as a matter of constitutional law. Id.

(quoting Wilson v. Layne, 526 U.S. 603, 615 (1999)).

Recently, the Eighth Circuit followed these circuits’ lead.

The

Eighth Circuit had not previously attempted to decide whether prison

officials may apply a “blanket prohibition on visitation” between pretrial

detainees and their “minor children.” Manning v. Ryan, 13 F.4th 705,

707 (8th Cir. 2021). But “[t]he time [wa]s ripe . . . to clearly establish

that such behavior may amount to a constitutional violation in the

future.” Id. at 708.

The Eighth Circuit reached that conclusion by

18

relying, in part, on Overton’s reasoning that “limitations on visitation

privileges may be unconstitutional if ‘applied in an arbitrary manner to

a particular inmate.’” Id. (quoting Overton, 539 U.S. at 137).

3. The Fourth Circuit has rejected this approach. In the decision

below, it refused to recognize that the right of association persists in

prison and protects against indefinite and unreasoned bans on visitation

between minor children and their incarcerated parents. Faced with an

ongoing visitation ban and no stated justification for applying that ban

to a particular parent and child, it concluded that “an inmate who has

committed a sex offense against a minor” has no constitutional right to

“in-person visitation with his minor daughter.” App. 10a–12a

To reach this anomalous result, the Fourth Circuit cited broad

statements from Overton about the limits incarceration necessarily

places on the right of association. To the Fourth Circuit, “most, if not

all,” of the goals of imprisonment this Court has described “cut[] against”

any decision that a “registered sex offender whose crime involved a

minor” has any constitutional right to “in-person visitation with his

minor daughter.” See App. 10a–12a. But Overton itself assumed that

prisoners maintain a right of association and applied Turner to decide

19

whether a particular visitation restriction that did not involve parentchild relationships bore “a rational relation to legitimate penological

interests.” Overton, 539 U.S. at 129–30, 132. Unlike its sister circuits,

the Fourth Circuit refused to follow that approach for prisoners convicted

of sexual offenses involving minors, foreclosing altogether the possibility

of as-applied challenges and protections for even “highly personal

relationships” like those of parents and their minor children in this

circumstance. See id. at 131 (quoting Roberts, 468 U.S. at 618, 619–20).

Lower courts outside the Fourth Circuit have made clear since

Overton that prison officials cannot deny parent-child visitation for

indefinite lengths of time without circumstance-specific justifications.

Without attempting to reconcile its ruling with that clear principle, the

Fourth Circuit simply emphasized the absence of precedent from this

Court on whether any associational right persists after incarceration.

See App. 11a–12a.

Yet the Fourth Circuit answered Overton’s open

question in a way that is at odds with the reasoning of Overton itself, as

other circuits have explained. That “inmates do not have an absolute

right to visitation” does not mean prison officials may ban “visitation with

family members without balancing the inmate’s interests against

20

legitimate penological objectives.”

Easterling, 880 F.3d at 323 n.6

(emphasis added). To protect the parent and minor-child relationship,

these circuits rightfully recognize that such bans will violate the

Constitution if prison officials apply them in a “permanent” or “arbitrary”

manner. See Overton, 539 U.S. at 137; Easterling, 880 F.3d at 322–23;

Wirsching, 360 F.3d at 1201.

The Fourth Circuit suggested it was following Overton, but its

holding shows otherwise. The Fourth Circuit affirmed a dismissal in

spite of Mr. Desper’s allegations that—after six years of healthy visits

with his daughter—prison officials began denying visitation between

them for an indefinite period of time and, in the prison’s words, for “no

specific reason,” App. 140a. See App. 12a (“[T]o find in the present

context that this right ‘survives incarceration’ to ‘the extent’ [Mr.] Desper

asserts would ignore the rationale for his confinement” (quoting Overton,

539 U.S. at 132)). That the Fourth Circuit could rely on reasoning from

this Court about the general “rationale for [Mr. Desper’s] confinement”

to reach its result demonstrates the need for this Court to clarify that

parents may bring as-applied challenges to denials of visitation with

21

their minor children that extend indefinitely and are imposed arbitrarily.

See App. 12a.

II.

This Court Should Answer the Important and Recurring

Question this Case Presents.

This Court should grant certiorari to fill the vacuum Overton left.

The issue in this case is important and recurring. And the decision below

is wrong in a way that reflects why this Court should clarify how to apply

Overton’s reasoning to prison administrators’ restrictions on visitation

when minor children wish to see their parents.

1. Many lower courts attempting to chart a course after Overton

have not doubted that the parent-child relationship is “the most

fundamental family relationship.” See M.L.B. v. S.L.J., 519 U.S. 102, 121

(1996).

Courts, in turn, have recognized the need to protect this

relationship, even in prison. See Wirsching, 360 F.3d at 1201 (“Even

inside the prison walls, that relationship is generally deserving of some

form of protection.”).

The issue of how prison administrators should treat parent-child

relationships in connection with visitation restrictions is recurring, as

reflected by the five circuits to have addressed the issue. And Virginia is

not alone in giving discretion to prison officials to decide whether to

22

permit minor children to see their incarcerated parents. See Easterling,

880 F.3d at 321 (describing a Wisconsin policy that gives a warden

“discretion to deny visits” on a series of listed grounds); Wirsching, 360

F.3d at 1195 (explaining that Colorado Department of Corrections

officials only would permit visitation between a parent and a child after

an individualized evaluation of the parent).1

2. Yet, without guidance from this Court about how to apply its

precedent regarding parent-child relationships within prisons, courts

will continue to struggle with “the analytical lacunae” and “uncertainty”

this Court left for another day. See Flynn v. Burns, 289 F. Supp. 3d 948,

965 (E.D. Wis. 2018). The decision below reflects how far courts may go

in this state of uncertainty.

1 That this issue is recurring is not surprising, given that “there

are more children with incarcerated parents than there are people in

prison”—in 2007, there were 1,518,535 people in prison and an

estimated 1,706,000 children with incarcerated parents. See Chesa

Boudin, Children of Incarcerated Parents: The Child’s Constitutional

Right to the Family Relationship, 101 J. Crim. L. & Criminology 77, 77

(2011); Lauren E. Glaze & Laura M. Maruschak, Bureau of Justice

Statistics, Dep’t of Justice, Special Report: Parents in Prison and Their

Minor Children 1 (2008), available at

http://bjs.ojp.usdoj.gov/content/pub/pdf/pptmc.pdf (cited in Boudin,

supra, 101 J. Crim. L. & Criminology at 77 n.4).

23

The Fourth Circuit read Overton to grant nearly unlimited

deference to prison administrators when applying visitation regulations.

After Mr. Desper alleged that prison officials both indefinitely denied him

and

his

daughter

visitation

and

affirmatively

disclaimed

any

particularized reason for the denial, the Fourth Circuit reasoned that

maintaining an associational right “to ‘the extent’ [he] asserts would

ignore the rationale for his confinement.” App. 12a (quoting Overton, 539

U.S. at 132). This sweeping decision allows prison officials to indefinitely

ban parent-child visitation for any individual previously convicted of a

sexual offense without any justification particularized to the parent-child

relationship being restricted. See App. 11a–12a. It reflects just how far

courts may go with Overton’s reasoning without clarification from this

Court.

The Fourth Circuit went further still: It treated the burden under

Overton as so heavy—and the deference to prison administrators so

great—that a prison need only have a process for reviewing applications

for parent-child visitation to receive deference for any unreasoned denial

that follows.

The decision below described the process Department

Officials undertook upon receipt of Mr. Desper and his daughter’s

24

visitation applications, including an assessment and review by a

committee. App. 5a, 13a–14a. According to the Fourth Circuit, Mr.

Desper failed to meet his “heavy” burden under Overton because he did

not explain in his complaint why the process that resulted in denials of

visitation for over five years “was not reasonably related to a legitimate

penological interest.” App. 13a–14a (emphasis in original). Yet notably

absent from the decision below is any citation to any reason from prison

administrators who denied Mr. Desper and his daughter’s applications.

The mere fact that prison officials have a process for accepting and

reviewing applications for parent-child visitation is not a substitute for

exercising “professional judgment” when barring a parent from accepting

visits from one’s minor child, let alone “professional judgment” based on

legitimate “penological goals.”

See Overton, 539 U.S. at 132.

Mr.

Desper’s complaint showed why the fact of a process meant nothing: That

process resulted in the prison denying visitation indefinitely—after

nearly six years of healthy visits—for, in its words, “no specific reason.”

App. 140a.

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III.

The Decision Below Misapplied this Court’s WellEstablished Precedent for Review of Prison Administrative

Decisions.

If this Court does not grant certiorari and order merits briefing, it

should summarily reverse.

Contrary to this Court’s precedent, the

Fourth Circuit independently reviewed Mr. Desper and his daughter’s

application for visitation and postulated its own reasons for denying that

application.

This Court has emphasized time and again that deference to prison

administrators is warranted only when they—not courts—exercise

“informed

discretion”

and

actually

“make . . . difficult

judgments

concerning institutional operations.” Jones v. N. Carolina Prisoners’ Lab.

Union, Inc., 433 U.S. 119, 128 (1977); see also Thornburgh v. Abbott, 490

U.S. 401, 419 (1989) (upholding facial validity of regulations, but

remanding for analysis of as-applied challenges under Turner). Rather

than properly apply this precedent to Mr. Desper’s allegations of an

arbitrary and indefinite denial, the Fourth Circuit described the

allegations as implausible “in light of [an] ‘obvious alternative

explanation.’” App. 14a (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (additional quotation omitted)).

26

Yet what the Fourth Circuit

called “obvious” was not an explanation from the prison administrators

tasked with reviewing Mr. Desper and his daughter’s applications for

visitation. Instead, the Fourth Circuit provided its own explanation.

The Fourth Circuit reviewed Mr. Desper’s application for visitation

and opined that—in the court’s view—Mr. Desper “was denied visitation

because in his application he failed to grasp the seriousness of his prior

offenses and indicated an unwillingness to take responsibility for his

criminal sexual history.”

App. 14a.

The decision below therefore

substituted the Fourth Circuit’s judgment where prison administrators

had provided none. That flouts Turner. See Turner, 482 U.S. at 89

(describing multi-factor analysis for courts to apply after prison officials

exercise “administrative judgment”); id. (rejecting an alternative test

that would make courts “the primary arbiters of what constitutes the best

solution to every administrative problem”).

There is no denying that considerations surrounding visitation “are

peculiarly within the province and professional expertise of corrections

officials” and that “courts should ordinarily defer to their expert

judgment.” Pell v. Procunier, 417 U.S. 817, 827 (1974). But the Fourth

Circuit pointed to no exercise of expertise or judgment here.

27

CONCLUSION

This Court should grant certiorari and either set this case for

briefing and argument or, in the alternative, summarily reverse the

erroneous decision below.

Respectfully submitted,

ERICA J. HASHIMOTO

Counsel of Record

GEORGETOWN LAW CENTER

APPELLATE LITIGATION

PROGRAM

111 F STREET, NW

WASHINGTON, D.C. 20001

(202) 662-9555

eh502@georgetown.edu

Counsel for Petitioner

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