Petition for Writ of Certiorari — Overton v. Bazzetta
Supreme Court brief2003
Ask Donna
What actually matters in this document.
Text
Supreme Court, U.S.
(\) FILED
No. 02 94 JUL -8 2002
IN THE OFFICE OF THE CLERK
Supreme Court of the Anited States
WILLIAM OVERTON, Director of
Michigan Department of Corrections;
MICHIGAN DEPARTMENT OF
CORRECTIONS,
Petitioners,
Vv.
MICHELLE BAZZETTA, et al,
Respondents.
On Petition for Writ of Certiorari to the
United States Court of Appeals for the Sixth Circuit
PETITION FOR: WRIT OF CERTIORARI
JENNIFER M. GRANHOLM
Attorney General
Thomas L. Casey
Solicitor General
Counsel of Record
P. O. Box 30212
Lansing, Michigan 48909
(517) 373-1124
Leo H. Friedman
Mark Matus
Lisa C. Ward
Assistant Attorneys General
Attorneys for Petitioners
SID eas.
ORO Oe Se On ly
—
een te a lle ——
-ji-
QUESTION PRESENTED
In 1995, the Michigan Department of Corrections revised
its prison visitation policy to: (1) prohibit visits by a minor
child, unless the minor is the child, stepchild or grandchild of
the prisoner; (2) prohibit visits by a prisoner’s child when the
prisoner’s parental rights have been terminated; (3) require that
all visiting minor children be accompanied by a parent or legal
guardian; (4) prohibit visits by former inmates unless the
former inmate is in the prisoner’s immediate family; and
(5) impose a ban on visitation for a minimum of two years for
any inmate found guilty of two or more major misconducts for
substance abuse. Do these restrictions, as set forth above,
(a) violate a right of intimate association under the First
Amendment as retained by an incarcerated felon or
(b) constitute cruel and unusual punishment in violation of the
Eighth Amendment?
-ii-
PARTIES TO THE PROCEEDING
This case involves a seven-year-old controversy between
incarcerated felons, their visitors and the Michigan Department
of Corrections. Petitioners are the Michigan Department of
Corrections and the Director of the en Department of
Corrections (MDOC).
Respondents include eleven class representatives, on
behalf of themselves and all others similarly situated, including
all inmates incarcerated by MDOC and non-incarcerated
potential visitors of MDOC inmates. The eleven representative
plaintiffs are Michelle Bazzetta, Stacey Barker, Toni Bunton,
Debra King, Shante Allen, Adrienne Branaugh, Alesia Butler,
Tamara Prude, Susan Fair, Valerie Bunton, and Arturo Bunton,
through his next friend, Valerie Bunton.
~ — ol ts ee Se
-iii-
TABLE OF CONTENTS
Page
ET i
PARTIES TO THE PROCEEDING. ..............ccccccccessssssscsessesees ii
| ne ili
Ee iv
RT l
SETI etesteiielihieeiaiiiaiiineiieetiaet einen tcincaaaiatanbi l
STATUTORY PROVISIONS INVOLVED.....0.......cccccccccceeeees 2
DE ATMS OR TRS CAG wrsccccccaccccassncccescesccccccscesccccseceecees 3
1. 1995 Revised Visitation Policy ................cccc0ceeeeeee 3
2. Visitation At MDOC Facilities .................ccccccccceesesees 4
Tt —«._— isis TEEN NT 5
I cecrscersnsiscecsentncnenensentcumeneentnentnsneseai 7
REASONS FOR GRANTING THE WRIT ...........cccccceecceeceseeee 9
I. THE COURT OF APPEALS' DECISION
IMPERMISSIBLY EXPANDS THIS COURT'S
PRIOR DECISIONS INVOLVING PRISONERS’
FIRST AND EIGHTH AMENDMENT RIGHTB........... 10
1. First And Fourteenth Amendments .......................... 10
2. Eighth And Fourteenth Amendments........................ 14
ll. THE SIXTH CIRCUIT COURT OF APPEALS'
DECISION CONFLICTS WITH THE OTHER
CIRCUITS THAT HAVE ADDRESSED THE ISSUE..17
an csccrnnsinnnsnsnsnnsnsnsetenntnntmeseenenentnccnnammentenennmaneninen 20
-ivV-
TABLE OF AUTHORITIES
Page
Cases
Bazzetta v. McGinnis,
124 F.3d 774 (6th Cir. 1997).............ccccccccceeesseeeeeeees 1,3, 4,6
Bazzetta v. McGinnis,
fF 0 00d. | 1,6
Bazzetta v. McGinnis,
148 F. Supp. 2d 813 (E.D. Mich. 2001).............ccccccceeeees 1,8
Bazzetta v. McGinnis,
286 F.3d 311 (6" Cir. 2002).......ccccccsecssesssessvesseseees 1, 4, 9, 16
Bazze‘ta v. McGinnis,
902 F. Supp. 765 (E.D. Mich. 1995)..............ccccccceeeeeeenees 1,5
Bel! v. Wolfish,
Ee i2
Berry v. Brady,
re ELIE, (IIE cceisicesshinnesiinsitntiesnsinainensaniienianiaainentialis 18
Block v. Rutherford,
re i iciitericictiteiieitirstisinnsiteransiamrinieaniemisitniamiinainaaiiaiiia 12
Caraballo-Sandoval v. Honsted,
ee 19
City of Dallas v. Stanglin,
RE 11
Estelle v. Gamble,
ge 14
Gerber v. Hickman,
No. 00-16494, 2002 U.S. App. LEXIS 9749 (9"
ne 17
Jones v. North Carolina Prisoners’ Union,
RE 10
Ky. Dept. Of Corrections v. Thompson,
a a: reenter 12, 16
Lynott v. Henderson,
eee 18
-V-
Mayo v. Lane,
EE es 18
McCray v. Sullivan,
Cn 18
MLB vy. SLJ,
I 10
Moore v. City of East Cleveland,
EEE ee ey 13
Moore v. City of East Cleveland,
RS 10
Olim v. Wakenekona,
ET ee a ee 13
O'Lone v. Shabazz,
a a 11
Pell v. Pecunier,
| EE eee eee 10
Peterson v. Shanks, |
149 F.3d 1140 (10th Cir. 1998)... ccccccccccccceseeseseeseseeseeeee 18
Pierce v. Society of Sisters,
eae eee See 10
Ramos v. Lamm,
eC 18
Rhodes v. .
EEE a eS 14
Sandin v. Conner,
ERIE eee a a 15
Shaw v. Murphy,
TTT a Tae Nal TED 11
Smith v.
po 19
Thornburgh v. Abbott,
Ee 11
Thorne v. Jones,
I 17,19
Troxel v. Grandville 7
a ce 14
-vi-
Turner v. Safley,
4B2 UB. TB (1967) nncccccccccccccccsccoccsssscccsssccsssccscssesscsssscssosess 11
White v. Keller,
SEB F.2b G13 Cis Cie. 1976 )....ccccccccccecccccccessccccssccsscccsseseees 19
Wilson v. Seiter,
a 15
Statutes
2B UBC. § 1DS4L1) occccccccreccsersecssccececccsccssccssessscsssssosssssensesseosss |
GB UBC. 6 BBG ccceccccecccsccsccscsssccsserscsssssssssssscsssssssssssnssnsensess 2,5
Other Authorities
Director’s Office Memorandum 1995-58 .0............ccccccceeeeeeeeees 4
Mich. Admin. Code R. 791.6609 .............cccccccccccceeeeseseeeeeeeeeees 3
Constitutional Provisions
OO OU 2
EEE 2
Eee 2
dip
OPINIONS BELOW
Petitioners respectfully petition this Court to issue a writ
of certiorari to review the judgment of the United States Court
of Appeals for the Sixth Circuit, entered in the above-entitled
case on April 10, 2002. Bazzetta v. McGinnis, 286 F.3d 311
(6" Cir. 2002). (App. pp. 5a-23a.) The Court of Appeals
affirmed the April 19, 2001 decision of the United States
District Court for the Eastern District of Michigan. Bazzetta v.
McGinnis, 148 F. Supp. 2d 813 (E.D. Mich. 2001). (App.
pp. 24a-120a.)
The district court’s October 6, 1995 opinion and order
denying Respondent’s motion for preliminary injunction is
reported at Bazzetta v. McGinnis, 902 F. Supp. 765 (E.D.
Mich. 1995). (App. pp. 160a-173a.) The April9, 1996
opinion and order of the district court granting Petitioners’
motion for summary judgment is not reported, but is reprinted
in the Appendix to this petition. (App. pp. 143a-159a.)
The Court of Appeals’ September4, 1997 opinion
affirming the district court’s grant of summary judgment is
reported at Bazzetta v. McGinnis, 124 F.3d 774 (6th Cir. 1997).
(App. pp. 127a-142a.) On January 5, 1998, the Court of
Appeals issued a supplementary opinion, which is reported at
Bazzetta v. McGinnis, 133 F.3d 382 (6th Cir. 1998). (App.
pp. 121a-126a.)
JURISDICTION
Petitioners seek review of an opinion of the United States
Court of Appeals for the Sixth Circuit, which was entered on
April 10, 2002. Bazzetta v. McGinnis, 286 F.3d 311 (6" Cir.
2002). This Court has jurisdiction to review the April 10, 2002
opinion of the Court of Appeals pursuant to 28 U.S.C.
§ 1254(1).
STATUTORY PROVISIONS INVOLVED
U.S. Const. amend. I provides that:
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. VIII provides that:
Excessive bail should not be required, nor excessive
fines imposed, nor cruel and unusual punishments
inflicted.
U.S. Const. amend. XIV provides that:
Section I. All persons born or naturalized in the
United States, and subject to the jurisdiction thereof,
are citizens of the United States and of the State
wherein they reside. No State shall make or enforce
any law which shall abridge the privileges or
immunities of citizens of the United States; nor shall
any State deprive any person of life, liberty, or
property, without due process of law; nor Geny to any
person within its jurisdiction the equal protection of
the laws.
42 U.S.C. § 1983 provides that:
Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State
or Territory or the District of Columbia, subjects, or
3.
causes to be subjected, any citizen of the United
States, or other person within the jurisdiction thereof,
to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws,
shall be liable to the party injured in an action at law,
suit in equity or other proper proceeding for redress,
except that in any action brought against a judicial
officer for an act or omission taken in such officer’s
judicial capacity, injunctive relief shall not be granted
unless a declaratory decree was violated or
declaratory relief was unavailable. For purposes of
this section, any Act of Congress applicable
exclusively to the District of Columbia shall be
considered to be a statute of the District of Columbia.
STATEMENT OF THE CASE
1. 1995 Revised Visitation Policy
In 1995, as a result of numerous visitation problems at
MDOC facilities, including the molestation of a child during
prison visitation, MDOC implemented changes in its visitation
policy.’ The revised visitation policy adopted by MDOC
limited the total number of visitors that were eligible to visit
each prisoner, regulated the times and dates of visits at MDOC
facilities, and required that a visitor be on an approved visitor
list prior to participating in visitation. Bazzetta v. McGinnis,
124 F.3d 774, 776 (6" Cir. 1997). In an attempt to limit the
mass numbers of children entering MDOC facilities for prison
visitation, the revised visitation policy limited the number of
' The specific rule at issue in this case is Mich. Admin. Code R. 791.6609
and the corresponding provisions of the Director's Office Memorandum
1995-58, which have been reprinted in the Appendix to this petition. (App.
pp. 174a-188a.)
-4-
minor children who could visit prisoners by requiring that
these children be the child, stepchild and/or grandchild of the
prisoner and requiring that all minor children be accompanied
by an adult immediate family member or legal guardian. The
1995 visitation policy also denied visitation between a minor
child and a prisoner when the parental rights of the prisoner
had been terminated. In addition, the 1995 visitation policy
limited prison visitation between current and former inmates to
only those former inmates who were immediate family
members of the prisoners they wished to visit. /d. at 776.
During the 1995 review of MDOC’s visitation policy,
MDOC also attempted to adopt a new form of discipline in
order to combat inmate substance abuse, which had become an
enormous security problem for prison administrators. Bazzetta
v. McGinnis, 286 F.3d 311, 321 (6" Cir. 2002). The 1995
visitation policy was amended to provide that any inmates
found guilty of two or more substance abuse major
misconducts would lose all visitation privileges for a minimum
of two years, upon approval by the Director. /d. at 321.
Pursuant to MDOC policy, the two-year visitation restriction
could not be imposed until after the inmate at issue had an
opportunity to participate in a MDOC disciplinary hearing with
regard to the underlying major misconduct tickets. As set forth
in the Director’s Office Memorandum 1995-58 (App. pp. 178a-
188a), after the expiration of two years, the inmate could
request reinstatement of visitation privileges; however, the
request had to be approved by the Director. /d. at 321.
2. Visitation At MDOC Facilities
There are two types of visitation permitted at MDOC
facilities, contact and non contact. Contact visits take place in
a large visitation room and physical contact is permitted
between the inmate and the visitor, whereas non contact visits
take. nlace in a small booth or a cubicle at the edge of the
visitation room. Bazzetta v. McGinnis, 124 F.3d 774, 775 (6th
-5-
Cir. 1997). Prisoners incarcerated at MDOC facilities are
classified from security level I through security level VI, and
the most dangerous inmates are those classified at security
level V and VI. With regard to security level V and VI
inmates, all visitation is non contact, and it takes place in
separate booths. However, inmates classified at security levels
IV through I are normally allowed contact visitation. /d. at
775-776. Contact visitation takes place in a large room with
numerous prisoners and visitors in attendance. For many
MDOC facilities, especially those housing lower security level
prisoners, when non contact visitation is necessary, it takes
place in a cubicle located in the open visitation room.
However, regardless of whether a visitor is going to participate
in contact or non contact visitation, all visitors wait in the same
waiting room, where they mingle with other visitors. Jd. at
776-777.
3. The Proceedings Below
As a result of the 1995 visitation changes, Respondents
filed a civil rights action pursuant to 42 U.S.C. § 1983 in the
United States District Court for the East..n District of
Michigan alleging that MDOC’s 1995 visitation policy
deprived them of their rights to privacy and family integrity,
freedom of association, due process, and the right to be free of
cruel and unusual punishment in violation of the First, Eighth
and Fourteenth Amendments to the United States Constitution.
In their complaint, Respondents sought declaratory,
preliminary and permanent injunctive relief. The district court
held a three day hearing on September 21, 22 and 28, 1995,
which included testimony from various MDOC officials. On
October 6, 1995, the district court issued an opinion and order
denying Respondents’ motion for preliminary injunction.
Bazzetta v. McGinnis, 902 F. Supp. 765 (E.D. Mich. 1995).’
2 The district court determined that Respondents’ claim that the visitation
rule restricting visitation privileges upon an inmate being found guilty ot
While Respondents’ appeal of the October 6, 1995 opinion
and order was pending, on December 5, 1995, Petitioners filed
a motion for dismissal and/or summary judgment in which they
argued that because Respondents have no constitutional rights
to prison visitation as a matter of law, their complaint should
be dismissed. After hearing oral argument from both parties,
on April 9, 1996, the district court issued an opinion and order
granting Petitioners’ motion for summary judgment and
entered a judgment dismissing the case.’ Respondents’ appeal
to the United States Court of Appeals for the Sixth Circuit of
the April 9, 1996 judgment was consolidated with their appeal
of the October 6, 1995 opinion and order for the purpose of
submission.
After briefing by the parties and oral argument, on
September 4, 1997, the Court of Appeals affirmed the district
court’s April 9, 1996 opinion and order granting Petitioners’
motion for summary judgment. In its decision, the Court of
Appeals determined that because there is no constitutional right
to prison visitation, the 1995 visitation restrictions do not
violate the First, Eighth and/or Fourteenth Amendments to the
United States Constitution. Bazzetta v. McGinnis, 124 F.3d
774 (6th Cir. 1997). Subsequently, on January 5, 1998, the
Court of Appeals issued an opinion clarifying that its
September 4, 1997 decision only applied to contact visitation.
Bazzetta v. McGinnis, 133 F.3d 382 (6th Cir. 1998).
two substance abuse major misconducts violated the Eighth and Fourteenth
Amendments, was not ripe for decision, and therefore, it was never ruled on
by the district court.
3 The April 9, 1996 opinion and order of the district court granting
Petitioners’ motion for summary judgment is not reported, but is reprinted
in the Appendix to this petition. (App. pp. 143a-159a.)
4. The Current Appeal
On July 2, 1998, the district court granted Respondents’
motion for reinstatement of their claim that the visitation rule
restricting visitation privileges upon an inmate being found
guilty of two substance abuse major misconducts violated the
First, Eighth and Fourteenth Amendments and their claim that
MDOC's 1995 visitation policy, as applied to non contact
visits, violated the First and Fourteenth Amendments.’ After
Respondents conducted discovery, on May 5, 2000, Petitioners
filed their second motion for summary judgment in this case.
In their motion, Petitioners argued that because incarcerated
felons have no constitutionally protected right to prison
visitation, whether contact or non contact, the district court
should dismiss Respondents’ Third Amended Complaint with
prejudice. The district court heard arguments from the parties
on June 21, 2000, and on June 22, 2000 the district court issued
an opinion and order denying Petitioners’ second motion for
summary judgment.
The district court held a bench trial in this case on
September 7-8, September 11-15, and September 18-19, 2000.
At the bench trial in this matter, Respondents called twenty-six
witnesses, including many inmates and their family members,
and Petitioners called eight witnesses, seven current employees
of MDOC and the former director. After the end of the
testimony but before the district court heard final arguments in
the case, on November 17, 2000, Petitioners filed a motion to
expand the record to include the prison visitation rules for all
fifty states and the District of Columbia. In their motion,
Petitioners argued that how other states restrict prison
visitation is relevant to the issue of whether MDOC's 1995
4 A review of the April 9, 1996 Judgment entered by the district court
reveals that Defendants’ motion to dismiss and/or for summary judgment
-8-
visitation policy is within contemporary standards of decency
as required by the Eighth Amendment. After hearing oral
argument from the parties on November 28, 2000, the district
court denied Petitioners’ motion to expand the record.
While the parties were awaiting a decision of the district
court, on April 9, 2001, Petitioners filed a motion to hold this
matter in abeyance pending the outcome of an effort by the
State of Michigan to amend MDOC's visitation rules. At the
time of Petitioners’ motion, the Michigan House of
Representatives was considering a bill that would amend the
MDOC’s definition of immediate family to include minor
siblings of prisoners, which would allow minor siblings to
participate in prison visitation. The district court denied
Petitioners’ motion to hold this matter in abeyance on April 12,
2001.5 On April 19, 2001 the district court issued its findings
of fact and conclusions of law, wherein it determined that
MDOC's 1995 visitation restrictions were unconstitutional with
regard to non contact visitation and the substance abuse
visitation restriction. Bazzetta v. McGinnis, 148 F. Supp. 2d
813 (E.D. Mich. 2001). The district court entered iudgment in
this case in favor of Respondents and against Pe‘:ioners as to
all claims, along with interest, costs, and attorneys’ fees as
provided by law on April 25, 2001.
On April 27, 2001, Petitioner timely filed a notice of
appeal of the April 25, 2001 judgment. After the filing of
briefs by both parties and oral argument, on April 10, 2002, the
Court of Appeals issued an opinion affirming the April 25,
2001 judgment of the district court adopting its April 19, 2001
findings of fact and conclusions of law in favor of Respondents
as to all claims. Bazzetta v. McGinnis, 286 F.3d 311 (6 Cir.
5 On May 24, 2001, Public Act 8 of 2001, which gives MDOC authority to
permit the minor siblings of a inmate to participate in prison visitation, was
signed into law.
-9.
2002). The April 10, 2002 Court of Appeals decision creates a
constitutionally protected First Amendment right to intimate
human relationships for incarcerated felons. The April 10,
2002 decision also seriously undermines MDOC’s ability to
manage security at state prisons by striking down, under the
Eighth Amendment’s prohibition against cruel and unusual
punishments, the use of a permanent ban on visitation as a
means of disciplining prisoners for repeated substance abuse
violations and other serious misconduct. Petitioners’ motion to
stay the issuance of the mandate in this case was denied by the
Court of Appeals on May 2, 2002, and the mandate issued the
same day. This Court denied Petitioners’ application for recall
pty a of mandate pending certiorari by letter on May 17,
REASONS FOR GRANTING THE WRIT
In its April 10, 2002 decision, the Court of Appeals
determined that incarcerated felons have a constitutionally
protected First Amendment right to intimate human
relationships. The April 10, 2002 decision of the Court of
Appeals also held that the use of a two-year visitation
restriction as a punishment for repeated substance abuse
violations and other serious misconduct is a violation of the
Eighth Amendment’s prohibition against cruel and unusual
punishments. None of this Court's prior decisions recognizing
a constitutionally protected First Amendment right to intimate
human relationships, which were relied on by the lower
6 Subsequent to this Court's denial of a stay of the mandate in this case, on
May 16, 2002, the district court entered an order of compliance that enjoins
MDOC from enforcing any rule, policy or procedure which bans, restricts,
prevents or limits visitation based on prior or future misconducts for
substance abuse. (App. pp. la-4a.)
-10-
courts,’ address the issue of whether this right survives
incarceration. In addition, this Court has never held that
restricting visitation as a means of disciplining prisoners for
repeated substance abuse violations and other serious
misconduct constitutes cruel and unusual punishment. Thus,
because the Court of Appeals April 10, 2002 decision is
beyond the scope of any constitutional right heretofore
recognized by this Court and is in direct conflict with all of the
other circuit courts that have addressed the issue of prison
visitation, Petitioners request that this Court grant certiorari.
I. THE COURT OF APPEALS' DECISION
IMPERMISSIBLY EXPANDS THIS COURT'S PRIOR
DECISIONS INVOLVING PRISONERS' FIRST AND
EIGHTH AMENDMENT RIGHTS
1. First And Fourteenth Amendments
This Court has not yet addressed the extent to which
incarcerated felons have a constitutionally protected First
Amendment right to intimate human relationships. However,
whenever the Court has addressed whether prisoners retain
other delineated First Amendment rights, this Court has held
that these First Amendment rights are fundamentally
inconsistent with incarceration. In Pell v. Pecunier, 417 U.S.
817 (1974), the Court determined that, as long as there were
other means of communication available to prisoners,
incarcerated felons have no constitutionally protected First
Amendment right to face-to-face interviews with members of
the press. Subsequently, in Jones v. North Carolina Prisoners’
Union, 433 U.S. 119 (1977), the Court determined that
’ MLB v. SLJ, $19 U.S. 102, 116 (1996); Moore v. City of East Cleveland,
431 U.S. 494, 499 (1977); and Pierce v. Society of Sisters, 268 U.S. 510
(1925).
-ll-
prisoner labor unions do not have any associational rights
protected by the First and Fourteenth Amendments. "Perhaps
the most obvious of the First Amendment rights that are
necessarily curtailed by confinement are those associational
rights that the First Amendment protects outside of -prison
walls. The concept of incarceration itself entails a restriction
on the freedom of inmates to associate with those outside of
the penal institution." /d. at 125-126."
During that same term in Turner v. Safley, 482 U.S. 78, 93
(1987), the Court upheld a prison regulation barring inmate-to-
inmate correspondence. in O'Lone v. Shabazz, 482 U.S. 342
(1987), the Court held that prison regulations precluding
certain religious services do not violate the First Amendment
to the United States Constitution.’ In addition, this Court has
also noted that members of the public have no greater
constitutional rights than inmates when it comes to prison
regulations that affect the rights of prisoners and outsiders.
Thornburgh, supra, at 410. Last term, in Shaw v. Murphy, 532
U.S. 223 (2001), the Court ruled that prisoners do not have a
First Amendment right to provide legal assistance to other
prisoners. "In the First Amendment context, some rights are
simply inconsistent with the status of a prisoner or with the
legitimate penological objectives of the correctional system."
Id. at 229. Thus, during the past twenty-eight years, this Court
has consistently upheld restrictions on the First Amendment
~ghts of prisoners that would be unconstitutional if applied to
members of the public.
* Recently, the Court has determined that whatever associational rights are
protected by the First Amendment, they do not include a general right to
associate with others. City of Dallas v. Stanglin, 490 U.S. 19, 24-25 (1989).
* See also: Thornburgh v. Abbott, 490 U.S. 401 (1989), where the Court
receiving publications found to be detrimental to institutional security.
-]2-
With regard to the issue of visitation with family, this
Court has upheld the right of jail officials to restrict the
exercise of the First Amendment right to intimate human
relationships by pretriai detainees. In Block v. Rutherford, 468
U.S. 576 (1984), the Court held that a blanket prohibition on
contact visits for pretrial detainees was not unconstitutional.
Contact \.sits invite a host of security problems.
They open the institution to the introduction of drugs,
weapons, and other contraband. Visitors can easily
conceal guns, knives, drugs, or other contraband in
countless ways and pass them to an inmate unnoticed
by even the most vigilant observers. And these items
can readily be slipped from the clothing of an
innocent child, or transferred by other visitors
permitted close contact with inmates. [/d. at 586.]
Although this Court acknowledged that there might be other
alternatives to address the security issue, prison administrators
are not constitutionally required to use the least restrictive
means available in order to achieve the legitimate
governmental objective. “In sum, we conclude that petitioners’
blanket prohibition is an entirely reasonable, non-punitive
response to the legitimate security concerns identified,
consistent with the Fourteenth Amendment.” Jd. at 588. See
also: Bell v. Wolfish, 441 U.S. 520 (1979).
In Ky. Dept. Of Corrections v. Thompson, 490 U.S. 454
(1989), the Court upheld prison regulations that prohibited
certain persons from visiting with incarcerated felons,
determining that there is no Fourteenth Amendment right to
unfettered prison visitation.
Respondents do not argue - nor can it seriously be
contended, in light of our prior cases - that an inmate's
interest in unfettered visitation is guaranteed directly
by the Due Process Clause. We have rejected the
~*
notion that “any change in the conditions of
confinement having a substantial adverse impact on
the prisoner involved is sufficient to invoke the
protections of the Due Process Clause." *** The
denial of prison access to a particular visitor "is well
within the terms of confinement ordinarily
contemplated by a prison sentence," Hewitt v. Helms,
459 US at 468, 74 L Ed 2d. 675, 103 S Ct 864, and
therefore is not independently protected by the Due
Process Clause. [/d. at 460-461.]
Previously in Olim v. Wakenekona, 461 U.S. 238 (1983),
this Court held that the transfer of a state prisoner from Hawaii
to California did not violate the Due Process Clause of the
Fourteenth Amendment.
Respondent's argument to the contrary is
unpersuasive. The Court in Montanye [v. Haymes,
427 U.S. 236 (1976)] took note that among the
hardships that may result from a prison transfer are
separation of the inmate from home and family,
separation from inmate friends, placement in a new
and possibly hostile environment, difficulty in making
contact with counsel, and interruption of educational
and rehabilitative programs. [Citation omitted.] These
are the same hardships respondent faces as a result of
his transfer from Hawaii to California. [ /d. at 248,
n.9.]
To the extent that this Court has addressed the issue of
whether the First Amendment and/or Fourteenth Amendment
protects a fundamental right to family integrity, that
constitutional right has been limited to grandparents, parents,
children and grandchildren. In Moore v. City of East
Cleveland, 431 U.S. 494 (1977), the Court ruled that a housing
ordinance limiting occupancy to members of a single nuclear
family violated the Due Process Clause of the Fourteenth
-14-
Amendment as applied to a grandmother's choice to live with
her grandson.
On its face it selects certain categories of relatives
who may live together and declares that others may
not. In particular, it makes a crime of a grandmother's
choice to live with her grandson in circumstances like
those presented here. *** "This Court has long
recognized that freedom of personal choice in matters
of marriage and family life is one of the liberties
protected by the Due Process Clause of the Fourteenth
Amendment.” [/d. at 498-499. ]
More recently, in Troxel v. Grandville, 530 U.S. 57
(2000), the Court refused to extend the constitutionally
protected rights in matters of marriage and family life to any
relationship beyond that of parents and children. Thus,
whatever the extent of the First Amendment right to intimate
human relationships and/or family integrity, none of this
Court’s prior cases addressing the nature and extent of this
right involve incarcerated felons.
2. Eighth And Fourteenth Amendments
In Estelle v. Gamble, 429 U.S. 97 (1976), this Court set
forth the test for determining whether conditions of
confinement in general may result in a violation of the Eighth
Amendment's prohibition against cruel and unusual
concepts of dignity, civilized standards, humanity, and
decency, ... against which we must evaluate penal measures.
Thus, we have held repugnant to the Eighth Amendment
standards of decency that mark the progress of a maturing
society." Jd. at 102. Subsequently, in Rhodes v. Chapman,
452 U.S. 337 (1981), the Court clarified that not all harsh
conditions of confinement violate the Eighth Amendment, but
-15-
rather, the courts should look at whether the deprivation at
issue is sufficiently serious.
No static “test” can exist by which courts determine
whether conditions of confinement are cruel and
unusual, for the Eighth Amendment “must draw its
meaning from the evolving standards of decency that
mark the progress of a maturing society." *** But
conditions that cannot be said to be cruel and unusual
To the extent that such conditions are restrictive and
even harsh, they are part of the penalty that criminal
offenders pay for their offenses against society. [/d. at
346-347.]
Recently, in Wilson v. Seiter, 501 U.S. 294 (1991), the
Court identified the types of deprivations that may involve an
Eighth Amendment violation.
Some conditions of confinement may establish an
Eighth Amendment violation in combination when
each would not do so alone, but only when they have
a mutually enforcing effect that produces the
deprivation of a single, identifiable human need such
as food, warmth, or exercise - for example, a low cell
temperature at night combined with a failure to issue
blankets. [/d. at 304.]
See, Sandin v. Conner, 515 U.S. 472 (1995).
The punishment of incarcerated prisoners, on the
other hand, serves different aims than those found
invalid in Bell and Ingraham. The process does not
impose retribution in lieu of a valid conviction, nor
does it maintain physical control over free citizens
forced by law to subject themselves to state control
over the educational mission. It effectuates prison
-16-
management and prisoner rehabilitation goals. * * *
Discipline by prison officials in response to a wide
range of misconduct falls within the expected
perimeters of the sentenced imposed by a court of
law. [/d. at 485.]
In the instant case, the Court of Appeals determined that
pursuant to the First, Eighth and Fourteenth Amendments,
prisoners have a constitutionally protected right of intimate
human relationships, and depriving prisoners of visitation is
cruel and unusual punishment. As support for this conclusion,
the Court of Appeals relied on the concurring opinion of
Justice Kennedy in Ky. Dept. of Corrections v. Thompson,
supra, at 465. Bazzetta v. McGinnis, 286 F.3d 311, 317 (6
Cir. 2002). A review of the Thompson case, however, reveals
that it actually supports Petitioners’ position that incarcerated
felons have no constitutionally protected right to visitation. As
set forth above, in Thompson, the Court refused to find that
prisoners have a Fourteenth Amendment right to participate in
visitation. Jd. at 461.
The Court of Appeals also relied on numerous Supreme
Court cases that have upheld a First Amendment right to
establish and maintain family relationships and to make
childrearing decisions, as support for its determination that
prison visitation is a constitutionally protected right. Id. at
317. However, none of the cases relied on by the Court of
Appeals involve incarcerated felons, and this Court has never
held that the First Amendment right to establish and maintain
family relationships and to make childrearing decisions
survives incarceration.
With regard to its determination that depriving prisoners
of visitation is cruel and unusual punishment, a review of the
cases relied on by the Court of Appeals reveals that none of
Court has never held that depriving an inmate of prison
-]7-
visitation for a minimum of two years constitutes cruel and
unusual punishment, the Court of Appeals’ determination that
use of a two-year visitation restriction as a punishment for
repeated substance abuse violations and other serious
misconduct violates the Eighth Amendment, is erroneous.
Il. THE SIXTH CIRCUIT COURT OF APPEALS'
DECISION CONFLICTS WITH THE OTHER
CIRCUITS THAT HAVE ADDRESSED THE ISSUE
All of the other circuit courts that have looked at the issue
of whether incarcerated felons have a constitutionally protected
right to intimate human relationships, have ruled that the right
to intimate association as protected by the First and Fourteenth
Amendments does not survive incarceration. Recently, in
Gerber v. Hickman, No. 00-16494, 2002 U.S. App.. LEXIS
9749 (9 Cir. May 23, 2002), the Ninth Circuit was confronted
with the issue of whether a prisoner has a constitutional right to
procreate while incarcerated. Although the Ninth Circuit
acknowledged that the right to procreate is a protected part of
the First Amendment right to intimate human relationships, it
held that the right does not survive incarceration. Thus,
because the Ninth Circuit determined that the loss of the right
to intimate association was part and parcel of being
imprisoned for conviction of a crime, the Court never
addressed whether the prison’s regulation was related to.a valid
penological interest. Jd. at *6-7, 13.
In Thorne v. Jones, 765 F.2d 1270 (Sth Cir. 1985), the
Fifth Circuit refused to find that inmates have a right to
visitation ». ounded in the First Amendment.
Such incarcerated persons as the Thorne brothers
intain no right to simple physical ~~ mpg
with their parents or with anyone else -- grounded in
the first amendment. *** At all events, the claims
-18-
of the Thorne brothers, whatever their source, to go
where they like and to meet with whom they choose
have been terminated by a proceeding conducted
according to the strictest of due process: a criminal
trial. [/d. at 1274.]
See also: Berry v. Brady, 192 F.3d 504 (Sth Cir. 1999), "Berry
has no constitutional right to visitation privileges." Jd. at 508;
Lynott v. Henderson, 610 F.2d 340 (Sth Cir. 1980); and
McCray v. Sullivan, 509 F.2d 1332 (Sth Cir. 1975).
Although only one circuit court has addressed the issue of
whether a denial of prison visitation is cruel and unusual
punishment, none of the circuit courts addressing the issue of
prison visitation in general have found that a denial of
Visitation is a violation of the Eighth Amendment.
In Berry, supra, the Fifth Circuit refused to find that a
denial of visitation deprived a prisoner of the minimal measure
of life's necessities such that it violated the Eighth
Amendment. /d. at 507. Previously, in Ramos v. Lamm, 639
F.2d 559 (10th Cir. 1980), the Tenth Circuit upheld visitation
regulations limiting visitors to an inmate's immediate family,
or up to three non-family visitors. See also: Peterson v.
Shanks, 149 F.3d 1140 (10th Cir. 1998). "Prison necessarily
disrupts the normal pattern of familial association, so lawful
imprisonment can hardly be thought a deprivation of the right
of relatives to associate with the imprisoned criminal." Mayo
v. Lane, 867 F.2d 374, 375 (7 Cir. 1989).
The Second Circuit has also upheld visitation restrictions
that limited prison visitation to non-contact visits with
members of an inmate's immediate family, but prohibited
visitation with friends or other members of the public.
Considering the alternative means of communication
that were available to appellant through those persons
-19-
with whom he could visit and the justifications put
forth by prison officials. we conclude that the
restrictions on Smith's visiting rights did not violate
the First Amendment. [Smith v. Coughlin, 748 F.2d
783, 788 (2nd Cir. 1984).]
In White v. Keller, 588 F.2d 913 (4th Cir. 1978), the Fourth
Circuit affirmed a district court ruling that there is no
constitutional right to prison visitation either for prisoners or
visitors. More recently, the Eleventh Circuit upheld the denial
of visitation for two years to an inmate and his visitor who
misled prison authorities about their relationship. Caraballo-
Sandoval v. Honsted, 35 F.3d 521 (11th Cir. 1994).
In its April 10, 2002 decision, the Court of Appeals does
not cite any other circuit court decision to support its
conclusion that inmates have a constitutionally protected right
to prison visitation. Although the Court of Appeals refers to
Thorne v. Jones, supra, generally, as explained above, in
Thorne v. Jones, the Fifth Circuit held that inmates have no
right to prison visitation that is protected by the United States
Constitution. In addition, the Court of Appeals does not cite
any circuit court cases to support its determination that the
denial of prison visitation constitutes cruel and unusual
punishment.
Given that the April 10, 2002 decision of the Court of
Appeals conflicts with every other circuit court that has
addressed the issues of whether incarcerated felons have a
constitutionally protected First Amendment right to intimate
human relationships, and whether the use of a two-year
visitation restriction as a punishment for repeated substance
abuse violations violates the Eighth Amendment’s prohibition
against cruel and unusual punishment, Petitioners request that
this Court grant certiorari and reverse the Court of Appeals’
April 10, 2002 decision.
-20-
CONCLUSION
For all of the above-stated reasons, Petitioners, the
Michigan Department of Corrections and its Director,
respectfully request this honorable Court to grant Certiorari
and reverse the April 10, 2002 decision of the United States
Court of Appeals for the Sixth Circuit.
Respectfully submitted.
JENNIFER M. GRANHOLM
Attorney General
Thomas L. Casey
Solicitor General
Counsel of Record
P. O. Box 30212
Lansing, Michigan 48909
(517) 373-1124
Leo H. Friedman
Mark Matus
Lisa C. Ward
Assistant Attorneys General
Attorneys for Petitioners
Dated: July, 2002
APPENDIX
TABLE OF CONTENTS
Page
United States District Court Order of Compliance
I ee iniinictasinnintinninittianitctncineciinnitinininniaes la-4a
Sixth Circuit Court of Appeals Opinion dated
TES Fa Ae crcccicsiniahccitinaticibatliaihinininctaniatamicaasiings Sa-23a
United States District Court Findings of Fact and
Conclusions of Law dated April 19, 2001 ............ 24a-120a
Sixth Circuit Court of Appeals Supplementary
Opinion dated January 5, 1998 ...............:ccccceeeee 121a-126a
Sixth Circuit Court of Appeals Opinion dated
IG, Te cncteciessncnisticinnniisintadsiaiitssttniicatiinans 127a-142a
United States District Court Memorandum Opinion
and Order Granting Defendants’ Motion to
Dismiss and/or for Summary Judgment dated
STEED, Ce cnnccinintnicicsscaninniapibiiiaesiitiasiniiaiinananis 143a-159a
United States District Court Memorandum Opinion
and Order Denying Plaintiffs' Motion for
Preliminary Injunction dated October 6, 1995.... 160a-173a
Michigan Administrative Code R 791.6609 .............. 174a-177a
Michigan Department of Corrections Director's
Office Memorandum 1995-58 .............cscessesseeees 178a-188a
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Michelle Bazzetta, Stacy Barker, Toni Bunton,
Debra King, Shante Allen, Adrienne Bronaugh,
Alesia Butler, Tamara Prude, Susan Fair,
Valerie Bunton and Arturo Zavala, through his
Next Friend Valerie Bunton, on behalf of
themselves and all others similarly situated,
Plaintiffs,
No. 95-73540
v. Hon. Nancy G. Edmunds
Kenneth McGinnis, Director of Michigan
Dep’t of Corrections, Dan Bolden,
Deputy Director of the Correctional Facilities,
Michigan Dep’t of Corrections,
Defendants.
ORDER OF COMPLIANCE
This Court having ruled that the Michigan Department of
Corrections’ rules, policies and procedures, restricting non-
contact visits from minor nieces, nephews, siblings, biological
children of prisoners whose parents voluntarily terminated their
parental rights (other than for abuse or neglect), minors who
are accompanied by adults with power of attorney, and former
prisoners, and imposing a ban on visits for substance abuse
misconducts, violate Plaintiffs’ constitutional rights protected
-2a-
by the First, Eighth, and Fourteenth Amendments to the
Constitution and this ruling having been affirmed in its entirety
by the Sixth Circuit Court of Appeals, and the mandate having
issued on May 2, 2002,
IT IS HEREBY ORDERED that Defendants’ are enjoined
from enforcing Rule 791.6609 (11)(d), PD 05.03.140 (BBB)
(4) or any rule, policy or procedure which bans, restricts,
prevents or limits visitation based on prior or future
misconducts for substance abuse;
IT IS FURTHER ORDERED that Defendants shall take
all steps to remove all restrictions on visitation imposed as a
result of two or more guilty findings for substance abuse
misconducts on or before the end of business on May 17, 2002.
Defendants shall notify all facilities of the lifting of the ban on
visitation imposed on prisoners who were found guilty of two
cr more substance abuse misconducts, or reimposed for a
subsequent substance abuse misconduct, posting a notice by
the end of business on Friday, May 17, 2002 and shall post a
notice at each facility advising Plaintiffs that visitation shall
recommence on Saturday, May 18, 2002;
IT IS FURTHER ORDERED that Defendants shall
prepare a revised visitor application form which deletes the
restrictions for minor nieces, nephews, biological children of
prisoners whose parents voluntarily terminated their parental
rights (other than for abuse or neglect), minors who are
accompanied by adults with power of attorney, and former
prisoners, and provide copies of the revised form to all
facilities on or before the end of business May 20, 2002.
_ Sufficient application forms shall be available for distribution
to any prisoner requesting a form and notice shall be
prominently posted at all facilities to advise plaintiffs of the
availability of the revised forms. The department shall facilitate
the mailing of all forms, including the provision of postage for
-3a-
indigent prisoners in the same manner as currently used for the
processing of legal mail, and forms shall be available for
visitors at the front desk.
IT IS FURTHER ORDERED that Defendants shall allow
changes in prisoners visiting forms during the thirty days
following the availability of the revised forms, and shall
promptly process the completed application forms within one
week from receipt of the completed application and shall
advise applicants of the availability or denial of visits within
two days of the completion of the review process. Defendants
shall provide notice to Plaintiffs’ counsel of all denials of
visitation applications, by providing a copy of the application
and the decision and basis for the denial;
IT IS FURTHER ORDERED that Defendants are enjoined
from denying visits by minor nieces, nephews, biological
children of prisoners whose parents voluntarily terminated their
parental rights (other than for abuse or neglect), children
brought for visits by adults with power of attorney, and former
prisoners based on any and all rules policies and procedures
that were found to be unconstitutional by this court’s opinion
of April 10, 2001;
IT IS FURTHER ORDERED that the visits may take
place on either a contact or non contact basis. If Defendants
choose to have the visits non contact, the visits shall be in
accordance with the number of visits, number of visitors,
frequency and length allowed each prisoner according to their
custody level and location;
IT IS FURTHER ORDERED that the injunction enforcing
Rule 791.6609(11)(d) applies to contact as well as non-contact
visitation, and Defendants may not impose a non-contact
restriction on the reinstatement of visits unless such restriction
is otherwise authorized by
Department regulations.
IT IS FURTHER ORDERED that Defendants provide a
copy of all implementing forms, memos, reports on denials,
grievances on visitation related to these rules, together with all
reports on compliance.
/s/
Nancy G. Edmunds
U.S. District Judge
Dated: May 16, 2002
Filed: May 16, 2002
-Sa-
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
Michelle Bazzetta, Stacy Barker, Toni Bunton,
Debra King, Shante Allen, Adrienne Branaugh,
Alesia Butler, Tamara Prude, Susan Fair, Valerie
Bunton, and Arturo Bunton, through his next friend
Valerie Bunton, on behalf of themselves and all
others similarly situated,
Plaintiffs- Appellees,
v. No. 01-1635
Kenneth McGinnis,
Director of Michigan Department of -
of Corrections,
Defendants-Appellants.
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 95-73540--Nancy G. Edmunds, District Judge.
Argued: November 30, 2001
Decided and Filed: April 10, 2002
Before: MERRITT, CLAY, and GILMAN, Circuit Judges.
-6a-
COUNSEL
ARGUED: Lisa C. Ward, OFFICE OF THE ATTORNEY
GENERAL, CORRECTIONS DIVISION, Lansing, Michigan,
for Appellant. Deborah A. LaBelle, LAW OFFICES OF
DEBORAH LaBELLE, Ann Arbor, Michigan, for Appellee.
ON BRIEF: Lisa C. Ward, Leo H. Friedman, Mark W. Matus,
OFFICE OF THE ATTORNEY GENERAL, Lansing,
Michigan, for Appellant. Deborah A. LaBelle, LAW
OFFICES OF DEBORAH LaBELLE, Ann Arbor, Michigan,
Patricia A. Streeter, Detroit, Michigan, for Appellee. Jill M.
Wheaton, DYKEMA GOSSETT, Detroit, Michigan, Michael J.
Steinberg, Kary L. Moss, AMERICAN CIVIL LIBERTIES
UNION FUND OF MICHIGAN, Detroit, Michigan, for Amici
Curiae.
OPINION
MERRITT, Circuit Judge. Plaintiffs, a class of prisoners
incarcerated by defendant Michigan Department of
Corrections, and their prospective visitors, sue the department
under 42 U.S.C. § 1983, claiming that restrictions on prison
visitation imposed in 1995 violate their rights under the First,
Eighth, and Fourteenth Amendments.
In 1995, Michigan's Department of Corrections issued new
regulations limiting who can visit prisoners. The regulations
challenged by plaintiffs (1) banned visits from prisoners' minor
brothers, sisters, nieces and nephews; (2) banned all visits by
prisoners' children when parental rights had been terminated;
(3) banned all visiis by former prisoners who are not
immediate family, (4) required that visiting children be
accompanied by a parent or legal guardian, and (5)
permanently banned visitors, apart from attorneys and clergy,
-7a- a
for prisoners who twice violated the department's drug abuse
policies.
The new regulations were a response to growth in
Michigan's prison population in the early 1990s and the
resulting increase in the number of visitors. Department
officials believed the increase in visitors made supervising
visits more difficult and smuggling of drugs and weapons more
difficult to stop. Officials also decided that the increased
number of visiting children was a problem because it was
difficult for prison guards to supervise children and because the
prison environment was bad for the children. We note that
there are two kinds of visits, contact and non-contact. Contact
visits allow physical contact between a prisoner and visitors,
and occur in meeting rooms supervised by prison guards. Non-
contact visits occur when a prisoner and visitors sit in separate
rooms, but can see one another through a clear window and
speak on a telephone. J.A.- at 2506-51.
In 1995, plaintiffs challenged the new regulations, asserting
they violated plaintiffs’ First, Eighth, and Fourteenth _
Amendment rights. The department defended the
constitutionality of the regulations, arguing they were only
applied to contact visits, to which prisoners have no absolute
right. The district court found plaintiffs’ challenge to the
permanent ban on visitors for substance abuse violations was
not ripe, but upheld the other regulations as they applied to
contact visits. See Bazzetta v. McGinnis, 902 F. Supp. 765
(E.D. Mich. 1990). We affirmed its decision, holding that
"there is no inherent, absolute right to contact visits with
prisoners," Bazzetta v. McGinnis, 124 F.3d 774, 779 (6th Cir.
1997) (emphasis added), but we did not address whether
prisoners have a right to non-contact visits. See Bazzetta v.
McGinnis, 133 F.3d 382, 383 (6th Cir. 1998). Subsequently it
turned out that the department seriously misled us and was
applying the regulations to all visits, contact and non-contact. _
-8a-
Plaintiffs again brought suit challenging the regulations, this
time as applied to non-contact visits. All of the regulations in
question apply to non-contact visitors who communicate with
prisoners by phone and view them through glass wa!ls.
After a bench trial, the district court found for the plaintiffs.
See Bazzetta v. McGinnis, 148 F. Supp. 2d 813 (E.D. Mich.
2001). It held that the regulations limiting visits infringed on
prisoners' First Amendment right of intimate association and
were not reasonably related to a valid penological objective,
and that the permanent ban on visitors for two violations of the
drug abuse policy infringed on prisoners’ First Amendment
right of intimate association, was not reasonably related to a
valid penological objective, was cruel and unusual punishment
in violation of the Eighth Amendment, and was imposed in a
manner violating prisoners’ Fourteenth Amendment due
process rights. Defendants timely appealed.
Analysis
A. Prisoners' rights and legitimate restrictions
"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). "A prison inmate retains those
First Amendment rights that are not inconsistent with his status
as a prisoner or with the legitimate penological objectives of
the correctional system." Pell v. Procunier, 417 U.S. 817, 822
(1974); accord Shaw v. Murphy, 532 U.S. 223, 228 (2001)
("incarceration does not divest prisoners of all constitutional
protections").
The First Amendment guarantees individuals the right to
freedom of association, and prisoners retain their First
Amendment rights to the extent that the rights do not conflict
with their status as prisoners and the legitimate demands of the
-9a-
prison system. See Pell, 417 U.S. at 822. Until now, this Court
has not addressed whether prisoners retain the right to freedom
of association. See Long v. Norris, 929 F.2d 1111, 1118 (6th
Cir. 1991) ("In the Sixth Circuit we have not decided the
degree to which prison inmates retain their freedom of
association"). This question is squarely before us now. For
plaintiffs to make out their claim under § 1983, they must
retain sume right to freedom of association, contrary to
defendants’ assertion that there are no such rights.
We hold that prisoners do retain a limited right to freedom
of association--specifically non-contact visits with intimate
associates--even while incarcerated. This follows clearly from
Pell, where the Supreme Court held that a prisoner retains a
First Amendment right unless it is incompatible with
incarceration. See 417 U.S. 822. Imprisonment does sharply
limit inmates' right of association. For instance, prisoners who
pose a security risk have no right to remain in the general
prison population, see Hewitt v. Helms, 459 U.S. 460, 468
(1983) (holding temporary, nonpunitive transfer to
administrative segregation does not violate a prisoner's
constitutional rights), and prisoners have no constitutional right
to contact visits, see Bazzetta, 133 F.3d at 383 (holding
prisoners have no constitutional right to contact visits); accord
Thorne v. Jones, 765 F.2d 1270, 1274 (Sth Cir. 1985) (holding
incarcerated individuals maintain no right to physical
association). But the right of association is not wholly
extinguished by imprisonment.
In support of its claim that inmates retain no right of
association, the department cites Supreme Court cases which
hold that prisoners do not have a right to unfettered or contact
visits. See, e.g., Kentucky Dept. of Corrections v. Thompson,
490 U.S. 454, 460 (1989) (inmates have no right to “unfettered
visitation"); Jones v. North Carolina Prisoners' Labor Union
Inc., 433 U.S. 119, 125 (1977) (upholding ban on inmate union
-10a-
organizing and group meetings); Pell, 417 U.S. at 826
(upholding ban on visits by journalists). None of these cases,
however, say that prisoners have no right to visitation, and
several caution that they should not be read to reach such a
conclusion. In Thompson, the Court warned that "[nJothing in
the court's opinion forecloses a claim that a prison regulation
permanently forbidding all visits to some or all prisoners
implicates the protections of the due process clause in a way
that the precise and individualized restrictions" at issue there
do not. 490 U.S. at 465 (Kennedy, J. concurring). In Pell, the
Court upheld a ban on visits from journalists, but noted that the
regulation was permissible in part because prisoners retained
"an unrestricted opportunity to communicate with the press or
any other member of the public through their families, friends,
clergy, or attorneys who are permitted to visit them at the
prison." 417 U.S. at 825. Far from holding that prisoners had
no right to visits, the Pel/ Court analyzed the new restrictions
before upholding them, and stated that it would not defer to
prison officials when there was "substantial evidence in the
record to indicate that the officials [had] exaggerated their
response" to a problem. /d. at 827. Close analysis is especially
appropriate when, as is the case here, the challenged
restrictions interfere with family relationships, including the
parent-child bond, specially protected by the Constitution. See,
e.g., M.L.B. v. S.L.J., 519 U.S. 102, 116 (1996) ("Choices
about marriage, family life, and the upbringing of children are
among associational rights this Court has ranked as of basic
importance to our society, rights sheltered against the State's
unwarranted usurpation, disregard, or disrespect" (internal
citations omitted)); Moore v. City of East Cleveland, 431 U.S.
494, 499 (1977) (there is a "private realm of family life which
the state cannot enter" (citation omitted)); Pierce v. Society of
Sisters, 268 U.S. 510, 534 (1925) (parents have the liberty to
"direct the upbringing and education" of their children).
-lla-
The fact that a prison regulation interferes with a
constitutional right does not mean it will be struck down. In
most situations, when evaluating such a regulation, federal
courts will defer to state prison officials’ reasoned judgment
that the regulation is necessary and appropriate.
[T]he problems of prisons in America are complex
and intractable, and . . . they are not readily
susceptible of resolution by decree. Running a prison
is an inordinately difficult undertaking that requires
expertise, planning, and the commitment of resources.
... Prison administration is, moreover, a task that has
been committed to the responsibility of [the
legislative and executive] branches, and separation of
powers concerns counsel a policy of judicial restraint.
Turner, 482 U.S. at 84-85. In Turner v. Safley, the Supreme
Court laid down a deferential test for evaluating such
regulations: "when a prison regulation impinges on inmates’
constitutional rights, the regulation is valid if it is reasonably
related to a legitimate penological interest." Jd. at 89. In
applying this broad standard, we ask a series of questions:
whether there is a valid connection between the regulation and
a penological interest; whether prisoners retain an alternative
means of exercising the right; whether assertion of the right
will have a significant effect on guards and other inmates; and
whether prisoner officials have ready alternatives to the
infringing regulation. See id. at 89-90. "As long as prison
authorities present evidence to support their judgment that
prison security will be undermined in the absence of a
challenged regulation, we will not substitute our judgment for
theirs.” Brown v. Johnson, 743 F.2d 408, 412-13 (6th Cir.
1984).
-12a-
B. The Department's Restrictions on Visitors
Plaintiffs ask us to strike down the regulations if we find
they significantly infringe visitors’ First Amendment rights.
The Supreme Court has made clear, however, that such an
approach would unreasonably constrain the corrections system.
We therefore analyze the regulations solely as they infringe on
prisoners’ rights. See Thornburgh v. Abbott, 490 U.S. 401, 410
n.9 (1989) (heightened scrutiny is not appropriate even in
circumstances where a prison regulation affects rights of both
prisoners and outsiders).
1. Minor brothers, sisters, nieces, and nephews.--The first
challenged regulation forbids visits from a minor child "unless
he or she be the child, stepchild, or grandchild of the prisoner
or an emancipated minor." Mich. Admin. Code § 791.6609(2).
nl Plaintiffs challenge this ban to the extent it prevents visits
from prisoners’ siblings, nieces, and nephews.
nl After the district court handed down its opinion,
Michigan moved to change its policy and allow visits from
minor siblings. Appellant's Br. at 7. As Michigan did not
make this change until after the district court handed down
its opinion, however, and because it still defends its right
to impose this or any other restriction on visits, we address
the regulation here.
At trial, the department claimed this restriction was needed
to reduce the number of visitors to manageable levels, to stop
smuggling, and to protect children from exposure to the prison
environment. On appeal, the department does not offer a
specific defense of this particular regulation or the other
regulations, instead it asks this court to hold there is no right to
visitation, or alternatively simply to defer to its judgment that
the measures are necessary to ensure prison safety. For the sake
-13a-
of thoroughness, we address claims made by the department at
trial.
First, the department claimed the regulation was necessary
to reduce the number of visitors, who it said were
overwhelming prison facilities. Department officials hoped the
new regulations would reduce visits by 10-15%, at which point
they apparently believed visits would again be manageable.
After the new regulations were passed, the department's figures
show, visits fell by half. See Bazzetta, 148 F. Supp. 2d at 820-
21. Like District Judge Edmunds, we view the banning of visits
from minor sisters, brothers, nieces, and nephews as an
exaggerated response to perceived problems in prison
visitation. The record shows that, when the defendants
implemented the new regulations, they had no idea how many
visitors would be affected by them, or what the effect would be
on visitors and inmates. See id. at 821. In light of these facts,
the regulations appear as attempts not to manage visits but to
end them. Had prison officials merely wished to reduce the
number of visiting children, they had at hand less stringent
alternatives, including banning visits from unrelated children,
which would have reduced visitors without straining close
family ties.
The department also claims that the new regulations are
required to stop smuggling and to protect would-be child
visitors. It offers no data or expert testimony to support these
claims, relying instead on prison officials’ "vast experience" to
justify the restrictions. Appellant's Br. at 10. As the district
court pointed out, non-contact visits prevent both smuggling
by, and possible assaults on, child visitors. Prison officials also
stated that they opposed allowing children to visit because
visiting would cause the children to become "too comfortable"
with prisons and, we presume, lead them to a life of crime. See
Bazzetta, 148 F. Supp. 2d at 824. This determination is for
parents to make, not prison officials. Prison officials do not
-14a-
stand in /oco parentis for visiting children; and the desire to
make children frightened of prison, or of relatives in prison,
has little to do with maintaining prison safety, the stated
objectives of the regulations.
The department also defended the regulations by arguing
that letters and phone calls are adequate alternatives to visits
for inmates who wish to keep in touch with minor relations.
That is not the case. At trial, unchallenged expert testimony
showed that 40 to 80% of inmates are functionally illiterate,
unable to compose a letter. Phone calls are also unsatisfactory.
They are monitored by department staff and terminated after a
few minutes. See id. at 818 n.2.
While the department offered no clear benefits to be gained
from excluding prisoners’ minor siblings, nieces, and nephews,
plaintiffs offered over a dozen witnesses who testified to the
myriad of ways the restrictions on minor visitors disrupted
family relationships, particularly where prisoners had
performed parental duties for their siblings, nieces, or nephews.
See id. at 829-30.
For the above reasons, we find that the department's
prohibition on non-contact visits from inmates' minor siblings,
nieces, and nephews is not reasonable related to a legitimate
penological goal. The district court's decision is affirmed.
2. When parental rights are terminated.--The second
challenged regulation forbids a prisoner's natural child from
visiting if "[t]he parental rights of the prisoner to the child have
been texminated." Mich. Admin. Code § 791.6609(6)(a).
Plaintiffs challenge this regulation only as it has been applied
to visits from children whose parents have voluntarily
surrendered their parental rights so a child could be placed for
adoption; they do not, presumably, challenge the ban on visits
-15a-
from children when the parents' rights were terminated for
abuse or neglect. Plaintiffs’ Br. at 35.
The department offers no specific reason why it decided to
ban visits from these children, except its general desire to
reduce the number of visitors and protect children. We have
already stated why these reasons are not sufficient to ban visits
from minor siblings, nieces and nephews. For identical reasons,
we hold these reasons are also not sufficient to block visits
from an inmate's child, when the inmate has voluntarily
surrendered parental rights in the child's best interests. As the
district court noted, in such situations "contact between parent
and child is an important ongoing need for both parent and
child." Bazzetta, 148 F. Supp. 2d at 832. In one instance, the
department's policy prevented a therapist-recommended and
court-ordered visit from a child recently placed for adoption,
threatening the child's well-being. J.A. at 2763-68. A-ban on
such visits is not reasonably related to a legitimate penological
interest. We affirm the district court's decision.
3. Former prisoners.--The third challenged regulation bans
visits from "a prisoner, a former prisoner, a probationer, or a
parolee" other than a prisoner's immediate family. Mich.
Admin. Code § 791.6609(7). This regulation is intended to
prevent "illegal or disruptive activity occasioned by such
visits." Bazzetta, 148 F. Supp. 2d at 832. Like the other
challenged regulations, this had significant unintended
consequences. In many instances, "exclusion of former
prisoners creates significant hardship on friends and family,
including instances where former prisoners have been
completely rehabilitated and have served as social workers or
governmental ombudsmen." /d. In one instance, a child was not
allowed to visit to her imprisoned mother because the only
adult available to bring her was the child's father, who was not
married to the mother (and so not "immediate family") and
-16a-
who had been convicted of a crime 23 years before. J.A. 5713-
15.
It is a closer call whether this regulation is reasonably
related to a legitimate penological objective. The asserted goal,
- the prevention of disruption by ex-convicts, is a legitimate
penological objective. A blanket ban on all noncontact visits by
former inmates is, however, an exaggerated response to the
problem raised by visits with ex-convicts. It prevents visitors
with legitimate reasons for seeing prisoners, such as social
workers, from doing so. The department has at hand a ready
alternative for weeding out disruptive visitors: all visitors must
pass a department screening procedure before getting
permission to visit. This gives department officials an
opportunity to stop would-be troublemakers. We also observe
that the department has no working procedures for making
reasonable exceptions to this ban. While department
regulations state a warden can grant a waiver of the ban when
it is in the best interests of the prisoner, see Mich. Admin.
Code § 791.6609(3), in practice some wardens appear to refuse
to grant any waivers. See J.A. 5713-15. We find that such an
inflexible ban on former prisoners is not reasonably related to a
legitimate penological objective, and uphold the district court's
decision.
4. Children must be accompanied by immediate family or
legal guardian.--The fourth challenged regulation requires that
children who do visit be accompanied by an immediate family
member or legal guardian. Mich. Admin. Code § 791.6609(5).
Before 1995, children were also allowed to visit when
accompanied by an adult with a valid power of attorney.
Plaintiffs argue that this was sufficient to guarantee a child's
safety, and ask that the status quo ante be restored. Prison
officials submitted no reasons for changing the policy, except
their wish to reduce the overall number of visitors and protect
children. A few officials did voice concerns that a power of
-17a-
attorney could be forged, but they did not cite a single instance
where such a forgery had occurred in the past, nor were they
able to explain why someone would wish to commit such a
forgery. See id. at 833.
The justification for this policy is weak, but the harm done
is readily apparent. As the district court found, “unrefuted
evidence submitted by plaintiffs . . . [showed that] many .
prisoners, especially women, do not have another immediate
family member available to bring their child to visit," and
instituting a guardianship for the children involved a "complex
legal . . . procedure" beyond the resources of many prisoners.
Id. The ban on visits from children unaccompanied by a
guardian or immediate family member is thus for many
prisoners a ban on visits from their children. The department
has produced no credible penological objective to be met by
such a cruel policy. We uphold the district court's decision.
C. The Two-strikes ban for substance abuse
The department also issued a regulation imposing a
"[p] ermanent ban (on) all visitation (other than attorneys or
clergy) for prisoners with two or more major misconduct
charges of substance abuse." Mich. Admin. Code. §
791.6609(1 1) (emphasis added). The regulation was part of a
"zero tolerance" approach to drug abuse, intended not to
prevent smuggling, but to punish prisoners caught with drugs.
See Bazzetta, 148 F. Supp. 2d at 843. Major misconduct .
charges issue for possession of narcotics, alcohol, unauthorized
prescription drugs, or drug paraphernalia, or for failure to
submit to a drug test. They are not criminal convictions, but
administrative punishments issued by prison authorities after a
hearing. According to regulations, the ban may be imposed
after two violations, with the approval both of an inmate's
warden and the department's director. n2
-18a-
n2 Here are the relevant regulations:
BBB. . . . The Director may permanently restrict all
visits for a prisoner who is convicted of any of the
4. Two or more violations of the major misconduct
charge of substance abuse.
CCC. If a prisoner has been found guilty of the
conduct set forth in Paragraph BBB, the warden shall
recommend that all visits be permanently restricted. S/he
shall submit the recommendation, along with all
supporting documentation, to the appropriate [regional
prison administrator]. The [administrator] shall review and
forward the recommendation to the []Deputy Director for
review. If the []Deputy Director agrees that the restriction
is warranted, the recommendation shall be submitted to
the Director for a final determination. . . . .
FFF. The Director may remove a restriction upon
written request of the warden or restricted prisoner,
2. The restriction shall not be considered for
removal until at least two years after imposition . . . if
it is based on two or more violations of the major
misconduct charge of substance abuse if one or both
of the charges were for possession or use of any
prohibited substance other than alcohol. . . .
GGG. If eligible for removal of the restriction . . . a
prisoner may request removal of the restriction by sending
a written request to the warden of the facility where the
prisoner is housed.
-19a- |
1. If the prisoner is eligible for removal of the
restriction, the warden shall submit his/her written
recommendation, along with the prisoner's written request
if one was submitted, to the appropriate [regional prison
administrator]. The [administrator] shall review and
forward the documentation to the [Correctional Facilities
Administration] Deputy Director. The [] Deputy Director
shall review the request and make a _ written
recommendation to the Director for a final determination.
If denied, the Director shall determine when the prisoner
may reapply for removal of the restriction.
Bazzetta, 148 F. Supp. 2d at 833-34 (quoting Michigan
Department of Corrections policy directive 05.03.140)
Department regulations state that inmates may request the
ban be lifted after two years, but it provides officials "no
ascertainable criteria" for evaluating these requests. Jd. at 839.
While a hearing is required before a substance abuse violation
is assessed against a prisoner, no hearing is required before
imposing the permanent ban, nor are prison officials required
to explain why a ban was imposed. See id. at 838 n.39.
In practice, as the district court amply documented, the
department has imposed visitation bans capriciously and
according to no reviewable standards. Between 1995 and 2000
only 41% of prisoners with two violations received permanent
visitation bans. /d. at 837. Bans were often not imposed until
well after a prisoner incurred the violations; an average of
seven months passed between a second substance abuse
violation and the imposition of a ban, and in a few cases three
years passed between a second violation and the start of the
ban. Jd. at 837-38. Nor is the ban only imposed after two
"serious" violations; on occasion it is imposed for what is
effectively a single drug infraction. One inmate received a
-20a-
permanent ban after being found in possession of marijuana
(violation #1) and then testing positive for the drug 75 minutes
later (violation #2); another received a permanent ban after
throwing a packet of marijuana on the ground (violation #1)
then being found with another on his person during the ensuing
search (violation #2). Jd. at 838 n.39.
Most troubling, once a ban is imposed it can only be
removed at the discretion of prison officials, who need not
explain their decisions and may continue the ban for any
reason or no reason at all. The department has described the
ban as a two-year ban, but in fact it is a permanent ban that
may be removed after two years. Nor is it continued only for
serious infractions; as the district court determined, the
department has turned "permanent restrictions for substance
abuse . . . into a tool for general behavior management, where
restrictions are routinely continued on the basis of behavior for
which policy does not authorize a visiting restriction in the first
place.” Jd. at 844.
1. The Turner test--This harsh and arbitrary ban does not
meet even the forgiving Turner standard. Deterring prisoner
drug abuse is a legitimate penological goal. At trial, however,
department officials produced only anecdotal evidence to show
that the permanent ban on visitors has deterred drug abuse in
the prison population. Once visitation is banned, there are no
easy alternatives for keeping ties with family and friends
outside prison. Brief phone calls cannot substitute for seeing a
loved one, nor does the liberty to send and receive letters mean
much to functionally illiterate prisoners. Finally, prison
officials have at their disposal many other constitutional means
of punishing prisoners for violating drug rules. There is no
reasonable relation between the permanent ban and a legitimate
penological interest.
-2la-
2. Cruel and Unusual Punishment and due process--The
t ban on visitors also violates the constitution's ban
on cruel and unusual punishments, and the protections of the
due process clause. See U.S. Const. Amts. VIII, XIV. The
Eighth Amendment protects inmates not only from
disproportionate and cruel sentences, but also from
disproportionate and cruel conditions of confinement. See
Estelle v. Gamble, 429 U.S. 97, 103 (1976). "Conditions must
not involve the wanton and unnecessary infliction of pain, nor
may they be grossly disproportionate to the severity of the
crime warranting imprisonment." Rhodes v. Chapman, 452
U.S. 337, 347 (1981). A prison official's actions violate the
Eighth Amendment when (1) they are "sufficiently serious" to
deprive an inmate of the "minimal civilized measures of life's
necessities,” and (2) the official knows of and disregards the
significant risk they pose to an inmate's health and safety.
Farmer v. Brennan, 511 U.S. 825, 834, 837 (1994). "[A]
factfinder may conclude that a prison official knew of a
substantial risk from the very fact the risk was obvious." /d. at
842
Both those conditions are met here. As the district court
found, depriving an inmate of all visitors for a period stretching
indefinitely into the future is an extremely harsh measure,
removing the "single most important factor in stabilizing a
prisoner's mental health, encouraging a positive adjustment to .
. . incarceration, and supporting a prisoner's successful return
to society." Bazzetta, 148 F. Supp. 2d at 851. It "goes to the
essence of what it means to be human; it destroys the social,
emotional, and physical bonds of parent and child, husband and
wife, body and soul. Nothing could be more fundamental.” /d.
at 855. It far exceeds punishments meted out by any other state
prison system for comparable violations. See id. at 835. The
second condition is also met, for the harm the ban does
prisoners should be clear to any prison official minimally
concerned with prisoners’ welfare. Extensive evidence supports
-22a-
the district court's finding that the "restriction has been
imposed with a callousness that could serve as the definition of
deliberate indifference." /d.
Finally, as imposed the punishment violated prisoners’ due
process rights. Not every prison deprivation merits due
process; for a punishment to require due process it must exceed
the sentence imposed in a notably “unexpected manner,"
Sandin v. Conner, 515 U.S. 472, 483 (1995), or constitute a
change in conditions of confinement that amounts to a
"grievous loss." Vitek v. Jones, 445 U.S. 480, 488 (1980).
Applying these measures, we find that a complete ban on all
visitors is such a grievous loss that it infringes on a liberty
interest protected by substantive due process. Imprisonment
inevitably limits who can visit a prisoner, but it does not
dissolve inmates’ marriages nor end their parental rights. A
complete ban on all visitors cuts the prisoner off from all
personal ties, constituting qualitatively greater isolation than is
imposed by a prison sentence, and is an atypical and significant
hardship far beyond the expected hardships of prison.
At a minimum, some notice and hearing is required before a
prisoner is deprived of a constitutionally protected liberty
interest, the degree of protection varying with the interest. See
Vitek, 445 U.S. at 494-95. Though Michigan inmates are given
a hearing before being found guilty of a specific drug offense,
they receive no notice or hearing before officials impose the
permanent ban. Once the violations are recorded, the ban is
imposed or removed at the unfettered discretion of prison
officials. Such a procedure falls far below the demands of due
process.
We agree with the district court that the permanent ban on
visits following two drug violations violates the First, Eighth,
and Fourteenth Amendments to the constitution.
-23a-
Conclusion
Under our constitution, even those lawfully imprisoned for
serious crimes retain some basic constitutional rights. Instead
of crafting policies that would legitimately meet the very real
need to maintain order in prisons, the department has
implemented a series of haphazard policies that violated these
rights and did real harm to inmates in its care. It then defended
these policies not with reasoned arguments, but with
misdirection and demands that federal courts blindly defer to
corrections officials. Prison officials have great leeway to —
govern prisons and prisoners as they see fit, if they can provide
even a modicum of proof that a particular policy is desirable
and serves legitimate ends. Here, as Judge Edmunds found in
the case below, the department was unable to offer any
convincing justification for its policies.
Years ago Winston Churchill made a telling statement about
prisoners: "[a] calm and dispassionate recognition of the rights
_.. even of convicted criminals against the state, a constant
heart-searching by all those charged with the duty of
punishment . . . .these are the symbols in which the treatment
of crime and criminals mark and measure the stored-up
strength of a nation." Speech in Parliament, Hansard column
1354, 20 July 1910. In the present case, the regulations fall
below minimum standards of decency owed by a civilized
society to those who it has incarcerated.
The district court's decision is AFFIRMED.
-24a-
[148 F. Supp. 2d 813}
Michelle Bazzetta, Stacy Barker, Toni Bunton,
Debra King, Shante Allen, Adrienne Bronaugh,
Alesia Butler, Tamara Prude, Susan Fair,
Valerie Bunton and Arturo Zavala, through his
Next Friend Valerie Bunton, on behalf of
themselves and all others similarly situated,
Plaintiffs,
Vv.
Kenneth McGinnis, Director of Michigan
Department of Corrections, Dan Bolden,
Deputy Director of the Correctional Facilities,
Michigan Department of Corrections, Marjorie
VanOchten, Administrator of the Office of
Policy and Hearings of the Michigan
Department of Corrections, Michigan
Department of Corrections,
Defendants.
No. 95-CV-73540-DT
UNITED STATES DISTRICT
COURT FOR THE EASTERN
DISTRICT OF MICHIGAN,
SOUTHERN DIVISION
April 19, 2001, Decided
-25a-
COUNSEL:
For MICHELLE BAZZETTA, STACY BARKER, TONI
BUNTON, DEBRA KING, SHANTE ALLEN, ADRIENNE
BRANAUGH, ALESIA BUTLER, TAMARA PRUDE,
SUSAN FAIR, VALERIE BUNTON, ARTURO BUNTON,
KIM STANTON HUNTER, plaintiffs: Michael J. Barnhart.
For MICHELLE BAZZETTA, STACY BARKER, TONI
BUNTON, DEBRA KING, SHANTE ALLEN, ADRIENNE
BRANAUGH, ALESIA BUTLER, TAMARA PRUDE,
SUSAN FAIR, VALERIE BUNTON, ARTURO BUNTON,
KIM STANTON HUNTER, plaintiffs: Deborah A. LaBelle,
Ann Arbor, MI.
For MICHELLE BAZZETTA, STACY BARKER, TONI
BUNTON, DEBRA KING, SHANTE ALLEN, ADRIENNE
BRANAUGH, ALESIA BUTLER, TAMARA PRUDE,
SUSAN FAIR, VALERIE BUNTON, ARTURO BUNTON,
KIM STANTON HUNTER, plaintiffs: Patricia A. Streeter,
Detroit, MI. |
For KENNETH MCGINNIS, MICHIGAN DEPARTMENT
OF CORRECTIONS, defendants: Barbara A. Schmidt.
For KENNETH MCGINNIS, MICHIGAN DEPARTMENT
OF CORRECTIONS, defendants: George N. Stevenson,
Michigan Department of Attorney General, Lansing, MI.
For KENNETH MCGINNIS, MICHIGAN DEPARTMENT
OF CORRECTIONS, DAN BOLDEN, MARJORIE
VANOCHTEN, defendants: Kevin M. Thom, Michigan
Department of Attorney General, Lansing, MI.
For KENNETH MCGINNIS, MICHIGAN DEPARTMENT
OF CORRECTIONS, DAN BOLDEN, MARJORIE
VANOCHTEN, defendants: Lisa C. Ward, Lansing, MI.
For DAN BOLDEN, defendant: Lisa C. Ward.
JUDGES: |
Nancy G. Edmunds, U.S. District Court Judge.
OPINION BY:
Nancy G. Edmunds
OPINION:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
INTRODUCTION
Plaintiffs, inmates of the Michigan Department of
Correction and their prospective visitors, brought this suit
against the Director of the Department challenging various
restrictions on visitation. Specifically, Plaintiffs challenge
restrictions which 1) prohibit visits by siblings, nieces and
nephews who are under eighteen years old; 2) prohibit visits by
children whose prisoner parents have had their parental rights
terminated (even when that termination is voluntary); 3)
prohibit visits from former prisoners who are not immediate
family; 4) require visiting children to be brought by a parent or
legal guardian; and 5) impose a permanent ban on visitation for
any prisoner who has been found guilty of two substance abuse
misconducts.
With respect to claims | through 4, this Court issued two
previous decisions, affirmed by the Sixth Circuit Court of
Appeals, upholding the restrictions in the context of contact
visits. Thus, the only remaining issue on claims | through 4 is
whether the restrictions are constitutional in the context of non-
-27a- -
contact visits. Claim 5 was not ripe at the time of the earlier
decisions and is addressed here for the first time.
In support of their claims, Plaintiffs presented testimony
from a number of MDOC officials, present and former inmates,
and from several experts and family members.
Marjorie VanOchten was the MDOC administrator of the
Office of Policy and Hearings until January 2000; she drafted
the rules at issue in this case. Although she had been an
executive level official of the MDOC for over twenty years,
she was critical of many aspects of the visitation restrictions,
including the exclusion of minor siblings, nieces and nephews,
the requirement that a minor child be accompanied by a parent
or legal guardian, and the permanent ban on visitation
following two substance abuse misconducts. She testified
about her own concerns, concerns raised by the public, and
about the procedural history and problems related to the
Suellen Scarnecchia, Associate Dean for Clinical Affairs at
the University of Michigan Law School, testified as an expert
on the subject of incarcerated parents. She was particularly
critical of the rule requiring a minor child to be accompanied
by a parent or legal guardian and the rule precluding visits by a
child whose prisoner/parent had terminated parental rights.
Dan Bolden, the Deputy Director of the MDOC since 1984,
was called by Plaintiffs for cross-examination. He testified
about the penological objectives of the rules and procedures
used by the MDOC to draft the restrictions, and the reasons the
Department had for deciding on particular exclusions and
sanctions. He was cross-examined extensively on the
justification for excluding minor siblings, nieces and nephews,
on the efficacy of using non-contact visitation to address his
various concerns, and on the procedural problems (inconsistent
-28a-
enforcement, lack of notice and standards) related to the
permanent ban on visitation following two substance abuse
misconducts.
Phillip Creekmore, called by Plaintiffs as one of their
experts, was asked to compile data supplied by the MDOC and
summarize it in exhibit form. See Pls.' Exs. 41-48, 50-51. The
statistical data compiled by Creekmore primarily addressed the
issues of volume (including early termination of visits),
misconducts related to visits, and the inconsistences in the
enforcement of the permanent ban.
Barry Mintzes is a psychologist who worked for the
MDOC from 1970 to 1982, including positions as
administrative assistant to the director, and warden of the
facilities at Kinross and Jackson. In criticizing the
Department's permanent ban on visitation following two
substance abuse misconducts, Dr. Mintzes testified about the
importance of visitation to prison management, as well as for
the rehabilitation of the prisoner. He also testified that the use
of visitation standards and non-contact booths would have been
more than adequate to meet the penological objectives stated
by the Department, without excluding whole categories of
visitors.
Joan Yukins, the warden of the women's facility in
Plymouth (Scott), was called as an adverse witness. She
testified about the impact of the restrictions concerning minor
children, particularly as they affect women prisoners, and she
was also cross-examined about the procedural difficulties she
and the inmates encountered in connection with the permanent
ban (inconsistent enforcement, inadequate or confusing notice,
absence of criteria for restoration of privileges, collateral
consequences).
-29a- |
Dr. Terry Kupers, a psychiatrist with extensive background
in correctional issues, was one of Plaintiffs' key witnesses. Dr.
Kupers testified about the importance of visitation to the
mental health, stability, and rehabilitation of the prisoner. He
commented on the impact of incarceration on family bonds,
and the additional impact caused when visitation is restricted;
he testified to the inadequacy of telephone calls and letters as
alternatives, particularly where children are involved. Although
Dr. Kupers touched on a number of topics related to the
visitation restrictions, the primary thrust of his testimony was
the social and psychological damage caused by the permanent
ban on visitation, the counterproductive effect on long term
drug abuse and the prisoner's reintegration with society, the
destruction of marital and family relationships, and the cruelty
involved in the Department's denial of a basic human need. He
also testified that Michigan's visitation restrictions are an
excessive response to problems with much better alternative
solutions, and that Michigan's use of visitation sanctions in this
manner is unique among prison management regulations.
Plaintiffs also called a number of prisoners, former
prisoners, and family members who testified about the impact
of the various restrictions on their family relationships and
mental health.
Defendants did not challenge or contradict any of Plaintiffs’
experts with experts of their own. Instead they relied on the
testimony of a number of MDOC witnesses to support the
penological objectives of the rules and to otherwise counter
Plaintiffs’ claims.
Kenneth McGinnis, Director of the MDOC from 1991 to
January 1999, testified concerning the penological objective of
maintaining security with the increasing volume of visitors. He
testified to security concerns involving minor children, and he
discussed the impact of the visitation standards introduced in
-30a-
1995. With respect to the permanent ban on visitation, Mr.
McGinnis testified about his desire for a zero tolerance policy
to get at the problem of drug abuse within the system, which he
considered to be ongoing and complex. He was cross examined
about the justification for excluding minor siblings, the
procedural inconsistencies with the permanent ban, the
alternative of using non-contact visitation, and the criticism of
the permanent ban as being overly harsh and punitive.
Pat Caruso, an MDOC regional administrator and former
warden, testified about the difficulties of managing the visiting
room in a level 5 facility. She testified that the permanent
visitation ban was a powerful management tool, particularly
because level 5 and 6 prisoners are already restricted to non-
contact visits.
Pamela Withrow, a warden at various- MDOC facilities
since 1983, supported the decision to exclude as many minor
children as possible from visitation, including minor siblings.
She also testified that non-contact visitation does not solve the
security concerns addressed by the rules, because sexual
misconduct can occur even in non-contact booths.
Kurt Jones, who has been with the MDOC since 1977, has
been the warden at Carson City since 1996. He testified that
the 1995 changes have had a positive impact on the visitation
process, and that he supports the permanent visitation
restriction because he believes it has helped reduce substance
abuse misconduct.
Sally Langley, the warden at Crane (women's) facility, also
testified in support of the permanent visitation restriction as an
effective management tool.
Finally, Julie Southwick, administrative assistant to Dan
Bolden, testified concerning the availability of non-contact
-3la-
booths, the policies of several other states concerning visiting
restrictions, and the procedure for seeking restoration of
visiting privileges.
In addition to the witnesses called, both parties submitted
exhibits and affidavits, including a selection from the random
sample (20%) of all prisoners placed on permanent visitation
restriction since 1995. nl
nl! Plaintiffs requested and Defendants objected to the
production of the files of all prisoners placed on
permanent restriction since 1995. The Court ordered that
Defendants produce a random sample of 20% of those
files, which amounted to approximately 250 files. A
portion of these files were introduced as Plaintiffs’ Exhibit
40 Order, 6/22/2000; Tr. 3, p. 135.
These matters were tried to the bench in the fall of 2000;
the Court makes the following findings of fact and conclusions
of law.
FINDINGS OF FACT
I. Importance of Visits
Visits from family and other loved ones are extremely
important in the life of most prisoners. A broad consensus,
supported by decades of research, affirms that visits promote
rehabilitation, reduce behavior problems, and significantly
increase a prisoner's chance for success on parole.
Visits are also important to maintaining prisoners’ mental
health. Because a high percentage of prisoners suffer from
significant substance abuse, mental illness, and life-threatening
illnesses, they are particularly vulnerable to the impact of
stress. ee ee ee oe ee
particularly for those suffering from depression or dual
~32a- -33a-
diagnosis (mental illness combined with substance abuse).
Letters and telephone calls are inadequate as an exclusive
Pe So the letter writing is not, is not as all
means of maintaining family bonds over a period of years. n2 = =
n2 Dr. Terry Kupers, a psychiatrist with extensive
experience in prison issues affecting mental heal
testified that, 1"
(social relations are very important to human
beings in general in terms of maintaining . . .
their mental health, their self esteem, their
connection with reality, and we have studies that
show that isolation, whether it's cabin fever,
exploration of the arctic, or isolation in
including psychosis, including suicide.
So disconnection from people who have a
meaningful, caring relation with one causes
one's mental health to plummet.
Tr. 6, pp. 130-31.
With respect to the adequacy of telephone calls and
letters as alternatives to visits, Dr. Kupers stated:
I mentioned that 40-some percent of prisoners
are illiterate. I would put it more like 60 or 80
percent cannot compose a decent letter.
Literacy, functional literacy is defined as being
able to write a check or do a transaction at a
sales counter, so to write a letter that expresses
anything very deeply, I'd say 60 to 80 percent of
prisoners are incapable of doing that, and their
family, for instance, young children, are
together, but then, in addition, letter writing is
controlled in prison, that is, that mail is often
read, or there's the realistic expectation that the
mail will be read, so you have to censor what
you say. There are long delays in getting mail in
and out depending on the situation within the
Phone calls are even more problematic. If you or
I pick up the phone and call someone, a relative,
we have free and unfettered oral contact. In
prison that's not the case. It's very difficult to
find time in many prison situations to make the
call. The call is expensive, and many of the
families, as | said, these are low income people
and low income families, can't afford phone—
calls.
They're approximately three to five times as
expensive when made from a prison, and the
phone calls usually have to be initiated from the
prison and made collect. There are many
because they can't afford the bill or whatever, so
the phone, actual contact doesn't occur, or if it
occurs, every few minutes there's a tape that
comes on that says you are talking to an inmate
at a state institution, and that's very disruptive to
any kind of meaningful communication. There's
also, depending on the security level, usually
time limits and halts to the phone call.
Tr. 6, pp. 143-44.
-34a-
Because of the importance of visits to the prisoner, the
system, and the larger community, the American Correctional
Association Standards state that visits should be limited only
by institutional schedule, space, and personnel constraint, or
when there are substantial reasons to justify limitations; that
prisoners should be permitted to visit with people of their
choice unless there is a clear and convincing threat to safety
and security; and that even prisoners in segregation should
have opportunities for visitation unless there are substantial
reasons for withholding it. Defendants’ visiting policy used to
expressly state that visits are important to rehabilitation and
post-release adjustment, and should be encouraged. n3
n3 As explained by Dr. Kupers:
Separation from family is part of the function of
incarceration. It's part of the function of quarantining
people. Their contact with family and loved ones and
friends and community is severed. The idea, then, is to
restore some unity and some continuity of close bonds
by having visitation. That's why, in almost every
arena, visitation is required, whether it's the
Department of Corrections in Michigan, and their
policies state that.
Many of the states mention in their policies that
contact with family gives a prisoner a better chance of
succeeding after they're released, and therefore the
department wants to foster it. The United Nations
office mentions that in their reports on incarceration.
It's crucial that a prisoner have contact with loved ones
in order to maintain their stability while they're in
prison, to do their program without falling apart, and
then to prepare and then succeed at post release,
becoming part of the community again.
-35a-
Tr. 6, pp. 133-34.
Il. Imposition of Restrictions
The evolution of the challenged restrictions goes back to
the early 1990's. Michigan's prison population increased
substantially from 1990 to 1994, and has continued to increase
through 2000. Many facilities house inmate populations
beyond their intended capacities; double bunking became
commonplace by the early 1990's. See Tr. 1, pp. 72-73. In none
of these facilities, however, was visiting space expanded to
accommodate the additional prisoners. See Tr. 1, p. 73.
By 1994, some management personnel at MDOC perceived
problems related to the increased number of visitors and visits
at the facilities. These problems included the necessity to
terminate some visits early, n4 the difficulty of detecting drug
trafficking and smuggling related to visits, and the difficulty of
supervising young children who became bored or restless
during long hours in the visiting room or waiting room.
n4 Actual termination statistics do not support the
_ Department's — of the problem as being
widespread. See Pls.' Ex. 45 (showing the percent of visits
terminated for lack of space on a yearly basis from
1994/95 through 1997/98, shows that the total percent of
terminations prior to the challenged restrictions was
0.71%). The only facilities where terminations exceeded
2% were SMT Parnall (2.44%), STF Mid-Mich Temp
(2.79%), and ARF Gus Harrison (2.08%). Thirty-one of
the Department's thirty-nine facilities.which were open in
1994/95 had fewer than 1% of visits terminated; ten
facilities had zero terminations, even prior to the
imposition of the first wave of restrictions. To the extent
-36a-
that this problem existed, it appears to have been limited
to a few of the downstate facilities.
As an initial response to these problems, in April 1995, the
MDOC promulgated regulations which established certain
restrictions on visitation, department-wide visiting standards to
be applied uniformly at each facility. See Pis.' Ex. 4 ("visiting
standards"). These standards, adopted the following month,
limited the number of visits allowed to prisoners each month,
depending on their security classification, restricted the hours
of visitation and the number of weekend visits, and also
restricted the number of persons who could visit a prisoner at
one time. n5 Facilities which housed prisoners in more than
one security level were required to split their visiting hours
between those groups of prisoners. These standards are not
challenged by Plaintiffs.
nS Prior to their adoption, the consideration of the
department-wide visiting standards provoked a number of
comments from wardens and other management personnel.
Warden Luella Burke, of the Saginaw Correctional
Facility, wrote to observe that prisoners at multi-level
facilities such as Saginaw would be penalized by the.
mandatory separation of visiting hours; Warden Robert
LeCureux of Hiawatha/Kinross wrote to suggest that
visitors to facilities in the Upper Peninsula could rarely
visit midweek because of the distance, making the limit on
weekend visits unnecessarily harsh and restrictive; Warden
David Trippet of the Thumb Correctional Facility wrote to
suggest some incentives for prisoner behavior which
would increase their visiting privileges under the new
standards. Wardens Yukens, Burt and Holland requested
variances which were granted on a temporary basis
"pending additional revisions to the agency-wide standards
which are scheduled to become effective May 15, 1995."
-37a-
In each case, the request was denied by the Director or one
of his deputies. See Pls.’ Exs. 9, 10, 11, 12, 14, and 15.
Later in 1995, the Department issued amendments to
administrative rules for prisoner visiting privileges. The 1995
rules that are at issue in this case set forth the following
criteria, among others: [Mich. Admin. Code Rule 791.6607
through 791.6614]
Define what persons are in a prisoner's immediate
family; [For purposes of this provision, siblings are
defined as immediate family]. See § 791.6609(9).
Limit the number of visitors for a prisoner; [Prisoners
are limited to an approved list of ten visitors, not
including immediate tamily]; see id. § 791.6609(2).
Require visitors and immediate family members to be
on a prisoner's list of approved visitors; [Pre-screening
of all visitors.] see id. § 791.6609(2).
Restrict prisoner's access to minors, in that minors
under the age of 18 are not permitted to visit unless
they are the child, stepchild, or grandchild of the
prisoner and accompanied by an adult immediate
family member or a legal guardian. Additionally, a
child is not permitted to visit if the parental rights of
the prisoner have been terminated; see id. §
791 .6609(2)(b), (5), (6).
Prohibit former prisoners from visiting unless they are
the immediate family of a prisoner or unless prior
approval for the visit is obtained from the warden of
the institution where the visit will occur, see id. §
791.6609(7) and
-38a-
Permanently ban all visitation (other than attorneys or
clergy) for prisoners with two or more major
misconduct charges of substance abuse. See id. §
791.6609(1 1). n6
See Pls.' Ex. 1.
n6 Substance abuse misconducts include not only
use or possession of narcotic drugs such as marijuana,
heroin and cocaine, but also use or possession of
alcohol or any intoxicant, unauthorized use or
possession of prescribed or restricted medication,
failure or refusal to submit to drug testing (urine tests
or drug patches), and possession of narcotics
paraphernalia. See Pls.' Ex. 2, MDOC Policy Directive
3.03.105, p. 5.
MDOC Deputy Director Dan Bolden testified that one
goal of the Department in enacting visiting restrictions was to
reduce the volume of visits and visitors by 10-15%. See Tr. 3,
p. 83. As a result of the restrictions imposed by the visiting
standards adopted in May 1995, the volume of visits and
visitors decreased substantially over the next several munths.
Plaintiffs' witness Philip Creekmore, who compiled summaries
of visiting statistics from MDOC's computerized visitor
tracking system and other MDOC documents, testified that in
April 1995, most facilities were below two visits per inmate
per inmate per month. With respect to the fifteen facilities
which had the highest volume of visits, the April 1995 average
was 2.407 visits per inmate; that ratio dropped in
August/September 1995 to 1.5 visits per inmate. The ratio
decreased further in October 1995, down to approximately
50% of the prior to the May 1995 rule change. Thus,
within six the visiting restrictions exceeded, by three
to five times, the original goal of a 10-15% reduction in prison
-39a-
visits. In succeeding months and years, the ratio of visits per
month per prisor.2r remained relatively flat.
If the statistics are examined in terms of the number of
visitors rather than the number of visits, one finds a decrease of
approximately 25% from 1994 to 1995, n7 another 24% from
1995 to 1996, and another 10-15% from 1996 to 1997. See
Defs.' Ex. 6. Again the result of the restrictions far exceeded
the original reduction goals.
n7 One cannot tell how much of this decrease occurred
between May and September of 1995 (and would thus be
attributable to the department-wide standardization) and
how much occurred between September and December
1995 (and would thus be attributable to both the
standardization and the more restrictive operating
procedures).
Marjorie VanOchten, the former MDOC Administrator of
the Office of Policy and Hearings who drafted the
administrative rules concerning visitation, testified that the
visiting standards that Deputy Director Bolden drafted were
supposed to have an impact on volume. See Tr. 1, p. 66. She
does not recall any discussion about increasing the use of
cameras or increasing the number of staff supervising visits as
an alternative method of addressing problems caused by the
volume of visits. See Tr. 1, p. 71. She stated:
A. ... The idea was that the volume would be
decreased by these standards and by the rules, and so
you would have fewer people in the visiting room, so
it would be easier for the one person who had been in
the room before -- there had always been an officer
monitoring visits, it would be easier for that officer to
monitor visits if there were fewer people.
- .40a-
Q. And in the standardization and with the list of 10,
visits have decreased almost in half, isn't that true?
A. ... that sounds right, about half. It was
significant, I know.
Tr. 1, pp. 71-72.
Ms. VanOchten also indicated that there was no attempt,
during the consideration and drafting of the rules, to actually
quantify the number of children who were visitors or the
number who would be excluded by the new restrictions. See
Tr. 1, pp, 58, 75.
One of the concerns articulated by the Department was that
the large number of visitors contributed to the volume of drugs
and other contraband smuggled into the facilities. Although
several MDOC witnesses testified that they believed drugs and
other contraband were introduced into prison facilities through
visitors, little hard data was available to confirm or refute this.
Plaintiffs’ Exhibit 44, compiled by Philip Creekmore from
MDOC records, shows the misconduct to visit ratio from 1995
to 1997 for all facilities, i.e., the number of misconducts that
were related to something which occurred during or related to a
visit. With the exception of one facility, AMI, which showed a
spike to six per thousand visit-related misconducts in 1996
(compared to zero per thousand in 1995 and 1997), the ratio
was almost completely flat over the three year period. With
respect to non-contact visitation, the MDOC acknowledged
that it has no records reflecting an incident of introduction or
attempted introduction of contraband during a non-contact visit
since January 1, 1994. See Pis.' Ex. 39, P 4.
Another articulated concern in passing the visitation
restrictions was the safety and security of minor children. In
1994, an inmate at the MDOC Muskegon facility was found to
-4la-
have molested a three year old girl who had been brought to
the facility by her mother (a friend of the inmate) for a prison
visit. This horrible incident spurred the Department to re-
examine its regulations concerning visits by minor children;
the Department was also concerned generally with the security
and safety issues which arose when children spent long times
waiting or confined to the visiting room.
To address these concerns, the Department issued
regulations through a Director's Office Memorandum 1995-58,
effective August 25, 1995, limiting visits by minor children as
follows:
Visitors under the age of 18 must be the child,
stepchild, or grandchild of the prisoner . . .
A person under the age of 18 may be placed on a
prisoner's approved visitors list only if s/he is an
emancipated minor or is the child, stepchild or
grandchild of the prisoner, except that in the following
_ circumstances, placement of the child on the list shall
not be approved [if]:
$9 Rogue agen pices wes
child have been terminated.
Pls.' Ex. 5; see also Pis.' Ex. 1 (the part of the Administrative
Code which incorporated the regulations in the Director's
Office Memorandum).
Thus, although siblings are considered "immediate family”
for inclusion on a prisoner's approved visitor list (and thereby
exempted from the quota of ten), siblings under the age of
eighteen are precluded from any and all visitation, as are minor
-42a-
nieces and nephews, and children whose parents have
terminated their parental rights. See Pls.' Ex. 1, Mich. Admin.
Code R. §§ 791.6609(2), (6), (7).
Il. Exclusions of Minor Siblings, Nieces and Nephews
On the issue of sibling visitation, Department witnesses all
acknowledged that they had no specific penological or other
substantive concern relating to this exclusion, other than the
general objective to reduce the number of children visiting to
the greatest possible extent. Marjorie VanOchten, the former
MDOC Administrator of the Office of Policy and Hearings,
expressed in writing her concern about the narrow definition of
minor children permitted to visit, but her suggestions for more
flexibility were rejected. See Pls.' Ex. 14. Ms. VanOchten
testified as following:
Q. Let's talk about, unless they had some close
relationship of the prisoner. What about a brother or
sister of the prisoner? Was that rejected as simply not
a close relationship?
A. I don't recall a lot of discussion. I know that
subsequently it became -- it became more of an issue
because I think we didn't realize at the time that so
many prisoners would have siblings whe were under
the age of 18 because, of course, if they're 18 or older,
they would have been allowed under the definition of
immediate family.
It's just if they were under the age of 18, and there just
was not an appreciation of the number of prisoners
who we would have who had siblings who were under
the age of 18. I know that subsequently there was a lot
of attention to that particular issue because it affected
-43a-
Q. Initially, is it fair to say that the siblings were
excluded not because of any stated purpose, but
because people just didn't think about it?
A. Wereally did not think about the impact it would
have, didn't realize that there would be as many
people affected as it turned out there were.
Q. But was there a specific rationale given at this
time as to why siblings, some rationale that connected
with the penological purpose, why the siblings, the
younger brothers and sisters of prisoners should not
be allowed in?
A. Not other than the general concern about children
that I just articulated.
Q. The general concern you articulated about
children was, we're not a day care center and children
who are unrelated to prisoners shouldn't come in; is
that correct?
A. Well, just that -- not exactly. It's not a day care
center and that the children who are allowed in should
have a close relationship with the prisoner so that you
would limit the number of children who were inside
the prison as much as possible.
The idea was we don't like children in here at all. Let's
make sure we have as small a group as possible, but
we realize we have to let people see their children and
their grandchildren, and so we'll let those people in,
but other than tnat, we just wanted to keep the number
of children inside the prison as limited as possible.
~44a-
Q. Do you think brothers and sisters aren't close?
A. I think brothers and sisters are close, no question
about it.
= You think they should have been included in the
es?
A. That was the recommendation that I made.
Q. Do you see any penological difficulty through
security or any other concern that would be impacted
by letting prisoners see their younger brothers and
sisters?
A. The only thing would be it would expand the
number of minors, children in the prison. How much,
I don't know, and that might be a concern. But other
than that, I don't see any concern with allowing
siblings to come and visit.
Q. Did anybody ever know how many siblings you
See NS Gout, whether & would cause any impact
at
A. Not that I'm aware of. There was not anything
done to try to quantify that.
Q. And certainly siblings weren't -- minor siblings
weren't pulled out as a significant source of volume in
any of your discussions?
A. No, no.
-45Sa-
Tr. 1, pp. 55-57, 58.
The new restrictions on minor visitors have had enormous
negative consequences for prisoners and their families.
Siblings, nieces and nephews under eighteen who had been
visiting without incident could no longer see their incarcerated
brothers, sisters, aunts, and uncles. n8 The prohibition on
minor nieces and nephews makes it difficult for the prisoners’
adult siblings to visit because they cannot bring their own
children, or for the prisoners’ own parents to visit if they cannot
bring other grandchildren for whom they are caring, and this
may even prevent the prisoner from seeing his or her own
children if these relatives are caring for the prisoners’ children
as well. n9
n8 See Shier, Tr. 2, pp. 113, 116; Spencer, Tr. 2, pp.
135, 138; Yukins, Tr. 6, p. 56; Carter, Tr. 2, pp. 168, 170-
71; Smith, Tr. 2, pp. 149, 152-153; Brewer, Tr. 2, pp. 69-
73; Shanks, Tr. 2, pp. 124-125, 127.
n9 See Shanks, Tr. 2, p. 128; Pls.' Ex. 14, p. 2, P 1
and p. 3, P 5.
Deputy Director Dan Bolden testified that three of his
major concerns related to visits by minor children were
“smuggling of contraband, physical injury and sexual assault."
Tr. 3, p. 33. He also stated his administrative concern about the
supervision of unruly children, and his “personal and
philosophical” belief that prison is "not a good place for kids to
grow up,” that kids should fear prison and that they should not
visit because they become "too comfortable" with the prison
environment. Tr. 3, pp. 33, 58-60.
On the general subject of prison visits by children, Mr.
Bolden acknowledged as follows in cross examination:
-46a-
Q. Could you give me an idea of the number of
critical incident reports that you've -- that have been
issued relating to children in the visiting rooms or the
parking lots?
A. lI absolutely cannot. I'm speaking basically of my
own personal observations from the time that I
worked in prisons and the time that I visited prisons
from what I observed. | don't have any documents or
any numbers | can give you. Mine are from personal
observations.
Tr. 3, p. 34.
A. Yes, with our visitor standards, we have
continually tried to enforce children -- being
responsible for the children.
Q. And how do you do that?
A. By warnings and termination of visits if they're
not.
Q. And do you have any idea how many times that's
-had to occur in the last five or six years?
A. No, I do not.
Q. Do you know if it's occurred?
A. Yes, I do know it has occurred.
Tr. 3, p. 35.
-47a-
Q. Do you believe that -- let me -- your testimony is
that you do believe that injuries are occurring in the
a »
A. I said I think injury -- injuries do occur, and
there's always a potential for injury to occur. When
children are not supervised properly, we have moving
gates, we have things that you can climb on. We have
prisoner porters in a lot of institutions that are
cuttininatadeiintentediiinmend tates
working up front or on the grounds, so there is a
potential for injury to a child under those
circumstances.
Q. Okay. So you're not saying that children are in
fact being harmed. There's just a potential for harm; is
that correct?
A. I'm saying that I am aware of a -- I'm aware of
situations where children can be harmed. I'm not -- I
can't cite you any specific situations where a child has
been harmed. If I said that, I misspoke myself. I'm
saying that there are situations in a prison
environment, in the visiting room and administration
building, between. the gates, where a child is at some
risk if they're not properly supervised.
Tr. 3, p. 37.
Q. Do you know how many children currently are
visiting prisoners?
A. No, Ido not.
—
-48a-
Q. And as far as you know, there are, at least in the
waiting room, no actual injuries to children; is that
correct?
There are none that I can under oath testify to.
But you are sure that there is potential for injury.
r © P
I'm certain of that.
Q. But today you do not have any information for us
that there has been injury at least in the last four or
five years; is that correct?
A. Well, I can't say that because I don't know.
Q. Well, would you at least agree that if there has
been an injury or two or three, the number of injuries
would be minuscule in comparison to the number of
visits per year?
A. I don't have any data to substantiate that fact, but
I think it would be small.
Tr. 3, pp. 39-40.
Q. Now, I'd like to get a sense of the number of
children visiting before the rules, say up to 1995 and
after 1995. Could you give me a sense of what
percentage of children visited before, and then after
the rules?
A. I can't give you a number. There was a significant
number that did visit before the rule change, but |
can't give you a percentage or a number, but there
were a number of children that visited.
Q. In your mind, what does significant mean? Is it 5
percent, 10 percent?
A. I would say that most cases, where there was
females coming to visit, there was at least one to two
children with that visitor, so how do you break that
out on a percentage basis, I don't know, but there were
probably -- prior to the rule changes, there was
probably 10 to 15 percent would probably be a good
number.
Q. And it's your best estimate that 10 to 15 percent
of all visitors that go into the visiting room or come to
the facility and are in the waiting rooms.
A. Well, they come to visit, and we're talking about
pre-rule change, as | understood the question.
Q. I just want to be clear. So it would be fair to say
that 10 to 15 percent of the visitors before the rules
went into effect were children; is that correct?
A. That is a very rough estimate on my part.
Q. And for purposes of my question, by children, I'm
meaning people under the age of 18.
A. Yes.
Q. Is that also your understanding?
A. Yes.
Q. Now, what about after the rules took effect?
-50a-
A. I think the number has been substantially reduced
after the rule change.
Q. To what level do you think it's reduced?
A. I don't have a precise number or percentage, but I
know there's been substantial reduction in the number
of children coming after the rule change.
Q. For the groups that were coming in before, the 10
to 15 percent coming in before the rule change, did
you have any sense of whether they were related to
the prisoner they were visiting?
A. I don't have a sense of the kinship or relationship
of those that were coming prior to the rule change. I
just can't tell you definitively one way or the other.
Q. Do you have any sense of, before the rule change,
who the children accompanying the adult were
visiting?
A. Yes. Prior to the rule change, I had some general
idea that a number of the children that were coming to
visit were the children of girlfriends of prisoners, they
were children that were in some cases relatives,
distant relatives of the prisoner. | think it just filled the
whole spectrum of types of people that were coming
to visit. But a lot of circumstances the children were
children of the girlfriend of the prisoner.
Q. Who just were not related at all?
A. Yes.
Q. By distant relative, what do you mean?
See -
-Sla-
A. Well, maybe a nephew, niece, or a cousin, people
of that kinship.
Tr. 3, pp. 46-49.
Q. What changes have you made at your facilities to
make them more safe for children?
A. Well, the big change, I think, to make facilities
safer for everybody, is dealing with drugs and
narcotics. Seems to me to be the, a central theme here.
Q. So in terms of children running around, being left
abandoned in the parking lot, getting into
administrative offices, you have not made any specific
change that would address those things that you say
make them not safe?
A. I didn't understand the question. Let me answer
that question and--One of the things that we did is
reduce the number. By reducing the number, you can
better supervise those that are there. Before, we had
visiting rooms that were packed elbow to elbow, and
often out our front door, which made it very difficult
to supervise children or anybody else. By reducing the
number to a manageable number, our front desk staff
can properly supervise and monitor what's going on.
Q. And reducing the number, are you referring to the
point in time when, in 1995 when prisoners were
required to have an approved visitor list?
A. I'm telking about what has happened -- you asked
me what had happened in the way of improvements or
changes to ensure children's safety, and what | said we
->2a-
have done is as a result of the new rules and the new
visiting standards, we have reduced the number to a
manageable number where we can properly supervise
the children and the guests that are visiting in our
facilities.
Q. So when you say reduce the number, you're
referring to overall visitors, and not a prisoner's list?
A. Yes, I'm talking about the overall visitors.
Q. So the changes at the facilities, you have not
made changes a facilities other than the rules that are
under discussion today?
A. Not other than as they relate to your question.
Q. For example, you didn't add staff or change the
seats, number of seats, carpet on the floor?
A. No, we did not make any of those kind of
changes.
Tr. 3, pp. 53-54.
Q. I notice in your credentials you have a degree in
sociology; is that correct?
That's correct.
And that was from what year?
1967.
e- Ff © ?
And have you read any studies or literature that
supports you in this view? [that children who visit
-53a-
prisoners become too comfortable with the
environment]
A. No, | have not.
Q. Have you spoken with a statistically significant
number of children to reach this conclusion?
A. No, I have not. I think I testified that a lot of this
was my personal and philosophical rationale. | don't
ever recall saying I read a study or talked to anyone.
Q. In your studies for your sociology degree, did you
study child development at that time?
A. Yes.
Q. And since that time have you become aware of
any studies that addressed the risk for children created
by separation from the parents or how the separation
would manifest differently in different age groups?
A. No, I have not read anything, and I don't advocate
total separation.
Q. You're not a psychologist, are you?
A. No, I'm not.
Q. You do not purport to be able to professionally
evaluate what's in the best interest of a child, do you?
A. Ido not.
Tr. 3, pp. 60-61.
-54a-
Q. And the department's definition of immediate
family for purposes of visiting a prisoner under the
age of 18 excludes brothers and sisters, nieces and
nephews and cousins; isn't that correct?
A. That is true.
Q. Do you have any idea how many nieces and
nephews under 18 would want to visit your prisons?
A. I don't have a clue as to how many there would
be.
Q. What about brothers and sisters under 18?
A. I don't have a good handle on what that number
would be either..
Tr. 3, pp. 71-72.
Q. Now, are you aware that aunts and uncles that
have acted as a surrogate parent to a prisoner may
visit?
A. Yes.
Q. But you do not allow nieces and nephews under
18 to whom a prisoner has been a surrogate parent to
visit?
A. Well, I think if someone can make a case that
they provided significantly to someone's upbringing,
that that's one of those cases where an exception
would be sought. I was the person responsible for the
language with regard to aunts and uncles, as |
-55a-
understand fully that a lot of the minority prisoners
were raised by someone other than a natural parent.
Q. Under the rules as written, you do not allow
nieces and nephews under 18 to whom a prisoner has
been a surrogate parent to visit?
A. That's right.
Tr. 3, p. 73.
Q. Okay. Now, one of the points I believe you've
made in your prior testimony is that your opposition,
generally speaking, to nieces and nephews under 18
visiting was because you couldn't verify that they
were nieces and nephews. Do you recall that
testimony?
A. Yes.
Q. And isn't it the case that when a prisoner comes
into the system, he comes with a presentence report
that identifies family members?
A. I don't think it goes to nieces and nephews. I've
looked at many, many presentence reports, and it
usually covers your immediate family, mother, father,
siblings.
Q. My question was does it identify brothers and
sisters?
A. Yes.
Q. And the presentence report stays in the
institution, and even the counselor's files, does it not?
-56a-
A. Yes.
Tr. 3, pp. 76-78.
Q. Ifthe brother or sister can produce a birth
certificate of their child, doesn't that give you
adequate documentation of a niece or nephew?
A. I think it would if you could get access to that
kind of information.
Tr. 3, p. 78.
Thus, the thrust of Mr. Bolden's testimony is that the
restrictions on visits by minor siblings, nieces and nephews
evolved out of the broader desire to reduce visits by minors in
general, that this broader desire was based primarily on
personal observation and philosophy, and that there is no
documentation or other evidence to support the need for or the
efficacy of those particular restrictions. Minor siblings, nieces
and nephews appear to have been restricted from visitation out
of the general desire to reduce the number of minor visitors,
and not because of ahy specific concern for their safety or the
security of the prison.
Warden Joan Yukins of the Scott Correctional Facility
(women) acknowledged that some of the inmates at Scott were
as young as fourteen years old, that many had younger brothers
and sisters who were precluded from visiting, that prior to the
1995 rule change there had been no problems at Scott related to
sibling visitation, and that this particular limitation was not one
she had recommended. See Tr. 6, pp. 56-57. She also testified
that she did not kaow the volume of non-contact visits at Scott,
nor the number of minor siblings, nieces and nephews who
visited Scott prior to the 1995 rule change.
-57a-
When asked about the concerns which led to the change in
visitation in 1995, former MDOC Director Kenneth McGinnis
testified to many of the same issues that Mr. Bolden raised:
security, overcrowding, introduction of contraband,
inappropriate visiting room behavior, and sexual abuse. He
also acknowledged that he was not aware of the number of
minor siblings, nieces or nephews visiting MDOC prior to the
1995 rules, and that he had not considered the sibling
relationship when the policy was implemented:
Q. Did you ever know how many siblings were
visiting the facilities in 1994, minor siblings?
A. No, I did not.
Q. And you were never able to determine that
number, were you?
A. No.
Q. Nieces and nephews, were you ever able to
determine how many nieces and nephews visited your
prison facilities in, let's say, '94?
A. No, Ido not.
Q. And that would be the same for minor nieces and
nephews?
A. That's correct.
Q. Your position is that you wanted to stop minors
who didn't have a relationship with prisoners from
coming in; correct?
-58a-
A. Well, first, that was the primary issue, is that we
really wanted to minimize any minors coming into the
institution except for those who had a real purpose in
being there.
Q. Areal purpose. Is it your position that brothers
and sisters of prisoners don't have a relationship with
them?
A. No, I don't think that's my position. I think the
primary relationship we were focusing on was parent-
child.
Tr. 8, pp. 40-41.
Q. Did you specifically talk about excluding minor
brothers and sisters with the Executive Policy Team?
A. No.
Q. Did you specifically discuss excluding minor
nieces and nephews when you prepared the rules with
the Executive Policy Team?
A. Yes, there was a discussion about that.
Q. There was a discussion about nieces and nephews
but not siblings; correct?
A. Yes.
Tr. 8, pp. 41-42.
Although Mr. McGinnis, Deputy Director Bolden, and
Warden Withrow testified that they were aware of sexual
misconducts occurring in non-contact situations, no evidence
-59a-
was presented to establish that minor children were either
involved in or able to see any such activity. See Withrow, Tr.
8, pp. 139-142; Bolden, Tr. 4, pp. 32-33; McGinnis, Tr. 8, p. 8,
52-55. Defendants also acknowledged in their discovery
responses that a survey of all correctional facilities has
revealed that no records exist reflecting or identifying incidents
of sexual abuse or misconduct of minors which occurred
during a non-contact visit since January |, 1984.
Plaintiffs also introduced a statement made by Regional
Administrator Denise Quarles, who stated that the exclusion of
visits by minor siblings had been inadvertent, and that the
Department had decided to support a change in the
Administrative Rule so as to permit visits by minor siblings.
See Pls.’ Ex. 56. That change nas never been implemented.
The restrictions on minor visitors have disrupted family
relationships in a myriad of ways, as testified to by over a
dozen different witnesses. nl0 Moreover, the penological
interests identified by Defendants seem to have a weak
connection, if any, to the limitations placed on minor visitors.
nl0 See Shier, Tr. 2, pp. 113, 116-118; Spencer, Tr. 2,
pp. 135, 137-144; Carter, Tr. 2, pp. 168, 170-172; Smith,
Tr. 2, pp. 147, 149-154; Brewer, Tr. 2, pp. 68-78; Shanks,
Tr. 2, pp. 124-128; Hendricks, Tr. 2, p. 94; Benejam, Tr.
2, pp. 27-29, 31, 41-46; Yukins, Tr. 6, p. 56; Kupers, Tr.
6, p. 154; Scarnecchia, Tr. 1, p. 197-200.
With respect to the issue of reducing volume generally,
Defendants estimate that prior to the 1995 rule changes, 10-
15% of visitors were minors. Defendants have no idea how
many of these minors who visited prior to 1995 were siblings,
nieces and nephews, as opposed to girlfriends’ children or
others unrelated to the prisoner. nl! Because nieces and
nephews over eighteen can visit a prisoner so long as they fit
-60a-
within the prisoner's approved list of ten non-immediate family
members, there appears to be no logical justification for
excluding nieces and nephews under eighteen, who would also
have to fit within the list, as a means of controlling the volume
of visits. n12
nll See Bolden, Tr. 3, pp. 47-49; McGinnis, Tr. 8, p
40; Yukins, Tr. 6, p. 117.
nl2 See Pis.' Ex. 1 -- R 791.6609(2); McGinnis Tr. 8,
p. 42 (no one can get into a facility without getting on the
approved list); Yukins, Tr. 6, p. 53 (to be on approved list,
visitor applications must be completed, counselor checks
prisoner file for information related to proposed visitor,
and deputy warden approves or denies).
Although Defendants speculate that small children might
be used to carry contraband, there is no evidence that relatives
under eighteen present any greater risk of smuggling than
relatives over eighteen, n13 and concern about smuggling was
not the basis on which siblings, nieces and nephews under
eighteen were prohibited from visiting. n14
nl3 See Bolden, Tr. 4, p. 66-67 (not suggesting that
siblings or nieces are more likely to smuggle than average
visitor).
nl4 See VanOchten, Tr. 1, pp. 52, 76 (no special
concern that children generally or nieces and nephews in
particular are smugglers); pp. 57-58 (no security concern
would be affected by letting siblings visit).
Defendants have numerous ways of controlling smuggling,
even on contact visits, that do not require excluding categories
of visitors. One instance of a major misconduct, such as drug
smuggling, that occurs during or is associated with a visit, or
-6la-
one criminal act that occurs during a visit, is a basis for
imposition of a permanent visiting restriction under the
administrative rule and policy. n15 Defendants have adequate
methods to prevent and detect drug smuggling, including the
use of non-contact visits and a number of steps taken in 1995,
such as implementation of the approved visitor lists, a
prohibition on visitors being on multiple visitor lists if they are
not immediate family, restrictions on the conduct of visits, and
more intrusive searches of visitors. nl6 Both prisoners and
visitors involved in smuggling are subject to criminal
prosecution. n!17 Limiting minor siblings, nieces and nephews
to non-contact visits eliminates the opportunity to smuggle in
any event. n18
nl5 See McGinnis, Tr. 8, p. 51; Bolden, Tr. 4, pp. 62-
63.
nl6 See McGinnis, Tr. 8, pp. 50-51; Bolden Tr. 3, pp.
67-68; Mintzes, Tr. 5, pp. 106-107; Kupers, Tr. 7, pp. 4-5.
nl7 MICH. COMP. LAWS ANN. § 800.281 (West
1998); Pls.’ Ex. 40 -- No. 180393, Jon Weaver, p. 338, No.
186296, William Brussow, pp. 395-96.
nl8 See Mintzes, Tr. 5, p. 133 (non-contact visitation
essentially eliminates the ability of anyone to pass
anything to the prisoners); Bolden, Tr. 4, pp. 65-66
(although there is a "possibility," Deputy Director has no
proof that smuggling occurs on non-contact visits because
of this possibility); Bolden, Tr. 3, pp 45-46 (doesn't know
of any visitor who came for a non-contact visit that was
involved in smuggling; changes of smuggling at Level 5
and 6 facilities that have only non-contact visiting are
minimal); VanOchten, Tr. 1, p. 77 (limiting former
prisoners to non-contact visits should eliminate the
opportunity to smuggle); Yukins, Tr. 6, p. 45 (in 11 years,
-62a-
Warden Yukins never had an incident of a child
smuggling on a non-contact visit).
IV. Non-Contact Visits
Although contact visits may be more desirable from the
perspective of prisoners and their families, if contact visits are
not permitted, then the visual contact that occurs on non-
contact visits is crucial to the family member's ability to
reassure themselves about a loved one's welfare. See Kupers,
Tr. 6, pp. 141-42. Family members who had experience with
non-contact visits found them to be a critical means of
maintaining relationships because they allow for face-to-face
contact and spontaneous conversation. n19
nl9 See Hendricks, Tr. 2, pp. 86-87 (despite glass
dividers ana use of phone to talk, non-contact visits were
pleasant, eventually you forgot you were at a jail and just
talked, visits prevented incarceration from breaking up
family); Shier, Tr. 2, p. 121 (younger children were
"thrilled" to see older brother through glass at county jail
because it alleviated their anxiety about his welfare);
Benejam, Tr. 2, pp. 46, 64 (mother who visited son non-
contact for six months would bring young daughters and
grandchildren for non-contact visits "immediately" if she
could).
All facilities currently have either built-in or portable non-
contact visiting booths available. See Bolden, Tr. 3, pp. 29-30.
Portable booths are built by prison industries and a warden
who needed more could afford to purchase them. n20 Contact
and non-contact visitors are processed in exactly the same way.
See Benejam, Tr. 2, pp. 40-41. Portable booths can be placed in
the contact visiting room at whichever spot allows for the most
effective surveillance by officers and cameras. n21
-63a-
n20 See Bolden, Tr. 3, p. 30 (made by prison
industries), p. 55 (Defendants' current budget is over $ 1.5
billion); Jones, Tr. 9, pp. 54-55 (warden with institutional
budget of $ 41 million could afford to purchase a few
more portable booths if needed).
n21 See Bolden, Tr. 3, p. 30 (booths can be moved in
and out of visiting rooms); Mintzes, Tr. 5, pp. 112-13
(each institution determines placement of non-contact
booths that is best for security).
Given the 50% reduction in visiting volume and the fact
that many facilities had no volume problems to begin -vith, it is
highly unlikely that restoring non-contact visits to a limited
group of people, who would have to fit on a prisoner's
approved list in any event, would substantially burden
Defendants’ staff and resources. If Defendant finds that non-
contact visits become burdensome at any particular facility or
group of facilities, the Deputy Director can adjust visiting
hours or take any of the other steps that are within his authority
to control visits without excluding these categories of visitors
altogether. n2z While Defendants cannot be required to restore
minor siblings, nieces and nephews to contact visitation,
Defendants could amend R 791.6609 to permit that option if it
workable after all. See Pis.' Ex. 56, Public Statement of RPA
Denise Quarles.
n22 See Bolden, Tr. 3, p. 66 (policy grants him
authority to control visiting hours, number of visits
allowed, and number of visitors per day); Pls.' Ex. 2A, PD
05.03.140, p. 4, P U.
To whatever extent Defendants’ concerns about minors are
valid, non-contact visits were designed specifically to be an
alternative to contact visits where security concerns exist.
-64a-
Visits with whole categories of individuals should not be
prohibited altogether absent a reasonable basis for believing
that non-contact visits will not address security concerns
adequately. Other than the Higdon incident, which occurred in
a contact situation, involved a very young unrelated child, and
could have been prevented under existing security rules, there
was no evidence presented of a problem which would justify
the exclusion of whole categories of minor children from
visiting. n23 The potential risk that someone will act
inappropriately toward a visitor does not justify excluding an
entire group of visitors. See Mintzes, Tr. 5, pp. 133-34. The
fact that drugs can be left by visitors in bathrooms or outside
buildings for pick-up by a prisoner does not logically justify
denying non-contact visits by minor children. Cf Bolden, Tr.
4, p. 29 (non-contact visitation does not eliminate the threat of
smuggling). Concern that prisoners’ girlfriends used to bring a
lot of children who were unrelated to prisoners for lengthy
visits does not logically justify prohibiting visits by prisoners’
siblings, nieces and nephews. Cf. Bolden, Tr. 4, pp. 26-27.
n23 See Pls.' Ex. 39, Defs.' Resp. to Disc. Req.
V. Other Exclusions
A. Former Prisoners
The challenged regulations also exclude from visitation
former prisoners who are not immediate family. The stated
penological interests in this exclusion do not relate to volume,
but rather to the potential for iilegal or disruptive activity
occasioned by such visits. However, because each prisoner is
now limited to ten non-family visitors, each of whom must be
screened and approved in advance of any visit, the Department
has the ability to screen out any problematic former prisoner on
an individual basis. Moreover, the limitation of former prisoner
-6Sa-
visits tO a non-contact setting virtually eliminates the
possibility of smuggling. n24
n24 See VanOchten, Tr. 1, pp. 76-77.
There aré many instances in which exclusion of former
prisoners creates significant hardship on friends and family,
including instances where former prisoners have completely
rehabilitated and have served as social workers or
governmental ombudsman, n25 and instances where an in-
law's prior record has made it impossible for immediate family
to visit. n26
n25 See Trudeau, Tr. 4, pp. 92-103.
n26 See Wilson, Tr. 4, pp. 104-109 (witness was
incarcerated and daughter, who lived in another state,
planned visit with fiance, but was unable to visit because
fiance, who was former prisoner, was excluded from
visitation; daughter was disabled and could not travel on
her own).
B. Minor Children of Prisoners Whose Parental Rights Have
Been Terminated
When the Department eliminated from visits any child of a
prisoner whose parental rights had been terminated, it did not
consider that some prisoners voluntarily terminate parental
rights to provide adoptive homes for their children. n27 In
addition, Plaintiffs submitted substantial unrefuted evidence to
establish that contact between parent and child is an important
ongoing need for both parent and child regardless of the basis
for the termination of parental rights. n28 Moreover, any
concern for the safety and security of the child during a visit
would be accommodated by limiting these visits to a non-
contact setting. n29
n27 See VanOchten, Tr. 1, pp. 59-63.
n28 See Kupers, Tr. 6, pp. 132-134, 147-148;
Scarnecchia, Tr. 1, pp. 188-201, Tr. 2, p. 20, 23; Mintzes,
Tr. 5, pp. 98 99.
n29 See VanOchten, Tr. 1, p. 77.
C. Minor Children Must Be Accompanied By Immediate
Family Members or Guardian
The stated penological concern for requiring that a minor
child be accompanied by an immediate family member or
guardian is the safety and security of the child. Former practice
permitted a child to be accompanied by any responsible adult,
designated by power of attorney. Deputy Director Bolden
testified that powers of attorney were too easy to forge and that
the guardianship presented more protection for the child and
for the system.
According to the umnrefuted evidence submitted by
Plaintiffs, however, many prisoners, especially women, do not
have another immediate family member available to bring their
child to visit. n30 In addition, a guardianship is a complex legal
responsibility and procedure, with many risks to the future
legal relationship of the parent to her child, and beyond the
resources of many prisoners. n31 There was no evidence
establishing any instance of forgery of a power of attorney, and
the pre-screening procedures established by Defendants appear
completely adequate to protect against the abuse of a system
utilizing a power of attorney. Finally, again, if concern for the
safety of the child is an issue because the accompanying adult
might not exercise the same degree of oversight and
responsibility as a parent or guardian, the restriction to non-
contact visits would provide adequate safety and security.
-67a-
n30 See VanOchten, Tr. 1, pp. 85-89.
n31 See Scarnecchia, Tr. 1, pp. 188-91.
VI. Permanent Ban on Visits Based on Two Substantive Abuse
Misconducts
A. Penological Interest
Also in 1995, the Department implemented regulations
which impose a permanent ban on visitation for any prisoner
convicted of two or more substance abuse misconducts. The
regulations state as follows:
BBB. Except as set forth in Paragraph EEE, the
Director may permanently restrict all visits for a
prisoner who is convicted or found guilty of any of
the following:
1. A felony or misdemeanor that occurred
during a visit.
2. A major misconduct violation that occurred
during a visit or was associated with a visit.
3. Escape, attempted escape or conspiracy to
escape.
4. Two or more violations of the major
misconduct charge of substance abuse.
CCC. If a prisoner has been found guilty of the
conduct set forth in Paragraph BBB, the warden shall
recommend that all visits be permanently restricted.
S/he shall submit the recommendation, along with all
-68a-
supporting documentation, to the appropriate RPA.
The RPA shall review and forward the
recommendation to the CFA Deputy Director for
review. If the CFA Deputy Director agrees that the
restriction is warranted, the recommendation shall be
submitted to the Director for a final determination.
DDD. The CFA Deputy Director or designee shall
ensure that the warden is notified of the Director's
determination and that any restriction is entered into
the computerized tracking system. The warden shall
ensure the prisoner is notified of the Director's
determination.
EEE. A prisoner whose visits have been permanently
restricted shall be allowed visits only with attorneys
or his/her representative, qualified clergy and staff
from the Office of Legislative Corrections
Ombudsman in the manner set forth in this policy.
FFF. The Director may remove a restriction upon
written request of the warden or the restricted
prisoner, subject to the following:
1. The restriction shall not be removed if it is
based on a felony or misdemeanor that occurred
during a visit or if it is based on an escape,
attempted escape or conspiracy to escape
associated with a visit.
2. The restriction shall not be considered for
removal until at least two years after imposition
of the restriction by the Director if it is based on
two or more violations of the major misconduct
charge of substance abuse if one or both of the
charges were for possession or use of any
-69a-
prohibited substance other than alcohol, or if
one or both of the charges were for refusal to
submit to substance abuse testing.
3. The restriction shall not be considered for
removal until at least six months after
imposition of the restriction by the Director it if
is based on a major misconduct that occurred
during a visit or was associated with a visit, if it
is based on an escape, attempted escape or
conspiracy to escape not associated with a visit,
or if it is based on two or more violations of the
major misconduct charge of substance abuse if
the charges were for possession or use of an
alcoholic beverage.
GGG. If eligible for removal of the restriction based
on the criteria set forth above, a prisoner may request
removal of the restriction by sending a written request
to the warden of the facility where the prisoner is
housed.
1. If the prisoner is eligible for removal of the
restriction, the warden shall submit his/her
written recommendation, along with the
prisoner's written request if one was submitted,
to the appropriate RPA. The RPA shall review
and forward the documentation to the CFA
Deputy Director. The CFA Deputy Director
shall review the request and make a written
recommendation to the Director for a final
determination. If denied, the Director shall
determine when the prisoner may reapply for
removal of the restriction.
-70a-
2. If the prisoner is not eligible for removal of
the restriction, the warden or designee shall
notify the prisoner in writing of his/her
ineligibility and if/when the prisoner will be
eligible to apply for removal.
Defs.' Ex. 4; MDOC Policy Directive 05.03.140 (01/12/98),
based on Administrative Rules 791.6607-6614, as amended
1995.
No evidence was introduced to establish that any other
State has a provision similar to Michigan's permanent
restriction, either in duration or in substantive content.
Defendant submitted the policies of Florida, Ohio, Indiana,
Pennsylvania, and New York, which were represented to have
policies "similar to Michigan." See Defs.' Ex. 9. A review of
these policies shows that they are not nearly as harsh.
Florida utilizes a three month suspension if an inmate
refuses or is removed from a primary program due to "negative
behavior" or is rated “unsatisfactory” for the work/program
performance rating or security assessment. Further, Florida
imposes a two year suspension for visit-related misconduct,
which includes conduct such as engaging in sexual misconduct
or possessing drugs during a visit. Only if a dangerous weapon
is involved, however, is a permanent suspension imposed. See
Defs.' Ex. 9, Florida Dept. of Corrections, Inmate Visitation,
pp. 20-22. n32
n32 Florida's rules also state:
(c) Visiting privileges will be suspended
for criminal activity, serious rule violations,
repeated visiting rule or procedure infractions
or any security breach. When an incident
occurs the Duty Warden will ensure a
-7la-
comprehensive incident report is completed
immediately following the incident. The
Warden will review a report of the facts.
Based on the report, the Warden, Assistant
Warden, or Duty Warden will submit a report,
with recommendations, to CVA for final
approval. CVA will notify the visitor and
inmate of the final decision.
; Defs.' Ex. 9, Florida Dept. of Corrections, Inmate
Visitation, p. 20 § 10(c).
It is unclear whether this provision relates
to a prisoner or a visitor because of the final
sentence. Further, this provision requires
various procedural safeguards including a
comprehensive incident report.
Ohio permits suspensions of visitation for a visit-related
infraction (i.e. contraband found on the visitor). However, the
inmate must be given notice of the time period of suspension.
Further, visits may be suspended up to two months if an inmate
tests positive for or is in possession of illegal drugs, or refuses
to comply with a drug screen. If a second offense occurs,
however, visitation may be suspended up to six months. See
Defs.’ Ex. 9, Ohio Dept. of Rehabilitation & Correction, Inmate
Visitation, pp. 6-7.
Indiana imposes a temporary suspension for a variety of
infractions. No suspension lasts more than thirty days. Written
notice to the prisoner is required stating the reasons, duration,
and right to appeal. Furthermore, contact visits may be denied
for a variety of offenses such as possession of contraband, but
the inmate may still have non-contact visits. A denial of
contact visits also requires notice. See Defs.' Ex. 9, Indiana
Dept. of Corrections, Offender Visitation, pp. 8-9.
-72a-
Pennsylvania permits suspension of visitation for drug
infractions, but the suspension is limited to contact visits.
Moreover, "restriction of visiting privileges will not be used as
a disciplinary measure for unrelated facility rule infraction."
Defs.' Ex. 9, Pennsylvania Dept. of Corrections, Inmate
Visiting Privileges, pp. 14-15.
New York permits suspension of contact visiting as
punishment for visit-related misconduct, but permits non-
contact visitation under these circumstances. See Defs.' Ex. 9,
New York Dept. of Correctional Services, Inmate Visitor
Program, pp. 7-14.
Thus, no other State imposes a permanent restriction on
visitation other than Florida's restriction if a prisoner is
involved with a dangerous weapon in a visiting situation. n33
n33 Plaintiffs’ expert Terry Kupers testified that he had
reviewed visiting regulations in fourteen other prison
systems, non of which had restrictions similar to those
imposed by the Michigan Department of Corrections. See
Kupers, Tr. 6, pp. 175-76.
Former Director McGinnis testified that Michigan's
permanent restriction for two substance abuse misconducts was
developed because he was committed to reducing drug use
within the prison system, and that he was searching for a way
to implement a zero tolerance policy. He stated as follows:
Well, based on my experience, and one of the biggest
problems, one of the biggest problems that prison systems
face is the introduction of drugs. It creates a tremendous
amount of other issues within the prison environment,
violence probably being the most predominant one.
-73a-
It creates situations of trafficking for drugs, pressuring for
money, but in my experience, it almost always resulted in
some form of violence, eventually, in a prison
environment. It creates a very dangerous atmosphere in
prisons, and that's why there's so much emphasis placed
on it.
Tr. 8, p. 34.
I think [the policy] sent a clear message that we were
interested in zero tolerance as it involved substance abuse
in prison. Did I think it was severely harsh? No.
Tr. 8, p. 62.
This testimony was amplified by Deputy Director Bolden,
who testified that “our former director and I concurred, felt that
we just had to take a tougher stand with regard to trying to get
a handle on what is a very, very serious problem, not only in
prison, but in our communities." Tr. 4, p. 51. According to both
McGinnis and Bolden, the use of illegal substances in the
prison system compromises security and discipline. Aggressive
action was believed to be necessary in this area.
Bolden acknowledged that substance abuse misconducts
trigger other automatic punishment within the prison system
including loss of good time and reclassification of a prisoner's
security level. Others in the MDOC, including Marjorie
VanOchten, testified that the permanent ban on visitation was
not tied to concerns about smuggling which occurred during
the visitation process; rather, visits were chosen as the vehicle
of punishment because they are very important to prisoners --
and loss of visits would be a significant deprivation.
B. Procedural Issues
-74a-
There have been many procedural problems associated with
the implementation of the permanent ban on visitation. First,
although Department witnesses testified that the new policy
was made available to prisoners at the time of implementation,
Plaintiffs introduced substantial evidence to establish that
notice was spotty and inconsistent. n34
n34 See Defs.' Ex. 1A; McGinnis, Tr. 8, pp. 46-47;
Staton, Tr. 4, p. 139 (woman prisoner saw no posting re:
permanent bans). No policy directive was issued until
1998, three years after application of the ban had begun in
August 1995, and restriction criteria were continually
evolving. See VanOchten, Tr. 1, pp. 38-40; Pis.’ Ex. 5,
DOM 1995-58/DOM 1996-42; McGinnis, Tr. 8, p. 47;
Bolden, Tr. 3, p. 97 (possible criteria still being discussed
in February 1996); Pls.’ Ex. 23 (4/27/96) McKeon memo
to EPT; Pls.’ Ex. 27 (7/31/96 Quarles memo to Gidley).
In addition, although the implementing language suggests
discretion in the imposition of the ban, there are no written
criteria to guide the Director's decision. n35 Section CCC of
the policy directive states that if a prisoner has two substance
abuse misconducts, "the warden shall recommend that all visits
be permanently restricted." The warden is required to submit
this recommendation, with all supporting documents, to the
appropriate regional prison administrator (RPA) who, in turn,
is to review the recommendation and forward it to the
Correctional Facilities Administration (CFA) Deputy Director.
"If the CFA Deputy Director agrees that the restriction is
warranted, the recommendation shall be submitted to the
Director for a final determination.” Defs.' Ex. 4 P CCC. Thus,
the Director has absolute discretion to impose or not impose
the restriction on any prisoner who has two substance abuse
tickets. See Bolden, Tr. 3, p. 127. The CFA Deputy Director
has absolute discretion to prevent a restriction from being
imposed by not forwarding a recommendation to the Director.
-75a-
But see Bolden, Tr. 3, p. 127 (Deputy Director does not believe
he has authonty to not forward recommendation). It was
understood when the new rule was adopted that a permanent
visiting restriction would be imposed automatically whenever a
prisoner received two substance abuse misconducts and that
the director would not in fact exercise discretion on a case by
case basis. See VanOchten, Tr. 1, pp. 103-04, 106. Although
Deputy Director Bolden and Marjorie VanOchten both testified
that the ban is supposed to be imposed automatically after two
substance abuse misconducts, the actual practice has been
inconsistent.
n35 See Pis.' Ex. 2, PD 05, 03, 140. §§ BBB, CCC.
Over a period of nearly five years, 1715 of 4188, i.e. 41 %,
of the prisoners who had two substance abuse misconducts
actually received permanent restrictions. By year, the disparity
ranged from 20.9% in 1996 to 59.1% in 1999. The evidence
does not show to what extent this is because: a) the wardens
are not recommending restrictions in all cases where they are
required by policy to do so; b) the Deputy Director is
exercising his discretion not to forward recommendations to
the Director on some unknown and unreviewable basis; or c)
the Director is deciding not to impose restrictions in a
proportion of the eligible cases on some unknown and
unreviewable basis. See Pls.' Ex. 51; Creekmore, Tr. 5, pp. 48-
50. Although a warden's recommendation for restriction is
supposed to be mandatory after two tickets, wardens do not in
fact make these requests automatically. See, e.g., Pls.' Ex. 40:
No. 169509, Michael Willis, p. 274 (has misconducts at SMI in
11/95 and 1/96, but no request for restriction until 1/97, at
MBP). Some prisoners accumulate more than two misconducts
before a recommendation to restrict is made. n36
n36 See, eg., Pis.' Ex. 40: No. 148325, Quincy
Leonard, p. 133 (7 alcohol misconducts, all at SMI, from
-16a-
12/15/95 -8/9/96, restriction request by SMI on 10/21/96.);
No. 161934, Jeff Miller, p. 221 (3 misconducts in Oct/Nov
1995 at WCF, 8/96 and 6/97 alcohol misconducts at SRF,
restriction request by SRF on 6/11/97); No. 226669,
Gregory Winters, p. 607 (5 drug test refusals at MBP from
7/09/96-9/10/96, date of restriction request by MBP
unclear but restriction imposed 11/1/96); No. 247161,
David Tyran, p. 760-61 (3 alcohol tickets at MTU from
11/96-1/97, 2 marijuana tickets at MRF in 4/97, restriction
request by MRF in 5/97); Yukins, Tr. 6, pp. 62-63, 65-67,
70-75; Pls.’ Exs. 58, 59, 60, 61, 62.
Even more troublesome, the time lapse between the second
misconduct and the imposition of the permanent restriction
may take many months or even years, during which time a
prisoner may be misconduct free. The average time between
the guilty finding on the second substance abuse misconduct
and imposition of the permanent visiting restriction has
increased each year and is now nearly seven months. See P!s.'
Ex. 47; Creekmore, Tr. 5, p. 57. Some prisoners who have two
tickets do not receive a permanent restriction until three years
after their last guilty finding. n37 Often the restriction is not
imposed until the prisoner is transferred and a request is made
by the warden at the new facility. n38 Deputy Director Bolden
testified that he did not find this time delay to be problematic,
because it is important that prisoners recognize the certainty of
punishment for their misconduct. See Tr. 3, p. 139-140. n39
n37 See Brewer, Tr. 7, p. 107 (restriction imposed
when prisoner request to change visitor list prompted file
review); see also Pis.' Ex. 40: No. 203124, David Brewer,
p. 552 (1 misconduct at CBI in 10/95, 2 misconducts at
JCF in 1/96 and 3/96, restriction request by JCF on
12/21/98, restriction imposed 2/99).
-77a-
n38 See, e.g., Pls.' Ex. 40: No. 104922, R. G. Stroman,
p. 001 (restriction requested by JCF 3 1/2 years after last
guilty finding at SMN, over RPA's objection); No.
173758, Lee Arthur Love, p. 300 (restriction requested by
JCF 3 1/4 years after last guilty finding at DRF); No.
193320, Cardell Sanders, p. 468 (restriction requested by
JCF over 3 years after last guilty finding at DRF, over
RPA's objection); No. 201399, Andrew Broadnax, p.
This text is long and has been trimmed here. Open the source document for the complete record.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.