# Petition for Writ of Certiorari — Overton v. Bazzetta > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0584%3A02 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2003 - **Citation:** 539 U.S. 126 ## 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 improv [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0584%3A02. Public record. Not legal advice.