Amicus Curiae Brief — Overton v. Bazzetta

OFFICE OF TME CL¥RK |

IN THE SUPREME COURT OF THE UNITED STATES |

WILLIAM OVERTON, Director of Michigan Department of

Corrections: MICHIGAN DEPARTMENT OF

CORRECTIONS,

Petitioners,

vs.

MICHELLE BAZZETTA, et al.,

Respondents.

On Petition for Writ of Certiorari to

The United States Court of Appeals for the Sixth Circuit

A A TT TTT AT TT OT La ELIS ECC:

AMICUS CURIAE BRIEF OF THE STATES OF COLORADO,

ALABAMA, IDAHO, INDIANA, MISSISSIPPI, NEBRASKA,

NEVADA, NEW HAMSPHIRE, OKLAHOMA, SOUTH

DAKOTA, AND TEXAS IN SUPPORT OF PETITION FOR

WRIT OF CERTIORARI

Ken Salazar

Attorney General

Alan J. Gilbert*

Solicitor General

Juliana M. Zolynas

Assistant Attorney General

1525 Sherman Street, 5” Floor

Denver, Colorado 80203

Telephone: (303) 866-3052

*Counsel of Record

(Names and addresses of attorneys continued on imside cover)

leOpe

STATE OF ALABAMA

WILLIAM H. PRYOR JR.

Attomey General

STATE OF IDAHO

ALAN G. LANCE

Attorney General

STATE OF INDIANA

STEVE CARTER

Attorney General

STATE OF MISSISSIPPI!

MIKE MOORE

Attorney General

STATE OF NEBRASKA

DON STENBERG

Attorney General

STATE OF NEW HAMPSHIRE

PHILIP T. MCLAUGHLIN

Attorney General

STATE OF NEVADA

FRANKIE SUE DEL PAPA

Attorney General

STATE OF OKLAHOMA

W.A. DREW EDMONDSON

Attorney General

STATE OF SOUTH DAKOTA

MARK BARNETT

Attorney General

STATE OF TEXAS

JOHN CORNYN

Attorney General

QUESTION PRESENTED

are Whether a prison visitation policy that terminates all

visitation privileges for inmates who have been convicted of

drug offenses while incarcerated (a) violates a right of intimate

association under the First and Fourteenth Amendments. or (b)

constitutes cruel and unusual punishment in violati ,

Eighth Amendment. es ac

(I)

TABLE OF CONTENTS

PAGE

INTEREST OF AMICUS CURIAE l

SUMMARY OF REASONS FOR GRANTING THE

WRIT 3

REASONS FOR GRANTING THE WRIT

I. The Sixth Circuit's decision conflicts with

decisions from other circuits. 4

Il. Whether inmates possess a constitutional right

to non-contact visitation presents a question

of national importance, because the

suspension of visitation is a nationally

recognized means of managing inmates and

furthering the goals of prison security and

inmate rehabilitation. 6

Ill. The Sixth Circuit's decision is incompatible

with decisions from the Supreme Court. 8

CONCLUSION 9

QUESTION PRESENTED I

TABLE OF AUTHORITIES

PAGE

CASES

Adams v. Aaron, 421 F. Supp. 430 (E.D. Ill. 1976) .............. 5

Bazzetta v. McGinnis, 148 F. Supp. 2d 813 (E.D.

eee 7

Bazzetta v. McGinnis, 286 F.3d 311

,———————————— 1, 4, 6, 8,9

Berry v. Brady, 192 F.3d 504 (Sth Cir. 1999)..............cc-ccesees 4

Block v. Rutherford, 468 U.S. 576, 586 (1984).................0-+ 7

Evans v. Johnson, 808 F.2d 1427 (11th Cir. 1987)................ 5

Feazell v. Augusta County Jail, 401 F. Supp. 405

gg OO 5

Flanagan v. Shively, 783 F. Supp. 922, 934 (M.D.

Pa.), aff'd, 980 F.2d 722 (3d Cir. 1992) .........c.0ccecceeseeeseees 5

_ Hewitt v. Helms, 459 U.S. 460 (1983)............-s-ssessessessnseneenes 8

Hudson v. Palmer, 468 U.S. 517 (1984) .............ccceceeeseeses 7,8

Jones v. North Carolina Prisoners’ Labor Union, Inc.,

433 US. 129 (2977) .niccecccccceesccescrscccsscccccssscscssscssscssscsensesees 8

Kentucky Dept. of Corrections v. Thompson, 490

CFB. GSE (BGG) ceceecccererscsscssscscessssessesscssssssssssssscssecesssees 3,9

Laaman v. Helgemoe, 437 F. Supp. 269 (D.N.H.

ROD occecccseecscesssesssssssssessessnesnsesuscsssnasssssssnpacenssesssssseseessseses

Mayo v. Lane, 867 F.2d 374 (7th Cir. 1989) ...............cc-ceeeees

McCray v. Sullivan, 509 F.2d 1332 (Sth Cir. 1975)..............

N.E.W. v. Kennard, 952 F. Supp. 714 (D. Utah 1997)..........

Olim v. Wakinekona, 461 U.S. 238 (1983)...........-.--.-cceseeesee

TABLE OF AUTHORITIES

PAGE

Pell v. Procunier, 417 U.S. 817 (1974) .........cccccccscceseeceeseeeeeee 8

Peterson v. Shanks, 149 F.3d 1140 (10th Cir. 1998)............. 4

Procunier v. Martinez, 416 U.S. 396 (1974),

overruled on other grounds,

Thornburgh v. Abbott, 490 U.S. 401 (1989)... 7

Shaw v. Murphy, 532 U.S. 223 (2001) ...........cccccccceeeeeeeeees 7,8

Smith v. Matthews, 793 F. Supp. 998 (D. Kan. 1992)........... 5

Thorne v. Jones, 765 F.2d 1270 (Sth Cir. 1985).................... 5

Turner v. Safley, 482 U.S. 78 (1987)............ccccccseseeseeeeeeeeeeee 8

Valentine v. Englehardt, 474 F. Supp. 294

eng I telitetinctenettesnartateternipericinnteremnermssemamasas 5

Washington v. Harper, 494 U.S. 210 (1990).............ccccccceseeee 8

White v. Keller, 438 F. Supp. 110 (D. Md. 1977),

aff'd, 588 F.2d 913 (4th Cir. 1978) 202.0... cccceccecceceeeeeeeeeee 5

STATUTES

Indiana Code § 11-1 1-3-9 (2002)................ccececcecseeserseeseneenees l

¥

REGULATIONS

California Admin. Code title 15, § 3315(f(5)(1)

SS ER i ae aE ile 1

Colorado Dept. of Corrections Administrative

Regulation 300-01 IV.L.10.¢ (7/1/02) ..........ccccccceeceeseeeeeees |

Florida Admin. Code § 33-601.731(2).............ccecceeceeseeeeeeeees 1

Florida Admin. Code § 33-601.731(3)........ccc..ccesssessseesssveeeees 1

Georgia Admin. Code 125-3-4-.01 (3/31/01) .............cceceeee0es 1

Idaho Admin. Code 06.01.01 .604.01 (4/3/02) ............ccecce0-e 1

ill

TABLE OF AUTHORITIES

PAGE

lowa Dept. of Corrections Policy No. IN-V-122(VI)

rE l

Iowa Dept. of Corrections Policy No. IN-V-36

ITTITTIEcenenesunnsennenininiatndaaieuniamatiatietueatiatasaiammeiemmnamsennn l

Kansas Admin. Reg. 44-7-104(a)(7) (1/1/01) ...........c.-c0eeeeeees l

Maryland Div. of Correction DCD 105-4 Appendix 3 .......... 1

Minnesota Dept. of Corrections Directive 302.100

ee ctrsececcnicnntatdaatneeidniniedennaippitinenmpennenanneneets 1

Mississippi Dept. of Corrections S.0.P. 18-02-01

Taare ner cei dinadaara titans tairiatesentnamuaninetemmminemennel 2

New Hampshire Dept. of Corrections PPD

Te ecscciepenecinnccceinsanntesnsueneremesnnsscssnees 2

New Hampshire Dept. of Corrections PPD 7.9(IV)(P)

PIP naxensecrmineinesneitegtuinindanenapensteptianemmastannesiniemimnesenastacn 2

New York Comp. Codes R. & Regs. tit. 7, § 200.5(a)

SUITE cconceenmeenneenntinesitniaiiniiabinastedintaniientnnemmtatenmanenecess 2

BA, 6 GeO ccecnessnentticnatistatnnuissnnisseninsmetvectnommnstecmcemessuns 2

Ohio Dept. of Rehabilitation and Correction § 312,

RR 2

Ohio Dept. of Rehabilitation and Correction § 312,

PD Fa es I cctectuiininrasctioninitansininsapnestecsememneess 2

Rhode Island Admin. Code 06.070.004 Pt. ITI(E)(13)

GE ncctecsessnitinsisiomginnestinndiiatinmpentigiapenenmtmtpriieeemans 2

South Carolina Dept. of Corrections OP-22.09

ee ccithtcertemenaninctnimaneiimaienistigemienmemenne: 2

Tennessee Dept. of Correction Reg. 507.01(VIKF)\(4)

(10/1/01)......... ae Sa ee 2

28 C.F.R. § 511.13(a) iadinsheeniietttheainleesiineaia —

TABLE OF AUTHORITIES

PAGE

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INTEREST OF AMICUS CURIAE

In Bazzetta v. McGinnis, 286 F.3d 311 (6th Cir. 2002),

the Sixth Circuit held that a regulation promulgated by the

Michigan Department of Corrections ("“MDOC"), which

terminates all visitation privileges for inmates who have been

convicted of at least two drug offenses while incarcerated,

violates the First, Eighth, and Fourteenth Amendments to the

United States Constitution. Several states have adopted similar

restrictions on prison visitation.' Although the Sixth Circuit's

' See, e.g. California Admin. Code title 15, § 3315(f(5)(1)

(7/12/02) (visitation may be lost up to six months for drug

possession) (Amicus Curiae Appendix ("App.") p. al);

Colorado Dept. of Corrections Administrative Regulation

300-01 .IV.L.10.c (7/1/02) (three-year suspension of all

visitation after three drug-related disciplinary convictions)

(App. p. b1); Florida Admin. Code §§ 33-601.731(2) and 33-

601.731(3) (indefinite suspension of visiting privileges for

weapons possession and two-year suspension of privileges

for drug possession) (App. p. cl); Georgia Admin. Code

125-3-4-.01 (3/31/01) (all visiting privileges may be

suspended or revoked) (App. p. d1); Idaho Admin. Code

06.01.01.604.01 (4/3/02) (visitation a matter of discretion)

(App. p. e1); Indiana Code § 11-1 1-3-9 (2002) (prohibition

of visitation between inmate and specific visitors) (App. p.

fl); lowa Dept. of Corrections Policy Nos. IN-V-122(VI)

(10/00) (termination of visiting privileges) and IN-V-36

(12/00) (disciplinary sanctions can include one year loss of

visitation privileges) (App. pp. g1-g2); Kansas Admin. Reg.

44-7-104(a)(7) (1/1/01) (suspension of visiting privileges for

violation of visiting rules) (App. p. hl); Maryland Div. of

Correction DCD 105-4 Appendix 3 (up to six month

suspension of visitation) (App. pp. il-i2); Minnesota Dept. of

Corrections Directive 302.100 (5/13/02) (visiting privileges

may be lost for drug-related offenses) (App. pp. j1-j3);

2

decision is not binding in other circuits, it may be considered

persuasive authority io invalidate the visitation policies of

several other states. In fact, the Sixth Circuit's ruling may

have an adverse effect upon a federal regulation allowing for

the suspension of visitation for federal prisoners. See 28

C.F.R. § 540.52 (App. p. s1).

The Sixth Circuit's decision is potentially disruptive to

prison management across the country. In Colorado alone

there are more than 17,000 inmates housed in 23 correctional

facilities. When managing sizeahle inmate populations,

corrections officials need to make decisions which further the

goals of prison security and inmate rehabilitation without

violating the Constitution. These goals are most pronounced in

Mississippi Dept. of Corrections S.0.P. 18-02-01 (6/1/02)

(loss of visiting privileges for disciplinary rule violations)

(App. pp. k1-k2); New Hampshire Dept. of Corrections PPD

7.91V)(M)\(1) & 7.9(TV\(P) (7/1/02) (visiting privileges may

be lost for rule violations and drug violations) (App. pp. 11-

12); New York Comp. Codes R. & Regs. tit. 7, § 200.5(a)

(4/1/02) (visiting privileges may be suspended or revoked to

maintain "safety, security, and good order") (App. p. m1);

North Carolina Inmate Disciplinary Procedures Ch. B, §

.0204 (up to six months loss of visitation for Class A

disciplinary offense) (App. pp. nl-n2); Ohio Dept. of

Rehabilitation and Correction § 312, No. 2, Pts. VI(K) and

VI(L) (2/2/01) (all visitation may be suspended for

misconduct) (App. pp. 01-02); Rhode Island Admin. Code

06.070.004 Pt. III(E)(13) (6/02) (up to one year suspension

of visitation for drug-related offenses) (App. p. p1); South

Carolina Dept. of Corrections OP-22.09 (10/30/98) (visiting

privileges suspended for two years for inmates who possess

drugs while entering, exiting, or in the visiting room) (App.

pp. ql-q3); Tennessee Dept. of Correction Reg.

507.01(VI)(F)(4) (10/1/01) (warden may suspend visiting

privileges up to six months for any reason) (App. pp. rl-r2).

3

the context of inmate visitation, which often can serve as a

means for importing contraband into prisons. A clear rule of

law is necessary to guide states concerning when or whether

visitation privileges may be suspended or permanently

revoked.

SUMMARY OF REASONS FOR GRANTING THE

WRIT

The writ of certiorari should be granted for several

compelling reasons. First, the Sixth Circuit's decision conflicts

with other circuit court decisions addressing whether there is a

constitutional right to visitation. It is important to resolve this

conflict between the circuits because it creates uncertainty for

State prison systems in promulgating regulations and policies

pertaining to inmate management.

Second, whether an inmate possesses a constitutional

right to non-contact visitation is an important federal question

with national implications for inmate management, particularly

in light of the fact that several states allow for the suspension

or termination of visitation when inmates have been found

guilty of possessing illegal substances or have engaged in other

misconduct. States need guidance concerning the

constitutional boundaries for restrictions on inmate visitation.

Finally, the Sixth Circuit's ruling is inconsistent with

Supreme Court decisions addressing the extent of associational

and other constitutional rights retained by inmates during

incarceration. Although the scope of an inmate's right, if any,

to non-contact visitation has not been settled by this Court, see

Kentucky Dept. of Corrections v. Thompson, 490 U.S. 454,

465 (1989) (Kennedy, J., concurring) (unsettled whether a

complete ban on visitation would be constitutional), the

Court has issued several rulings explicating that inmates

retain limited nights during incarceration. The Sixth Circuit's

decision is incompatible with those existing Supreme Court

4

cases, because the decision confers upon inmates a right to

intimate human relationships which is inconsistent with

incarceration, finds that non-contact visitation cannot be

suspended without due process, and finds that the Eighth

Amendment is violated when visitation is permanently

suspended. As a result, there is now a lack of clarity

concerning when or whether it is constitutional to suspend or

terminate visitation.

REASONS FOR GRANTING THE WRIT

L. The Sixth Circuit's decision conflicts

with decisions from other circuits.

The Sixth Circuit held that inmates have a

constitutional right to non-contact visitation under the First,

Eighth, and Fourteenth Amendments. Bazzetta, 286 F.3d at

323. The court determined that inmates "retain a limited

right to freedom of association -- specifically non-contact

visits with intimate associates[.]" Jd. at 316. With respect to

MDOC's permanent ban on visitation for inmates with two or

more substance abuse convictions, it determined that the

regulation failed to provide adequate process because no

hearing is held before the ban is imposed. /d. at 323. It also

found that a permanent ban on visitation constitutes cruel

and unusual punishment. /d. at 322-23.

The Bazzetta court's ruling conflicts with the majority

of circuit courts which have held that inmates do not possess

a constitutional right to visitation. See Berry v. Brady, 192

F.3d 504, 508 (Sth Cir. 1999) ("no constitutional right to

visitation privileges"); Peterson v. Shanks, 149 F.3d 1140,

1145 (10th Cir. 1998) ("prison officials necessarily enjoy

broad discretion in controlling visitor access to a prisoner”);

Mayo v. Lane, 867 F.2d 374, 375 (7th Cir. 1989) ("Prison

necessarily disrupts the normal pattern of familial

association, so lawful imprisonment can hardly be thought a

5

deprivation of the right of relatives to associate with the

imprisoned criminal."); Evans v. Johnson, 808 F.2d 1427,

1428 (11th Cir. 1987) ("no absolute constitutional right to

visitation, such privilege being subject to the discretion of

prison authorities"); Thorne v. Jones, 765 F.2d 1270, 1273

(Sth Cir. 1985) (no “absolute rights of physical association");

McCray v. Sullivan, 509 F.2d 1332, 1334 (Sth Cir. 1975)

("Visitation privileges are a matter subject to the discretion

of prison officials.").7

A minority of courts, mainly district courts, has

reached the opposite conclusion. See Valentine v.

Englehardt, 474 F. Supp. 294, 295, 301 (D.N.J. 1979) (a

total ban on all visitation with children is unconstitutional);

Laaman v. Helgemoe, 437 F. Supp. 269, 320-22 (D.N.H.

1977) (inmates have a right to familial association under the

First Amendment, and a total ban on visitation violates the

First, Eighth, and Fourteenth Amendments). The Sixth

? In addition, many district courts have come to the same

conclusion. N.E.W. v. Kennard, 952 F. Supp. 714, 718-19

(D. Utah 1997) (the right to familial association can be lost

upon incarceration); Smith v. Matthews, 793 F. Supp. 998,

1001 (D. Kan. 1992) ("no general right to prison visitation

for either prisoners or the public") (citing 28 C.F.R. §

511.13(a) & (b)); Flanagan v. Shively, 783 F. Supp. 922, 934

(M.D. Pa.) ("no constitutional right to visitation"), aff'd, 980

F.2d 722 (3d Cir. 1992) (Table); Massey v. Wilson, 484 F.

Supp. 1332, 1333 (D. Colo. 1980) (visitation within the

discretion of prison officials); White v. Keller, 438 F. Supp.

110, 115 (D. Md. 1977) ("no constitutional right to prison

visitation, either for prisoners or visitors"), aff'd, 588 F.2d

913 (4th Cir. 1978); Adams v. Aaron, 421 F. Supp. 430, 431

(E.D. Ill. 1976) (visitation a matter of discretion); Feazell v.

Augusta County Jail, 401 F. Supp. 405, 407 (W.D. Va. 1975)

(visitation an internal prison matter).

6

Circuit's decision recognizing associational, due process, and

Eighth Amendment rights to visitation falls within this

minority and creates a split between the circuits.

This conflict between the circuits is potentially

detrimental to the management of state and federal prisons.

Many states have adopted regulations or policies allowing

for the suspension or termination of visitation, and the

constitutionality of those regulations and policies could be

called into question as a result of the Bazzetta decision.

Likewise, federal prisons authorize the suspension of

Visitation in certain instances. See 28 C.F.R. § 540.52 (App.

p. 31). Because corrections officials have a strong interest in

managing inmates within the metes and bounds of the

Constitution, review by this Court can stave off further

uncertainty and confusion caused by the Sixth Circuit's

ruling.

Il. Whether inmates possess a constitutional

right to non-contact visitation presents a

question of national importance, because

the suspension of visitation is a

nationally recognized means of

managing inmates and furthering the

goals of prison security and inmate

rehabilitation.

Several state corrections departments have

promulgated regulations which allow for the suspension or

termination of all visitation where inmates have been convicted

of drug-related prison disciplinary offenses or have engaged in

other misconduct during their incarceration. See supra at n.1.

Likewise, federal inmates may lose their vis‘tation privileges if

they violate visitation rules. See 28 C.F.R. § 540.52 (App. p.

sl). Accordingly, the Sixth Circuit's decision, if followed by

other jurisdictions, would be detrimental to prison

management by state correctional institutions nationwide.

7

The decision also creates uncertainty regarding the

application of the federal regulation allowing for the

suspension of visitation privileges.

The termination of non-contact visitation is a useful

prison management tool which furthers the goals of prison

security and inmate rehabilitation. See Bazzetta v. McGinnis,

148 F. Supp. 2d 813, 852 (E.D. Mich. 2001). It is important

to remember that the loss of visitation privileges is brought

about by the inmate's own voluntary conduct. It is the

inmate who has the opportunity to prevent the loss of the

privilege by refraining from drug-related and other

misconduct in prison. In Michigan, the inmate is given this

opportunity twice before privileges are lost with respect to

the drug-related disciplinary offenses.

Prison officials must be given discretion to manage

the "complex and intractable" problems facing prison

institutions. See Procunier v. Martinez, 416 U.S. 396, 405

(1974), overruled on other grounds, Thornburgh v. Abbott,

490 U.S. 401, 404-05 (1989). The introduction of illegal

drugs into the prison setting "is one of the most perplexing

problems of prisons today[.]" Hudson v. Palmer, 468 U.S.

517, 526-27 (1984); see also Block v. Rutherford, 468 U.S.

576, 586, 589 (1984) (contact visits); cf Shaw v. Murphy,

532 U.S. 223, 231 (2001) (relying upon common knowledge

that inmates have used correspondence for passing

contraband). Corrections officials need to be allowed to

terminate visitation for inmates with multiple drug-related

disciplinary convictions in order to combat this intractable

and perplexing problem. The Sixth Circuit's decision

removes discretion from corrections officials concerning

these internal matters and imposes a solution which is

burdensome, is not constitutionally required, and has

potentially negative implications for prison management

throughout the country.

Il. The Sixth Circuit's decision is

incompatible with decisions from the

Supreme Court.

This Court has recognized on numerous occasions

that although inmates do not completely shed all

constitutional rights at the jailhouse door, they only retain

those rights that are consistent with incarceration. See Pell v.

Procunier, 417 U.S. 817, 822 (1974) ("a prison inmate

retains those First Amendment rights that are not

inconsistent with his status as a prisoner"); Shaw, 532 U.S. at

229 (prisoners possess fewer rights than "individuals in

society at large."); Washington v. Harper, 494 U.S. 210, 223-

24 (1990); Hudson, 468 U.S. at 523-24 ("[I]mprisonment

carries with it the circumscription or loss of many significant

rights."); Hewitt v. Helms, 459 U.S. 460, 467 (1983). The

Court has held that the right to freedom of association is

"necessarily curtailed by" incarceration. Jones v. North

Carolina Prisoners' Labor Union, Inc., 433 U.S. 119, 125-26

(1977). The Sixth Circuit's decision conflicts with these

Supreme Court decisions, because it recognizes an

associational right which is inconsistent with incarceration.

The Sixth Circuit further ruled that inmates possess a

fundamental right to maintain intimate relationships with

family protected by the Fourteenth Amendment. Bazzetta,

286 F.3d at 317. Although some fundamental rights do

survive incarceration, see Turner v. Safley, 482 U.S. 78, 96

(1987) (the right to marry), this Court has acknowledged that

severe restrictions can be placed upon an inmate's ability to

visit with family, which suggests that the fundamental right

to maintain intimate family relationships in person does not

survive incarceration. Olim v. Wakinekona, 461 U.S. 238,

248 n.9 (1983) (separation from family by interstate prison

transfer was constitutional and within the normal limits of

custody). In addition, "[t]he denial of prison access to a

particular visitor 'is well within the terms of confinement

9

ordinarily contemplated by a prison sentence, and therefore

is not independently protected by the Due Process Clause."

Thompson, 490 U.S. at 461 (cite omitted). The Sixth

Circuit's ruling that the Due Process Clause is implicated

thus also conflicts with decisions from the Supreme Court.

It is important to resolve the apparent conflict

between the Bazzetta decision and existing Supreme Court

precedent. Corrections institutions around the country have

promulgated policies allowing for the suspension or

termination of inmate visitation with the understanding that

visitation is a privilege and it is within their discretion to

terminate visitation. If the Constitution forbids the outright

termination of visitation even where inmates have engaged

in misconduct, or if some minimal process is due prior to the

termination of visitation, then a clear rule of law is needed so

that States may ensure that inmates’ constitutional rights are

not violated.

CONCLUSION

The Petition for Writ of Certiorari should be granted.

Respectfully submitted.

Ken Salazar

Colorado Attorney General

: Alan Gilbert*

Solicitor General

Juliana M. Zolynas

Assistant Attorney General

1525 Sherman Street, Sth Floor

Denver, Colorado 80203

(303) 866-3052

*Counsel of Record

Dated: August, 2002

APPENDIX A

California Administrative Code

Title 15

Section 3315(f)(5)(1)

§ 3315(f(S\(D:

Loss of visits to be followed by non-contact visits for

violations of subsection 3323(d)(6) shall be as follows:

1. Loss of visits for 90 days, to be followed by

non-contact visits for 90 days for the first offense.

2. Loss of visits for 90 days, to be followed by

non-contact visits for 180 days for the second offense.

3. Loss of visits for 180 days, to be followed

by non-contact visits for 180 days for the third offense.

(al)

APPENDIX B

Colorado Department of Corrections

Administrative Regulation 300-01 .IV.L.10

10. Possession and/or use of illegal drugs constitutes a

serious threat to the security of all correctional facilities or

offices, requiring that all efforts be employed to preclude

entry and/or use of illegal drugs within a correctional

facility or DOC office. Accordingly, upon verified

possession or use of illegal drugs or participation in drug-

related activities, to include refusals of drug screening

procedures, forfeiture of the offender's social visiting

privileges shall, at a minimum, be imposed as follows:

a. First conviction: Six (6) months suspension

followed by three (3) months non-contact visiting, if

available.

b. Second conviction: Twelve (12) months

suspension followed by six (6) months of non-contact

visiting.

c. Third conviction: Three (3) year suspension,

after which an offender can reapply for visiting privileges.

d. Forfeiture of social visiting privileges under

these conditions will be ordered by the Administrative

Head.

e. Verified possession will be by accepted

testing procedures such as Narkit field testing and/or

urinalysis screening.

(b1)

APPENDIX C

Florida Administrative Code

Sections 33-601.731(2) and 33-601.731(3)

(2) Indefinite suspension of an inmate's visiting

privileges as a management tool by the ICT is available as

a management tool by the ICT when an inmate is found

guilty of the following offenses:

(a) Possessing any firearms, dangerous

weapons, explosives or explosive devices;

(b) Criminal activity, serious rule violations,

repeated visiting rule or procedure infractions or security

[breach]. A serious rule violation is a violation that

subjects the violator to suspension of privileges for a

minimum of two years or to revocation of visiting

privileges.

(3) Suspension of an inmate's visiting privileges as a

management tool by the ICT for the following disciplinary

offenses are authorized up to two-years when inmate is

found guilty of:

(a) Committing or engaging in sexual

misconduct (i.e. nudity, sexual acts with or without others,

willful exposure of private body parts, or soliciting sexual

acts from others).

(b) Possessing drugs or money.

(c) Possession of any article or instrument that

aids in escape or attempted escape.

(cl)

APPENDIX D

Georgia Administrative Code

Title 125

Subtitle 125-3

Chapter 125-3-4

Section 125-3-4-.01

Visiting is an inmate privilege not a nzht. As such, some

or all of an inmate's visiting privileges may be suspended

or revoked as a disciplinary measure; because the rules

governing visiting are violated; or when the security of the

institution so requires. The Warden may modify or limit

the visiting privileges if it appears that the institution

cannot accommodate the quantity of visitors entering the

institution.

(dl)

APPENDIX E

Idaho Administrative Code

Agency 06

Title 01

Chapter 01

Section 604.01

604. Visiting Inmates.

01. Visitation at the Discretion of the Facility

Head. Inmate visitation is allowed at the discretion of the

facility head, or designee. Each division and each facility

may promulgate directives or field memoranda to govern

inmate visiting. Whether a visit is contact or non-contact

shall be in the sole discretion of the facility head, subject

to Subsection 405.03.

(el)

APPENDIX F

Indiana Code

Section 11-11-3-9 Visitors; prohibition; notice to

confined person

Sec. 9. A person may be prohibited from visiting a

confined person, or the visit may be restricted to an extent

greater than allowed under section 8 of this chapter, if the

department has reasonable grounds to believe that the visit

would threaten the security of the facility or program or

the safety of the individuals. If the department prohibits

or restricts visitation between a confined person and

another person under this section, it shall notify the

confined person of that prohibition or restriction. The

notice must be in writing and include the reason for the

action, the name of the person who made the decision, and

the fact that the action may be challenged through the

grievance procedure.

(fl)

APPENDIX G

lowa Department of Corrections

Division of Institutions

Policy and Standards

Policy Numbers IN-V-122(VI) and IN-V-36

IN-V-122(VI) Termination of Visits

Visiting privileges may be denied, modified, or terminated

due to:

A. Personal behavior of the offender or visitor that is

presenting a threat to security and order.

B. The visitor and offender directly exchange any

unauthorized object or article. Purchases from the visiting

room vending machines/canteen during the visit are

authorized.

c. An authorized electronic detection device

indicating the presence of drugs or other contraband or

when before, during, or after the visit the apparent odor or

effect of alcohol or narcotic drugs is detected.

D. Visits may be denied or terminated when the visit

or future visiting is detrimental to the health and welfare

of the offender or visitor.

E. Any behavior on the part of an offender or a visitor

which is or may be disruptive to order and control or

which violates institutional rules.

F. Visitors who fail to supervise their children when

(gl)

they interfere or disrupt other visits.

G. Offenders may request reconsideration of denied

visitors following demonstrated resolution of the reasons

for denial or when approved by the

Warden/Superintendent or Regional Deputy Director.

IN-V-36

E. Authorized Sanctions:

Upon a finding of guilty by the Administrative Law Judge,

the Administrative Law Judge shall specify the class of the

violation taking into consideration any aggravating or

mitigating circumstances. Any or all of the following

sanctions listed for a given class may be imposed at the

direction of the Administrative Law Judge:

l. Class A

a) Loss of good/earned time not to

exceed three hundred sixty-five (365) days.

b) Disciplinary detention up to three

hundred sixty-five (365) days for serious or

dangerous violence or one hundred eighty (180)

days for all other offenses.

c) Loss or modification of any or all

privileges including but not limited to, canteen

privileges (not including personal hygiene items),

visiting privileges, allowance for work performed,

access to jobs and programs, not to exceed one

(g2)

APPENDIX H

Kansas Administrative Regulation

Agency 44

Article 7

Section 44-7-104

§ 44-7-104(a)(7)

An individual's visiting privileges may be suspended if the

individual violates any visitation rules while in the

institution.

(A) The principal administrator shall determine

the length of any suspension.

(B) The initial length of a suspension imposed

for violation of an institutional rule shall not exceed one

year and shall be reviewable on an annual basis thereafter

at the request of the inmate. . . .

(hl)

APPENDIX I

Maryland Division of Corrections

Alternative Disciplinary and Informal Sanctions

The following sanctions may be imposed as

sanctions for informal dispositions or after a formal

disciplinary hearing independently, in conjunction with

other alternative sanctions, or in addition to the revocation

of good conduct and/or special program credits and/or

segregation time determined by the sentencing matrix.

l. Reprimand

2. Sanitation Assignment for a specific period

not to exceed 15 days as an informal sanction or 30 days

as an alternative sanction.

3. Restitution

4+ Suspension of any of the following

privileges:

a. Radio, CD/tape player, television,

telephone, and/or commissary (excluding personal

hygiene and legal correspondence items) privileges

for a specific period not to exceed 15 days as an

informal sanction or 90 days as an alternative

sanction.

b. Package - catalog privilege for a

specified period not to exceed six months as an

informal sanction or one year as an alternative

sanction.

(il)

c. Visiting privileges, except legal and

clergy, for a specific period not less than 15 days

nor more than 60 days as an informal sanction or

not less than 60 days but not more t :an 180 days as

an alternative sanction.

d. Any other specified institutional

privilege for a specific period not to exceed 45 days

as an informal sanction or 90 days as an alternative

sanction.

5. Cell Restriction for a specific period not to

exceed 30 days as an informal sanction or 60 days as an

alternative sanc. )n.

(i2)

APPENDIX J

Minnesota Department of Corrections

Visiting Restrictions for Offenders

Directive 302.100B

Rule Violation 1* Offense 2™ Offense 3”* Offense

1. Physical assault Indefinite non-

or attempted assault contact to loss

of staff, offenders, of visiting

or visitors in the privileges

visiting a.¢a.

2. Smuggling, or 5 years non- | Indefinite non- | Indefinite

attempting to contact** contact to loss | non-contact

smuggle (drugs -- of visiting to loss of

inchuding tobacco -- privileges ** visiting

weapons, escape privileges **

materials, or other

thi catening items in

or out of the

facility). Conviction

in discipline for a

smuggling offense

required.

3. Smuggling or 6 months 3 years non- Loss of

ote > oe

attempting non-contact | contact* visiting as

other than the above

in or out of the

4. Verbal abuse or | 6 months 1 year non Indefinite

threats to staff and non-contact | contact** non-contact

o.ers in the visiting or loss of

privileges**

5. Positive UA, 9 months 18 months non- | Indefinite

refusing a UA, or non-contact contact** non-contact

altering or or loss of

attempting to alter a visiting

UA. privileges**

G1)

6. Possession of 9 months 18 months non- | Indefinite

mood altering non-contact | contact** non-contact

chemicals or or loss of

; i visiting

(including tobacco, privileges**

drugs, etc.)

anywhere in the

facility.

7. Inappropriate Termination | 6monthsnon- | Indefinite

sexual behavior of visitand3 | contact non-contact

and/or physical months non- or loss of

contact in the contact visiting

visiting area. privileges**

8. Masturbation, 1 year non- Permanent non- | Permanent

mutual contact contact or loss | non-contact

masturbation, oral of visiting or loss of

sex or sexual privileges visiting

intercourse in the privileges

9. Interfering with | 6 months 1 year non- Indefinite

searches (unclothed | non-contact contact** non-contact

body search or pat or loss of

search) in the visiting

visiting area. privileges**

10. Visiting room Termination | 3 monthsnon- | 6 months

rule violations of visit. contact non-contact

involving offenders,

visitors and/or

children.

11. Disobeying a 6 months 1 year non- Indefinite

direct order in the non-contact contact** non-contact

visiting area. or loss of

is zs

privileges

12. Unauthorized 6 months 1 year non- 1 year to

verbal or nonverbal | non-contact contact** indefinite

communication non-

through the contact**

perimeter or other

barriers.

(j2)

** Aljl sanctions 1 year in duration and longer will be

annually reviewed by the facility Visiting Committee at

the request of the offender.

(3)

APPENDIX K

Mississippi Department of Corrections

Disciplinary Procedures

S.0.P. 18-02-01

Disposition and Penalties

The Disciplinary Hearing Officer will consider the

seriousness of each incident/violation to include those

incidents/violations listed on the Intensive Supervision

Program and Earned Release Certificate and the mental

status of each offender when assessing punishment.

Time frame for 1st, 2nd, and 3rd RVR's for the same

violation is three (3) months. Custody levels should be

considered as D, C, MORB, MOB, MORA and MOA.

Disposition/Penalties, which may be imposed by a

_ Hearing Officer for a rule violation, are as follows:

Rule #1 Assaulting any person

Ist RVR:

Reclassification

Reassignment _

Loss of Earned Time (all-maximum)

Isolation - 20 days (max.)

Referral to DA

Loss of visiting privileges - 30 days (max.)

Loss of canteen privileges - 30 days (max.)

Loss of telephone privileges - 30 days

(max.)

Loss of job

(k1)

Pay medical expenses

2nd RVR:

Same

Increase loss of privileges up to 60 days

(max.)

3rd RVR:

Same

Increase loss of privileges up to: visiting,

telephone & canteen - 6 months

Rule #2....

(k2)

APPENDIX L

New Hampshire Department of Corrections

Policy and Procedure Directive

Chapter: Resident Programming

Statement Number 7.9

PPD 7.9(IV)(M)(1)

M. Conduct

l. Visitation is a privilege and not a right and

violation of rules may result in termination of the visit,

loss of the inmate's visiting privileges, banning of the

visitor from entering the institution or its grounds and/or

criminal charges as circumstances warrant... .

PPD 7.9(TV)(P)

P. Drug-Free Environment

The New Hampshire Department of Corrections promotes

a drug-free environment. A drug free environment is

essential to recovery and to a safe institution for inmates to

live in and staff to work in.

Any inmate to be found in possession of drugs, have a

positive urine test for drugs or refuse to submit to a urine

test and who have been found guilty at a disciplinary

hearing, will have immediate family visits suspended for

thirty (30) days and all others suspended for one year. At

the end of the one year suspension, they will be allowed

non-contact visits. If it can be proven that a specific

visitor brought drugs into the prison, that visitor may be

(11)

barred in accordance with COR 306.04 and prosecuted in

accordance with RSA 622:24....

(12)

APPENDIX M

Official Compilation of Codes, Rules and Regulations of

the State of New York

Title 7

Chapter IV

Part 200

Section 200.5 Termination, suspension and revocation.

§ 200.5(a)

General. Pursuant to the procedures set forth in this

section, a superintendent may deny, limit, suspend or

revoke the visitation privileges of any inmate or visitor to

visit each other if the superintendent has reasonable cause

to believe that such action is necessary to maintain the~

safety, security, and good order of the facility. . . .

(ml)

APPENDIX N

State of North Carolina

Department of Correction

Division of Prisons

Policy & Procedures

Chapter: B

Section: .0200

Title: Inmate Disciplinary Procedures

Ch. B, § .0204 Authorized Disciplinary Punishments

Presumptive punishments are established for the four (4)

classes of offenses. Unless the punishment is decreased or

suspended by the Hearing Officer per .0204(e)(4) and (5),

or decreased or suspended by the facility head or designee

per .0204(e)(6) and (f)(2), all the presumptive

waht ont ata ee sa

conviction of a disciplinary offense within the given class.

The facility head/designee may void any disciplinary

punishment. In those cases where the facility

head/designee voids a disciplinary punishment, designated

staff shall forward a memorandum documenting this

action to the Chief Disciplinary Hearing Officer who shall

ensure that it is documented in the inmate's appropriate

electronic file. The presumptive punishments are as

follows:

(a) ForaClassA ret the following presumptive

(2) Demotion from minimum to medium

custody.

(3) Loss of 40 days sentence reduction credits,

as applicable.

(4) 50 hours extra duty within the next 60 days

following the hearing or release from disciplinary

segregation. Not more than 4 hours shall be performed on

a work day and not more than 8 hours on other days.

(5) Loss of up to three (3) privileges for a

period not to exceed six months. These privileges include

but are not limited to: work release, home leaves,

community volunteer leave, canteen, telephone and

visitation.

(6) Limit weekly trust fund withdrawals to

$10.00 for a period not to exceed 6 months. . . .

(n2)

APPENDIX O

State of Ohio

Department of Rehabilitation and Correction

Section 312

Number 2

Part VI(K) Denial, Termination and Suspension of Visits

Visitors may be excluded when there is reason to believe

that their presence would be disruptive to the institution or

to the inmate's adjustment. Such exclusions may range

from denial of visiting for that day, suspension-of visiting

privileges for a specific period of time, or permanent

removal from the approved visiting list. . . .

Only the Warden or designee can suspend visitation

privileges. In addition to the visitor involved in

misconduct, the Warden may, at his/her discretion,

suspend all of the inmate's approved visitors, except

attorneys and clergy unless they are personally involved,

for any misconduct involving the inmate and a visitor.

Upon determining that visitation shall be suspended, the

Warden or designee shall provide a written notice of the

time period of suspension to the inmate, all suspended

visitors and visitation staff (DRC 2200 and 2199). In

addition, the Wardens of all other ODRC institutions shall

be notified, either through written or electronic

communication, 23 any suspension from an institution

serves as suspension from all facilities. The statement of

reasons may be limited to the extent it would jeopardize

the security of the institution or the safety of any

individual. All suspensions and/or changes in a visitor's

status shall be entered into the DOTS Screen (VISTI)

within 24 hours of the decision to suspend. . . .

(ol)

Part VI(L) Visiting Restrictions

In all instances where inmates test positive for or are in

possession of illegal drugs, or refuse to comply with a

request for a drug screen, in addition to appropriate Rules

Infraction Board disciplinary actions, the

Warden/Designee or designee may modify the inmate's

visits according to the following:

1. First Offense - All visits may be suspended for

up to two (2) months.

2. Second Subsequent Offense: All visits may be

suspended for up to six months. Progressive disciplinary

action will apply for subsequent offenses.

3. This section does not affect attorney and clergy

visits, unless that person is involved in the drug violation.

(62)

APPENDIX P

Code of Rhode Island Rules

Department of Corrections

Inmate Life

Visits

§06.070.004 Pt. ITI(E)(13)

13. Drug-Related Offenses by Inmates: An inmate's

behavior within the facility may affect his/her visiting

status. Any offense that is drug-related may result in an

inmate's visiting privileges being suspended for a period

of time:

First Offense: 30 days

Second Offense: 6 months

Third and subsequent offenses: 1 year

(pl)

APPENDIX Q

South Carolina Department of Corrections

Policy/Procedure

OP-22.09

11. Inmate Disciplinary Procedures Applicable to

Visitation:

a. Because general visitation is a privilege

granted to inmates, such visitation is subject to suspension.

Contingent upon the seriousness of the offense, any

violation of SCDC rules and regulations that an inmate is

party to will result in the inmate being disciplined in

accordance with SCDC Procedure OP-22.14(OP), "Inmate

Disciplinary Procedures."

b. Those inmates who violate SCDC rules and

regulations by committing the offense of sexual

misconduct (Indecent Exposure), regardless of where the

offense occurs, will not be allowed any visitation

privileges for one (1) year. Chronic offenders will be

disciplined in accordance with SCDC Procedure OP-

22.14(OP) "Inmate Disciplinary Procedures."

c. Those inmates found possessing drugs or

money either while in the visiting room or entering or

exiting the visiting room during shakedown will be

charged with violating Agency rules and regulations and

will be processed pursuant to SCDC Procedure OP-

22.14(OP), "Inmate Disciplinary Procedures." Inmates

found guilty of possessing such contraband in the above

circumstances will be automatically suspended from all

visiting privileges for a period of two (2) years and will be

(ql)

suspended from telephone privileges with the person(s)

they were visiting at the time of the offense provided that (3) Third Offense = Mandatory two (2)

the visitor(s) are found to be involved in the commission year Visitation suspension.

of the offense.

Under no circumstances will any variations,

d. Those inmates found with tennis shoes or waivers, or deductions by made to any

other clothing/jewelery that was exchanged/passed to them authorized suspension.

while in the visiting room or exiting the visiting room

during shakedown will be charged with violating Agency

rules and regulations and will be processed pursuant to

SCDC Procedure OP-22.14(OP), "Inmate Disciplinary

Procedures." Inmates found guilty of possessing such

items in the above circumstances will be automatically

suspended from all visiting privileges for a period of two

_(2) years.

e. In addition to the disciplinary sanctions

imposed as a result of Inmate Disciplinary Hearings,

inmates will be subjected to visitation suspension if they

are found guilty of possession or attempting to obtain any

contraband/illegal item described in Procedure 6.b.(3)

(with the exception of drugs, money, or items discussed in

Procedure 11.d.), above, and/or any unauthorized item

while on visitation, while entering or exiting the visiting

area, or immediately subsequent to visitation, and/or any

other infraction related specifically to visitation pursuant

to the following schedule:

(1) First Offense = Mandatory three (3)

month visitation suspension.

(2) Second Offense = Mandatory six (6)

month visitation suspension.

(q2) (q3)

APPENDIX R

Tennessee Department of Correction

Administrative Policies and Procedures

Index #507.01

507.01(VI\F)(4)

Other than as specified in Policy #502.01 (or #9502.01 for

privately managed facilities), only the warden can suspend

visitation privileges. In addition to the visitor involved in

misconduct, the warden may suspend all of the inmate's

approved visitors, except attorneys and ministers unless

they are personally involved, and the inmate's immediate

family who were not involved in the misconduct, for any

misconduct involving the inmate and a visitor. Upon ~

determining that visitation shall be suspended, the warden

shall provide a written notice to the inmate, visitor, and

visitation staff. The statement of reasons may be limited

to the extent it would jeopardize the security of the

institution or the safety of any individual. Visiting

privileges may be suspended for up to six (6) months for

any reason, including, but not limited to, the following:

a. Upon reviewing a denial/termination report,

the warden determines suspension is warranted

b. The visitor(s) and/or inmate have become

intoxicated during the visit

c. Visitor repeatedly violated visiting rules

d. Visitor continually failed to control children

(rl)

e. Visitor exhibits other behavior and action

which the warden in his/her discretion decides

could jeopardize the security of the institution

f. Any visitor refusing a search of any type

may be permanently restricted from visiting at any

TDOC facility

g. Inappropriate sexual contact.

(12)

APPENDIX: S

CODE OF FEDERAL REGULATIONS

TITLE 28--JUDICIAL ADMINISTRATION

CHAPTER V--BUREAU OF PRISONS, DEPARTMENT

OF JUSTICE

SUBCHAPTER C--INSTITUTIONAL MANAGEMENT

PART 540--CONTACT WITH PERSONS IN THE

COMMUNITY

SUBPART D--VISITING REGULATIONS

Current through June 4, 2002; 67 FR 38426

§ 540.52 Penalty for violation of visiting regulations.

Any act or effort to violate the visiting guidelines

of an institution may result in disciplinary action against

the inmate, which may include the denial of future visits,

possibly over an extended period of time. Moreover,

criminal prosecution may be initiated against the visitor,

the inmate, or both, in the case of criminal violations.

(sl)