Amicus Curiae Brief — Overton v. Bazzetta

Supreme Court brief2003

Ask Donna

What actually matters in this document.

Text

JAN

No. 02-94

Tet w

In the Supreme Court of the United States

WILLIAM OVERTON, DIRECTOR OF MICHIGAN

DEPARTMENT OF CORRECTIONS, ET AL., PETITIONERS

MICHELLE BAZZETTA, ET AL.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONERS

THEODORE B. OLSON

Solicitor General

Counsel of Record

ROBERT D. MCCALLUM, JR.

Assistant Attorney General

PAUL D. CLEMENT

Deputy Solicitor General

JEFFREY A. LAMKEN

Assistant to the Solicitor General

ROBERT M. LOEB

TEAL E. LUTHY

Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTIONS PRESENTED

1. Whether prisoners have a right to non-contact visita-

tion protected by the First and Fourteenth Amendments.

2. Whether the restrictions on non-contar. prison visita-

tion imposed by the Michigan Department of Corrections are

reasonably related to legitimate penological interests.

3. Whether the restrictions on non-contact prison visita-

tion imposed by the Michigan Department of Corrections

constitute cruel and unusual punishment in violation of the

Eighth Amendment.

(I)

TABLE OF CONTENTS

Interest of the United States

I. Michigan's restrictions on social visits are not

inconsistent with the First Amendment or

Substantive Due Process

A. Inmates have no First Amendment or

Substantive Due Process right to in-person

social visits *

B. The visitation limits for minors and

former prisoners do not impinge on any

right of visitation the Constitution may

confer 2 —

II. Michigan's regulations are reasonably related to

legitimate penological interests

A. Withdrawing visiting privileges for two

major drug infractions in prison serves

a valid penological interest

| B. The limits on visits by minors and

former prisoners serve legitimate peno-

logical interests

III. Michigan’s regulations do not violate the

Eighth Amendment

Conclusion

Appendix

TABLE OF AUTHORITIES

Cases:

Alden v. Maine, 527 U.S. 706 (1999)

Barry v. Whalen, 796 F. Supp. 885 (E.D. Va.

1992)

(IID)

F 8

—

Cases Continued: Page

Bell v. Wolfish, 441 US. 520 (1979) 8, 21, 22, 24 — *

Block v. Rutherford, 468 U.S. 576 (1984) 22, 24 Peterson v. Shanks, 149 F.3d 1140 (10th Cir.

Estelle v. Gamble, 429 U.S. 97 (1976) 29 1998) 21

Farmer v. Brennan, 511 U.S. 825 (1994) 8, 29 Price v. Johnston, 334 U.S. 266 (1948) x

Hewitt v. Helms, 459 U.S. 460 (1983) 15, 30 Prince v. Massachusetts, 321 U.S. 158 (1944) ............... 26, 27

Hudson v. McMillian, 503 U.S. 1 (1992) 29 Printz v. United States, 521 U.S. 898 (1997) 15

Hudson v. Palmer, 468 U.S. 517 (1984) 8,9 Procunier v. Martinez, 416 U.S. 396 (1974) 2

Hutto v. Finney, 437 U.S. 678 (1978) 29 Rhodes v. Chapman, 452 US. 337 (1981) 29

Jackson v. Meachum, 699 F 2d 578 (ist Cir. Rickman v. Avaniti, 854 F.2d 327 (9th Cir. 1988) 22

1983) 30 Roberts v. United States Jaycees, 468 U.S. 609

Johnson v. Avery, 393 U.S. 483 (1969) 8 (1984) 9, 10, 17

Jones v. North Carolina Prisoners Labor Union, Sandin v. Conner, 515 U.S. 472 (1995) 24

433 U.S. 119 (1977) 10, 11 Santosky v. Kramer, 455 U.S. 745 (1982) 18

Kentucky Dep't of Corrs. v. Thompson, Shaw v. Murphy, 532 U.S. 223 (2001) 9, 20

490 U.S. 454 (1989) 11, 16 Smith v. Coughlin, 748 F.2d 783 (ad Cir. 1984) 14

Lanza v. New York, 370 U.S. 139 (1962) 13 Thornburgh v. Abbott, 490 U.S. 401 (1989) ........... 8, 20, 21, 23

Long Term Admin. Segregation, In re, 174 F 3d Troxel v. Granville, 530 U.S. 57 (2000) 10

464 (4th Cir.), cert. denied, 528 U.S. 874 (19997 30 Turner v. Safley, 482 U.S. 78 (1987) 5, 7, 8,

Lyng v. Automobile Workers, 485 U.S. 360 (1988) — 9, 10 9, 11. 20

M.L.B. v. S. LJ, 519 U.S. 102 (1996) 18 United States v. Friedman, 30 F 3d 111

Mayo v. Lane, 867 F 2d 374 (7th Cir. 1989) 11 2d Cir. 2002) 13

McCray v. Sullivan, 509 F.2d 1332 (5th Cir.), United States v. Harrelson, 754 F.2d 1153 (5th Cir.),

cert. denied, 423 U.S. 859 (1975) 11 cert. denied, 474 U.S. 908 and 1034 (1985) 13

Meachum v. Fano, 427 U.S. 215 (1976) 16 United States v. Sababu, 891 F 2d 1308 (7th Cir.

Meyer v. Nebraska, 262 U.S. 390 (1923) 10 $588) *

Michael H. v. Gerald D., 491 U.S. 110 (19899 15 United States v. Van Poyck, 77 F.3d 285 (9th Cir.),

Montanye v. Haymes, 427 U.S. 236 (1976) 16 cert. denied, 519 U.S. 912 (1996) 13

Moore v. City of East Cleveland, 431 U.S. 494 Whitley v. Albers, 475 U.S. 312 (1986) 28

(1977) 10 Wilson v. Seiter, 501 U.S. 294 (1991) 29

Morrissey v. Brewer, 408 U.S. 471 (1972) ll Wolff v. McDonnell, 418 U.S. 539 (1974) ~

O’Lone v. Estate of Shabazz, 482 U.S. 342 (1987) ............ 8, 9, Constitution, statutes and regulations:

21, 28

Olim v. Wakinekona, 461 U.S. 238 (1983) 15, 20 9 — 4.6,6,8,9,10,11

Pell v. Procunier, 417 U.S. 817 (1983) passim Amend. VIII 4.6.8. 28. 30

Amend. XIV 4, 5, 9, 30

Due Process Clause 9, 15

— ele. a

18 U.S.C. 3624(f) 12

42 U.S.C. 1983 4

Mich. Comp. Laws Ann. § 791.268a (West Supp.

2002) 4,17

28 C. F. R.:

Section 540.40 2, 3, 6

Sections 540.40-540.51 1

Section 540.43 3

Sections 540.44-540.51 3

Section 540.50(c) 3

Section 540.52 3

Section 541.12 3

R. 791.3315 4, 23, la

R. 791.5501 4, 4a

R. 791.5515 5a

R. 791.6607(2) 11, 13, 6a

R. 791.6607(12) 4

R. 791.6609 6a

R. 791.6609(2) 3, 5, 13, 7a

R. 791.6609(2)(b) 3, 17, 26, 7a

R. 791.6609(3) a 19, 8a

R. 791.6680905) 4, 18, 26, 8a

R. 791.6609(6)(a) 4, 8a

R. 791.6609(7) 4, 27, 9a

R. 791.6609(7)(a) 4, 14, 18, 9a

R. 791.6609(7)(b) 4, 9a

R. 791.6609(8) 4, 11, 13, 27, 9a

R. 791.6609(9) 3, 9a

R. 791.6609(11) 11, 10a

R. 791.6609(11)(d) 4, 10a

VII

Miscellaneous: Page

H. Allen & C. Simonsen, Corrections in America

(9th ed. 2001) 15

BOP Program Statement 5270.07, Inmate Discipline

and Special Housing Units (2002) 8

G. de Beaumont & A. de Tocqueville, On the Peniten-

tiary System in the United States (reprint 1979)

(1833) 14

L. Friedman, Crime and Punishment in American

History (1993) 2,14

R. McGowen, The Well-Ordered Prison: England

1780-1865, in The Oxford History of the Prison

(N. Morris & D. Rothman eds. 1995) 14

Michigan Dep’t of Corrections, Policy Directive 03.03.15 ‘

(2002)

Philanthropy: Separate Spheres (last modified Dec. 4,

2001) <http//www.warwick.ac.uk/fac/arts/History/

teaching/courses/gender/lect5.htm> 15

R. Pound, Criminal Justice in America (reprint 1972) .

(1930)

N. Rafter & D. Stanley, Prisons in America

(1999) 1-2, 14

D. Rothman, The Discovery of the Asylum

(1971) 1, 2, 14, 15

Rules and Regulations for the Government and

Discipline of the United States Penal and Correctional

Institutions (1936) 17

In the Supreme Court of the United States

No. 02-94

WILLIAM OVERTON, DIRECTOR OF MICHIGAN

DEPARTMENT OF CORRECTIONS, ET AL., PETITIONERS

MICHELLE BAZ ZETTA, ET AL.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONERS

INTEREST OF THE UNITED STATES

This case concerns whether an inmate has a constitutional

right to visitation and, if so, the limits prison officials can

place on that right. The United States has a substantial

interest in the resolution of that issue. The Federal Bureau

of Prisons (BOP), which currently supervises more than

164,000 federal inmates, has regulations that afford wardens

substantial authority to restrict federal prisoners’ ability to

receive visits. See 28 C.F.R. 540.40-540.51. A decision rec-

ognizing a constitutional right to non-contact visits when

contact visits are deemed inappropriate could also have a

significant fiscal impact on the United States and require

modification of federal penal institutions, some of which do

not have facilities for non-contact visits.

STATEMENT

1. Early American criminal codes (like their English an-

tecedents) often provided for punishments other than incar-

ceration, relying on the infliction of pain (e. g., whippings),

shaming techniques (e.g., the stocks or public cages), banish-

ment, and capital punishment. See D. Rothman, The Dis-

covery of the Asylum 48 (1971); N. Rafter & D. Stanley,

(1)

Prisons in America 2-3 (1999); R. Pound, Criminal Justice

in America 103, 111 (1930) (punishment in the ages of Coke

and Blackstone); L. Friedman, Crime and Punishment in

American History 36-41, 48 (1993). Early in the Nation’s

history, however, incarceration became the principal means

of punishment. In 1790, for example, the City of Philadelphia

renovated its Walnut Street Jail to include individual cells in

which serious offenders (it was hoped) might “reflect on

their sins, discover their inner light, repent, and thus emerge

reformed.” Rafter & Stanley, supra, at 3. By the early 19th

century, many of the original States had constructed “peni-

tentiaries” based on the same principle, and by the mid-19th

century, incarceration in such institutions was the primary

means of criminal punishment. Rothman, supra, at 80-81.

Many early penitentiaries were designed to separate pris-

oners from the outside world. Accordingly, visitation was of-

ten limited severely or precluded entirely. The idea was to

“cut their inmates off” from outside influences, “isolating

them under circumstances in which they could be taught

good habits * * * and * * * reformed.” Rafter & Stanley,

supra, at 5. Physical separation from those outside the

facility thus was an integral part of the punishment and the

rehabilitation effort, an inherent incident of inmate status.

See Rothman, supra, at 94.

Although modern penal institutions still physically sepa-

rate inmates from the outside world, they generally permit

inmates to receive limited visits as a privilege and as an aid

to rehabilitation. The Federal Bureau of Prisons (BOP), for

example, encourages family visits because they can promote

positive relationships that improve prisoner morale, streng-

then family ties and parental responsibility, and facilitate the

transition to freedom. 28 C.F.R. 540.40. Cf. Procunier v.

Martinez, 416 U.S. 396, 412 & n.13 (1974) (noting BOP’s view

that community contact can be “a valuable therapeutic tool

in the overall correction process”). At the same time, how-

ever, such visits create dangers—to guards, to visitors, and

to prison order and discipline. Visits can be used to smuggle

contraband, such as drugs. Visits can result in disorderly

behavior by prisoners. And visits introduce untrained civil-

ians into an institution occupied primarily by convicted

criminals whose behavior is often difficult to control. For

that reason, BOP regulations afford wardens substantial dis-

cretion to restrict social visits. Wardens may limit visits for

the entire institution, 28 C.F.R. 540.40; restrict the number

of persons who may visit an inmate at one time, 28 C. F. R.

540.43; and prohibit certain individuals from visiting an insti-

tution, 28 C.F.R. 540.44-540.51. In addition, BOP officials

may restrict visits for inmates who infringe visiting rules or

threaten the orderliness or security of the visiting room, 28

C. F. R. 540.50(c) and 540.52, or are found guilty of a prohib-

ited act in a prison disciplinary proceeding, 28 C. F. R. 541.12,

Table 4, 2(g); BOP Program Statement 5270.07, Inmate

Discipline and Special Housing Units, Ch. 4, at 20 (2002).

In the federal system, most visits are “contact visits.” Dur-

ing those visits (which often take place in a large, common

visiting room), prisoners and their visitors are permitted

some physical contact. There are, however, circumstances in

which physical contact is proscribed. Such “non-contact”

visits typically take place through a s, -.ial barrier between

the visitor and the prisoner, and close supervision is often re-

quired. The BOP has non-contact visiting facilities only in a

limited number of federal institutions, primarily pre-trial

detention centers and high security institutions.

2. This case concerns a constitutional challenge to the

State of Michigan’s regulations limiting inmates’ privilege to

receive social visits. As a general matter, Michigan allows

inmates to receive social visits from any member of their

immediate family, plus ten other individuals designated by

the inmate. Mich. Admin. Code R. 791.6609(2), (9). Because

of past difficulties, however, the rules include a number of

restrictions on visitation by minors. For example, prisoners

cannot receive visits from minors other than the prisoner’s

child, stepchild, or grandchild, id. R. 791.6609(2)(b), and all

minors must be accompanied by an adult family member or

legal guardian, id. R. 791.6609(5).! Visits by a prisoner’s

minor child are also barred if the prisoner’s parental rights

have been terminated. Id. R. 791.6609(6)(a).

In addition, the rules preclude visits from former pris-

oners, Mich. Admin. Code R. 791.6609(7), except clergy and

lawyers, id. R. 791.6609(8), and members of the prisoner’s

immediate family with the warden’s prior approval, id. R.

791.6609(7)(a) and (b). Finally, Michigan will withdraw visit-

ing privileges for at least two years for any prisoner found

guilty of two or more major misconducts in the prison

discipline system for substance abuse. Id. R. 791.6609(11)(d).

That restriction cannot be imposed unti! after the inmate has

an opportunity to dispute the major misconduct charge at a

hearing under Mich. Admin. Code R. 791.3315. See Mich.

Admin. Code R. 791.5501; Mich. Dep’t of Corrections Policy

Directive 03.03.15, § II. A prisoner who loses visiting

privileges can apply for their reinstatement after two years.

Mich. Admin. Code R. 791.6607(12).

In 1995, respondents (representatives of a class of prison-

ers in Michigan state prisons and their prospective visitors)

filed this suit under 42 U.S.C. 1983 to challenge those limits.

Respondents contend that the limits deprive them of a right

to visits established by the First and Fourteenth Amendments

of the United States Constitution and subject them to cruel

and unusual punishment in violation of the Eighth Amend-

ment. Based on petitioners’ representation that the regula-

tions applied only to contact visits, the district court granted

summary judgment in favor of petitioners, Pet. App. 159a,

and the Sixth Circuit affirmed, id. at 126a.

On remand, respondents argued that petitioners applied

the regulations to non-contact visits as well, and challenged

the regulations as applied to such visits. After a bench trial,

the district court ruled in favor of respondents, holding that

prisoners have a right to receive visits under the First and

The Michigan legislature amended this rule in May 2001 to permit

visits by minor siblings. See Mich. Comp. Laws Ann. § 791.268 (West

Supp. 2002); Pet. 8 & n.5.

Fourteenth Amendments. Pet. App. 23a. The court also

held that Michigan’s restrictions violated the Constitution as

applied to non-contact visits because they were not sup-

ported by a valid penological objective as required by

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

3. The Sixth Circuit affirmed. The court first held “that

prisoners do retain a limited right to * * * non-contact

visits with intimate associates * * * even while incarcer-

ated.” Pet. App. 9a. The court then held that Michigan’s

restrictions on such visits were not reasonably related to a

legitimate penological objective. Id. at 12a-20a.

Invalidating Michigan’s prohibition on visits by minors

other than the convict’s children or grandchildren, Mich.

Admin. Code R. 791.6609(2), the court held that the prohibi-

tion could not be justified by a desire to relieve overcrowd-

ing in visiting areas, since it was not calibrated to reduce

visits to a particular number. Pet. App. 13a. The court also

rejected Michigan’s concern that the rule was necessary to

prevent smuggling and protect visiting children from possi-

ble assault. Ibid. The court faulted Michigan for failing to

offer “data or expert testimony to support these claims,” and

asserted that “non-contact visits” would “prevent both”

potential abuses. /bid. For largely the same reasons, the

court invalidated Michigan’s ban on visits by children with

respect to whom a prisoner’s parental rights have been

terminated. Michigan’s “general desire to reduce the

number of visitors and protect children,” the court held, is

insufficient to “block visits from an inmate’s child, when the

inmate has voluntarily surrendered parental rights in the

child’s best interests.” Id. at 15a.

The court also rejected Michigan’s requirement that visit-

ing children be accompanied by an immediate family member

or legal guardian. Pet. App. 16a-17a. That policy, the court

held, unduly interferes with family relationships, because

many parents and legal guardians may find it difficult to

accompany their children personally. /d. at 17a. Michigan’s

former policy of requiring children to be accompanied by an

adult with “a valid power of attorney,” the court held, was

sufficient to prevent unauthorized visits and ensure child

safety. Id. at 16a. The court also rejected Michigan’s ban on

visits by former prisoners other than immediate family mem-

bers. The State, the court held, should screen out potential

trouble-makers individually. Jd. at 15a-16a.

Finally, the court of appeals held that Michigan’s regula-

tion withdrawing visitation rights for prisoners found guilty

of two major, in-prison substance abuse infractions violates

the First and Eighth Amendments. Pet. App. 18a-22a. The

court faulted the ban because, in the court’s view, it had

been imposed “capriciously and according to no reviewable

standards.” Jd. at 19a. The court also held that, because

petitioners presented “only anecdotal evidence to show that

the permanent ban on visitors has deterred drug abuse in

the prison population,” the ban had no reasonable relation-

ship to a legitimate penological interest. Jd. at 20a. Pris-

oners, the court further stated, lack means other than visits

for maintaining family and friendship ties. [Phone calls

cannot substitute for seeing a loved one, nor does the liberty

to send and receive letters mean much to functionally

illiterate prisoners.” Ibid. The court opined that prison

officials “have at their disposal many other constitutional

means of punishing prisoners for violating drug rules.” Ibid.

Deeming the punitive visitation ban “an extremely harsh

measure,” the court of appeals also held that it violates the

Eighth Amendment. Pet. App. 21a. The ban, the court stated,

deprivles] an inmate of all visitors for a period stretching

indefinitely,” removes “the single most important factor in sta-

bilizing a prisoner’s mental health,” “goes to the essence of

what it means to be human,” destroys family bonds, and goes

far beyond what any other prison system imposes. Ibid.

SUMMARY OF ARGUMENT

The Federal Bureau of Prisons’ policies generally encour-

age family visitation. 28 C.F.R. 540.40. BOP regulations

recognize that appropriate social visits can promote positive

relationships that improve prisoner morale by strengthening

family ties and parental responsibility and facilitating the

transition to freedom. Ibid. The receipt of visits in prison,

however, is a privilege and an aid to rehabilitation, not the

accommodation of a pre-existing constitutional right. Prison

officials must have authority to control visits, including

authority to eliminate all visits for some prisoners, to deter

criminal activity and maintain prison discipline and security.

I. A. The right the court of appeals recognized here—a

right of inmates to receive social visits in prison—is funda-

mentally inconsistent with an inmate’s status as a lawfully

incarcerated prisoner. Incarceration as a means of punish-

ment necessarily involves forfeiture of the liberties requisite

for receiving visits, including the right to live in a particular

location, to move freely in the community, to communicate

privately, and to choose with whom one will associate. More-

over, there is no historical foundation for a right to receive

visitors while in prison.

B. If prisoners do retain some modest right to receive

visitors, it is limited to visits from close family members.

Because Michigan’s limits on visits by minors and former

prisoners permit such visits, they do not impinge on any

constitutional right.

Il. Even if inmates have a limited constitutional right to

in-person visits with those outside the institution, Michigan’s

restrictions on the exercise of that right are constitutional

because they are justified by a legitimate penological inter-

est. Turner v. Safley, 482 U.S. 78 (1987). Prison officials are

entitled to make categorical judgments regarding who should

be permitted to visit their institutions, and to apply those

categories to contact and non-contact visits alike. Michigan’s

stated purpose of limiting the total number of people, and

more specifically of limiting the number of children, who

visit its institutions is a reasonable measure to ensure that

visiting rooms and waiting rooms are properly supervised, to

keep children safe from the many hazards inherent in the

prison environment, and to prevent the flow of dangerous

contraband (narcotics and weapons) into prison. Likewise,

Michigan’s purpose of deterring prisoners from using illegal

substances while in prison helps ensure the safety of inmates

and officers and preserves order. Moreover, prisoners are

permitted to associate with family members through letters

and phone calls, so they have alternative means of exercising

any residual associational rights.

III. Michigan’s regulations do not violate the Eighth

Amendment. Conditions of confinement are consistent with

the Eighth Amendment unless they involve the deliberate

imposition of pain or deliberate indifference to it. The

Eighth Amendment requires prison officials to “provide hu-

mane conditions of confinement,” “ensure that inmates re-

ceive adequate food, clothing, shelter, and medical care,” and

take “reasonable measures to guarantee the safety of the

inmates.” Farmer v. Brennan, 511 U.S. 825, 832 (1994).

Michigan provides those basic necessities.

ARGUMENT

I. MICHIGAN’S RESTRICTIONS ON SOCIAL VISITS

ARE NOT INCONSISTENT WITH THE FIRST

AMENDMENT OR SUBSTANTIVE DUE PROCESS

Although “[p]rison walls do not form a barrier separating

prison inmates from the protections of the Constitution,”

Turner v. Safley, 482 U.S. 78, 84 (1987); see Bell v. Wolfish,

441 U.S. 520, 545 (1979), “[ljawful incarceration brings about

the necessary withdrawal or limitation of many privileges

and rights,” Pell v. Procunier, 417 U.S. 817, 822 (1974)

(quoting Price v. Johnston, 334 U.S. 266, 285 (1948)); O’Lone

v. Estate of Shabazz, 482 U.S. 342, 348 (1987); Wolff v.

McDonnell, 418 U.S. 539, 555 (1974). IIlmprisonment car-

ries with it the * * * loss of many significant rights.” Hud-

son v. Palmer, 468 U.S. 517, 524 (1984).

There can be no dispute that inmates retain many of the

protections of the First Amendment, such as rights to free

expression, Thornburgh v. Abbott, 490 U.S. 401, 407 (1989);

to petition the government for the redress of grievances,

Johnson v. Avery, 393 U.S. 483 (1969); and to free exercise of

religion, O’Lone, 482 U.S. at 348. But a prisoner retains only

those rights “that are not inconsistent with his status as a

prisoner or with the legitimate penological objectives of the

corrections system.” Pell, 417 U.S. at 822; Turner, 482 U.S.

at 95. See, e.g., Hudson, 468 U.S. at 530 (“prisoners have no

legitimate expectation of privacy and * * * the Fourth

Amendment’s prohibition on unreasonable searches does not

apply in prison cells”). Even “[i)n the First Amendment con-

text * * * some rights are simply inconsistent with the sta-

tus of a prisoner.” Shaw v. Murphy, 532 U.S. 223, 229 (2001).

In this case, the court of appeals held that prisoners retain

a constitutional right to receive in-person social visits from

unrelated individuals and minor nieces and nephews. That

was error. First, the claimed right to in-person social visits

with non-prisoners is inconsistent with the inmate’s “status

as a prisoner.” The very essence of incarceration is separa-

tion from the outside world; prisoners do not have a First

Amendment or Due Process right to in-person social associa-

tion during lawful incarceration. Second, even if a limited

right to prison visitation were recognized, Michigan’s regula-

tions would not transgress that right. Third, to the extent

Michigan’s regulations intrude on such a right, that intrusion

is reasonably related to legitimate penological objectives.

A. Inmates Have No First Amendment Or Substantive

Due Process Right To In-Person Social Visits

Outside the prison context, private citizens enjoy a right

of intimate association. See Roberts v. United States Jay-

cees, 468 U.S. 609, 617-618 (1984) (describing a “right to en-

ter into and maintain certain intimate human relationships

that] must be secured against undue intrusion by the State

because of the role of such relationships in safeguarding the

individual freedom that is central to our constitutional

scheme”). The right has been variously described as a com-

ponent of the First Amendment, see, e.g., Lyng v. Automo-

bile Workers, 485 U.S. 360, 365-366 (1988), and as a fun-

damental liberty protected by the Due Process Clause of the

Fourteenth Amendment, see Jaycees, 468 U.S. at 618 (“free-

dom of [intimate] association receives protection as a funda-

mental element of personal liberty”). Whatever its origins,

the right protects only “certain kinds of highly personal

relationships”—“family relationships [that] involve deep

attachments and commitments to the necessarily few other

individuals with whom one shares not only a special commu-

nity of thoughts, experiences, and beliefs but also distinc-

tively personal aspects of one’s life.” Jaycees, 468 U.S. at

618, 619-620. The Court thus has invoked that right in up-

holding the right of closely related relatives to live together,

Moore v. City of East Cleveland, 431 U.S. 494, 503-504 (1977)

(plurality opinion) (cohabitation of grandparents with grand-

children); the right of a family to dine together, Lyng, 485

U.S. at 365-366; and the right of parents “to establish a home

and bring up children,” Meyer v. Nebraska, 262 U.S. 390, 399

(1923). See Troxel v. Granville, 530 U.S. 57, 66 (2000) (plu-

rality opinion) (recognizing that parents have a right to

“make decisions concerning the care, custody, and control of

their children”); id. at 77 (Souter, J., concurring) (similar).

1. Whatever the scope of that right outside prison walls,

however, it does not survive conviction and incarceration.

An inmate cannot challenge confinement itself as unconsti-

tutional because it prevents him from living with or dining

with close family members, or establishing a home and rais-

ing children, even though those rights are protected outside

prison. The continued enjoyment of such in-person asso-

ciational rights is flatly “inconsistent with” an inmate’s “sta-

tus as a prisoner.” See Pell, 417 U.S. at 823 (inmate cannot

challenge “refusal by corrections authorities to permit [him]

temporarily to leave in order to communicate with persons

outside”). The claimed right to in-prison social visits at issue

here is equally inconsistent with prisoner status. As this

Court has recognized: “The concept of incarceration itself

entails a restriction on the freedom of inmates to associate

with those outside of the penal institution.” Jones v. North

Carolina Prisoners’ Labor Union, 433 U.S. 119, 126 (1977).

“Perhaps the most obvious of the First Amendment rights

that are necessarily curtailed by confinement are those asso-

ciational rights that the First Amendment protects outside

of prison walls.“ Id. at 125-126; see id. at 132. The assertion

of a right to gather with associates is fundamentally at odds

with incarceration.”

This Court’s analysis in Turner confirms that result. In

Turner, the Court held that the right to marry is not incon-

sistent with incarceration, because Imlany important attrib-

utes of marriage remain * * * after taking into account the

limitations imposed by prison life.” 482 U.S. at 95. Those

attributes were the expression of emotional support and pub-

lic commitment, the spiritual significance of the union, the

possibility that the incarcerated spouse will be released and

the marriage fully consummated, and the status of marriage

as a precondition to the receipt of government benefits and

other, less tangible benefits. See id. at 95-96. Here, in con-

trast, no meaningful attributes of the asserted right—a right

to receive visitors at the place of incarceration. survive in-

carceration itself. The claimed right is in derogation of in-

carceration, which by design intrudes on the freedom “to be

with family and friends and to form the other enduring at-

tachments of normal life.“ Morrissey v. Brewer, 408 U.S.

471, 482 (1972); see also Kentucky Dep't of Corrs. v. Thomp-

son, 490 U.S. 454, 460 (1989) (“nor can it seriously be con-

tended, in light of our prior cases,] that an inmate’s interest

in unfettered visitation is guaranteed directly by the Due Pro-

cess Clause”); Mayo v. Lane, 867 F.2d 374, 375 (7th Cir.

1989) (“Prison necessarily disrupts the normal pattern of fa-

milial association.”); McCray v. Sullivan, 509 F.2d 1332, 1334

(5th Cir.) (“Visitation privileges are a matter subject to the

discretion of prison officials.”), cert. denied, 423 U.S. 859

(1975). Incarceration extinguishes the right to move about

freely, to choose to live with family, and to dictate one’s own

schedule—all essential components of the right to visit with

family outside of prison. It likewise terminates the right to

in-person association with individuals of one’s choosing.

2 Visits by attorneys and spiritual advisors are not implicated here,

because none of the rules at issue appears to exclude attorneys or clergy.

See Mich. Admin. Code R. 791.6607(2), R. 791.6609(8) and (11).

Prisoners, of course, may wish to maintain close emotional

ties with their families despite incarceration. But Michigan

is not constitutionally required to permit prisoners to main-

tain those ties through in-person visits, particularly given

the availability of other mechanisms. As this Court ex-

plained in Pell, limits on visitation “cannot be considered in

isolation but must be viewed in the light of the alternative

means of communication * * * with persons outside the

prison.” 417 U.S. at 823. Thus, while there may be “particu-

lar qualities inherent in * * * face-to-face * * * discus-

sion,” one reasonable alternative in the prison context is “com-

munication by mail.” Jd. at 823-824. Consequently, as in

Pell, here “it is clear that the medium of written correspon-

dence affords inmates an open and substantially unimpeded

channel for communication with persons outside the prison.”

Id. at 824. Respondents, moreover, are permitted to com-

municate with those outside the prison by telephone, 9/19/00

Tr. 110, a means of communication not considered in Pell.

The court of appeals rejected those alternatives because

many_inmates are illiterate, and because phone calls are “mon-

itored by department staff and” (according to that court)

“terminated after a few minutes.” Pet. App. 14a. But that

reasoning cannot be reconciled with Pell. Illiterate inmates

may still place phone calls and have others write on their

behalf. For that reason, this Court rejected an identical

argument in Pell: “(There is no suggestion that the cor-

rections officials would not permit [illiterate] inmates to seek

the aid of fellow inmates,” of prison officials, or “of family and

friends who visit them to commit their thoughts to writing.”

417 U.S. at 828. “Merely because such inmates may need

assistance to utilize one of the alternative channels [of

communication] does not make it an ineffective alternative,

unless, of course, the State prohibits the inmate from re-

ceiving such assistance.” Ibid. The court of appeals gave no

reason for ignoring Pell’s analysis here.”

The BOP attempts to address illiteracy directly. See 18 U.S.C.

3624(f) (mandatory literacy program for inmates).

The court of appeals’ conclusion that phone calls are an in-

adequate alternative, because calls may be monitored, is also

unsound. The propriety of such monitoring is not at issue

here; inmates have no reasonable expectation of privacy in

verbal social communications made from or in prison;* and

in-person social visits may be monitored as well. The court

of appeals’ privacy concerns are also difficult to reconcile

with Pell, because illiterate inmates who must rely on others

to put their thoughts into writing also sacrifice some privacy.

Finally, the court of appeals’ assertion that phone calls are

“terminated after a few minutes,” Pet. App. 14a, appears un-

founded. The footnote cited by that court indicates only

that, “depending on the security level,” there are “usually

time limits and halts to the phone call.“ Id. at 33a n.2.

Inmates, in any event, have no right to unlimited phone

privileges, any more than they have a right to unlimited time

for any in-prison visits that are permitted or the use of other

The court of appeals also ignored that, as in Pell, the

restriction on visits by minors and former prisoners at issue

here “does not seal the inmate off from personal contact with

those outside the prison.” 417 U.S. at 824. Setting aside (for

the moment) the withdrawal of visiting privileges for multi-

ple drug offenses, Michigan permits prisoners to receive

visits from all adult immediate relatives and others on their

approved visitor lists, Mich. Admin. Code R. 791.6609(2) and

(7)(a), as well as clergy and attorneys, id. R. 791.6607(2), R.

791.6609(8). Consequently, like the inmates in Pell, the pris-

oners in this case have a virtually “unrestricted opportunity

to communicate” with those who cannot visit “through their

4 Lanza v. New York, 370 U.S. 139, 143 (1962) (a prison shares “none

of the attributes of privacy of a home, an automobile, an office, or 2 hotel

room” because, lin prison, official surveillance has traditionally been the

order of the day”); United States v. Harrelson, 754 F.2d 1153, 1169-1170

(5th Cir.), cert. denied, 414 U.S. 908 (1985); United States v. Friedman,

300 F.3d 111, 123 (2d Cir. 2002); United States v. Sababu, 891 F.2d 1308,

1329 (7th Cir. 1989); United States v. Van Poyck, 77 F.3d 285, 290-291 (9th

Cir.), cert. denied, 519 U.S. 912 (1996).

families, friends, clergy, or attorneys who are permitted to

visit.” 417 U.S. at 825. See Smith v. Coughlin, 748 F. 2d 783,

788 (2d Cir. 1984) (regulations prohibiting visits with un-

related individuals constitutional in light of alternative

means of communication).

2. The claim that prisoners retain a constitutional right

to in-person visits, moreover, is inconsistent with history

and the realities of modern prison administration. Early

penitentiaries, which first developed in this country at the

beginning of the 19th century, were intended to separate

prisoners from the outside world. Prisoners in such institu-

tions were generally not permitted social visitors. To the

contrary, the institutions sought to “cut their inmates off

from the free world, isolating them under circumstances in

which they could be taught good habits, disciplined when

necessary, and, it was hoped, reformed.” N. Rafter & D.

Stanley, Prisons in America 5 (1999). “Reformation would

result (or so the thinking went) if the convicts were for-

bidden to talk with one another, [and] visited by no one but

the occasional preacher.” Ibid. The idea was to “remove the

deviant from his (weak and defective) family, his evil

community, and put him in ‘an artificially created and there-

fore corruption-free environment. L. Friedman, Crime

and Punishment in American History 77 (1993). See D.

Rothman, The Discovery of the Asylum 94-96 (1971) (such

institutions “attempted to isolate the prisoner both from the

general community and from his fellow inmates”); id. at 71

(similar); R. MeGowen, The Well-Ordered Prison: England

1780-1865, in The Oxford History of the Prison 80, 108 (N.

Morris & D. Rothman eds. 1995) (reporting that, in English

penitentiaries between 1780 and 1865, prisoners were per-

mitted almost no visitors). Some penitentiaries restricted

all forms of communication. See D. Rothman, supra, at 94-

95; e.g., G. de Beaumont & A. de Tocqueville, On the

Penitentiary System in the United States, App. B, at 173

(reprint 1979) (1833) (Connecticut prison rule that “No con-

vict shall write or receive a letter * * * nor have inter-

—

course with persons without the prison, except by leave of

the warden.”).

In any event, those visits that were permitted often were

granted as a matter of grace and limited to close family or

charitable organizations. For example, church-sponsored

“visiting societies” sometimes persuaded prison officials to

allow their members to visit and aid prisoners. See http://

www.warwick.ac.uk/fac/arts/History/teaching/courses/gender/

lectS. In the 1790 Walnut Street Jail, “a prisoner [who] was

diligent and good” might be permitted a “visit * * * from a

close family member—but only once every three months, for

fifteen minutes, through two grills, and under the scrutiny of

the keeper.” See H. Allen & C. Simonsen, Corrections in

America 539 (9th ed. 2001).

Whether or not penologically sound, the early historical

practice of entirely foreclosing or severely limiting in-prison

social visits “provides ‘contemporaneous and weighty evi-

dence of the Constitution’s meaning“ Alden v. Maine, 527

U.S. 706, 743-744 (1999) (quoting Printz v. United States, 521

U.S. 898, 905 (1997)). Such practices, moreover, are entitled

to great weight when determining the scope of substantive

due process rights. Michael H. v. Gerald D., 491 US. 110,

122 (1989) (plurality opinion) (“In an attempt to limit and

guide interpretation of the [Due Process] Clause, we have

insisted not merely that the interest denominated as a

liberty be ‘fundamental’ * but also that it be an inter-

est traditionally protected by our society.”). In light of the

drastic limits that the Nation’s early penitentiaries com-

monly imposed not only on visits but on all communications

with the outside world, Michigan’s limited restrictions on in-

person visits cannot be deemed constitutionally suspect. Cf.

Hewitt v. Helms, 459 U.S. 460, 467 (1983) (prison may isolate

inmates in “austere and restrictive administrative segrega-

tion quarters” without implicating liberty interests).

The reality of modern prison administration supports that

conclusion (even setting aside the penological concerns dis-

cussed pp. 19-28, infra). In Olim v. Wakinekona, 461 US.

238 (1983), for example, this Court rejected the claim that a

prisoner has a fundamental liberty interest in being incarcer-

ated within the State of conviction. IIlt is neither unrea-

sonable nor unusual for an inmate to serve practically his

entire sentence in a State other than the one in which he was

convicted and sentenced,” the Court explained, “or to be

transferred to an out-of-state prison after serving a portion

of his sentence in his home State.” 461 U.S. at 247; see

Meachum v. Fano, 427 U.S. 215, 225 (1976) (confinement in

another State is “within the normal limits cr range of cus-

tody which the conviction has authorized the State to im-

pose”); Montanye v. Haymes, 427 U.S. 236 (1976) (same).

If an inmate has a right to receive visitors, then transfer-

ring him out-of-state at least severely burdens that right.

Olim, however, rejected the claim that such a transfer—

there, a transfer of over 2,000 miles from Hawaii to Cali-

fornia—may be unconstitutional because of “the separation

of the inmate from home and family.” 461 U.S. at 248 n.9

(citing Montanye, 427 U.S. at 241 n.4); see Thompson, 490

U.S. at 461 (exclusion of a particular visitor “is well within

the terms of confinement ordinarily contemplated by a

prison sentence, and therefore is not independently pro-

tected by the Due Process Clause”) (citation omitted). Just

as the prisoner in Olim did not have a right to be housed in a

location that allowed for in-person social visits as a practical

matter, the prisoner-plaintiffs here have no right to demand

that the State of Michigan open the prison doors and estab-

lish special facilities to facilitate visitation. To the contrary,

a prisoner's physical separation from the outside world is his

punishment, and the claimed right to breach that physical

separation is inconsistent with prisoner status.

B. The Visitation Limits For Minors And Former

Prisoners Do Not Impinge On Any Right Of Visitation

The Constitution May Confer

Even if some residual right to in-person visits were to sur-

vive conviction and incarceration, Michigan’s limits on visits

by minors and former prisoners would not impinge on that

right. Outside the prison context, the scope of the right to

in-person association that States may not unduly regulate is

not well defined, and may properly be limited to the “[flamily

relationships [that] involve deep attachments and commit-

ments to the necessarily few other individuals with whom

one shares not only a special community of thoughts, experi-

ences, and beliefs but also distinctly personal aspects of one’s

life.“ Jaycees, 468 U.S. at 619-620; id. at 620 (relationships

“distinguished by * * * relative smallness,” a “high degree

of selectivity,” “and seclusion from others in critical as-

pects”). Inside prison, any residual interest a prisoner re-

tains in that right is necessarily confined to members of the

prisoner’s immediate (i.e., nuclear) family. See, e.g., Rules

and Regulations for the Government and Discipline of the

United States Penal and Correctional Institutions 17 (J 50)

(1936) (regular visits “will ordinarily be restricted to mem-

bers of the prisoner’s immediate family”); p. 15, supra.

The Sixth Circuit erred in extending that putative right to

include visits from unrelated persons and more distant rela-

tives. Contrary to the court of appeals’ ruling (Pet. App.

12a-13a), Michigan officials did not transgress constitutional

boundaries by permitting visits from the prisoner’s minor

children but not minor nieces and nephews. Mich. Admin.

Code R. 791.6609(2)(b). Inside prison, any right to in-person

social association cannot extend beyond the closest relation-

ships, such as husband-wife or parent-child.’ Likewise, that

court erred in invalidating the prohibition (Mich. Admin.

Code R. 791.6609(7)(a)) on visits by former prisoners other

than immediate family. See Pet. App. 15a-16a; see also id. at

8a (enjoining petitioners “from denying visits by * * *

5 Although Michigan’s prohibition originally excluded minor siblings,

one month after the district court ruled, the Michigan legislature enacted

a law providing that “a prisoner may be permitted to receive visits from a mi-

nor brother, sister, stepbrother, stepsister, half brother, or half sister if

that minor is on the prisoner’s approved visitor list.“ Mich. Comp. Laws

Ann. § 791.268a (West Supp. 2002); Pet. App. 12a n. I: Pet. 8 n. 5. In view of

that change, if the Court were to identify or assume arguendo a residual

constitutional right to receive visits from close family members, it need

not reach whether any such constitutional right extends to minor siblings.

former prisoners”). Prisoners have no constitutional right to

receive social visits from unrelated ex-convicts.

The court of appeals also erred in holding (Pet. App. 14a-

15a) that prisoners have a constitutional right to in-prison

visits with their minor biological offspring where the State

has lawfully terminated parental rights. Whether or not

consensual, such a termination of parental rights renders the

prisoner, in contemplation of law, “forevermore, a stranger

to her children.“ M. L. B. v. S. L. J., 519 U.S. 102, 108 (1996).

Prisoners therefore have no greater right to visit with such

minors than they have to visit with the children of perfeet

strangers. See Santosky v. Kramer, 455 U.S. 745, 749 (1982)

(“Termination denies the natural parents * * * the rights

ever to visit, communicate with, or regain custody of the

child.”); Pet. App. 168a (on termination, “the children are

treated as non-family members”). Prison officials may prop-

erly rely on the legal status of a minor’s (or any other per-

son’s) relationship when determining whether to permit

visits; they cannot be required to determine whether rela-

tionships that are not legally recognized should be deemed

“close enough” to warrant special treatment.

Finally, the court of appeals erred in invalidating Michi-

gan’s requirement that unemancipated minors be accompa-

nied by an adult member of their immediate family or legal

guardian. Pet. App. 16a-17a (invalidating Mich. Admin. Code

R. 791.6609(5)). It is difficult to see how inmates have a con-

stitutional right to in-prison visits with a minor not so ac-

There is, in any event, no claim that any prisoner in this case re-

tained a legal interest in biological children following termination, such as

by conditioning the consent to termination. And, if the Constitution

protects some aspect of a parent-child relationship after the State termi-

nates it, that would not necessarily encompass a right to receive in-prison

visits; it certainly would not extend to every termination based on con-

sent; and prison officials could justifiably require proof that a legally

cognizable relationship exists. The district court’s injunction against

“denying visits by * * * biological children of prisoners whose parents

voluntarily terminated their parental rights (other than for abuse or

negleet), Pet. App. 3a, is thus fatally overbroad.

19 N

companied. The State has a compelling interest, like society

at large, in ensuring that children are not exposed to poten-

tially undesirable eireumstances absent elose familial super-

vision. For example, the Motion Pieture Industry Associa-

tion’s Classification and Rating Administration (CARA) pro-

vides that, for movies with an R“ rating, a child Julnder 17

requires [an] accompanying parent or adult guardian.”

Surely Michigan may require a minor to be accompanied by

an “immediate family member or legal guardian” when

entering a prison to visit inmates, a location and activity far

more fraught with potential danger and undesirable influ-

ences than an R-rated movie. See pp. 25-26, infra.

In some instances, it may be difficult for parents to accom-

pany children themselves, other immediate family members

may be unavailable, and legal guardianship a cumbersome

alternative. See, e.g., Pet. App. 16a. But prison officials are

not required to make visits as convenient as possible. Par-

ents who wish to expose their minor children to the prison

environment bear some responsibility for accompanying

them, finding immediate family members to accompany

them, or establishing legal guardianship to that end. Failing

that, such hardships may be addressed through the authority

of wardens to make exceptions in the prisoner’s best

interests on a visit-by-visit basis. Mich. Admin. Code R.

791.6609(3). While the court of appeals suggested that some

wardens “appear to refuse to grant waivers,” Pet. App. 16a,

that concern should be addressed in an individual case where

such a waiver is denied, and cannot justify the across-the-

board injunction issued here.

Il. MICHIGAN’S REGULATIONS ARE REASONABLY

RELATED TO LEGITIMATE PENOLOGICAL

INTERESTS

If prisoners do retain some constitutional right to receive

visits, that right must be qualified by the fact of incarcera-

tion. The punishment of incarceration carries with it the

forfeiture of many privileges, including the freedom to host

visitors at will. See Pell, 417 U.S. at 822 (incarceration en-

tails “confining criminal offenders in a facility where they are

isolated from the rest of society”). At most, a prisoner would

retain an extremely qualified right to have a small number of

visits from immediate family members, limited by the sched-

ule and other requirements of the prison system. Because

separation from the community is part of the punishment,

limits on the time, place, and manner of social visits should

not implicate the Constitution so long as they have a rational

basis. Moreover, a prisoner has no right to choose his prison,

and therefore no right to be placed in a facility close to his

chosen visitors. See Olim, 461 U.S. at 247.

Under this Court’s Turner decision, a prison rule that im-

pinges on a constitutional right must be upheld if “it is rea-

sonably related to legitimate penological interests.” Turner,

482 U.S. at 89. [There must be a ‘valid, rational connection’

between the prison regulation and the legitimate [and neu-

tral] governmental interest put forward to justify it.” Shaw,

532 U.S. at 229 (citations omitted). Three other factors are

also relevant: (1) alternative means of exercising the right;

(2) the impact accommodation of the right will have on

guards, inmates, and the allocation of prison resources; and

(3) the absence of ready alternatives for achieving the gov-

ernmental objectives. Jd. at 229-230. Because “courts are ill

equipped to deal with the complex and intractable problems

of prisons,” they must “defer[] to prison officials’ judgment”

when applying the Turner test. Shaw, 532 U.S. at 223.

Prison officials, not the courts, “are to remain the primary

arbiters of the problems that arise in prison management.”

Id. at 224.

That deference is warranted here. Although “many cate-

gories of noninmates seek access to” prisons, including “fami-

lies and friends of prisoners who seek to sustain relation-

ships with them,” Thornburgh v. Abbott, 490 U.S. at 407,

“prison officials may well conclude that certain proposed in-

teractions, though seemingly innocuous to laymen, have po-

tentially significant implications for the order and security of

the prison.” Ibid. Because of “the expertise of these offi-

cials” and because “the judiciary is ill equipped to deal with

the difficult and delicate problems of prison management,”

prison officials are entitled to “considerable deference” in

regulating in-person contact between prisoners and the out-

side world. Id. at 407-408 (citations and internal quotation

marks omitted); see Peterson v. Shanks, 149 F.3d 1140, 1145

(10th Cir. 1998) (“prison officials necessarily enjoy broad dis-

cretion in controlling visitor access to a prisoner”).

Deference is particularly warranted given the implications

for discipline and security and the close relationship between

visiting privileges and broader penological objectives. Main-

taining institutional security and preserving internal order

and discipline are essential goals that may require limitation

or retraction of the retained constitutional rights of both

convicted prisoners and pretrial detainees.” Bell, 441 U.S. at

546. Prison officials are properly concerned with deterring

prisoners from participating in criminal activity while incar-

cerated. Pell, 417 U.S. at 822-823. For example, the United

States (through the BOP, the INS, and the Department of

Defense) detains individuals with established or suspected

ties to terrorism. Permitting such inmates and detainees to

receive even seemingly innocuous visitors may present a

security risk. In all prisons, moreover, visits are a particular

concern, because they are the principal means by which in-

mates obtain weapons and drugs. Consequently, “even

where claims are made under the First Amendment,” this

Court has repeatedly refused “‘to substitute [its] judgment

on . . . difficult and sensitive matters of institutional ad-

ministration,’ * * * for the determinations of those charged

with the formidable task of running a prison.” O’Lone, 482

U.S. at 353. Moreover, the very fact that the BOP generally

encourages visits with family members as serving rehabilita-

tive goals, but sometimes restricts visits to serve discipli-

nary or safety concerns, demonstrates how closely bound up

decisions about the scope of visitation privileges are with

questions of penological philosophy. Those are matters on

which prison authorities are entitled to particular deference.

A. Withdrawing Visiting Privileges For Two Major Drug

Infractions In Prison Serves A Valid Penological

Interest

The court of appeals did not dispute that Michigan has a

compelling interest in deterring the possession, use, and

distribution of controlled substances and other contraband in

prison. This Court repeatedly has recognized the “serious

security dangers” presented by “drugs, weapons, and other

contraband.” Bell, 441 U.S. at 559; Block v. Rutherford, 468

U.S. 576, 586-587 (1984); see Rickman v. Avaniti, 854 F. 2d

327 (9th Cir. 1988) (“[WJeapons, drugs, and other * * *

contraband are serious problems in our nation’s prisons.”).

The court of appeals, however, held that the ban on visits for

prisoners found guilty of two, in-prison, major substance

abuse infractions is unconstitutional under Turner because

prison officials had “produced only anecdotal evidence to

show that the permanent ban on visitors has deterred drug

abuse in the prison population.” Pet. App. 20a. That miscon-

strues Michigan’s burden. Michigan need not produce scien-

tific proof; common sense is sufficient. Because of Michigan’s

rule, inmates who wish to preserve visiting privileges, per-

haps among the most valued privileges in prison life, will

think twice about violating the prison’s substance abuse

rules, particularly if they have violated those rules before.

Experienced correction officials, moreover, testified to the

rule’s efficacy. See, e. g., 9/18/00 Tr. 73-74, 94, 151. And

numerous correctional institutions, including those operated

by the BOP and the States, deny visiting privileges as disci-

pline for serious infractions based on the same conclusion.

See pp. 1, 3, supra (BOP policy); Amicus Br. of the States of

Colorado, et al., in Supp. of the Pet. 1 n.1.

The court likewise erred in rejecting the ban under the

other Turner factors. Contrary to the court of appeals, pris-

oners do not lack other “alternatives for keeping ties with

family and friends outside prison” when visiting privileges

are withdrawn for disciplinary reasons. Pet. App. 20a. In-

mates denied visiting privileges because of repeated discipli-

nary violations can still stay in touch with loved ones through

phone calls and letters. See pp. 12-13, supra. Likewise, the

court erred in asserting that “prison officials have at their

disposal many other constitutional means of punishing pris-

oners.” Pet. App. 20a. The withdrawal of visiting privileges

at issue here is imposed only for inmates who are found

guilty of a second serious in-prison drug infraction; as to

those inmates, the first-line punishment has already shown

itself to be an insufficient deterrent. Further, for high-

security prisoners, administratively segregated prisoners,

and others who have few privileges in the first instance, with-

drawing visiting privileges may be the only effective form of

discipline, as the evidence showed. 9/18/00 Tr. 91-92, 95, 107;

see id. at 96 (prisoners “with little” else “to lose”). In any

event, prison officials need not demonstrate that they have

chosen the least restrictive alternative. See Abbott, 490 U.S.

at 419. Although prison officials might deter some drug use

by revoking other privileges, they can reasonably conclude

that revoking visits is a more effective deterrent.

Notwithstanding the court of appeals’ one-paragraph analy-

sis under Turner, Pet. App. 20a, the court’s primary concern

appears not to have been the substance of the rule but its

allegedly arbitrary application, id. at 17a-20a. It is not en-

tirely clear that such arbitrariness has been proved.’ More

7 Michigan’s rules permit inmates to challenge, in a formal hearing,

any serious misconduct charge that can be a predicate for withdrawing

visiting privileges. See Mich. Admin. Code R. 791.3315; p. 4, supra; Pet.

App. 22a (“Michigan inmates are given a hearing before being found guilty

of a specific drug offense”). Thus, while the court of appeals expressed

concern that Michigan might have on occasion treated a single violation as

two separate infractions (Pet. App. 19a-20a), it nowhere suggested that

the affected inmate could not have invoked the hearing process to chal-

lenge the second violation as subsumed by the first. Moreover, any

double-counting would pose problems no matter what the punishment, and

should be addressed through procedures, not by revising the punishment.

The evidence at trial also suggested that prisoners can challenge an

erroneous imposition of the ban (or failure to lift it) through informal

grievances. 10/15/00 Tr. 57-59, 70. In any event, there was evidence

prison officials used reasonable criteria, 9/19/00 Tr. 110, 140 (consideration

important, a finding of arbitrary application would not sup-

port the court of appeal’s conclusion that the underlying rule

lacks a legitimate penological justification. Instead, as the

court of appeals itself appears to have recognized (Pet. App.

22a), any claim of arbitrariness is properly analyzed as a

matter of procedural due process under the test this Court

established - Sandin v. Conner, 515 U.S. 472 (1995). Under

that test, som 2 process is due if the change in the condition

of confinement amounts to a “grievous loss” and “an atypical

and significant hardship on the inmate in relation to the

ordinary incidents of prison life.” Id. at 480, 484. Even if

that standard were satisfied, the remedy would be an injunc-

tion that prevents imposition of the sanction absent proce-

dural protections, not an injunction against application of the

rule in any circumstance.*

B. The Limits On Visits By Minors And Former Prisoners

Serve Legitimate Penological Interests

Michigan’s limits on who may visit are likewise supported

by legitimate penological interests. Contrary to the court of

appeals’ conclusion, the goal of limiting the total number of

visitors, and child visitors in particular, is entirely reason-

able. Because prison visits are a known means of passing

contraband and communicating about criminal activity,

Block, 468 U.S. at 586; Bell, 441 U.S. at 559, limiting the num-

ber of visitors to permit adequate supervision is imperative.

Pell, 417 U.S. at 827 (security concerns are “sufficiently

paramount * * * to justify the imposition of some restric-

tions on the entry of outsiders into the prison for face-to-face

contact with inmates”); Bell, 441 U.S. at 560 n.40 (close

monitoring of interactions one way to reduce contraband).

of other serious misconduct when deciding whether to lift the ban), and

there is reason to think other findings of arbitrariness suspect, Pet. Br. 17-

18 & n8.

8 There is no separate question presented addressing the court of

appeals’ application of Sandin. The court of appeals’ Sandin analysis, Pet.

App. 22a, however, appears merged and intertwined with its erroneous

cruel and unusual punishment analysis, id at 20a-22a. See pp. 28-30, infra.

Even if prison officials did not finely calibrate the proposed

restrictions to achieve a particular number of visitors, there

is no requirement that visiting regulations accommodate the

maximum number of visitors possible or employ narrowly

tailored means. To the contrary, any increase in visitors

places additional strain on prison staff, who must monitor

visiting rooms and visiting waiting rooms, and must conduct

security screenings of visitors entering and leaving the

prison. Pet. App. 136a-137a. In the BOP’s experience,

proper monitoring and processing of even a moderate num-

ber of visits requires numerous officers. The court of ap-

peals erred in disregarding the testimony of corrections

officials that the new policy had kept visits (and child visits)

to a more manageable level and reduced the introduction of

contraband. See 9/18/00 Tr. 87, 90, 125; 9/19/00 Tr. 31-32;

Pet. App. 39a, 5la-52a, 155a.

For similar reasons, the court of appeals erred in rejecting

Michigan’s legitimate concerns about the safety and welfare

of children. Because children can be energetic and unpre-

dictable, they present a special burden for prison staff

charged with monitoring, maintaining order, and ensuring

visitor sefety. Petitioners presented evidence not only that

disruptive child behavior can distract the correctional offi-

cers assigned to supervise visitation, Pet. App. 133a-134a,

136a; 9/18/00 Tr. 22, 89-90, but also that inmates may rely on

those disruptions to facilitate the introduction of contraband,

9/18/00 Tr. 90. Exposure to prisoners, moreover, “necessar-

ily carries with it risks that the safety of innocent individu-

als” like children “will be jeopardized in various ways. They

may, for example, be taken as hostages or become innocent

pawns in escape attempts.” Block, 468 U.S. at 586-587.

Finally, notwithstanding the diligent efforts of staff to

regulate inmate behavior, prison visits carry the risk that

children will be exposed to inappropriate sexual or violent

conduct. See 9/18/00 Tr. 9, 23-24, 52, 54, 74 (prisoners mas-

turbating and exposing themselves to and in view of chil-

dren); Pet. App. 58a-59a (noting testimony concerning “sex-

ual misconducts occurring in non-contact situations”); id. at

132a (testimony that children “observed and viewed” con-

duct such as “sexual behavior,” “people assaultſing] people,

lot{s] of groping and other inappropriate behavior”); ibid.

(visitor complaint about “triple X stuff in the visiting room”).

Indeed, Michigan’s revision to its policies was prompted in

part by an inmate’s sexual assault on an unrelated three-

year-old child during a prison visit. Pet. App. 132a-133a; Pet.

Br. 4. The BOP advises us that visiting minors in its facili-

ties have, at times, been assaulted, witnessed assaults on

visitors, been exposed to sexual conduct, heard outpourings

of profanity, and been in close proximity to violent alterca-

tions between misbehaving prisoners and the corrections

officials who attempt to restrain them. See also Barry v.

Whalen, 796 F. Supp. 885 (E. D. Va. 1992) (oral sex and other

sexual acts in view of other visitors).

Michigan’s limits on minor visitors are a reasonable re-

sponse to such concerns. Restricting visits by minors to

those most closely related to the prisoner, such as the pris-

oner’s offspring, Mich. Admin. Code R. 791.6609(2)(b), make

it possible for prison staff to keep a more watchful eye on

those children who are present, check unruly behavior, and

keep the children clear of hazards and threats to their health

and safety. See Pet. App. 136a; p. 25, supra. The require-

ment that minors be accompanied by an adult member of

their immediate family or legal guardian, Mich. Admin. Code

R. 791.6609(5), helps ensure that the child is supervised by a

family member or other person who is uniquely responsible

for the child’s welfare, who is used to making decisions on

the child’s behalf, and to whom the child is likely to be

responsive. See Pet. App. 155a; 9/18/00 Tr. 36-37. Given the

peculiar nature of the prison environment and the unique

threats it presents, such precautions are not unreasonable.

The court of appeals rejected those justifications in part

because, in its view, decisions regarding how best to protect

children from inappropriate environments are “for parents

to make.” Pet App. 13a. Even outside prisons, however, the

State has a strong interest in protecting the welfare of chil-

dren. See, ¢.g., Prince v. Massachusetts, 321 U.S. 158, 168

(1944). In any event, the State is under no obligation to

make its facilities available to children under conditions that,

in the State’s view, may expose children to an unhealthy

environment and inappropriate dangers.

Nor are “non-contact” visits an answer. Non-contact vis-

its may reduce (but not eliminate) the likelihood of children

being physically assaulted or being used in smuggling. But

children still can be exposed to inappropriate conduct—by the

inmate they are visiting, by other inmates, or by others in the

visiting area—during non-contact visits. See pp. 25-26, supra;

Pet. App. 30a. Similarly, non-contact visits do not address

the need for close supervision and control of children as they

enter and leave the physically dangerous prison environment;

the need for such supervision and control in waiting rooms

ana visiting rooms to ensure order and safety; the fact that

disruptive behavior by children distracts corrections

officials; or the risk that children might become hostages.

Further, contrary to the court of appeals’ assumption,

non-contact visits are not always an administrable alterna-

tive to contact visits. In the federal system, most institu-

tions do not have facilities for non-contact visits; such facili-

ties are generally available only in pre-trial detention cen-

ters and high security institutions. The court of appeals’

recognition of a right to non-contact visits as an alternative

to contact visits thus could require physical modification and

reconstruction of numerous federal correctional facilities.

That burden weighs heavily against finding a constitutional

violation under the Turner balance. In light of the availabil-

ity of other means of communication, such as letters, tele-

phone calls, and communication through others, see pp. 12-

14, supra, prison officials are under no obligation to recon-

struct prison facilities to provide for non-contact visits as an

alternative to contact visits that prove too dangerous.

Finally, and for similar reasons, the prohibition on visits

by former prisoners who are not immediate family, lawyers

or clergy, Mich. Admin. Code R. 791.6609(7), (8), is lawful.

Like the prison officials in Pell, Michigan prison officials

have authority to “limit[] visitations” to those categories of

persons who, in “the judgment of state corrections officials,”

will “aid in [the prisoners’] rehabilitation, while keeping visi-

tations at a manageable level that will not compromise insti-

tutional security.” 417 U.S. at 827. “Such considerations are

peculiarly within ti province and professional expertise of

corrections officials.” Ibid. Michigan’s judgment that former

prisoners (other than family members) are not likely to aid in

rehabilitation is sensible. Indeed, visits from former prison-

ers can convert current inmates into conduits for information

between prisoners about criminal activity inside and outside

of prison. The court of appeals erred in substituting its own

view of wise penological policy for the judgment reached by

the Michigan officials “charged with the formidable task of

running a prison.” O Lone, 482 U.S. at 353.

Moreover, the need for deference to prison officials is par-

ticularly great precisely because restrictions on visitation

are bound up with judgments about penological philosophy.

While incarceration does not place a wall between the pris-

oner and the Constitution, it does place a wall between the

prisoner and those associates with whom he could otherwise

freely associate. That fact not only suggests the absence of a

constitutional right, but the need for deference to prison

officials. Decisions about the scope of visitation privileges

are bound up with critical questions about how prison offi-

cials will run an institution and balance the goals of reha-

bilitation and discipline. Indeed, the BOP has determined

that the extension of visiting privileges serves rehabilitative

goals in most circumstances, while the withdrawal of those

privileges in some cases is the better course. Other institu-

tions may reach slightly different judgments because they

accommodate competing goals differently. In each case,

courts should give substantial deference to such fundamental

judgments about penological philosophy.

III. MICHIGAN’S REGULATIONS DO NOT VIOLATE

THE EIGHTH AMENDMENT

In Wilson v. Seiter, 501 U.S. 294, 297 (1991), this Court

held that, to establish that “deprivations that [are] not spe-

cifically part of the sentence but [are] suffered during im-

prisonment” violate the Eighth Amendment, a prisoner must

show that the conditions of confinement involve the deliber-

ate imposition of pain or deliberate indifference to it. “After

incarceration, only the unnecessary and wanton infliction of

pain . constitutes cruel and unusual punishment forbidden

by the Eighth Amendment.” Whitley v. Albers, 475 U.S. 312,

319 (1986) (internal quotation marks and citations omitted).

The Eighth Amendment requires prison officials to “pro-

vide humane conditions of confinement,” to “ensure that in-

mates receive adequate food, clothing, shelter, and medical

care,” and to take “reasonable measures to guarantee the

safety of the inmates.” Farmer v. Brennan, 511 U.S. 825,

832 (1994). Only “extreme deprivations” support an Eighth

Amendment claim because “routine discomfort” is part of

the penalty inmates pay for their crimes. Hudson v.

McMillian, 503 U.S. 1, 8-9 (1992).

Michigan’s visiting regulations do not impose such an ex-

treme deprivation. They do not deny prisoners food, cloth-

ing, shelter, or medical care, or subject them to wanton pain

or a threat of physical harm. In the absence of such condi-

tions, even measures that may seem harsh do not offend the

Eighth Amendment. See Rhodes v. Chapman, 452 U.S. 337,

346-847 (1981); see also Estelle v. Gamble, 429 U.S. 97, 104

(1976) (only “deliberate indifference to serious medical needs

of prisoners” violates the Eighth Amendment). Nor are

Michigan’s rules inconsistent with historical practice or

evolving standards of decency. To the contrary, early in this

Nation’s history, in-person contact between inmates and

outsiders was often foreclosed, see pp. 2, 14-15, supra, and

there is no clear consensus that withdrawing visiting privi-

leges is inappropriate punishment for repeated and serious

misconduct, see p. 22, supra. —

The court of appeals ignored those standards in con-

eluding that the ban on visits violates the Eighth Amend-

ment. The isolation inherent in denying visits is not itself

constitutionally objectionable. Hutto v. Finney, 437 US.

678, 685 (1978) (rejecting claim that “indeterminate sen-

tences to punitive isolation always constitute cruel and un-

usual punishment”); In re Long Term Admin. Segregation,

174 F.3d 464, 472 (4th Cir.) (isolation associated with admin-

istrative segregation or maximum custody does not deprive

prisoners of any basic human need), cert. denied, 528 U.S.

874 (1999); cf. Hewitt, 459 U.S. at 466-467 (“austere and

restrictive administrative segregation quarters” do not vio-

late the Fourteenth Amendment). Even if “depression, hope-

lessness, frustration, and other such psychological states

may well prove to be inevitable byproducts” of isolation in

prison, those conditions are a fact of incarceration and do not

violate the Eighth Amendment. Jackson v. Meachum, 699

F. 2d 578, 584 (Ist Cir. 1983) (collecting cases).

Once again, the Sixth Circuit’s concern seems to have

been not so much the substance of Michigan’s rule but the

court’s perception that the rule was applied arbitrarily. See

Pet. App. 21a-22a. Once again, however, such concerns are

better addressed under the rubric of procedural due process,

and cannot justify an injunction against the rule’s non-

arbitrary application. See pp. 23-24, supra.

CONCLUSION

The judgment of the court of appeals should be reversed.

Respectfully submitted.

THEODORE B. OLSON

Solicitor General

ROBERT D. MCCALLUM, JR.

Assistant Attorney General

PAUL D. CLEMENT

Deputy Solicitor General

JEFFREY A. LAMKEN

Assistant to the Solicitor General

ROBERT M. LOEB

TEAL E. LUTHY

Attorneys

JANUARY 2003

—

APPENDIX

1. Michigan Administrative Code R. 791.3315 pro-

vides in relevant part:

R 791.3315 Formal hearing; notice; evidence; staff investi-

gator; decisions; posting.

Rule 315. (1) Not less than 24 hours before a formal hear-

ing, a prisoner shall receive written notice of the hearing.

The notice shall include all of the following:

(a) Any charges of alleged violations.

(b) A description of the circumstances giving rise to

the hearing.

(2) A prisoner shall set forth all of the following on the

notice form:

(a) Necessary witnesses the prisoner wishes to have

interviewed, if any.

(b) A request for documents specifically relevant to

the issue before the hearing officer, if any.

(e) A request for assistance of a staff investigator to

gather evidence or speak for the prisoner, if desired.

(3) A prisoner may waive the 24-hour notice require-

ment if that waiver is in writing and signed by the prisoner.

(4) If the prisoner fails to appear for a hearing after

proper notice has been given as set forth in subrule (1) of

this rule, the hearing officer may proceed with the hearing

and make a decision in the absence of the prisoner.

(la)

(5) A prisoner has all of the following rights at a formal

hearing:

(a) To be present and offer evidence, including rele-

vant documents and oral and written arguments, on his

or her own behalf.

(b) To compel disclosure of documents specifically

relevant to the issue before the hearing officer, unless

disclosure presents a threat to personal or institutional

safety.

and material witnesses, when to do so is not unduly haz-

ardous to institutional or safety goals.

(d) To have presented to the hearing officer the re-

port of a staff investigator who interviewed and obtained

statements from relevant witnesses, secured relevant

documents, and gathered other evidence, if a staff

investigator was requested when notice of the charges

was given, unless that request is denied as set forth in

subrule (6) of this rule, and if the prisoner has reasonably

cooperated with the staff investigator.

(e) To submit written questions to the hearing in-

vestigator to be asked of witnesses.

(f) To request disqualification of a hearing officer

for personal bias, upon presenting to the hearing officer

at the hearing an affidavit containing specific evidence of

personal bias. The hearing officer shall make a specific

ruling on this request in the hearing report. If personal

bias is found, the hearing shall be immediately adjourned

and assigned to a different hearing officer.

(6) Ifthe hearing officer denies a request made by a pris-

oner on the notice form provided under subrule (2) of this

rule, specific reasons for the denial shall be placed in the

record. The presence of a witness is not necessary if the

——-

wit ness's testimony is repetitious or if the witness is able to

provide the hearing officer or investigator with a eomplete

written statement.

(7) A staff investigator shall be available, when neces-

sary, to gather and present factual evidence orally or in

writing at the request of either the prisoner or the hearing

officer. If the hearing officer determines that a prisoner ap-

pears to be incapable of speaking effectively for himself or

herself, the hearing officer shall request a staff investigator

to appear and present arguments on the prisoner’s behalf.

The failure of a staff investigator to present requested

documents or statements is justified if to do so would be un-

duly hazardous to institution or safety goals or if the infor-

mation is irrelevant or unnecessary to the particular case.

The specific reason for such failure shall be placed in the re-

cord.

(8) The hearing officer shall render a written decision or

recommendation in every case. The written decision or rec-

ommendation shall include all of the following:

(a) The reasons for the denial of a prisoner’s re-

quests, if any.

(b) A statement of the facts found.

(e) The evidence relied on in support of the decision

or recommendation.

(d) Any sanctions or orders imposed by the hearing

officer. A copy of the decision shall be furnished to the

prisoner.

(9) Within 48 hours of the conclusion of a hearing on a

charge of major misconduct, a facility shall post all of the

following information:

(a) The name and prison number of the prisoner

charged.

(b) The violations charged.

guilty of each violation or whether it was dismissed. This

information shall be posted in an area which is accessible

to staff, but is not usually accessible to prisoners, and

shall remain posted for not less than 72 hours.

2. Michigan Administrative Code R. 791.5501 pro-

vides in relevant part:

R 791.5501 Major misconduct; minor misconduct; hearing;

confiscation and disposition of contraband.

Rule 501. (1) An alleged violation of department rules

shall be classified as major misconduct or minor misconduct

on the basis of the seriousness of the act and the disciplinary

sanctions allowed. The director shall determine what consti-

tutes major and minor misconduct, the time limits for con-

ducting hearings, and the range of disciplinary sanctions

which may be imposed upon a finding of guilt.

(2) A prisoner charged with major misconduct shall be

provided a formal hearing conducted in accordance with R

791.3315. A prisoner charged with minor misconduct shall be

provided a fact-finding hearing conducted in accordance with

R 791.3310. Upon a finding of guilt of major or minor mis-

conduct, the prisoner shall be subject to the disciplinary

sanctions ordered by the hearing officer.

(3) A prisoner may plead guilty to a minor misconduct

and waive a hearing by signing a written waiver. If the

waiver is accepted, disciplinary sanctions may be imposed by

the department official accepting the waiver.

(4) In addition to the disciplinary sanctions imposed by

the hearing officer, a prisoner who is found guilty of a major

misconduct shall be subject to both of the following provi-

sions:

(a) A prisoner who is subject to good time or disci-

plinary credits will not earn good time or disciplinary

credits during the month in which the major misconduct

violation occurred. The warden also may forfeit previ-

ously earned good time and disciplinary credits pursuant

to R 791.5513, and not grant special good time and special

disciplinary credits. -

(b) A prisoner who is subject to disciplinary time

will accumulate disciplinary time for the major miscon-

duct pursuant to R 791.5515.

(5) Property determined to be contraband at a miscon-

duct hearing or based on a waiver accepted pursuant to this

rule shall be confiscated and disposed of in accordance with

department policy as directed by the hearing officer or de-

partment ofiicial who accepted the waiver.

3. Michigan Administrative Code R. 791.6607 pro-

vides in relevant part:

R 791.6607 Visitation; visiting hours; quotas; religious, legal,

and official visits.

Rule 607. (1) The department shall establish reasonable

visiting hours and uniform quotas at each institution for vis-

its to prisoners to promote order and security in the institu-

tions and to prevent interference with institutional routine

or disruption of the prisoner’s programming. A visit de-

scribed in subrule (2) of this rule shall not be counted toward

a prisoner’s visiting quota. |

(2) Except when the person is related to the prisoner by

blood or marriage, a prisoner shall be allowed to visit with

any of the following persons, who shall not be required to be

on the prisoner’s approved visitor list:

(a) Qualified members of the clergy of the prisoner’s

designated religion or clergy that the prisoner specifi-

cally requests to see.

(b) Volunteers in an outreach program that is spon-

sored by an external religious organization if the volun-

teers meet the requirements issued by the director for

approved volunteers.

(e) Attorneys on official bv siness or a legal parapro-

fessional or law clerk who is acting as an aide to counsel

for the prisoner.

(d) An official representative of the legislative, judi-

cial, or executive branch of government.

4. Michigan Administrative Code R. 791.6609 pro-

vides in relevant part:

R 791.6609 Limits on visitation.

Rule 609. (1) Except as otherwise provided in this rule,

any person who is not subject to a current visitor restriction

pursuant to the provisions of R 791.6611 may visit a prisoner

if all of the following provisions are complied with:

(a) The person presents valid and adequate proof of

identification. ‘

(b) The person is on the prisoner’s list of approved

visitors, as provided in subrule (2) of this rule.

lished by the department.

(d) The visit does not constitute a threat to the pris-

oner’s physical or mental well-being.

— —

(e) The visit does not constitute a threat to public

safety or to the order and security of the institution.

(f) Allowing the visit is not harmful to the pris-

oner’s rehabilitation.

(g) The purpose of the visit is not to commit an ille-

gal act.

(2) Except as provided in R 791.6607(2) and subrule (3)

of this rule, a person may visit a prisoner only if he or she is

on the list of approved visitors for that prisoner, which shall

consist of the prisoner’s immediate family members and not

more than 10 other persons. The approved visitors list shall

be subject to all of the following restrictions:

(a) A person may be on the approved visitors list of

any prisoner to whom she or he is related as an immedi-

ate family member, but shall be on the list of only 1 pris-

oner at a time to whom she or he is not related as an im-

mediate family member.

(b) A person on an approved visitor list shall be not

less than 18 years of age, unless he or she is the child,

stepchild, or grandchild of the prisoner or an emanci-

pated minor who can show proof of emancipation.

(e) If the person is claimed to be an immediate fam-

ily member, the prisoner shall present adequate proof of

the relationship, as determined by the warden or his or

her designee.

(d) A prisoner may add or delete names of immedi-

ate family members from his or her approved visitors list

at any time, but shall be allowed to add or delete other

names only once every 6 months.

(e) A person shall be removed from a prisoner’s ap-

proved visitors list upon written request by the listed

person.

(f) A warden may deny placement of anyone on a

prisoner's approved visitors list for reasons of safety or

security of the institution, protection of the public, previ-

ous violations of visiting room rules by the person, or for

other cause as determined by the warden. A denial of

placement on the list may be appealed through the pris-

oner grievance process.

(3) The warden may allow a single visit between a pris-

oner and a person who is not on the approved visitors list of

the prisoner if the warden determines the visit is in the best

interest of the prisoner and is not a threat to the good order

and security of the facility.

(4) Each institution shall prescribe and display reason-

able rules of conduct for visits to preserve public safety and

institutional security and order and to prevent conduct that

may be offensive to others who may be present. If a pris-

oner or visitor violates the provisions of this subrule, then

the visit may be terminated and the prisoner and visitor may

be subject to sanctions up to and including a permanent re-

striction of all visits or restriction to noncontact visiting

only.

(5) Subject to the restrictions in subrule (6) of this rule, a

child who is under the age of 18 may visit a prisoner only if

the child is on the prisoner’s approved visitors list and is ac-

companied by an adult immediate family member or a legal

guardian, unless the individual is an emancipated minor.

(6) A child who is under the age of 18 shall not be per-

mitted to visit if any of the following provisions apply:

(a) The parental rights of the prisoner to the child

have been terminated.

(b) There is a court order prohibiting visits between

(e) The prisoner has been convicted of child abuse,

criminal sexual conduct, or any other assaultive or vio-

lent behavior against the child or a sibling of the child,

unless specific approval for the visit has been granted by

the director.

(7) Except as provided in subrule (8) of this rule, a pris-

oner, a former prisoner, a probationer, or a parolee shall not

be allowed to visit with a prisoner unless the person is on the

prisoner’s approved visitors list and all of the following crite-

ria are met:

(a) The person is an immediate family member of

the prisoner.

(b) Prior approval for the visit is obtained from the

warden of the institution where the visit will occur.

proval for the visit is obtained from the warden of the in-

stitution and the supervising field agent.

(8) A former prisoner shall be allowed to visit if she or he

is one of the individuals identified in R 791.6607(2).

(9) For purposes of this rule, “immediate family mem-

ber” means any of the following persons:

(a) Grandparent.

(b) Parent.

(d) Spouse.

(e) Mother-in-law or father-in-law.

(f) Child.

(g) Stepchild.

(h) Grandchild.

10a

(j) Stepbrother or stepsister.

(k) Aunts and uncles if verification is provided that

they served as surrogate parents.

(10) A prisoner who is hospitalized may receive visitors

only if he or she is critically ill, as verified by the attending

physician, and prior approval is granted by the warden or

deputy warden.

(11) The director may permanently restrict all visitation

privileges, except with an attorney or member of the clergy,

for a prisoner who is convicted or found guilty of any of the

following:

(a) A felony or misdemeanor that occurs during a

visit.

(b) A major misconduct violation, as defined in R

791.5501, that occurs during a visit or is associated with a

visit.

escape.

(d) Two or more violations of the major misconduct

charge of substance abuse.

(12) The director may grant reconsideration and re-

moval of a permanent visitor restriction of all visitation

privileges that is imposed pursuant to subrule (11) of this

rule.

(13) Nothing in this rule creates an enforceable right of

the prisoner to receive a visit or of a visitor to visit a pris-

oner.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.