Amicus Curiae Brief — Overton v. Bazzetta

Sepreine Count, US

FilLR?»

JAN 16 ony

No. 02-94

| ORMICY OF Ls gugmer

——— |

IN THE

Supreme Court of the United States

WILLIAM OVERTON, Director,

Michigan Department of Corrections;

MICHIGAN DEPARTMENT OF CORRECTIONS,

Petitioners,

VS.

MICHELLE BAZZETTA, et al.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals for the Sixth Circuit

BRIEF AMICUS CURIAE OF THE

CRIMINAL JUSTICE LEGAL FOUNDATION

IN SUPPORT OF PETITIONERS

KENT S. SCHEIDEGGER

CHARLES L. HOBSON

Counsel of Record

KYMBERLEE C. STAPLETON

Criminal Justice Legal Fdn.

2131 L Street

Sacramento, CA 95816

Phone: (916) 446-0345

Fax: (916) 446-1194

E-mail: cjlf@cjlf.org

Attorneys for Amicus Curiae

Criminal Justice Legal Foundation

ee*

QUESTIONS PRESENTED

1) Whether prisoners have a right to non-contact visitation

protected by the First and Fourteenth Amendments.

2) Whether the restrictions on non-contact prison visitation

imposed by the Michigan Department of Corrections are

reasonably related to legitimate penological interests.

3) Whether the restrictions on non-contact prison visitation

imposed by the Michigan Department of Corrections constitute

cruel and unusual punishment in violation of the Eighth

Amendment.

—— |

TABLE OF CONTENTS

I lo oi Sakis wand wabeccecces ate i

EE Guu conc cdscetdebdesdesesceces iv

ED <. odd cc ccctdcoodecetucesess l

Summary of facts and case ...... 0.0.0... cece ecuee: 2

EE 4

SED EDO dwesebbecbedededeboveccecccecesodese 6

I

The First Amendment freedom of association does not

EL AE 6

II

There is no substantive due process right to family

EE A 10

A. The problematic doctrine .............. — 10

By A URPI, GER OEE oc ccccccccccccccccc: 15

Il

Withdrawal of prisoners’ visitation privileges for twice

violating prison substance abuse policies does not

violate the Eighth Amendment .................... 22

(iii)

iv

TABLE OF AUTHORITIES

Cases

Adkins v. Children’s Hospital of D. C., 261 U. S. 525,

67 L. Ed. 785, 43 S. Ct. 394 (1923) .... 2.2.26. 2 eee 11

Albright v. Oliver, 510 U. S. 266, 127 L. Ed. 2d 114,

0046 B. Ce. GBF CIGDDD 0. oc cccccccccccccccccccccccs 11

Bazzetta v. McGinnis, 124 F. 3d 774 (CA6 1997) ....... 3

Bazzetta v. McGinnis, 133 F. 3d 382 (CA6 1998) ....... 4

Bazzetta v. McGinnis, 148 F. Supp. 2d 813

(ED Mich. 2001)... 2.2... ccccccccccceces 4, 24, 26, 27

Bazzetta v. McGinnis, 286 F. 3d 311

OEAG TEER 0 0 cc ccccccccccseccess 2-4, 6, 7, 22, 26, 28

Bazzetta v. McGinnis, 524 U. S. 953, 141 L. Ed. 2d 739,

098 DB. Co. ZOFE CIGBED 2 cc ccccccccccceccccsccccces 4

Bazzetta v. McGinnis, 902 F. Supp. 765 ,

(ED Mich. 1995) ........cccccccccececcce seecees 3

Block v. Rutherford, 468 U. S. 576, 82 L. Ed. 2d 438,

104 S. Ct. 3227 (19B4) 2... cee e ccc cceecerecces 24

Bono v. Saxbe, 620 F. 2d 609 (CA7 1980)............ 24

Boy Scouts of America v. Dale, 530 U. S. 640,

147 L. Ed. 2d 554, 120 S. Ct. 446 (2000) ............ &

County of Sacramento v. Lewis, 523 U. S. 833,

140 L. Ed. 2d 1043, 118 S. Ct. 1708 (1998) ... 12,21,22

Dallas v. Stanglin, 490 U. S. 19, 104 L. Ed. 2d 18, ©

109 S. Ct. 1591 (1989) . 2... cece eens 7,8

DeShaney v. Winnebago County Dept. of Social Servs.,

489 U.S. 189, 103 L. Ed. 2d 249,

a 12, 23

Dred Scott v. Sandford, 60 U. S. (19 How.) 393,

I 11

Estelle v. Gamble, 429 U. S. 97, 50 L. Ed. 2d 251,

EE I IS eer a a 27

Farmer v. Brennan, 511 U.S. 825, 128 L. Ed. 2d 811,

Se ED o chccccécccececes 22, 24, 27, 28

Hewitt v. Helms, 459 U. S. 460, 74 L. Ed. 2d 675,

SS EE SR eae 25

Hook v. State of Arizona, 120 F. 3d 921 (CA9 1997) .... 14

Hudson v. McMillian, 503 U.S. 1, 117 L. Ed. 2d 156,

EE a 23, 27

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

433 U.S. 119, 53 L. Ed. 2d 629,

ON Rae 9, 13, 20, 25

Kentucky Dept. of Corrections v. Thompson,

490 U. S. 454, 104 L. Ed. 2d 506,

Pee eh SOOO co vc cccccccccccccecs 17, 18, 24

Laaman v. Helgemoe, 437 F. Supp. 269 (D NH 1977) ... 23

Lewis v. Casey, 518 U. S. 343, 135 L. Ed. 2d 606,

I ae 14

Lochner v. New York, 198 U. S. 45, 49 L. Ed. 937,

EE EE 2 Ee 11

Marks v. United States, 430 U. S. 188, 51 L. Ed. 2d 260,

i tick i colin gdh teeccesceceecs 17

Meachum v. Fano, 427 U. S. 215, 49 L. Ed. 2d 451,

96 S. Ct. 2532 (1976) ... 2... cece cece cece c ee eenes 13

Montanye v. Haymes, 427 U. S. 236, 49 L. Ed. 2d 466,

96 S. Cr. 2543 (IDTS) .. weer c cc cccevccccecccces 21

Moore v. East Cleveland, 431 U. S. 494, 52 L. Ed. 2d 531,

97 S. Ct. 1932 (1977) ... 2. 6 eee eee 5, 10, 16, 18

Murdock v. Pennsylvania, 319 U. S. 105, 87 L. Ed. 1292,

G3 B. Ca. STO CASES) 2... cc ccccccvcccccesccccccens 9

NAACP v. Alabama ex rel. Patterson, 357 U. S. 449,

2 L. Ed. 2d 1488, 78 S. Ct. 1163 (1958) .........++-- 7

Nichols v. United States, 511 U. S. 738, 128 L. Ed. 2d 745,

114S. Ct. 1921 (1994) ... 2... ec eee eens 17

Olim v. Wakinekona, 461 U. S. 238, 75 L. Ed. 2d 813,

103 S. Ct. 1741 (1983) .. 2... eee eee eee eens 20

O’Lone v. Estate of Shabazz, 482 U. S. 342,

96 L. Ed. 2d 282, 107 S. Ct. 2400 (1987) ........... 12

Palko v. Connecticut, 302 U. S. 319, 82 L. Ed. 288,

$B S. Ct. 149 (1937) 0... cece e eee e eee e en eeees 9,18

Pell v. Procunier, 417 U. S. 817, 41 L. Ed. 2d 495,

94 S. Ct. 2800 (1974) ... 2. ccc ree cece eee eeeees 9, 20

Pierce v. Society of Sisters, 268 U. S. 510,

69 L. Ed. 2d 1070, 45 S. Ct. 571 (1925) .........-6-- 7

Preiser v. Rodriguez, 411 U. S. 475, 36 L. Ed. 2d 439,

93 S. Ct. 1827 (1973) .. 0... eee cee ee ee eee eens 13

Reno v. Flores, 507 U. S. 292, 123 L. Ed. 2d 1,

113 S. Ct. 1439 (1993) . 2... ccc eee eee 12, 21

Rhodes v. Chapman, 452 U. S. 337, 69 L. Ed. 2d 59,

101 S. Ct. 2392 (19B1) ... 2. eee eee 13, 24, 26, 29

Roberts v. United States Jaycees, 468 U. S. 609,

82 L. Ed. 2d 462, 104 S. Ct. 3244 (1984) ....... 7, 8,10

Rummel v. Estelle, 445 U. S. 263, 63 L. Ed. 2d 382,

ei a NS aS: cea 26

Sandin v. Conner, 515 U. S. 472, 132 L. Ed. 2d 418,

a 17, 25

Shaw v. Murphy, 532 U. S. 223, 149 L. Ed. 2d 420,

I 12

Solem v. Helm, 463 U. S. 277, 77 L. Ed. 2d 637,

oh re a RA 26

Sumner v. Shuman, 483 U. S. 66, 97 L. Ed. 2d 56,

ae a 25

Turner v. Safley, 482 U. S. 78, 96 L. Ed. 2d 64,

I Sk 12, 13, 15

United States v. Carlton, 512 U. S. 26, 129 L. Ed. 2d 22,

a 10

United States v. Lanier, 520 U. S. 259, 137 L. Ed. 2d 432,

I 22

Washington v. Glucksberg, 521 U. S. 702,

138 L. Ed. 2d 772, 117 S. Ct. 2258 (1997) .... 10,11, 12

Whitley v. Albers, 475 U. S. 312, 89 L. Ed. 2d 251,

ee 22

Widmar v. Vincent, 454 U. S. 263, 70 L. Ed. 2d 440,

ee ee 7

Wilson v. Seiter, 501 U. S. 294, 115 L. Ed. 2d 271,

IS cass naccacecceces’ 22, 23, 24

Vili

United States Statute

Se a Oh Gs SOUS Seni boo dceccccecnseccadt 13

Treatise

R. Rotunda & J. Nowak, Treatise on Constitutional Law

SG rrr rr 8,9, 11

Miscellaneous

T. Blomberg & K. Lucken, American Penology (2000) .. 19

BE, BGR, GAGS IEE crocccsecedesecvencacs 13

S. Brodsky, Families and Friends of Men in Prison

GED cu vedpeceadedseece codnebes cabs sceacdtms 18

Chilton & Talarico, Politics and Constitutional

Interpretation in Prison Reform Litigation: The Case

of Guthrie v. Evans, in Courts, Corrections, and the

Constitution (J. Dilulio ed. 1990)... .. 2... ......... 14

S. Christianson, With Liberty for Some (1998) ......... 19

Cripe, Courts, Corrections and the Constitution:

A Practitioner’s View, in Courts, Corrections, and

the Constitution (J. Dilulio ed. 1990) ............... 15

Dilulio, The Old Regime and the Ruiz Revolution:

The Impact of Judicial Intervention on Texas Prisons,

in Courts, Corrections, and the Constitution

BG Ge ecb chacc ch esdnsaeseas cocces 14

Engel & Rothman, The Paradox of Prison Reform:

Rehabilitation, Prisoners’ Rights, and Violence,

7 Harv. J. L. & Pub. Pol’y 413 (1984) .............. 15

The Federalist No. 78 (C. Rossiter ed. 1961)

SRT it URE Gales RP 1

M. Feeley & E. Rubin, Judicial Policy Making and the

Modern State (2000) ............................ 14

Grano, Judicial Review and a Written Constitution in a

Democratic Society, 28 Wayne L. Rev. | ae ll

W. Hagedorn, The Consequences of Federal District Court

Intervention into Prisons and Jails: Philadelphia, Texas,

and Arizona (Brookings Institution ee 14

Hardwick, Punishing the Innocent: Unconstitutional

Restrictions on Prison Marriage and Visitation,

60 N. Y. U. L. Rev. 275 (1985) ................... 19

M. Mushlin, Rights of Prisoners (2d ed. 1993) ... 19, 21, 25

IN THE

Supreme Court of the United States

WILLIAM OVERTON, Director,

Michigan Department of Corrections;

MICHIGAN DEPARTMENT OF CORRECTIONS,

Petitioners,

vs.

MICHELLE BAZZETTA, et al.,

Respondents.

BRIEF AMICUS CURIAE OF THE

CRIMINAL JUSTICE LEGAL FOUNDATION

IN SUPPORT OF PETITIONERS

INTEREST OF AMICUS CURIAE

The Criminal Justice Legal Foundation (CJLF)' is a non-

profit California corporation organized to participate in

litigation relating to the criminal justice system as it affects the

public interest. CJLF seeks to bring the due process protection

of the accused into balance with the rights of the victim and of

society to rapid, efficient, and reliable determination of guilt

and swift execution of punishment.

1. This brief was written entirely by counsel for amicus, as listed on the

cover, and not by counsel for any party. No outside contributions were

made to the preparation or submission of this brief.

Counsel for Petitioners and for Respondents Michelle Bazzetta, et al.,

have consented to the filing of this brief. Counsel for Sons and

Daughters of the Incarcerated has informed counsel for CJLF that they

are filing as an amicus rather than a party to this case.

Managing prisons safely and efficiently is a difficult and

essential task. Prison is by far the most pervasive form of

serious punishment for criminal conduct, making it vital to

public safety. The unnecessary creation of prisoners’ rights by

the judiciary threatens effective prison administration. These

rights undercut discipline and add to the costs of running

prisons. Burdensome rights can make imprisonment so

expensive that criminals are released early or punished through

less expensive means, frustrating society’s efforts to protect

itself through the deterrent and incapacitative effects of prison.

The Sixth Circuit’s decision to create a right to visitation is

an example of this type of dangerously unnecessary right.

Scarce resources will be spent on supervising visits, even more

burdensome litigation will ensue, and the ability of administra-

tors to enforce discipline by sanctioning infractions will be

curtailed if the right to visitation is upheld. This threatens

public safety by making punishment unnecessarily expensive,

and threatens to increase drugs and violence in prison. These

threats to our system of punishment are contrary to the rights of

victims and society which CJLF was formed to protect.

SUMMARY OF FACTS AND CASE

In 1995, the Michigan Department of Corrections (MDOC)

promulgated new visitation regulations in response to an

increased growth in prison population and the resulting increase

in visitors. Bazzetta v. McGinnis, 286 F. 3d 311, 315 (CA6

2002). Those regulations, (1) banned visits from minors other

than the inmates’ children, stepchildren, and grandchildren; (2)

banned visits from the inmates’ children when the inmates’

parental rights had been terminated; (3) banned visits from

former inmates who were not immediate family members; (4)

required visiting children to be accompanied by a parent or

guardian; and (5) indefinitely banned visitors, with the excep-

tion of attorneys and clergy members, for inmates who violated

MDOC’s substance abuse policies on two or more occasions.

Ibid.

The rationale behind promulgating the first four listed

regulations was twofold. First, the increase in visitors made it

difficult for the prison guards to supervise visitation, thus

making it difficult to prevent the smuggling of drugs and

weapons. /bid. Second, the prison guards also found it difficult

to supervise the increased number of children visiting and

prison officials believed that the prison environment was bad

for them. Jbid. The visitation ban was implemented as part of

a “zero tolerance” approach to drug abuse and was intended to

punish those who violated MDOC’s substance abuse policies.

Id., at 321. The ban provided that inmates found guilty of two

or more substance abuse major misconduct violations would

lose all visitation privileges for a minimum of two years, upon

approval of the Director. /d., at 321, n. 2. After two years, the

inmate could request reinstatement of visiting privileges, which

again must be approved by the Director. Jbid.

There are two forms of visitation permitted by the MDOC

—contact and non-contact. /d., at 315. Contact visits occur in

meeting rooms supervised by prison guards and allow physical

contact between the visitor and inmate. /bid. Non contact

visits occur in a room separated by a clear window with all

communication taking place over a telephone. /bid.

In 1995, the respondents, a class of inmates incarcerated at

defendant MDOC and their prospective visitors, filed suit

challenging the new regulations as violative of their First,

Eighth, and Fourteenth Amendment rights. Jbid. The District

Court denied the respondents’ motion for a preliminary

injunction. See Bazzetta v. McGinnis, 902 F. Supp. 765, 773

(ED Mich. 1995). The court did not rule on the respondents’

challenge to the permanent ban due to lack of ripeness. See id.,

at 772. In an unreported decision, the District Court later

granted MDOC’s motion for summary judgment. See App. To

Pet. for Cert. 143a-159a. The Sixth Circuit upheld the District

Court’s grant of summary judgment. Bazzetta v. McGinnis,

124 F. 3d 774, 781 (CA6 1997). The Sixth Circuit then issued

a supplemental opinion to clarify that its earlier ruling only

applied to contact visits. See Bazzetta v. McGinnis, 133 F. 3d

382, 383-384 (CA6 1998). This Court denied review of that

decision. See Bazzetta v. McGinnis, 524 U. S. 953 (1998).

The respondents subsequently brought this suit challenging

the regulations as they apply to non-contact visits. The District

Court ruled in favor of the respondents, holding that the

regulations violated their First Amendment right of intimate

association and were not reasonably related to any valid

penological objective. See Bazzetta v. McGinnis, 148

F. Supp. 2d 813 (ED Mich. 2001). The District Court also held

that the regulation banning visitation violated the Eighth

Amendment’s cruel and unusual punishment prohibition and

the Fourteenth Amendment’s Due Process Clause. Jbid. The

Sixth Circuit affirmed. 286 F. 3d at 324. This Court granted

Michigan’s certiorari petition on December 2, 2002.

SUMMARY OF ARGUMENT

The First Amendment freedom of association does not

protect family visitation because it is grounded in belief and

~ expression. The Sixth Circuit’s mixing of First Amendment

and substantive due process concepts detracts from the clarity

needed in this contentious area of the law. Incidental expres-

sive activity is insufficient to invoke constitutional scrutiny of

the regulation of a group. Although important, intimate

association has nothing to do with the presence of a collective

voice in the marketplace of ideas. The right to intimate

association is protected by substantive due process, and should

be analyzed under that doctrine.

tive due is a difficult doctrine. Lacking any

“unde 4 yore risk of being a vehicle through

which the personal preferences of individual judges are

transformed into law. This Court is therefore reluctant to

expand substantive due process.

Ss

This reluctance should be heightened in the ccntext of

prison litigation. Prisons are at the center of the most important

government function, public safety. The great difficulty of

running this vital institution has led this Court to give consider-

able deference to prison administrators. Unfortunately, lower

courts too often fail to pay the appropriate deference and wind

up micromanaging prisons to the detriment of prisoners and

society. Importing open-ended substantive due process

concepts into prison life can only expand judicial meddling.

For the purpose of substantive due process, prison visitation

is a privilege, not a right. The only possible support for this

right, Moore v. East Cleveland, 431 U.S. 494 (1977), does not

extend into prison. The split decision dealt with a zoning

ordinance, not prison regulations, and provides no holding

broader than its material facts.

History and tradition supports the lack of precedent for any

right to visitation. There was no visitation in early prisons, and

even after reforms, prisons would remove visitation privileges

for disciplinary reasons. Even today, visitation is often heavily

regulated and frequently very difficult for families. Also, this

Court has repeatedly upheld regulations limiting prison

visitation. Prison visitation simply is not “implicit in the

concept of ordered liberty.” Visitation therefore cannot be a

fundamental right. Since any inquiry under the “shocks the

conscience standard” is better left to Eighth Amendment

analysis, the regulations do not violate due process.

Withdrawal of the prisoners’ visitation privileges for twice

violating prison substance abuse policies does not violate the

Eighth Amendment. These policies are consistent with both the

objective and subjective components of the relevant Eighth

Amendment inquiry. The objective component requires an

extreme deprivation of life’s necessities, such as food, medical

attention, or reasonable safety. A loss of family visitation is an

inherent consequence of imprisonment. When an inmate

violates prison rules, a further loss of visitation is a logical

punishment. The fact that the withdrawal may seem restrictive

or harsh does not change the analysis, as it is simply part of the

penalty that offenders pay for their crimes against society.

Since the ban is indefinite rather than permanent, and only

applies to repeat offenders, any constitutional deprivation is

ameliorated.

The Michigan officials did not act with the deliberate

indifference necessary to satisfy the subjective portion of the

Eighth Amendment standard. There is no evidence that the

officials subjectively knew that withdrawing visitation privi-

leges for a two-year minimum posed a substantial risk of

serious harm to the inmates’ health or safety and knowingly

exposed prisoners to that risk. A lack of action here will not

lead to death or injury, it will simply further the loss of visita-

tion that comes with imprisonment. Since the regulation is

objectively and subjectively reasonable, it satisfies the Eighth

Amendment.

ARGUMENT

I. The First Amendment freedom of association

does not protect family visitation.

The Court of Appeals’ decision in the present case refers to

a “First Amendment right of intimate association.” See

Bazzetta v. McGinnis, 286 F. 3d 311, 316 (CA6 2002). The

court mistakenly conflated two distinct principles. While there

is a First Amendment right to expressive association and there

are constitutional protections for intimate family association,

these rights arise from different parts of the Constitution. First

Amendment association protects expression and belief, while

family association protects other interests outside the First

Amendment. While the source of the latter right is less than

crystal clear, it appears these interests are protected by substan-

tive due process, and the regulation should be analyzed under

this branch of constitutional law. While the Sixth Circuit also

cites substantive due process cases in support of its holding, see

id., at 317 (citing Moore v. East Cleveland, 431 U. S. 494

( 1977) and Pierce v. Society of Sisters, 268 U. S. 510 (1925)),

it does not change the decision’s First Amendment focus. The

mixing of First Amendment and substantive due process

concepts detracts from the clarity needed in this contentious

area of law. The rights to “ ‘expressive association’ ” and

“ ‘intimate association,” ” see Dallas v. Stanglin, 490 U.S. 19,

25 (1989), are different and should be treated separately.

The First Amendment right to expressive association was

first explicitly recognized in NAACP v. Alabama ex rel.

Patterson, 357 U. S. 449 (1958). From its inception, it has

been a right grounded in belief and expression.

“Effective advocacy of both public and private points of

view, particularly controversial ones, is undeniably en-

hanced by group association, as this Court has more than

once recognized by remarking upon the close nexus be-

tween the freedoms of speech and assembly. It is beyond

debate that freedom to engage in association for the ad-

vancement of beliefs and ideas is an inseparable aspect of

the ‘liberty’ assured by the Due Process Clause of the

Fourteenth Amendment, which embraces freedom of

speech.” /d., at 460 (citations omitted).

The beliefs protected by this right are broad, “political,

economic, religious, or cultural matters,” ibid., but the First

Amendment associational right is still grounded in the core

First Amendment values—protecting participation in the

“marketplace of ideas.” See Widmar v. Vincent, 454 U.S. 263,

267-268, n. 5 (1981).

The difference between First Amendment expressive

association and substantive due process family association was

— in Roberts v. United States Jaycees, 468 U. S. 609

(1984).

“Our decisions have referred to constitutionally pro-

tected ‘freedom of association’ in two distinct senses. In

one line of decisions, the Court has concluded that choices

to enter into and maintain certain intimate human relation-

ships 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. In this respect, freedom of association receives

protection as a fundamental element of personal liberty. In

another set of decisions, the Court has recognized a right to

associate for the purpose of engaging in those activities

protected by the First Amendment—speech, assembly,

petition for the redress of grievances, and the exercise of

religion. The Constitution guarantees freedom of associa-

tion of this kind as an indispensable means of preserving

other individual liberties.” /d., at 617-618 (emphasis

added).

The First Amendment right of expressive association is

limited to groups engaging in “expressive activity,” but it “is

not reserved for advocacy groups.” Boy Scouts of America v.

Dale, 530 U. S. 640, 648 (2000). However, incidental expres-

sive activity is not sufficient to invoke constitutional scrutiny

of regulation of a group. “It is possible to find a kernel of

expression in almost every activity a person undertakes . . . .”

Dallas, 490 U. S., at 25. The purpose of the right of expressive

association is to protect the organization’s ability to advocate

viewpoints. See Boy Scouts, supra, at 650. “It is only when the

association is predominantly engaged in protected expression

that state regulation of its membership will necessarily affect,

change, dilute, or silence one collective voice that would

otherwise be heard.” Roberts, 468 U. S., at 635-636 (O’Con-

nor, J., concurring in part and concurring in the judgment). As

important as the right to intimate association is, it has nothing

to do with the presence of a collective voice in the marketplace

of ideas.

Because family association is not a First Amendment right,

see 4 R. Rotunda & J. Nowak, Treatise on Constitutional Law

§ 20.41, p. 522 (3d ed. 1999) (noting due process and connec-

tion to right of privacy as source), it is inappropriate to catego-

rize the right claimed by the prisoners in the present case as a

First Amendment association right. Any tangential expressive

function of the family is satisfied in this case through the

existence of alternative means of communication. Since the

regulations do not prohibit letters, phone calls, or meetings with

counsel, the prisoners’ First Amendment rights remain intact.

Cf. Pell v. Procunier, 417 U. S. 817, 823 (1974) (importance of

alternate means of communication).

It is important to keep the First Amendment and the

substantive due process analyses distinct. The First Amend-

ment has a favored position in constitutional law. It is consid-

ered “the matrix, the indispensable condition, of nearly every

other form of freedom.” Palko v. Connecticut, 302 U.S. 319

327 (1937). “Freedom of press, freedom of speech, freedom of

religion are in a preferred position.” Murdock v. Pennsylvania

319 U.S. 105, 115 (1943), overruled on other grounds in Texas

Monthly, Inc. v. Bullock, 489 U.S. 1, 21 (1989). The favored

position is reflected by how this Court reviews First Amend-

ment challenges to government actions. In order to protect the

“the Court has applied a narrowed presumption of constitu-

tionality, strictly construed statutes to avoid limiting First

Amendment freedoms, restricted prior restraint ard subse-

quent punishment, relaxed general requirements of standing

to sue and generally set higher standards of procedural due

process in order to give vitality to those freedoms over

ordinary governmental functions.” Rotunda & Nowak,

supra, § 20.7, at 258.

Since this is a prison case, not all of these advantages ma

be available for the prisoners and their families. Cf. Pell, 417

U. S., at 822 (incarceration leads to a loss of constitutional

rights); Jones v. North Carolina Prisoners’ Labor Union, Inc.

433 U. S. 119, 125-126 (1977) (the most obvious First Amend-

ment right lost by incarceration is association). But it is still

important to keep the First Amendment and substantive due

process distinct. Substantive due process has a controversial

10

background and does not share the First Amendment's favored

position. See Part II-A, infra. Confusion between the First

Amendment and substantive due process rights of association

could spill outside prisoner rights, needlessly complicating the

law and elevating the right to family association beyond what

this Court intends. These two very different rights should be

treated differently, and the First Amendment claims in this case

should be dismissed.

Il. There is no substantive due process right to

family association in prison.

Protection of the nonexpressive component of relationships

is found in this Court’s seer ee eta Sp weer eden

aspect of due process typically protects y re ps.

See Roberts v. United States Jaycees, 468 U.S. 609, 619-620

(1984). Several aspects of family life come within this right,

including “marriage, childbirth, the raising and education of

children, and cohabitation with one’s relatives... .” Id., at 619

(citations omitted). This Court has not yet recognized a

substantive due process prison visitation right. The closest this

Court has come to recognizing a right to visitation is when a

plurality of this Court recognized a right to cohabit with

relatives in Moore v. East Cleveland, 431 U. S. 494, 505-506

(1977). This is too slender a reed to support a right to prison

visitation. With respect to substantive due process, prison

visitation is a privilege, not a right.

A. The Problematic Doctrine.

Before considering whether to extend a right of family

difficulties posed by the doctrine of substantive due process.

Beyond any oxymoronic problems posed by the right, see

Washington v. Glucksberg, 521 U.S. 702, 756 (1997) (Souter,

J., concurring); United States v. Carlton, 512 U. S. 26, 39

(1994) (Scalia, J., concurring), lies the more fundamental

problem of the indeterminancy of substantive due process.

Because the rights deemed fundamental under substantive due

Process are not moored in any specific constitutional guarantee

such as the Bill of Rights, this doctrine runs the risk of being a

vehicle through which the personal preferences of individual

judges are transformed into law. Courts and commentators

agree. A particularly telling critique of this Court’s fundamen-

tal rights jurisprudence is that the task of separating fundamen-

tal from nonfundamental rights “requires the judiciary to take

normative and moral positions that cannot be demonstrated.”

Grano, Judicial Review and a Written Constitution in a Demo-

cratic Society, 28 Wayne L. Rev. 1, 25 (1981). Even though

this Court has broken from the subjective natural law analysis

found between the 1880's and 1937, its fundamental rights

analysis remains subjective, and the modern opinions justifying

substantive due process are “confusing.” See 2 R. Rotunda &

J. Nowak, Treatise on Constitutional Law § 15.7, p. 627 (3d ed.

1999). Lacking a reliable means of reining in judicial discre-

tion makes substantive due process an often dangerous field for

this Court to navigate. See Albright v. Oliver, 510 U. S. 266,

281 (1994) (Ginsburg, J., concurring).

This fear is justified. Some of the worst decisions have

come when courts “substitute their own pieasure to the constitu-

tional intentions of the legislature.” See The Federalist No. 78,

pp. 468-469 (C. Rossiter ed. 1961) (A. Hamilton). Due process

was invoked to create a constitutional right to own slaves in a

territory where Congress had abolished slavery. See Dred Scott

v. Sandford, 60 U.S. (19 How.) 393, 450-451 (1857). Some of

the most notorious attempts by this Court to have the final say

over economic policy were based on substantive due process.

In Lochner v. New York, 198 U. S. 45, 53, 57 (1905), the

doctrine allowed this Court to find a constitutional right to

liberty of contract that overrode a statutory maximum on

working hours, while in Adkins v. Children's Hospital of D. C.,

261 U.S. 525, 559 (1923) substantive due process allowed this

Court to strike down a minimum wage law. See Glucksberg,

521 U. S., at 760-761 (Souter, J., concurring).

12

This Court has become understandably reluctant to expand

the frontiers of substantive due process.

“But we ‘have always been reluctant to expand the

concept of substantive due process because guideposts for

responsible decisionmaking in this unchartered area are

scarce and open-ended.” Collins [v. Harker Heights}, 503

U. S. [115], 125 [(1992)]. By extending constitutional

protection to an asserted right or liberty interest, we, to a

great extent, place the matter outside the arena of public

debate and legislative action. We must therefore ‘exercise

the utmost care whenever we are asked to break new ground

in this field,” ibid., lest the liberty protected by the Due

Process Clause be subtly transformed into the policy

preferences of the Members of this Court, Moore, 431

U. S., at 502 (plurality opinion).” /d., at 720 (majority

opinion); see also County of Sacramento v. Lewis, 523 U.S.

833, 842 (1998).

a sr nm wm NE —

reinforced against efforts to expand it into our prisons.

not every right currently recognized as fundamental is lost by

imprisonment, see Turner v. Safley, 482 U. S. 78, 95 (1987)

(right to marry), prison is a particularly inappropriate context

for the creation of substantive due process rights. Constitu-

tional protections are necessarily limited in prison. See Shaw

v. Murphy, 532 U. S. 223, 229 (2001). “The limitations on the

exercise of constitutional rights arise both from the fact of

deterrence of crime, rehabilitation of prisoners, and institutional

security.” O'Lone v. Estate of Shabazz, 482 U. S. 342, 348

(1987). Deterrence is a chief purpose of imprisonment. See

There is one fundamental right that is relevant to prison, the right to be

: fe fom restrning individual feedom through incarceration. Se

DeShaney v. Winnebago County Dept. of Social Servs. 489 U. 6. 18°,

200 (1989). A valid conviction extinguishes this interest. See v.

Flores, 507 U. S. 292, 316 (1993) (O’Connor, J., concurring).

13

Rhodes v. Chapman, 452 U. 8. 337, 352 (1981); 18 U.S. C.

§ 3553(a)(2)(B). A prison that fails to punish cannot deter and

thus fails its basic function. Finally, federalism also limits

federal judicial supervision of state prisons in the name of

prisoner rights. Prisons are central to the state’s most important

function, protecting its citizens. “It is difficult to imagine an

activity in which a State has a stronger interest, or one that is

more intricately bound up with state laws, regulations, and

procedures, than the administration of its prisons.” Preiser v.

Rodriguez, 411 U. S. 475, 491-492 (1973). Therefore, “the

federal courts do not sit to supervise state prisons, the adminis-

tration of which is of acute interest to the States.” Meachum v.

Fano, 427 U. 8. 215, 229 (1976).

Running a prison is an extraordinarily difficult task.

Adrainistrators have to ensure punishment, maintain security,

and respect the rights retained by the prisoners. R izi

the many problems of prison administration, this Court gives

considerable deference to the prison administrators. “Because

the realities of running a penal institution are complex and

difficult, we have also recognized the wide-ranging deference

to be accorded the decisions of prison administrators.” Jones

v. North Carolina Prisoners’ Labor Union, Inc.,433 U.S. 119,

126 (1977). Deference is necessary

“if ‘prison administrators . . . , and not the courts, [are] to

make the difficult judgments concerning institutional

operations.’ Subjecting the day-to-day judgments of prison

officials to an inflexible strict scrutiny analysis would

seriously hamper their ability to anticipate security prob-

lems and to adopt innovative solutions to the intractable

problems of prison administration.” Turner v. Safley, 482

U. S. 78, 89 (1987) (quoting Jones, 433 U. S., at 128).

Unfortunately, there are too many examples of lower federal

courts failing to give proper deference to the prison administra-

tion. Courts have dictated the type of detergent (Boraxo) and

its dilution (one-half cup per gallon of water) used in cleaning,

see M. Boot, Out of Order 138 (1998), and ordered that

14

prisoners be allowed to retain six issues of monthly magazines

for up to three months, see Chilton & Talarico, Politics and

Constitutional Interpretation ‘a !'rison Reform Litigation: The

Case of Guthrie v. Evans, in Courts, Corrections, and the

Constitution 117 (J. Dilulio ed. 1990), or declared a right to

have a subscription to Playboy and possess hot pots in cells.

See Hook v. State of Arizona, 120 F. 3d 921, 923 (CA9 1997).

Sometimes these excesses are cured by higher courts. The

Ninth Circuit modified the extraordinarily invasive District

Court order in Hook. See id., at 926. In Lewis v. Casey, 518

U. S. 343 (1996), this Court struck down an order that

“specified in minute detail the times that libraries were to

be kept open, the number of hours of library use to which

each inmate was entitled (10 per week), the minimal

educational requirements for prison librarians (a library

science degree, law degree, or paralegal degree), the content

of a videotaped legal-research course for inmates (to be

prepared by persons appointed by the Special Master but

funded by ADOC), and similar matters.” /d., at 347.

These are not isolated cases. “Rather, the prison cases

constitute a rapid, inexorable procession of discrete decisions,

formulated by federal trial courts throughout the nation and

affirmed repeatedly at the appellate level.” M. Feeley &

E. Rubin, Judicial Policy Making and the Modern State 19

(2000). “The Constitution charges federal judges with deciding

cases and controversies, not with running state prisons. Yet too

frequently federal district courts in the name of the Constitution

effect wholesale takeovers of state correctional facilities and

run them by judicial decree.” Lewis, 518 U. S., at 364 (Thom-

as, J., concurring). The results are often disastrous to society,

administrators, guards, and even the prisoners. See W. Hage-

dorn, The Consequences of Federal District Court Intervention

into Prisons and Jails: Philadelphia, Texas, and Arizona 2-7

(Brookings Institution 1995); Dilulio, The Old Regime and the

Ruiz Revolution: The Impact of Judicial Intervention on Texas

Prisons, in Courts, Corrections, and the Constitution, supra, at

15

51, 69-70; Engel & Rothman, The Paradox of Prison R

~70; | eform:

Rehabilitation, Prisoners’ Rights, and Violence, 7 Harv. J. L. &

Pub. Pol’y 413, 431 (1984).

The wholesale importation of substantive due process

concepts into prison would guarantee even more judicial

meddling. The imprecisely defined guarantees of the Eighth

Amendment’s cruel and unusual punishment prohibition have

already been a fertile source of judicial intervention into

prisons. See Cripe, Courts, Corrections and the Constitution:

A Practitioner’s View, in Courts, Corrections, and the Constitu-

tion, supra, at 271-272. Substantive due process poses greater

risks. With less textual mooring than this Court’s Eighth

Amendment jurisprudence, it is more likely that courts will

substitute their version of the common good for what the

Constitution demands. This Court’s natural wariness about

extending substantive due process should be sharpened in the

context of prison litigation. Although Turner demonstrates that

not all substantive due process guarantees are lost by imprison-

ment, this Court should be most reluctant to extend this

doctrine any further inside the prison. A conviction that

comports with the requirements of procedural due process

necessarily places severe limits on one’s rights under substan-

tive due process.

B. A Privilege, Not A Right.

In Turner v. Safley, supra, this Court advanced a four-part

test for reviewing prisoners’ constitutional claims. See 482

U. &., at 89-90. The Turner standard operates under the

assumption that the regulations being analyzed conflict with a

Constitutional right that might extend to prison life. “[WJhen a

prison regulation impinges on inmates’ constitutional rights, the

regulation is valid if it is reasonably related to legitimate

penological interests.” Id., at 89 (emphasis added). The four-

part test determines whether the regulation is in fact reasonable.

See id., at 89-90. While Turner provides an appropriate

framework for analyzing conflicts between prisoners’ rights and

X

16

administrative needs, it is not relevant to every constitutional

claim made by a prisoner. If the alleged constitutional right

does not extend into prison, then Turner is inapposite. Turner

is not relevant to this case because whatever right to family

association may be guaranteed by due process does not extend

to a right to prison visitation.

Any substantive due process theory of the prisoners must

rely upon Moore v. East Cleveland, 431 U.S. 494 (1977). This

case confronted a patently unfair ordinance that limited

eccupancy of dwellings to members of a single, very narrowly

defined family. See id., at 495-496 (plurality). Mrs. Moore

was jailed and fined under the ordinance for having her

grandson live with her after his mother’s death due to the

presence of the boy’s uncle and cousin in the same household.

See id., at 497. The plurality held that this violated substantive

due process by forcing people to live “in certain narrowly

defined family patterns.” Jd., at 506. The plurality derived

support for its holding from decisions protecting “the sanctity

of the family precisely because the institution of the family is

deeply rooted in this Nation’s history and tradition.” /d., at

503. The family allows society to “inculcate and pass down

many of our most cherished values, moral and cultural.” /d., at

503-504. The tradition of respect was not limited to nuclear

families, see id., at 504, as non-nuclear families were also

worthy of protection. See id., at 504-505. According to the

plurality, this reliance on tradition placed appropriate limits on

substantive due process. See id., at 503. This was the extent of

the plurality’s analysis in support of its decision. The remain-

ing analysis was devoted to a discussion of substantive due

process and the risks of judicial overreaching. See id., at 500- -

502. The fifth vote for reversing Mrs. Moore’s conviction was

supplied by Justice Stevens’ concurrence, which concluded that

East Cleveland’s unprecedented zoning regulation “constitutes

a taking of property without due process and without just

compensation.” /d., at 521 (Stevens, J., concurring).

17

Moore is a difficult case. The ordinance is indefensible, but

the analysis for overturning it is thin. Compounding this

problem is the fact that the case provides no majority rule

beyond its facts. The rule that the narrowest opinion in a split

decision provides the majority rule, see Marks v. United States,

430 U. S. 188, 193 (1977), is sometimes “more easily stated

than applied,” see Nichols v. United States, 511 U. S. 738, 745

(1994), and so it is in Moore. It is not clear which of the two

opinions is narrower. Since there is little, if any, common

ground between Justice Stevens’ takings analysis and the

plurality’s approach, the better view is that Moore provides-no

precedent other than what can be drawn from its facts. See

generally Brief for Criminal Justice Legal Foundation as

Amicus Curiae in Grutter v. Bollinger, No. 02-241. Moore

only establishes that the government may not prevent an

extended family from living together on land that is zoned for

dwellings.

Any attempt to expand Moore to support a right to prison

visitation must confront Kentucky Department of Corrections

v. Thompson, 490 U. S. 454 (1989). Thompson addressed

whether Kentucky prison regulations gave inmates a protected

liberty interest in receiving certain visitors. See /d., at 455.°

Before addressing that issue, this Court addressed whether the

Due Process Clause itself guaranteed prison visitation. The

answer was an emphatic “no.”

“Respondents do not argue—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

Process Clause. We have rejected the notion that ‘any

change in the conditions of confinement having a substan-

tial adverse impact on the prisoner involved is sufficient to

invoke the protections of the Due Process Clause.’ (Em-

phasis in original.) Meachum v. Fano, 427 U. S. 215, 224

3. Thompson’s approach to protected liberty interests was abandoned in

Sandin v. Conner, 515 U.S. 472, 483, n. 5 (1995).

18

(1976). This is not to say that a valid conviction extin-

guishes every direct due process protection; “consequences

visited on the prisoner that are qualitatively different from

the punishment characteristically suffered by a person

convicted of crime’ may invoke the protections of the Due

Process Clause even in the absence of a state-created right.

Vitek v. Jones, 445 U. S. 480, 493 (1980) (transfer to

mental hospital). However, ‘[a]s long as the conditions or

degree of confinement to which the prisoner is subjected is

within the sentence imposed upon him and is not otherwise

violative of the Constitution, the Due Process Clause does

not in itself subject an inmate’s treatment by prison authori-

ties to judicial oversight.’ Montanye v. Haymes, 427 U. S.

236, 242 (1976). The denial of prison access to a particular

visitor ‘is well within the terms of confinement ordinarily

contemplated by a prison sentence,’ Hewitt v. Helms, 459

U. S. [460,] 468 [(1983)], and therefore is not independ-

ently protected by the Due Process Clause.” /d., at 460-

461.

Since the quoted passage only rejected an “unfettered” right

-of visitation, it is not controlling. Nonetheless, if prison

visitation was “implicit in the concept of ordered liberty” so

that “neither liberty nor, justice would exist if [it] were

sacrificed,” Palko v. Connecticut, 302 U. S. 319, 325, 326

(1937), overruled on other grounds in Benton v. Maryland, 395

U.S. 784, 793 (1969), or “deeply rooted in this Nation’s history

and tradition,” Moore, 431 U. S., at 503 (plurality), the Thomp-

son Court would have mentioned it. Since there is no funda-

mental right to prison visitation, this Court could summarily

dismiss the notion that due process guarantees unfettered

visitation.

History and tradition support the lack of precedent for any

right to visitation. “Historically, there have been highly

restrictive practices imposed on correspondence and visiting by

prison administrators.” S. Brodsky, Families and Friends of

Men in Prison 5 (1975). Prisons as we now know them did not

19

exist when the Constitution was ratified. Imprisonment was not

a typical punishment in the colonial era. See T. Blomberg &

K. Lucken, American Penology 29 (2000). Colonial jails did

not punish, but simply held prisoners awaiting trial. See id., at

32-33. Prisons at the Constitution’s founding were few, dreary,

and overwhelmed with prisoners. See id., at 44. The first

prisons, developed during the 1830’s, were designed to isolate

the offender from society in order to prevent the spread of the

disease of criminality. See id., at 53. In these facilities, the

prisoners “were forbidden to have any contact whatsoever with

their families, because familial influence was considered

‘corrupting.’” S. Christianson, With Liberty for Some 144-145

(1998). Some institutions eventually relaxed rules against

outside contact. “By the 1840’s, Sing Sing was allowing

convicts to send one letter every six months, provided it was

penned by the chaplain and censored by the warden. Each

prisoner was also permitted to have one visit from his relatives

during his sentence, provided it was properly supervised.” /d.,

at 145. Reform movements ameliorated some of the harshness

of early prisons, but visitation was still heavily restricted. A

common approach was to segregate prisoners according to how

they were progressing on the road to reform. Those in the

lower class, the third grade, were denied visitation privileges.

See Blomberg & Lucken, at 72.

While visitation became much more common after World

War II, see id., at 110, it still is often difficult, and typically

subject to extensive regulation by the prison administration.

~ Commentators frequently complain about the difficulty many

families have in visiting their imprisoned family members due

to geography and prison regulations. See, e.g., Christianson,

supra, at 301; 2 M. Mushlin, Rights of Prisoners § 12.00, p. 88

(2d ed. 1993); Hardwick, Punishing the Innocent: Unconstitu-

tional Restrictions on Prison Marriage and Visitation, 60

N. Y. U. L. Rev. 275, 280 (1985).

Imprisonment necessarily limits the prisoner’s family

contacts. Isolation is a necessary consequence of imprison-

20

ment. See Pell v. Procunier, 417 U. S. 817, 822 (1974).

“Perhaps the most obvious of the First Amendment rights that

are necessarily curtailed by confinement are those associational

rights that the First Amendment protects outside of prison

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

433 U.S. 119, 125 (1977). Like its First Amendment counter-

part, family association is the most obvious substantive due

process right taken away by imprisonment.

This Court has upheld prison policies that place severe

burdens on family visitation. Olim v. Wakinekona, 461 U. S.

238, 240-241 (1983), addressed the transfer of a prisoner from

a prison outside of Honolulu, Hawaii, to Folsom State Prison,

just outside of Sacramento, California. The Ninth Circuit held

that the Hawaii regulations had created a constitutionally

protected liberty interest that had been violated in the transfer.

See id., at 243. This Court addressed this issue and “whether

the Due Process Clause in and of itself protects against inter-

state prison transfers ....” /d., at 244. A prisoner “has no

justifiable expectation that he will be incarcerated in any

particular State.” /d., at 245. Interstate transfer was a fact of

life in the federal system and occurred in many state systems.

See id., at 245-247. The extraordinary distance involved did

not change the analysis. See id., at 247. Most importantly, the

grave effects this would have on family visitation were irrele-

vant to the due process analysis.

“Respondent’s argument to the contrary is unpersuasive.

The Court in Montanye took note that among the hardships

that may result from a prison transfer are separation of the

inmate from home and family, separation from inmate

friends, placement in a new and possibly hostile environ-

ment, difficulty in making contact with counsel, and

interruption of educational and rehabilitative programs.

427 U. S., at 241, n. 4. These are the same hardships

respondent faces as a result of his transfer from Hawaii to

California.” Jd., at 248, n. 9.

21

Montanye v. Haymes, 427 U. S. 236 (1976) upheld an

intrastate prison transfer made for disciplinary reasons. See id.,

at 243. The Court of Appeals had found that the transfer placed

significant hardship on the prisoner because it moved him

several hundred miles from his home and family. /d., at 241,

n. 4. As in Olim, this consideration had no constitutional

significance.

Prison visitation is not protected as a fundamental right

under substantive due process. There is no history and tradition

of family visitation. While prisons have allowed family

visitation, heavy regulation is a fact of life in many prisons.

See Mushlin, supra, § 12.00, at 88; infra, at 26. This Court has

repeatedly upheld regulations that have substantially dimin-

ished the prisoner’s ability to receive visitors. Even a commen-

tator sympathetic to prisoner rights notes that “locating a

constitutional anchor for [prison visitation] is a formidable

task.” /d., § 12.01, at 88. The fact that this Court has not even

hinted at a right to visitation even when presented with the

opportunity to do so is telling. “The mere novelty of such a

claim is reason enough to doubt that ‘substantive due process’

sustains it; the alleged right certainly cannot be considered ‘ “so

rooted in the traditions and conscience of our people as to be

ranked as fundamental.” ’” Reno v. Flores, 507 U.S. 292, 303

(1993) (quoting United States v. Salerno, 481 U.S. 739, 751

(1987) (quoting Snyder v. Massachusetts, 291 U. S. 97, 105

(1934))). If there is any national tradition with regard to prison

visitation, it is that visitation is not a right but a privilege.

The other lines of substantive due process inquiry do not

change the result. Executive branch action can violate substan-

tive due process if it is so egregious that it “shocks the

conscience.” County of Sacramento v. Lewis, 523 U. S. 833,

846 (1998). This inquiry is more appropriate under the Eighth

Amendment than substantive due process. If a specific consti-

tutional provision such as the Fourth or Eighth Amendment

may cover a claim, then the constitutional analysis should focus

on the specific constitutional provision rather than substantive

22

due process. See United States v. Lanier, 520 U. S. 259, 272,

n. 7 (1997). The Eighth Amendment provides an adequate

means of analyzing any conduct of prison officials that might

shock the conscience. See Whitley v. Albers, 475 U. S. 312,

327 (1986).

Nor are «ie regulations arbitrary. See Lewis, 523 U. S., at

846. These s< ulations are intended to allow the administration

to conserve scarce resources, to control the visiting environ-

ment, and to deter drug use by prisoners. This is not “govern-

ment power arbitrarily and oppressively exercised.” Jbid.

Since there is no fundamental right to prison visitation, the

regulations do not violate substantive due process.

Ill. Withdrawal of prisoners’ visitation privileges for

twice violating prison substance abuse policies does

not violate the Eighth Amendment.

The Court of Appeals in the present case held that depriving

an inmate of visitation privileges for a minimum of two years

unusual punishment as prohibited by the Eighth Amendment.

See Bazzetta v. McGinnis, 286 F . 3d 311, 322 (CA6 2002). In

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

the perimeters for establishing an Eighth Amendment claim for

situations involving alleged unconstitutional prison conditions.

Specifically, an inmate making such allegations must prove that

the conditions are objectively “ ‘sufficiently serious’ ” and that

the conditions are a result of culpable acts by prison officials.

See Farmer v. Brennan, 511 U. S. 825, 834 (1994) (quoting

Wilson, 501 U. S., at 298). The latter subjective part of the

analysis has been construed to require “ ‘deliberate indiffer-

ence’ ” on the part of the prison official. /d., at 834 (quoting

Wilson, 501 U. S., at 303). Although the Sixth Circuit applied

23

this test, the analysis was summary, incorrect, and almost

unique.‘ There is no Eighth Amendment violation here.

In Hudson v. McMillian, 503 U. S. 1 (1992), this Court

explained the objective portion of the analysis. This prong

requires the inmate to prove some extreme deprivation. /d., at

8-9; see also Wilson, 501 U. S., at 298 (stating the test as

whether the deprivation was sufficiently serious). “Because

routine discomfort is ‘part of the penalty that criminal offenders

pay for their offenses against society,’ Rhodes, [v. Chapman,

452 U. S. 337], 347 [(1981)], ‘only those deprivations denying

“the minimal civilized measure of life's necessities” are

sufficiently grave to form the basis of an Eighth Amendment

violation.’ ” Hudson, 503 U. S., at 9 (quoting Wilson, 501

U. S., at 298 (quoting Rhodes, 452 U. S., at 347)) (emphasis

added).

What constitutes the “minimal civilized measures of life’s

necessities” was best described by this Court in a case contrast-

ing requirements of custody with the government's obligations

to the general population:

“When the State takes a person into its custody and hulds

a corresponding duty to assume some responsibility for his

safety and well being. ... The rationale for this principle is

simple enough: when the State by the affirmative exercise

of its power so restrains an individual’s liberty that it

renders him unable to care for himself, and at the same time

fails to provide for his basic human needs—e.g., food,

clothing, shelter, medical care, and reasonable safety—it

transgresses the substantive limits on state action set by the

Eighth Amendment and the Due Process Clause.” De-

Shaney v. Winnebago County Dept. of Social Servs., 489

4. Besides the Sixth Circuit, the only other court to state that a total denial

of visitation would violate the Eighth Amendment was in Laaman v.

Helgemoe, 437 F. Supp. 269, 322 (D NH 1977), and that statement was

made in dicta.

24

U. S. 189, 199-200 (1989) (emphasis added); see also

Wilson, 501 U. S., at 304 (identifying examples of basic

human needs as food, warmth, and exercise); Farmer, 511

U. S., at 858 (Blackmun, J., concurring) (prison conditions

case citing DeShaney).

Although visitation from family or friends is important to

inmates, see Block v. Rutherford, 468 U.S. 576, 589 (1984), it

is not on the same level as the life’s necessities identified in

DeShaney. In fact, “[iJnactivity, lack of companionship and a

low level of intellectual stimulation do not constitute cruel and

unusual punishment.” Bono v. Saxbe, 620 F. 2d 609, 614

(CA7 1980). Furthermore, those inmates who receive the ban

on visitation still retain the privilege of phone calls and letter

writing to keep in contact with those friends and family

members outside the prison walls. Throughout its opinion, the

importance of visitation to an inmate’s mental health, family

McGinnis, 148 F. Supp. 2d 813, 851-853 (ED Mich. 2001).

This Court must keep in mind, however, that reference to such

expert opinion, although helpful and informative, does “ ‘not

establish the constitutional minima’ ” and does not weigh very

heavily in determining what constitutes contemporary standards

of decency under the objective component of the applicable

Eighth Amendment analysis. See Rhodes v. Chapman, 452

U. S. 337, 348-349, n. 13 (1981).

This Court has never held that an inmate has an absolute

right to visitation. Rather, case law directs just the opposite.

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

460-461 (1989); supra, at 17-18. This Court also held in Block,

468 U. S., at 589, that pretrial detainees have no constitutional

right to contact visits. In both Thompson and Block, the

established principle that “the safe and efficient operation of a

prison on a day-to-day basis has traditionally been entrusted to

25

the expertise of prison officials... .” Hewitt v. Helms, 459

U. S. 460, 470 (1983).

The prison officials in Michigan have determined that the

best way to run their prison is to take away the visitation

privileges of those prisoners who take it upon themselves to

violate the prison’s substance abuse policies more than once.

Incarceration in and of itself brings about the necessary

withdrawal of privileges and rights which is justified by

considerations underlying the penal system. Jones v. North

Carolina Prisoners’ Labor Union, Inc., 433 U. 8. 119, 125

(1977). Punishing inmates “effectuates prison management and

prisoner rehabilitative goals” and “[cjiscipline by prison

officials in response to a wide range of misconduct falls within

the expected perimeters of the sentence imposed by a court of

law.” Sandin v. Conner, 515 U. S. 472, 485 (1995); see also

Sumner v. Shuman, 483 U. S. 66, 84 (1987) (noting the

“deprivation of privileges of . . . socialization” as an available

and appropriate sanction).

Regardless of why an inmate is in prison, prison officials

should have the right to determine how to punish those inmates

if they choose to break prison rules. In this case, prison

officials decided that the appropriate punishment for violating

the prison’s substance abuse policies on two or more incidents

is to take away visitation privileges. If it is not cruel and

unusual punishment to put a person in prison for violating a

state substance abuse law, then why should it be cruel and

unusual to further restrict the liberty of an inmate who violates

a substance abuse rule even while incarcerated. In other words,

if a person violates a state substance abuse law, he or she loses

his or her freedom to visit with people outside-of prison when

sentenced by a court of law to jail time. If an inmate violates a

prison substance abuse policy, similar consequences do not

violate the Eighth Amendment. “Prison is a society in minia-

ture with its own rules of conduct and its own punishment for

their violation.” 1 M. Mushlin, Rights of Prisoners § 9.00, p.

422 (2d ed. 1993). Because the inmate’s freedom is already

\

26

deprived, the next logical step is to restrict visitation with

people outside of the prison walls again. The ability to punish

a person for violating a rule or regulation should not stop at the

prison gates.

This Court has held that not all restrictive or harsh condi-

tions of confinement violate the Eighth Amendment. Rather,

“conditions that cannot be said to be cruel and unusual under

contemporary standards are not unconstitutional. To the extent

that such conditions are restrictive and even harsh, they are part

of the penalty that criminal offenders pay for their offenses

against society.” Rhodes v. Chapman, 452 U. S. 337, 347

(1981) (emphasis added). In this case, under Michigan’s

regulations it is the inmates who bring the withdrawal of

visitation privileges upon themselves. The inmates hold the

keys to their visitation privileges. If they decide to disobey the

prison’s rules regarding substance abuse in the prison on two or

more occasions, then they themselves cut off any future

visitation from friends or family. The fact that they are repeat

offenders makes them even more deserving of punishment. See

Rummel v. Estelle, 445 U. S. 263, 284 (1980); Solem v. Helm,

463 U. S. 277, 296 (1983). Conversely, those inmates who

abide by prison rules keep their visitation privileges. Prison

officials have decided that the best way to curtail substance

abuse within the prison walls is to discipline those who cause

the problems to occur in the first place.

The Sixth Circuit incorrectly focused on the title of the

visitation ban. Rather than focus on the substance of the

regulation, the Sixth Circuit homed in on the word “permanent”

and held that a permanent ban is an “extremely harsh measure”

and “[i}t far exceeds punishments meted out by any other state

prison system for comparable violations.” Bazzetta, 286 F. 3d,

at 322-323. The substance of the regulation states that the ban

is not in fact permanent, but rather the ban can be lifted after a

minimum of two years. See Bazzetta, 148 F. Supp. 2d, at 833-

834 (stating the substance of the regulation in full). Either the

warden or the restricted inmate can file a written request to have

27

the ban lifted. /bid. A minimum two-year ban is not overly

harsh and is comparable to punishments imposed upon inmates

housed in correctional institutions in other states. See Brief for

States of Colorado, et al., as Amicus Curiae in Support of

Petition for Writ of Certiorari 1, n. 1 (listing rules and regula-

tions of several states with similar restrictions on prison

visitation).

Thus, the decision to withdraw visitation privileges as a

means to curtail substance abuse in Michigan prisons is

appropriately within the purview of prison officials. If an

inmate makes a conscious decision to abide by the prison’s

substance abuse regulations because he or she values visitation

as a sufficiently important privilege, then that inmate can and

will avoid the possibility of having those privileges withdrawn.

Since withdrawing visitation privileges for a minimum of two

years does not constitute a deprivation of one of the “minimal

civilized measures of life’s necessities,” the regulation is

objectively reasonable. The attack on it fails to satisfy the first

prong required for a successful Eighth Amendment challenge.

See Farmer v. Brennan, 511 U. S., at 834.

Farmer explained the subjective portion of Wilson’s two-

part test. See ibid. To satisfy this prong, the inmate must prove

that the prison officials acted with “deliberate indifference.”

See Hudson, 503 U. S., at 5; Estelle v. Gamble, 429 U. S. 97,

104 (1976) (deliberate indifference to a prisoner’s serious

medical needs constitutes cruel and unusual punishment).

“[A] prison official cannot be found liable under the Eighth

Amendment for denying an inmate humane conditions of

confuement unless the official knows of and disregards an

excessive risk to inmate health or safety, the official must

both be aware of facts from which the inference could be

drawn that a substantial risk of serious harm exists, and he

must also draw the inference.” Farmer, 511 U. S., at 837.

In Farmer, this Court dealt with a situation where a

biologically male transsexual inmate who projected “ ‘feminine

28

characteristics’ ” was placed in a federal penitentiary with the

general male population. /d., at 829. There the inmate was

beaten and sexually assaulted by another inmate. /d., at 830.

The inmate filed suit against the prison officials arguing that

they had violated his Eighth Amendment rights in that the

officials were deliberately indifferent to the inmate’s safety.

Id., at 831. This Court held that a prison official can be held

liable “only if he knows that inmates face a substantial risk of

serious harm and disregards that risk by failing to take reason-

able measures to abate it.” /d., at 847.

Carelessly throwing a transsexual inmate with feminine

characteristics into the general male prison population is a far

cry from the present case. There is no evidence that the

Michigan prison officials subjectively knew that withdrawing

visitation privileges for a minimum of two years would cause

a substantial risk of serious harm to the inmates’ health or

safety, and with that knowledge, they knowingly failed to take

reasonable measyres to abate that risk.

In summarily addressing this issue, the Sixth Circuit simply

stated, “[t]he second condition is also met, for the harm the ban

does prisoners should be clear to any prison official minimally

concerned with prisoners’ welfare.” Bazzetta, 286 F. 3d, at

323. The Sixth Circuit misconstrued this subjective element of

the test. Purposely withholding medical care, see Estelle, or

purposely placing an inmate in a situation where he or she is

highly likely to be assaulted, see Farmer, is the kind of mis-

treatment that the Eighth Amendment is intended to prohibit.

The prison officials’ lack of action in both Estelle and Farmer

could lead to the inmate’s death or serious injury. The prison

officials’ lack of action in Bazzetta would not. A loss of

contact with those outside prison is an inevitable consequence

of imprisonment; being deprived of medicine or being know-

ingly placed in harm’s way is not, and the Eighth Amendment

preserves that distinction. Any risk to the mental health of

prisoners is too tenuous to be an Eighth Amendment concern.

29

Because withdrawing visitation privileges for a minimum

of two years does not constitute the level of deliberate indiffer-

ence as required by Farmer, the regulation is subjectively

reasonable, and the respondents’ claim also fails the second

prong required for a successful Eighth Amendment challenge.

“This court must proceed cautiously in making an

Eighth Amendment judgment because, unless we reverse it,

‘[a] decision that a given punishment is impermissible

under the Eighth Amendment cannot be reversed short of a

constitutional amendment,’ and thus ‘[r]evisions cannot be

made in the light of further experience.’ Gregg v. Georgia,

428 U. S. [153], 176 [(1976)]. In assessing claims that

conditions of confinement are cruel and unusual, courts

must bear in mind that their inquiries ‘spring from constitu-

tional requirements and that judicial answers to them must

reflect that fact rather than a court’s idea of how best to

operate a detention facility.’ Bell v. Wolfish, 441 U. S.

[520], 539 [(1979)].” Rhodes, 452 U. S., at 351.

Therefore, withholding visitation privileges for a minimum

of two years is a valid means of prison discipline that is used by

many states. See supra. Not only do the inmates hold the key

to their own access to or lack of visitation privileges, but those

whose privileges are revoked have the opportunity to get them

back after two years, and they continue to have the ability to

communicate through phone calls and letters. The inmates’

claims in this case fail both the objective and subjective

component of a successful Eighth Amendment prison condi-

tions challenge, and thus the regulations do not run afoul of the

Eighth Amendment’s prohibition of cruel and unusual punish-

ment.

30

CONCLUSION

The decision of the United States Court of Appeals for the

Sixth Circuit should be reversed.

January, 2003

Respectfully submitted,

CHARLES L. HOBSON

Counsel of Record

KYMBERLEE C. STAPLETON

Attorneys for Amicus Curiae

Criminal Justice Legal Foundation