Amicus Curiae Brief — Overton v. Bazzetta

No. 02-94 FILED

IN THE FEB 14 2093

Supreme Court of the Gnited States we

nw

WILLIAM OVERTON, DIRECTOR OF MICHIGAN DEPARTMENT OF

CORRECTIONS; MICHIGAN DEPARTMENT OF CORRECTIONS.

Petitioners.

Vv.

MICHELLE BAZZETTA, et al..

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

BRIEF OF THE PUBLIC DEFENDER SERVICE FOR

THE DISTRICT OF COLUMBIA, COLORADO STATE

PUBLIC DEFENDER, FAMILIES AGAINST

MANDATORY MINIMUMS, FORTUNE SOCIETY,

NATIONAL ASSOCIATION OF CRIMINAL DEFENSE

LAWYERS, NATIONAL ASSOCIATION OF FEDERAL

DEFENDERS, NATIONAL LEGAL AID AND

DEFENDER ASSOCIATION, OFFICE OF THE IDAHO

STATE APPELLATE DEFENDER, OSBORNE

ASSOCIATION, PUBLIC DEFENDER OF INDIANA,

THE WOMEN’S PRISON ASSOCIATION

AND HOME, INC., AS AMICI CURIAE

SUPPORTING RESPONDENTS

PAUL DENENFELD

GIOVANNA SHAY *

Public Defender Service for

the District of Columbia

633 Indiana Avenue. NW

Washington, D.C. 20004

* Counsel of Record (202) 626-8302

WILSON-EPES PRINTING CO. INC. —- (202) 789- 0096 — WASHINGTON, D.C. 20001

I ==

BEST AVAILABLE COPY

TABLE OF CONTENTS

Page

ORs Oe CE I ertectnticcimaminnenemanien iil

STATEMENTS OF INTEREST OF AMICI CURIAE.. |

ORI S censntniontuintsscnrenimmngeninennianinnmentes 5

SUMMARY OF ARGUMENT ...............ccccssssseeeseseeeees 6

RING crcesenitenatigutateinenineannigininaiiiinnmuntin 9

I. U.S. CITIZENS POSSESS A FUNDAMEN-

TAL RIGHT TO ASSOCIATION WITH

FAMILY MEMBERS THAT SURVIVES

INCARCERATION, ALBEIT SUBJECT TO

QUALIFICATION UNDER THE TURNER

5S FFD ercacsntncencemavennenceeeseeupseretenemnnnenenens 9

A. This Court has recognized a constitutional

right to intimate association with family

B. The constitutional right of association

with family members survives incarcera-

tion, although subject to limitation under

PIE ssicctdsctdnietaiteumiteatieatanenmumtetiienadiaiiitt 13

Il. THE RESTRICTIONS ON NON-CONTACT

FAMILY PRISON VISITATION IMPOSED

BY THE MICHIGAN DEPARTMENT OF

CORRECTIONS ARE NOT REASONABLY

RELATED TO LEGITIMATE PENOLOGI-

CAL INTERESTS AS REQUIRED BY

FSEITEEEE cvtoccomesneenienscmmvnsceustnsvmnetmmennaneqnoeniennss 17

A. Michigan has failed to articulate how these

regulations are rationally related to a

legitimate penological interest. .................0. 17

(i)

ii

TABLE OF CONTENTS—Continued

Page

B. The challenged regulations run counter to

the acknowledged penological interest of

SOGRCURG TECHIE VIG. .0000000c0cresceccccccssoveccseccees 21

Ill. THE RESTRICTIONS ON NON-CONTACT

PRISON VISITATION IMPOSED BY THE

MICHIGAN DEPARTMENT OF CORREC-

TIONS CONSTITUTE CRUEL AND UN-

USUAL PUNISHMENT IN VIOLATION OF

THE EIGHTH AMENDMENT ............cccccceceeees 26

SITY cxcorecessovvonsseveseeceronsseneconsscensuseneonesooosvocoses 29

iti

TABLE OF AUTHORITIES

CASES Page

Atkins v. Virginia, 122 S. Ct. 2242 (2002)............. 28

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

SI cee icrsiceesnnrensaseceteiiiainsiismtetemasenaipenttl 18, 19, 20, 29

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

TTI siiiciscssiideiatinignciienianttiemdieasteatiadtnantpiminenenemsesal 6, 7,9, 27

Estelle v. Gamble, 429 U.S. 97 (1976) ..........cccc00 27, 28

Farmer v. Brennan, 511 U.S. 825 (1994).............. 27, 28

Furman v. Georgia, 408 U.S. 238 (1972)........0++ 27

Griswold v. Connecticut, 381 U.S. 479 (1965)...... i)

Hope v. Pelzer, 122 S. Ct. 2508 (2002) ..........00000 9,27

Jones v. North Carolina Prisoners' Labor Union,

i I COE Oicciicinerensctianttnnnnninen 13

Meachum v. Fano, 427 U.S. 215 (1976)................ 26

In re Medley, 134 U.S. 160 (1890) .00.........ccccceceees 17

Meyer v. State of Nebraska, 262 U.S. 390 (1923). i)

Moore v. City of East Cleveland, Ohio, 431 U.S.

Ee Oi cctccnsrsnasmnnsstnsegutcncinpniningpeneeneninenen 7,10

Ng Fung Ho et al.v. White, 259 U.S. 276 (1922)... 29

O'Lone v. Shabazz, 482 U.S. 342 (1987) ......ccc00008 18

Olim v. Wakinekona, 461 U.S. 238 (1983)........ 14, 17, 26

Palko v. State of Connecticut, 302 U.S. 319

Tinea censonpecnsasesnntuaseinacenetegpenscemantnneessansemencenseane 27

Pell v. Procunier, 417 U.S. 817 (1974) ................ 13

Pierce v. Society of the Sisters of the Holy

Names, 268 U.S. 510 (1925)........cccccccccesseeeeeeeees 10

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

Fe ee artstenenneapsenmasnenncseetecenassennmmemesttematenancesns 7, 11

Shaw v. Murphy, 532 U.S. 223 (2001).........cc0cc008 13

Troxel v. Granville, 530 U.S. 57 (2000)........ 7, 10, 11, 19

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

Washington v. Harper, 494 U.S. 210 (1990)......... 7,13

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

iV

TABLE OF AUTHORITIES—Continued

STATUTES AND REGULATIONS

Criminal Justice Act, 18 U.S.C. § 3006A..............

Mich. Admin. Code R. 791.6609 (2)(b)............0000

Mich. Admin. Code R. 791 .6609(5) ............c0c00e0

Mich. Admin. Code R. 791.6609 (6)(a).................

Mich. Admin. Code. R. 791.6609 (11)(d)..............

National Capital Revitalization Act (Revitaliza-

eR On

BOOKS, ARTICLES, AND REPORTS

American Correctional Association Standards for

Adult Correctional Institutions (3rd ed. 1990)...

H.E. Barnes, The Evolution of Penology in

Pennsylvania (1968).............cccseeeeseeees 8, 9, 15,

Andrew Billingsley, Climbing Jacob's Ladder:

The Enduring Legacy of African-American

a

Paul Duggan, “Captive Audience Rates High:

Families Must Pay Dearly When Inmates Call

Collect,” Washington Post, January 23, 2000,

Lawrence Friedman, Crime and Punishment in

American History (1993) ............c.ccserseeeeeeeeees

Herbert G. Gutman, The Black Family in Slavery

and Freedom 1750-1925 (1976) ......ccseseeeeeees

C.F. Hairston, Family Ties During Imprison-

ment: Do They Influence Future Criminal

Activity?, 52 (1) Federal Probation 48-52

C.F. Hairston, Family Ties During Imprison-

ment: Important to Whom and For What?, J.

of Sociology & Social Work 87 (1987).............

Paige M. Harrison, et al., Bureau of Justice

Statistics Bulletin: Prisoners in 2001 (July

16, 25

9, 16

v

TABLE OF AUTHORITIES—Continued

Page

Robert B. Hill, The Strengths of African Ameri-

can Families: Twenty-Five Years Later

Amy Jantz, et al., The Continuing Evolution of

State Kinship Care Policies (Urban Institute

area raccnpempenenndiercetnenamnaiianticeapmenmmamemensmeate 12

John M. Jeffries, et al., Serving Incarcerated and

Ex-Offender Fathers and Their Families (Vera

Institute of Justice 2001) ............ccccccseeeeeeeeeeeeees 24

James P. Lynch & William J. Saybol, Prisoner

Reentry in Perspective (Urban Institute 2001)... 8, 20

Norval Morris & Daniel J. Rothman, The Oxford

History of the Prison (1995) .............ccccccceeeees 9, 15, 16

Marta Nelson, Perry Deess & Charlotte Allen,

The First Month Out: Post-Incarceration

Experiences in New York City (Vera Institute

SE Fa iaicteccnnrtetinnermnensiittimecnemnn 22, 24

Marta Nelson & Jennifer Trone, Why Planning

for Release Matters (Vera Institute of Justice

Sie setianadatiniticastecdniiatennibiestinntenemeinpenigutiiatese 23, 24

N.E. Schafer, Exploring the Link Between Visits

and Parole Success, 38(1) Internation’! J. of

Offender Therapy and Comparative Crimi-

RR Fr Ge ctrsccerrenctttptinpnemesstens 23

Arthur Santana, “D.C. Unprepared for an Influx

of Ex-Convicts, City Officials Say,” Wash-

ington Post, July 21, 2001, at BI... eee 22

Arthur Santana, “Families Lamenting Life After

Lorton,” Washington Post, March 21, 2002, at

elt cinesathletinenansnteinetneimtssnenmmnpiemmenets 29

Eileen Sullivan, et al., Families as a Resource in

Recovery from Drug Abuse (Vera Institute of

SOI etlichicenidtrien tinseemenecnntenvitanssscnsseseneenaees 24

vi

TABLE OF AUTHORITIES—Continued

Page

Jeremy Travis, Amy L. Solomon & Michelle

Waul, From Prison to Home: The Dimensions

and Consequences of Prisoner Reentry (Urban

PL, ) 21, 24, 25

STATEMENTS OF INTEREST OF AMICI CURIAE '

Public Defender Service for the District of Columbia

The Public Defender Service for the District of Columbia

(PDS) represents indigent citizens of the District of Columbia

facing a loss of liberty, whether at trial, on appeal, in post-

conviction proceedings, or in ancillary and collateral matters.

PDS has established a Community Defender Program, which

has a goal of assisting in the reintegration of prisoners

returning to the D.C. community. As a result of the National

Capital Revitalization Act (Revitalization Act), Pub. L. 105-

33 (codified in part at D.C. Code § 24-101 (2002)), many

PDS clients are incarcerated in Bureau of Prisons (BOP)

facilities and contract facilities across the country.

Nonetheless, D.C. family members often make significant

efforts to visit them. This case will determine whether these

visits must be permitted.

Colorado State Public Defender

The Colorado State Public Defender is a statewide public

defender system responsible for representing most indigent

defendants in the state trial and appellate courts. Clients

include individuals serving prison terms for felony

convictions in the Colorado Department of Corrections

(DOC). As reflected in the amicus brief filed by the Colo-

rado State Attorney General, the DOC has promulgated

several regulations that seriously impact the non-contact

visitation rights of affected inmates. The importance to

prisoners of visitation as a means of maintaining contact with

intimate associates cannot be overstated. The DOC’s

regulation of such visits should be tempered by the

requirement recognized by the Sixth Circuit that a regulation

be reasonably related to a legitimate penological interest and

' The parties’ letters of consent have been filed with the Clerk. No

party has authored any part of the brief and no entity external to the amici

organizations has contributed money toward its preparation.

2

by the recognition of the constitutional rights of prisoners

under the First, Eighth, and Fourteenth Amendments.

Families Against Mandatory Minimums

Families Against Mandatory Minimums (FAMM) is a

nonprofit, nonpartisan organization with nearly 30,000

members and forty chapters nationwide. FAMM conducts

research, promotes advocacy and educates the public regard-

ing the excessive costs of mandatory minimum sentencing.

The costs are not limited to public expenditures but include

the perpetuation of unwarranted sentencing disparities, dis-

proportionate sentences, and the transfer of the sentencing

function from the judiciary to the prosecution. FAMM does

not argue that crime should go unpunished, but that the

punishment should fit the crime and culpability of the

offender. FAMM, whose members include prisoners and

their families, has an interest in ensuring that prison policies

not inhibit family contact or lead to the deterioration of

family and social bonds critical to prisoner well-being and

rehabilitation.

Fortune Society

The Fortune Society, founded in 1967, is an ex-offender

service and advocacy organization that provides a broad

range of programs to prisoners and releasees including

alternatives to incarceration and wrap-around reentry serv-

ices. Approximately 2000 releases walk through our doors

each year to seek assistance, and an additional 8,000 pris-

oners are reached annually. In the Fortune Society’s experi-

ence, the support of family members is one of the primary

foundations for a successful reentry from incarceration and

avoidance of future recidivism. For Fortune Society clients,

“family” includes extended family because often that is the

only family that is available, since all too many come from

broken homes or foster care. Fortune Society has learned that

efforts to strengthen a prisoner’s family bonds prior to release

3

are an important part of bringing that prisoner home as a

constructive member of his or her family and community.

National Association of Criminal Defense Lawyers

The National Association of Criminal Defense Lawyers

(NACDL) is a District of Columbia nonprofit corporation

with a membership of more than 10,000 attorneys nation-

wide—along with eighty state and local affiliate

organizations numbering 28,000 members in fifty states.

NACDL was founded in 1958 to promote study and research

in the field of criminal law and procedure, to disseminate and

advance knowledge of the law in the area of criminal justice

and practice, and to encourage the integrity, independence

and expertise of defense lawyers in criminal cases in the state

and federal courts. Among NACDL’s objectives are to

ensure that appropriate measures are taken to safeguard the

rights of all persons involved in the criminal justice system

and to promote the proper administration of justice. In

furtherance of its objectives NACDL files approximately

thirty-five amicus curiae briefs a year, including at least ten

amicus curiae briefs in the United States Supreme Court, on a

variety of criminal justice issues. See NACDL’s website at

www.nacdl.org.

National Association of Federal Defenders

The National Association of Federal Defenders (NAFD)

was formed in 1995 to enhance the representation provided

under the Criminal Justice Act, 18 U.S.C. § 3006A, and the

Sixth Amendment to the United States Constitution. The

Association is a nationwide, nonprofit, volunteer organization

whose membership includes attorneys and support staff of

Federal Defender offices. One of the NAFD’s missions is to

file amicus curiae briefs to ensure that the position of

indigent defendants in the criminal justice system is

adequately represented.

4

National Legal Aid and Defender Association

The National Legal Aid and Defender Association

(NLADA), is a privaie, nonprofit membership organization

founded in 1911. Its purpose is to promote the availability of

quality legal services in civil and criminal cases to individuals

who are unable to afford to retain private counsel. Its

membership includes approximately 3,000 offices, including

civil legal aid providers, public defender programs at the

county, state and federal level, statewide defender

commissions, assigned counsel programs, contract defender

programs, state and local defender associations, law school

criminal clinics, and death penalty trial and post-conviction

programs. It has members in all fifty states and the District of

Columbia, and provides training, technical assistance, internet

information resources, standards, periodicals and other

publications, and amicus curiae participation in appropriate

cases affecting the rights of poor and low-income people

seeking equal access to justice.

Office of the Idaho State Appellate Public Defender

The Office of the Idaho State Appellate Public Defender ©

represents indigent criminal defendants in their appeals from

felony criminal convictions, denial of post-conviction

petitions or denial of state habeas petitions. A vast majority

of its clients are incarcerated; in the past, many have been

housed out of state. Family visitation is critical for their

successful rehabilitation and return to society.

Osborne Association

The Osborne Association is a seventy-five-year-old New

York nonprofit organization that serves prisoners, former

prisoners, and their children and families. Osborne offers

parenting programs to mothers and fathers in four New York

State prisons, operates children’s visiting centers in two

prisons, and provides extensive family reunification serv-

ices for people leaving prison. Osborne’s experience clearly

demonstrates that prisoners who are able to maintain and

5

strengthen family ties during incarceration through humane

visitation and family programs are more likely to successfully

reenter their families and communities, and that their children

are more likely to achieve healthy outcomes.

Public Defender of Indiana

The Public Defender of Indiana represents all indigent, in-

carcerated men and women who request the Public De-

fender’s assistance in state post-conviction actions. The Pub-

lic Defender of Indiana represents approximately 1700 clients

at any given time. A client who is able to maintain strong

family relationships tends to have a better institutional con-

duct record, and also tends to be better able to focus on and

understand the strengths and weaknesses of his or her case.

The Women’s Prison Association and Home, Inc.

Founded in 1844, the Women’s Prison Association and

Home, Inc. (WPA), provides social services to 2000 women

a year in the New York criminal justice system. WPA

also provides technical assistance and training nationally.

Because over seventy-five percent of women in the criminal

justice system are mothers, much of WPA’s work centers on

family preservation. WPA finds that visitation and contact

during incarceration are directly tied to the likelihood of

family reunification upon release. j

STATEMENT

This amicus brief focuses on the Michigan Department of

Corrections (MDOC) regulations at issue that impose across-

the-board bans on non-contact visits with certain categories of

family members. Among the challenged regulations is a bar

on visits by an unemancipated minor child, unless that child

is the child, stepchild, or grandchild of the prisoner. Mich.

Admin. Code R. 791.6609 (2)(b). Visits by minor siblings,

- nieces, nephews, and cousins are forbidden,’ even if the

* After the district court handed down its decision, the MDOC changed

its policy to allow visits by minor siblings. However, on appeal, the

6

prisoner played a significant role in the child’s life and the

child’s non-prisoner parent wants the child to visit the

prisoner. Bazzetta v. McGinnis, 286 F.3d 311, 315 & 318-20

(6th Cir. 2002). Another policy prohibits visits by the

prisoner’s own child if the prisoner’s parental rights have

been terminated, even if parental rights were terminated

voluntarily to allow adoption by another family member and

visits are court-ordered or recommended by a therapist.

Mich. Admin. Code R. 791.6609 (6)(a). Bazzetta, 286 F.3d at

319. An immediate family member or legal guardian must

accompany a child on every visit,’ so a family friend or

extended family member cannot bring a child to visit, even

with the child’s parent’s permission. Mich. Code. Admin. R.

791.6609 (5). Bazzetta, 286 F.3d at 320-21. For incarcerated

parents, this may mean that their own children cannot visit

them because there is no eligible adult to accompany them.

Id. at 320-21.

SUMMARY OF ARGUMENT

Tonight I ask Congress and the American people to

focus the spirit of service and the resources of

government on the needs of some of our most vulnerable

citizens: boys and girls trying to grow up without

guidance and attention, and children who have to go

through a prisor gate to be hugged by mom or dad. _

—President George W. Bush, State of the Union Address,

January 28, 2003

MDOC defended its ability to impose this restriction. Bazzetta v.

McGinnis, 286 F.3d 311, 318 n.1 (6th Cir. 2002).

> The Question Presented in Petitioner’s Petition for a Writ of Cer-

tiorari stated that the regulation required minor children to be accom-

panied by a parent or a legal guardian, Petition at i. However, Petitioner's

Brief, the Sixth Circuit’s Opinion, and the language of the regulation

agree that a child may be accompanied by an immediate family member.

Petitioners’ Brief at 4; Bazzetta, 286 F.3d at 320; Mich. Admin. Code R.

79 | .6609(6 a).

7

This case requires this Court to determine the limits on the

restrictions that states may place on prisoners’ constitutional

right to association with their families. It will decide whether

nieces may visit aunts; minors can visit older cousins; and

children informally cared for by extended kin may visit

parents. It will determine whether some of the visits

described by President Bush in his State of the Union address

just a few weeks ago will go forward. The fundamental

constitutional right of family association has been long

recognized by this Court. Troxel v. Granville, 530 U.S. 57,

66-67 (2000); Roberts v. United States Jaycees, 468 U.S. 609,

618-19 (1984); Moore v. City of East Cleveland, Ohio, 431

U.S. 494, 504-05 (1977). The Sixth Circuit’s opinion relied

in part on a First Amendment analysis, see Bazzetta, 286 F.3d

at 316, but it also relied on the constitutional interest in

association with family, /d. at 317.

This Court has said, “prison walls do not form a barrier

separating prison inmates from the protections of the

Constitution.” Turner v. Safley, 482 U.S. 78, 84 (1987).

Prisoners’ rights may be severely restricted, however, under

the Turner standard, which is very deferential to prison

officials and the exigencies of prison operation. 482 U.S. at

85 & 89-91. The Turner standard is the appropriate

framework for analyzing the regulations in this case, which

infringe on the fundamental right to associate with family

members. The analysis set out in Turner, which dealt in part

with inmate-to-inmate correspondence, is not limited to the

First Amendment context. It also applies to other

fundamental rights, as demonstrated by the fact that Turner

itself also recognized prisoners’ right to marry. 482 U.S. at

91. See Washington v. Harper, 494 U.S. 210, 224 (1990)

(“We made quite clear that the standard of review we adopted

in Turner applies to all circumstances in which the needs of

prison administration implicate constitutional rights.”’).

The MDOC regulations are not rationally related to

legitimate penological interests, as required by Turner. 482

8

U.S. at 89. Michigan’s proffered rationales of averting the

smuggling of contraband and protecting children from injury

and sexual assault are undermined by the fact that the only

visits at issue are non-contact visits. Moreover, there are

alternative means of reducing the volume of visits that do not

infringe on the fundamental right of family association. At

best, the Michigan policies represent an “exaggerated

response” to a few incidents. 482 U.S. at 90-91.

In fact, by loosening family ties, these policies run counter

to the recognized penological interests of reducing recidivism

and facilitating success upon release. The United States

concedes that family visits assist prisoners in preparing to

return to society. Brief of United States at 3. Studies

demonstrate that family visitation during incarceration and

support upon release correlate with reduced recidivism,

improved prospects for success on parole, and less substance

abuse. Over half a million prisoners returned home in 2000,

and those numbers will only increase. Restrictions that

undermine prospects for reentry threaten public safety. James

P. Lynch & William J. Saybol, Prisoner Reentry in Per-

spective 4-5 (Urban Institute 2001).

The United States and amicus curiae Criminal Justice Law

Foundation (CJLF) assert that there are no limits to the

restrictions that states may place on such association. They

invite this Court to abandon the framework for analyzing

infringements of prisoners’ constitutional rights set out in

Turner, 482 U.S. at 89-91, and to look instead to whether

prisoners had a right to visitation in colonial America. This is

not the proper analysis.

Even if this Court looks to very early American history to

determine the outer limits of prisoners’ right to associate

with family, the history of prisons does not endorse a total

ban on family visitation, as suggested by the United States

and CJLF. At the time that the Framers were in Philadelphia

in the late 1780s, children were allowed to stay with their

-_—

9

parents in that city’s Walnut Street Jail. H.E. Barnes, The

Evolution of Penology in Pennsylvania 88-90 (1968).

Although the Pennsylvania and Auburn systems of the early

nineteenth century prison reforms separated prisoners from

the outside world, these systems were abandoned in part

because they caused mental illness. Norval Morris & Daniel

J. Rothman, The Oxford History of the Prison 124 (1995);

Lawrence Friedman, Crime and Punishment in American

History 77-82 (1993). In 1849, Pennsylvania prison

physician Dr. Robert Givens recommended that prisoners be

allowed letters and visits from relatives, in order to mitigate

the harsh mental and physical effects of the solitary system.

Barnes at 295-96.

Finally, by forbidding even non-contact visits with family

members who may be willing to travel great distances to see

the prisoner, the Michigan regulations inflict unnecessary

pain without penological justification. Thus, they violate the

Eighth Amendment to the U.S. Constitution. Hope v. Pelzer,

122 S. Ct. 2508, 2514 (2002).

ARGUMENT

I. U.S. CITIZENS POSSESS A FUNDAMENTAL

RIGHT TO ASSOCIATION WITH FAMILY

MEMBERS THAT SURVIVES INCARCERA-

TION, ALBEIT SUBJECT TO QUALIFICATION

UNDER THE TURNER STANDARD.

A. This Court has recognized a constitutional

right to intimate association with family

members.

The Sixth Circuit’s opinion in this case was based in part

on the First Amendment, Bazzetta, 286 F.2d at 316, and in

part on the fundamental right of family association, see id. at

317. It has been well established for many years that Amer-

icans possess a constitutionally protected right to decision-

making about intimate associations such as marriage, child

bearing, and child-rearing. Griswold v. Connecticut, 381 U.S.

-

10

479, 485-86 (1965); Meyer v. State of Nebraska, 262 U.S.

390, 400 (1923); Pierce v. Society of the Sisters of the Holy

Names, 268 U.S. 510, 534-35 (1925). “[T)he interest of

parents in the care, custody, and control of their children is

perhaps the oldest of the fundamental liberty interests

recognized by this Court,” this Court wrote recently. Troxel,

530 U.S. at 65.

Over twenty-five years ago, this Court recognized that

association with extended family members is constitutionally

protected. Moore v. City of East Cleveland, Ohio, 431 U.S.

494. The Moore Court said:

Ours is by no means a tradition limited to respect for the

bonds uniting the members of the nuclear family. The

tradition of uncles, aunts, cousins, and especially

grandparents sharing a household along with parents and

children has roots equally venerable and equally

deserving of constitutional recognition. Over the years

millions of our citizens have grown up in just such an

environment, and most, surely, have profited from it . . .

Out of choice, necessity, or a sense of family

responsibility, it has been common for close relatives to

draw together and participate in the duties and the

satisfactions of a common home. Decisions concerning

child rearing, which Yoder, Meyer, Pierce and other

cases have recognized as entitled to constitutional

protection, long have been shared with grandparents or

other relatives who occupy the same household indeed

who may take on major responsibility for the rearing of

the children. Especially in times of adversity . . . the

broader family has tended to come together for mutual

sustenance and to maintain or rebuild a secure home life.

Id. at 504-05. (footnotes omitted).

Only two years ago, this Court acknowledged once again

the importance of extended family in modern American life,

and reaffirmed that a state should give weight to decisions of

a fit, custodial parent regarding a child’s association with

extended family members. Troxel, 530 U.S. at 66-67. The

I]

Troxel Court reaffirmed the Moore Court’s observations

regarding the importance of extended family. “The demo-

graphic changes of the past century make it difficult to speak

of an average American family,” wrote the Troxe/ Court. /d.

at 63. “The composition of families varies greatly from

household to household.” /d. “[{P]ersons outside the nuclear

family are called upon with increasing frequency to assist in

the everyday tasks of childrearing.” /d. The Court recognized

that states may protect children’s relationships with relatives

outside of the nuclear family; it also concluded that states

must give weight to parents’ determinations regarding these

associations. 530 U.S. at 67-75.

Amicus curiae CJLF attempts to distinguish between a First

Amendment right to expressive association and the right to

intimate association, asserting that the right to family

association enjoys less protection. Brief of Amicus Curiae

CJLF at 8-9 and 15-16. Amicus relies heavily Om Roberts;

468 U.S. at 619, in which this Court reaffirmed the

fundamental right of family association:

The Court has long recognized that, because the Bill of

Rights is designed to secure individual liberty, it must

afford the formation and preservation of certain kinds of

highly personal relationships a substantial measure of

sanctuary from unjustified interference by the State. . . .

[T]he constitutional shelter afforded such relationships

reflects the realization that individuals draw much of

their emotional enrichment from close ties with others.

Protecting these relationships from unwarranted state

interference therefore safeguards the ability independ-

ently to define one’s identity that is central to any

concept of liberty.

468 U.S. at 618-19. Although the Roberts Court concluded

that no right to intimate association was implicated in that

case, which involved membership in a nonprofit civic

organization, it did not imply that intimate association is

12

afforded less constitutional protection than expressive

association. 468 U.S. at 621-22.

This case involves the associational interests recognized by

this Court in Moore and Troxel and Roberts. A minor child

of a prisoner may live with a relative who is not her legal

guardian or a member of her immediate family. A child also

may have a significant kin relationship with an adult prisoner

who is not a blood relative. In either circumstance, the

MDOC regulations could bar the child from visiting the

prisoner relative, even if the custodial parent wants the child

to visit. Kinship care is a reality in modern American life,

and is addressed more fully in other amicus briefs in support

of Respondents. According to the 1999 National Survey of

America’s Families, 2.3 million children lived with non-

parent relatives in 1999. Amy Jantz, et al., The Continuing

Evolution of State Kinship Care Policies | (Urban Institute

2002). In recognition of the fact that “the bond between

children and kin . . . may include other, non-related persons,”

more than twenty states currently define kin for the purpose

of foster care placement to include those who are related

beyond blood, marriage, and adoption. /d. at 6.

The tradition of extended family is particularly well-rooted

in the African-American community, which is significant

here because in 2000, 46.3 percent of prisoners serving a

felony sentence in the U.S. were African-American. Paige

M. Harrison, et al., Bureau of Justice Statistics Bulletin:

Prisoners in 2001 11 (July 2002). Extended kin networks

historically were important in West African culture and, in

this country, African-American families adapted to the

hardships of slavery by relying on family networks that

incorporated both blood relatives and “fictive” kin. Herbert

G. Gutman, The Black Family in Slavery and Freedom 1750-

1925 185-230 (1976). The emphasis on extended family —

including relationships other than blood ties—continues in

the modern African-American community, and is reflected in

13

high rates of “informal adoption” and kinship care. Andrew

Billingsley, Climbing Jacob's Ladder: The Enduring Legacy

of African-American Families 27-35 (1993); Robert B. Hill,

The Strengths of African American Families: Twenty-Five

Years Later 123-24 (1999). The regulations at issue threaten

these fundamental relationships.

B. The constitutional right of association with

family members survives’ incarceration,

although subject to limitation under Turner.

“Prison walls do not form a barrier separating prison

inmates from the protections of the Constitution.” Turner,

482 U.S. at 84. Prisoners’ rights, however, are subject to

restriction based on the realities of prison life, pursuant to the

Turner standard. 482 U.S. at 84-91. Like other constitutional

rights, a prisoner’s right of association with family members

may be limited under Turner, but only if the regulation is

“reasonably related to legitimate penological interests.”

Turner, 482 U.S. at 89. See Shaw v. Murphy, 532 U.S. 223,

228-29 (2001); Jones v. North Carolina Prisoners’ Labor

Union, Inc., 433 U.S. 119, 130 (1977); Pell v. Procunier, 417

U.S. 817, 822 (1974). The MDOC regulations at issue

simply fail to meet even the Turner standard, as explained in

Section II.

Turner is the appropriate framework for analyzing the

regulations at issue here. Turner examined regulations

governing inmate-to-inmate correspondence and prisoners’

marriages. This Court has not limited Turner's reach to the

First Amendment context. It is well settled that Turner also

provides the framework for analyzing restrictions on other

fundamental rights. This Court has said, “the standard of

review we adopted in Turner applies to all circumstances in

which the needs of prison administration implicate

constitutional rights.” Washington, 494 U.S. at 224. “In

Turner itself we applied the reasonableness standard to a

prison regulation that imposed severe restrictions on the

14

inmate’s right to marry, a right protected by the Due Process

Clause.” /d.

There is no question that the realities of incarceration

involve physical separation from home and family. Olim v.

Wakinekona, 461 U.S. 238, 248 n.9 (1983). Although the

right of prisoners and their families to association is

necessarily limited by the prisoner’s incarceration, the

constitutional right itself is not extinguished, as this Court

recognized in Turner by concluding that prisoners retain a

fundamental right to marry. 482 U.S. at 95. Turner did not

conclude that a prisoner is stripped of all rights except those

that may be discerned from the history of colonial jails.

Rather, this Court undertook “to formulate a standard of

review for prisoners’ constitutional claims that is responsive

both to the policy of judicial restraint regarding prisoner com-

plaints and to the need to protect constitutional rights.” /d. at

85. In Turner, this Court recognized that its prior prison

jurisprudence had “inquired whether a prison regulation that

burdens fundamental rights is reasonably related to legitimate

penological objectives, or whether it represents an

exaggerated response to these concerns.” /d. at 87.

The United States and amicus curiae CJLF assert that

prisoners’ constitutional rights are an all-or-nothing

proposition—prisoners either retain the constitutional right or

are divested of it. Brief of United States at 12-13; Brief of

Amicus Curiae CJLF at 15-20. The United States relies on a

line paraphrased from the pre-Turner case, Pell v. Procunier,

417 U.S. at 822, to argue that prisoners retain only those

rights that are not inconsistent with their status. Brief of

United States at 12. The sentence states in full, “[a] prison

inmate retains those First Amendment rights that are not

inconsistent with his status as a prisoner or with the legitimate

penological objectives of the corrections system.” Pell, 417

U.S. at 822 (emphasis added). The next line states that

challenges to constitutional rights “must be analyzed in terms

of the legitimate policies and goals of the corrections

15

system.” /d. Thus, Pell is a precursor to the framework more

fully developed in Turner, not a competing standard.

More fundamentally, the United States and amicus curiae

CJLF essentially ask this Court to abandon the framework set

out in Turner, and to look to whether prisoners enjoyed a

right to visitation at the dawning of the republic in determin-

ing the extent of prisoners’ constitutional rights. Brief of

amicus curiae CJLF at 18-19; Brief of United States at 17-18.

This is not the correct standard for analyzing infringements of

constitutional rights after Turner. It is also an unworkable

standard, because, as this Court recognized in Turner, man-

agement of modern prisons presents complicated logistical

and security issues, demanding professional expertise. 482

U.S. at 89. Many of these problems—and their solutions—

were unknown in colonial times. The proper balance between

prisoners’ rights and the imperatives of prison management

cannot be determined solely by looking to history.

Even if this Court were to abandon the framework set out

by Turner and to instead analyze the history of prison

visitation in the U.S. to determine the limitations on the

constitutional right of association with family members, the

history of incarceration is much more complicated than that

presented by the United States and CJLF. As amici in

support of the Petitioners state, the modern prison as we

know it did not exist in colonial America. Colonial Ameri-

cans relied heavily on shaming and corporal punishments.

Norval Morris & David J. Rothman, The Oxford History of

the Prison 112-14 (1995). However, at least in some states

where jails existed, children sometimes were confined along

with adults. Richard Vaux, historian of the Eastern

Penitentiary in Philadelphia, described the common jail in

Philadelphia in the late 1770s as containing “young and old,

black and white, men and women, boys and girls .. .

congregated indiscriminately in custody .. .”. H.E. Barnes,

The Evolution of Penology in Pennsylvania 72 (1968).

16

In fact, at the time that the Constitutional Convention met

in Philadelphia in the late 1780s, parents incarcerated at

Philadelphia’s Walnut Street Jail were allowed to keep their

children with them. In 1787, the same year that the state

delegations approved the Constitution, the Philadelphia

Society for Alleviating the Miseries of Public Prisons made

recommendations to the Pennsylvania General Assembly

regarding possible reforms to the Walnut Street Jail. Its

report noted, “children, both in the jail and the workhouse,

are frequently suffered to remain with their parents... .”

Barnes at 90. The Society’s report also observed, “{ijn cases

where women are imprisoned, having a child, or children, at

the breast, they have only the allowance of a single person.”

Id. at 88. The Society was concerned that women prisoners

who were breast-feeding were not allotted additional rations,

despite the fact that incarcerated mothers apparently were

allowed to keep nursing infants with them in the jail. /d.

In the late eighteenth and early nineteenth centuries, in an

effort to reform Pennsylvania’s primitive criminal justice

system, authorities adopted “the separate system,” in which

prisoners were to contemplate their crimes in solitary

confinement and silence. Morris & Rothman at 117. New

York adopted a similar but competing system, the Auburn

system, which included congregate work. Lawrence M.

Friedman, Crime and Punishment in American History 79-80

(1993). The theory was that removing the prisoner from the

corrupting influence of his environment would promote

rehabilitation. Jd. at 77. However, Pennsylvania’s system

was abandoned by the 1860s, in part because it became clear

that absolute isolation caused mental illness. Morris &

Rothman at 124. Governor William F. Johnston, in his

annual message in 1850, reported, “[t]he frequent recom-

mendations to the Executive for the pardon of convicts

afflicted with ill-health and mental imbecility, would appear

to require a modification of the penal laws.” Jd. at 296.

In 1849, Robert Givens, the physician at the Eastern

17

Penitentiary, urged that prisoners be allowed to receive letters

and visits from relatives, in order to reduce the deleterious

effects of solitary confinement. Barnes at 295-96.

Even this Court has recognized the unhealthy effects of

early American experiments with solitary confinement:

A considerable number of the prisoners fell, after even

a short confinement, into a semi-fatuous condition,

from which it was next to impossible to arouse them,

and others became violently insane; others still,

committed suicide; while those who stood the ordeal

better were not generally reformed, and in most cases

did not recover sufficient mental activity to be of any

subsequent service to the community.

In re Medley, 134 U.S. 160, 168 (1890). The nation’s history

of penological experiments and repeated criminal justice

reforms hardly demonstrates that family visitation is not a

part of our traditions.

Il. THE RESTRICTIONS ON NON-CONTACT

FAMILY PRISON VISITATION IMPOSED BY

THE MICHIGAN DEPARTMENT OF CORREC-

TIONS ARE NOT REASONABLY RELATED TO

LEGITIMATE PENOLOGICAL INTERESTS AS

REQUIRED BY TURNER.

A. Michigan has failed to articulate how these

regulations are rationally related to a legitimate

penological interest.

This case does not require the Court to conclude that

prisoners have any right to be incarcerated closer to home and

family. Cf Olim, 461 U.S. 248 n.9. The only question

presented is whether the Michigan policy of restricting non-

contact visits by extended family members who are

sufficiently motivated to travel to the prison is rationally

related to a legitimate penological interest. In fact, these

regulations fail to meet the Turner standard. Moreover, they

18

run counter to penological interests recognized by this Court,

including deterrence of crime and rehabilitation of prisoners.

O’Lone v. Shabazz, 482 U.S. 342, 349 (1987). By further

loosening family ties, the challenged regulations undermine

prisoners’ chances for successful reentry and, accordingly,

threaten public safety.

Turner requires a “valid, rational connection between the

prison regulation and the legitimate governmental interest put

forward to justify it.” 482 U.S. at 89-90. Jf such a reasonable

relationship exists, Turner requires the Court to go on to

consider: (1) whether there are alternative means for

exercising the constitutional right open to the prisoners; (2)

the impact that accommodation of the asserted constitutional

right will have on guards and other inmates; and (3) whether

the policy is an “exaggerated response” to prison concerns

and whether other obvious, easy alternatives exist. /d. at 90.

In the proceedings below, the MDOC proffered a number

of stated goals for restricting non-contact visitation, including

preventing the smuggling of contraband, preventing injuries

to children in the waiting areas and visiting rooms, protecting

children from sexual assault, and reducing the volume of

visits.’ Bazzetta v. McGinnis, 148 F.Supp. 2d 813, 848 (E.D.

Mich. 2001). None of these satisfies Turner.

The first three justifications fail the threshold Turner

inquiry. The only visits at issue are non-contact visits. It

strains the imagination to conceive of how contraband could

be exchanged or a child molested during a non-contact visit

with the prisoner, who is separated from the visitors by glass.

In fact, in the district court, the defendants conceded that

* Amici in support of the petitioner Michigan also claim that policies

authorizing suspension of family visitation are an important tool in prison

discipline. Brief of amicus curiae Colorado at |. This rationale, even if

accepted, would justify only the last of the challenged regulations—the

suspension of visitation privileges after two major misconducts for

substance abuse. Mich. Code Admin. R. 791.6609(1 1 (d).

19

there was no record of any sexual abuse of a minor child

during a non-conduct visit since 1984. Bazzetta, 148 F.Supp.

2d at 828. On appeal, MDOC appears to rely on a single

incident in which an inmate reportedly exposed himself to his

wife through a glass partition, although they concede that

there is no evidence in the record that the child could even

observe this event. Petitioners’ Brief at 15. These regula-

tions are precisely the sort of “exaggerated response” to a

single incident that Turner forbids. Turner, 482 U.S. at 91.

There was testimony in the district court that these restric-

tions on minor visitors were based on prison officials’

personal feelings about whether it was advisable for children

to visit prison. Bazzetta, 148 F.Supp. 2d at 824-28. It is

inappropriate to rely on the personal child-rearing views of

prison officials to justify these policies. Under Turner, courts

defer to prison officials’ judgments regarding management of

prisons—not other state institutions—based on wardens’ ex-

pertise in prison administration. 482 U.S. at 84-85. For those

reasons, “when a prison regulation impinges on inmates’

constitutional rights, the regulation is valid if it is reasonably

related to legitimate penological interests.” Jd. at 89. Judg-

ments about whether association with incarcerated family

members is in the best interests of visitors’ children are not

based on penological interests. Even state lawmakers em-

powered to pass statutes governing family relations, and state

courts charged with applying them, may not substitute their

judgments about children’s visitation with relatives for those

of fit, custodial parents. Troxel, 530 U.S. at 72-73. Prison

officials may not substitute their judgment in this area, either.

The remaining justification—reducing the volume of

visits—also fails Turner because there are easy, alternative

means to accomplish that goal without infringing on protected

constitutiona! rights. As the district court observed, prison

officials “can adjust visiting hours or take any of the other

steps that are within [their] authofity to control visits without

20

excluding these categories of visitors altogether.” Bazzetta,

148 F.Supp. 2d at 831. For example, prison officials can

limit the total number of visits per prisoner so that all

prisoners have a reasonable chance to visit given space and

resource limitations. MDOC policies are an “exaggerated

response” to the logistical problems created by a growing

prison population and an increasing number of visits. Turner,

482 U.S. at 90. “Visits with whole categories of individuals

should not be prohibited altogether absent a reasonable basis

for believing that non-contact visits will not address security

concerns adequately.” Bazzetta, 148 F.Supp. 2d at 831-32.

The State of Michigan asserts that inmates have alternative

means of maintaining family contact—letter writing and the

telephone. Brief of Petitioners at 29. These vehicles cannot

substitute for face-to-face contact with family members.

Letters lack the spontaneity of in-person communication, and

prisoners’ correspondence has a particularly long turn-around

time, due to prison security and censorship. Collect calls

from prison are prohibitively expensive. Indeed, state correc-

tions agencies and private prison companies enter into

contracts with phone companies that require telephone

companies to pay back to corrections agencies a percentage

of the revenue from calls. See Paul Duggan, “Captive

Audience Rates High: Families Must Pay Dearly When

Inmates Call Collect,” Washington Post, January 23, 2000, at

A3.° These alternate modes of communication cannot take

the place of visits.

* Increased phone charges are passed on to the consumers, prisoners’

families who receive the collect calls. In 1997-98, the Florida state prison

system collected $13.8 million in such commissions, while New York

received $20.5 million, and Virginia $10.4 million. Paul Duggan,

“Captive Audience Rates High: Families Must Pay Dearly When Inmates

Call Collect,” Washington Post, January 23, 2000, at A3.

21

B. The challenged regulations run counter to the

acknowledged penological interest of reducing

recidivism.

Far from representing a rational response to legitimate

penological concerns, the MDOC policies run counter to

acknowledged penological interests. The United States con-

cedes that that Bureau of Prisons (BOP) “encourages family

visits because they can promote positive relationships that

improve prisoner morale, strengthen family ties and parental

responsibility, and facilitate the transition to freedom.” Brief

of United States at 3. By undermining prisoners’ family ties,

the MDOC restrictions fail to address penological concerns

regarding recidivism and reentry. These penological interests

are acute because in recent years, the number of prisoners

returning home has increased dramatically, creating chal-

lenges for the families and communities that must reintegrate

them. The number of prisoners released jumped from

170,000 in 1980 to 585,000 in 2000. James P. Lynch &

William J. Saybol, Prisoner Reentry in Perspective 4 (Urban

Institute 2001). The growing number of prisoners released

reflects, in part, a four-fold increase in the prison population

in the United States over the last twenty years, from 330,000

incarcerated Americans in 1980 to nearly 1.4 million

incarcerated Americans in 1999. /d.

Significant rates of prisoner return have important

consequences for some of our most socio-economically

disadvantaged communities, predominantly communities of

color. A large number of prisoners will return to a relatively

small number of disadvantaged communities. In 1996, two-

thirds of state prisoners were released into counties that

contain the central city of a major metropolitan area. Jeremy

Travis, Amy L. Solomon & Michelle Waul, From Prison to

Home: The Dimensions and Consequences of Prisoner

Reentry 41 (Urban Institute 2001). The New York State

Department of Correctional Services releases about 25,000

22

people per year to New York City. Marta Nelson, Perry

Deess, & Charlotte Allen, The First Month Out: Post-

Incarceration Experiences in-New York City (Vera Institute of

Justice 1999). Parolees are concentrated even within major

cities. Six police precincts in Brooklyn, which account for

twenty-five percent of the total population, hold fifty-five

percent of Brooklyn’s parolees. Travis, Solomon & Waul at

41. This level of concentration means that reentry will

produce a significant public safety concern in certain

communities. In the District of Columbia, in 2001, for

example, more than 2500 prisoners were projected to return

over a twelve-month period, raising concerns about the city’s

ability to provide services and prevent an increase in the

crime rate. Arthur Santana, “D.C. Unprepared for an Influx

of Ex-Convicts, City Officials Say,” Washington Post, July

21, 2001, at BI.

One of the cheapest and most natural means of improving

prisoners’ chances for successful reentry is allowing them to

maintain contact with family members during incarceration.

“{P]risoners with family ties during the period of incarcera-

tion do better when released than those without such ties.”

Travis, Solomon & Waul at 39. Ex-offenders who have a

supportive family are more likely to find work, and less likely

to use drugs and become involved again in crime. /d. A

small study by the Vera Institute of Justice tracked prisoners

released to New York City. It concluded:

For the vast majority of people we interviewed,

families play a large role in their lives during the first

thirty days after they leave prison or jail. Families

provide critical material support—housing, food, and,

to a lesser extent income—and some also offer emo-

tional support . . .. Their support is strongly correlated

with a person’s success in the month after release.

Nelson, Deess & Allen at 8. Most returning prisoners live

with fainily members when they are released. Marta Nelson

23

& Jennifer Trone, Why Planning for Release Matters, 3 (Vera

Institute of Justice 2000). In the Vera Institute study, forty of

the forty-nine people interviewed were living with a relative

or with their spouse or partner two days after release. Nelson,

Deess & Allen at 8. Returning prisoners who reported strong

family support in the Vera study also had an easier time

finding work, perhaps because the family network helped

them in job searching. Nelson, Deess & Allen at 14.

Most relevant, prisoners who receive more family visits

have a better chance for success on parole. Family visitation

during incarceration correlates with success on parole. N.E.

Schafer, Exploring the Link Between Visits and Parole

Success, 38(1) Internat’! J. of Offender Therapy and

Comparative Criminology 17-19 (1994). Studies comparing

parole outcomes with the number of family visits that a

prisoner receives during the period of incarceration

demonstrate that prisoners who receive more visits are more

likely to avoid problems while under supervision. C. F.

Hairston, Family Ties During Imprisonment: Important to

Whom and For What?, J. of Sociology & Social Welfare 97-

99 (1987). Only two percent of the men who had three or

more visitors during the year prior to their release returned to

prison within one year, compared with twelve percent of

those who had no contact with family or friends Jd. at 97-98.

Seventy percent of prisoners with three or more visitors had

no problems on parole, as compared with only fifty percent of

those who had no contacts with friends or family during

incarceration. /d. at 98.

Family support during incarceration also has been

demorstrated to reduce recidivism. C.F. Hairston, Family

Ties During Imprisonment: Do They Influence Future

Criminal Activity?, 52 (1) Federal Probation 48-52 (1988).

Prisoners who have maintained their family ties may be better

positioned to avoid crime upon release, because family can

provide immediate, material support. There are also more

24

intangible ways that family visitation during incarceration can

help to avert recidivism. Working to improve family

relationships—to become a better parent, for example—can

provide an important incentive for avoiding further law-

breaking. John M. Jeffries, et al., Serving Incarcerated and

Ex-Offender Fathers and Their Families, 4 (Vera Institute of

Justice 2001). Family visitation can help a prisoner to

maintain a self-image that includes positive life roles (“big

brother,” “aunt”). Hairston, Family Ties During Imprison-

ment: Do They Influence Future Criminal Activity? at 50.

“Having maintained these social roles during incarceration,

the prisoner is more likely to be able to function in desirable

social roles upon release.” /d. Otherwise, “upon release

the ex-prisoner functions in those roles ascribed to

‘convicts’.” Id.

Recent research also has demonstrated that family support

can play a critical role in combating substance abuse. Eileen

Sullivan, et al., Families as a Resource in Recovery from

Drug Abuse 54 (Vera Institute of Justice 2002). This is

significant, because three out of four returning prisoners have

a history of substance abuse, and most of them will not have

received treatment while incarcerated. Nelson & Trone at 4.

In the Vera Institute study, for example, newly released

prisoners reported that family members accompanied them to

Narcotics Anonyrnous meetings, or simply provided support

to help them avoid temptation. Nelson, Deess & Allen at 10.

To the extent that MDOC policies restrict visits by

prisoners’ own children, who do not have another immediate

family member or legal guardian to bring them to visit, these

policies have disastrous consequences for parent-child

relationships, which are examined more fully in other amicus

briefs in support of the Appellees. More than 1.5 million

minor children had an incarcerated parent in 1999, an

increase of more than a half-million since 1991. Travis,

Solomon & Waul at 37. This increase is due, in part, to the

25

fact that the number of women in prison has more than

doubled since 1990. Jd. There are now over 85,000

sentenced women prisoners in the United States. Paige M.

Harrison, et al., Bureau of Justice Statistics Bulletin:

Prisoners in 2001 12 (July 2002). Logistical barriers and

distance already ensure that more than half of fathers and

mothers never have a personal visit with their children while

they are incarcerated, regardless of restrictive visitation poli-

cies. Travis, Solomon & Waul at 38. However, the visitation

restrictions at issue here could further compound the problem,

particularly for incarcerated mothers. Twenty-six percent of

children of incarcerated mothers live with relatives other than

grandparents. /d. If these kinship caregivers are not legal

guardians, and do not fall within the state’s definition of

“immediate family,” they will not be allowed to bring

children to visit their parents under the challenged MDOC

regulations. Lack of visitation can only compound families’

attempts to reunify upon a prisoner’s return.

The fact that visitation serves penological interests is

reflected in the standards promulgated by the American

Correctional Association (ACA). ACA standards provide

that “an inmate may receive [visits] and the length of visits

may be limited only by the institution’s schedule, space, and

personnel constraints, or when there are substantial reasons to

justify such limitations.” American Correctional Association

Standards for Adult Correctional Institutions, Standard 3-

4440 (Ref.2-4381) 149 (3rd ed. 1990). The comment to the

standard provides:

Inmates should not be denied access to visits with

persons of their choice except when the warden/

superintendent or designee can present clear and

convincing evidence that such visitation jeopardizes

the safety and security of the institution or the visitors.

Id.

26

The State of Michigan has failed to articulate how an

across-the-board ban on non-contact visits by family mem-

bers bears a rational relationship to any legitimate penological

interest. In fact, the arbitrary nature of the policy is under-

scored by the fact that these regulations fly in the face of

acknowledged penological interests. If the Turner standard

has any meaning, these regulations cannot be upheld.

Ill. THE RESTRICTIONS ON NON-CONTACT

PRISON VISITATION IMPOSED BY THE

MICHIGAN DEPARTMENT OF CORREC-

TIONS CONSTITUTE CRUEL AND UNUSUAL

PUNISHMENT IN VIOLATION OF THE

EIGHTH AMENDMENT.

The ban on family visitation enacted by MDOC violates

the Eighth Amendment prohibition on cruel and unusual

punishments because it inflicts wanton psychological pain

without any legitimate penological justification. It is true that

this Court has held that U.S. prisoners, once convicted and

sentenced to imprisonment, may be transferred within a state

or even among states. See Meachum v. Fano, 427 U.S. 215,

229 (1976); Olim, 461 U.S. at 244-51. It does not necessarily

follow that the Constitution permits a state to bar a prisoner

from seeing his family, even if relatives travel to visit him at

their own expense. The MDOC regulations at issue here are

not merely a “fortuitous consequence” of confinement, result-

ing from a lack of bed space in a particular region. Olim, 461

U.S. at 248 n.9. Rather, these regulations are an “additional

element of . . . punishment.” /d. This conclusion that

suspension of visitation is, in fact, punishment is reinforced

by the fact that Michigan suspends visitation as a sanction for

substance abuse.° Mich. Admin. Code. R. 791.6609 (11)(d).

*The Sixth Circuit analyzed only the Michigan regulation that

suspends visitation as a sanction for substance abuse under the Eighth

Amendment. Bazzetta, 286 F.3d at 322. However, this Court's certified

27

. “The basic concept underlying the Eighth Amendment . . .

is nothing less than the dignity of man.” Hope v. Pelzer,

supra, 122 S. Ct. at 2514 (citing Trop v. Dulles, 356 U.S. 86

100 (1958)). “This Amendment embodies broad and

idealistic concepts of dignity, civilized standards, humanity,

and decency.” Estelle v. Gamble, 429 U.S. 97, 103 (1976).

Prisons officials violate the Eighth Amendment when they

enact a deprivation that is “objectively, sufficiently serious”

and that constitutes “the unnecessary and wanton infliction of

pain.” Farmer v. Brennan, 511 U.S. 825, 834 (1994).

“Unnecessary and wanton inflictions of pain are those that

are totally without penological justification.” Hope, 122 S.

Ct. at 2514. This Court has recognized that infliction of

mental pain may violate the Eighth Amendment. Furman vy.

Georgia, 408 U.S. 238, 288 (1972) (Brennan, J., concurring).

In 1937, this Court recognized the “need to give protection

against torture, physical or mental.” Palko v. State of

Connecticut, 302 U.S. 319, 326 (1937).

For all of the reasons outlined in Section II, above, the

regulations at issue not only lack a penological justification

but are, in fact, counter to legitimate penological interests.

They inflict unnecessary psychological pain for no rational

reason. They strip prisoners and their family members of

basic human dignity by disrupting efforts to maintain family

ties through a period of incarceration. Even extended family

members who are willing to travel for days and expend

limited family income on transportation are banned from the

prison. Prisoners convicted of drug crimes and auto theft are

cut off from their families just as arbitrarily as those

question asks more broadly “{w]hether the restrictions on non-contact

Prison visitation imposed by the Michigan Department of Corrections

constitute cruel and unusual punishment in violation of the Eighth

Ame dment.” Accordingly, this section addresses the broader issue of

whcther the across-the-board restrictions violate the ban on cruel and

unusual punishment.

28

convicted of domestic violence or sexual abuse. Inmates are

robbed of their most intimate associations and fundamental

roles, no matter what lengths their families are willing to go

to maintain them. :

Contrary to the assertion of amicus curiae CJLF, see Brief

of CJLF at 28-29, it is clear that prison officials acted with

deliberate indifference to prisoners’ rights in enacting this

ban. Unlike situations that involve prison officials’ omission

or failure to act in the face of a known threat, in this case,

prison officials passed a regulation forbidding certain

categories of visits. Cj: Farmer, 511 U.S. at 834 (failure to

protect); Estelle, 429 U.S. at 104 (failure to provide adequate

medical care). Thus, prison officials’ intent to cause the

infringement of prisoners’ constitutional right of association

with family members is incontrovertible.

This Court recently has reaffirmed that Eighth Amendment

violations must be judged by “the evolving standards of

decency that mark the progress of a maturing society.” Atkins

v. Virginia, 122 S. Ct. 2242, 2247 (2002). As described

above in Section IB, the Auburn and Pennsylvania systems,

which were based on the theory that prisoners must be

isolated from the outside world, were abandoned long ago.

As early as 1849, Pennsylvania prison physician Robert

Givens urged allowing prisoners letters and visits from

relatives in order to combat the deleterious effects of solitary

confinement. Barnes at 296. “A few years ago,” he wrote to

the prison inspectors, “the effects of our discipline on the

health of those subjected to it were entirely unsuspected, its

friends being so dazzled by its moral influences as to be

totally blind to its physical and mental evils.” Id. at 297.

Charles Dickens, who visited the Philadelphia prison in the

early 1840s, concluded that although ‘ts intentions were

humane, its design had cruel effects. “I hold this slow and

daily tampering with the mysteries of the brain to be

immeasurably worse than any torture of the body,” he wrote.

Morris & Rothman at 124. By the 1860s, the Auburn and

29

Pennyslvania systems had been abandoned. Jd. See also

Friedman at 82. This Court should not apply devolving

standards of decency to allow reestablishment of isolation in

the nation’s prisons.

As the district court wrote, the MDOC restrictions on

visitation disrupt relationships that constitute “the essence of

what it means to be human.” Bazzetta, 148 F.Supp. 2d at

855. They deny prisoners “a single, identifiable human

need,” just as surely as if they deprived inmates of food, heat,

or exercise. Wilson v. Seiter, 501 U.S. 294, 305 (1991).

Indeed, for many, these circumstances can fairly be described

as the loss of “all that makes life worth living.” Ng Fung Ho

et al.v. White, 259 U.S. 276, 284 (1922).

CONCLUSION

' Only a few weeks ago in the State of the Union address,

President Bush reminded the nation of “children who have to

go through a prison gate to be hugged by mom or dad.” This

case will determine the extent to which states can place

restrictions on these visits. It will decide whether an aunt can

take her children to visit their cousin, a teenager incarcerated

on an adult criminal charge. It will determine whether a

“godparent” who is informally keeping a friend’s children

while their mother is incarcerated can take the children to see

their mother. See generally Arthur Santana, “Families

Lamenting Life After Lorton: With Prisoners All Over

Country, Relatives Find Visits Daunting,” Washington Post,

March 21, 2002, at T10. It also will decide whether this

Court will continue to apply the Turner standard to analyze

infringements on prisoners’ constitutional rights, and whether

that standard will have any meaning.

30 .

For all of the foregoing reasons, amici curiae respectfully

request that this Court affirm the judgment of the United

States Court of Appeals for the Sixth Circuit.

Respectfully submitted,

PAUL DENENFELD

GIOVANNA SHAY *

Public Defender Service for

the District of Columbia

633 Indiana Avenue, NW

Washington, D.C. 20004

* Counsel of Record (202) 626-8302