Amicus Curiae Brief — Overton v. Bazzetta

Supreme Court of the Cinited tates

° | CLERK

WILLIAM OVERTON, DIRECTOR OF MIGHGAN |

DEPARTMENT OF CORRECTIONS. et al.

Petitioners,

v.

MICHELLE BAZZETTA, et al.,

Respondents.

SJ

On Writ Of Certiorari To The United States Court

Of Appeals For The Sixth Circuit

S

BRIEF OF AMICI CURIAE NATIONAL COUNCIL OF

LA RAZA, SOUTHERN CENTER FOR HUMAN RIGHTS,

PERRY JOHNSON, ROBERT BROWN JR., AMERICAN

ASSOCIATION OF COMMUNITY PSYCHIATRISTS,

NATIONAL MENTAL HEALTH ASSOCIATION, NATIONAL

ALLIANCE FOR THE MENTALLY ILL AND ITS MICHIGAN

CHAPTER, NATIONAL ASSOCIATION OF BLACK SOCIAL

WORKERS, CENTER FOR THE STUDY OF SOCIAL POLICY,

CORRECTIONAL ASSOCIATION OF NEW YORK, JUSTICE

POLICY INSTITUTE, MICHIGAN LEAGUE FOR HUMAN

SERVICES, PRISONS AND CORRECTIONS SECTION OF

THE STATE BAR OF MICHIGAN, LEAGUE OF WOMEN

VOTERS OF MICHIGAN, PAULA SCHAEFFER, GEORGE

SULLIVAN, URBAN JUSTICE CENTER, PRISON ACCESS

WORKING GROUP, STOP PRISONER RAPE, CRITICAL

RESISTANCE, BISHOP COLEMAN MCGEHEE, RT. REV. R.

STEWART WOOD, JR, METROPOLITAN ORGANIZING

STRATEGY ENABLING STRENGTH, EPISCOPAL CHURCH

OF THE INCARNATION, RESTORATIVE JUSTICE

MINISTRY, SHALOM CENTER FOR JUSTICE AND PEACE,

AND COLONEL ROBERT C. LYNN IN SUPPORT OF

RESPONDENTS FOR AFFIRMANCE

+

RODERICK M. HILLS, JR.

Counsel of Record

UNIVERSITY OF MICHIGAN

LAW SCHOOL

437 Hutchins Hall

625 South State Street

Ann Arbor, MI 48103-1215

(734) 763-9635

os

BEST AVAILABLE COPY

QUESTIONS PRESENTED

This brief addresses only the first two questions

certified by the Court:

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

tion protected by the First and Fourteenth Amendments;

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

tion imposed by the Michigan Department of Corrections

are reasonably related to legitimate penological interests.

il

TABLE OF CONTENTS

Page

Emtorest ef Agniss CUsGRD ..céiccsecsccssinssninsesaaeanenan 1

PTOI 000000000000 000000s0000sscenenseennnieneneeneneee 1

I. Prisoners and non-incarcerated relatives

IT.

seeking to visit them retain rights of familial

association, including rights to visit close

relatives, unless those rights are inconsis-

tent with some legitimate penological inter-

OBE OF CRO GRRBD 2. ccccecccsneccccssdensunsinnsaieiennnnneien

A. The constitutional rights of prisoners are

not determined by 19th century prison

practices but rather by contemporary

and evolving standards of decency ..........

B. The fundamental right of familial asso-

ciation and visitation survives incarcera-

tion unless restrictions on that right

serve some legitimate penological pur-

MDOC has no legitimate penological interest

justifying its prohibition on minors’ visiting

SERBTISOROE FORREEVOD 00cccceeccesesecsccssccssonsscbetounes

A. MDOC’s exclusion of minors from non-

contact visits with imprisoned relatives

bears no reasonable relation to the purpose

of reducing overcrowding or increasing secu-

rity in the prisons’ visiting facilities.............

13

III.

ill

TABLE OF CONTENTS - Continued

Page

B. MDOC has no legitimate penological! in-

terest in overriding parents’ judgment

about whether visits serve the best in-

terest of their children by prohibiting

minors from visiting imprisoned rela-

tives to protect children from the prison

SIT nani iereindctnegemnasanpesenveppeneesee

Michigan’s policy of permanently barring

prisoners who have incurred two citations for

substance abuse frum any visitation with any

relative is an exaggerated response to the

problem of substance abuse ...................:.000++

A. MDOC’s permanent and total ban on

visitation burdens fundamental rights of

Eee

B. No other state has adopted a permanent

and total ban on visitation for miscon-

duct unrelated to visitation.....................

C. Substantial evidence supports the dis-

trict court’s finding that MDOC’s permanent

and total ban on visitation promoted rather

than deterred substance abuse ........ aaa

15

20

21

25

iv

TABLE OF AUTHORITIES

Page

CASES

Arcara v. Cloud Books, 478 U.S. 697 (1986).........:.-.s0--s0-« 24

Atkins v. Virginia, 536 U.S. 304, 122 S. Ct. 2242

ae ecietirceeetnceaenincsdeienstihiimsiietntaantnhiaeaiain atest 5

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

Sees Ue icicesnnicethitictadbiainsiinipeetueneianadissainiasiaainaaatiibidiasl passim

Bell v. Wolfish, 441 U.S. 520 (1979)............ccccccccceeseeeeeeeees 28

Berch v. Stahl, 373 F.Supp. 412 (W.D.N.C. 1974) .............. 8

Block v. Rutherford, 468 U.S. 576 (1984).............. 10, 11, 24

Boudin v. Thomas, 533 F.Supp. 786 (S.D.N.Y. 1982)......... 8

Branzburg v. Hayes, 408 U.S. 665 (1972) ........ccccccccccceeeeees 23

Burnham v. Superior Court, 495 U.S. 604 (1990).............. 5

Cleveland Board of Education v. LaFleur, 414 U.S.

Fe Ce ccnevrnseinatnasieiimbtinaniiatuiiasshaniiiuitniniiiiassiiiaeniaiestns bitin iit 7

Hardaway v. Kerr, 573 F.Supp. 419 (W.D. Wis.

a rinenanectionanbeeanianedanabiainiimannniabddteiniaatiiaiianial 20

Hoversten v. Superior Court, 74 Cal.App.4th 636, 88

ee Se Ce cnnnciteisicitsietarsiinamarietichinsicenciataicsinsaatianmesia 8

Hutto v. Finney, 437 U.S. 678 (1978).............cccccceeececeeeeeeees 4

In re Medley, 134 U.S. 160 (1890)...............cccccccccceererceeeeeees 4

In re Smith, 169 Cal. App.3d 956 (1980) .............ccccccccceeeeeee 8

Jackson v. Bishop, 404 F.2d 571 (8th Cir. 1968)................. 4

Kentucky Dep't of Corrections v. Thompson, 490

ee Ga ea tatcarncinentarinicinecinenninieanadiemminats 9, 10, 11, 24

M.L.B. v S.L.J., 519 U.S. 102 (1996) ..........ccccccccceeceeesreeeees 6

TABLE OF AUTHORITIES — Continued

Page

Mabra v. Schmidt, 356 F.Supp. 620 (W.D. Wis.

ITT csissiiceiigiteeniaiadistincasadiaeninnsaianiinidiammmnpiainebnensicnnisandantinainniiingens 8

Meyer v. Nebraska, 262 U.S. 390 (1923)............ccccceeeeeeeeeees 6

Mitchell v. Untreiner, 421 F.Supp. 886 (N.D. Fila.

I icrscitshincshahnteshtnnssnigtanihinsinntinbenatininipepbennimimnpianiianabammnatt 8

Moore v. City of East Cleveland, 431 U.S. 494

ene ae 11, 12, 13

O’Bryan v. County of Saginaw, 437 F.Supp. 582

er 8

Olim v. Wakinekona, 461 U.S. 238 (1983) ............. pia 23

Parham v. J.R., 442 U.S. 584 (1979) ..........cccccccecceeeeeeees 7,16

Pell v. Procunier, 417 U.S. 817 (1974) ............0000 7, 9, 10, 28

Pierce v. Society of Sisters, 268 U.S. 510 (1925)................. 6

Poe v. Ullman, 367 U.S. 497 (1961) ..............cccccccceeeeeeeees 5,6

Prince v. Massachusetts, 321 U.S. 158 (1944).................... 7

Printz v. United States, 521 U.S. 898 (1997)...............000000+ 5

Quilloin v. Walcott, 434 U.S. 246 (1978)..........cccccccceceeeeeeees 6

Rhem v. Malcolm, 507 F.2d 333 (2d Cir. 1974)...............-+.. 8

Santosky v. Kramer, 455 U.S. 745 (1982)........ abidininnameneiina 6

- Smith v. Organization of Foster Families, 431 U.S.

Gl ctnecitccensdinsahiansiicniebamenneneninmannsmmmennnnn 6

Stanley v. Illinois, 405 U.S. 645 (1972) ..........ccccccceeeceeeeeneee 7

Trop v. Dulles, 356 U.S. 86 (1958) ...........ccccccceeeeeeeeenneenenens 5

_ Troxel v. Granville, 530 U.S. 57 (2000)................00000 passim

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

vi

TABLE OF AUTHORITIES - Continued

Page

Valentine v. Englehardt, 474 F.Supp. 294 (D.NWWJ.

Re ne Se EE ee 8, 20

Washington v. Davis, 426 U.S. 229 (1976).................ccc0000 23

Weems v. United States, 217 U.S. 349 (1910)..............00000.. 4

White v. Keller, 438 F.Supp. 110 (D. Md. 1977).................. 8

REGULATIONS ,

Cal. Admin. Code title 15 §§3315(f 5X1), 3323(d)(6)........ 26

Colo. Dep’t of Corrections Admin. Reg. 300-

SLATED its, -deniinsedibaninnimnbedpnisiinistanaiabiigininenmanabiiels 26

Fla. Admin. Code Rule 33-601.731(2)(b).................:cccceeeees 26

I 26

Ia. Corrections Policy No. IN-V-3(V\(L)................cccccceeeeee 26

Md. Div. of Corrections DCD 105-4 App.3 .....................04. 26

Minn. Dep't of Corrections Directive 302. 100B................. 26

Miss. Dep't of Corrections S.O.P. 28-03-02 &

Se IaTTTTt eirtericniniernceiniicinpulinigreintiienitanaetpinciamttiieadasiaamalmia iets dae 26

N.C. Inmate Disciplinary Procedures Ch.B. §§.0202

i, Gi cerereresscirreteienistntarieaneanatsiansendiiansitaiipanndeantinieatameetesil 26

N.H. Dep't of Corrections PPD7.9(IV)(P) ...............cccc000000 26

N.Y. Comp. Codes, R. & Regs. tit. 5, §200.5(a)(4)

i icaecteereeneennimnernnitieninmnntionmcnmes 26

Oh. Dep't of Rehabilitation and Correction §308 No.

4, Part VI(K\(2) & §312 No. 02, Pt. (VIXL).................... 26

Ok. Dep't of Corrections OP-030118(IIME)5) ................... 26

R.1. Admin. Code 06.070.004(TIT)( EX 13)..........ccccccceceeeeees 26

Vii

TABLE OF AUTHORITIES — Continued

S.C. Dep’t of Corrections OP-22.09..............cccccceeceeeenees

Tenn. Dep't of Corrections Reg. 507.01(VIXF)(7).........

OTHER AUTHORITIES

Justin Brooks, et al, “Jt’s a Family Affair” -— The

Incarceration of the American Family: Confronting

Legal and Social Issues, 28 U. San Francisco L.

Be ry Se CD cecnerencccsccccesenvsscscsevesesnsrenssenesense

BONNIE CARLSON, ET AL., INMATES AND THEIR

WIVES: INCARCERATION AND FAMILY LIFE (West-

port, Connecticut: Greenwood Press, 1992).............

FISHMAN, WOMEN AT THE WALL: A STUDY OF PRIS-

ONERS’ WIVES DOING TIME ON THE OUTSIDE (AI-

bany: State University of New York, 1990).............

NATIONAL CONFERENCE OF COMMISSIONERS ON

UNIFORM STATE LAWS, MODEL SENTENCING AND

CORRECTIONS ACT § 4-115, Comment (1979)............

Justice Sandra O’Connor, The Supreme Court and

the Family, 3 U. Pa. J. Const. L. 573, 577 (2001) ....

Davip J. ROTHMAN, THE DISCOVERY OF THE ASYLUM:

SOCIAL ORDER AND DISORDER IN THE NEW REPUB-

gE ECE

William H. Sack, Children of Imprisoned Fathers,

40 Psychiatry 163, 164-65 (1977)............ccccccceeseeees

SCHNELLER, THE PRISONERS’ FAMILY: A STUDY OF

THE EFFECTS OF IMPRISONMENT ON THE FAMILIES

OF PRISONERS (San Francisco: R and E Research

Aamettaba, BOGE cccccsscsececcccscescececcsccsessvccscsesessevevcecese

SHAW, CHILDREN OF IMPRISONED FATHER (London:

Hodder and Stoughton, 1987)...............cccccceceeeeeeenens

Vili

TABLE OF AUTHORITIES - Continued

Page

STANTON, WHEN MOTHERS Go TO JAIL (Lexington

Mass: Lexington Press, 1980) .............ccccccccccecseeeeseesseeees 18

SWAN, FAMILIES OF BLACK PRISONERS: SURVIVAL AND

PROGRESS (Boston: C. K. Hall, 1981) ...........ccccccccccceeseeee 18

1

INTEREST OF THE AMICI CURIAE'

The statements of interest of the amici curiae are set

forth in the Appendix.

¢

ARGUMENT

I. Prisoners and non-incarcerated relatives

seeking to visit them retain rights of familial

association, including rights to visit close

relatives, unless those rights are inconsistent

with some legitimate penological interest of

the state.

Both the amicus brief of the United States and the

petitioners’ brief submitted by the Michigan Department

of Corrections (MDOC) make the sweeping assertion that

prisoners retain no 14th Amendment right whatsoever to

visit with non-incarcerated members of their family. To

support such a claim of governmental omnipotence over

visitation, the United States offers two arguments. First,

the United States argues that, because many sorts of

visitation could be inconsistent with legitimate penological

objectives, a right to any sort of visitation, no matter how

circumscribed, must therefore be “in derogation of incar-

ceration.” U.S. Amicus Brief at 11. Second, the United

States argues that such a right falls outside the

' No counsel for any party authored any part of this brief. No

persons or entities other than the amici curiae made any monetary

contribution to the preparation or submission of this brief. Pursuant to

Supreme Court Rule 37.3, copies of letters of consent to the filing of this

brief have been lodged with the Court.

2

14th Amendment because such a right is inconsistent with

“early historical practice” of prison administration in

antebellum United States — a period before the 14th

Amendment was enacted.

These sweeping assertions fundamentally misunder-

stand the appropriate analysis of prisoners’ rights under

Turner v. Safley, 482 U.S. 78 (1987) in two ways. First, the

rights of prisoners — like the rights of citizens generally —

have never been measured by now-discredited 19th cen-

tury historical practices. Second, abstract generalities

about the nature of incarceration have never defined

prisoners’ rights. Instead, this Court asks whether a

particular restriction on prisoners’ rights is justified by

some specific penological objective. Where such a legiti-

mate purpose exists, prison authorities can restrict pris-

oners’ rights of familial association, no matter how

fundamental. However, by the same logic, where such a

penological justification is absent, this Court rejects

restrictions on prisoners’ fundamental rights. Thus, while

prisoners cannot enjoy any unfettered or absolute right of

familial association or visitation, it is equally true that

prison authorities do not enjoy any unfettered or absolute

power to restrict visitation. Instead, Turner v. Safley

teaches that the Court should make an inquiry specific to

the challenged regulation to determine whether the

regulation’s purpose is legitimately penological.

3

A. The constitutional rights of prisoners are

not determined by 19th century prison

practices but rather by contemporary and

evolving standards of decency.

This Court measures the rights of prisoners by

contemporary standards of decency, not historical practices

that have lapsed into desuetude.

It is true that, beginning in the 1830s, some states —

notably, New York’s so-called Auburn “congregate” system

and the Pennsylvania “total isolation” system — experi-

mented with extreme forms of prisoner isolation in peni-

tentiaries. DAVID J. ROTHMAN, THE DISCOVERY OF THE

ASYLUM: SOCIAL ORDER AND DISORDER IN THE NEW REPUB-

LIC 79-108 (rev. ed. 1990). Even in antebellum America,

contemporary critics noted that such extreme deprivation

of human contact was a form of torture that could drive a

prisoner insane. ROTHMAN at 87. By the late 19th century,

the practice of total isolation of prisoners from friends and

family had been abandoned, in part because of perceptions

of its unnatural cruelty. ROTHMAN at 243-46. As this Court

observed in 1890 when holding that solitary confinement

could not be imposed retroactively as an additional pun-

ishment against a death-row inmate,

[E]xperience demonstrated that there were seri-

ous objections to [the total isolation system]. 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 re-

formed, and in most cases did not recover suffi-

cient mental activity to be of any subsequent

4

service to the community. Its main feature of soli-

tary confinement was found to be too severe.

In re Medley, 134 U.S. 160, 168 (1890). Total isolation,

moreover, was part and parcel of a larger attitude that

encouraged routine physical torture of prisoners, such as

floggings, punitive cold showers, and iron gags. ROTHMAN

at 101-102. Both the physical and psychological tortures of

the Auburn system were rooted in precisely the same

mentality — the theory that the government was entitled

to exercise total control over the prisoners’ mind and body

and that “practically any method that enforced discipline

was appropriate.” ROTHMAN at 102.

If the United States is correct that “early historical

practices” like the Auburn experiment justify extreme

restrictions on visitation, it would also follow that the

same “historical practices” would justify floggings, cold

water torture, ball and chains, and iron gags, which were

equally part of the 19th century’s “historical practices.” Of

course, this Court has long held that such physical tor-

tures are impermissible under the 8th Amendment,

irrespective of their historical pedigree. See, e.g., Weems v.

United States, 217 U.S. 349, 373 (1910) (continuous

confinement by ankle chain while at hard labor can

constitute cruel and unusual punishment); Jackson uv.

Bishop, 404 F.2d 571 (8th Cir. 1968) (per Blackmun, J.)

(whipping with strap can constitute violation of 8th

Amendment). By the same token, historical practices, now

long-discredited and discontinued, cannot ratify psycho-

logical torture of cutting prisoners from all visitation. Cf.

Hutto v. Finney, 437 U.S. 678, 686-87 (1978) (lengthy

confinement in total isolation can violate 8th Amendment).

5

Rather than being governed by now-obsolete historical

practices, the scope of 14th Amendment rights in prison is

governed by our evolving sense of decency, reflected both

in widespread contemporary practices and continuing

historical traditions. Burnham v. Superior Court, 495 U.S.

604, 615, 618 (1990) (upholding in-state service of process

as consistent with due process because “[t]his American

jurisdictional practice is not merely old; it is continuing”

and holding that the “continuing traditions of our legal

system” define due process required by 14th Amendment)

(emphasis added). As Justice Harlan observed in his

dissent in Poe v. Ullman, 367 U.S. 497, 542 (1961), this

Court must examine “the balance struck by this country,

having regard to what history teaches are the traditions

from which it developed as well as the traditions from

which it broke” (emphasis added). Because the relevant

historical traditions are “a living thing,” id., this Court

must disregard those historical practices that have been

long abandoned by the nation and which contradict wide-

spread contemporary consensus. As this Court has re-

cently stated, “[a] claim that punishment is excessive is

judged not by the standards that prevailed in 1685 when

Lord Jeffreys presided over the ‘Bloody Assizes’ or when

the Bill of Rights was adopted, but rather by those that

currently prevail.” Atkins v. Virginia, 536 U.S. 304, __,

122 S. Ct. 2242, 2247 (2002). Likewise, the status of the

right to visitation is not to be judged by the standards of

the 1830s, before the 14th Amendment was even ratified,

but instead by “the evolving standards of decency that

mark the progress of a maturing society.” Jd. (quoting Trop

v. Dulles, 356 U.S. 86, 100-101 (1958)). See also Printz v.

United States, 521 U.S. 898, 916-17 (1997) (finding that

nation’s traditions bar Congress from commandeering

state executive officials in part because “there is an

6

absence of [federal commandeering of state executives] in

our later history as well”).

B. The fundamental right of familial associa-

tion and visitation survives incarceration

unless restrictions on that right serve

some legitimate penological purpose.

Guided by these principles forbidding “all substantial

arbitrary impositions and purposeless restraints” that are

inconsistent with our “evolving standards of decency,” Poe

v. Ullman, 367 U.S. at 542 (Harlan, J., dissenting), three

propositions are clear from contemporary practice and

judicial precedent.

First, “freedom of personal choice in matters of family

life is a fundamental liberty interest protected by the

Fourteenth Amendment.” Santosky v. Kramer, 455 U.S.

745, 753 (1982) (holding that the state may not interfere

with familial relationship absent clear and convincing

evidence of parental neglect). Beginning with its seminal

decisions in Pierce v. Society of Sisters, 268 U.S. 510 (1925)

and Meyer v. Nebraska, 262 U.S. 390 (1923), the Court

repeatedly re-affirmed the principle that the 14th

Amendment’s due process clause presumptively prohibits

the government from interfering with familial relation-

ships.’ In particular, this Court has repeatedly held that

* See, e.g., M.L.B. v. S.L.J.,519 U.S. 102, 116 (1996) (“choices about

marriage, family life and the upbringing of children are among associa-

tional rights this Court has ranked as ‘of basic importance in society,’

... Tights sheltered by the Fourteenth Amendment against the State’s

unwarranted usurpation, disregard or disrespect”); Quilloin v. Walcott,

434 U.S. 246, 255 (1978); Smith v. Organization of Foster Families, 431

(Continued on following page)

state officials must afford deference to parents’ decisions

concerning what sorts of visitation will serve the- best

interests of their children, because the Court presumes

that “natural bonds of affection lead parents to act in the

best interests of their children.” Troxel v. Granville, 530

U.S. 57, 68 (2000) (plurality opinion) (quoting Parham uv.

J.R., 442 U.S. 584, 602 (1979) and holding that Washing-

ton’s state visitation statute violates 14th Amendment

because “a parent’s decision that visitation would not be in

the child’s best interest is accorded no deference”).

Second, prisoners are not automatically stripped of

such a right of familial association merely because they

are imprisoned. As this Court held in Turner v. Safley, 482

U.S. 78 (1987), prisoners retain their fundamental rights

of familial association absent a legitimate penological

justification for restricting these rights. Thus, Turner held

that prison officials could not prohibit a prisoner from

marrying, because “the limitations imposed by prison life”

did not require such a prohibition. 482 U.S. at 95. Turner

requires exactly the same analysis for other rights of

familial association: if restrictions on such liberties do not

serve any penological purposes, then persons retain those

liberties even while incarcerated. Turner, 482 U.S. at 89

(“when a prison regulation impinges on inmates’ constitu-

tional rights, the regulation is valid if it is reasonably

related to legitimate penological interests”); Pell v. Procu-

nier, 417 U.S. 817, 823 (1974) (“[A] prison inmate retains

those First Amendment rights that are not inconsistent

U.S. 816, 845 (1977); Cleveland Board of Education v. LaFleur, 414 US.

632, 639-640 (1974); Stanley v. Illinois, 405 U.S. 645, 651-652 (1972);

Prince v. Massachusetts, 321 U.S. 158 (1944).

8

with his status as a prisoner or with the legitimate pe-

nological objectives of the corrections system.”).

Third, prisoners’ rights of familial association include

rights to visit with relatives where exercise of those rights

does not interfere with any penological objective. This

principle is suggested not only by the vast majority of

lower court decisions which have addressed the issue,’ but

* See, e.g., Hoversten v. Superior Court, 74 Cal.App.4th 636, 88

Cal.Rptr.2d 197 (1999) (inmates retain the right of reasonable visitation

with their minor children); Boudin v. Thomas, 533 F.Supp. 786, 793

(S.D.N.Y. 1982) (bar on parent-child contact visits violates constitu-

tional rights of inmate and visiting child); Jn re Smith, 169 Cal.App.3d

956, 968-69 (1980) (jails’ bar on minor children’s visiting violates

fundamental right of familial association and is exaggerated response

to security interests of jails); Valentine v. Englehardt, 474 F.Supp. 294,

302 (D.N.J. 1979) (prisoners retain right of reasonable visitation

because “it simply does not lie with jail officials to determine what is in

the best interests of the inmates’ children”); O'Bryan v. County of

Saginaw, 437 F.Supp. 582 (E.D. Mich. 1977) (bar on contact visits

between family members and pre-trial detainees burdens “zone of

privacy” protected by 1st and 14th Amendments); Mitchell v. Untreiner,

421 F.Supp. 886 (N.D. Fla. 1976) (overturning prohibition on children’s

visits with pre-trial detainees as violation of First Amendment); Rhem

v. Malcolm, 507 F.2d 333 (2d Cir. 1974) (upholding district court's

decision that ban on contact visits with pre-trial detainees is unconsti-

tutional); Berch v. Stahl, 373 F.Supp. 412 (W.D.N.C. 1974) (prolonged

denial of visitation privileges between inmate and wife violates

fundamental right to maintain family relationships); Mabra v. Schmidt,

356 F.Supp. 620, 631 (W.D. Wis. 1973).

To the knowledge of amici, the only lower court decision to endorse

the sweeping statement that prisoners have “no right to visitation” also

states that “the question presented is that of the constitutional right to

visitation generally and not that of the right to visits from family in

particular.” White v. Keller, 438 F.Supp. 110, 115 (D. Md. 1977). Moreover,

White’s general argument against visitation rights was unnecessarily

broad given the factual context of the case, because the prison policies

upheld in White involved only the suspension of particular prisoners’ or

(Continued on following page)

9

also by this Court’s own opinions, which have never

suggested that prison officials have the carte blanche

suggested by the United States to restrict visitation. For

instance, in Pell v. Procunier, this Court upheld restric-

tions on prisoners’ contact with news organizations only

after noting that “the California Corrections Department

does not seal the inmate off from personal contacts with

those outside the prison” but instead allows “visits from

members of their families.” Pell, 417 U.S. at 824-25. The

Court also observed that “no discrimination in terms of

content is involved” and that prison officials had not

“restricted visitation by news reporters to interview

prisoners for any content-based reasons.” Jd. at 826. If the

United States were correct that prisoners retain no right

of personal contact during incarceration, United States

Amicus Brief at 10-11, then these observations would be

irrelevant, because the prison officials could have re-

stricted personal visitation for any reason or no reason

whatsoever. Likewise, in every other case in which this

Court has upheld restrictions on visitation, it has always

demanded that the prison supply some legitimate pe-

nological justification for the restriction, usually related to

the punishment of prisoners’ abuse of visitation rights or

the prevention of the circulation of contraband. See, e.g.,

Kentucky Dep't of Corrections v. Thompson, 490 U.S. 454,

457-58 nn.1-2 (1989) (upholding prison regulation restrict-

ing visitation by “(clertain visitors who are either a threat

to the security or order of the institution or nonconducive

visitors’ visitation privileges after they were suspected of smuggling

contraband.

10

to the successful re-entry of the inmate to the commu-

nity”); Block v. Rutherford, 468 U.S. 576, 586 (1984)

(justifying ban on contact visits by “valid, rational connec-

tion” ban and “internal security of a detention facility”);

Pell v. Procunier, 417 U.S. 817, 820-21 (1974) (upholding

restrictions on contacts by press with inmates in wake of

violent episodes partly resulting from unhindered access of

prisoners to press).

Contrary to the assertion of the United States, this

Court has never even hinted that the Constitution protects

no right to visitation whatsoever because the right to

visitation is somehow “in derogation of incarceration.” U.S.

Amicus Brief at 11. Instead, this Court has upheld only

limited restrictions on visitation on the theory that such

limited restrictions could be justified by some specific

penological purpose. Amici freely concede that even the

fundamental freedom to maintain the integrity of one’s

family through visitation must be qualified by the prison

officials’ need to protect and maintain security and order

within the prison. In this sense, visitation rights can never

be “absolute” or “unfettered.” See, e.g., Kentucky Dep't of

Corrections, 490 U.S. at 461. However, it does not follow

from the absence of any “unfettered” or “absolute” right to

visitation that prisoners have “no right to visitation” at all,

even when security considerations are absent. Instead, the

task of this Court has always been to analyze the particu-

lar restriction on visitation being challenged to determine

whether it plausibly serves some penological purpose. The

United States’ contention to the contrary is a radical

departure from precedent that this Court should reject. As

Justice Kennedy has noted in his concurrence in Kentucky

Dep't of Corrections, “[njothing in the Court’s opinion

forecloses the claim that a prison regulation permanently

11

forbidding all visits to some or all prisoners implicates the

protections of the Due Process Clause in a way that the

precise and individualized restrictions at issue here do

not.” 490 U.S. at 465 (Kennedy, J., concurring).

The United States also maintains that “[iJnside

prison, any residual interest a prisoner retains in that

right [of familial association] is necessarily confined to

members of the prisoner’s immediate (i.e., nuclear) family”

and “cannot extend beyond the closest relationships, such

as husband-wife or parent-child.” U.S. Amicus Brief at 17.

The United States can cite no judicial authority for this

extraordinary statement, which is expressly contradicted

by Moore v. City of East Cleveland, in which a plurality of

this Court noted that “[oJurs 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.” Moore uv.

City of East Cleveland, 431 U.S. 494, 504 (1977) (plurality

opinion) (emphasis added).

The United States’ insistence that prisoners have

rights only to associate with members of their nuclear

families misunderstands Turner’s analysis of prisoners’

rights. Incarceration does not automatically justify any

arbitrary reduction of prisoners’ rights. Instead, incarcera-

tion justifies limits on rights if and only if the restriction

serves some penological purpose. Thus, prison authorities

are free to restrict visitation even between husband and

wife if such a restriction serves a penological purpose,

such as prevention of contraband from entering the prison.

Block v. Rutherford, 468 U.S. 576 (1984). However, absent

such penological justifications, the fact of incarceration is

12

irrelevant to the scope of the right. Using this proper

analysis, it is apparent that the prison context does not

justify elimination of rights to association of extended

family recognized in Moore. The degree of consanguinity

between a prisoner and his or her visitors is utterly

unconnected to any penological purpose, such as prevent-

ing escape or riot, interdicting contraband, or promoting

prisoner rehabilitation. Nephews, nieces, and siblings are

not somehow more threatening to prison interests than

children and grandchildren. The prison’s only interest in

excluding such non-nuclear family members is to second-

guess the visitors’ and prisoners’ judgments about which

familial relationships matter to them — an interest that is

simply not remotely “penological.”

This Court should also reject the United States’

invitation to limit rights of familial association to the

prisoner’s “nuclear family” because such a limit would

result in an unjustifiable discriminatory impact against

racial minorities. As the district court noted, African-

American and Hispanic culture tends to place greater

weight on the maintenance of familial relationships

outside the nuclear families. See District Court’s Stay

Ruling, May 21, 2001 (“({MDOC’s] definition of family . . . is

also very Anglo Saxon oriented. [I)t [djoesn’t take into

account the family structures of the African-American

community where siblings relationships, nieces and

nephews and extended family are so important. They are

the most impacted by the restrictions ... ”). See Bazzetta

v. McGinnis, 148 F.Supp.2d at 851 (exclusion dispropor-

tionately deprive ethnic minorities in and out of prison of

important family relationships).

The United States has offered no reason why this

Court should adopt such a racially and culturally biased

gg a err te

13

notion of “family.” Instead, the Court should adhere to the

familiar rule that individuals, not the state, should deter-

mine the importance of their familial relationships. Both

MDOC and the United States amicus brief commit the

error that Moore’s plurality attributed to the City of East

Cleveland — the error of “select{ing] certain categories of

relatives” as necessarily more important than others, over

the objection of the very family members whose rights are

at stake. Jd. at 489-99.

II. MDOC has no legitimate penological interest

justifying its prohibition on minors’ visiting

imprisoned relatives.

MDOC proffer two general categories of justifications

for its broad bar on visitation by minors. First, they argue

that this policy is reasonably related to “institutional

security and safety” such as prevention of over-crowded

waiting rooms or the smuggling of contraband into the

prison. Petitioners’ Brief at 26-28. Second, MDOC argues

that the policy is needed to protect children from “physical

or emotional abuse” which might occur in a visiting

waiting room. Jd. at 29.

As explained in more detail below, neither interest can

justify MDOC’s ban on minors’ non-contact visits. There is

no logical connection between exclusion of children and

prison security: as the district court noted, children pose

no unique or distinct threat of smuggling or over-crowding.

As for protection of children’s welfare, the prison authori-

ties have no legitimate penological interest in second-

guessing the non-incarcerated parents’ judgment that

visits serve the best interests of the child. To the contrary,

determining that the benefits of visits outweighs the risks

of a prisons’ waiting room is the constitutional prerogative

14

of the parents under this Court’s decision in Troxel v.

Granville, 530 U.S. 57 (2000).

A. MDOC’s Exclusion of Minors from Visiting

Relatives in Prison Bears No Reasonable

Relation to the Purpose of Reducing |

Overcrowding or Increasing Security in

the Prisons’ Visiting Facilities.

The district court properly found that MDOC’s prohi-

bition on minors in prison bore no logical connection to the

goals of reducing over-crowded visiting rooms or insuring

the safety or security of prisons. As the district court

noted, thre was simply “no evidence that children present

any greater risk of smuggling than relatives over eigh-

teen.” Bazzetta v. McGinnis, 148 F.Supp 2d 813, 830 (E.D.

Mich. 2001). Indeed, the district court found that MDOC’s

“speculatiions]” about such security concerns were not

MDOC’s basis for excluding siblings, nieces, and nephews

from prison. Jd. As for the worries about over-crowded

waiting rooms, the district court found that there was no

reason to exclude children to reduce over-crowding: in-

stead, the warden of any facility could always adjust

visiting hours or reduce the total number of visitors

without “excluding [children] altogether.” Jd.

The concerns about prison safety and over-crowded

visiting rooms can only be regarded as pretexts ior the

exclusion of minors for the sake of their own protection.

Children have no special capacity somehow to smuggle

contraband past a plexiglass barrier in a non-contact visit,

nor do they take up more space than adults in a waiting

room. One could just as easily use worries about over-

crowding or contraband to exclude Catholics or Democrats

15

from prison visiting rooms on the ground that such exclu-

sions would reduce the number of visitors and thereby

alleviate over-crowded visiting rooms and smuggling of

contraband. Such exclusions would obviously not be

permitted, despite their incidental effect on crowding, as

their under-inclusiveness reveal their true purpose — to

discriminate against particular classes of visitors and thus

burden fundamental liberties of religious free exercise and

political association. Likewise, an exclusion narrowly

targeted to exclude only minor children has the manifest

purpose of second-guessing the parents’ judgment concern-

ing whether visitation serves the child’s welfare, a purpose

that violates the parents’ fundamental right of familial

association.

B. MDOC has no legitimate penological in-

terest in overriding parents’ judgment

about whether visits serve the best inter-

est of their children by prohibiting mi-

nors from visiting imprisoned relatives to

protect children from the prison envi-

ronment.

MDOC’s claim that they are entitled to disregard

parents’ own judgment and decide whether children will

be harmed by visiting relatives in prison is directly con-

trary to this Court’s decision in Troxel v. Granville, 530

U.S. 57 (2000), the central holding of which is that state

officials must defer to the parents’ judgment of whether

visitation serves the best interests of the child. In Troxel,

this Court held that a Washington state judge violated

Tommie Granville’s 14th Amendment right to raise her

children by “(giving] no special weight at all to Granville’s

determination of her daughters’ best interests” when the

16

state court granted visitation rights to the child’s grand-

parents over Granville’s objection. Troxel, 530 U.S. at 69.A

plurality of this Court stated that, by affording no defer-

ence to the parent’s view of the child’s best interest, “(t]he

decisional framework employed by the Superior Court

directly contravened the traditional presumption that a fit

parent will act in the best interest of his or her child.” Jd.

MDOC contravenes visiting parents’ prerogative to

raise their children in precisely the same way as the state

statute at issue in Troxel. Even where parents believe that

seeing close relatives serves the vital interests of their

child, MDOC has overridden this parental judgment,

replacing it with their own contrary view that the risks of

a prison waiting room outweigh the risks of isolation from

family members with whom the child might have critically

important emotional ties. Balancing such risks is a diffi-

cult decision, but Troxel makes clear that it is a decision

for the parent, not state officials, to make. See Justice

Sandra O’Connor, The Supreme Court and the Family, 3

U. Pa. J. Const. L. 573, 577 (2001) (noting that, under

Troxel, the mother “get[s] to make the final decision as to

whom her children will visit” even though the underlying

decision concerning visitation is “a difficult one”). The

parent, not prison officials, are familiar with the particu-

lar characteristics of his or her own child — the child’s age,

maturity, attachment to a particular relative, and need for

further contact with that relative. Because “natural bonds

of affection lead parents to act in the best interests of their

children,” Parham v. J.R., 442 at 602, parents can be

trusted to pay attention to these child-specific circum-

stances to determine whether loss of contact with a loved

one will harm the child more than occasional exposure —

17

under the eyes of the child’s parent — to the seediness of a

prison waiting room. Prison officials, having no expertise

in child rearing, cannot claim that they are entitled to

deference to their judgments on these matters of child

psychology, which are far-removed from prison officials’

penological experience and training. -

The facts of this case illustrate the soundness of

Troxel’s holding that state officials must defer to parental

judgments concerning children’s best interests. Here

MDOC officials admitted their lack of any expertise in

raising children and were unable to support their policy

with anything beyond their personal philosophical beliefs.‘

The district court found that prison officials had essen-

tially ignored the issue of whether the prohibition on

minor visits might harm children. Bazzetta, 148 F.Supp.2d

at 823. As one prison official testified, officials “just didn’t

think about” the possibility of children’s being harmed by

never seeing their imprisoned siblings, uncles, and aunts.

Id. Indeed, prison officials stated that they didn’t “have a

clue” as to how many family relationships might be af-

fected by their policy. Jd. By contrast, plaintiffs presented

testimony of the severe impact on children resulting from

their inability to maintain contact with siblings and uncles

‘ Warden Pamela Withrow asserted that she had never talked to

the siblings of any inmate to determine how their exclusion from seeing

their brothers and sisters might affect them. Trial transcript at -

VIII:143. Although she worried that visits might make minors think

that “prison is an okay place to come to,” she admitted that she had

performed no studies whatsoever to reach this conclusion and that her

belief was simply based on her experience “just as a human being.”

VIII:144-45. On the basis of this experience, she believed that she was

entitled to “trump” the parents’ judgment concerning their own

children’s welfare. VIII:155.

18

who had often been major figures in their life prior to

incarceration.’ On the basis of this evidence, the district

court concluded that “visual contact that occurs on non-

contact visits is crucial to the family member’s ability to

reassure themselves about a loved one’s welfare.” Bazzetta,

148 F.Supp.2d at 831. These findings are amply supported

not only by the trial record but also by widely accepted

scholarship on child psychology of which this court can

take judicial notice.*

* One parent testified that her daughters were “extremely upset”

about not being able to visit their older brother, who had been sen-

tenced to twenty to forty years when he was sixteen years old and had

not seen his sisters since 1996. The daughters suffered from crying

spelis as a result of the loss of contact and had to be taken to a psy-

chologist to address their extreme emotional distress. II:41-42. Another

child testified about being upset at not being able to visit his uncle.

II:74. One girl testified that her inability to visit with her older brother,

who had been her “biggest support system” in her life, had contributed

to her anorexia. II:92-93. The negative psychological effects of having

incarcerated relatives are well-documented in the literature. See, e.g.,

William H. Sack, Children of Imprisoned Fathers, 40 Psychiatry 163,

164-65 (1977). Likewise, the literature suggests that visitation with

relatives can help to rebuild fractured families. See Justin Brooks &

Kimberly Bahna, “It’s a Family Affair” — The Incarceration of the

American Family: Confronting Legal and Social Issues, 28 U. San

Francisco L. Rev. 271, 306 (1994). :

* See, e.g., National Conference of Commissioners on Uniform State

Laws, Model Sentencing and Corrections Act § 4-115, Comment (1979)

(“Ample visitation rights are also important for the family and friends

of the confined person”); Schneller, The Prisoners’ Family: A Study of

the Effects of Imprisonment on the Families of Prisoners (San Fran-

cisco: R and E Research Associates, 1976); Stanton, When Mothers Go

to Jail (Lexington Mass: Lexington Press, 1980); Swan, Families of

Black Prisoners: Survival and Progress (Boston: C. K. Hall, 1981);

Shaw, Children of Imprisoned Fathers (London: Hodder and Stoughton,

1987); Fishman, Women at the Wall: A Study of Prisoners’ Wives Doing

Time on the Outside (Albany: State University of New York, 1990);

(Continued on following page)

19

Turner v. Safley requires courts to afford deference to

prison officials’ judgments about how best to pursue

penological interests. As the district court’s findings

indicate, however, judgments about how children will be

affected by loss of visual contact with relatives are not

penological judgments about which prison officials have

any discernible expertise. It would be inconsistent with

Troxel and common sense to allow prison officials’ casual

ipse dixit about children to trump the parent’s informed

judgment about what will serve their child’s psychological

welfare. There is a possibility that children will be exposed

to unpleasant sights in a prison waiting room, as they

might be in a park, on a sidewalk, in a hospital, or in a

grocery store parking lot.’ Parents and not state officials,

however, have the prerogative of deciding whether the

dangers of such experiences are outweighed by the trauma

of losing all contact with close relatives.

Carlson and Cervera, Inmates and Their Wives: Incarceration and

Family Life (Westport Connecticut: Greenwood Press, 1992).

” MDOC officials could produce evidence of one such incident out of

the literally hundreds of thousands of visits that occur annually in their

facilities. Def-App brief at 10, 15. There was no evidence that the child

in question actually saw her father’s penis exposed behind the barrier

of the non-contact booth: the warden who testified about the incident

admitted that she did not know how it was possible for a child seated on

her mother’s lap to see over a barrier approximately four feet high and

under a ledge. Trial transcript at VIII:140-41. If the child had gotten a

glimpse, there was no evidence that she suffered any trauma from the

incident. Moreover, there was no showing that the likelihood of seeing

an exposed penis is greater in a prison visiting room than in a park or

other semi-public area. Of course, MDOC’s visitation policies would not

have prevented this incident, as the child fell within the exception for

visits to parents. To eliminate every possibility of such exposure,

government officials would have to bar children from ever leaving the

nursery.

20

Although the U.S. Supreme Court has not yet had

occasion to apply Troxel’s holding to the context of prisons,

the only lower court to confront the issue has held that

parents rather than prison officials are entitled to defer-

ence concerning whether visitation serves the best inter-

ests of the child. In striking down a prohibition on contact

visits by minors, the U.S. District Court in Valentine v.

Englehardt, 474 F.Supp. 294, 302 (D.N.J. 1979), held that

prison officials could not justify the prohibition as an effort

to protect the children, because “it simply does not lie with

jail officials to determine what is in the best interests of

the inmates’ children.” Valentine stated that prison offi-

cials were not entitled to deference on this issue because it

was a concern “which does not properly rest with jail

authorities.” Id. See also Hardaway v. Kerr, 573 F.Supp.

419, 426 (W.D. Wis. 1983) (prison may not bar woman from

visiting prison inmate in order to protect her from being

exploited by inmate, because this “sort of paternalistic

regulation” does not serve any legitimate penological

objective related to prison security, rehabilitation, or

deterrence of crime). Amici urge that Valentine’s analysis

is required by this Court’s decision in Troxel and, more

generally, with the well-established principle that parents

are entitled to deference concerning judgments about their

children’s best interest.

Ill. Michigan’s policy of permanently barring

prisoners who have incurred two citations

for substance abuse from any visitation with

any relative is an exaggerated response to the

problem of substance abuse.

The district court struck down MDOC’s policy

of imposing permanent and total bans on all visits to

21

prisoners found guilty of two substance abuse miscon-

ducts, even when those misconducts have no connection to

visitation. The district court held that such a draconian

policy was an unjustified interference with the inmates’

rights of familial association under Turner v. Safley as well

as a denial of the inmates’ rights of procedural due process

and violative of the 8th Amendment.

Amici urge this Court to uphold the lower courts’

holding that MDOC’s policy was an exaggerated response

to the problem of substance abuse in prisons for three

reasons. First, the permanent and total ban severely

burdens fundamental rights of familial visitation. Second,

contrary to the suggestion of the amicus briefs filed by

various states, MDOC’s policy is uniquely severe, indicat-

ing that it cannot be justified by the collective experience

of the states’ prison authorities. Finally, the district court

did not err in finding, on the basis of substantial evidence

in the record, that MDOC’s permanent ban actually

undermined the goal of discouraging substance abuse.

A. MDOC’s permanent and total ban on visi-

tation burdens fundamental rights of fa-

milial association.

By permanently and totally suspending visitation

rights of prisoners and their visitors, MDOC has imposed

an extraordinary burden on their rights of familial asso-

ciation. For the reasons set forth in Part I of this brief,

prisoners retain such rights of familial association unless

their restriction is a reasonable means of advancing a

legitimate penological interest. MDOC’s policy cannot be

justified as such a reasonable means, because it com-

pletely and permanently eliminates all ability for prison-

ers and close family members to visit even when there is no

22

nexus whatsoever between visits and the underlying con-

duct that MDOC wishes to deter.’ More complete elimina-

tion of the opportunity for familial association would be

difficult to imagine.

The United States amicus brief argues that MDOC’s

permanent ban on visits is a reasonable means for deter-

ring substance abuse because prisoners care deeply about

the right to see their family and friends “will think twice

about violating the prison’s substance abuse rule.” U.S.

Amicus Brief at 27. This argument, however, proves too

much. The United States’ logic would entail that any

restriction on a fundamental right, no matter how severe,

should be upheld if the restriction penalizes conduct that

the prison authorities can legitimately deter. By this logic,

MDOC could punish prisoners guilty of substance abuse

by denying them access to legal counsel, because such a

right is highly valued by prisoners. But such deliberate

targeting of constitutional entitlements to penalize sub-

stance abuse would not automatically be justified under

Turner simply because of such a deterrent effect. Likewise,

total and permanent suspension of a prisoners’ right to see

a child, spouse, or parent cannot be automatically upheld

simply because prisoners value the right and will be

deterred by its threatened loss. The right is protected

precisely because it is highly valued by right holders. Its

importance to prisoners cannot be the basis for allowing

its suspension without rendering the right a dead letter.

* The use of home-made alcohol and possession of prescription

medicine are unconnected to the outside world. Illegal drugs come in

through numerous routes including mail, employees and property.

_

23

The United States maintains that this Court has

upheld prison regulations that interfere with prisoners’

visitation. However, all such cases involved burdens on

visitation rights that can be easily distinguished from

MDOC’s permanent ban on one of two grounds.

First, this Court has upheld prison policies that have

the effect but not the purpose of making visits between

family members and prisoners more difficult. For instance,

in Olim v. Wakinekona, 461 U.S. 238 (1983), this Court

upheld the transfer of a prisoner from Hawaii to a

mainland prison, making it extremely difficult for his

family and friends to visit him. However, there was no

contention that the prison authorities imposed the trans-

fer on Wakinekona for the purpose of impeding his family’s

ability to visit him: there simply was no maximum secu-

rity facility suitable for Wakinekona in Hawaii. Olim, 461

U.S. at 241. By contrast, MDOC has deliberately deprived

inmates of visits from family members precisely because

those visits are “among the most highly valued privileges

in prison life.” U.S. Amicus Brief at 27; Bazzetta, 148

F.Supp.2d at __. It is a familiar point that state actions

with an incidental and unintended effects on the exercise

of constitutional rights are judged under a more lenient

standard than the state’s deliberate effort to curtail a

constitutisnal right.’ Olim and similar cases do not

* See, e.g., Washington v. Davis, 426 U.S. 229, 240-45 (1976) (To

show deprivation of equal protection, plaintiff must prove existence of

purposeful racial discrimination; law’s incidental effect of dispropor-

tionately burdening racial minority insufficient to show violation of

equal protection); Branzburg v. Hayes, 408 U.S. 665, 682, 707-708

(1972) (“the First Amendment does not invalidate every incidental

burdening of the press that may result from the enforcement of civil or

(Continued on following page)

24

support the view that prison authorities can intentionally

deprive prisoners of all visits with relatives for the pur-

pose of punishing the prisoner by such a deprivation.

Second, this Court has held that prison authorities

may deprive prisoners of visitation in order to prevent or

punish abuse of visitation rights. Block v. Rutherford, 468

U.S. at 586 (jail may ban contact visits to prevent contra-

band from entering prison); Kentucky Dep't of Corrections

v. Thompson, 490 at 457-58 nn.1-2 (upholding prison

regulation réstricting visitation by “[cJertain visitors who

are either a threat to the security or order of the institu-

tion or nonconducive to the successful re-entry of the

inmate to the community”). Where a prisoner has abused

visitation rights, prison authorities act reasonably in

suspending those rights to prevent the abuse. MDOC’s

policy, however, suspends visitation even for prisoners

whose substance abuse is entirely unrelated to visitation.”

The wholly innocent spouse of an inmate who obtains

alcohol manufactured within the prison is thus deprived of

all contact with her husband. No precedent of this Court

has ever upheld a total, permanent ban on visits between

close family members and prisoners even when the ban

criminal statutes of general applicability” but “harassment of the press

undertaken not for purposes of law enforcement but to disrupt a

reporter's relationship with his news sources would have no justifica-

tion”); Arcara v. Cloud Books, 478 U.S. 697, 708 (1986) (O’Connor, J.,

concurring) (“First Amendment standard of review” does not apply to

law with only “speech-inhibiting consequences” but would apply to

“pretextual” use of nuisance law to suppress expression).

* The use of home-made alcohol and possession of prescription

medicine are unconnected to the outside world. Illegal drugs come in

through numerous routes including mail, employees and property.

25

was imposed to punish conduct utterly unrelated to

visitation.

B. No other state has adopted a permanent

and total ban on visitation for misconduct

unrelated to visitation

MDOC’s permanent ban on visitation is not only an

attack on familial association unsupported by any prece-

dent of this Court. It is also unique among state laws: As

the district court below found, other states’ policies “are

not nearly as harsh” as MDOC’s permanent ban. Bazzetta,

148 F. Supp.2d at 835. No other state currently penalizes

misconduct unrelated to visitation with a permanent and

total ban on all visits. MDOC can hardly justify its perma-

nent ban by reference to the collective experience of state

governments.

The brief submitted on behalf of several amici states

by the Attorney General of Colorado observes that several

states punish inmate misconduct by suspending visitation.

States’ Amici Brief at 4-9. However, an examination of the

policies cited by the amici states’ brief confirms the district

court’s conclusion that MDOC’s policy is uniquely harsh.

None of the state policies cited by these amici impose a

sanction of severity comparable to MDOC’s permanent and

total ban. Five of the amici state governments bar inmates

from receiving contact visits as a consequence of drug

offenses." Eight of the amici state governments impose

" These five states are Indiana, Missouri, Pennsylvania, South

Dakota, and Texas.

26

only temporary loss of visitation.” The amici states also

cite the policies of nine states which did not sign the state

amici’s brief. However, seven of these states impose only

temporary loss of visitation.” Of the two remaining states,

New York allows permanent suspension of visitation only

for offenses related to visits.“ Only one state, Minnesota,

imposes an “indefinite” loss of visiting privileges for an

offense unrelated to visitation (positive urine analysis,

refusing a urinalysis, or attempting to alter a urinalysis).”

However, even Minnesota requires automatic review of

such a penalty annually, and the prison authorities have

discretion to impose only a loss of contact visits.”

Far from being an ordinary method of prison

administration, therefore, MDOC’s permanent and total

ban is unique among states’ penal policies. Contrary to the

brief submitted by various Amici States, States’ Amicus

" These eight amici states’ policies can be found at Colorado Dep't

of Corrections Admin. Reg. 300-01.IV.L.10.b; Florida Admin. Code Rule

33-601.731(2\b); Idaho 604.02.001.0505.00; Md. Div. of Corrections

DCD 105-4 App.3; Miss. Dep’t of Corrections S.0.P. 28-03-02 &

31.03.01; Oklahoma Dep’t of Corrections OP-030118(IIXE\5); and

Tennessee Dep't of Corrections Reg. 507.01(VIXFX7).

" These seven states’ policies can be found at California Admin.

Code, title 15 §§3315(f(5X1), 3323(dX6); Iowa Corrections Policy No.

IN-V-3(V\L); N.H. Dep't of Corrections PPD7.X%IV\P); N.C. Inmate

Disciplinary Procedures CH.B. §§.0202 &.0204; Ohio Dep't of Rehabili-

tation & Correction §308 No. 4, Part VI(K\(2) & §312 No. 02, Pt. (VIXL);

S.C. Dep’t of Corrections OP-22.09; and Rhode Island Admin. Code

06.070.004(IIT EX 13).

“ N.Y. Comp. Codes, Rules, & Regs. Title 5, §200.5(a)(4) and 5(f).

“ Minnesota Dep’t of Corrections Directive 302.100B. Minnesota

also allows an indefinite suspension for smuggling, disruption of the

visiting area, but both of these offenses are clearly related to visitation.

" Id.

27

Brief at 4, “[tJhe collective judgment of correctional

officials throughout the nation” indicates that MDOC’s

policy is an exaggerated response to substance abuse.

C. Substantial evidence supports the district

court’s finding that MDOC’s permanent

and total ban on visitation promoted

rather than deterred substance abuse.

Finally, there was substantial evidence in the record

to support the district court’s finding that MDOC’s policy

was self-defeating. The district court relied on plaintiffs’

expert testimony to conclude that “visitation with family

and friends is the single most important factor in stabiliz-

ing a prisoner’s mental health, encouraging a positive

adjustment to the prisoner’s term of incarceration, and

supporting a prisoner’s successful return to society.”

Bazzetta, 148 F.Supp.2d at 851. Moreover, the district

court found that elimination of visitation had a “devastat-

ing” impact on prisoners suffering from substance abuse or

other mental health problems, id. at 852-53, such that the

elimination of visitation would “tend to increase a pris-

oner’s tendency to resort to drug abuse.” Jd. at 854.” The

district court found that this evidence was not merely

unrefuted but actually unchallenged by MDOC. Id.

" The testimony was plaintiffs’ experts was consistent with

prevailing theories connecting contact with family members to rehabili-

tation of convicts. See, e.g., Bonnie Carlson & Neil Cervera, Inmates

and Their Wives: Incarceration and Family Life (Westport, Connecticut:

Greenwood Press, 1992) (citing studies indicating that prisoners who

are successful in maintaining family ties are less likely to take on

dysfunctional mannerisms, attitudes, and behaviors of professional

criminals).

28

Given this uncontradicted evidence that MDOC’s

policy was self-defeating, MDOC cannot simply rest on the

normal deference to which prison officials are entitled.

Deference is not a rubber star.» of approval. Although

prison officials are entitled to deference in their admini-

stration of prisons, this deference is only afforded “in the

absence of substantial evidence in the record to indicate

that the officials have exaggerated their response.” Bell v.

Wolfish, 441 U.S. 520, 548 (1979). See also Pell v. Procu-

nier, 417 U.S. at 827. The uncontradicted record in this

case provides ample substantial evidence that MDOC’s

permanent and total ban on visitation actually promoted

rather than deterred substance abuse and, thus, was the

epitome of an exaggerated response.

Respectfully submitted,

RODERICK M. HILLS, JR.

Counsel of Record

UNIVERSITY OF MICHIGAN

LAW SCHOOL

437 Hutchins Hall

625 South State Street

Ann Arbor, MI 48103-1215

(734) 763-9634

la

APPENDIX

National Council of La Raza

The National Council of La Raza (NCLR) is a private,

nonprofit, nonpartisan organization established in 1968 to

reduce poverty and discrimination and improve life oppor-

tunities for Hispanic Americans. The NCLR opposes

restrictive visitation policies that maintain prisoners

isolated from their families, and which further purish

prisoners for rule violations not related to visitations,

contrary to reintegrating prisoners into society. Because

family ties are extremely important in the Latino commu-

nity, including our relationships with extended family

members, these rules would have a disproportionate

impact on Latino prisoners and their families.

Southern Center for Human Rights

The Southern Center for Human Rights was created

in 1976 to respond to the deplorable conditions of prisons

and jails in the South. The Center works with prisoners

and their families to urge fair treatment of all prisoners.

Perry Johnson, former Director Michigan

Department of Corrections

The MDOC was my professional life for thirty years

during which I worked in all prison security levels, served

as the Warden of the state’s largest prison in Jackson, and

served as MDOC Director for twelve years, the second

longest tenure in Michigan’s history. The prison visiting

rules that are at issue in this case, which were imple-

mented in 1995, drastically departed from the Depart-

ment’s past practice and tradition and are at odds with

2a

nationally and internationally recognized correctional

standards.

Most who work in prisons or have studied them agree

that social isolation and alienation from family and friends

are among the most harmful effects of incarceration and

are major contributors to recidivism. I leave it to others to

discuss whatever adverse affect Michigan’s restrictive

prison visiting policies may have on children who are

being denied contact with their biological parents. The

importance of visits for prisoners is reflected in the Ameri-

can Correctional Association (ACA) Standards 3-4440 and

3-4441, the United Nations Minimum Rules for the Treat-

ment of Prisoners Rule number 37, and the Council of

Europe Prison Rules number 43.1 through 45.

The MDOC regulations in this case run contrary to

the above principles absent any substantial reason to

justify them. For example, they banned visits from prison-

ers’ minor siblings, nieces and nephews (and others)

claiming that this would make smuggling more difficult,

yet the visits in question would have been conducted in

secure non-contact facilities specifically designed to

prevent the introduction of drugs, weapons, devices for

escape and other contraband, or the possibility of assault.

Another reason given for enacting these restrictions was to

reduce the volume of visits for their already overcrowded

visiting facilities. While most prison systems face this

problem of overtaxed visiting facilities on occasion, espe-

cially those located near urban areas, the accepted correc-

tions practice for managing the problem is to ration the

number and length of visits for all inmates, not to arbi-

trarily ban visitors. Furthermore, it should be noted that

nieces, nephews and siblings are considered “family” in the

closest and most intimate way by African-Americans,

3a

Native Americans, and Hispanics, minorities over-

represented in all prisons, and the MDOC’s failure to

honor this fact in their visiting policies demonstrates

indifference to those cultures.

Most troubling is the ban on all visits for prisoners

who twice violate the department’s drug abuse policies;

this they said was part of their “zero tolerance” policy

toward drug abuse. To be sure, the use or trafficking of

controlled substances and alcohol or the misuse or resale

of prescribed medication is cause for concern in our pris-

ons and should be controlled to the extent possible. How-

ever, the MDOC did not, according to public testimony to

the Legislature, have a serious prison drug problem — a

position backed up by eight years of carefully controlled

drug testing — so no crisis existed that would justify such a

harsh and harmful policy. Further, MDOC possessed and

used a broad range of sanctions, aside from banning visits,

in their “zero tolerance” campaign such as punitive segre-

gation, denial of or removal from work programs, denial of

community placement, loss of good time (disciplinary

credits), and negative reports to the Parole Board. Using

permanent denial of visiting rights as a punitive sanction

for prison misconduct, even though such misconduct was

unrelated to visiting is reprehensible.

I understand that principles and policies that are

advocated professionally may not be carried forth in

practice, but I do not believe that to be the case in this

instance. As President of ACA for two years, member of its

Executive Committee for six years, and active member of

the ACA Standards Committee responsible for the prom-

ulgation of its national standards for ten years, never once

did a corrections agency or individual propose or even

discuss such restrictive punitive prison visiting rules as

4a

are before the Court in this case. Furthermore, I have

inspected prisons in twenty states and five foreign coun-

tries, including China and I never encountered such

restrictive and punitive practices. Michigan’s practice is

truly unusual and the exception in my view.

Robert Brown Jr., former Director, Michigan

Department of Corrections

I retired from the MDOC in May, 1991, after serving

thirty years with the agency, the last seven years as its

director. The previous fourteen years were served as the

Deputy Director in charge of the Bureau of Correctional

Facilities overseeing the operation of Michigan’s prisons.

Prior to that assignment, I worked at two maximum-

security institutions, a minimum-security facility and five

years as a parole officer in the city of Detroit, Michigan. I

have also been assigned on a temporary basis as the

superintendent of a facility housing female felons. My

interest in the development and promotion of profession-

ally accepted standards for the operation of correctional

facilities and in efforts to increase the efficiency and

effectiveness of correctional systems prompts me to speak

up on this matter.

I have been an American Correctional Association

(ACA) accreditation auditor since 1980 and served on the

ACA’s standards committee for the last six years before

state retirement. Since leaving the MDOC, I continue to

audit and consult, having visited over 75 jails and adult

correctional facilities of all security levels in the United

States and Canada, including the United States Bureau of

Prison’s Administrative Maximum Facility in Florence,

Colorado.

5a

In my opinion and experience, the visitation restric-

tions at issue in this case are extreme and unnecessary for

the safe operation of any correctional facility. Individual

visiting problems can be eliminated by limiting visiting

rule violators to non-contact visiting as permitted by

accreditation standards and practiced across the country,

including at the United States Penitentiary Administra-

tive Maximum Facility where many of the country’s most

difficult to manage prisoners are held. In November, 1987,

while I served as Director of the Department, random

urine testing was implemented in the facilities and drug

and alcohol use was reduced. After my retirement the

testing continued and the numbers continued to decrease

to the level of 2.0% positives without these rules. We also

limited individual prisoners to non-contact visiting when

necessary. Access to contraband is not limited to visiting

activities, and other security weaknesses must be ex-

plored. Adequate substance abuse counseling and treat-

ment programming are a must.

Corrections practitioners and those who have studied

recidivism agree that contact with family and family

support play important positive roles in an inmate’s

rehabilitation. The policies at issue add to the instability

of offenders making the offenders more difficult to manage

during the incarceration and increasing the difficulty of

returning to the community when released. To deliberately

isolate prisoners from visits with their families as a

punishment for misconduct that is unrelated to the visit-

ing room is counterproductive to the goals of public safety,

staff safety and the humane incarceration of offenders. I

hope my observations and opinions will be helpful to the

court.

6a

American Association of Community Psychia-

trists

Since 1984, the American Association of Community

Psychiatrists represents community psychiatrists, who

regularly find themselves serving as advocates for patients

who must rely on increasingly dwindling public resources.

The AACP is concerned about these visit restrictions

because quality visitation with loved ones throughout a

period of incarceration is a prerequisite for the mainte-

nance of sound mental health.

National Mental Health Association

The National Mental Health Association is a nonprofit

organization dedicated to promoting mental health,

preventing mental disorders, and achieving victory over

mental illness through advocacy, education, research and

services. For over 90 years, it has been recognized as a

leader in bringing attention to the mental health needs of

all Americans — particularly under-served groups - and

working to expand access to services. NMHA also seeks to

remove the stigma and prejudice associated with mental

illness and has more than 340 state and community

affiliates nationwide. NMHA believes in the important role

visitation with incarcerated parents or extended family

members plays in the mental health of children, the

stability of families, and the rehabilitation of prisoners,

and that such visitation is within the rights of both pris-

oners and their familial visitors. It sees the curtailment of

this right as an additional threat to the children of prison-

ers and to their family stability. An estimated 1.5 million

children in the United States have a parent in prison.

Children of incarcerated parents are often burdened with

multiple risk factors, including the stress of separation,

7a

trauma, and stigmatization. Curtailment of visitation with

incarcerated parents or relatives in extended families only

adds to this stress and can lead to future mental health

problems. In addition, the curtailment of familial contacts

can lead to mental health problems on the part of the

prisoner and pose a barrier to his or her successful reinte-

gration into the family and community upon release. This

may well be a primary contributor to recidivism.

National Alliance for the Mentally III and its

Michigan Chapter

The National Alliance for the Mentally Ill is the

nation’s largest grassroots organization dedicated to

improving the lives of people with severe mental illnesses,

and its members have a long history of advocating for

appropriate treatment for individuals with severe mental

illnesses who are incarcerated. The Michigan Chapter of

the National Alliance for the Mentally Ill was formed in

1986. Between 16% and 30% of prisoners have mental

illness. When a loved one with or without mental illness is

imprisoned, it has a devastating impact on the well-being

of family members, not only for the prisoner. Deprivation

of visitation fosters anger, hopelessness, and despair, and

may precipitate mental illness in family members, coun-

tering family efforts at rehabilitation and reconciliation

and may destroy family relationships. These harsh restric-

tions are demoralizing, dehumanizing, and amount to

cruel and unusual punishment of families and prisoners.

National Association of Black Social Workers

The National Association of Black Social Workers is a

national non-profit organization organized to provide a

8a

forum through which Black Social Workers and workers in

related fields of social services can exchange ideas, offer

service and develop programs in the interest of the Black

community and the community-at-large; including support

for community programs and to advocate for social plan-

ning. The NABSW supports the district covrt decision in

this case finding that the challenged visitation restrictions

violate the constitutional rights of the Michigan prisoners,

because it is consistent with its Family Preservation Policy

for the improvement of Black family life in the United

States of America. This policy recommends that the

families be kept together whenever possible, especially

parent-child relationships. The MDOC visitation restric-

tions deny children their right to visit their parents.

Center for the Study of Social Policy

The Center for the Study of Social Policy provides

public policy analysis and technical assistance to states

and localities in the areas of family and children’s services,

and strongly supports the continuous right of children to

visit their incarcerated parents and relatives. Denying

children the opportunity to know their parents and rela-

tives is discriminatory, especially to children of color.

Correctional Association of New York

Founded in 1844, the Correctional Association of New

York (“CA”), is a private, not-for-profit organization that

conducts prison monitoring, research, public education

and policy analysis and advowacy in pursuit of two princi- —

pal goals: a fair and humane prison and criminal justice

system and a safe and just society. The CA is the only

private organization in New York State that has legislative

9a

authority to visit prisons and report its findings to the

public and policy makers that authority having been given

in 1846. On a regular basis, CA representatives visit and

inspect prisons and have direct contact with prisoners,

former prisoners and their families. Whether inmates

maintain ties with their families and loved ones signifi-

cantly affects their ability to cope with the prison experi-

ence and to make a crime-free adjustment to society upon

their release. The MDOC’s visiting policies undermine this

important principle.

Justice Policy Institute

The Justice Policy Institute is a Washington, DC-

based think tank that is committed to reducing society’s

reliance on incarceration.

Michigan League for Human Services

The Michigan League for Human Services recently

celebrated its 90th anniversary of active involvement in

shaping social policy. Throughout its history the League

has maintained its identity as an “independent association

of citizens interested in the health and welfare of Michi-

gan.” We take an interest in this case because of its impact

on child well-being, particularly low-income children and

children of color, the most vulnerable children in our

society. These rules that restrict children’s visitation to

incarcerated parents result in irreparable damage to the

vital child-parent bond by denying contact for extended

periods of time.

10a

Prisons and Corrections Section of the State

Bar of Michigan

[Notice having been given in writing to the voting

members of the Section’s governing Council, excluding the

chair, this statement of interest was adopted on behalf of

the Section with a vote of 10-2 (2 members abstaining).

The views expressed are those of the Prisons and Correc-

tions Section and do not necessarily represent the views of

the State Bar of Michigan.) The Prisons and Corrections

Section of the State Bar of Michigan has about 150 attor-

ney members who are knowledgeable and concerned about

various issues affecting Michigan prisons, prisoners,

probationers and parolees. The Section publishes a

newsletter, presents informational programs, files amicus

briefs, and takes positions on legislation, court rules, and

Michigan Department of Corrections policies. On May 1,

1999, the Section council unanimously adopted a position

statement entitled “Family Values Behind Bars”. The

statement includes a list of 12 fundamental principles

involving visitation. Among these are the following, which

all address concerns at issue in Overton v. Bazzetta: 2)

Visits should not be restricted or denied except for reasons

specifically related to visiting behavior of the persons

involved; 4) Children should be allowed to visit with their

incarcerated parents even if there is an intervening

adoption, so long as the adoptive parents consent and it is

not contrary to an order of a court; 11) Children under the

age of 18 who otherwise fit the definition of permitted

visitors should not be excluded so long as they are accom-

panied by an appropriate adult.

lla

League of Women Voters of Michigan

The League of Women Voters promotes active and

informed participation of citizens in government and

advocates on policy issues after careful study and delibera-

tion. As a state chapter, the League of Women Voters of

Michigan conducted a two-year study after which, in 1989

it adopted its Prisons in Michigan Position that includes

supporting facilities to enable parents and children to

maintain family relationships.

Paula Schaeffer

Paula Schaeffer, Director of the Female Offenders

Unit of the Minnesota Department of Corrections advo-

cates for women offenders and their children, recognizes

that visitation is absolutely necessary to maintain the

bond between mother and child. The Minnesota DOC has

always been committed to addressing the needs of women

inmates and their children, including visitation, believing

that visitation for female inmates with their children

should be viewed as a right, not a privilege that can be

taken away.

George Sullivan

George Sullivan, is a former Deputy Director for

Operations, Colorado Department of Corrections, Superin-

tendent of Oregon State Correctional Institution, and

Warden of the Penitentiary of New Mexico.

Urban Justice Center

The Urban Justice Center is a non-profit legal organi-

zation that provides direct representation and system-

12a

wide advocacy on issues of concern to poor people. For the

last five years, its Mental Health Project has worked with

prisoners with psychiatric disabilities, including class

action litigation establishing the right to discharge plan-

ning for New York City jail inmates with mental illness.

Its work with prisoners has shown repeatedly how crucial

the role of family is in the life of a prisoner and how

drastically reduced a prisoner’s likelihood of successful

reintegration into the community is if the connection with

family is broken. Denying prisoners visits with family is

not only cruel and unusual — it also wrongs the entire

community by reducing the likelihood that the prisoner

will be able to lead a law-abiding life upon release.

Prison Access Working Group

The Prison Access Working Group is dedicated to

promoting understanding of issues surrounding incar-

ceration and criminal justice, and seeks to facilitate

communication between the general public, students,

prisoners, ex-offenders, and the criminal justice estab-

lishment. PAWG believes that visiting prisons and hearing

and exchanging perspectives firsthand is the best way to

achieve its goals.

Stop Prisoner Rape

Stop Prisoner Rape is a national human rights

organization that seeks to end sexual violence against

men, women, and youth in all forms of detention. Through

education, outreach, and advocacy, SPR confronts indiffer-

ence and combats the causes of prisoner rape. Research

shows that prisoners who are cut off from loved ones are

more vulnerable to attack and rape, and after they are

“ 13a

raped, the lack of a support system makes their healing all

the more difficult. Also, as Wilbert Rideau points out in

LIFE SENTENCES (New York Times, 1992), prisoners

who have quality visits with loved ones feel more con-

nected to the human community and are less prone to

perpetrate rape and less vulnerable to being raped. Many

wardens and experienced correctional staff readily agree,

pointing out that prisoners who maintain quality contact

with loved ones throughout their terms are less prone to

get involved in violence of all kinds, including rape.

Critical Resistance

Critical Resistance is an Oakland, California-based

national movement challenging the growth of the Prison

Industrial Complex by advocating the expansion and

support of schools and educational institutions, health

programs, housing, employment and treatment services

and the simultaneous reduction of correctional funding

and facilities. Critical Resistance advocates for better

treatment and services to prisoners, their children and

families, including family visiting and visitation with

children.

Bishop Coleman McGehee

Bishop Coleman McGehee, retired Episcopal Bishop of

the Diocese of Michigan, has had extensive experience

working with prisoners and their families for over 40 years

of ministry and prior career as an Assistant Prosecuting

Attorney in the State of Virginia. He has seen firsthand

the difference that contact with family members makes to

the rehabilitation of prisoners, and on many occasions,

worked to encourage family members to maintain a

l4a

connection with their incarcerated loved ones. The

MDOC’s limitations on prisoners’ visitation rights is

detrimental to their well being and prospects for rehabili-

tation.

Rt. Rev. R. Stewart Wood, Jr.

The Rt. Rev. R. Stewart Wood, Jr., retired Episcopal

Bishop of the Diocese of Michigan, recognizes that in

fulfilling its mission of service to the community, the

church recognizes that family relationships are vital to the

transition of prisoners back into society. Over the years,

the outreach efforts of churches within the diocese have

shown the importance of contact between prisoners and

their family members. The restrictive visitation rules for

prisoners in the state of Michigan cause great harm to

prisoners, their families and the community.

Metropolitan Organizing Strategy Enabling

Strength

The Metropolitan Organizing Strategy Enabling

Strength (MOSES) is an ecumenical and interfaith com-

munity organization of some 72 member congregations

reflecting the diversity of the Detroit metropolitan area.

MOSES and its member congregations actively promote

social justice and public safety regionally, statewide, and

nationally. MOSES created the Safe Zone Project that is a

nationally recognized, citizen-based community policing

and drug prevention strategy. Many members of the

congregations that comprise MOSES have family members

who have been or are now incarcerated. Preserving and

safeguarding the integrity of the family unit is central to

our mission. MOSES asserts that the MDOC visitation

l5a

rules not only cause grave harm to prisoners, their fami-

lies, and their loved ones, but also harm our member

congregations by jeopardizing the essential family and

community relationships of prisoners, many of whom are

eventually released into our community.

Episcopal Church of the Incarnation

_ The Episcopal Church of the Incarnation is a mission

church within the Episcopal Diocese of Michigan that has

done outreach to prisoners within the MDOC and support-

ing ex-offenders in their transition back into society for

over 17 years. The church believes that contact between

inmates and their loved ones is one of the single biggest

factors in predicting whether an offender can successfully

transition back into society, and that the MDOC visitation

rules adopted in 1995 have caused grave harm not only to

the prisoners, their families and their loved ones, but also

to the broader community when the ex-offenders are

released.

Restorative Justice Ministry

The Restorative Justice Ministry, Catholic Diocese of

Lansing covers 10 Michigan ccunties with over 90

churches and 40 schools, and more than 180,000 Catholics

as well as other members of the community. It has served

inmates of the DOC and their families for over 60 years.

Shalom Center for Justice and Peace

The Shalom Center for Justice and Peace is a ministry

of the Lansing District of the United Methodist Church in

Michigan, acting as the social action arm of the 67

16a

churches on a variety of social issues, including the effects

of incarceration on prisoners and their families.

Colonel Robert C. Lynn

Colonel Robert C. Lynn, United States Air Force,

retired, has extensive background working with prisoners

as a reserve air force chaplain, chaplain in all of the major

prisons in Oregon, Religious Program Manager for the

Washington State DOC, and chair of Washington State

DOC Religious Advisory Committee, which has shown him

the importance of visits with family and friends to the well

being and rehabilitation of prisoners.