Amicus Curiae Brief — Overton v. Bazzetta

In The

Supreme Court of the G

¢

WILLIAM OVERTON, et al.,

Petitioners,

Vs.

MICHELLE BAZZETTA, et al.,

Respondents.

°

On Writ Of Certiorari

To The United States Court Of Appeals

For The Sixth Circuit

+

BRIEF OF AMICI CURIAE AMERICAN €fViI—__

LIBERTIES UNION AND FOUR OTHER

ORGANIZATIONS INTERESTED IN THE RIGHTS

OF PRISONERS IN SUPPORT OF RESPONDENTS

°

ELIZABETH ALEXANDER STEVEN R. SHAPIRO

Counsel of Record AMERICAN CIVIL LIBERTIES

DAvID C. FATHI UNION FOUNDATION

CRAIG A. COWIE 125 Broad Street

NATIONAL PRISON PROJECT New York, NY 10004

OF THE AMERICAN CIVIL (212) 549-2660

LIBERTIES UNION

FOUNDATION : LENORA M. LAPIDUS

733 15th Street, NW NaMITA LUTHRA

Suite 620 Wormers RIGHTS Prosect OF

i THE AMERICAN CIVIL

Washington, DC 20005

(202) 393-4930 LIBERTIES UNION

FOUNDATION

125 Broad Street

New York, NY 10004

(212) 549-2668

Attorneys for the American Civil Liberties Union

(Counsel Continued On Inside Front Cover)

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964 ‘J

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LIST OF ADDITIONAL AMICI

NEW YORK LEGAL AID SOCIETY

AMERICAN FRIENDS SERVICE COMMITTEE

CITIZENS ALLIANCE ON PRISONS AND PUBLIC SPENDING

CITIZENS UNITED FOR THE REHABILITATION OF ERRANTS

(CURE)

LIST OF ADDITIONAL COUNSEL

DANIEL L. GREENBERG

JOHN BOSTON

LEGAL AID SOCIETY

PRISONERS’ RIGHTS PROJECT

One Battery Park Plaza, 27th Floor

New York, NY 10004

(212) 577-3530

Attorneys for Legal Aid Society of New York

MICHAEL J. STEINBERG

Kary L. Moss

AMERICAN CIVIL LIBERTIES UNION

FUND OF MICHIGAN

60 West Hancock St.

Detroit, MI 48201

(313) 578-6800

Attorneys for the American Civil Liberties Union

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES ............00ceceeeeeeee iii

INTERESTS OF AMICI CURIAE .........500cceeeeees 1

STATEMENT OF THE CASE ............00cceeeeeees 2

SUMMARY OF ARGUMENT ...........00000eeeeees 3

GETS ccccccccceccceccedeccccccceccocececes 4

I. PRISONERS RETAIN A RIGHT TO MAINTAIN

INTIMATE HUMAN RELATIONSHIPS THAT IS

IMPLICATED IN DENIAL OF VISITATION TO

FAMILY MEMBERS .............0000eeeeeeueees 4

A. The Nature of the Right .................55. 4

B. The Historical Background ................. 6

C. The Right to Visit as an Aspect of the Right to

Maintain Intimate Relationships ............. 9

Il. THE CHALLENGED RESTRICTIONS FAIL THE

PUES DEED os cc ccccccccccccecccescccccncece 12

A. The Permanent Ban on Visitation for Two

Substance Abuse Disciplinary Reports ...... 12

B. The Restrictions on Visits from Minors Not

Accompanied by a Member of the Immediate

PRUE ccccccccccccoscccceesceveseosesoes 19

C. Other Restrictions Barring Visits by Children

and the Restrictions on Visits by Former

PUREED acccccccccesscccoccccsccecceccce 23

ii

Ill. PETITIONERS’ PERMANENT BAN ON FAMILY

VISITS VIOLATES THE EIGHTH

GEUUEPUEEE. Sodenccctcdcdncccesecacccossese 25

A. The Eighth Amendment's Protection is not

Limited to Deprivation of Physical Needs ... .25

B. _ Petitioners’ Permanent Visiting Ban Results

in the Unnecessary and Wanton Infliction

GPG av svwrscsveessccucsdéasesssonessces 26

SP Aoredudccdcccuensséanéaccdsundasons 28

TABLE OF AUTHORITIES

CASES

Bazzetta v. McGinnis, 286 F.3d 311 (6 Cir. 2002)........ 2

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

(E.D. Mich. 2001), aff'd, 286 F.3d 311

. —eaR RRA Sgn yee passim

Block v. Rutherford, 468 U.S. 576 (1984) .............4. 10

Chambers v. Florida, 309 U.S. 227 (1940) ............-. 25

Coker v. Georgia, 433 U.S. 584 (1977) ............0005- 28

Farmer v. Brennan, 511 U.S. 825 (1994) .............+. 13

Hope v. Pelzer, 536 U.S. 730, 122 S. Ct. 2508 (2002) ..... 26

Hudson v. McMillian, 503 U.S. 1 (1992) ............24. 26

Hudson v. Palmer, 468 U.S. 517 (1984) ...........2245: 25

In re Medley, 134 US. 160 (1890) ............... 3, 7, 8,9

Kentucky Department of Corrections v. Thompson,

I cccccsdadeteencecdénddcesees 10

M.L.B. v. S.L.J., 519 U.S. 102 (1996) ..........22245- 4, 27

Meyer v. Nebraska, 262 US. 390 (1923) ...........02+05- 4

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

NE ie CRIT A, LEIS Seeks 4, 11, 23, 27

iv

Pell v. Procunier, 417 U.S. 817 (1974) ............. 5, 9, 10

Procunier v. Martinez, 416 U.S. 396 (1974) ........... 5, 18

Roberts v. United States Jaycees, 468 U.S. 609 (1984) .... 4,5

Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367 (1992) 17

ees

Sandin v. Conner, 515 U.S. 472 (1995) ......0..e0 cece: 14

Santosky ©. Kramer, 455 U.S. 745 (1982) ...... 20.20.00. 27

Thornburgh v. Abbott, 490 U.S. 401 (1989) ......... 5, 9, 18

Trop v. Dulles, 356 U.S. 86 (1958) ............0.00. 25, 28

Turner v. Safley, 482 US. 78 (1987) ....... 20000000. passim

Whitley v. Albers, 475 U.S. 312 (1986) ......... 20.0000. 25

Zablocki v. Redhail, 434 U.S. 374 (1978) .........0. 00... 5

CONSTITUTIONS, STATUTES, REGULATIONS

ee Ga GRINS ccc ccctccccceseseucsccneugeeses 2

eee Ge GUE OD ceccescccccccccesvcccecsscses 25

See GS GIES G cccccccccccccssosecuceessesees 6

ee GU WEEE. cv vcescdcncvssesconcsess passim

CE GUE, GUNG. FG ccc ccccccccvcscccccescces 2, 10

Mich. Admin. Code:

R. 791.6607-6614 (2002) .. 0.0... cece eee cece ee eeees 2

R. 791.6609 (2002) ...... 2c ccc cce cece ceeeeees passim

Mich. Dep’t of Corr. Policy Directive 05.03.140

UR, Ti BOGE oc vcccccccccstescescevcscoccosees 20

ADDITIONAL AUTHORITIES

Leonard G. Leverson, Constitutional Limits on the Power to

Restrict Access to Prisons: an Historical Re-examination, 18

Harv. C.R.-C.L. L. Rev. 409 (1983) ..........000005: 7

The Oxford History of the Prison (Norval Morris & David J.

SEDGE, TICED cc cccecccccvccccccccecsess 6,7

Ilan K. Reich, A Citizen Crusade for Prison Reform (1994),

available at http:/ / www.correctionhistory.org/html/

chronicl/cany/html/canyOl.html ............... 8

David J. Rothman, The Discovery of the Asylum (1971) 6,7,8

1

INTERESTS OF AMICI CURIAE"

The American Civil Liberties Union (ACLU) is a

nationwide, nonprofit, nonpartisan organization of more than

300,000 members dedicated to the principles of liberty and

equality embodied in the Constitution and this nation’s civil

rights laws. The ACLU of Michigan is one of its state

affiliates. The ACLU established the National Prison Project

to protect and promote the civil and constitutional rights of

prisoners and the Women’s Rights Project to protect and

promote the civil and constitutional rights of women.

The Legal Aid Society of the City of New York is a

private organization that provides free legal assistance to

indigent persons in New York City. Though its Prisoners’

Rights Project, the Society defends the constitutional rights of

prisoners.

The American Friends Service Committee is a Quaker-

based organization devoted to building a just and peaceful

world. The Religious Society of Friends (Quakers) has been

demanding just prison conditions for inmates for two

centuries.

The Citizens Alliance on Prisons and Public Spending

is a Michigan Coalition of civic, religious, and civil rights

groups, criminal justice professionals, mental health and

substance abuse treatment providers, educators, advocates for

children and families, and others who are concerned about

the social and economic costs of our greatly expanded prison

system.

Citizens United for the Rehabilitation of Errants

(CURE) is a nationwide grassroots criminal justice reform

‘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

organization whose membership primarily consists of

prisoners, ex-prisoners and their family members. CURE

believes that the isolation of prisoners and the destruction of

their support systems discourage rehabilitation.

STATEMENT OF THE CASE

In 1995 the Michigan Department of Corrections

promulgateda revised visitation rule thatallowsa permanent

ban on all visitation, other than with a lawyer or member of

the clergy, for a prisoner who has been found guilty of two

violations of prison disciplinary rules relating to substance

abuse. The new rule also prohibits visits to a prisoner by a

minor unless the minor is the child, stepchild or grandchild

of the prisoner and accompanied by a guardian or adult

member of the prisoner's immediate family. For purposes of

the rule, the term “immediate family” was defined to include

aunts and uncles with previous close ties to the prisoner and

grandparents. Minors are also not allowed to visit an

incarcerated parent if parental rights have been terminated,

regardless of the custodial parent’s viewsas to the desirability

of continued visitation. Additionally, the rule prohibits

former prisoners from visiting unless they are members of

the prisoner’s immediate family. See Mich. Admin. Code R.

791.6607-791.6614 (2002).

The Respondents, prisoners and prospective prison

visitors, filed a class action seeking injunctive relief against

the restrictions. The trial court and the Sixth Circuit Court of

Appeals upheld the rule as applied to contact visitation. The

trial court then considered the Respondents’ renewed

constitutional challenges under the First, Eighth and

Fourteenth Amendments and held that the restrictions on

non-contact visits were unconstitutional. Bazzetta v.

McGinnis, 148 F. Supp. 2d 813 (E.D. Mich. 2001). The

Petitioners appealed to the Sixth Circuit, and that court

affirmed. Bazzetta v. McGinnis, 286 F.3d 311 (6" Cir. 2002).

This Court granted a writ of certiorari to determine whether

the challenged rules can constitutionally be applied to non-

3

contact visits. The question of contact visits is not before the

Court.

SUMMARY OF ARGUMENT

This Court has recognized that the right to association

includes the right to create and maintain intimate

relationships. This right is not lost upon incarceration,

although it is subject to substantial restrictions, as

demonstrated by this Court’s decision in Turner v. Safley, 482

US. 78, 95, 99 (1987), striking down restrictions on the right

of prisoners to marry. Probably the most important of

prisoners’ retained rights to maintain intimate relationships

is the right to visit, and none of the Court's previous

decisions supportsa claim that this right is extinguished upon

incarceration. Nor does the recognition of such a right imply

that prison officials could not impose some short-term

restrictions on the availability of visits, or other restrictions

that have the incidental effect of making visits more difficult.

Historical evidence of prison practices in the United

States and England as of the enactment of the Bill of Rights

refutes any claim that a sentence to prison was assumed to

end all right to visits with loved ones. In the nineteenth

century, the Auburn and Pennsylvania prison systems

substantially restricted prisoners’ ability to maintain even

minimal human contact with others, but those systems were

abandoned precisely because they destroyed the mental

health of prisoners rather than reforming them, as this Court

recognized in In re Medley, 134 U.S. 160 (1890). Modern

scholarship confirms the wisdom of history that society's

interests, as well as those of prisoners and their families, are

served by a recognition of prisoners’ rights to association.

The various restrictions that Petitioners have imposed

on non-contact visits for prisoners violate the four-part test

adopted in Turner. The permanent ban on visits by prisoners

based on two findings of prison misconduct involving

substance abuse fails the Turner test because the punishment

rests on a theory of general deterrence that would allow

3

contact visits. The question of contact visits is not before the

Court.

SUMMARY OF ARGUMENT

This Court has recognized that the right to association

includes the right to create and maintain intimate

relationships. This right is not lost upon incarceration,

although it is subject to substantial restrictions, as

demonstrated by this Court’s decision in Turner v. Safley, 482

U.S.78, 95, 99 (1987), striking down restrictions on the right

of prisoners to marry. Probably the most important of

prisoners’ retained rights to maintain intimate relationships

is the right to visit, and none of the Court’s previous

decisions supportsa claim that this right is extinguished upon

incarceration. Nor does the recognition of such a right imply

that prison officials could not impose some short-term

restrictions on the availability of visits, or other restrictions

that have the incidental effect of making visits more difficult.

Historical evidence of prison practices in the United

States and England as of the enactment of the Bill of Rights

refutes any claim that a sentence to prison was assumed to

end all right to visits with loved ones. In the nineteenth

century, the Auburn and Pennsylvania prison systems

substantially restricted prisoners’ ability to maintain even

minimal human contact with others, but those systems were

abandoned precisely because they destroyed the mental

health of prisoners rather than reforming them, as this Court

recognized in In re Medley, 134 U.S. 160 (1890). Modern

scholarship confirms the wisdom of history that society’s

interests, as well as those of prisoners and their families, are

served by a recognition of prisoners’ rights to association.

The various restrictions that Petitioners have imposed

on non-contact visits for prisoners violate the four-part test

adopted in Turner. The permanent ban on visits by prisoners

based on two findings of prison misconduct involving

substance abuse fails the Turner test because the punishment

_rests on a theory of general deterrence that would allow

5

Court has made clear in Roberts and elsewhere that the right

is “exemplif[ied by] those [relationships] that attend the

creation and sustenance of a family,” including marriage and

the rearing of children. 468 U.S. at 619.

If incarceration destroyed prisoners’ interest in

maintaining intimate relationships, then prison officials

presumably could also ban prisoners’ letters and telephone

calls to and from family members. This Court, however, has

made clear that prisoners do not forfeit all rights of intirnate

association. Thus, even in prison, any restrictions on theright

of a prisoner to associate with close family members must

take into account the important constitutional interests at

stake. The Court’s seminal decision in Turner reflected that

approach. It not only recognized the continued existence in

prison of the right to marry but struck down a Missouri

prison regulation that infringed on that retained right. 482

US. at 95, 99. In Turner, the Court relied on its earlier

decision in Zablocki v. Redhail, 434 U.S. 374 (1978), for the

proposition that there is a constitutionally protected right to

marry. Zablocki, in turn, roots the right to marry in the

protection the Due Process Clause gives to matters of choice

in family life. Id. at 384-85.

Of course, the right to intimate association is

necessarily subject to substantial restriction in prison, but the

fact that incarceration may justify some limits on the right is

far different from claiming, as Petitioners do, that the right in

toto is inconsistent with the status of being a prisoner.

Compare Pell v. Procunier, 417 U.S. 817, 823 (1974) (noting that

allowing a prisoner to leave prison to visit family members

would be inconsistent with the status of being a prisoner),

with Procunier v. Martinez, 416 US. 396, 409 (1974)

(“Accordingly, we reject any attempt to justify censorship of

inmate correspondence merely by reference to certain

assumptions about the legal status of prisoners.”), overruled on

other grounds by Thornburgh v. Abbott, 490 U.S. 401, 413-414

(1989).

6

Society has compelling interests in assuring that

prisoners maintain intimate personal ties even while

incarcerated. Unrefuted evidence in the trial court

established that prisoners who maintained quality,

continuous contact with three people during their term of

incarceration were one-sixth as likely as others to be back in

prison one year after release. bazzetta, 148 F. Supp. 2d at 851.

Similarly, the recidivism rate for prisoners who live with a

partner upon release is around fifteen to twenty percent,

compared with a standard rate of 63 percent. Id. at 853.

Unrefuted evidence also established that visitation with

family and friends is the single most important factor in

stabilizing a prisoner’s mental health and supporting a

prisoner's successful return to society. Id. at 851-52. That

empirical evidence, moreover, is reinforced by historical

practice. |

B. The Historical Background

Contrary to the claims of the United States, see Brief

for the United States (“U.S. Brief”) at 14-16, the historical

record does not support a refusal to recognize an interest of

constitutional magnitude that survives incarceration. The

Justice Department argues that early prisons in the United

States often severely restricted or precluded visitation, but it

relies almost exclusively on references to practices in state

and local prisons in the early nineteenth century, practices

that obviously could not have informed the contemporaneous

understanding of drafters of the Fifth Amendment to the

Constitution. The Oxford History of the Prison, cited in the U.S.

_ Brief at 14, sharply distinguishes between such policies in

1780, when “[o]nly the presence of irons differentiated the

felons from the visitors,” and policies in 1865, when prisoners

were allowed few visitors. The Oxford History of the Prison 79,

108 (Norval Morris & David J. Rothman eds., 1995).

Sentences to imprisonment were uncommon in

eighteen century America, but colonial jails, like English jails,

admitted visitors freely. David J. Rothman, The Discovery of

7

the Asylum 48 (1971); Leonard G. Leverson, Constitutional

Limits on the Power to Restrict Access to Prisons: an Historical Re-

examination, 18 Harv. C.R.-C.L. L. Rev. 409, 414 (1983); see also

The Oxford History of the Prison, supra, at 80-83 . Indeed, a man

imprisoned in a New York jail in 1770 for writing an anti-

British pamphlet published a notice in the local paper

announcing the hours during which he hoped to receive

friends at the jail. Leverson, supra, at 414 n.23 (citing The Am.

Scenic & Historic Pres. Soc’y, The Old Martyrs’ Prison 9

(1902) (on file with the Harvard Law School Library)). In the

early nineteenth century, a prospective visitor originally

refused entry to Newgate State Prison, in what is now

Greenwich Village in New York, threatened to sue for

admission. The Board of Prison Inspectors” doubted the right

of refusing him, and were unwilling to risk the event of an

action at law.” Leverson, supra, at 415 & n.27, (quoting Journal

of the Assemb. of the State of N.Y., 45" Sess., at 106 (1825)).

Moreover, as this Court noted in In re Medley, 134 U.S.

160 (1890), under English law, solitary confinement, which

had as its essential feature cutting off all communication with

the prisoner, involved a distinct punishment imposed under

a separate statute and was considered “additional

punishment of such a severe kind that it is spoken of in the

preamble [to the statute] as a further terror and peculiar mark

of infamy to be added to the punishment of death.” Id. at 170

(internal quotation omitted).

Nor does the experience of the nineteenth century

prisons cited in the U.S. Brief support the argument that this

Court need not recognize the serious interests of prisoners in

maintaining intimate family relationships. The United States

reports the historical practices of these prisons but not the

historical consensus about their consequences. In the 1820's

the Auburn state prison in New York first implemented a

method of prison organization that involved prisoners

working together in enforced silence, forbidden to speak or

even look at other prisoners during the course of their

8

confinement. During the same period Pennsylvania

developed a system in which prisoners were isolated during

the entire period of imprisonment. Prisoners served their

entire sentence locked in single cells, with communications

limited to a few selected guards and visitors. Rothman,

supra, at 79-82.

The comparative merits of the two systems were the

subject of impassioned debate. For example, the supporters

of the contending systems exchanged charges asto which was

more likely to cause the prisoners to die or become mentally

ill. Id. at 81, 87-88. In fact, however, the two systems were

quite similar in their destructive effects. The 1845 Report of

the Correctional Association of New York reported that, over

the preceding two decades, the Auburn system had produced

a death rate of 56 percent and the Pennsylvania system had a

death rate of 71 percent. Ilan K. Reich, A Citizen Crusade for

Prison Reform (1994), available at http://

www.correctionhistory.org/html/

chronicl/cany/html/cany01.html.

This Court, holding that a Colorado statute that

imposed solitary confinement on prisoners .awaiting

execution imposed an ex post facto punishment as applied to

a previously-sentenced prisoner, described the Pennsylvania

system as follows:

The peculiarities of this system were the ~~ saa

isolation of the prisoner from all human society . .

But experience demonstrated that there were serious

objections to it. 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

merial activity to be of any subsequent service to the

community.

In Re Medley, 134 U.S. at 168.

We do not cite this historical evidence to argue that

Michigan's policies are as destructive as the policies adopted

in the Auburn and Pennsylvania systems. Rather it shows

that these examples are not persuasive evidence that the

historical record negates the existence of any constitutional

interest on the part of prisoners in maintaining intimate

relationships. See U.S. Brief at 14-16. It further shows that

the wholesale disregard of human associational needs has

quite predictable and devastating consequences.

C. The Right to Visit as an Aspect of the Right to

Maintain Intimate Relationships

In the prison context, the right to visit is a necessary

corollary of the right to maintain intimate relationships. As _

this Court noted in Thornburgh v. Abbott, 490 US. 401 (1989),

access to prisoners is essential for families who seek to sustain

relationships with their loved ones. Id. at 407; see

also Pell, 417 U.S. at823-24 (noting that the “’existence of other

alternatives does not extinguish altogether any constitutional

interest on the part of the appellees in this particular form of

[face-to-face] access’”) (quoting Kleindienst v. Mandel, 408 US.

753, 765 (1972) (internal brackets omitted)).

The U.S. Brief argues that the Court need not

recognize a constitutional right to visits because a complete

denial of visits, contact and non-contact, is not quite the same

as a complete severing of all of a prisoner's means of

communicating with loved ones, in light of alternative means

of sustaining such relationships through correspondence and

access to the telephone. US. Brief at 12. The Turner Court

rejected this analysis, holding that the availability of

alternative means of exercising a right is only one of several

factors to be weighed in assessing claims of infringement on

constitutional rights. 482 U.S. at 90. In contrast, the

approach of the U.S. Brief would find that no constitutional

right exists as long as some alternative remains available, thus

short-circuiting the Turner analysis. Constitutional

10

protection for face-to-face visits with loved ones involves a

core aspect of the right to maintain intimate relationships, an

aspect that for prisoners is probably the most important

feature of their retained rights to maintain intimate

associations.’

Recognition of this right is consistent with all of this

Court's previous decisions. In a number of cases, the Court

has analyzed restrictions on prisoners’ retained right to face-

to-face visitation, and this analysis would have been

unnecessary in the absence of a predicate constitutional right

implicated by the restrictions. See Pell, 417 U.S. at 823-24; see

also Block v. Rutherford, 468 US. 576, 586 n8 (1984) (quoting

Bell v. Wolfish, 441 U.S. 520,546 (1979), for the proposition that

maintaining jail security, internal order and discipline are

essential goals that at times require restrictions on the

retained constitutional rights of prisoners and holding that

the jail’s policy of denying contact visits to detainees did not

violate the Fourteenth Amendment); Ky. Dep't of Corr. v.

Thompson, 490 U.S. 454, 465 (1989) (Kennedy, J., concurring)

(“Nothing in the Court's opinion forecloses the claim that a

prison regulation permanently 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 here [regarding exclusion for short periods of

individual visitors who were suspected of visit-related

misconduct] do not.”).

We do not argue that all short-term restrictions on

etstfichen, whhaten on tnahientel ich : or otherwise,

implicate retained constitutional rights. Shorter restrictions

"To the extent that the issue of visitation of family members

arises in anon-institutional context, ordinarily the question is the extent

to which the state might limit the right of a custodial parent or guardian

to restrict visitation with others. See, e.g., U.S. Brief at 18. Since all the

disputes about visits by minors in the instant case, how ever, necessarily

involve custodial parents who desire that the child have visits with the

prisoner, these cases are of little relevance here.

11

may not have the same effects of destroying the intimate

relationships that are a prisoner's lifeline, and therefore do

not always implicate an interest of constitutional magnitude.

Moreover, this case does not give the Court an occasion to

review restrictions on contact visits for prisoners; such visits

have obvious security implications that are ordinarily

irrelevant to non-contact visitation.’

Rather, we urge the Court to find that restrictions like

those at issue here, which destroy the possibility of face-to-

face visitation with the prisoner's loved ones, either

permanently or until a child reaches maturity, implicate a

right of constitutional dimensions that can be abrogated only

if the restrictions meet the standards set forth in Turner. As

the Court noted in Moore v. City of East Cleveland, 431 U.S. 494

(1977), “[a]ppropriate limits on substantive due process come

not from drawing arbitrary lines but rather from careful

respect for the teachings of history, and solid recognition of

the basic values that underlie our society.” Id. at 503 (internal

quotation marks, brackets, citations and footnote omitted).

Among those basic values are the right to establish and

maintain intimate relationships. The record in this case

confirms the importance of recognizing these basic values.

As stated in the trial court's findings of fact, “[a] broad

consensus, supported by decades of research, affirms that

* The United States points out that the federal prison system

contai.s a few prisoners and detainees suspected of terrorism. SeeUS. -

Brief at 21. This concern, however, applies to a handful of prisoners in

comparison to the over two million persons behind bars, and the

Petitioners have made no claims that any of their regulations here are

necessary or: this basis. Accordingly, this case gives the Court no

occasion to consider whether there are any circumstances in which non-

contact and closely monitored visits may be denied to a prisoner based

on an assessment of a risk related to communications with the visitors.

Because diutinctions are possible among prisoners who pose different

levels of security conccms, the Court should not establish the

constitutional baseline for all prisoners based on concerns that apply to

a minuscule number of cases.

12

visits promote rehabilitation, reduce behavior problems, and

significantly increase a prisoner’s chance for success on

parole.” 148 F. Supp. 2d at 818. When contemporary

scholarship confirms the wisdom of history, that wisdom

should not be lightly disregarded.

II. THE CHALLENGED RESTRICTIONS FAIL THE

TURNER TEST

A. The Permanent Ban on Visitation for Two

Substance Abuse Disciplinary Reports

Although the Petitioners refer to a “two-year visitation

restriction,” Pet. Br. at 37, the regulation itself refers to the

visitation ban as “permanent.” Mich. Admin. Code R.

791.6609 (11) & (12) (2002).

Approximately 1250 prisoners in Michigan have thus

been punished by permanent loss of all visitation, based on

two administrative findings of misconduct in violation of the

substance abuse prison discipline rule. Bazetta, 148 F. Supp.

2d at 818 n.1 (noting that twenty percent of the prisoners

punished under the regulation equaled approximately 250

files). Petitioners assert that their legitimate penological

interest, a prerequisite to the application of the four-pronged

Turner test, is deterrence of the use of illegal drugs. Under the

particular facts of this case, however, the appropriate

characterization is the interest of prison officials in deterring

misconduct unrelated to the assertion of the constitutional

right that they wish to infringe.

Michigan here asserts a breathtaking power to deter

misconduct by intentionally depriving prisoners of a |

constitutional right as punishment for conduct that is

unrelated to the exercise of that right. If this application of

Turner were to be upheld, a prison official could punish any

prison misconduct by invading any of a prisoner's remaining

13

constitutional rights, save the Eighth Amendment.‘ In this

case Petitioners exempt clergy and lawyer visits from their

permanent ban on visits, but the justification they offer

applies equally well to barring religious or legal visits, and

barring such visits solely to punish prisoners would increase

the presumed deterrent effect of the rule by making the

penalty even more onerous.

Moreover, the principle for which Petitioners argue,

if accepted, would seem to apply beyond the context of

i misconduct punishments. A prison official could

argue that making prison as unpleasant as possible would

have a deterrent effect, so all prisoners should have their

constitutional rights eliminated, to the greatest extent that the

courts will allow, in order to discourage the commission of

crime. Accordingly, prison officials might seek to deny all

prisoners all family, clergy and lawyer visits, contact or non-

contact, or all reading material, regardless of offense, length

of sentence, or security concerns.

Every conceivable intrusion into prisoners’

constitutional rights could be justified by the single

penological interest of deterring crime, with the result that the

requirement that prison officials articulate a legitimate

penological interest justifying the restrictions would, for all

practical purposes, disappear. To prevent this result, the

Court should decline to recognize simple deterrence as a

legitimate penological purpose justifying intrusions into

constitutional rights that are unrelated to the conduct sought

to be deterred.

Such a principle would preserve the prerogatives of

prison officials with respect to the needs of prison

administration. For example, it would not affect the ability of

‘This Court has never applied the Turner analysis in the context

of determining whether a violation of the Eighth Amendment existed.

See, ¢.g., Farmer v. Brennan, 511 U.S. 825 (1994) (applying Eighth

Amendment “deliberate indifference” standard).

14

prison administrators to assert that restricting visits as a

sanction for viola‘ion of the visitation rules is

specifically to deter such violations, nor would it affect the

ability of administrators to punish prisoners in ways that

have the incidental effect of intruding on constitutional rights,

such as a rule restricting visitation rights applicable to

prisoners confined to disciplinary segregation. Cf. Olim v.

Wakinekona, 461 U.S. 238, 248-49 & n. 9(1983) (prisoner had no

liberty interest in avoiding transfer to mainland prison from

Hawaii despite incidental effect of transfer on separation from

family): Short-term restrictions on general visitation would

not necessarily implicate the right to maintain intimate

relationships. Cf. Sandin v. Conner, 515 U.S. 472, 486 (1995)

(holding that thirty days of disciplinary confinement, under

the particular facts of the case, did not implicate a liberty

interest).

Even if the Court were to consider the Petitioners’

assertion of a global deterrence interest as sufficient to

establish a legitimate penological interest, the regulation

would nonetheless fail the first prong of Turner. The first

Turner factor requires that there be a “valid, rational

connection between the prison regulation and the legitimate

governmental interest put forward to justify it.” 482 US. at

89 (internal quotation omitted). The only interest asserted in

the trial court by Petitioners was the interest in deterring the

use of illegal drugs. Significantly, prison officials testified

that the ban on visitation was not tied to concerns about

possible smuggling during the visitation process; rather,

“visits were chosen as the vehicle of punishment because they

are very important to prisoners —and loss of visits would be

a significant deprivation.” Bazzetta, 148 F. Supp. 2d at 836.

The lack of fit between the regulation and its goal is

also underlined by the fact that Petitioners justified the

regulation as related to substance abuse because of a view

that substance abuse leads to violence. Jd. Notwithstanding

that fact, the permanent visitation ban does not apply to

———

15

prisoners who engage in violence. Mich. Admin. Code R.

791.6609 (11). Accordingly, the relationship between the

goals asserted by Petitioners and the regulation is attenuated

not only because the goal is formulated in a way that would

allow Petitioners to invade any constitutional right they

chose, but because the regulation is wildly underinclusive in

targeting the behavior that Petitioners claimed was their

reason for punishing drug use so severely. It is as if

marijuana use were punished on the ground that such use

acted as a gateway to the use of heroin, but heroin use itself

was not similarly punished.

In addition, for the same reasons given above, denying

visits on grounds unrelated to violations of the visiting rules

lacks a valid, rational connection to the purpose of deterring

drug use. Again, any analysis that would allow permanent

deprivation of visits with loved ones would also allow

deprivation of visits with clergy and lawyers, or of any other

rights. The Petitioners offered no data demonstrating any

connection between the regulation and the asserted interest.

148 F. Supp. 2d at 843. Indeed, the former director of the

Michigan Department of Corrections who was responsible for

the policy, id. at 836, testified that he did not know if

substance abuse misconducts went up or down after the

regulation was introduced. Id. at 843 n.48.

While this failure to offer evidence would not by itself

be fatal to the Petitioners’ case, the record affirmatively

disproves any rational connection between the regulation and

the goal. Even if courts initially defer to the “common sense”

assertions of prison officials, that deference should not control

when the plaintiffs present substantial evidence to the

. See Turner, 482 US. at 86 (courts should ordinarily

defer to the views of prison administrators “in the absence of

substantial evidence in the record that the officials have

exaggerated their response”) (quoting Pell v. Procunier, 417

US. at 827).

The Respondents presented substantial evidence

16

refuting the Petitioners’ claims. As the trial court found,

visits promote rehabilitation, reduce behavior problems, and

help maintain mental health. 148 F. Supp. 2d at 818. The

function of visits in promoting mental health is particularly

important for prisoners who suffer from substance abuse. Id.

The trial courtcited evidence of a consensus that maintenance

of a substance abuser’s support group is a crucial part of

treatment, so that the permanent ban on visitation by loved

ones is extremely counter-therapeutic and would actually

increase the abuser’s drug problem. Id. at 854. Accordingly,

the trial court found that “substantial evidence was presented

to establish that the permanent ban is counterproductive to

the prisoners’ mental health, stability, potential for future

substance abuse, and rehabilitation.” Id. at 855.

A further example of the lack of fit between the

regulation and its stated goals is that the regulation punishes

the innocent family members and not just the guilty prisoner.

Indeed, those most harmed by the regulation are

overwhelmingly likely to be the young children who are

prevented by the regulation from establishing a stable

parental bond.

The regulation also fails the second Turner prong,

focusing on whether there are other available means of

exercising the right. 482 U.S. at 90. Contrary to Petitioners’

assertion, there is substantial evidence that the avenues

remaining to prisoners who have permanently lost the right

to visitation with their loved ones do not constitute

meaningful alternatives for the exercise of the right. As the

trial court found, letters and telephone calls are not an

adequate alternative means of maintaining intimate ties with

loved ones. 148 F. Supp. 2d at 849.5 Some forty percent of

*A message comes over the telephone every few minutes

announcing that the call is being monitored, disrupting the flow of

communication and the emotional connection that might otherwise be

possible. Bazzetta, 148 F. Supp. 2d at 818 n.2.

17 :

prisoners are illiterate, id. at 818 n.2, and children below a

certain age cannot use writing as a means of communication.

Moreover, the experience of being in the presence of a loved

one, the ability to see that person while speaking and observe

the changing facial expression and body language that

accompany intimate speech, are too qualitatively different

from either letters or the occasional availability of a telephone

call to serve as a realistic alternative. It scarcely needs

demonstration that the parental bond of a young child who

grows from infant to toddler to schoolchild will be forever

blighted if the parent figures only as the disembodied voice

on the other end of the telephone or the unseen stranger

whose letters are read to the child by others. While the

Petitioner's policy is said to aim at reducing drug use, a

laudable goal, those foreseeably most severely punished will

include the young and the innocent.

The third Turner prong assesses the impact that

accommodation of the right will have on guards and other

inmates. 482 U.S. at 90. Absent the challenged rule, the

Petitioners would retain highly punitive measure to deter the

use of drugs in prison, including referrals for criminal

prosecution, the loss of good time, assignment to disciplinary

segregation, and denial of parole. Moreover, the trial court

found that there would be no significant impact on prison

resources from accommodating the constitutional right to

non-contact visits because the internal prison industries

program constructs portable non-contact visiting booths, all

facilities have these booths available, and a warden who

needed more of the booths could get them. 148 F. Supp. 2d at

831. In any event, “ [f]inancial constraints may not be used to

justify the creation or perpetuation of constitutional

violations.” Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367,

392 (1992).

The U‘S. Brief implies that upholding the lower court

decisions would somehow havea negative impact on Bureau

of Prisons resources by requiring it to build facilities for non-

18

contact visitation in prisons that lack such facilities. See U.S.

Brief at 3. The Bureau's visiting policies are simply not

comparable to the challenged regulations, and the prisoners’

claims here should not be rejected because in other

circumstances a Turner analysis might or might not show the

restrictions to be justified.

Moreover, this third prong should also account for the

interests of non-prisoners as well as prisoners when, as in this

case, the rights of the two groups are “inextricably meshed.”

Procunier, 416 U.S. at 409 (referring to prisoner

correspondence with non-prisoners). While this Court in

Thornburgh v. Abbott, 490 U.S. at 413-14, declined to apply a

different legal standard for cases that involved the

constitutional rights of non-prisoners as well as prisoners, it

did acknowledge that non-prisoners have a “legitimate

[constitutional] interest in access to prisoners.” Id. at 408.

That legitimate interest is meaningless unless the Court

weighs the effects on prisoners’ loved ones of the policies

challenged here, as well as the effects on guards and other

prisoners, in determining whether the policies trench too

deeply on constitutional rights.

The final prong of the Turner test involves the

availability of ready alternatives, which may demonstrate

whether the challenged policy is an “exaggerated response.”

482 U.S. at 90. In this case, the answer is surely yes. As

noted above, prison officials have numerous and severe

sanctions at their disposal to punish and deter substance

abuse without the need to target a prisoner's ability to

maintain intimate family relationships. Furthermore, in light

of the trial court’s findings that the regulation actually

undermined the asserted goal of reducing substance abuse,

148 F. Supp. 2d at 845, and that the regulation was more

punitive than the visiting restrictions of any other State, see id.

at 835, the regulation constitutes an “exaggerated response”

to the Petitioners’ penological concerns.

19

B. The Restrictions on Visits from Minors Not

Accompanied by a Member of the Immediate

Family

The Petitioners require that a minor son or daughter

of the prisoner be accompanied by a member of the prisoner's

immediate family; previous practice had allowed the child to

be accompanied by any responsible adult, designated by

power of attorney. Bazzetta, 148 F. Supp. 2d at 833. This

restriction means, for example, that if the prisoner and the

father of her minor son or daughter are not married to each

other, or are divorced, the child’s father cannot bring the child

for a visit. The unrefuted evidence demon..rated that many

prisoners, particularly women, do not have another

immediate family member available to bring their children to

visit. Id. Under these circumstances, mother and child may

not see each other’s face, or converse with each other in

person, from the child’s infancy until the child reaches

adulthood.

This rule, like the permanent ban on visits, fails the

first prong of the Turner test because there is no “valid,

rational connection” between the interests Petitioners assert

and the lines drawn by the rule. See 482 U.S. at 89. The

Petitioners stated at trial that this aspect of the rule was

motivated by a desire to decrease the total number of visitors,

and minor visitors in particular, in order to reduce the

introduction of contraband into the facilities, and avoid

possible harm to children. 148 F. Supp. 2d at 822-24.

To the extent that the Petitioners argue that problems

applicable only to visits by minors justify the restrictions,

substantial evidence in the record refutes the claimed

connection. First, the issue here solely concerns non-contact

visits, and the record affirmatively shows that there are no

records of any smuggling or attempted smuggling in a non-

contact visit since January 1, 1994. Id. at 822. In light of that

fact, and indeed the lack of any plausible scenario that would

support such a claim, there is neither evidence nor a claim by

20

Petitioners® that children would be a more likely source of

contraband introduction in non-contact visits than unrelated

adult visitors. Notwithstanding that fact, the Petitioners’

rules permit unrelated adult visitors, and in many

circumstances these visitors may engage in contact visits

under the rules. See Mich. Admin. Code R. 791.6609(2); see

also Mich. Dep't of Corr. Policy Directive 05.03.140, at 6 (Jan.

12, 1998) (defining the circumstances in which only non-

contact visits are permitted).

Petitioners speculate that children might be placed at

risk of injury, particularly exposure to sexual conduct, if they

were allowed non-contact visitation. A survey of all the

Michigan prisons near the time of trial in 2000 found no

records for the past sixteen years reflecting incidents of sexual

misconduct during non-contact visits that involved minors,

or that involved sexual misconduct that a minor could see.

Bazzetta, 148 F. Supp. 2d at 829. In fact, because of the

construction of the non-contact visiting booths, the only way

a small child could see sexual misconduct by the prisoner

during a non-contact visit would be to stand on the visitor's

lap, sit on the visitor’s shoulders, or be similarly propped up.”

Moreover, the Petitioners allow other children to participate

in contact visits with prisoners eligible for such visits, where

*See Bazzetta, 148 F. Supp. 2d at 830 & n.14. The Justice

Department's assertion at page 27 of its Brief that non-contact visits of

children would still pose a risk of physical assault or smuggling has no

predicate in the record of this case or in any plausible scenario. Given

the statement that the Bureau of Prisons primarily relies on contact

visitation, see U.S. Brief at 3, the unsupported claims that various

problems have occurred in connection with visits in the Bureau, see id.

at 26, do not allow any inference about the dangers of non-contact

visitation.

’See J.A. of Bazzetta v. McGinnis, 286 F.3d 311 (6" Cir. 2002), at

5431-5432 (testimony of Pamela Withrow). Ms. Withrow has been a

warden at various Michigan Department of Corrections facilities since

1983. Bazzetta, 148 F. Supp. 2d at 817. 7

21

there is obviously a far greater theoretical possibility of the

child witnessing sexual conduct.

To the extent that the Petitioners testified that the rule

was undertaken to reduce the overall number of visitors, the

fit between the rule and the rationale is tenuous at best,

because the stated rationale applies equally to all visitors,

including unrelated adult visitors. The restriction was also

unnecessary because the Petitioners’ goal was to reduce total

visitation by ten to fifteen percent, yet the regulations they

enacted had the effect of halving visitation. See Bazzetta, 148

F. Supp. 2d at 820-21. Much of this reduction took place

because of other changes in the visiting regulations, changes

that have not been challenged by the prisoners. These

changes included restrictions on the number of visits allowed

to a prisoner each month, depending on the security

classification; restrictions on the hours of visitation; limits on

the number of visitors allowed a particular prisoner; and

limits on the number of weekend visits. It thus follows that

Petitioners’ concerns about the volume of visitors could be

addressed more directly without trenching on the critical

family interests here at stake, by these and similar measures.

Another interest the Petitioners asserted for not

allowing visits based on a power of attorney trom the parent

is the possibility that such documents could be forged. Again,

there is little fit between the asserted interest and the rule.

Under Petitioners’ rules, the adult accompanying the child

must go through the standard screening that Michigan

requires of all visitors. Bazzetta, 148 F. Supp. 2d at 833, 849.

Accordingly, the adult visitor would have to be someone

otherwise allowed to visit the prisoner, and in many cases

someone who would be allowed a contact visit with the

prisoner.

Powers of attorney are notarized documents, and

there was not a single instance in which a power of attorney

had been forged. Id. at 833. Since the Petitioners already

insist upon a variety of documents, including documents that

22

are not notarized, to establish identity and family

relationships of prospective visitors, see Mich. Admin. Code

R. 791.6609(2)(b),(c), their stated concern about forgery is an

exaggerated response when they do not claim this concern in

any other visitation context. Moreover, the only alternative

for visitation in these circumstances is for the custodial parent

to appoint a guardian, which poses many obvious risks to her

future relationship with the child. Bazzetta 148 F. Supp. 2d at

833. Because the Petitioners’ rule has such an attenuated

relationship to any of the Petitioners’ asserted justifications

for it, it fails the first prong of the Turner test.

This rule also fails the second prong because, for the

reasons given above in Section II. A, the alternative means of

maintaining relationships with family members that remain

open to prisoners—telephone calls and _ letters—are

inadequate. The third Turner prong involves the effects on

guards and other prisoners. Again, for essentially the same

reasons as given above in Section II.A, the addition of a

comparatively small number of prisoners’ children should

have no effect on guards in light of the options that the

prisons retain to control the total amount of visitation, and the

fact that other restrictions on visitation have already reduced

it beyond the Petitioners’ goal. As to the effect on other

prisoners, while it is possible that Petitioners could decide to

offset increases in family visitation by further reductions in

non-family visitation, the interest of other prisoners in

maintaining current levels of non-family visitation pales in

comparison to the paramount interest of parents in

maintaining relationships with their minor children.

Finally, the rule is a classic “exaggerated response.”

As noted above, the restrictions on visitation, most of which

are not challenged by Respondents, were primarily designed

to reduce the numbers of total visitors, and they succeeded far

beyond the officials’ expectations in doing so. None of the

interests asserted by Petitioners have anything to do with the

particular characteristics of these children, and Petitioners’

23

actions in barring them from non-contact visits is exaggerated

when these same concerns do not result in barring other

children from participating in contact visits, where concerns

about the introduction of contraband or exposure of children

to possible sexual misconduct have a more plausible factual

basis. The Petitioners’ further expressed concern —that

responsible adults who have a power of attorney from the

custodial parent to accompany the child will not be as

attentive to the child as a member of the immediate family

would be— is also exaggerated in light of the fact that the

record affirmatively shows that non-contact visits have never

harmed a child. See Bazzetta, 148 F.Supp. 2d at 829.

Most significantly, the stated concern is exaggerated

because the theoretical harm Petitioners posit pales in

comparison to the obvious and known harm that the rule

causes by its destructive effects on the bond between parent

and son or daughter in the critical period of childhood. Good

parents make judgments all the time that, for example, the

known statistical risks of transportation by plane or

automobile are outweighed by the benefits of the journey for

the child. Particularly because Michigan prison officials

obviously do not think that either contact or non-contact

visits are so dangerous that all children must be barred from

entry, there is no justification for sacrificing the bond between

parent and child based on unsupported speculation of a

purely theoretical risk from such visits.

C. Other Restrictions Barring Visits by Children

and the Restriction on Visits by Former

Prisoners

For similar reasons, the Petitioners’ other restrictions

on visitors cannot withstand a Turner analysis. First, the

provision of the rule, Mich. Admin. Code R. 791.6609(2)(b),

that bars visits from minor nieces and nephews relies on an

inappropriately narrow definition of “immediate family.” See

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

(plurality opinion) (noting that the constitutional concern for

24

the institution of the family is not limited to the nuclear

family in the context of striking down a zoning ordinance that

prevented a grandmother from living with her

grandchildren). None of the reasons asserted by Petitioners

in support of their rule has anything to do with the particular

characteristics of nieces and nephews, and their concerns are

exaggerated, particularly when these same concerns do not

result in barring other children from participating in both

contact and non-contact visits.

This is particularly so because the record suggests that

many of Petitioners’ asserted rationales for this restriction are

little more than post-hoc rationalizations. The lack of close

attention given the rule when it was promulgated is

illustrated by the fact that siblings of prisoners were excluded

essentially because of an oversight. See Bazzetta, 148 F. Supp.

2d at 823, 829. If minor siblings were simply forgotten about,

it is hard to believe that much attention was focused on nieces

and nephews.

For similar reasons, the ban on visits by the son or

daughter of a prisoner whose parental rights have been

terminated, even if the guardian or custodial parent believes

that the visits are in the child’s interests, should be stricken.

None of the state’s asserted interests here has a valid, rational

relationship to overriding the decision of the guardian or

custodial parent.

Finally, the ban on former prisoners is an

“exaggerated response” because it operates as a lifetime bar,

without regard to demonstrated rehabilitation, the length of

time since the offense, or the nature of the offense. Here the

“obvious, easy” alternative is similar to the individualized

screening alternative the Court noted approvingly in Turner,

482 U.S. at 98. In thiscase, Petitioners could establish general

criteria allowing visits by some former prisoners, such as

those whose only conviction was for a minor offense, or those

who had been out of prison for a set period of time, with

subsequent individual screening through the Petitioners’

25

standard screening procedure to remove former prisoners

who, despite the remoteness or lack of-seriousness of previous

convictions, are nonetheless deemed a possible security

threat.

Ill. PETITIONERS’ PERMANENT BAN ON FAMILY

VISITS VIOLATES THE EIGHTH AMENDMENT

A. The Eighth Amendment's Protection is not

Limited to Deprivation of Physical Needs

The Eighth Amendment prohibits “the unnecessary

and wanton infliction of pain.” Whitley v. Albers, 475 U.S. 312,

319 (1986) (quotation omitted). The United States suggests

that only conditions that deprive prisoners of basic physical

needs can constitute cruel and unusual punishment. US.

Brief at 29. But there is simply no basis in this Court's

jurisprudence for distinguishing between physical and

psychological pain for Eighth Amendment purposes. Cf.

Chambers v. Florida, 309 U.S. 227, 237-38 (1940) (referring to

solitary confinement as one of the techniques of “physical and

mental torture” that have been used by governments to coerce

confessions from their citizens).

Nearly half a century ago, this Court held that use of

denationalization as punishment is barred by the Eighth

Amendment. “There may be involved no physical

mistreatment, no primitive torture. There is instead the total

destruction of the individual's status in organized society.”

Trop v. Dulles, 356 US.86, 101 (1958) (plurality opinion).

Similarly, in the prison context, this Court’s precedents make

clear that the Eighth Amendment's protection is not limited

to conditions of confinement that cause physical pain or cause

a risk of physical harm. In Hudson v. Palmer, 468 U.S. 517

(1984), the Court held that the Fourth — does ~

tect pri against searches of their cells, but suggest

thet aot Gasiet Gane to “calculated harassment

unrelated to prison needs” may violate the Eighth

Amendment. Id. at 530.

26

Eight years later, in Hudson v. McMillian, 503 US. 1

(1992), the Court emphatically rejected thecontention thatthe

Eighth Amendment protects prisoners against excessive force

only if the prisoner suffers “significant injury.” Id. at 9-10.

Noting “the concepts of dignity, civilized standards,

humanity, and decency that animate the Eighth

Amendment,” id. at 11 (internal quotation omitted), the

Court observed that the objective component of an Eighth

Amendment claim is contextual and responsive to

contemporary standards of decency. Id. at 8. Justice

Blackmun added:

It is r vt hard to imagine inflictions of psychological

harm - without corresponding physical harm - that

might prove to be cruel and unusual punishment. . .

I am unaware of any precedent of this Court to the

effect that psychological pain is not cognizable for

constitutional purposes.

Id. at 16 (Blackmun, ! , concurring in the judgment).

Most recently, in Hope v. Pelzer, 536 U.S. 730, 122S. Ct.

2508 (2002), this Court affirmed the Eleventh Circuit's holding

that punishing a prisoner by cuffing him to a “hitching post”

is a per se violation of the Eighth Amendment. 122 S. Ct. at

2519. The Court noted that while lack of proper clothing,

water, or bathroom breaks would exacerbate the violation,

they were not necessary to the finding of a violation. Id.

Rather, the Court emphasized that “[t]he use of the hitching

post under these circumstances violated the basic concept

underlying the Eighth Amendment, which is nothing less

than the dignity of man.” Id. at 2514-15 (internal quotation,

citation, brackets omitted). In short, this Court’s precedents

make clear that the deliberate infliction of psychological pain

can rise to the level of an Eighth Amendment violation.

B. Petitioners’ Permanent Visiting Ban Results in

Unnecessary and Wanton Infliction of Pain

As noted above, Petitioners impose a permanent

27

visitation ban on prisoners who are found guilty of two major

misconduct charges for “substance abuse.” Mich. Admin.

Code R. 791.6609(11)(d). There isno requirement of temporal

proximity; a prisoner who received one such charge twenty

years ago, but has had a clean disciplinary record ever since,

is still subject to the permanent visitation ban upon receiving

a second charge. It is undisputed that prisoners have been

found guilty of “substance abuse” for having expired

prescriptions and for possessing over-the-counter

medications. Bazzetta, 148 F. Supp. 2d at 820 n.6. Nor is this

draconian punishmentsparingly applied; the trial court noted

that overa thousand prisoners had been placed on permanent

visitation ban. Id. at 818 n.1.

The district court noted the “overwhelming impact of

the permanent visitation restriction on prisoners suffering

from or prone to mental illness.” 148 F. Supp. 2d at 853; see

also id. at 838 n.39 (noting cases in which permanent visitation

ban has been imposed on mentally ill prisoners); id. at 853-54

(quoting expert testimony that when mentally ill prisoners are

subject to the permanent ban “they're more likely than

anyone else to have a mental breakdown of the kind they

have a propensity for”).

Moreover, this Court has recognized the parent-child

bond as “the most fundamental family relationship.” M.L.B.

v. S.L.]., 519 US. 102, 121 (1996). A parent's “desire for and

right to the companionship, care, custody, and management

of his or her children is an interest far more precious than any

property right.” Santosky v. Kramer, 455 U.S. 745, 758-59

(1982) (internal quotation, citations omitted); see also id. at 787

(Rehnquist, J., dissenting) (“Few consequences of judicial

action are so grave as the severance of natural family ties.”).

While constitutional protection is at its zenith when the

parent-child relationship is implicated, relationships with

other family members are also protected. See e.g., Moore v.

City of East Cleveland, 431 US. at 504.

A government decree that one shall never again see

28

one’s children, family, or friends results in “the unnecessary

and wanton infliction of pain” in violation of the Eighth

Amendment. For many prisoners, the permanent visitation

ban means that for decades or the rest of their lives they will

never again see their parents, children, brothers, sisters, or

any other family member or loved one.

Although other states temporarily limit prisoners’

visitation as punishment for various infractions, Petitioners

and their state amici point to no other state that imposes a

permanent loss of all visitation. See State Br. at 4-9. The fact

that Michigan stands alone is compelling evidence that a

permanent ban on visitation is both cruel and unusual in

violation of the Eighth Amendment. See Coker v. Georgia, 433

U.S. 584, 595-96 (1977) (noting that the fact that Georgia was

the only state authorizing death penalty for rape of an adult

woman “ weighs very heavily” against the constitutionality of

that penalty).

The regulation at issue here completely deprives a

prisoner of the society of her children and other family

members for years, and possibly for the rest of her life. It is

hard to conceive of a more severe punishment the state could

inflict upon a person. If denationalization entails “the total

destruction of the individual's status in organized society,”

Trop, 356 U.S. at 101, a decree that one shall never again see

one’s family and friends goes further still; it entails the total

destruction of the individual’s very personhood.

CONCLUSION

The judgment of the court of appeals should be

affirmed.

February 2003

29

Respectfully submitted,

ELIZABETH ALEXANDER

Counsel of Record

DAVID C. FATHI

CRAIG A. COWIE

National Prison Project of the

American Civil Liberties Union

Foundation