Part II

Constitutional Law of Corrections

Chapter 8 – First Amendment – Inmate Association Rights and Visiting

Introduction: Chapter looks at inmate contacts through organizations, associations, and especially through visiting

Chapter Outline Freedom of Association Jones v. North Carolina Prisoners’ Labor

Union Inmates and the News Media:

Pell v. Procunier; Saxbe v. Washington Post Houchins v. KQED, Inc.; Garrett v.

Estelle; Smith v. Coughlin Inmate Visits

Chapter Outline: cont’d

Block v. Rutherford Kentucky Department of

Corrections v. Thompson Overton v. Bazzetta Conjugal Visits Artificial Insemination

Freedom of Association

2 types of association rights protected by the Constitution (Roberts v. U.S. Jaycees (1984))

Freedom of Association: cont’d

Right to enter into and maintain certain intimate relationships

Not much application to prisons Right to engage in “expressive

association” Right to speak, to worship, to

petition the government for redress of grievances

Jones v. North Carolina Prisoners’ Labor Union (1977)

“Prisoners’ Labor Union” formed in North Carolina - purpose was to seek through collective bargaining to: Improve working conditions Work towards elimination of correctional

practices with which it disagreed Serve as means for presentation and

resolution of inmate grievances

Jones v. North Carolina Prisoners’ Labor Union: cont’d

State initially allowed, but as size grew, Department issued regulation Prohibiting the solicitation of members Banning union meetings in prison Forbidding bulk mailings about the

union from outside sources Union sued under Section 1983

Jones v. North Carolina Prisoners’ Labor Union: cont’d

Court upheld the State regulation Associational rights may be limited by

prison officials concerns about prison order and stability

Court noted that lower court did not give “appropriate deference to the decision of prison administrators”

Jones v. North Carolina Prisoners’ Labor Union: cont’d Court said needs of prisons impose

limitations on constitutional rights, even those found in First Amendment Prison officials had concluded concerted

group activity by the union, or solicitation of membership, would pose problems and friction in the operation of the prison

Court saw not only as reasonable but necessary for officials to control union activities

Jones v. North Carolina Prisoners’ Labor Union: cont’d

No valid equal protection issue - prison officials had reasonable grounds for distinguishing labor unions from permissible groups like AA and the Boy Scouts

Groups like AA are non-adversarial This is opposite of labor union’s stated

purpose Prison is not a public forum

Inmates and the News Media: Pell v. Procunier (1974); Saxbe v. Washington Post (1974)

Pell - California regulation barred face-to-face interviews between individual inmates and news media representatives Inmates and media representatives

sued – arguing a violation of freedom of the press

Inmates and the News Media: Pell v. Procunier (1974); Saxbe v. Washington Post (1974): cont’d

Court in Pell upheld regulation, after looking at the two sets of issues presented by the two parties – inmates and the press

Inmates and the News Media: Pell v. Procunier; Saxbe v. Washington Post: cont’d

On claimed restriction of inmate First Amendment rights

Inmates had alternative means of communication, including correspondence with the news media, families, attorneys, and others

These methods ensured an inmate had a means to communicate complaints and grievances

Inmates and the News Media: Pell v. Procunier; Saxbe v. Washington Post: cont’d

On media’s claim that the limitations violated their rights under the freedom of the press guarantee of the First Amendment (extended to the States by the Fourteenth Amendment), Court noted

Press could still visit and take tours of prisons, and speak with inmates they encountered, and discuss with them any subject

Individual inmate restriction intended to prevent individual inmates from becoming “public figures” and gaining notoriety and influence among other inmates

Inmates and the News Media: Pell v. Procunier; Saxbe v. Washington Post: cont’d

Saxbe – Federal system had similar ban on individual interviews – based on “big wheel” theory Court acknowledged prison concerns

of wanting to avoid tensions and disruptions that could arise from allowing individual interviews

Inmates and the News Media: Pell v. Procunier; Saxbe v. Washington Post: cont’d

Court holding, however, was strictly a legal one: Members of the news media have no more constitutional right of access to prisons or their inmates than that given to the general public

Court applied this constitutional standard to the California regulation, held that press was given access to information available to the general public – thus no First Amendment violation

Inmates and the News Media: Pell v. Procunier; Saxbe v. Washington Post: cont’d

Pell and Saxbe decisions noteworthy for support they give to prison security and good order against strong First Amendment claims Important for orderly operation of prisons

to treat inmates the same, so far as possible

To do otherwise can lead to unrest and animosity – a perception of certain inmates receiving preferred treatment

Inmates and the News Media: Pell v. Procunier; Saxbe v. Washington Post: cont’d

Special attention can bring special notoriety within the prison

Can lead to hostility towards that person

Can lead to pressure on that person to tell the stories or complaints of other inmates, with negative reactions if not done

Staff may also treat that person differently

Houchins v. KQED, Inc. (1978); Garrett v. Estelle (1977); Smith v. Coughlin(1984)

Houchins – Sheriff refused to allow press to visit and photograph portion of county jail where inmate had committed suicide, and where conditions allegedly were bad Court reaffirmed Pell and Saxbe – no

greater right of access

Houchins v. KQED, Inc. (1978); Garrett v. Estelle (1977); Smith v. Coughlin(1984): cont’d

Garrett – concerned filming and televising executions Federal appeals court upheld Texas

rule excluding news media from filming executions

Houchins v. KQED, Inc. (1978); Garrett v. Estelle (1977); Smith v. Coughlin(1984): cont’d

Holding reaffirmed in 2001 in Indiana district court case involving execution of Timothy McVeigh Press has no constitutional right of

access beyond that given to the general public

Houchins v. KQED, Inc. (1978); Garrett v. Estelle (1977); Smith v. Coughlin(1984): cont’d

Smith – Court of appeals upheld state restrictions on visits with death row inmates which limited visiting to family members only

Inmate Visits

Visiting lists – prison officials will review names submitted by inmate, may do background checks on some Some prisons also require inmate

correspondence and telephone lists

Inmate Visits: cont’d

Two types of visits Contact – visit occurs within same room Non-contact – physical barrier between

inmate and visitor(s) Communication by telephone or through

grill opening in glass

Main concern of prison officials The passing of contraband

Inmate Visits: cont’d

Steps to avoid the passing of contraband Notice to visitor of consequences Search of visitor and property Pass through metal detector Surveillance cameras Staff supervision Search of inmate before and after visit Search of visiting area following close of

visiting

Block v. Rutherford (1984)

Jail policy allowed only non-contact visits by pretrial detainees with spouses, relatives and friends

Class action suit brought under Section 1983

Block v. Rutherford: cont’d

Court upheld policy Prohibition reasonably related to

legitimate governmental objective, prison security

No constitutional requirement for contact visits

Kentucky Department of Corrections v. Thompson (1989)

Kentucky regulation(s) excluded certain prison visitors Those under influence of alcohol or drugs Those with a record of disruptive conduct Those who were directly related to the

inmate’s criminal conduct Those whose presence posed clear and

present danger to prison security At a Kentucky State Reformatory: former

inmates and former employees also excluded

Kentucky Department of Corrections v. Thompson: cont’d

Inmates brought a class action under Section 1983

Constitutional challenge – was it a violation of due process to terminate or suspend visiting without any kind of hearing

Kentucky Department of Corrections v. Thompson: cont’d

Court held that for a due process claim there had to be a liberty interest – this could be found in either:

The due process clause of the Constitution, or

The laws of the State

Kentucky Department of Corrections v. Thompson: cont’d

Court held neither of the two provided a liberty interest

As to the Constitution, the suspension of visiting privileges was not guaranteed by the due process clause

Court noted that, in prior cases, it had rejected the idea that any changes in conditions of confinement that adversely affected inmates were sufficient to invoke due process, simply because of that adverse impact

Kentucky Department of Corrections v. Thompson: cont’d

As to the regulatory aspect, the Kentucky regulation stated: “Administrative staff reserves the right to allow or disallow visits”

State language more of a guide – “substantive predicates,” than a requirement – “explicit mandatory language”

Kentucky Department of Corrections v. Thompson: cont’d

Court analysis in Thompson brought into doubt by later Court decision in Sandin (1995)

Court came close to, but did not address the issue of whether there is a constitutional right to visit Majority opinion infers that if there

were sound security reasons, a ban would probably be constitutional

Overton v. Bazzetta (2003) In the 1990s, Michigan prison

population increased, leading to increase in visitation, and straining prison resources Prison officials found it more difficult to

maintain order during visiting and to prevent smuggling or drug trafficking

Michigan implemented a regulation limiting who could visit, including limiting visits by an inmate’s children, and placing other restrictions on visiting

Overton v. Bazzetta: cont’d

Inmates, their friends, and family members sued under Section 1983 Alleged a violation of First, Eighth,

and Fourteenth Amendments The case focused on non-contact

visiting

Overton v. Bazzetta: cont’d Court upheld prison regulation against

First Amendment challenge to freedom of association Regulation had a rational relation to

legitimate penological interests Substantial deference is given to the

professional judgment of prison administrators

Court also held no violation of Eighth or Fourteenth Amendments

Conjugal Visits

Allowed in a few states Little constitutional law on subject No Supreme Court rulings

Conjugal Visits: cont’d A federal district court has held no

constitutional right exists - court held absence of conjugal visitation not excessive punishment, but part of incarceration

Courts in New York have ruled that visiting policies within discretion of prison officials, who could limit conjugal visits to spouses

Artificial Insemination

Only a few legal cases on this Turner standard applied in those, with

courts holding that requests for artificial insemination may be denied based on legitimate penological concerns

Artificial Insemination: cont’d

In Gerber v. Hickman (2002), 41-year old inmate serving 100 years to life + 11 years wanted to be able to be allowed to ejaculate into a plastic collection container and have it sent to a laboratory

Inmate said he would pay all costs

Artificial Insemination: cont’d Court of Appeals affirmed lower court

denial The right to marry provided in Turner

does not include the inmate’s right to consummate the marriage while confined

Supreme Court in Turner “plainly envisioned that while the intangible and emotional aspects of marriage survive incarceration, the physical aspects do not”

Artificial Insemination: cont’d

1990 appeals court case, Goodwin v. Turner, denied a Bureau of Prisons male inmate’s request to procreate The court said if it was to require this,

a corresponding benefit would have to be provided female inmates

Artificial Insemination: cont’d This would:

Require expansion of medical services for females

Impose an additional financial burden of added infant care

Significantly impact allocation of prison resources generally

Further undercut the Bureau’s limited resources for necessary and important prison programs and security