1. Part II Constitutional Law of Corrections

2. Chapter 8 – First Amendment – Inmate Association Rights and Visiting
Introduction: Chapter looks at inmate contacts through organizations, associations, and especially through visiting

3. 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

4. Chapter Outline: cont’d
Block v. Rutherford
Kentucky Department of Corrections v. Thompson
Overton v. Bazzetta
Conjugal Visits
Artificial Insemination

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

6. 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
--The first right refers to persons entering into and maintaining certain intimate family relationships and the need to protect this right – a right to privacy – within prison context, inmates obviously forfeit such rights (unless, for example, state authorizes conjugal visits).
--The second right does exist within prison – question is to what extent, what limitations may prison officials place on this right.

7. 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

8. 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
--Size grew to around 2,000 members in 40 prisons.

9. 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”

10. 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
--Court said that responsible prison officials must be able to take reasonable steps to contain the “ever-present potential for violent confrontation.”

11. 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
--Union’s stated intent was to pursue an adversarial relationship with authorities – as seen in its stated purpose of working towards alteration or elimination of practices with which it did not agree.
--Court specifically said, “There is nothing in the Constitution which requires prison officials to treat all inmate groups alike.”

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

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

14. Inmates and the News Media: Pell v. Procunier; Saxbe v
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

15. Inmates and the News Media: Pell v. Procunier; Saxbe v
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

16. Inmates and the News Media: Pell v. Procunier; Saxbe v
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

17. Inmates and the News Media: Pell v. Procunier; Saxbe v
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

18. Inmates and the News Media: Pell v. Procunier; Saxbe v
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

19. Inmates and the News Media: Pell v. Procunier; Saxbe v
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
--Staff could be reluctant to deal with the “big wheel” inmate as strictly in accord with policy as they would with other inmates.
--This fear of notoriety or of exposure of staff in the media has been referred to as having a “chilling effect” on the actions taken by staff.

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

21. Garrett – concerned filming and televising executions
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

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

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

24. 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

25. 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
--Non-contact visiting tends to minimize the opportunity for the passing of contraband.

26. 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
--The visitor may be asked to check items at the front entrance.

27. 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

28. Block v. Rutherford: cont’d
Court upheld policy
Prohibition reasonably related to legitimate governmental objective, prison security
No constitutional requirement for contact visits
--Case is important for its not distinguishing between unconvicted, pretrial detainees and convicted prisoners – Court noted, no reason to find “that pretrial detainees pose any lesser security risk than convicted inmates.”

29. 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

30. 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

31. 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

32. 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

33. 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”
--These terms refer to whether the state had created an expectation on the part of its citizens that certain facts or conditions would lead to a certain result. As can be seen from the quoted language above, the Kentucky regulation did not create such an expectation, but left the discretion with prison officials.

34. 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
--We will discuss Sandin in the chapter on inmate discipline. Essentially, Sandin overruled that analysis in Thompson, which found due process created “outside the Constitution” by the state’s statutory or regulatory language.
--Although a ban on visiting for security reasons might be held as constitutional, most prison administrators see the value of allowing inmate visitation. Although, as shown in Overton v. Bazzetta, stringent restrictions may be imposed.

35. 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
--Examples of these restrictions included minors under age 18 could not go on the visiting list unless they were the children, stepchildren, grandchildren, or siblings of the inmate; if an inmate’s parental rights had been terminated, the child could not visit; and an inmate who had committed multiple substance abuse violations was not allowed to receive any visitors, other than attorneys and members of the clergy. Reinstatement of visiting privileges could be requested after two years, but the decision rested with the warden.

36. 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

37. 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
--Both the district and appeals court ruled the restrictions on noncontact visits were invalid. Supreme Court reversed. Again, the Court noted that it gives substantial deference to the professional judgment of prison administrators.
--The withdrawal of visiting privileges for two years was seen as a regular means of effecting prison discipline. It was not seen as raising other Eighth Amendment concerns – for example, it did not show deliberate indifference to the basic needs of the inmate, nor deprive inmates of basic necessities.

38. Conjugal Visits Allowed in a few states
Little constitutional law on subject
No Supreme Court rulings
--States that allow: California, Connecticut, Mississippi, New Mexico, New York, and Washington state.

39. 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

40. 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

41. 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

42. 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”
--Interesting point – this case occurred in California, one of the few states allowing conjugal visitation.
--Case had dissents – one dissent would have remanded to determine whether legitimate penological objectives justified the restriction; second believed that state, by allowing conjugal visiting, did not intend to deprive an inmate of the right to procreate.

43. 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
--Appeals court, applying Turner v. Safley, said the prison regulation met the reasonable relationship standard.

44. 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