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

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

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

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

12. 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. 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. 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. 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. 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. 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. 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. 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

20. 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. 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. 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. 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

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

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

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”

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

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

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

38. Conjugal Visits Allowed in a few states Little constitutional law on subject No Supreme Court rulings

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”

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

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