Overton, William. Dir., Michigan Dept. of Corrections v. Bazzetta. Michelle, et al. (06/16/2003)

Questions presented: (1) Whether prisoners have a right to non-contact visitation protected by the 1st and 14th Amendments. (2) Whether the restrictions on non-contact prison visitation imposed by the Michigan Department of Corrections are reasonably related to legitimate penological interests. (3) Whether the restrictions on non-contact prison visitation imposed by the Michigan Department of Corrections constitute cruel and unusual punishment in violation of the 8th Amendment.

BY LEE RAWLES, MEDILL NEWS SERVICE

Raymond Causely was six years old in 1990 when his big sister went to prison. His sister Diane Spencer had a son of her own, and she helped her mother take care of Raymond. "It was kind of like two moms and the kid," said Spencer.

At first, Raymond and his mother visited Spencer every Tuesday and Thursday at the Allegan County Jail in Michigan. He would sit with his mother and talk to Spencer across a table, not separated by glass.

When she was moved to Scott Correctional Facility in Plymouth, Mich., it was even better, though it was much further away. There was a small outdoor area with some swings and picnic tables, and he could sit on Spencer's lap and drink sodas from the vending machine. He and his mother would come twice a month, and were always there for birthdays and holidays.

"I thought together my mother and Raymond were doing wonderfully," said Spencer. "They were quite a little pair. And I felt blessed that I was able to continue to be a part of that. Raymond understood where I was."

But in 1995, all that changed. Spencer was transferred to a psychiatric ward. She says that she had been assaulted by a corrections officer and wasnt well enough to see Raymond at that point.

It wasn't until 1997 when Raymond saw his sister again. "By that point the county jail had erected a glass partition-type thing so I couldn't touch him or anything," she said. "But I was glad to see him. I needed to see him."

It was the last time the siblings would be able to see each other. The rules had changed, and as a juvenile, Raymond was no longer allowed to visit.

"During that period he was fine," said Spencer. "He was still good."

But on Christmas Day in 1998, Raymond's mother died. He moved in with his aunt and uncle. "He really wasn't doing very good, but it was no fault of theirs," said Spencer. "He was hospitalized for depression, and shortly after that point, we became aware he was using drugs."

Raymond and Spencer were still able to write to each other and have 15-minute phone calls. "I think he probably confided a little bit more in me than my aunt and uncle," she said. "But he was just having lots of problems."

Spencer's counselors appealed to the warden to allow Raymond to visit her, but the warden told them it was out of her hands because of department policy. "She expressed to me that she was very sympathetic," said Spencer. "She expressed to me that she didnt understand why we couldnt see siblings and just said she was sorry. There was nothing she could do."

Raymond started having problems with the law and was put on juvenile probation for marijuana possession at school. "We were losing him," said Spencer. "He would just go places. I don't know where."

In 1999, Raymond was arrested in Grand Haven, Mich., with a large quantity of crack cocaine. Prosecutors filed a petition to try Raymond, who was 15, as an adult. He committed suicide.

Spencer said that she believes that if she had been able to see him, it could have made a difference, "most definitely for me and most assuredly for him."

Spencer's story is just one of many that have come out since 1995, when a group of Michigan prisoners sued the Michigan Department of Corrections for banning non-contact visits from prisoners minor brothers, sisters, nieces and nephews; visits from prisoners children if parental rights had been terminated; and visits by former prisoners who were not family members. The department also required that visiting children be accompanied by a parent or legal guardian and permanently banned visitors for prisoners who twice violated the drug abuse policy.

The Department of Corrections said that these restrictions were made because too many visitors made it hard to keep order and prevent smuggling, supervising children was difficult and the prison environment was bad for the children.

The suit filed in federal court in Detroit alleged that the new regulations violated prisoners 1st, 8th and 14th Amendment rights. The district court found that the challenge to the permanent ban on visitors for substance abuse violations was not ripe, but upheld the other regulations as they applied to contact visits. The 6th Circuit Court of Appeals affirmed, holding that "there is no inherent, absolute right to contact visits with prisoners." The court did not address whether prisoners had a right to non-contact visits.

As it turned out, though, the corrections department applied the new regulations to all visits, contact and non-contact, and the same group of prisoners returned to federal court.

In 1991, after a bench trial, the district court found for the prisoners, holding that the regulations limiting visits infringed on prisoners' 1st Amendment right of intimate association and were not reasonably related to a valid penological objective. It also found that the permanent ban on visitors for violations of the drug abuse policy violated the 1st Amendment, was cruel and unusual punishment in violation of the 8th Amendment, and was imposed in a manner violating the prisoners' 14th Amendment due process rights.

When the department appealed, a unanimous 6th Circuit Court of Appeals chastised the department, saying, "The department seriously misled us and was applying the regulations to all visits, contact and non-contact."

The department's lawyers cited the 1987 U.S. Supreme Court opinion in Turner v. Safley, which said, "When a prison regulation impinges on inmates constitutional rights, the regulation is valid if it is reasonably related to a legitimate penological interest."

There are four questions that are asked when courts decide whether a prison rule that impinges on a prisoners constitutional rights is still allowable. First, is there a valid connection between the penological interest and the regulation? Second, do prisoners still have alternate means of exercising that right? Third, will the prisoner asserting that right have a significant effect on guards and other inmates? Lastly, do the prison officials have other ready alternatives to the restriction that dont infringe on the prisoners rights?

The 6th Circuit decided against the department. "Instead of crafting policies that would legitimately meet the very real need to maintain order in prisons, the department has implemented a series of haphazard policies that violated these rights and did real harm to inmates in its care," wrote Senior Judge Gilbert Merritt. "It then defended these policies not with reasoned arguments, but with misdirection and demands that federal courts blindly defer to corrections officials."

The opinion concluded with a reference to something Winston Churchill once said about the rights of prisoners being the "mark and measure [of] the stored-up strength of a nation."

"In the present case," Merritt wrote, "the regulations fall below minimum standards of decency owed by a civilized society to those who it has incarcerated."

On Dec. 2, 2002, the U.S. Supreme Court granted certiorari in the case, and limited review to the questions noted above.

On June 16, 2003, the Court sided with Michigan's Dept. of Corrections, holding that its regulations are sufficiently reasaonble and related to legitimate penological goals to defeat the constitutional claims.

Justice Anthony Kennedy wrote the Court's lead opinion, with Justices John Paul Stevens and Clarence Thomas penning concurrences.