Supreme Court seems skeptical of prisoners’ association rights

Thursday, March 27, 2003

WASHINGTON — The Supreme Court appeared mostly unsympathetic to the freedom of association rights of prisoners yesterday as it considered a First Amendment challenge to Michigan rules that restrict non-contact visits to inmates.

The Court heard arguments in Overton v. Bazzetta, in which the state of Michigan is seeking to defend its 1995 rules limiting visitation to prison inmates. The rules were promulgated in the aftermath of numerous incidents, including the molestation of a visiting child by an inmate.

The new rules restricted the number and type of visitors a prisoner could receive, for example eliminating minor nieces and nephews, and requiring that all other children be accompanied by a direct legal relative of the inmate. Former inmates could not visit current ones, unless they were related, and all visitation could be banned if an inmate was disciplined on drug infractions.

Inmate Michelle Bazzetta and others challenged the rules. After years of litigation, the rules were upheld in the context of contact visits. But the 6th U.S. Circuit Court of Appeals ruled last year that the rules as they related to non-contact visits violated inmates’ First Amendment associational rights and their Eighth Amendment right against cruel and unusual punishment. “The regulations fall below minimum standards of decency owed by a civilized society to those who it has incarcerated,” the 6th Circuit ruled.

Though the rules have since been relaxed by the state, the case went to the Supreme Court. The high court’s benchmark in this area is the 1987 decision Turner v. Safley, which struck down restrictions on the right of inmates to marry. The Court said then that “when a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to a legitimate penological interest.”

State Solicitor General Thomas Casey said the Michigan rules met that standard because they served the valid goal of reducing violence and overcrowding in prison visitation areas.

Some justices questioned how a rule against visits by nieces and nephews served that interest, but Justice David Souter seemed sympathetic, calling it “one way to keep the numbers down.” Justice Stephen Breyer also said that a rule permitting only an inmate’s own children to visit “seems reasonable.”

Justice Ruth Bader Ginsburg asked whether inmates have a right to any visitation, or whether such visits are merely “a matter of administrative grace.” Casey agreed that inmates have no basic right to visitation, though he later said that because of the 6th Amendment right to counsel, lawyers can visit, and clergy may too, because of the First Amendment’s guarantee of free exercise of religion. Casey also seemed to amend his answer at another point, suggesting it would be “impossible to prohibit all children” from visiting inmates. But Casey stuck to the basic position that the state needed only minimal justification for its rules to make them constitutional.

Justice Antonin Scalia asked why the state had not adopted a more neutral rule simply limiting the number of visits per month an inmate could receive. “That would have been one solution,” Casey said. But the state had decided that its rules would better guarantee “quality visits” by key family members.

Scalia later joked that a limit on the number of visits would adversely affect someone like himself, the father of nine children. “You put me in prison, you’re going to have big troubles.”

Jeffrey Lamken, assistant to the U.S. Solicitor General, also argued in favor of the Michigan rules, and took a similarly hard line.

When Justice Sandra Day O’Connor suggested that in the interest of rehabilitating prisoners, “you don’t want to cut off contact with family,” Lamken said he agreed “as a matter of penological philosophy, not as a constitutional right.”

Lamken also said: “The very essence of incarceration is separation from society.”

Deborah LaBelle, representing Bazzetta and the other inmates, said the state had no right to decide which family members of inmates can and cannot visit their loved ones. “Once you decide family members can come in,” she said, it is not reasonable to “slice off certain family members.” She did acknowledge a neutral limit on the number of visits was acceptable.

When LaBelle asserted that inmates enjoy a First Amendment right to intimate and family associations, Chief Justice William Rehnquist asked sharply, “Where do you get this out of the Constitution?”

LaBelle cited two leading Supreme Court precedents on associational rights, Roberts v. United States Jaycees and Moore v. City of East Cleveland. Noting that the first case dealt with joining the Jaycees and the second with a zoning law, Rehnquist said those cases “have nothing to do with prisons.”

Tony Mauro covers the Supreme Court for American Lawyer Media and is a legal correspondent for the First Amendment Center.

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