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B. A Privilege, Not A Right.

In Turner v. Safley, supra, this Court advanced a four-part test for reviewing prisoners' constitutional claims. See 482 U. S., at 89-90. TheTurner standard operates under the assumption that the regulations being analyzed conflict with a constitutional right that might extend to prison life. "[W]hen a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests." Id., at 89 (emphasis added). The four-part test determines whether the regulation is in fact reasonable. See id., at 89-90. While Turner provides an appropriate framework for analyzing conflicts between prisoners' rights and administrative needs, it is not relevant to every constitutional claim made by a prisoner. If the alleged constitutional right does not extend into prison, then Turner is inapposite. Turner is not relevant to this case because whatever right to family association may be guaranteed by due process does not extend to a right to prison visitation.

Any substantive due process theory of the prisoners must rely upon Moore v. East Cleveland, 431 U. S. 494 (1977). This case confronted a patently unfair ordinance that limited occupancy of dwellings to members of a single, very narrowly defined family. See id., at 495-496 (plurality). Mrs. Moore was jailed and fined under the ordinance for having her grandson live with her after his mother's death due to the presence of the boy's uncle and cousin in the same household. See id., at 497. The plurality held that this violated substantive due process by forcing people to live "in certain narrowly defined family patterns." Id., at 506. The plurality derived support for its holding from decisions protecting "the sanctity of the family precisely because the institution of the family is deeply rooted in this Nation's history and tradition." Id., at 503. The family allows society to "inculcate and pass down many of our most cherished values, moral and cultural." Id., at 503-504. The tradition of respect was not limited to nuclear families, see id., at 504, as non-nuclear families were also worthy of protection. See id., at 504-505. According to the plurality, this reliance on tradition placed appropriate limits on substantive due process. See id., at 503. This was the extent of the plurality's analysis in support of its decision. The remaining analysis was devoted to a discussion of substantive due process and the risks of judicial overreaching. See id., at 500-502. The fifth vote for reversing Mrs. Moore's conviction was supplied by Justice Stevens' concurrence, which concluded that East Cleveland's unprecedented zoning regulation "constitutes a taking of property without due process and without just compensation." Id., at 521 (Stevens, J., concurring).

Moore is a difficult case. The ordinance is indefensible, but the analysis for overturning it is thin. Compounding this problem is the fact that the case provides no majority rule beyond its facts. The rule that the narrowest opinion in a split decision provides the majority rule, see Marks v.United States, 430 U. S. 188, 193 (1977), is sometimes "more easily stated than applied," see Nichols v. United States, 511 U. S. 738, 745 (1994), and so it is in Moore. It is not clear which of the two opinions is narrower. Since there is little, if any, common ground between Justice Stevens' takings analysis and the plurality's approach, the better view is that Moore provides no precedent other than what can be drawn from its facts. See generally Brief for Criminal Justice Legal Foundation as Amicus Curiae in Grutter v. Bollinger, No. 02-241. Moore only establishes that the government may not prevent an extended family from living together on land that is zoned for dwellings.

Any attempt to expand Moore to support a right to prison visitation must confront Kentucky Department of Corrections v. Thompson, 490 U. S. 454 (1989). Thompson addressed whether Kentucky prison regulations gave inmates a protected liberty interest in receiving certain visitors. SeeId., at 455. ⁽³⁾ Before addressing that issue, this Court addressed whether the Due Process Clause itself guaranteed prison visitation. The answer was an emphatic "no."

"Respondents do not argue--nor can it seriously be contended, in light of our prior cases--that an inmate's interest in unfettered visitation is guaranteed directly by the Due Process Clause. We have rejected the notion that 'any change in the conditions of confinement having a substantial adverse impact on the prisoner involved is sufficient to invoke the protections of the Due Process Clause.' (Emphasis in original.) Meachum v. Fano, 427 U. S. 215, 224 (1976). This is not to say that a valid conviction extinguishes every direct due process protection; 'consequences visited on the prisoner that are qualitatively different from the punishment characteristically suffered by a person convicted of crime' may invoke the protections of the Due Process Clause even in the absence of a state-created right. Vitek v. Jones, 445 U. S. 480, 493 (1980) (transfer to mental hospital). However, '[a]s long as the conditions or degree of confinement to which the prisoner is subjected is within the sentence imposed upon him and is not otherwise violative of the Constitution, the Due Process Clause does not in itself subject an inmate's treatment by prison authorities to judicial oversight.' Montanye v. Haymes, 427 U. S. 236, 242 (1976). The denial of prison access to a particular visitor 'is well within the terms of confinement ordinarily contemplated by a prison sentence,' Hewitt v. Helms, 459 U. S. [460,] 468 [(1983)], and therefore is not independently protected by the Due Process Clause." Id., at 460-461.

Since the quoted passage only rejected an "unfettered" right of visitation, it is not controlling. Nonetheless, if prison visitation was "implicit in the concept of ordered liberty" so that "neither liberty nor, justice would exist if [it] were sacrificed," Palko v. Connecticut, 302 U. S. 319, 325, 326 (1937), overruled on other grounds in Benton v. Maryland, 395 U. S. 784, 793 (1969), or "deeply rooted in this Nation's history and tradition," Moore, 431 U. S., at 503 (plurality), the Thompson Court would have mentioned it. Since there is no fundamental right to prison visitation, this Court could summarily dismiss the notion that due process guarantees unfettered visitation.

History and tradition support the lack of precedent for any right to visitation. "Historically, there have been highly restrictive practices imposed on correspondence and visiting by prison administrators." S. Brodsky, Families and Friends of Men in Prison 5 (1975). Prisons as we now know them did not exist when the Constitution was ratified. Imprisonment was not a typical punishment in the colonial era. See T. Blomberg & K. Lucken, American Penology 29 (2000). Colonial jails did not punish, but simply held prisoners awaiting trial. See id., at 32-33. Prisons at the Constitution's founding were few, dreary, and overwhelmed with prisoners. See id., at 44. The first prisons, developed during the 1830's, were designed to isolate the offender from society in order to prevent the spread of the disease of criminality. See id., at 53. In these facilities, the prisoners "were forbidden to have any contact whatsoever with their families, because familial influence was considered 'corrupting.' " S. Christianson, With Liberty for Some 144-145 (1998). Some institutions eventually relaxed rules against outside contact. "By the 1840's, Sing Sing was allowing convicts to send one letter every six months, provided it was penned by the chaplain and censored by the warden. Each prisoner was also permitted to have one visit from his relatives during his sentence, provided it was properly supervised." Id., at 145. Reform movements ameliorated some of the harshness of early prisons, but visitation was still heavily restricted. A common approach was to segregate prisoners according to how they were progressing on the road to reform. Those in the lower class, the third grade, were denied visitation privileges. See Blomberg & Lucken, at 72.

While visitation became much more common after World War II, see id., at 110, it still is often difficult, and typically subject to extensive regulation by the prison administration. Commentators frequently complain about the difficulty many families have in visiting their imprisoned family members due to geography and prison regulations. See, e.g., Christianson, supra, at 301; 2 M. Mushlin, Rights of Prisoners §12.00, p. 88 (2d ed. 1993); Hardwick, Punishing the Innocent: Unconstitutional Restrictions on Prison Marriage and Visitation, 60 N. Y. U. L. Rev. 275, 280 (1985).

Imprisonment necessarily limits the prisoner's family contacts. Isolation is a necessary consequence of imprisonment. See Pell v. Procunier, 417 U. S. 817, 822 (1974). "Perhaps the most obvious of the First Amendment rights that are necessarily curtailed by confinement are those associational rights that the First Amendment protects outside of prison walls." Jones v. North Carolina Prisoners' Labor Union, Inc., 433 U. S. 119, 125 (1977). Like its First Amendment counterpart, family association is the most obvious substantive due process right taken away by imprisonment.

This Court has upheld prison policies that place severe burdens on family visitation. Olim v. Wakinekona, 461 U. S. 238, 240-241 (1983), addressed the transfer of a prisoner from a prison outside of Honolulu, Hawaii, to Folsom State Prison, just outside of Sacramento, California. The Ninth Circuit held that the Hawaii regulations had created a constitutionally protected liberty interest that had been violated in the transfer. See id., at 243. This Court addressed this issue and "whether the Due Process Clause in and of itself protects against interstate prison transfers . . . ." Id., at 244. A prisoner "has no justifiable expectation that he will be incarcerated in any particular State." Id., at 245. Interstate transfer was a fact of life in the federal system and occurred in many state systems. See id., at 245-247. The extraordinary distance involved did not change the analysis. See id., at 247. Most importantly, the grave effects this would have on family visitation were irrelevant to the due process analysis.

"Respondent's argument to the contrary is unpersuasive. The Court in Montanye took note that among the hardships that may result from a prison transfer are separation of the inmate from home and family, separation from inmate friends, placement in a new and possibly hostile environment, difficulty in making contact with counsel, and interruption of educational and rehabilitative programs. 427 U. S., at 241, n. 4. These are the same hardships respondent faces as a result of his transfer from Hawaii to California." Id., at 248, n. 9.

Montanye v. Haymes, 427 U. S. 236 (1976) upheld an intrastate prison transfer made for disciplinary reasons. See id., at 243. The Court of Appeals had found that the transfer placed significant hardship on the prisoner because it moved him several hundred miles from his home and family. Id., at 241, n. 4. As in Olim, this consideration had no constitutional significance.

Prison visitation is not protected as a fundamental right under substantive due process. There is no history and tradition of family visitation. While prisons have allowed family visitation, heavy regulation is a fact of life in many prisons. See Mushlin, supra, §12.00, at 88; infra, at 26. This Court has repeatedly upheld regulations that have substantially diminished the prisoner's ability to receive visitors. Even a commentator sympathetic to prisoner rights notes that "locating a constitutional anchor for [prison visitation] is a formidable task." Id., §12.01, at 88. The fact that this Court has not even hinted at a right to visitation even when presented with the opportunity to do so is telling. "The mere novelty of such a claim is reason enough to doubt that 'substantive due process' sustains it; the alleged right certainly cannot be considered ' "so rooted in the traditions and conscience of our people as to be ranked as fundamental." ' " Reno v. Flores, 507 U. S. 292, 303 (1993) (quoting United States v.Salerno, 481 U. S. 739, 751 (1987) (quoting Snyder v. Massachusetts, 291 U. S. 97, 105 (1934))). If there is any national tradition with regard to prison visitation, it is that visitation is not a right but a privilege.

The other lines of substantive due process inquiry do not change the result. Executive branch action can violate substantive due process if it is so egregious that it "shocks the conscience." County of Sacramento v. Lewis, 523 U. S. 833, 846 (1998). This inquiry is more appropriate under the Eighth Amendment than substantive due process. If a specific constitutional provision such as the Fourth or Eighth Amendment may cover a claim, then the constitutional analysis should focus on the specific constitutional provision rather than substantive due process. See United Statesv. Lanier, 520 U. S. 259, 272, n. 7 (1997). The Eighth Amendment provides an adequate means of analyzing any conduct of prison officials that might shock the conscience. See Whitley v. Albers, 475 U. S. 312, 327 (1986).

Nor are the regulations arbitrary. See Lewis, 523 U. S., at 846. These regulations are intended to allow the administration to conserve scarce resources, to control the visiting environment, and to deter drug use by prisoners. This is not "government power arbitrarily and oppressively exercised." Ibid. Since there is no fundamental right to prison visitation, the regulations do not violate substantive due process.

III. Withdrawal of prisoners' visitation privileges for twice violating prison substance abuse policies does
not violate the Eighth Amendment.

The Court of Appeals in the present case held that depriving an inmate of visitation privileges for a minimum of two years for repeat major misconduct violations constitutes cruel and unusual punishment as prohibited by the Eighth Amendment. See Bazzetta v. McGinnis, 286 F. 3d 311, 322 (CA6 2002). In Wilson v. Seiter, 501 U. S. 294 (1991), this Court established the perimeters for establishing an Eighth Amendment claim for situations involving alleged unconstitutional prison conditions. Specifically, an inmate making such allegations must prove that the conditions are objectively " 'sufficiently serious' " and that the conditions are a result of culpable acts by prison officials. See Farmer v.Brennan, 511 U. S. 825, 834 (1994) (quoting Wilson, 501 U. S., at 298). The latter subjective part of the analysis has been construed to require " 'deliberate indifference' " on the part of the prison official. Id., at 834 (quoting Wilson, 501 U. S., at 303). Although the Sixth Circuit applied this test, the analysis was summary, incorrect, and almost unique. ⁽⁴⁾ There is no Eighth Amendment violation here.

In Hudson v. McMillian, 503 U. S. 1 (1992), this Court explained the objective portion of the analysis. This prong requires the inmate to prove some extreme deprivation. Id., at 8-9; see also Wilson, 501 U. S., at 298 (stating the test as whether the deprivation was sufficiently serious). "Because routine discomfort is 'part of the penalty that criminal offenders pay for their offenses against society,' Rhodes, [v. Chapman, 452 U. S. 337], 347 [(1981)], 'only those deprivations denying "the minimal civilized measure of life's necessities" are sufficiently grave to form the basis of an Eighth Amendment violation.' " Hudson, 503 U. S., at 9 (quoting Wilson, 501 U. S., at 298 (quoting Rhodes, 452 U. S., at 347)) (emphasis added).

What constitutes the "minimal civilized measures of life's necessities" was best described by this Court in a case contrasting requirements of custody with the government's obligations to the general population:

"When the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and well being. . . . The rationale for this principle is simple enough: when the State by the affirmative exercise of its power so restrains an individual's liberty that it renders him unable to care for himself, and at the same time fails to provide for his basic human needs--e.g., food, clothing, shelter, medical care, and reasonable safety--it transgresses the substantive limits on state action set by the Eighth Amendment and the Due Process Clause." DeShaney v. Winnebago County Dept. of Social Servs., 489 U. S. 189, 199-200 (1989) (emphasis added); see also Wilson, 501 U. S., at 304 (identifying examples of basic human needs as food, warmth, and exercise); Farmer, 511 U. S., at 858 (Blackmun, J., concurring) (prison conditions case citing DeShaney).

Although visitation from family or friends is important to inmates, see Block v. Rutherford, 468 U. S. 576, 589 (1984), it is not on the same level as the life's necessities identified in DeShaney. In fact, "[i]nactivity, lack of companionship and a low level of intellectual stimulation do not constitute cruel and unusual punishment." Bono v. Saxbe, 620 F. 2d 609, 614 (CA7 1980). Furthermore, those inmates who receive the ban on visitation still retain the privilege of phone calls and letter writing to keep in contact with those friends and family members outside the prison walls. Throughout its opinion, the District Court relied heavily on expert opinion regarding the importance of visitation to an inmate's mental health, family relationships, and rehabilitation efforts. See Bazzetta v. McGinnis, 148 F. Supp. 2d 813, 851-853 (ED Mich. 2001). This Court must keep in mind, however, that reference to such expert opinion, although helpful and informative, does " 'not establish the constitutional minima' " and does not weigh very heavily in determining what constitutes contemporary standards of decency under the objective component of the applicable Eighth Amendment analysis. See Rhodes v. Chapman, 452 U. S. 337, 348-349, n. 13 (1981).

This Court has never held that an inmate has an absolute right to visitation. Rather, case law directs just the opposite. See Kentucky Dept. of Corrections v. Thompson, 490 U. S. 454, 460-461 (1989); supra, at 17-18. This Court also held in Block, 468 U. S., at 589, that pretrial detainees have no constitutional right to contact visits. In both Thompson and Block, the rationale underlying those decisions revolved around the well-established principle that "the safe and efficient operation of a prison on a day-to-day basis has traditionally been entrusted to the expertise of prison officials . . . ." Hewitt v. Helms, 459 U. S. 460, 470 (1983).

The prison officials in Michigan have determined that the best way to run their prison is to take away the visitation privileges of those prisoners who take it upon themselves to violate the prison's substance abuse policies more than once. Incarceration in and of itself brings about the necessary withdrawal of privileges and rights which is justified by considerations underlying the penal system. Jones v. North Carolina Prisoners' Labor Union, Inc., 433 U. S. 119, 125 (1977). Punishing inmates "effectuates prison management and prisoner rehabilitative goals" and "[d]iscipline by prison officials in response to a wide range of misconduct falls within the expected perimeters of the sentence imposed by a court of law." Sandin v. Conner, 515 U. S. 472, 485 (1995); see also Sumner v. Shuman, 483 U. S. 66, 84 (1987) (noting the "deprivation of privileges of . . . socialization" as an available and appropriate sanction).

Regardless of why an inmate is in prison, prison officials should have the right to determine how to punish those inmates if they choose to break prison rules. In this case, prison officials decided that the appropriate punishment for violating the prison's substance abuse policies on two or more incidents is to take away visitation privileges. If it is not cruel and unusual punishment to put a person in prison for violating a statesubstance abuse law, then why should it be cruel and unusual to further restrict the liberty of an inmate who violates a substance abuse rule even while incarcerated. In other words, if a person violates a state substance abuse law, he or she loses his or her freedom to visit with people outside of prison when sentenced by a court of law to jail time. If an inmate violates a prison substance abuse policy, similar consequences do not violate the Eighth Amendment. "Prison is a society in miniature with its own rules of conduct and its own punishment for their violation." 1 M. Mushlin, Rights of Prisoners §9.00, p. 422 (2d ed. 1993). Because the inmate's freedom is already deprived, the next logical step is to restrict visitation with people outside of the prison walls again. The ability to punish a person for violating a rule or regulation should not stop at the prison gates.

This Court has held that not all restrictive or harsh conditions of confinement violate the Eighth Amendment. Rather, "conditions that cannot be said to be cruel and unusual under contemporary standards are not unconstitutional. To the extent that such conditions are restrictive and even harsh, they are part of the penalty that criminal offenders pay for their offenses against society." Rhodes v. Chapman, 452 U. S. 337, 347 (1981) (emphasis added). In this case, under Michigan's regulations it is the inmates who bring the withdrawal of visitation privileges upon themselves. The inmates hold the keys to their visitation privileges. If they decide to disobey the prison's rules regarding substance abuse in the prison on two or more occasions, then they themselves cut off any future visitation from friends or family. The fact that they are repeat offenders makes them even more deserving of punishment. See Rummel v. Estelle, 445 U. S. 263, 284 (1980); Solem v. Helm, 463 U. S. 277, 296 (1983). Conversely, those inmates who abide by prison rules keep their visitation privileges. Prison officials have decided that the best way to curtail substance abuse within the prison walls is to discipline those who cause the problems to occur in the first place.

The Sixth Circuit incorrectly focused on the title of the visitation ban. Rather than focus on the substance of the regulation, the Sixth Circuit homed in on the word "permanent" and held that a permanent ban is an "extremely harsh measure" and "[i]t far exceeds punishments meted out by any other state prison system for comparable violations." Bazzetta, 286 F. 3d, at 322-323. The substance of the regulation states that the ban is not in fact permanent, but rather the ban can be lifted after a minimum of two years. See Bazzetta, 148 F. Supp. 2d, at 833-834 (stating the substance of the regulation in full). Either the warden or the restricted inmate can file a written request to have the ban lifted. Ibid. A minimum two-year ban is not overly harsh and is comparable to punishments imposed upon inmates housed in correctional institutions in other states. See Brief for States of Colorado, et al., as Amicus Curiae in Support of Petition for Writ of Certiorari 1, n. 1 (listing rules and regulations of several states with similar restrictions on prison visitation).

Thus, the decision to withdraw visitation privileges as a means to curtail substance abuse in Michigan prisons is appropriately within the purview of prison officials. If an inmate makes a conscious decision to abide by the prison's substance abuse regulations because he or she values visitation as a sufficiently important privilege, then that inmate can and will avoid the possibility of having those privileges withdrawn. Since withdrawing visitation privileges for a minimum of two years does not constitute a deprivation of one of the "minimal civilized measures of life's necessities," the regulation is objectively reasonable. The attack on it fails to satisfy the first prong required for a successful Eighth Amendment challenge. See Farmer v. Brennan, 511 U. S., at 834.

Farmer explained the subjective portion of Wilson's two-part test. See ibid. To satisfy this prong, the inmate must prove that the prison officials acted with "deliberate indifference." See Hudson, 503 U. S., at 5; Estelle v. Gamble, 429 U. S. 97, 104 (1976) (deliberate indifference to a prisoner's serious medical needs constitutes cruel and unusual punishment).

"[A] prison official cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Farmer, 511 U. S., at 837.

In Farmer, this Court dealt with a situation where a biologically male transsexual inmate who projected " 'feminine characteristics' " was placed in a federal penitentiary with the general male population. Id., at 829. There the inmate was beaten and sexually assaulted by another inmate. Id., at 830. The inmate filed suit against the prison officials arguing that they had violated his Eighth Amendment rights in that the officials were deliberately indifferent to the inmate's safety. Id., at 831. This Court held that a prison official can be held liable "only if he knows that inmates face a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it." Id., at 847.

Carelessly throwing a transsexual inmate with feminine characteristics into the general male prison population is a far cry from the present case. There is no evidence that the Michigan prison officials subjectively knew that withdrawing visitation privileges for a minimum of two years would cause a substantial risk of serious harm to the inmates' health or safety, and with that knowledge, they knowingly failed to take reasonable measures to abate that risk.

In summarily addressing this issue, the Sixth Circuit simply stated, "[t]he second condition is also met, for the harm the ban does prisoners should be clear to any prison official minimally concerned with prisoners' welfare." Bazzetta, 286 F. 3d, at 323. The Sixth Circuit misconstrued this subjective element of the test. Purposely withholding medical care, see Estelle, or purposely placing an inmate in a situation where he or she is highly likely to be assaulted, see Farmer, is the kind of mistreatment that the Eighth Amendment is intended to prohibit. The prison officials' lack of action in both Estelle and Farmer could lead to the inmate's death or serious injury. The prison officials' lack of action in Bazzetta would not. A loss of contact with those outside prison is an inevitable consequence of imprisonment; being deprived of medicine or being knowingly placed in harm's way is not, and the Eighth Amendment preserves that distinction. Any risk to the mental health of prisoners is too tenuous to be an Eighth Amendment concern.

Because withdrawing visitation privileges for a minimum of two years does not constitute the level of deliberate indifference as required byFarmer, the regulation is subjectively reasonable, and the respondents' claim also fails the second prong required for a successful Eighth Amendment challenge.

"This court must proceed cautiously in making an Eighth Amendment judgment because, unless we reverse it, '[a] decision that a given punishment is impermissible under the Eighth Amendment cannot be reversed short of a constitutional amendment,' and thus '[r]evisions cannot be made in the light of further experience.' Gregg v. Georgia, 428 U. S. [153], 176 [(1976)]. In assessing claims that conditions of confinement are cruel and unusual, courts must bear in mind that their inquiries 'spring from constitutional requirements and that judicial answers to them must reflect that fact rather than a court's idea of how best to operate a detention facility.' Bell v. Wolfish, 441 U. S. [520], 539 [(1979)]." Rhodes, 452 U. S., at 351.

Therefore, withholding visitation privileges for a minimum of two years is a valid means of prison discipline that is used by many states. Seesupra. Not only do the inmates hold the key to their own access to or lack of visitation privileges, but those whose privileges are revoked have the opportunity to get them back after two years, and they continue to have the ability to communicate through phone calls and letters. The inmates' claims in this case fail both the objective and subjective component of a successful Eighth Amendment prison conditions challenge, and thus the regulations do not run afoul of the Eighth Amendment's prohibition of cruel and unusual punishment.

CONCLUSION

The decision of the United States Court of Appeals for the Sixth Circuit should be reversed.

Respectfully submitted,

Attorneys for Amicus Curiae
Criminal Justice Legal Foundation

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3. Thompson's approach to protected liberty interests was abandoned in Sandin v. Conner, 515 U. S. 472, 483, n. 5 (1995).

4. Besides the Sixth Circuit, the only other court to state that a total denial of visitation would violate the Eighth Amendment was in Laaman v.Helgemoe, 437 F. Supp. 269, 322 (D NH 1977), and that statement was made in dicta.