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The Criminal Justice Legal Foundation (CJLF) ⁽¹⁾ is a non-profit California corporation organized to participate in litigation relating to the criminal justice system as it affects the public interest. CJLF seeks to bring the due process protection of the accused into balance with the rights of the victim and of society to rapid, efficient, and reliable determination of guilt and swift execution of punishment.

Managing prisons safely and efficiently is a difficult and essential task. Prison is by far the most pervasive form of serious punishment for criminal conduct, making it vital to public safety. The unnecessary creation of prisoners' rights by the judiciary threatens effective prison administration. These rights undercut discipline and add to the costs of running prisons. Burdensome rights can make imprisonment so expensive that criminals are released early or punished through less expensive means, frustrating society's efforts to protect itself through the deterrent and incapacitative effects of prison.

The Sixth Circuit's decision to create a right to visitation is an example of this type of dangerously unnecessary right. Scarce resources will be spent on supervising visits, even more burdensome litigation will ensue, and the ability of administrators to enforce discipline by sanctioning infractions will be curtailed if the right to visitation is upheld. This threatens public safety by making punishment unnecessarily expensive, and threatens to increase drugs and violence in prison. These threats to our system of punishment are contrary to the rights of victims and society which CJLF was formed to protect.

SUMMARY OF FACTS AND CASE

In 1995, the Michigan Department of Corrections (MDOC) promulgated new visitation regulations in response to an increased growth in prison population and the resulting increase in visitors. Bazzetta v. McGinnis, 286 F. 3d 311, 315 (CA6 2002). Those regulations, (1) banned visits from minors other than the inmates' children, stepchildren, and grandchildren; (2) banned visits from the inmates' children when the inmates' parental rights had been terminated; (3) banned visits from former inmates who were not immediate family members; (4) required visiting children to be accompanied by a parent or guardian; and (5) indefinitely banned visitors, with the exception of attorneys and clergy members, for inmates who violated MDOC's substance abuse policies on two or more occasions. Ibid.

The rationale behind promulgating the first four listed regulations was twofold. First, the increase in visitors made it difficult for the prison guards to supervise visitation, thus making it difficult to prevent the smuggling of drugs and weapons. Ibid. Second, the prison guards also found it difficult to supervise the increased number of children visiting and prison officials believed that the prison environment was bad for them. Ibid. The visitation ban was implemented as part of a "zero tolerance" approach to drug abuse and was intended to punish those who violated MDOC's substance abuse policies. Id., at 321. The ban provided that inmates found guilty of two or more substance abuse major misconduct violations would lose all visitation privileges for a minimum of two years, upon approval of the Director. Id., at 321, n. 2. After two years, the inmate could request reinstatement of visiting privileges, which again must be approved by the Director. Ibid.

There are two forms of visitation permitted by the MDOC --contact and non-contact. Id., at 315. Contact visits occur in meeting rooms supervised by prison guards and allow physical contact between the visitor and inmate. Ibid. Non contact visits occur in a room separated by a clear window with all communication taking place over a telephone. Ibid.

In 1995, the respondents, a class of inmates incarcerated at defendant MDOC and their prospective visitors, filed suit challenging the new regulations as violative of their First, Eighth, and Fourteenth Amendment rights. Ibid. The District Court denied the respondents' motion for a preliminary injunction. See Bazzetta v. McGinnis, 902 F. Supp. 765, 773 (ED Mich. 1995). The court did not rule on the respondents' challenge to the permanent ban due to lack of ripeness. See id., at 772. In an unreported decision, the District Court later granted MDOC's motion for summary judgment. See App. To Pet. for Cert. 143a-159a. The Sixth Circuit upheld the District Court's grant of summary judgment. Bazzetta v.McGinnis, 124 F. 3d 774, 781 (CA6 1997). The Sixth Circuit then issued a supplemental opinion to clarify that its earlier ruling only applied to contact visits. See Bazzetta v. McGinnis, 133 F. 3d 382, 383-384 (CA6 1998). This Court denied review of that decision. See Bazzetta v.McGinnis, 524 U. S. 953 (1998).

The respondents subsequently brought this suit challenging the regulations as they apply to non-contact visits. The District Court ruled in favor of the respondents, holding that the regulations violated their First Amendment right of intimate association and were not reasonably related to any valid penological objective. See Bazzetta v. McGinnis, 148 F. Supp. 2d 813 (ED Mich. 2001). The District Court also held that the regulation banning visitation violated the Eighth Amendment's cruel and unusual punishment prohibition and the Fourteenth Amendment's Due Process Clause. Ibid. The Sixth Circuit affirmed. 286 F. 3d at 324. This Court granted Michigan's certiorari petition on December 2, 2002.

SUMMARY OF ARGUMENT

The First Amendment freedom of association does not protect family visitation because it is grounded in belief and expression. The Sixth Circuit's mixing of First Amendment and substantive due process concepts detracts from the clarity needed in this contentious area of the law. Incidental expressive activity is insufficient to invoke constitutional scrutiny of the regulation of a group. Although important, intimate association has nothing to do with the presence of a collective voice in the marketplace of ideas. The right to intimate association is protected by substantive due process, and should be analyzed under that doctrine.

Substantive due process is a difficult doctrine. Lacking any textual moorings, it runs the risk of being a vehicle through which the personal preferences of individual judges are transformed into law. This Court is therefore reluctant to expand substantive due process.

This reluctance should be heightened in the context of prison litigation. Prisons are at the center of the most important government function, public safety. The great difficulty of running this vital institution has led this Court to give considerable deference to prison administrators. Unfortunately, lower courts too often fail to pay the appropriate deference and wind up micromanaging prisons to the detriment of prisoners and society. Importing open-ended substantive due process concepts into prison life can only expand judicial meddling.

For the purpose of substantive due process, prison visitation is a privilege, not a right. The only possible support for this right, Moore v. East Cleveland, 431 U. S. 494 (1977), does not extend into prison. The split decision dealt with a zoning ordinance, not prison regulations, and provides no holding broader than its material facts.

History and tradition supports the lack of precedent for any right to visitation. There was no visitation in early prisons, and even after reforms, prisons would remove visitation privileges for disciplinary reasons. Even today, visitation is often heavily regulated and frequently very difficult for families. Also, this Court has repeatedly upheld regulations limiting prison visitation. Prison visitation simply is not "implicit in the concept of ordered liberty." Visitation therefore cannot be a fundamental right. Since any inquiry under the "shocks the conscience standard" is better left to Eighth Amendment analysis, the regulations do not violate due process.

Withdrawal of the prisoners' visitation privileges for twice violating prison substance abuse policies does not violate the Eighth Amendment. These policies are consistent with both the objective and subjective components of the relevant Eighth Amendment inquiry. The objective component requires an extreme deprivation of life's necessities, such as food, medical attention, or reasonable safety. A loss of family visitation is an inherent consequence of imprisonment. When an inmate violates prison rules, a further loss of visitation is a logical punishment. The fact that the withdrawal may seem restrictive or harsh does not change the analysis, as it is simply part of the penalty that offenders pay for their crimes against society. Since the ban is indefinite rather than permanent, and only applies to repeat offenders, any constitutional deprivation is ameliorated.

The Michigan officials did not act with the deliberate indifference necessary to satisfy the subjective portion of the Eighth Amendment standard. There is no evidence that the officials subjectively knew that withdrawing visitation privileges for a two-year minimum posed a substantial risk of serious harm to the inmates' health or safety and knowingly exposed prisoners to that risk. A lack of action here will not lead to death or injury, it will simply further the loss of visitation that comes with imprisonment. Since the regulation is objectively and subjectively reasonable, it satisfies the Eighth Amendment.

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1. This brief was written entirely by counsel for amicus, as listed on the cover, and not by counsel for any party. No outside contributions were made to the preparation or submission of this brief.