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Chapter 8 – First Amendment – Inmate Association Rights and Visiting
Introduction: Chapter looks at inmate contacts through organizations, associations, and especially through visiting
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
Chapter Outline: cont’d
Block v. Rutherford Kentucky Department of
Corrections v. Thompson Overton v. Bazzetta Conjugal Visits Artificial Insemination
Freedom of Association
2 types of association rights protected by the Constitution (Roberts v. U.S. Jaycees (1984))
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
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
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
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”
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
Block v. Rutherford: cont’d
Court upheld policy Prohibition reasonably related to
legitimate governmental objective, prison security
No constitutional requirement for contact visits
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
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
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
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
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”
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
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
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
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
Conjugal Visits
Allowed in a few states Little constitutional law on subject No Supreme Court rulings
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
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
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
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”
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
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