Part II
Constitutional Law of Corrections
Chapter 8 – First Amendment – Inmate
Association Rights and Visiting

Introduction: Chapter looks at inmate
contacts through organizations,
associations, and especially through
visiting
Chapter Outline

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Freedom of Association
Jones v. North Carolina Prisoners’ Labor
Union
Inmates and the News Media:

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Pell v. Procunier; Saxbe v. Washington Post
Houchins v. KQED, Inc.; Garrett v. Estelle;
Smith v. Coughlin
Inmate Visits
Chapter Outline: cont’d

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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:

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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

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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

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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

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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-toface 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

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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
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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

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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


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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
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Two types of visits
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Contact – visit occurs within same room
Non-contact – physical barrier between
inmate and visitor(s)
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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
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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
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Search of visiting area following close of visiting
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Block v. Rutherford (1984)
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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

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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
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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:

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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

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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

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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

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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

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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
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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
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Allowed in a few states
Little constitutional law on subject
No Supreme Court rulings
Conjugal Visits: cont’d
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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

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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:

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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