OCTOBER TERM, 2002
Syllabus
OVERTON, DIRECTOR, MICHIGAN DEPARTMENT OF CORRECTIONS, ET AL.
v. BAZZETTA ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH
CIRCUIT
No. 02-94. Argued March 26, 2003-Decided June 16,2003
Responding to concerns about prison security problems caused by
the increasing number of visitors to Michigan's prisons and about
substance abuse among inmates, the Michigan Department of
Corrections (MDOC) promulgated new regulations limiting prison
visitation. An inmate may be visited by qualified clergy and
attorneys on business and by persons placed on an approved list,
which may include an unlimited number of immediate family members
and 10 others; minor children are not permitted to visit unless
they are the children, stepchildren, grandchildren, or siblings of
the inmate; if the inmate's parental rights are terminated, the
child may not visit; a child visitor must be accompanied by a
family member of the child or inmate or the child's legal guardian;
former prisoners are not permitted to visit except that a former
prisoner who is an immediate family member of an inmate may visit
if the warden approves. Prisoners who commit two substance-abuse
violations may receive only clergy and attorneys, but may apply for
reinstatement of visitation privileges after two years.
Respondents-prisoners, their friends, and family members-filed a 42
U. S. C. § 1983 action, alleging that the regulations as they
pertain to non contact visits violate the First, Eighth, and
Fourteenth Amendments. The District Court agreed, and the Sixth
Circuit affirmed.
Held:
1. The fact that the regulations bear a rational relation to
legitimate penological interests suffices to sustain them
regardless of whether respondents have a constitutional right of
association that has survived incarceration. This Court accords
substantial deference to the professional judgment of prison
administrators, who bear a significant responsibility for defining
a corrections system's legitimate goals and determining the most
appropriate means to accomplish them. The regulations satisfy each
of four factors used to decide whether a prison regulation
affecting a constitutional right that survives incarceration
withstands constitutional challenge. See
Turner v.
Safley, 482 U.
S. 78, 89-91. First, the regulations bear a rational
relationship to a legitimate penological interest. The restrictions
on children's visitation are related to MDOC's valid interests in
maintaining internal security and
127
protecting child visitors from exposure to sexual or other
misconduct or from accidental injury. They promote internal
security, perhaps the most legitimate penological goal, by reducing
the total number of visitors and by limiting disruption caused by
children. It is also reasonable to ensure that the visiting child
is accompanied and supervised by adults charged with protecting the
child's best interests. Prohibiting visitation by former inmates
bears a self-evident connection to the State's interest in
maintaining prison security and preventing future crime.
Restricting visitation for inmates with two substance-abuse
violations serves the legitimate goal of deterring drug and alcohol
use within prison. Second, respondents have alternative means of
exercising their asserted right of association with those
prohibited from visiting. They can send messages through those who
are permitted to visit, and can communicate by letter and
telephone. Visitation alternatives need not be ideal; they need
only be available. Third, accommodating the associational right
would have a considerable impact on guards, other inmates, the
allocation of prison resources, and the safety of visitors by
causing a significant reallocation of the prison system's financial
resources and by impairing corrections officers' ability to protect
all those inside a prison's walls. Finally, respondents have
suggested no alternatives that fully accommodate the asserted right
while not imposing more than a
de minimis cost to the valid
penological goals. Pp. 131-136.
2. The visitation restriction for inmates with two
substance-abuse violations is not a cruel and unusual confinement
condition violating the Eighth Amendment. Withdrawing visitation
privileges for a limited period in order to effect prison
discipline is not a dramatic departure from accepted standards for
confinement conditions. Nor does the regulation create inhumane
prison conditions, deprive inmates of basic necessities or fail to
protect their health or safety, or involve the infliction of pain
or injury or deliberate indifference to their risk. Pp.
136-137.
286 F.3d
311, reversed.
KENNEDY, J., delivered the opinion of the Court, in which
REHNQUIST, C. J., and STEVENS, O'CONNOR, SOUTER, GINSBURG, and
BREYER, JJ., joined. STEVENS, J., filed a concurring opinion, in
which SOUTER, GINSBURG, and BREYER, JJ., joined,
post, p.
137. THOMAS, J., filed an opinion concurring in the judgment, in
which SCALIA, J., joined,
post, p. 138.
Thomas L. Casey, Solicitor General of Michigan, argued
the cause for petitioners. With him on the briefs were
Mike
Cox, Attorney General, and
Leo H. Friedman, Mark Matus,
and
Lisa C.
Ward, Assistant Attorneys General.
128
Jeffrey A. Lamken argued the cause for the United States as
amicus curiae. With him on the brief were Solicitor General Olson,
Assistant Attorney General McCallum, Deputy Solicitor General
Clement, and Robert M. Loeb.
Deborah LaBelle argued the cause for respondents. With
her on the brief were
Barbara R. Levine and
Patricia A.
Streeter. *
JUSTICE KENNEDY delivered the opinion of the Court. The State of
Michigan, by regulation, places certain restrictions on visits with
prison inmates. The question before the Court is whether the
regulations violate the substantive due process mandate of the
Fourteenth Amendment, or the First or Eighth Amendments as
applicable to the States through the Fourteenth Amendment.
*Briefs of
amici curiae urging reversal were filed for
the State of Colorado et al. by
Ken Salazar, Attorney
General of Colorado,
Alan J.
Gilbert, Solicitor
General, and
Juliana M. Zolynas, Assistant Attorney General,
and by the Attorneys General for their respective States as
follows:
William H. Pryor, Jr., of Alabama,
Charlie
Crist of Florida,
Thurbert E. Baker of Georgia,
Alan G.
Lance of Idaho,
Steve Carter of
Indiana, J.
Joseph Curran, Jr., of Maryland,
Mike
Moore of Mississippi,
Jeremiah W (Jay) Nixon of
Missouri,
Don Stenberg of Nebraska,
Frankie Sue Del
Papa of Nevada,
Wayne Stenehjem of North Dakota,
W A.
Drew Edmondson of Oklahoma,
Hardy Myers of Oregon,
D.
Michael Fisher of Pennsylvania,
Mark Barnett of South
Dakota,
Paul G.
Summers of Tennessee,
Greg
Abbott of Texas,
Mark L. Shurtleff of Utah, and
Patrick J.
Crank of Wyoming; and for the Criminal
Justice Legal Foundation by
Kent S.
Scheidegger and
Charles L. Hobson.
Briefs of
amici curiae urging affirmance were filed for
the American Civil Liberties Union et al. by
Elizabeth
Alexander, David C.
Fathi, Steven R. Shapiro, Lenora M.
Lapidus, Daniel L. Greenberg, John Boston, Michael J.
Steinberg, and
Kary L. Moss; for the National Council
on Crime and Delinquency et al. by
Jill M. Wheaton; and for
the Public Defender Service for the District of Columbia et al. by
Paul Denenfeld and
Giovanna Shay.
Roderick M. Hills, Jr., filed a brief for the National
Council of La Raza et al. as
amici curiae.
129
I
The population of Michigan's prisons increased in the early
1990's. More inmates brought more visitors, straining the resources
available for prison supervision and control. In particular, prison
officials found it more difficult to maintain order during
visitation and to prevent smuggling or trafficking in drugs.
Special problems were encountered with the increase in visits by
children, who are at risk of seeing or hearing harmful conduct
during visits and must be supervised with special care in prison
visitation facilities.
The incidence of substance abuse in the State's prisons also
increased in this period. Drug and alcohol abuse by prisoners is
unlawful and a direct threat to legitimate objectives of the
corrections system, including rehabilitation, the maintenance of
basic order, and the prevention of violence in the prisons.
In response to these concerns, the Michigan Department of
Corrections (MDOC or Department) revised its prison visitation
policies in 1995, promulgating the regulations here at issue. One
aspect of the Department's approach was to limit the visitors a
prisoner is eligible to receive, in order to decrease the total
number of visitors.
Under MDOC's regulations, an inmate may receive visits only from
individuals placed on an approved visitor list, except that
qualified members of the clergy and attorneys on official business
may visit without being listed. Mich. Admin. Code Rule 791.6609(2)
(1999); Director's Office Mem. 1995-59 (effective date Aug. 25,
1995). The list may include an unlimited number of members of the
prisoner's immediate family and 10 other individuals the prisoner
designates, subject to some restrictions. Rule 791.6609(2). Minors
under the age of 18 may not be placed on the list unless they are
the children, stepchildren, grandchildren, or siblings of the
inmate. Rule 791.6609(2)(b); Mich. Compo Laws Ann. § 791.268a (West
Supp. 2003). If an inmate's parental rights
130
have been terminated, the child may not be a visitor. Rule
791.6609(6)(a) (1999). A child authorized to visit must be
accompanied by an adult who is an immediate family member of the
child or of the inmate or who is the legal guardian of the child.
Rule 791.6609(5); Mich. Dept. of Corrections Procedure
OP-SLF/STF-05.03.140, p. 9 (effective date Sept. 15, 1999). An
inmate may not place a former prisoner on the visitor list unless
the former prisoner is a member of the inmate's immediate family
and the warden has given prior approval. Rule 791.6609(7).
The Department's revised policy also sought to control the
widespread use of drugs and alcohol among prisoners. Prisoners who
commit multiple substance-abuse violations are not permitted to
receive any visitors except attorneys and members of the clergy.
Rule 791.6609(1l)(d). An inmate subject to this restriction may
apply for reinstatement of visitation privileges after two years.
Rule 791.6609(12). Reinstatement is within the warden's discretion.
Ibid.
Respondents are prisoners, their friends, and their family
members. They brought this action under Rev. Stat. § 1979, 42 U. S.
C. § 1983, alleging that the restrictions upon visitation violate
the First, Eighth, and Fourteenth Amendments. It was certified as a
class action under Federal Rule of Civil Procedure 23.
Inmates who are classified as the highest security risks, as
determined by the MDOC, are limited to noncontact visitation. This
case does not involve a challenge to the method for making that
determination. By contrast to contact visitation, during which
inmates are allowed limited physical contact with their visitors in
a large visitation room, inmates restricted to noncontact visits
must communicate with their visitors through a glass panel, the
inmate and the visitor being on opposite sides of a booth. In some
facilities the booths are located in or at one side of the same
room used for contact visits. The case before us concerns the
regulations as they pertain to noncontact visits.
131
The United States District Court for the Eastern District of
Michigan agreed with the prisoners that the regulations pertaining
to noncontact visits were invalid.
Bazzetta v.
McGinnis, 148 F. Supp. 2d 813 (2001). The Sixth Circuit
affirmed,
286 F.3d
311 (2002), and we granted certiorari, 537 U. S. 1043
(2002).
II
The Court of Appeals agreed with the District Court that the
restrictions on noncontact visits are invalid. This was error. We
first consider the contention, accepted by the Court of Appeals,
that the regulations infringe a constitutional right of
association.
We have said that the Constitution protects "certain kinds of
highly personal relationships,"
Roberts v.
United States
Jaycees, 468 U.
S. 609, 618, 619-620 (1984). And outside the prison context,
there is some discussion in our cases of a right to maintain
certain familial relationships, including association among members
of an immediate family and association between grandchildren and
grandparents. See
Moore v.
East Cleveland, 431 U. S. 494 (1977)
(plurality opinion);
Meyer v.
Nebraska, 262 U. S. 390 (1923).
This is not an appropriate case for further elaboration of those
matters. The very object of imprisonment is confinement. Many of
the liberties and privileges enjoyed by other citizens must be
surrendered by the prisoner. An inmate does not retain rights
inconsistent with proper incarceration. See
Jones v.
North Carolina Prisoners' Labor Union, Inc., 433 U. S. 119, 125
(1977);
Shaw v.
Murphy, 532 U. S. 223, 229 (2001).
And, as our cases have established, freedom of association is among
the rights least compatible with incarceration. See
Jones,
supra, at 125-126;
Hewitt v.
Helms, 459 U. S. 460 (1983).
Some curtailment of that freedom must be expected in the prison
context.
We do not hold, and we do not imply, that any right to intimate
association is altogether terminated by incarceration or is always
irrelevant to claims made by prisoners. We
132
need not attempt to explore or define the asserted right of
association at any length or determine the extent to which it
survives incarceration because the challenged regulations bear a
rational relation to legitimate penological interests. This
suffices to sustain the regulation in question. See
Turner
v.
Safley, 482
U. S. 78, 89 (1987). We have taken a similar approach in
previous cases, such as
Pell v.
Procunier, 417 U. S. 817, 822
(1974), which we cited with approval in
Turner. In
Pell, we found it unnecessary to decide whether an asserted
First Amendment right survived incarceration. Prison administrators
had reasonably exercised their judgment as to the appropriate means
of furthering penological goals, and that was the controlling
rationale for our decision. We must accord substantial deference to
the professional judgment of prison administrators, who bear a
significant responsibility for defining the legitimate goals of a
corrections system and for determining the most appropriate means
to accomplish them. See,
e. g., Pell, supra, at 826-827;
Helms, supra, at 467;
Thornburgh v.
Abbott,
490 U. S. 401,
408
(1989); Jones, supra, at 126, 128;
Turner, supra,
at 85, 89;
Block v.
Rutherford, 468 U. S. 576, 588
(1984);
Bell v.
Wolfish, 441 U. S. 520, 562
(1979). The burden, moreover, is not on the State to prove the
validity of prison regulations but on the prisoner to disprove it.
See
Jones, supra, at 128;
O'Lone v.
Estate of
Shabazz, 482 U.
S. 342, 350 (1987);
Shaw, supra, at 232. Respondents
have failed to do so here.
In
Turner we held that four factors are relevant in
deciding whether a prison regulation affecting a constitutional
right that survives incarceration withstands constitutional
challenge: whether the regulation has a "'valid, rational
connection'" to a legitimate governmental interest; whether
alternative means are open to inmates to exercise the asserted
right; what impact an accommodation of the right would have on
guards and inmates and prison resources; and whether there are
"ready alternatives" to the regulation. 482 U. S., at 89-91.
133
Turning to the restrictions on visitation by children, we
conclude that the regulations bear a rational relation to MDOC's
valid interests in maintaining internal security and protecting
child visitors from exposure to sexual or other misconduct or from
accidental injury. The regulations promote internal security,
perhaps the most legitimate of penological goals, see,
e.
g.,
Pell, supra, at 823, by reducing the total number of
visitors and by limiting the disruption caused by children in
particular. Protecting children from harm is also a legitimate
goal, see,
e. g., Block, supra, at 586587. The logical
connection between this interest and the regulations is
demonstrated by trial testimony that reducing the number of
children allows guards to supervise them better to ensure their
safety and to minimize the disruptions they cause within the
visiting areas.
As for the regulation requiring children to be accompanied by a
family member or legal guardian, it is reasonable to ensure that
the visiting child is accompanied and supervised by those adults
charged with protecting the child's best interests.
Respondents argue that excluding minor nieces and nephews and
children as to whom parental rights have been terminated bears no
rational relationship to these penological interests. We reject
this contention, and in all events it would not suffice to
invalidate the regulations as to all noncontact visits. To reduce
the number of child visitors, a line must be drawn, and the
categories set out by these regulations are reasonable. Visits are
allowed between an inmate and those children closest to him or
her-children, grandchildren, and siblings. The prohibition on
visitation by children as to whom the inmate no longer has parental
rights is simply a recognition by prison administrators of a status
determination made in other official proceedings.
MDOC's regulation prohibiting visitation by former inmates bears
a self-evident connection to the State's interest in maintaining
prison security and preventing future crimes.
134
We have recognized that "communication with other felons is a
potential spur to criminal behavior."
Turner, supra, at
91-92.
Finally, the restriction on visitation for inmates with two
substance-abuse violations, a bar which may be removed after two
years, serves the legitimate goal of deterring the use of drugs and
alcohol within the prisons. Drug smuggling and drug use in prison
are intractable problems. See,
e. g., Bell, supra, at 559;
Block, supra, at 586-587;
Hudson v.
Palmer,
468 U. S. 517,
527 (1984). Withdrawing visitation privileges is a proper and even
necessary management technique to induce compliance with the rules
of inmate behavior, especially for high-security prisoners who have
few other privileges to lose. In this regard we note that numerous
other States have implemented similar restrictions on visitation
privileges to control and deter substance-abuse violations. See
Brief for State of Colorado et al. as
Amici Curiae 4-9.
Respondents argue that the regulation bears no rational
connection to preventing substance abuse because it has been
invoked in certain instances where the infractions were, in
respondents' view, minor. Even if we were inclined, though, to
substitute our judgment for the conclusions of prison officials
concerning the infractions reached by the regulations, the
individual cases respondents cite are not sufficient to strike down
the regulations as to all noncontact visits. Respondents also
contest the 2-year bar and note that reinstatement of visitation is
not automatic even at the end of two years. We agree the
restriction is severe. And if faced with evidence that MDOC's
regulation is treated as a
de facto permanent ban on all
visitation for certain inmates, we might reach a different
conclusion in a challenge to a particular application of the
regulation. Those issues are not presented in this case, which
challenges the validity of the restriction on noncontact visits in
all instances.
135
Having determined that each of the challenged regulations bears
a rational relationship to a legitimate penological interest, we
consider whether inmates have alternative means of exercising the
constitutional right they seek to assert.
Turner, 482 U. S.,
at 90. Were it shown that no alternative means of communication
existed, though it would not be conclusive, it would be some
evidence that the regulations were unreasonable. That showing,
however, cannot be made. Respondents here do have alternative means
of associating with those prohibited from visiting. As was the case
in
Pell, inmates can communicate with those who may not
visit by sending messages through those who are allowed to visit.
417 U. S., at 825. Although this option is not available to inmates
barred all visitation after two violations, they and other inmates
may communicate with persons outside the prison by letter and
telephone. Respondents protest that letter writing is inadequate
for illiterate inmates and for communications with young children.
They say, too, that phone calls are brief and expensive, so that
these alternatives are not sufficient. Alternatives to visitation
need not be ideal, however; they need only be available. Here, the
alternatives are of sufficient utility that they give some support
to the regulations, particularly in a context where visitation is
limited, not completely withdrawn.
Another relevant consideration is the impact that accommodation
of the asserted associational right would have on guards, other
inmates, the allocation of prison resources, and the safety of
visitors. See
Turner, supra, at 90;
Hudson, supra, at
526 (visitor safety). Accommodating respondents' demands would
cause a significant reallocation of the prison system's financial
resources and would impair the ability of corrections officers to
protect all who are inside a prison's walls. When such consequences
are present, we are "particularly deferential" to prison
administrators' regulatory judgments.
Turner, supra, at
90.
136
Finally, we consider whether the presence of ready alternatives
undermines the reasonableness of the regulations.
Turner
does not impose a least-restrictive-alternative test, but asks
instead whether the prisoner has pointed to some obvious regulatory
alternative that fully accommodates the asserted right while not
imposing more than a
de minimis cost to the valid
penological goal. 482 U. S., at 90-91. Respondents have not
suggested alternatives meeting this high standard for any of the
regulations at issue. We disagree with respondents' suggestion that
allowing visitation by nieces and nephews or children for whom
parental rights have been terminated is an obvious alternative.
Increasing the number of child visitors in that way surely would
have more than a negligible effect on the goals served by the
regulation. As to the limitation on visitation by former inmates,
respondents argue the restriction could be time limited, but we
defer to MDOC's judgment that a longer restriction better serves
its interest in preventing the criminal activity that can result
from these interactions. Respondents suggest the duration of the
restriction for inmates with substance-abuse violations could be
shortened or that it could be applied only for the most serious
violations, but these alternatives do not go so far toward
accommodating the asserted right with so little cost to penological
goals that they meet
Turner's high standard. These
considerations cannot justify the decision of the Court of Appeals
to invalidate the regulation as to all noncontact visits.
III
Respondents also claim that the restriction on visitation for
inmates with two substance-abuse violations is a cruel and unusual
condition of confinement in violation of the Eighth Amendment. The
restriction undoubtedly makes the prisoner's confinement more
difficult to bear. But it does not, in the circumstances of this
case, fall below the standards mandated by the Eighth Amendment.
Much of
137
what we have said already about the withdrawal of privileges
that incarceration is expected to bring applies here as well.
Michigan, like many other States, uses withdrawal of visitation
privileges for a limited period as a regular means of effecting
prison discipline. This is not a dramatic departure from accepted
standards for conditions of confinement. Cf.
Sandin v.
Conner, 515 U.
S. 472, 485 (1995). Nor does the regulation create inhumane
prison conditions, deprive inmates of basic necessities, or fail to
protect their health or safety. Nor does it involve the infliction
of pain or injury, or deliberate indifference to the risk that it
might occur. See,
e. g., Estelle v.
Gamble, 429 U. S. 97 (1976);
Rhodes v.
Chapman, 452 U. S. 337 (1981). If
the withdrawal of all visitation privileges were permanent or for a
much longer period, or if it were applied in an arbitrary manner to
a particular inmate, the case would present different
considerations. An individual claim based on indefinite withdrawal
of visitation or denial of procedural safeguards, however, would
not support the ruling of the Court of Appeals that the entire
regulation is invalid.
***
The judgment of the Court of Appeals is reversed.
It is so ordered.
JUSTICE STEVENS, with whom JUSTICE SOUTER, JUSTICE GINSBURG, and
JUSTICE BREYER join, concurring.
Our decision today is faithful to the principle that "federal
courts must take cognizance of the valid constitutional claims of
prison inmates."
Turner v.
Safley, 482 U. S. 78, 84 (1987).
As we explained in
Turner:
"Prison walls do not form a barrier separating prison inmates
from the protections of the Constitution. Hence, for example,
prisoners retain the constitutional right to petition the
government for the redress of grievances, Johnson v.
Avery, 393 U.
S. 483 (1969); they
138
THOMAS, J., concurring in judgment
are protected against invidious racial discrimination by the
Equal Protection Clause of the Fourteenth Amendment,
Lee v.
Washington, 390 U. S. 333 (1968); and
they enjoy the protections of due process,
Wolff v.
McDonnell, 418
U. S. 539 (1974);
Haines v.
Kerner, 404 U. S. 519 (1972).
Because prisoners retain these rights, '[w]hen a prison regulation
or practice offends a fundamental constitutional guarantee, federal
courts will discharge their duty to protect constitutional rights.'
Procunier v.
Martinez, 416 U. S., at 405-406."
Ibid.
It was in the groundbreaking decision in
Morrissey v.
Brewer, 408
U. S. 471 (1972), in which we held that parole revocation is a
deprivation of liberty within the meaning of the Due Process Clause
of the Fourteenth Amendment, that the Court rejected the view once
held by some state courts that a prison inmate is a mere slave. See
United States ex rel. Miller v.
Twomey, 479 F.2d
701, 711-713
(CA7 1973). Under that rejected view, the
Eighth Amendment's proscription of cruel and unusual punishment
would have marked the outer limit of the prisoner's constitutional
rights. It is important to emphasize that nothing in the Court's
opinion today signals a resurrection of any such approach in cases
of this kind. See
ante, at 131. To the contrary, it remains
true that the "restraints and the punishment which a criminal
conviction entails do not place the citizen beyond the ethical
tradition that accords respect to the dignity and intrinsic worth
of every individual." 479 F. 2d, at 712.
JUSTICE THOMAS, with whom JUSTICE SCALIA joins, concurring in
the judgment.
I concur in the judgment of the Court because I would sustain
the challenged regulations on different grounds from those offered
by the majority.
139
I A
The Court is asked to consider "[w]hether prisoners have a right
to non-contact prison visitation protected by the First and
Fourteenth Amendments." Brief for Petitioners i. In my view, the
question presented, as formulated in the order granting certiorari,
draws attention to the wrong inquiry. Rather than asking in the
abstract whether a certain right "survives" incarceration,
ante, at 132, the Court should ask whether a particular
prisoner's lawful sentence took away a right enjoyed by free
persons.
The Court's precedents on the rights of prisoners rest on the
unstated (and erroneous) presumption that the Constitution contains
an implicit definition of incarceration. This is manifestly not the
case, and, in my view, States are free to define and redefine all
types of punishment, including imprisonment, to encompass various
types of deprivations-pro
vided only that those deprivations are
consistent with the Eighth Amendment. Under this view, the
Court's precedents on prisoner "rights" bear some
reexamination.
When faced with a prisoner asserting a deprivation of
constitutional rights in this context, the Court has asked first
whether the right survives incarceration,
Pell v.
Procunier, 417
U. S. 817, 822 (1974), and then whether a prison restriction on
that right "bear[s] a rational relation to legitimate penological
interests."
Ante, at 132 (citing
Turner v.
Safley, 482 U.
S. 78, 89 (1987)).
Pell and its progeny do not purport to impose a
substantive limitation on the power of a State to sentence a person
convicted of a criminal offense to a deprivation of the right at
issue. For example, in
Turner, the Court struck down a
prison regulation that prohibited inmates from marrying absent
permission from the superintendent. 482 U. S., at 89, 94-99.
Turner cannot be properly understood, however, as holding
that a State may not sentence those convicted to both impris-
140
THOMAS, J., concurring in judgment
onment and the denial of a constitutional right to marry. * The
only provision of the Constitution that speaks to the scope of
criminal punishment is the Cruel and Unusual Punishments Clause of
the Eighth Amendment, and
Turner cited neither that Clause
nor the Court's precedents interpreting it. Prisoners challenging
their sentences must, absent an unconstitutional procedural defect,
rely solely on the Eighth Amendment.
The proper inquiry, therefore, is whether a sentence validly
deprives the prisoner of a constitutional right enjoyed by
ordinary, law-abiding persons. Whether a sentence encompasses the
extinction of a constitutional right enjoyed by free persons turns
on state law, for it is a State's prerogative to determine how it
will punish violations of its law, and this Court awards great
deference to such determinations. See,
e. g., Payne v.
Tennessee, 501
U. S. 808, 824 (1991) ("Under our constitutional system, the
primary responsibility for defining crimes against state law [and]
fixing punishments for the commission of these crimes ... rests
with the States"); see also
Ewing v.
California,
538 U. S. 11,24
(2003) (opinion of O'CONNOR, J.) ("[O]ur tradition of deferring to
state legislatures in making and implementing such important
[sentencing] policy decisions is longstanding").
Turner is therefore best thought of as implicitly
deciding that the marriage restriction was not within the scope of
the State's lawfully imposed sentence and that, therefore, the
regulation worked a deprivation of a constitutional right without
sufficient process. Yet, when the resolution of a federal
constitutional issue may be rendered irrelevant by
* A prisoner's sentence is the punishment imposed pursuant to
state law.
Sentencing a criminal to a term of imprisonment may, under state
law, carry with it the implied delegation to prison officials to
discipline and otherwise supervise the criminal while he is
incarcerated. Thus, restrictions imposed by prison officials may
also be a part of the sentence, provided that those officials are
not acting ultra vires with respect to the discretion given them,
by implication, in the sentence.
141
the determination of a predicate state-law question, federal
courts should ordinarily abstain from passing on the federal issue.
Railroad Comm'n of Tex. v.
Pullman Co., 312 U. S. 496 (1941).
Here, if the prisoners' lawful sentences encompassed the extinction
of any right to intimate association as a matter of state law, all
that would remain would be respondents' (meritless, see Part II,
infra) Eighth Amendment claim. Petitioners have not asked
this Court to abstain under
Pullman, and the issue of
Pullman abstention was not considered below. As a result,
petitioners have, in this case, submitted to the sort of guesswork
about the meaning of prison sentences that is the hallmark of the
Turner inquiry. Here, furthermore,
Pullman abstention
seems unnecessary because respondents make no effort to show that
the sentences imposed on them
did not extinguish the right
they now seek to enforce. And for good reason.
It is highly doubtful that, while sentencing each respondent to
imprisonment, the State of Michigan intended to permit him to have
any right of access to visitors. Such access seems entirely
inconsistent with Michigan's goal of segregating a criminal from
society, see
Morrissey v.
Brewer, 408 U. S. 471, 482
(1972) (incarceration by design intrudes on the freedom "to be with
family and friends and to form the other enduring attachments of
normal life"); cf.
Olim v.
Wakinekona, 461 U. S. 238 (1983)
(upholding incarceration several hours of flight away from
home).
B
Though the question whether the State of Michigan intended to
confer upon respondents a right to receive visitors is ultimately
for the State itself to answer, it must nonetheless be confronted
in this case. The Court's
Turner analysis strongly suggests
that the asserted rights were extinguished by the State of Michigan
in incarcerating respondents. Restrictions that are rationally
connected to the running of a prison, that are designed to avoid
adverse impacts on guards,
142
THOMAS, J., concurring in judgment
inmates, or prison resources, that cannot be replaced by "ready
alternatives," and that leave inmates with alternative means of
accomplishing what the restrictions prohibit, are presumptively
included within a sentence of imprisonment. Moreover, the history
of incarceration as punishment supports the view that the sentences
imposed on respondents terminated any rights of intimate
association. From the time prisons began to be used as places where
criminals served out their sentences, they were administered much
in the way Michigan administers them today.
Incarceration in the 18th century in both England and the
Colonies was virtually nonexistent as a form of punishment. L.
Friedman, Crime and Punishment in American History 48 (1993)
(hereinafter Friedman) ("From our standpoint, what is most
obviously missing, as a punishment [in the colonial system of
corrections], is imprisonment"). Colonial jails had a very limited
function of housing debtors and holding prisoners who were awaiting
trial. See id., at 49. These institutions were generally
characterized by "[d]isorder and neglect." McGowen, The
Well-Ordered Prison: England, 1780-1865, in The Oxford History of
the Prison: The Practice of Punishment in Western Society 79 (N.
Morris & D. Rothman eds. 1995) (hereinafter McGowen). It is not
therefore surprising that these jails were quite permeable. A
debtor could come and go as he pleased, as long as he remained
within a certain area (" 'prison bounds' ") and returned to jail to
sleep. Friedman 49. Moreover, a prisoner with connections could get
food and clothing from the outside, id., at 50; see also W. Lewis,
From Newgate to Dannemora: The Rise of the Penitentiary in New
York, 1796-1848, p. 49 (1965) (hereinafter Lewis) ("Many visitors
brought the felons such items of contraband as rum, tools, money,
and unauthorized messages"). In sum, "[t]here was little evidence
of authority," McGowen 79, uniformity, and discipline.
Prison as it is known today and its part in the penitentiary
system were "basically a nineteenth-century invention."
143
Friedman 48. During that time, the prison became the centerpiece
of correctional theory, while whipping, a traditional form of
punishment in colonial times, fell into disrepute. The
industrialization produced rapid growth, population mobility, and
large cities with no well-defined community; as a result, public
punishments resulting in stigma and shame wielded little power, as
such methods were effective only in small closed communities.
Id., at 77.
The rise of the penitentiary and confinement as punishment was
accompanied by the debate about the Auburn and Pennsylvania
systems, both of which imposed isolation from fellow prisoners and
the outside. D. Rothman, The Discovery of the Asylum 82 (1971)
(hereinafter Rothman) ("As both schemes placed maximum emphasis on
preventing the prisoners from communicating with anyone else, the
point of dispute was whether convicts should work silently in large
groups or individually within solitary cells"); id., at 95.
Although there were several justifications for such isolation, they
all centered around the belief in the necessity of constructing a
special setting for the "deviant" (i.
e., criminal), where
he would be placed in an environment targeted at rehabilitation,
far removed from the corrupting influence of his family and
community.
Id., at 71; A. Hirsch, The Rise of the
Penitentiary: Prisons and Punishment in Early America 17, 19, 23
(1992); cf. Friedman 77 (describing the changing attitudes toward
the origin of crime). Indeed, every feature of the design of a
penitentiary-external appearance, internal arrangement, and daily
routine-were aimed at achieving that goal. Rothman 79-80; see also
id., at 83.
Whatever the motives for establishing the penitentiary as the
means of combating crime, confinement became standardized in the
period between 1780 and 1865. McGowen 79. Prisons were turned into
islands of "undeviating regularity," Lewis 122, with little
connection to the outside, McGowen 108. Inside the prisons, there
were only prisoners and jailers; the difference between the two
groups was conspicu-
144
THOMAS, J., concurring in judgment
ously obvious.
Id., at 79. Prisoners' lives were
carefully regulated, including the contacts with the outside. They
were permitted virtually no visitors; even their letters were
censored. Any contact that might resemble normal sociability among
prisoners or with the outside world became a target for controls
and prohibitions.
Id., at 108.
To the extent that some prisons allowed visitors, it was not for
the benefit of those confined, but rather to their detriment. Many
prisons offered tours in order to increase revenues. During such
tours, visitors could freely stare at prisoners, while prisoners
had to obey regulations categorically forbidding them to so much as
look at a visitor. Lewis 124. In addition to the general "burden on
the convict's spirit" in the form of "the galling knowledge that he
was in all his humiliation subject to the frequent gaze of
visitors, some of whom might be former friends or neighbors,"
presence of women visitors made the circumstances "almost
unendurable," prompting a prison physician to complain about
allowing women in.
Ibid.
Although by the 1840's some institutions relaxed their rules
against correspondence and visitations, the restrictions continued
to be severe. For example, Sing Sing allowed convicts to send one
letter every six months, provided it was penned by the chaplain and
censored by the warden. Each prisoner was permitted to have one
visit from his relatives during his sentence, provided it was
properly supervised. No reading materials of any kind, except a
Bible, were allowed inside. S. Christianson, With Liberty for Some:
500 Years of Imprisonment in America 145 (1998). With such
stringent regimentation of prisoners' lives, the prison "had
assumed an unmistakable appearance," McGowen 79, one which did not
envision any entitlement to visitation.
Although any State is free to alter its definition of
incarceration to include the retention of constitutional rights
previously enjoyed, it appears that Michigan sentenced
145
respondents against the backdrop of this conception of
imprisonment.
II
In my view, for the reasons given in
Hudson v.
McMillian, 503
U. S. 1, 18-19 (1992) (THOMAS, J., dissenting), regulations
pertaining to visitations are not punishment within the meaning of
the Eighth Amendment. Consequently, respondents' Eighth Amendment
challenge must fail.
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