(The Return of) Ignatz, by Sam Heldman

Sunday, March 23, 2003

The first case to be argued Wednesday, Overton v. Bazzetta, is about prison visitation. The Sixth Circuit, in this opinion, struck down some Michigan prison regulations that pretty severely curtailed visitation. We are talking, here, about non-contact visitation, where the visitor and the prisoner are sitting on opposite sides of glass talking on telephones; the Sixth Circuit had earlier upheld the rules as they related to "contact" visits. And the regulations in question do the following, as the Sixth Circuit describes them:
(1) banned visits from prisoners' minor brothers, sisters, nieces and nephews; (2) banned all visits by prisoners' children when parental rights had been terminated; (3) banned all visits by former prisoners who are not immediate family; (4) required that visiting children be accompanied by a parent or legal guardian, and (5) permanently banned visitors, apart from attorneys and clergy, for prisoners who twice violated the department's drug abuse policies.
. The Sixth Circuit held that these rules were not reasonably related to legitimate penological interests, and that (for this and related reasons) they violated the prisoners' rights under the First Amendment (which includes a right of association), the Eighth Amendment (prohibition on cruel and unusual punishment) and due process under the Fourteenth Amendment.

It's possible that some of the Justices will say, or come close to saying, that none of this is any business of the judicial branch whatsoever, that there is practically no room for constitutional review of prison regulations such as these. (Look for Justice Thomas to take such an approach). More likely, though, is that a majority will hold that there is some room for constitutional review of such regulations, but that such review must be highly deferential towards prison officials. This is related to – not exactly the same as, but related to – the high level of deference to state decisions on criminal punishments shown in the recent three-strikes cases. And I think it most likely that at least part of the regulations will get an "OK" from 5 or more justices – most likely, perhaps, the ban on visits by former prisoners or the ban on visits for prisoners who repeatedly violate drug abuse policies. So, because I think that reversal at least in part is probably the outcome, I say "REVERSE."

posted by sam 6:43 AM 0 comments


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