Overton v. Bazzetta – Oral Argument – March 26, 2003

Media for Overton v. Bazzetta

Audio Transcription for Opinion Announcement – June 16, 2003 in Overton v. Bazzetta

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William H. Rehnquist:

We’ll hear argument now in No. 02-94, William Overton v. Michelle Bazzetta.

Mr. Casey.

Thomas L. Casey:

Mr. Chief Justice, and may it please the Court, the lower courts in this case were wrong for two reasons.

First, because the Constitution does not give prison inmates a right to receive in-person visits since that activity is inherently inconsistent with the status as a prisoner and with legitimate penological objectives and second, because the Michigan visitation rules are rational and reasonably related to legitimate penological interest.

The Court has recognized the right of intimate association with certain people in certain circumstances outside of the prison context in cases such as Roberts v. United States Jaycees.

In Turner v. Safley, the Court examined the question of how to evaluate a right which is recognized outside of the prison context and determine whether it applies inside the prison.

The right there was the right to marry.

The Court said you should look at the elements or incidents of the rights to determine whether it is affected by incarceration or the pursuit of legitimate corrections goals.

In Roberts, the Court also identified several attributes of the right of intimate association which respondents assert.

These rights include a high degree of selectivity and decisions regarding the affiliations, seclusion from others, relative smallness of the group.

Our contention is that all of the these attributes are significantly affected by incarceration and they are inherently inconsistent with incarceration.

And so the–

Sandra Day O’Connor:

Well, does the right to association while in prison survive in some form, do you think?

Thomas L. Casey:

–In… the right to have the relationship which is what was actually at issue in Safley with marriage and in the Jones case with prisoner… with the union membership.

That status can survive.

There’s no effect on the relationship here.

What this case is about is activity–

Sandra Day O’Connor:

Noncontact visits, aren’t we talking about here?

Thomas L. Casey:

–Noncontact visits but it involves activities inside the secure prison walls in furtherance of the relationship.

There’s no impact on the relationship itself, the question is, can prison officials… do the necessities of prison have an impact on the right of association.

William H. Rehnquist:

What would exist outside… what relationship are you talking about?

Thomas L. Casey:

The relationships that the prisoners are asserting are family members beyond the definition of the Michigan prison system… has adopted particularly minor nieces and nephews.

One of the problems with–

Sandra Day O’Connor:

Well, presumably children of the prisoner are included, are they not?

Thomas L. Casey:

–Children of the prisoner are included within the definition–

Sandra Day O’Connor:

There are limited… they have to be accompanied by, what is it, a legal guardian?

Thomas L. Casey:

–By a family member within the definition or a legal guardian, that’s the Michigan regulation.

David H. Souter:

As I understand it, the regs originally would have prohibited visits from minor siblings of the prisoner and that has been changed by statute; is that correct?

Thomas L. Casey:

There was a statute passed, right at the close of the district court opinion that permitted the Department to permit visits by siblings, the Department changed the regulation to include siblings, minor sibling visits, so that issue is no longer before the courts.

Ruth Bader Ginsburg:

Excuse me.

Ruth Bader Ginsburg:

I’m sorry.

Thomas L. Casey:

Pardon.

David H. Souter:

On the class of visitor eligibility then, what were I going about is nieces and nephew, minor nieces and nephews?

Thomas L. Casey:

That is the class with respect to minor children, they also have a contention about former inmates and–

David H. Souter:

What is the State’s interests in… in restricting visits from minor nieces and nephews of the prisoner?

Thomas L. Casey:

–The prison officials testified uniformly that there were serious overcrowding problems, prison management problems, concerns about safety, so the overriding interest was to reduce the volume of visitors.

David H. Souter:

So it’s simply a means of reducing volume?

There’s nothing peculiar to the niece/nephew relationship?

Thomas L. Casey:

That’s correct.

David H. Souter:

You just want to keep the numbers down and this is one way to do it.

Thomas L. Casey:

To keep the numbers down, the Department is permitted to draw lines.

And that is to draw a line–

William H. Rehnquist:

Is it also of some concern with the activities of children within the prison as opposed to adults?

Thomas L. Casey:

–Oh, absolutely.

That… there was… there is extensive testimony that not only was there a problem with overcrowding and management, just because of the volume in general, but particularly, because of children.

Ruth Bader Ginsburg:

Mr. Casey, I would like to back up to go where you were when you were responding to Justice O’Connor’s question.

Do I take it that your position is whatever rights there may be to have a relationship, for example, by telephone call, correspondence, there is absolutely no right to any visitation, even noncontact, so that whatever you permit is a matter of administrative grace?

Is that your starting position?

Thomas L. Casey:

Yes.

In response to–

Ruth Bader Ginsburg:

There is no right to visitation, noncontact visitation at all?

Thomas L. Casey:

–That’s correct.

Ruth Bader Ginsburg:

So everything that we’re arguing about… you… in your view of this is a matter of administrative grace?

Thomas L. Casey:

That’s correct.

Sandra Day O’Connor:

Do you have a fallback position from that?

And if so, what is it?

Thomas L. Casey:

The Court specified three issues and the first issue is whether there is a right to visitation at all.

Our position on that question is there is no constitutional right.

It’s a privilege.

It’s not a right.

Thomas L. Casey:

The second question was whether assuming there is some limited right, are the Michigan regulations rational and reasonably related to legitimate correctional goals.

Ruth Bader Ginsburg:

Mr. Casey, would you explain… you have been very clear of what is your position about… round one of this case in the lower courts, when you clarified that your regulations went only to contact visits and then you came around and said it applies to all visits.

Thomas L. Casey:

The way the case evolved… the regulations on their face apply to all visitation.

The restrictions apply to both contact and noncontact.

When the case was initially filed, there were motions for summary judgment.

There was a 3-day hearing on that motion and most of the testimony that was introduced related to contact visitation.

So when the case first went to the court of appeals, the court of appeals mistakenly viewed the case was relating only to contact visitation.

John Paul Stevens:

Well, I got the impression that the State had represented that they… that they covered only contact visitation?

Thomas L. Casey:

There were statements in the brief referring to contact visitation, largely because that was the evidence that was adduced at the summary judgment proceeding.

But the complaint challenged the regulations in their entirety.

And the parties, I believe, understood that it applied to both contact and noncontact.

John Paul Stevens:

But the Court thought it only applied to contact visitation–

Thomas L. Casey:

In the court of appeals’ first opinion it held that it applied only to contact.

Then it went back to the district court and then we had longer trial, more elaborative evidentiary proceeding.

Ruth Bader Ginsburg:

–In the district court the first time around the district court didn’t think it was limited to contact?

Thomas L. Casey:

The district court dismissed the complaint in its entirety on our motion.

There was no misrepresentation.

There may have been some unintentional statements which led the court of appeals to conclude in the first view–

Ruth Bader Ginsburg:

But the district court understood that it was dismissing the complaint with respect to any visitation, contact and noncontact, or we just don’t know?

Thomas L. Casey:

–The first order of the district court dismissed the complaint in its entirety.

And the complaint, the initial complaint, did not say we are challenging only contact.

The… as I say, because of the way the summary judgment evidence went in, it evolved that the… the court of appeals thought it was related only to contact.

But the rules on their face don’t make a distinction between contact and noncontact.

John Paul Stevens:

May I ask this question?

The rules as I understand are at page 174 of the appendix of the cert petition and they don’t tell us anything, at least I couldn’t find anything, about the number of visits a person can have or how often.

Do the rules regulate that the number of times a particular visitor may visit an inmate?

Thomas L. Casey:

Yes.

At page 111 of the joint appendix, there’s a memorandum that was issued in April of 1995, which sets out hours of visitation for different institutions… it varies between institutions.

John Paul Stevens:

111 of the joint appendix?

Thomas L. Casey:

Of the joint appendix.

John Paul Stevens:

I see.

Thomas L. Casey:

And it varies… excuse me, Your Honor.

Antonin Scalia:

It limits the number at any one time.

But does it limit, you know, you can only have so many visitors a month?

Thomas L. Casey:

Yes.

Antonin Scalia:

Why isn’t that sufficient to solve the problem of overcrowding and too many… too many people?

If… if you have too many people, an easy way to solve it is just to reduce the number of visits each one of the inmates is allowed to have per month.

Thomas L. Casey:

That would have been one solution.

The Department chose a solution where they evaluated the visitors and concluded that it would be best to make quality visits for close family members following essentially–

John Paul Stevens:

Is there any evidence they found out how many nephews and nieces would be excluded by the rules and, therefore, worked that into the quantity determination, that’s a strange way to regulate quantity.

Thomas L. Casey:

–They did not know in advance how many nieces and nephews.

We simply don’t keep that kind of record.

Stephen G. Breyer:

Is there a specific anti-niece… I didn’t understand this case, I guess.

I thought there’s a simple determination by the prison authorities, we don’t want children in the room, period.

Now, we’ll make an exception for that if they’re your children.

Thomas L. Casey:

That’s essentially what they did.

Stephen G. Breyer:

And the reason had nothing to do… it had something to do with a lot of people, but basically they think children are more dangerous to the child or more disruptive, because they’re younger, harder to discipline, they might run around in the room.

They might learn things that… that they don’t want children exposed to the language or behavior of the prisoners, et cetera.

So I just thought it was… now maybe you’re telling me, no no, that’s not the reason it was totally different.

Thomas L. Casey:

No.

That’s–

Stephen G. Breyer:

This is quite interesting to me.

Thomas L. Casey:

–No, that’s one of the bases, it would possible to prohibit all children in prisons.

Stephen G. Breyer:

No, they don’t prohibit all children.

They say generally children are more of a problem than adults to have in visits.

Thomas L. Casey:

That’s correct.

Stephen G. Breyer:

So we draw a line.

We say no children except for your own children.

Thomas L. Casey:

That’s correct.

Stephen G. Breyer:

Right.

Thomas L. Casey:

That’s our position.

Stephen G. Breyer:

So why don’t you defend it on that basis, if that’s what it is?

Thomas L. Casey:

Well, I thought I was, I’m sorry if I didn’t make that clear, Your Honor.

The Department made decisions on who is to visit.

And they said we are going to permit visits with close family members, children, grandchildren, at some point they have to draw a line, as you’ve said, which is kind of… and they drew a line to eliminate certain extended family members.

One of the problems is… is… if the Court finds that there is a right to visitation, the… there will be… I suspect a great deal of additional litigation on where those lines can appropriately be drawn.

Michigan, for example, has very generous rules concerning times of visitation, they permit visits on evenings, on weekends and holidays, some States don’t do that.

If there’s a right to visitation, I suspect there will be litigation on–

William H. Rehnquist:

Is there any limit on the number of times the same person can come in a given month?

Thomas L. Casey:

–No.

There… inmates, for example, in the lowest security level are entitled to eight visits per month.

And the time is… is not regulated either.

It depends on overcrowding and situations like that.

Antonin Scalia:

What adults are permitted?

Suppose I don’t have any children, I don’t have any spouse, I don’t even have any siblings.

Thomas L. Casey:

The rule permits an inmate to designate immediate family members as defined by the Department and 10 other individuals.

Antonin Scalia:

Ten others, okay.

Thomas L. Casey:

Now, there are certain prohibitions, former prisoners are prohibited, I think, unless they’re a family member and receive the ward’s permission.

That is being challenged here as well, but–

Ruth Bader Ginsburg:

In relation to the family, this one last question, a child must be accompanied by an adult and you cut that back from any adult on the filing of the affidavit to only an immediate family member.

Does an immediate family member include an unwed father?

Thomas L. Casey:

–No, it includes spouses, but it would include, it would include–

Ruth Bader Ginsburg:

But an unwed father would not be a spouse?

This is the child… the mother is incarcerated, the child is brought to visit her.

Can the person who brings the child be that child’s biological father, maybe even care-giving father?

Thomas L. Casey:

–The child can visit if the child, you know, is the biological child, but the child has to be brought by a member of the immediate family.

Ruth Bader Ginsburg:

But the unwed father would be a member of the child’s immediate family.

Thomas L. Casey:

That’s correct.

Ruth Bader Ginsburg:

Although not of the mother’s immediate family?

Thomas L. Casey:

That’s correct.

Thomas L. Casey:

Someone other than the unwed mother would have to bring that child under the rules.

Ruth Bader Ginsburg:

The mother is in prison?

Thomas L. Casey:

But someone other than the unwed father would have to bring–

Ruth Bader Ginsburg:

The unwed father would not qualify?

Thomas L. Casey:

–He is not qualified–

Antonin Scalia:

Unless he’s the guardian?

Thomas L. Casey:

–If he is the legal guardian, yes.

Antonin Scalia:

If he’s the legal guardian, he would?

Thomas L. Casey:

Yes.

If the mother, the custodial parent, has gone through legal guardianship.

Antonin Scalia:

A close enough family relationship despite the lack of the wedding bond, he would probably be the guardian, I would guess, wouldn’t he?

Thomas L. Casey:

The guardian in fact, perhaps, but the Department is permitted to insist on enough evidence to demonstrate the legal relationship.

And, again, this case is about drawing lines, and the prison officials here drew reasonable lines based on a perception that they observed in–

Sandra Day O’Connor:

This is a facial challenge not as an as-applied?

Would an as-applied challenge be possible, assuming we recognize some right of visitation?

Thomas L. Casey:

–These rules could be challenged as an… on an as-applied basis but we did go through a complete trial on the merits here.

There is evidence.

Our position is we submitted evidence to demonstrate the reasonable relationship under Turner v. Safley.

So if there is a right, then we satisfied the requirements of… of permitting our rules to take… to take a–

William H. Rehnquist:

A particular person brought this action, did they not?

Michelle Bazzetta?

Thomas L. Casey:

–Yes.

It’s a class action.

Inmates and–

William H. Rehnquist:

And she was an inmate somewhere?

Thomas L. Casey:

–She was an inmate.

So… I have not addressed the Court’s third question, the cruel and unusual punishment.

If there are no questions on that, I’ll rely on the briefs.

And I would like to reserve my remaining time for rebuttal.

William H. Rehnquist:

Very well, Mr. Casey.

William H. Rehnquist:

Mr. Lamken.

Jeffrey A. Lamken:

Mr. Chief Justice and may it please the Court.

The right asserted here for inmates to receive in-person visits other than those permitted by Corrections Department rules is consistent neither with inmate status nor with the legitimate penological interests underlying Michigan’s rules.

Ruth Bader Ginsburg:

But, Mr. Lamken, you are then agreeing with Mr. Casey that there is right of… no right to any visitation, contact, noncontact, that what right… what privilege is extended is a matter of administrative grace?

Jeffrey A. Lamken:

That is our initial position, yes.

And we also have two backup positions.

Anthony M. Kennedy:

On your initial position, in your view, under a scheme like this could complete discretion be given to the warden to determine who gets the visitation and who does not?

You know, you didn’t really… you’ve been looking sloppy for a couple of days so I’m going to take away your visiting privileges?

Jeffrey A. Lamken:

Not necessarily.

The fact that the Federal Constitution itself does not create a liberty or a property interest in visitation, does not preclude the possibility that State prison regulations or State law might create that type of interest.

It could not be taken away under–

Anthony M. Kennedy:

I know it isn’t an issue here.

But one of the reasons I’m asking is because if the warden doesn’t have complete discretion, then that indicates that maybe there’s some right that’s either conferred by the statute or by the Constitution.

You say the warden has complete discretion?

Jeffrey A. Lamken:

–The answer is not necessarily.

And that is the Court would have to examine under the standards established by… in Sandin v. Conner, whether or not State law provides a property or a liberty interest that can’t be taken away without sufficient process.

And that–

Anthony M. Kennedy:

As you read these regulations, does the warden have the complete discretion?

Jeffrey A. Lamken:

–Well, it’s not a question of what the content of the regulations are.

That was… Sandin v. Conner got rid of that inquiry.

Instead, the question is whether it is a grievous deprivation or an adverse… or excuse me, an atypical hardship that is contrary to the typical norms of incarceration.

Anthony M. Kennedy:

And under that standard, do you think the warden should have complete discretion to deny anybody for any reason visiting privileges?

Jeffrey A. Lamken:

We think that’s a very difficult question.

If push came to shove, our answer would be the warden should have that discretion but I should point out that Bureau of Prison regulations and the State of Michigan both provide extensive hearing procedures before such rights are withdrawn.

And such that the type of… for example, in Michigan, you can challenge the underlying finding of misconduct if your rights are going to be taken away for the minimum 2-year period bound that’s at issue here.

And you get not only an investigation, you get a hearing, you get administrative review, you get judicial review.

And we believe that those types of procedures are certainly sufficient in terms of due process.

The answer to that question would be if push came to shove, we would say no, it could be a matter of–

John Paul Stevens:

Then how would you distinguish the holding in Turner against Safley pertaining to the right to marry?

Jeffrey A. Lamken:

–On two bases, Justice Stevens.

Jeffrey A. Lamken:

First, marriage has or can have a religious, that is free exercise element, and it also has an effect on property rights and the rights to certain benefits outside the prison context.

Neither is true of the right to… of visitation.

Second, incarceration as a form of punishment necessarily places a barrier between the prisoner and those with whom he would otherwise associate.

The very essence of the punishment is that separation and the vesting of control over exceptions to that separation, in the State and corrections authority.

Marital status in contrast, such as free exercise of religion, doesn’t have the necessary relationship to incarceration as a form of punishment.

Sandra Day O’Connor:

Do all prisons allow some form of visitation for prisoners?

Isn’t that a pretty universally accepted practice?

Jeffrey A. Lamken:

It is a universally accepted practice, that for certain prisoners under proper conditions, certain visits, will aid in rehabilitation and that is the accepted view and one that the Bureau of Prisons firmly supports.

Sandra Day O’Connor:

Right.

If you’re going to release somebody back into society, you don’t want to cut off all contact with family members or friends who might help that person on release, do you?

Jeffrey A. Lamken:

Well, that, Justice O’Connor, is a matter of penological philosophy, but not a matter of constitutional right.

And as a matter of sound penological philosophy, the Bureau of Prisons, for example, does allow visits.

But it will restrict those visits rather severely if the… if the circumstances provide.

And we believe that one–

Sandra Day O’Connor:

Well, why isn’t the Turner/Safley rule quite adequate here to deal with this?

Jeffrey A. Lamken:

–Well, Your Honor, you could decide it… actually Turner v. Safley, as we read it has two components.

On page 95 in particular, it says that an inmate retains those rights that are not inconsistent with incarceration or with the penological interests of the corrections system.

And so we believe that this Court could resolve it under either of the inconsistent-with-inmate status problem, which is to say that there is no right.

Or it could go into the Turner v. Safley balancing and determine that, in fact, Michigan’s rules do have the requisite relationship to legitimate penological objectives.

Stephen G. Breyer:

But to the first, if you’re right on the first point, which is what is disturbing about the first point, a prisoner would have no right whatsoever to any kind of visit or communication or association with outside people, even if there were virtually no penological reason for doing that?

And that’s… why do you have to go that far?

Jeffrey A. Lamken:

Justice Breyer, I think part… when you say communication, I wouldn’t go that far.

We are saying that–

Stephen G. Breyer:

You say that because that’s what’s that the cases seem to say.

Communication, association.

Jeffrey A. Lamken:

–Well, in fact, what incarceration cuts off and what the punishment of incarceration is is the physical separation of the inmate from the rest of society.

The inmate, for example, it’s not inconsistent, for example, for a corrections official to have authority to give an inmate a furlough to go outside to work for example.

But it is inconsistent, for an inmate to say you must give me a furlough to go outside because your failure to do so interferes with my in-person associational rights.

The very essence–

Stephen G. Breyer:

You’re thinking of cases where that’s justified what the prison is doing.

Stephen G. Breyer:

And if you win on your first point, you better think of cases where the prison is unjustified, but it still wins.

Jeffrey A. Lamken:

–Well, I think the answer is, the very essence of the punishment of incarceration is separation from society and the vesting of exceptions thereto in corrections officials.

That is the punishment and that is the difference between, for example, a broader right to communicate, which wouldn’t necessarily be cut off.

A broader right–

Antonin Scalia:

You would say that even if… even if the prison… even if the prison administration is unjustified in refusing to allow the prison a furlough out into society, even if a thoroughly trustworthy prisoner, you would still say he has no right to?

Jeffrey A. Lamken:

–Absolutely.

That is the nature of incarceration as punishment, Justice Scalia.

Turning to the Turner balance argument–

So you say there can be solitary confinement for life, if that’s what the State wants?

Jeffrey A. Lamken:

–Justice Kennedy, solitary confinement should be distinguished from merely cutting off visitors from outside.

And the answer to your question is, yes, under certain circumstances, solitary confinement for life would be permissible, but one would, as the Court has pointed out in various cases, have to–

Anthony M. Kennedy:

Well, then under all circumstances under your view?

Jeffrey A. Lamken:

–Well, the barrier for solitary confinement for life would be whether or not that’s cruel and unusual punishment.

But the reality of prison life is that prisoners don’t get to choose who their cellmates are.

They don’t get to choose who they bunk with.

They don’t get to choose who they dine with.

They don’t get to choose the institution in which they’re incarcerated.

Even though each of those personal choices may be protected outside.

Sandra Day O’Connor:

Well, presumably, the prison allows prisoners to send mail?

Jeffrey A. Lamken:

Yes, that’s correct.

Sandra Day O’Connor:

Okay.

How about phone calls?

Jeffrey A. Lamken:

In this case the prison does allow phone calls for outside, which are other means by which general First Amendment community rights–

Sandra Day O’Connor:

So a prisoner who doesn’t know how to read and write and who has… whose family has no telephone, what are they supposed to do without a contact visit?

Jeffrey A. Lamken:

–Well, the Court–

Sandra Day O’Connor:

Or a noncontact visit?

Jeffrey A. Lamken:

–The Court actually addressed that in Pell, which is to say that that’s not a problem unless the State precludes the prisoner from getting aid in writing letters.

And Pell actually addressed the specific claim that the prisoners were unable to write.

And there’s no evidence in this case that the State precludes prisoners from getting aid in writing or reading letters so that they may communicate with the outside world.

But the–

Ruth Bader Ginsburg:

Are you saying that there is a right to communicate to that extent, or you’ve been candid and upfront and said there’s no right to visitation.

Jeffrey A. Lamken:

–That’s exactly the line we draw, Justice.

Ruth Bader Ginsburg:

Do you extend that as well to telephone calls and writing letters?

Jeffrey A. Lamken:

No.

There may be… there may or is a distinct First Amendment and societal interest in allowing general communications between inmates and the outside world.

In that sense it’s important to distinguish between the two rights at issue.

One is a substantive due process in-person associational right, and the other is a more general First Amendment right to communicate or like a more general First Amendment right to free exercise of religion.

The former is what incarceration cuts off.

The latter is something that incarceration may limit but generally only to–

John Paul Stevens:

But you would agree that the inmate could be… have a visit from his lawyer?

Jeffrey A. Lamken:

–Yes, Your Honor.

He would have a visit from the lawyer and potentially clergy as an exception as well.

And that’s because of the distinct and hybrid nature of the right.

It’s not merely an associational right, but the right to a fair trial may be at issue, the right to petition for redress of grievances, the right to free exercise of religion may also be at issue in the case of clergy.

That’s why almost all of these limits, except clergy and lawyers.

Turning to the Turner balance, the Court below invalidated the… these rules as applied to noncontact visits based on the principle that noncontact visits do not raise the penological concerns that contact visits do.

That was incorrect for three reasons.

First, many prisons including Federal Bureau of Prisons’ facilities, lack noncontact facilities.

The construction of new facilities is not the type of de minimis or ready alternative this Court contemplated in Turner.

Second, the portable noncontact booths used by the State of Michigan separate the visitor from the–

John Paul Stevens:

Are there any high-security prisons that don’t have noncontact facilities?

I know there’s some–

Jeffrey A. Lamken:

–No.

John Paul Stevens:

–low security.

Jeffrey A. Lamken:

No.

In fact, the Federal Bureau of Prisons’ facilities, if they are high security or pretrial dissension centers, they will have noncontact facilities.

If they are lower security–

John Paul Stevens:

Well, shouldn’t we decide the case on the assumption that we’re dealing with facilities that can have noncontact visits?

Jeffrey A. Lamken:

–The facilities in these cases… may I answer the question, Chief Justice?

I see I’m out of time.

William H. Rehnquist:

Yes, you can.

Jeffrey A. Lamken:

Okay.

The facilities at issue in these cases are portable booths, which separate the inmate from its visitor but not the visitor from all the inmates who are having contact visits so they do not address the problems of the child visitors having contact with inmates.

William H. Rehnquist:

Thank you Mr. Lamken.

Ms. LaBelle, we’ll hear from you.

Deborah LaBelle:

Mr. Chief Justice, and if it please the Court.

The Court… I would like to clarify quickly the administrative proceedings before we got to trial in this Court, because the Court asked an inquiry.

We did have a 3-day trial and a preliminary injunction hearing and at that time the Corrections Department represented that the rules were only as to contact visits and the Court, recognizing that there were some smuggling and contraband issues, thereafter denied a preliminary injunction and followed with the summary judgment, summary disposition based solely on the understanding that it was limiting… these rules only limited contact visits.

And that’s how it went to the Sixth Circuit.

Ruth Bader Ginsburg:

So there’s nothing in the district… in the district court’s opinion or order that clarifies that?

Deborah LaBelle:

No.

The district court ruled only with regard to thinking it was contact and the Sixth Circuit accepted it that way, when it became clear, when it was sent down, that the visits were being applied to ban all visits for certain categories of people, we asked for a rehearing in the Sixth Circuit, they used a clarifying opinion and then said that, no, the justification is given for limiting contact visits, smuggling and contraband did not suffice for limiting all visits for these categories of visitors.

William H. Rehnquist:

Did the case go to the Sixth Circuit twice?

Deborah LaBelle:

Yes, Your Honor.

It went to the Sixth Circuit after a whole… first on the initial preliminary injunction, then it went back down, it was tried on the issue of noncontact visits and the permanent ban.

The permanent ban, Mr. Chief Justice, was not tried in the first go-around, because they indicated that they had not yet implemented it in any form, so it was not yet right.

William H. Rehnquist:

Is that particular procedural history significant in what we decide on the issues before us?

Deborah LaBelle:

I think that it is not significant, only to clarify one point, the issue of whether the siblings are before this Court.

It was after the district court’s decision that the Department chose to pass… that a rule was passed voluntarily allowing the Department to allow siblings in, which they have, but they have put a position throughout the case and up through the Sixth Circuit that they had the right, at any time, to withdraw that voluntary choice to allow siblings.

So I think the siblings issue is still very much before this Court.

Ruth Bader Ginsburg:

But their position is they have the right to say no to all children?

Deborah LaBelle:

That’s correct, Your Honor, including siblings, children, that it is all a matter of discretion.

Ruth Bader Ginsburg:

So their position is not different with respect to a child, a grandchild, a sibling.

They say whatever we want to do, it’s up to us to do in our judgment and you have no right at all, whatever you get is a privilege.

Deborah LaBelle:

That’s correct, Your Honor.

And I think that that is why the case has gotten so far.

It is because that the insistence that families and prisoners do not retain the rights of intimate association past the prison door.

Antonin Scalia:

Is it unconstitutional then, and this is why I’m reluctant to get this Court into a whole new line of constitutional law… is it unconstitutional to send a prisoner from the East Coast to a prison far removed from his family and friends?

Deborah LaBelle:

Certainly not, Justice Scalia.

Antonin Scalia:

Why not?

Deborah LaBelle:

Because that is a collateral consequence of something that happens to prisoners.

They get moved.

They get transferred.

This Court addressed that in Olim.

That’s not what happened.

Anthony M. Kennedy:

Suppose they do it for the purpose of denying the prisoner the contact?

Deborah LaBelle:

I think that if they are targeting the intimate associational rights at issue, if that is the purpose that we are going to target the intimate associational rights, then a fundamental right has arisen and then it’s a Turner question.

Antonin Scalia:

You’re not targeting the rights.

Their object is not to cut off those rights.

Their object is to reduce the number of children in the room, to reduce the number of visitors, just as in the other case, their object is to use prison facilities that are more… that are cheaper, that are… that are more readily available, so they send the inmates somewhere else.

But if you have a constitutional right to the… to the visitations you’re talking about, it doesn’t seem right to me that you should be able to be removed from the people who could possibly visit you.

Deborah LaBelle:

I think that, Your Honor, what’s going on here is that the decision to slice deeply into the family and to make that decision as to who gets to visit and who doesn’t goes directly to, and that’s exactly what they did, they said, here are minors and we’re going to select out certain intimate associations, we’re going to slice–

Antonin Scalia:

We’re going to have to pass on one by one nieces, nephews, grandchildren, illegitimate children, children of… one by one, all of these are constitutional questions, on the theory, I suppose, that what is truly stupid must be unconstitutional.

Deborah LaBelle:

–I think you don’t have to for two reasons, Your Honor.

One I think if this Court affirms that the intimate associational rights that are at issue here do pass through the doors for the families, that you will have Departments of Corrections exercising their discretion and their expertise under Turner, which they’re allowed to do, something that is clearly not evident here.

They didn’t… there is no expertise in their decision.

Sandra Day O’Connor:

What… what is the basis of the… is this some kind of a facial challenge to the whole scheme of regulating noncontact visits?

Deborah LaBelle:

No, Your Honor.

I think that–

Sandra Day O’Connor:

What is it?

Is it an as-applied challenge, of some kind?

Deborah LaBelle:

–Thank you, Your Honor.

With regard to the categorical restrictions, they are challenged as both facially and as-applied under Turner, because I think Turner is a very fact-intensive question.

William H. Rehnquist:

Well, what… what happened to Mrs. Bazzetta who wrote this… who brought this action?

Did she ask for all these things and was denied them?

Deborah LaBelle:

The… Your Honor, the… it was a class action.

And she represented–

William H. Rehnquist:

I know it was a class action.

Deborah LaBelle:

–one of the… what happened is that she… her sister wanted to bring in her newborn child to visit Ms. Bazzetta and that would have been the nieces and nephews which were precluded.

There were other class representatives–

William H. Rehnquist:

But her sister wanted to.

I mean shouldn’t her sister have brought the action, then?

Deborah LaBelle:

–The… Ms. Bazzetta was denied the visit with her niece and nephew.

Her sister was also a class representative.

William H. Rehnquist:

Ms. Bazzetta is the inmate?

Deborah LaBelle:

Is the inmate.

There were… the class representatives were both the prisoners on the inside and the family members on the outside who joined together to bring this action.

William H. Rehnquist:

And what else did Ms. Bazzetta challenge that had happened to her, besides the visit from her sister?

Deborah LaBelle:

Ms. Bazzetta challenged only the denial of her ability to see her nieces and nephew.

Ms. Barker challenged the ability to see her children.

Ms. Barker challenged–

William H. Rehnquist:

Well, how… how can one of them represent an entire class then if each of them is challenging something different?

Deborah LaBelle:

–We had class representatives, Your Honor, that were certified as adequate to represent each of the interests in which we presented to the Court.

Sandra Day O’Connor:

Is the claim a First Amendment claim or what?

What… what is… what provisions of the Constitution specifically are you looking to?

Deborah LaBelle:

With regard to the categorical restrictions on the minor siblings, children, nieces and nephews, it is both a First and Fourteenth Amendment claim of intimate association, and family association.

And what we have said here is that the Department can make its decisions to limit people.

They can do it either neutrally by volume, they can say we’re going to say neutrally that you can only have so many minors, just as they do adults.

You can only have so many minors come to visit at any time and we are not going to slice into who… who is your most intimate family member.

Or we can do it with regard to the further-out reaches, which is they can say cousins, I suppose, or even further, but they can’t go into–

William H. Rehnquist:

What, where… where–

Deborah LaBelle:

–I’m sorry, Your Honor.

William H. Rehnquist:

–Where do you get this out of the Constitution?

Deborah LaBelle:

I think that I get it from the Court’s decisions in Moore, in Roberts and that this Court has already said that–

William H. Rehnquist:

Well, Roberts was a case involving whether you can get into the Jaycees or not, not whether you could get out of prison.

Deborah LaBelle:

–I think that you’re correct, Your Honor, in that the Roberts edicta, which everyone has relied upon in this case, is what I’m referring to.

But Moore directly says that you have to protect certain intimate family relationships and by anyone’s understanding of what it means to be family–

William H. Rehnquist:

Well, Moore was a zoning case.

I mean, it had nothing to do with prisons.

Deborah LaBelle:

–It had nothing to do with prisons, Your Honor, but it did identify that there are intimate associational rights involved in families choosing–

Sandra Day O’Connor:

But… but when in the prison context, we’ve had specific cases and have tried to articulate some governing principles outlined largely in Turner v. Safley about what the prison can do and not do.

Should we just look to that case and analyzing this rather than the… some zoning cases and other things?

Deborah LaBelle:

–I think that… I think that Turner is the governing case in here and in fact, I think if… further that if these rules, if this is not affirmed it would be… do great damage to the Turner case, because what Turner says is when you have these fundamental rights, that then you look to extreme deference to the Corrections Department.

Antonin Scalia:

But Turner assumes the question that we’ve been immediately discussing, that there is a fundamental right.

Before you get to the Turner questions, you have to establish that there is a… aright to… to… to visitation in prison.

If you talk about intimate… the right to intimate family association, I suppose there is no more stronger right to intimate family association than the right of… of… of a man and wife to cohabit, and that’s… that’s eliminated in prison, unless you think that conjugal visits are constitutionally required.

Do think that they’re constitutionally required?

Deborah LaBelle:

No, I don’t think–

Antonin Scalia:

It’s a pretty intimate family association that you’re cutting off there, isn’t it?

Deborah LaBelle:

–I think that although some States certainly allow it, it’s certainly not constitutionally required, because there is two prongs of Turner.

One is whether it… it is inconsistent with incarceration and certainly you can argue that people going outside the prison, the conjugal visits puts certain burdens and may be inconsistent with the general incarceration.

Antonin Scalia:

You can arrange for it.

Deborah LaBelle:

If every–

Antonin Scalia:

You can arrange for it.

Deborah LaBelle:

–You can arrange for it.

And I think that you would not win under a Turner test with that limit on that associational right.

But here where they have impinged on the associational and intimate associational right in such a way but if–

Ruth Bader Ginsburg:

Well, that’s where we have… Mr. Lamken clarified that… that there is a right of expression, and that’s why he said you couldn’t cut off letters.

But he maintains that there is not this right of intimate association, that the right doesn’t exist at all.

So you never get into Turner v. Safley balancing.

And I think your first job is to establish that… that just as a prisoner retains a right of expression, which can be curtailed drastically given incarceration, just as there is that interest and expression, so there is a retained interest in intimate association, which can be shrunk, but not totally eliminated.

Deborah LaBelle:

–Yes, I think that’s correct, Justice Ginsburg.

The… this… this Court has on the outside recognized that we have intimate association rights, we have companionship rights.

And although they may… there may be attributes of that right, that are necessarily diminished by… by having one member of your family in prison, the many attributes of what it means to be a family is not gone.

The ability to see your… your wife’s face, the ability to see your child and assure that you’re–

Stephen G. Breyer:

Well, all that is true, but I thought… I thought that this case… it’s much more complicated than I thought.

I thought it was fairly simple, at least in my mind.

I assume with you that Turner is the law and there’s some kind of constitutional right here.

But I thought we had basically four regulations, one says no children can visit unless they’re your own children.

The second one says no prisoners can visit unless they’re in your family.

Stephen G. Breyer:

The third one says that you lose those rights if you’re on drugs, you lose them for two years if you have two drug problems.

And there was one other, which… if the children come in, they have to be accompanied by an adult, okay?

And I thought that’s what the regs say and, in addition, there’s another reg which says, warden, if you feel you need to make an exception for a particular visit, you can do it.

Okay?

Now, that’s what the regs were, the district court said those are unconstitutional.

The court of appeals said that’s right and I would like to know, assuming with you, that Turner is the law, what’s unconstitutional about them?

It strikes me as the most reasonable thing to say that you can’t have children in a prison environment unless they’re your own children.

What’s wrong with that?

Deborah LaBelle:

–And I think, Justice Breyer, what’s wrong with that is that it’s not the business of the Department of Corrections to start making decisions once you decide that family members and children can come in, that to make decisions as to which family members are close… which… for those people who are 18, 17, 16, who have no children but wanted to see their only family member, which was their brother or sister, the questions–

Stephen G. Breyer:

They’ve now dealt with that, I take it.

And you’re saying that… that we should decide what is a totally hypothetical thing, whether a regulation in… are they seeking damages?

I take it they’re seeking–

Deborah LaBelle:

–No.

Stephen G. Breyer:

–an injunction.

The law is now that they will let the family members in, if you have a brother who’s 2 years old, they can bring the brother.

So… so I would think that’s pretty hypothetical, but any way, I’ll consider that.

What about the rest of it?

Deborah LaBelle:

I think that the question is whether it’s reasonable to slice off certain family members and there’s a penological–

Stephen G. Breyer:

They say, sure, it’s reasonable?

Deborah LaBelle:

–interest in doing it.

Stephen G. Breyer:

Sure it’s reasonable.

The reasonable thing is we want as few children as possible.

But we’re not prepared to say, if they’re your own children, you can never see them.

That to me sounds like a reasonable thing.

Why isn’t it?

Deborah LaBelle:

Because it is total discretion on what constitutes the family and who comes in and it interferes with the fundamental right at issue here which is–

William H. Rehnquist:

Can’t they… can’t they regulate categorically rather than just tuning it to each particular family to say that your own children are in a different class than siblings or nieces or nephews and say one can… I mean, the whole thing is line-drawn.

You’re going to draw lines or slice somewhere as you put it.

Deborah LaBelle:

–I think that’s true that you can draw lines, and you can draw lines that are content-neutral with regard to the family, because that’s what the concern was here, volume.

So you can say, you can only have two minors, or you can only… on your list, or you can only have five minors visit or we’re going to limit the number or they can say, we are only going to protect the recognized intimate associations which include your children, your grandchildren, your siblings and your nieces and nephews.

Stephen G. Breyer:

Well, of course.

You say nieces and nephews are the same as a child, that I guess, that’s a matter of judgment.

And I take it I can imagine a case where a person and who is a prisoner would have the same relationship with let’s say a foster step-child or something that he’s raised that I might have or you might have with a natural child.

But that’s why I thought there is a reg here that permits the warden to make exceptions in unusual cases.

Now, why isn’t that good enough?

So that if the warden turns a person down, where that is the relationship, then that person could complain about it and bring a lawsuit rather than striking down the whole reg.

Deborah LaBelle:

The… the record in this case is that the warden had neither discretion or at least the wardens that testified felt they had neither discretion to allow minor siblings in and… or do they have any discretion whatsoever with regard to the permanent ban.

Antonin Scalia:

Of course, Ms. LaBelle, once you leap over the… the prior constitutional question, as Justice Breyer has and go immediately to Turner v. Safley, we are in the line-drawing business.

And it becomes a constitutional question, whether it is unreasonable to exclude an nephew or a niece or somebody who has this, is as close to the prisoner as a child might be.

Why do we want to get in this line-drawing?

Why… what is the problem here?

Is there any real risk that prisons are going to arbitrarily and unreasonably limit visitation?

Would… would any prison… or any person trying to manage a prison without… without a revolt arbitrarily cut off visitation?

It seems to me a problem in search of a solution.

Deborah LaBelle:

I think that, Your Honor, they did arbitrarily here, they denied all minor siblings–

Antonin Scalia:

Solution in search of a problem.

I’m sorry.

Deborah LaBelle:

–They denied… excuse me, Your Honor.

They denied all minor siblings coming in.

They restricted who can bring the child in to such an extent that there were… that children were no longer allowed to come in to visit their parents.

They denied all biological children.

Stephen G. Breyer:

What do you mean they couldn’t?

The children couldn’t visit… I’m now confused about the facts.

I have a reg in front of me, by the way, which says the warden may, quote, allow a single visit between a person and a prisoner and a person not on the approved visitor’s list as long as it’s in the best interests of the prisoner and there’s no threat to order and security.

Now, why is it that that reg doesn’t give the warden the power to deal with unusual cases?

Deborah LaBelle:

The testimony of the warden was if you were not on the… the visiting list, Your Honor, you could come in during the time that you were waiting to get cleared.

But if by policy you were prohibited from coming in, if you were a minor sibling–

Stephen G. Breyer:

I don’t understand.

Deborah LaBelle:

–The testimony of the warden was that if by policy you were prohibited, then there could be no exception to policy.

There could be–

Stephen G. Breyer:

He said there’s no exception, if, in fact, a prisoner has raised a 6-year old child just as it’s his own child, but, in fact, there’s no formal adoption paper.

So there’s testimony that he would never let that child in?

Deborah LaBelle:

–There’s testimony that… that there was no ability for wardens to make exceptions with regard to policy decisions.

If, in fact, the person had not yet been able to clear and be put on the visiting list, but they were allowed, those exceptions could be made, but, for example, the… the prisoner whose younger brother was begging to come in after their mother had died and this was his only relative, the warden testified she could not make an exception to that.

Stephen G. Breyer:

I’m not concerned… although I believe you also said that there were… their own children weren’t allowed in.

What’s the example of that?

Deborah LaBelle:

The example of that was actually that there was… some testimony with regard to Justice Ginsburg’s example with regard to the… the father of the child who was unwed could not… and who had custody of the child but was not the legal guardian could not bring the child in to visit.

There are many–

Stephen G. Breyer:

No… so, in other words, you have to be the legal guardian of the child if it’s not your child, in order to have a visit?

Deborah LaBelle:

–If you were not… no.

Even if it is your child, your biological child, you must be the legal guardian, if you are not married.

So that if you’re not married, you cannot bring… the parent can’t bring the child in to visit the other parent, unless you go through the full legal guardianship proceedings.

And–

Ruth Bader Ginsburg:

The relationship that counts is the relationship to the prisoner, not to the child?

Deborah LaBelle:

–Correct, Your Honor.

Ruth Bader Ginsburg:

And the unwed parent would not be related to the prisoner, but you have on that list, let’s assume we’re past the basic question and there is some constitutional right, you have on the list a person whose parental rights have been terminated, and you would allow that person a right that doesn’t exist outside the prison, in other words, once a parental relationship has been terminated, there is no visitation right, according in the larger society, but you would say that it’s arbitrary in the prison setting to deny that?

Deborah LaBelle:

I think… yes, Your Honor.

I think because it’s not a right to visit, you do have a right on the outside to that intimate association.

If… and here, I mean you’re not precluded from intimate association with your biological child and the parent, the legal parent, can make a decision can make a decision as to whether–

Ruth Bader Ginsburg:

Well, then it’s no right of yours, if… if you… if the legal parent wants to allow someone with no parental rights, but you’ve… as far as the law is concerned, as far as any right is concerned, a person who has… whose parental rights have been terminated is a stranger to the child.

And it’s one thing to talk about what would be reasonable for a prison to do.

But I don’t know how you get any right with respect to someone who has no right outside the prison?

Deborah LaBelle:

–I think the protection for intimate association on the outside is not limited to legal relationships.

In here are legal parents on the outside who are members of this class, and who were class representatives saying, listen, the adoption here was an open adoption.

We all agreed that this child, in the best interests of this child, that it should see it… his or her natural parent.

And I’m making a decision that it’s in the best interests of this child to come in and visit.

And it’s the prison saying… and I have to say the prison didn’t say there’s some reason for us to do this.

They said we never thought about it.

We really–

Stephen G. Breyer:

So this case… this case, in other words, it sounds to me from having listened to it and looked at it a little bit, it’s a kind of litigation problem, I mean, there’s a long litigation history here of contention.

Stephen G. Breyer:

And perhaps extreme positions.

But given that, is it up to us to say, could we say, look, on their face, these regs are okay, under Turner?

If they’re not… if they’re being applied in a way that makes really very little sense, let the individual who has this unusual situation of the, you know, adopted child or something like that, let him ask for the visit, let him ask for an exception to be made, if necessary, and then if that doesn’t happen, and I would imagine normally, if calm prevails, it would happen, but if it didn’t happen, then he could bring his case.

Or if there is such a person in this case, you could proceed with that person.

Deborah LaBelle:

–Your Honor, assuming the right that exists and we go to Turner–

Stephen G. Breyer:

Yes.

Deborah LaBelle:

–I think there has to be some reasonable justification for infringing on the right.

In the case of, for example, the biological children, the guardianship… which is not just one, Your Honor, but 20 percent of the women in prison have their kids in foster care or people who cannot bring them.

We’re not talking about one or two.

We’re talking about hundreds of people here.

To the extent that they have any reason, but what they said is we just didn’t think about it.

They didn’t exercise their expertise.

David H. Souter:

Ms. LaBelle, are you asking them to exercise their expertise on a subcategory of children basis?

Or are you saying as… is your real point something you mentioned a moment ago, that once they make a decision to allow child visitation, they’ve got to restrict it?

If they restrict it at all on what you call… I think you called a content-neutral basis.

And I believe you meant by that they can put a number on it, only X number of children in Y period of time or something like that, but they cannot… I thought you were saying… determine subcategories of children who will be privileged and others that will not be.

That would be one answer to Justice Breyer and one answer I guess to the problem that we’ve all got about how are we going to manage this litigation if… if we’ve got to do it on a case-by-case basis.

Is… is your basic position the so-called content-neutral position?

All you can regulate is number once you allow any in?

Deborah LaBelle:

Yes, because that was the concern articulated.

If, in fact… I suppose there could be one exception.

If in fact, there was some evidence of a… of a wild minor sibling smuggling ring and there was some basis to target certain individuals, they could do it.

But what they said–

David H. Souter:

Well, then you would say the burden would be on the… on the prison to say despite the number regulation, this one can’t get in as opposed to the burden on the prisoner saying despite your regulation, an exception ought to be made for me?

You’re switching the burden?

Deborah LaBelle:

–Correct, Your Honor.

David H. Souter:

All right.

Now, so–

William H. Rehnquist:

–What is your authority for… in cases from this Court, say, for the content neutral principle?

Deborah LaBelle:

I think that the… the authority is… is Turner itself, because what they said–

William H. Rehnquist:

Does it say something about being content-neutral?

Deborah LaBelle:

–No, but it did say what you have to do is compare the rationale for the regulation that infringes, you have to see if there’s a reasonable penological purpose, are there alternatives and look at the balancing.

Antonin Scalia:

Well, do you think that’s fair?

You think that’s fair?

I have children that want to visit me.

They are my children in… in a stable wedlock situation, they can’t visit, because we’ve adopted an absolute number of children and and some of my coprisoners whose nieces and nephews want to visit, they have been visiting, so I can’t see my kids?

Does that seem fair to you?

Deborah LaBelle:

The… the rules themselves, the time, place and manner restriction.

Antonin Scalia:

Well, you want an absolute number.

Kids are kids.

So since some of my coprisoners are seeing nieces and nephews, I can’t see my children.

There are just too many.

Deborah LaBelle:

I think that that wouldn’t occur, Your Honor.

Antonin Scalia:

It wouldn’t occur?

Deborah LaBelle:

Because, first if, in fact, you limited the number of children down to such a minuscule amount of minors that had no relationship with their concerns with–

Antonin Scalia:

Well, it would be anything under nine just on–

–You put me in prison, you got big troubles.

Deborah LaBelle:

–But they allow that amount, Your Honor.

What they said was we need to reduce volume by 10 to 15 percent.

And we had absolutely no problem with the time, place and manner restrictions it did so.

What they did by this sort of overbreadth and basically because they felt there were no rights at issue here, they reduced it over 50 percent.

There’s… I think that you have to look to see if there’s a reasonable relationship here.

David H. Souter:

Let me ask you–

Deborah LaBelle:

–and there’s not.

David H. Souter:

–I’m sorry.

I didn’t mean to cut you off.

Finish your–

Deborah LaBelle:

No, Your Honor.

Go ahead.

David H. Souter:

–How do you square your argument on content-neutral with respect to child visitation?

David H. Souter:

With other visitation that might be an issue, for example, one of the things that’s an issue here is the possible visitation of other prisoners.

Would you say that the answer to that is that once the prison allows any adult visitation, the only limitation it can place as a general matter is numbers, and, therefore, the prison would have to object on a specific basis with the burden to establish on a specific basis that the visitation of any prior prisoner would be deleterious?

Deborah LaBelle:

I think that the… what they do is, for adults, there’s a 10 limit there.

David H. Souter:

No, no, just as a threshold question, are you going to apply your… your content neutral-theory across the board to adults, as well as children?

Deborah LaBelle:

Yes, absent there being a rationale or a specific security concern, which is–

David H. Souter:

And it would be the burden of the prison to show that in a given case?

Deborah LaBelle:

–I think that if you’re doing a categorical restriction, it is their burden.

If they’re doing–

David H. Souter:

I thought you were saying the only categorical restriction you can make is visitors, nonvisitors.

When you say you can have visitors, the only further restriction is one of numbers given at least this prison’s rationale?

Is that correct?

Deborah LaBelle:

–No, I think that you can have individual requirements as many States do with regard to a rational basis to say someone who has been out of this prison for 6 months, we’re not going to allow you to come in, because it’s… there’s a rational basis.

David H. Souter:

Okay.

If you’re going to accept that kind of categorization as legitimate, what’s your basis for saying that in the case of child visitation, it’s got to be content-neutral?

Deborah LaBelle:

I think because–

David H. Souter:

Or are you merely quantifying?

Deborah LaBelle:

–I think that because there was absolutely no basis, the only concerns… I think because it was a different… a deference to the different concerns articulated, the concern with regard to minors was simply volume.

There was no articulation that any particular group of minors raised any specific concern.

David H. Souter:

So you’re… so you’re saying, look we will take their rationale at their word, and if we take it, this is the only limitation that they could put on?

Deborah LaBelle:

That’s correct, Your Honor.

David H. Souter:

Okay.

Stephen G. Breyer:

And the limitation by the way in–

Ruth Bader Ginsburg:

–But if you… but if you spread to other prisoners, then you’re going beyond the constitutional right that you’ve identified as intimate association.

I understand that for family.

But just a friend who is an ex-prisoner.

How does that come with intimate association?

Deborah LaBelle:

May I answer the question, Your Honor?

William H. Rehnquist:

You may answer the question briefly.

Deborah LaBelle:

I think that the general right there was both a general associational right that you have to companionships with loved ones as well as an equal protection argument.

William H. Rehnquist:

Thank you, Ms. LaBelle.

Deborah LaBelle:

Thank you, Your Honor.

William H. Rehnquist:

Mr. Casey, you have 4 minutes remaining.

Thomas L. Casey:

I would just like to clear up a couple of points initially.

This case is not about visits from lawyers or clergy.

It’s not about custody level.

Persons can be or prisoners can be in minimum custody level and still have these visitor restrictions.

So when Justice Kennedy referred to solitary confinement, Justice Breyer, excuse me, we’re not talking about that.

We’re just talking about visitation.

And Justice Ginsburg, I stand by my earlier statements about the nature of the arguments in the initial district court proceeding as it proceeded in the first court of appeals.

The issue of a distinction between noncontact and contact visits simply didn’t come up in that… in the… in those district court proceedings.

Ruth Bader Ginsburg:

And do I understand your position that you don’t get to any Turner against Safley question, because there’s simply no right to beginning with, no right that can be shown?

Thomas L. Casey:

That’s our initial position, yes.

The limitation to contact… or to noncontact visits is not a panacea.

Children still present problems of the… they have unique risks and burdens.

When a guard and a visitationer is watching a child, they’re distracted from watching some other visitation.

The Michigan prison system, most facilities with multicustody levels have one large room for visitation.

They have tables and chairs for the contact, along one wall, there will be vending machines and along another wall, there will be one or two of these temporary booths.

And noncontact prisoners are brought through the contact room to that booth.

Visitors for the noncontact prisoner are brought through the contact room.

There’s ample opportunity for exchange of contraband and visibility of other activity that’s going on in this one room.

With respect to the argument about content-neutral regulations regarding children, prison officials are entitled to make categorical decisions.

The decision here is that it’s better to permit the quality close visits based on a parent-child relationship, partly because of limitations on time as Justice Scalia alluded to, there were overcrowding problems before the regulations were put into effect.

All of the wardens testified after the regulations were put into effect, the conditions were noticeably better.

In closing, I would just like to emphasize, that the… the judgment of the corrections officials here was a valid exercise of their informed discretion regarding the conditions of confinements.

The courts should have deferred to that, this Court has recognized deferral to, deference to prison officials as an important factor.

And in summary the court of appeals should be reversed.

Stephen G. Breyer:

If you have a minute, I have one factual question?

Thomas L. Casey:

I would be happy to.

Stephen G. Breyer:

From the brief from the respondents, I just want this clarified, there are a certain number of prisoners who have families and they have children, but they aren’t legally married.

Now from the briefs, I had the impression that visits are allowed by those children, even though they’re not legally married, unless parental rights have been terminated.

Stephen G. Breyer:

But from respondents’ argument, I had the impression that you could not have a visit from such a child, period, unless you went through some formal adoption procedure.

Which is it?

Thomas L. Casey:

The… a child of a prisoner is entitled to visit if they’re brought by a member of the immediate family or a legal guardian.

Stephen G. Breyer:

Whether they’re married or not married?

Thomas L. Casey:

That’s correct.

Stephen G. Breyer:

Thank you.

William H. Rehnquist:

Thank you, Mr. Casey.

The case is submitted.