Turner v. Safley

PETITIONER:William R. Turner, et al.
RESPONDENT:Leonard Safley, et al.
LOCATION: Renz Prison

DOCKET NO.: 85-1384
DECIDED BY: Rehnquist Court (1986-1987)
LOWER COURT: United States Court of Appeals for the Eighth Circuit

CITATION: 482 US 78 (1987)
ARGUED: Jan 13, 1987
DECIDED: Jun 01, 1987
GRANTED: May 27, 1986

ADVOCATES:
Floyd R. Finch, Jr. – on behalf of the Respondent
Henry Thomas Herschel – on behalf of the Petitioners

Facts of the case

In the late 1970s, Renz Correctional Institution converted to a “complex prison”. Generally, female prisoners at Renz were medium and maximum security level offenders, while most male inmates were minimum security offenders. Leonard Safley was a male inmate at Renz, and P.J. Watson was a female inmate. They met at Renz, where they became romantically involved; Watson was then transferred to Ozark Correctional Center because of this relationship. Prison authorities rebuffed all of Safley’s attempts to directly contact Watson.

A Missouri Division of Corrections regulation permitted correspondence between inmates who were immediate family members, but correspondence between inmates who were not family members was only allowed if 1) it related to legal matters or 2) at the discretion of the classification/treatment team of both inmates. Another regulation only permitted inmates to marry with the permission of the prison superintendent, and specified that permission should only be given when there was a compelling reason to do so.

The district court certified plaintiffs as a class including inmates at Renz who desired to correspond with inmates at other prison facilities. This class also included persons who wished to marry inmates at Missouri correctional facilities and whose right to marry had been allegedly violated by the DoC. Plaintiffs filed an action against Renz’s Superintendent William Turner and others for injunctive relief and damages. The district court applied strict scrutiny to both DoC restrictions. It held that the restriction on correspondence was overly broad and capriciously applied, and that the marriage restriction violated inmates’ constitutional right to marry. The United States Court of Appeals, Eighth Circuit, affirmed, further holding that neither restriction was the narrowest means of addressing the DoC’s security concerns.

Question

1. Was the Missouri Department of Corrections’ restriction limiting correspondence between inmates a violation of those prisoners’ First Amendment rights?

2. Was the Missouri Department of Corrections’ restriction limiting prisoners’ ability to marry a violation of prisoners’ constitutional right to marry?

William H. Rehnquist:

We will hear argument first this morning in No. 85-1384, William R. Turner v. Leonard Safley.

Mr. Herschel, you may proceed whenever you’re ready.

Henry Thomas Herschel:

Mr. Chief Justice, and may it please the Court:

Initially, I’m going to go through a brief background of the case and the facts.

I will then proceed to the correspondence issue, and then discuss the marriage issue.

At present, unless there’s questions concerning the findings of facts and conclusions of law, I’ll leave those for the argument on the briefs.

The issue in this case is prisons; specifically, about the level of deference that is going to be given to prison officials to act upon… to act upon legitimate security… their legitimate security interests concerning the regulation of inmate-to-inmate correspondence and inmate marriages.

This is a class action that was brought pursuant to 42 U.S.C. 1983, which challenged the Missouri Department of Corrections regulations that… regulations concerning the inmate-to-inmate correspondence and inmate marriage problems.

The District Court and… the District Court found that those regulations were far more restrictive than necessary… for necessariness, and held them unconstitutional–

This holding was affirmed by the Eighth Circuit Court of Appeals.

The visit… the challenges to the Missouri visitation regulation, and a damage issue, were found in favor of the defendants, and were not appealed.

The Renz Correctional Center is a complex prison.

What I mean to… what I mean to say when I say a complex prison is that it’s a co-correctional, multilevel security institution.

At the Renz Correctional Center, at the time of this trial, we had male and female inmates; we had female maximum security inmates and medium security inmates; and male minimum security inmates.

The… the Renz Correctional Center was also used to hide inmates within the system.

For example, if somebody was concerned about their life or something along those lines, the Renz Center would be used to hide them, because the minimum security men were located there.

At the present time, we have undergone some changes.

The Renz Correctional Center medium security women have been moved to another institution, along with a number of the maximum security.

Eventually there will be a maximum security unit for women at another location, and we will move the rest of the women who are now housed at Renz to that institution.

However, Renz will always be a place where we will have some women for medical care and for special security problems.

But they’ll never have the number of women that it had at the time of this trial, which was approximately 250.

The regulations at issue are as follows.

The correspondence issue in effect at the… at that time did not permit correspondence between inmates in different institutions, whether it was in-state or out-of-state, unless the adjustment classification team, which was a team of case workers who reviewed their files before they permitted anyone to correspond, to correspond with any other inmate in another institution, unless it was in their best interests.

In addition, they were permitted to correspond with relatives who are also incarcerated within… within the system.

The marriage regulation did not prohibit… did not permit the marriage of… the marriage of inmates unless the superintendent determined there was a compelling reason.

In other words, the burden was on the inmate to come forward to the superintendent and present him with a compelling reason.

The Eighth Circuit Court of Appeals… and I believe the evidence would sustain that… is that basically it was a rather narrow interpretation; it was only going to be on the basis that there was a child involved, or through a previous relationship before they were incarcerated that the prison official or the superintendent would permit the marriage while it was… while they were in… in prison.

The appellant… the appellants in this case request… or the petitioner in this case requests the court permit deference to the prison officials, and that the court require that inmates prove that the prison officials have exaggerated their response to the penological interest before they determine that the regulation is overbroad or that it’s unconstitutional.

The respondents, on the other hand, would burden the prison official to demonstrate a pattern of security concerns before the regulation could be upheld.

Then there would be a determination of whether the exercise of the right involved, the inmate exercise, is in someway inherently dangerous, or presumptively dangerous.

Henry Thomas Herschel:

And then the court would pick between competing reasonable alternatives, or least restrictive alternatives, to determine which alternative achieved this goal.

There is no debate, even… I don’t believe there’s any debate among the parties… that even a core right that the respondents have argued deserves a strict scrutiny, can be restricted in some manner by the fact of incarceration.

The question is, to what extent can we restrict the rights of inmates while they are incarcerated.

This Court, in previous First Amendment cases and prison cases, has used an analysis… I’m using, to be precise, Procunier v. Martinez… has used an analysis which presented the least restrictive alternative… which presented the rational relation test.

By this examination, the Court required that the decision of the correctional official be demonstrated to be an exaggeration, an exaggerated response to a legitimate penological interest demonstrated by substantial evidence on the record.

In determining whether the response has been exaggerated, this Court has examined a number of… a number of factors.

They first examined… identified the penological interest involved, whether it was a security interest, rehabilitation of inmates, whether it was deterrence of crime or the maintenance of internal order, the Court would always identify.

In the present case, the petitioners presented the… the security interest as the predominant interest in upholding of the… in the upholding of our regulation between inmate-and-inmate correspondence.

We also had some rehabilitation interest, but predominantly it was a security interest.

We decided that this was an important issue, because we feel that the control of communication between inmates in institutions is critical to our control of not only inmate… inmate violence, but inmate gang control and various other… various other security interests that we would have in isolating inmates between institutions in Missouri.

For example, in Missouri, we do have 13 institutions, and we have the ability to move them around.

The second interest, and the most interest that this Court has examined, is whether the… the regulation itself was content-neutral.

And in the present case, this regulation is content-neutral.

Once the regulation is approved… once the inmate is approved, and this was a prior approval, the inmate was then permitted to correspond.

We did not in any way censor any of his correspondence, or in any way try to… try to confine him to what he could write about the institution in anyway.

Finally, the regulation that Court has always… has examined as a relevant factor, whether alternative means of communication between… alternative ways of achieving the communication.

In this present situation, as to that individual inmate, if an inmate is prohibited from corresponding with another inmate, there will be no alternative means of communicating with that particular inmate.

However, there will be alternative means of communication.

Thurgood Marshall:

You don’t really mean that, do you?

Couldn’t I write a letter to my mother and tell her to send it to Joe?

Henry Thomas Herschel:

Yes.

Thurgood Marshall:

How would you stop that?

Henry Thomas Herschel:

We… as there is evidence at the trial, we stopped it by attempting to return the mail after we identified that this was a prison letter between the civilian and the insider.

Thurgood Marshall:

You censor the letter?

Henry Thomas Herschel:

We would not censor the letter.

We return the letter.

Thurgood Marshall:

What was in it?

Henry Thomas Herschel:

We were permitted by regulations to scan mail coming into our institutions, and we would scan the mail.

Thurgood Marshall:

And there’s a difference between scanning and looking at it?

Henry Thomas Herschel:

No, no difference between scanning and looking at it.

Henry Thomas Herschel:

But we’d have to look at it to determine whether or not we were… they were circumventing the mail rule.

Because the whole point of this was to control the correspondence between inmates.

And if we couldn’t control that, then they could always get around us.

Thurgood Marshall:

Isn’t the whole xxx?

Henry Thomas Herschel:

We would… we would scan it whenever we felt there was a problem.

Frankly, the number of letters coming in to the institutions prohibit us from scanning every piece of mail, just as this regulation makes it almost impossible… makes it impossible for us to scan all the letters between the individual institutions.

At the present time we are under a regulation–

Thurgood Marshall:

You only scan those you want to, those who are under your suspicion?

Henry Thomas Herschel:

–The present case, under probable cause, yes.

Thurgood Marshall:

That’s right.

And where do you get that right?

Henry Thomas Herschel:

By the regulation.

We determine that… well, you mean, where do we determine whether there’s probable case?

Thurgood Marshall:

0 xxx.

Henry Thomas Herschel:

All right.

Well, we determine that by either determining through the informant system in the prison, determining whether something seemed irregular about the letter itself, from the envelope, determining whether or not we have identified a person as a gang member.

Those kind of things are the things that we assess before you would scan a letter to determine whether or not you need to review it.

At the present time, we have the right, as I said, to examine the letters and review the mail, but we found that it’s very difficult because for every message we catch, or every indication of a problem we catch, we’re concerned that we’re missing some.

For example, the Texas people indicated that they have problem with codes.

We–

Lewis F. Powell, Jr.:

May I ask this question along the lines of your argument?

Does the record show that in fact any mail was being permitted between the inmates?

Henry Thomas Herschel:

–Yes.

Lewis F. Powell, Jr.:

Does it indicate the extent of that mail that was approved?

Henry Thomas Herschel:

Okay, the chief–

Lewis F. Powell, Jr.:

Does it indicate whether there was a dozen letters approved in a week, or a dozen in a year?

Henry Thomas Herschel:

–His testimony… Mr. Engelbrecht’s testimony was that 25 percent of requests were approved.

Lewis F. Powell, Jr.:

Were approved?

Henry Thomas Herschel:

Were approved.

He said that of that number, or of that group, he could review those letters in a period of about an hour a day.

Henry Thomas Herschel:

What we argue… and that was used in the Circuit Court opinion, the Eighth Circuit Court opinion, to say, well this was… you could easily take care of reviewing the mail.

Actually, our testimony was that we could review this mail, but if you permitted every inmate in the… in all the institutions to correspond, we would find that very difficult to handle, and in fact, we have found some difficulty in it.

John Paul Stevens:

Mr. Herschel, does the record tell us what the volume of this inmate-to-inmate mail is?

Henry Thomas Herschel:

We could only speculate on what it would be at that time, since we had never–

John Paul Stevens:

But it tell us what… what it has been at any point in time, attempts to mail?

Henry Thomas Herschel:

–It only tells you that of the mail that was approved by the… by the individual team classification groups, that for example, at Renz, with a population of 350 inmates, that it took them about an hour to approve the mail that had been approved.

Now, not every inmate–

John Paul Stevens:

An hour everyday?

Or an hour a week?

Or what?

Henry Thomas Herschel:

–An hour everyday.

John Paul Stevens:

An hour everyday.

So that must be… that doesn’t tell us how many letters there were–

Henry Thomas Herschel:

No.

John Paul Stevens:

–whether they read it closely or scan it or what?

Henry Thomas Herschel:

No, it doesn’t tell you.

He reviewed it on the basis of, you know, when they found something suspicious, or they found a letter that was going to an inmate that was not on the approval list, he would examine it to determine whether or not it was… whether or not there was–

John Paul Stevens:

One of the things that puzzles me about the case is, I can’t get a feel for how much work is really involved here.

I know in service during the war they could go through an awful lot of mail in a fairly brief period of time when they were looking for important stuff.

But they really don’t know what the volume is.

Henry Thomas Herschel:

–The difficulty with our position in the case is, since we had never permitted it, we didn’t have an idea except to say that… you know, except that we had 8,000 inmates, and we figured that they would write.

And that’s the only kind of–

John Paul Stevens:

But they might not be writing to inmates in other institutions, regularly, at least.

I suppose they primarily write to their family and so forth.

Henry Thomas Herschel:

–That’s the only think we could speculate on at that time.

Now, Kansas… Sally Halford… Chandler of Kansas testified that they had an open correspondence program, and that they could not review all the mail; and they did not review all the mail, because they felt they couldn’t handle it.

And I believe that’s a fair assessment of her testimony.

John Paul Stevens:

Does her testimony tell us how much there was in Kansas?

Henry Thomas Herschel:

No.

And in dealing with an alternative means of communication, we would, as I said, prohibit–

John Paul Stevens:

Let me just ask one other question.

In your principal argument, why you must just say, no mail, unless you get advance permission, is, it’d be too much trouble to review the volume that would take place?

Henry Thomas Herschel:

–It’s too much trouble not because we couldn’t hire the people to do it, because that’s… you can always hire more people.

I mean, it takes your resources away from something else, but you can hire more people.

Our problem is that we feel that the difficulty in reviewing each piece of mail, in light of possible codes, in light of the increasing gang problem in the State of Missouri, would leave us open to having mistakes being made that would result in tragedy.

In this situation, if we catch a piece of mail, we solved the problem.

But every one piece of mail we catch, we may miss one.

And if we miss one, we have concerted activity–

John Paul Stevens:

But you have precisely the same risk that Justice Marshall identified, don’t you, in the mail… sending it to a civilian who in turn would pass the same message along to the inmate in the other institution?

Henry Thomas Herschel:

–You’d have a better chance–

John Paul Stevens:

And the only way to catch that is to go through all mail, isn’t it?

Henry Thomas Herschel:

–Well, it’s a little bit different in the sense that you can begin to identify, by the patterns of letters coming in, what letters are going in to the same inmate from the same civilian.

For example, if a civilian starts to write five or six different inmates, you begin to get the idea that maybe they’re using her as a conduit or being used as a conduit.

That situation is slightly more specific, although a problem.

I mean, we… this may not be–

John Paul Stevens:

You think that’s easier to handle than just looking at the direct inmate correspondence?

Henry Thomas Herschel:

–Yes, we believe it be easier, because we believe it be less… basically, most civilians won’t get involved in that kind of a thing.

I mean, we’re… we’re basically… you’re asking a civilian there to commit an act in violation of… in violation of a regulation, in violation… that could conceivably take away her privileges or his privileges in dealing with the prison system ever again.

I mean, if you violate a regulation as a civilian, you don’t have a right back in prison.

John Paul Stevens:

Doesn’t most of your danger of some kind of illegal activity between an inmate… two inmates, one in one institution and one in another, planning some kind of escape or something, wouldn’t they almost always have to use a third party to help them with their plans?

Henry Thomas Herschel:

Except it’s so much easier using the third… it’s so much easier–

John Paul Stevens:

And if there’s a third party involved, they just write to the third party, who in turns writes to them.

I mean, I just… I have trouble–

Henry Thomas Herschel:

–They’re going to have to get a third person involved in the thing, in the scheme.

And it’s going to have be a civilian.

And there’s an assumption… there would be an assumption there, I would assume that most civilians would not necessarily get involved in that thing; and that if you do have a group of civilians who would get–

John Paul Stevens:

–Yes, but if you have a potential escape with a third person civilian, obviously, this is not an honorable civilian.

Henry Thomas Herschel:

–Correct.

John Paul Stevens:

By hypothesis.

Henry Thomas Herschel:

Correct.

Henry Thomas Herschel:

But the system… the system is not perfect.

We cannot develop a perfect system without stopping all communication between outsiders and insiders.

Antonin Scalia:

You can make it harder, is what you’re saying, isn’t it?

Henry Thomas Herschel:

Right, we’re making it as difficult as possible.

Antonin Scalia:

You can’t stop it entirely, but you can make it harder.

Henry Thomas Herschel:

Right.

Antonin Scalia:

So they have to… and moreover, it isn’t just escape you’re worried about, is it?

You’re also worried about prison gangs.

Henry Thomas Herschel:

Right.

Antonin Scalia:

Assassinations in one prison being directed from another.

Henry Thomas Herschel:

And very importantly–

Antonin Scalia:

And that doesn’t require a civilian at all, does it?

Henry Thomas Herschel:

–No.

What we’re also very concerned about is the concerted action… for example, the court in the Eight Circuit said, you’re talking about correspondence that is not as presumptively dangerous as the assembly discussed in Jones v. North Carolina, or the solicitation.

And they said, it wasn’t as dangerous because you have separated prisons.

Our argument is that it’s more dangerous because we have separated prisons.

The danger of the assembly of inmates in Jones versus North Carolina was not that they assembled but because they could perform and have concerted action; that they in some way could cause a disturbance that we could not handle.

Permitting inmate-to-inmate correspondence between institutions permit them now to have concerted action in more than one institution.

And we would then have to react, stretch our resources, into more than one place.

Now, granted, we haven’t had a situation like that.

But we are predicting, we are attempting to anticipate problems.

If we don’t anticipate problems in a prison situation, and react to a problem in a prison situation, we are not going to successfully take care of it.

We are going to have tragedy.

And that’s how prison officials… that’s how prison officials deal with it.

If we go to a least restrictive alternative analysis–

Antonin Scalia:

Your mail rules aren’t just intended to decrease the volume.

They do decrease the volume of mail that you have to review–

Henry Thomas Herschel:

–Yes.

Antonin Scalia:

–but they also decrease what you might say the risk of the mail that has to be reviewed.

That is, even though it may only be 25 percent, the amount of mail, it’s much less than 25 percent the amount of attention the amount of attention you have to devote to that mail, isn’t that so, because it’s not coming from the most dangerous people?

Henry Thomas Herschel:

We hope with our–

Antonin Scalia:

Well, that’s the objective of the system, isn’t it?

Henry Thomas Herschel:

–Right.

It’s exactly–

Antonin Scalia:

So it isn’t just a reduction in volume.

It also makes it easier for you to review what reduced volume is produced?

Henry Thomas Herschel:

–And hopefully we have chosen the people who are going to be the least risk.

And the difficulty with having free communication is that basically we are going to have to deal with bad people or people who are dangerous to us, but people who are going to attempt to get around any sort of inspection.

Sandra Day O’Connor:

Mr. Herschel, is the same correspondence rule applied in all of Missouri’s prisons?

Henry Thomas Herschel:

When you say, correspondence–

Sandra Day O’Connor:

Is the same rule applied in all of Missouri’s prisons as in the Renz institution?

Henry Thomas Herschel:

–At this time, the same… the best interest standard was applied.

Now, certain institutions permitted correspondence more regularly.

Renz was a minimum perimeter prison with maximum security inmates and minimum security inmates in it, whereas the Missouri State Penitentiary–

Sandra Day O’Connor:

But the general regulation–

Henry Thomas Herschel:

–Was the same.

Sandra Day O’Connor:

–applied to all.

It was administered differently–

Henry Thomas Herschel:

Right.

Sandra Day O’Connor:

–at the Renz institution; is that it?

More restrictively?

Henry Thomas Herschel:

More restrictively.

Sandra Day O’Connor:

Do you know what the Federal correspondence rule is for inmates-to-inmates?

Henry Thomas Herschel:

It’s inmates-to-inmates, it’s prohibited correspondence unless… and they meet three or four different criteria, and I’ve forgotten the exact criteria.

But I remember reading it last night, and I just can’t think of the exact words.

But it’s based on whether… there are certain penological statements of benefit that would result from the correspondence between the inmates.

Thurgood Marshall:

Mr. Herschel, could you get to the merit point for a minute?

Henry Thomas Herschel:

Yes.

Thurgood Marshall:

There are two rules involved.

Which one is before us?

Henry Thomas Herschel:

Before you would be the December 1st, 1983 one, the one that was in effect at trial.

That rule–

Thurgood Marshall:

Is that the second one?

Henry Thomas Herschel:

–That was the second one.

I believe that was the one in front of you, the one the court struck down as being overly restrictive.

Thurgood Marshall:

And that’s the one that’s before us?

Henry Thomas Herschel:

And I believe… and that is my… after… I don’t believe the other one is before you, because the only issue there would have been damages, that he somehow exceeded his authority and he found no damages against us.

I mean, he found us to have acted in good faith, or at least arguably in good faith.

Antonin Scalia:

What is the content of that rule?

You described that rule in your opening remarks as one that prevented marriages between inmates… inmates.

Is that its limitation, or does it–

Henry Thomas Herschel:

No.

Inmate marriages–

Antonin Scalia:

–Oh.

Henry Thomas Herschel:

–I wasn’t clear on that.

Although the Eighth Circuit found that the evidence showed that it was only used against inmates, its… its stretch was toward everybody.

It could affect civilians, and would affect civilians.

It was not intended to not affect civilians.

I don’t think–

William H. Rehnquist:

Well, not two civilians who wanted to get married?

Henry Thomas Herschel:

–Well, of course not.

Civilians who wanted to come in marry inmates.

That would be a little beyond our–

Byron R. White:

Couldn’t we take it as the Eighth Circuit construed it?

Henry Thomas Herschel:

–I would say that… the issue before the Eighth Circuit was inmate-to-inmate marriages.

But in my brief, I point out that it did have… it could conceivably… it could have been applied to civilians.

And so I didn’t want to mislead anybody on it.

Byron R. White:

Well, could I ask, have your rules been changed to conform to this judgment?

Henry Thomas Herschel:

Yes.

We were under order to negotiate or submit separate rules.

Byron R. White:

There was no stay or anything?

Henry Thomas Herschel:

There was an initial stay filed concerning when the initial order came down.

We then negotiated the order.

The court place–

Byron R. White:

So the rules now in effect aren’t the rules that were invalidated?

Henry Thomas Herschel:

–Right.

We’re working under the new–

Byron R. White:

Well, why isn’t the case moot?

Henry Thomas Herschel:

–Okay.

The case isn’t moot because given the opportunity, we would go back to the other rule if–

Byron R. White:

So you operated… you put them in under compulsion?

Henry Thomas Herschel:

–We put them in under compulsion, and on the basis of administrative… well, there were some tactical concerns for our administration of our prisons.

Because this was our first regulation ever struck down.

And we were… we had some administrative problems that we felt would cause us to have more difficulty later in the implementation than to just appeal it and fight it.

We were under compulsion.

We would go back immediately to prior approval.

Sandra Day O’Connor:

What is the marriage rule now in effect?

Henry Thomas Herschel:

We basically, unless the… we can… we have a right to counsel inmates.

The superintendent can counsel them not to get married.

But we cannot stop the marriage, unless the ceremony would in some way interfere with the security of the institution.

Sandra Day O’Connor:

You have… you take the position that you can reasonable time, place and manner restrictions on any marriage ceremony.

Henry Thomas Herschel:

Thirty days… right, on the ceremony.

On the ceremony.

We couldn’t stop the decision itself.

William H. Rehnquist:

But now that’s the rule that you put in under compulsion, isn’t it?

Henry Thomas Herschel:

Right.

The rule before was that we could actually stop a person from getting… from making the decision to get married.

And if I might, since we’re on the subject, I might go into that a little bit.

Lewis F. Powell, Jr.:

But before you move to that, I’m looking at some of the findings of fact by the District Court.

They’re not very favorable to you.

Henry Thomas Herschel:

No, they’re not.

Lewis F. Powell, Jr.:

And they were not found to be clearly erroneous by the Court of Appeals.

The one I want to ask you about is No. 7 on page 821.

I think I can… it’s just a couple of sentences:

The Renz rule against inmate-to-inmate correspondence is enforced without a determination that the security or order of Renz, or the rehabilitation of the inmates, would be harmed.

Henry Thomas Herschel:

Okay.

Lewis F. Powell, Jr.:

What do you say to that finding of fact?

In other words, the indication is that the courts below concluded that the rules were enforced without any reason whatever.

Henry Thomas Herschel:

Well, the court found it.

We contended that we did have a security reason for it.

That’s one of the reasons we have challenged them as clearly erroneous.

We believe it came from a misconception of the law, although this one wouldn’t have come from it because it was a strict finding of fact.

You’re in a difficult position when you take findings of fact.

I mean, he found that we did not do the kind of inquiry that he expected us to do.

William H. Rehnquist:

Is he asking… I read that as requiring a case-by-case inquiry.

Henry Thomas Herschel:

And in fact, the testimony was, we did it.

I think the sticking point with the District Court is that they didn’t refer to the file each time.

I mean, we explained that the theory was that you go to the file and talk to the–

William H. Rehnquist:

But if as a matter of law you’re not required to make a case-by-case determination to apply those… this finding of fact is meaningless.

Henry Thomas Herschel:

–If we’re not required to do that.

Now, we felt at the District Court level, that that’s what we intended to do.

And they did it by not necessarily reference to the file everytime, but they tried to make a case-by-case basis, because that’s the way the system would work better.

I would agree that this was an incorrect… that it was… we weren’t required to do that under our… under constitutional law at this point.

Thurgood Marshall:

Mr. Herschel, how could a marriage hurt the State of Missouri?

Henry Thomas Herschel:

Could hurt the State of Missouri?

Thurgood Marshall:

Yes.

What harm is there in marriage of two inmates?

Henry Thomas Herschel:

There is no harm in marriage unless it affects a fundamental interest, a legitimate penological interest–

Thurgood Marshall:

Like what?

Henry Thomas Herschel:

–like for example security.

Henry Thomas Herschel:

There is evidence–

Thurgood Marshall:

How would it affect security?

Henry Thomas Herschel:

–Okay.

Security in prison.

You’re dealing with a prison here.

It’s a kind of unreal world.

You’re dealing with people who do not develop relationships; who have had histories of abuse, especially in the women’s prison; and have had usually abusive situation with men.

The situation is that the fact that they will get married develops love triangles, develop… develop the sorts of–

Thurgood Marshall:

Well, they won’t live together.

Henry Thomas Herschel:

–The competing… the competing affection… the whole point that most of these people meet, from, say Missouri State Penitentiary and at Renz, which are 30 miles distant.

And that doesn’t mean that they don’t live together.

But somebody else can still want to correspond with the same woman.

Then we have an extra problem over at MSP to keep these people controlled.

Or, for example, the woman may change her mind.

When a woman would, for example, say she was going to marry one, decides she’s going to marry another man, we then have a problem between those two men.

The decision to get married in this situation, granted, is a decision that’s done in the abstract.

Because all the other instances of marriage are not permitted, or not permitted, but are restricted, really, by the fact of incarceration; the family decisions.

Harry A. Blackmun:

Mr. Herschel, this is a collateral question: Do you permit conjugal visits?

Henry Thomas Herschel:

No.

We permit contact visits.

Not between inmates, but contact visits between civilians and inmates.

At Renz, we permit contact visits.

Did I answer your question?

Thurgood Marshall:

I heard what you said.

[Laughter]

Henry Thomas Herschel:

All right, let me explain it this other way.

In Zablocki v. Redhail, we had… the decision was that you had… a decision to be married was an important right and a fundamental right.

And that was because all the other instances of marriage had been… were permitted, and it seemed… it seemed silly not to permit the decision itself, or protect the decision itself.

In this situation, you have a mirror… the mirror image of it.

In this situation, we will… we have to restrict by the fact of incarceration most of he instances of marriage; and that fact that they can’t cohabitate; the fact that their decisions about marriages are changed.

Henry Thomas Herschel:

All we want to restrict in the decision to be married is, if it affects our security interest or if it affects our rehabilitation interests.

However, the District Court did not accept our rehabilitative interest in this.

We still believe that we can have a fundamentally good impact on women by, at times, restricting their decision to get married in the Renz Correctional Center.

And we’re not dealing with the Missouri State Penitentiary or any other place.

We’re dealing with the Renz Correctional Center, because that was at issue, although the regulation would have… systemwide.

But the testimony was about Mr. Turner’s decisions.

He felt that he was assisting women to gain self-initiative because they were in a particularly special condition.

They were from abused situations.

They lacked education in most cases.

And that we acknowledged that they had had a derogatory… I mean, that they had had a life that was a result of a sexist existence.

And that was what he was attempting to recognize, not that he was attempting to be sexist in his approach.

Now the court found–

Harry A. Blackmun:

But if this were an all-male prison, you’d still be making the same argument here, would you not?

Henry Thomas Herschel:

–We would be making the same… we probably wouldn’t… it’s hard to say… to decide whether or not Mr. Turner would have said the same thing about men.

Because he might have had men in different situations.

But women who are in prison are different–

Harry A. Blackmun:

But your rules apply across the board, don’t they?

Henry Thomas Herschel:

–And I tried… I hope I didn’t make that clear… it be… be the same, it’s clear.

And we would… we would feel that we could stop a man’s decision to be married on the same basis, that it affected the security interests, whether… in that situation, it might be a scam.

It might be a setup to set some sort of a deal up between them, even with a civilian, on a drug scheme to get money into the prison.

And because a woman… a married woman–

William H. Rehnquist:

Mr. Herschel, your time has expired.

Henry Thomas Herschel:

–Okay, thank you very much.

William H. Rehnquist:

We’ll hear now from you, Mr. Finch.

Floyd R. Finch, Jr.:

Mr. Chief Justice, and may it please the Court:

What we have in this case today involves the prison’s denial of a recognized fundamental right that at least applies to the Free World which is not inconsistent with incarceration.

Both marriage and correspondence were denied at Renz Correctional Center under a vague, best interests standard.

If the Court reverses this case outright, then effectively what happens is that Mr. Turner and the officials at Renz Correctional Center, who arrogate to themselves the right to decide which of their charges will be married, and who can write letters to each other, will effectively have no review, no judicial review, of their conduct.

They will be effectively the final arbiters of these important decisions that are well recognized in the jurisprudence of this country.

I think it’s important to note that we have here a prison administration at Renz with a history of abuse of the discretion that it’s been given.

Floyd R. Finch, Jr.:

As the court below pointed out–

Antonin Scalia:

What is that important?

Floyd R. Finch, Jr.:

–Because, Justice Scalia, in this particular case we have one institution that was violating the department-wide rules.

Antonin Scalia:

I mean, the rules are good or bad.

It’s a different case if you’re bringing a suit about their abuse of discretion.

It seems to me the rules are good or bad.

Floyd R. Finch, Jr.:

Well, in fact, Your Honor–

Antonin Scalia:

I don’t see what relevance it has that this… that they may have abused discretion in the past.

I thought it was common practice to place conditions upon parolees, for example, that they not maintain contact with other convicted felons during the term of their parole.

Is that not a fairly common condition upon parole?

Floyd R. Finch, Jr.:

–Yes, sir, I think that is.

Antonin Scalia:

Well, now, if that can be placed on a parolee, why is correspondence with other convicted criminals while he’s in the prison so clearly a violation of a fundamental right?

Floyd R. Finch, Jr.:

Well, Justice Scalia, I don’t know, I’m not aware, of any Supreme Court case recognizing that as an appropriate decision that will stand up.

So this is the first time that this Court will have an opportunity to rule on the decisions of two persons to remain in contact, either inmates or parolees.

Antonin Scalia:

So you would agree, then, that agreeing with you on this would cast doubt on the validity of restrictions upon parolees being in contact with convicted felons?

Floyd R. Finch, Jr.:

Yes, sir.

To answer your earlier question, sir, about why the facts of this particular case are important, we had here a prison administrator who was violating the rules of the Department of Corrections.

He had his own little fiefdom.

William H. Rehnquist:

That’s not the basis on which the Court of Appeals gave you relief, is it?

They said that the regulations were bad on their face.

Floyd R. Finch, Jr.:

Yes, sir.

William H. Rehnquist:

So what’s the fact that he may have violated his own internal regulations got to do with the issues that are before us?

Floyd R. Finch, Jr.:

The State is arguing that the entire findings of fact of the District Court should be thrown out because the prison administrator should have discretion.

And the Chief Justice’s question about whether the factual findings of the court below are even relevant, I’d point out that what happened, and the ability of this particular prison administrator to exercise his discretion, is relevant to the decision of this Court.

If you’ve got somebody who’s violating his own rules, who in this case actually was violating the Procunier v. Martinez case by stopping the correspondence of inmates with outsiders, totally innocent correspondence, then you’ve got someone who I contend cannot be trusted to enforce the rules fairly.

William H. Rehnquist:

Well, so you say this case comes up in a totally different posture than identical regulations from, say, Kansas, because there you might have had an administrator who didn’t violate his own regulations?

Floyd R. Finch, Jr.:

Yes, sir.

William H. Rehnquist:

The Eight Circuit certainly didn’t treat it that way.

Floyd R. Finch, Jr.:

Well, it was argued that… those points were argued to them as well, sir.

You see, there was a finding… excuse me, there was a conclusion of law by the court below that the regulations were arbitrarily and capriciously applied here, and that finding was not appealed.

Antonin Scalia:

You mean there’s no such thing as good or bad regulations in and of themselves.

You really have to–

Floyd R. Finch, Jr.:

No, sir, I’m not… I’m sorry, sir, I’m not arguing that at all.

What I am arguing is that when you look at the application of the rules in this case, it’s a reason not to trust this administrator with that much discretion.

Antonin Scalia:

–Well, but what if the State agrees to replace the administrator?

Do we know that they’re going to have the same administrator?

Floyd R. Finch, Jr.:

No, we don’t.

And we don’t know that we’re going to have the same problem.

Justice Scalia–

Antonin Scalia:

Did… was the lower court’s determination limited to this rule as applied by this administrator?

Floyd R. Finch, Jr.:

–No, sir, it was not.

Antonin Scalia:

Did it say that the State could adopt the rules as long as it put in a new administrator, or when it got a new administrator?

Floyd R. Finch, Jr.:

No, sir, it was not.

Antonin Scalia:

Then, evidently, it didn’t rule what you said it ruled.

The administrator seems to have nothing to do with its decision.

Floyd R. Finch, Jr.:

Well, the Court of Appeals focussed on the rule itself.

But my only point was that the District Court also had a separate finding, a conclusion of law, which was not appealed that this particular administrator acted arbitrarily.

Thurgood Marshall:

But do you need that to win?

Floyd R. Finch, Jr.:

No, sir.

Thurgood Marshall:

Then why are you arguing it?

Floyd R. Finch, Jr.:

In response to questions, Justice Marshall.

Thurgood Marshall:

No, I think you started this.

Floyd R. Finch, Jr.:

Well, I made a mistake then.

In this particular case, we found that there was very little evidence to support the arguments of the State of Missouri.

In regard to correspondence, for example, there was a contention made that we promulgated this rule because of security.

But in fact the evidence at trial was that none of the letters which were stopped were stopped for a reason having anything to do with security.

In fact, when inmates asked to correspond, there was no discussion, no going back and reviewing the file about whether or not this particular inmate might pose a threat to the inmate he’s corresponding with or someone else.

The flat rule that was stated in the Renz Correctional Center handbook is: Inmates may not correspond with anybody who is not a family member.

So we had in this case a flat denial of correspondence between particular inmates who had no desire to correspond about anything other than simple friendship.

In fact, Justice Marshall, your point was well taken about the State’s concession, that there was no alternative means of communication between these inmates.

Floyd R. Finch, Jr.:

That, in fact, was the case.

If an inmate wanted to write to a friend he knew on the outside, for example, at Renz, the rule as applied would not let that inmate correspond.

Antonin Scalia:

Mr. Finch, I still don’t understand how this argument goes to whether the rule is valid.

What you’re telling me was that the rule was not being applied fairly.

It was not being applied in such a way that you are allowed to correspond, as the rule said you would and as we’ve been told was the purpose, as long as there was no security problem.

But that means that the administration of it was bad.

And as I read the opinion that we’re reviewing here, it says the rule is bad, even if it were honestly applied.

And isn’t that what you’re arguing, that the rule is bad?

Floyd R. Finch, Jr.:

Yes sir, I am, because you give too much… you give too much vagueness when you put in a standard of best interests.

There is no standard to guide the prison administrator.

They have other rules which allow the prison administration to stop correspondence which, say, is writing about escape attempts or a fraud of some kind.

All of those things are covered.

But the vague best interests standard allows the prison administrator to do anything he darn well pleases in regard to the correspondence of inmates.

And we had testimony–

Byron R. White:

So there are some applications of the rule that would surely be valid.

Floyd R. Finch, Jr.:

–Your Honor–

Byron R. White:

I mean, vagueness, for it to be invalid for vagueness would require that there are no applications that you could understand.

Floyd R. Finch, Jr.:

–Well, Justice White, if there is a circumstance where you could stop… validly stop two inmates from writing because of their best interest, there’s no evidence of it in the record below.

None of the letters that were stopped had anything having to do with security or an escape attempt.

And we reproduce some of them in the brief.

Antonin Scalia:

Well, it doesn’t just relate to the letter.

As we’ve been told, it may relate to the inmate from whom it came.

Maybe he was a troublemaker.

I mean, what the prison is trying to do is to say, we don’t want to have to review all of this mail so intensively.

So we just… we can’t possibly catch all of the things that might be in it.

So we’re simply going to eliminate the correspondence between bad actors.

Now, for all we know, the examples you give, although the particular letter was quite harmless, that letter may have come from a very bad actor, from a gang head in another prison.

Isn’t that possible.

Floyd R. Finch, Jr.:

Justice Scalia, I’m afraid there’s no evidence of that in the record of this case.

The State never presented testimony that the particular correspondent was a member of a gang or had any reason to cause any harm to the security of either institution.

Floyd R. Finch, Jr.:

These were simply letters of friendship, many of them simply love letters between a female inmate at Renz and a male inmate someplace else.

And I stress, this is the only institution where you have this problem.

If a male inmate at the Missouri State Prison wanted to write to a male inmate at Moberly, that sort of correspondence was routinely allowed.

Now, perhaps the State could impose restrictions on gang members.

But the Department of Justice study which was cited in the briefs in this case points out that 97… 93 percent of the Missouri inmates are not members of gangs.

So the effect of this rule is, you stop most of the prisoners in Missouri who don’t cause any problems from corresponding, because you don’t want to read their mail, because some of them might be gang members.

And I would suggest that if the State’s been able to quantify that 7… I believe it’s 6.7 percent of their members are gang members, they must know pretty well who they are, and they can limit their correspondence.

John Paul Stevens:

Let me just be sure I understand one thing.

Floyd R. Finch, Jr.:

Yes, sir.

John Paul Stevens:

You, then, do not contend that the Constitution restricts the warden to… the only permissible way to do it would be item-by-item censoring of the mail.

You would agree, I take it, from your most recent argument, that if they identify gang members and disperse them among different institutions because they represent a threat, they could ban all mail between those people without bothering to look at it?

Floyd R. Finch, Jr.:

Your Honor–

John Paul Stevens:

If they have some reasonable basis for identifying a person as a particularly dangerous inmate, they can say, nobody can correspond with him if he’s in a different institution?

Floyd R. Finch, Jr.:

–Yes, Justice Stevens, to put it in the terms of the Court, of the strict scrutiny test, I think the State would have a compelling State interest, and there may be no least restrictive alternative way of stopping the correspondence which may be harmful between the prison… the gang member at MSP and the gang member at Moberly.

John Paul Stevens:

And would you agree that the prison… the warden would have a fairly broad discretion in deciding who belongs in the 7 percent class as opposed to the 93 percent class?

Floyd R. Finch, Jr.:

Well, I think you’re going–

John Paul Stevens:

You have to have some kind of reason, I suppose.

Floyd R. Finch, Jr.:

–There has to be some kind of reason.

And frankly, Your Honor, I suggest the best reason is an example of conduct that you don’t want to have occurring in the mail, an instruction or perhaps… an instruction to kill an inmate, or perhaps even just an instruction… the use of a code by one inmate.

This Court recognizes–

John Paul Stevens:

But do you think you have to wait until you find something in the mail?

Or what about… say you have a gang form in institution A, and they decide to disperse them to five different institutions, just for general security reasons, but they’ve never gotten any correspondence.

Could they right away impose a ban on those people writing to one another?

Floyd R. Finch, Jr.:

–I think they could, Justice Stevens.

And then the question would be, what if an inmate at MSP wants to write to someone else, and he wants to write a totally innocent letter?

I think under those circumstances, if the prison administrator can read the letter and say, gee, we don’t see anything here that’s wrong with this letter, then that inmate should be allowed to send it to someone who’s not a gang member.

But the rule you suggest, allowing all correspondence to be denied for particular inmates, would still suffer from that vice.

And perhaps the inmate’s got a cousin who would not fit within the Missouri rules as to who is an immediate family member, and he’d like to write to his cousin about his sister’s birth of a child.

There’s no reason that that letter should be stopped, merely because of the speculation that on some other occasions, this same inmate might write something that would harm the security of the institution.

William H. Rehnquist:

Well, of course, you’re then insisting on a case-by-case and almost letter-by-letter analysis, which the Department says we just don’t have the personnel to do.

William H. Rehnquist:

Do our cases suggest that there has be a case-by-case determination and a letter-by-letter?

Certainly the opinion in Jones suggested you could adopt a prophylactic rule if you perceived a danger.

Floyd R. Finch, Jr.:

Yes, Your Honor, Mr. Chief Justice, but the opinion in Jones also recognized that inmates do retain those certain fundamental rights.

And if you adopt a prophylactic rule that says, none of the residents of MSP are going to be allowed to correspond with anyone else, in the absence of any evidence that any resident of Renz Correctional Center is a member of a gang, then you’re violating everybody’s rights, because–

William H. Rehnquist:

Well, are you saying that it is a fundamental right established by our cases that prisoners have to correspond with other prisoners?

Floyd R. Finch, Jr.:

–No, sir, I don’t think that this Court has ever reached that.

William H. Rehnquist:

I don’t think it has either.

Well, then why… then what’s the basis for your insisting on strict scrutiny?

Floyd R. Finch, Jr.:

Because, Justice White, I believe that the fundamental right should be recognized in this case, that prison authorities–

Byron R. White:

So you are arguing that there is a fundamental right of prisoners to correspond with one another?

Floyd R. Finch, Jr.:

–Yes, that’s what I think the Court should adopt in this case, that there are certain core rights, such as the right of a written word–

Byron R. White:

Well, is Martinez the closest case for you or not?

Floyd R. Finch, Jr.:

–Yes, sir, it is; Martinez is clearly the closest.

Sandra Day O’Connor:

Why isn’t Jones a more appropriate standard in this case for inmate-to-inmate correspondence, just as it was for inmate-to-inmate meetings?

Floyd R. Finch, Jr.:

Well, there are… there is some–

Sandra Day O’Connor:

Martinez had to do with the rights of noninmates, really.

And I wonder whether Jones doesn’t provide the appropriate test?

Floyd R. Finch, Jr.:

–That is the State’s argument, Justice O’Connor.

But in Jones, there was a specific discussion of the First Amendment rights to inmates to solicit one another for membership in a prison.

And what this Court said was, we’re not going… we don’t have… the State… excuse me, the prison officials do not have to allow mass mailings.

But the Court recognized that’s because there can still be individual mailings.

That channel of communication is not cut off.

And we view that as authority for the position we’re arguing in this case.

When Leonard Safley, one of the named plaintiffs, wanted to write a letter to his fiancee, P.J. Watson, it didn’t do any good to tell him he might be able to write to somebody else, because he had a particular target of that correspondence.

And Jones recognizes that that existence of no other alternative is what’s important.

The Court did use a least restrictive analysis in Jones as regards to the First Amendment issue.

And I’d also point out that the Court said, First Amendment rights are barely at issue in this case.

Well, back in Pell, this Court held that the inmates do have some First Amendment rights which are not inconsistent with incarceration.

And the State’s conceded that they let at least 25 percent of the inmates write.

So it’s clear that the mere fact of correspondence is not inconsistent with incarceration.

Floyd R. Finch, Jr.:

It’s what in the letter itself.

And the only way you determine what’s in the letter is by reading it.

I would suggest that there’s no real evidence that the State of Missouri can’t handle whatever security problems that it thinks may exist.

After all, these rules have been in effect for 30 months.

There’s been no effort to go back to the District Court in this case and say, Judge Sacks, we can’t handle this problem.

We can’t deal with the security concerns.

William H. Rehnquist:

Well, what if the State let–

–The State is challenging the whole basis on which the regulations were imposed.

Floyd R. Finch, Jr.:

That’s right, Chief Justice… Mr. Chief Justice.

William H. Rehnquist:

I would think perhaps if they lose here, then would be the opportunity to go back to the District Court.

But until then, I would think their basic approach is that the District Court and the Court of Appeals were wrong in imposing the regulations they did.

Floyd R. Finch, Jr.:

And in fact, perhaps they may do it at that point, Mr. Chief Justice.

But the problem is, at the present time, they have not encountered such a serious problem that they did go back and try to get a change of the rule in the District Court.

Thurgood Marshall:

Counselor, have they had any marriages?

Floyd R. Finch, Jr.:

Yes, sir.

Many people have been married.

Thurgood Marshall:

How many?

Floyd R. Finch, Jr.:

I don’t know.

At least ten that I am aware of.

But I have not tried to keep track of all the marriages that have occurred in Missouri prisons.

Now–

Antonin Scalia:

Mr. Finch, what if this were not just a prison rule, but what if it was a statute enacted by the legislature that said, we’re adding to all the punishments that we now have on the books in addition to twenty years or whatnot, anyone who’s convicted of a crime will not be able to correspond with other inmates of penal institutions?

I mean, avowedly making it part of the punishment.

Would that be bad?

Is there any difference between that and this situation?

Floyd R. Finch, Jr.:

–Well, certainly there’s a difference, in that you’ve got a legislative enactment and not simply a particular prison administrator at one point.

But, judge, I… excuse me, Justice Scalia, I don’t think there’s any substantive difference.

I would argue that that statute would also be unconstitutional, because of what I believe is an inmate’s right–

Antonin Scalia:

You can take a man out of his home, out of his family, prevent him from contact visits with his family, even, all of the other fundamental liberties can be taken away as a punishment for crime, but the ability to correspond with other felons who are in prison is so fundamental that that can’t be imposed?

Floyd R. Finch, Jr.:

–Yes, sir, I would say–

Antonin Scalia:

It seems very strange.

Floyd R. Finch, Jr.:

–there are certain things, such as communication, the ability to keep open lines, the ability to practice one’s central religious beliefs, is something that could not be taken away by State statute.

And the ability of a person to marry the person of his choice also should not be taken away by State statute.

So long as this Court recognizes in its opinions that inmates retain certain rights, then the question becomes, what rights are they and how can they be protected?

If the Court were to simply say as a final matter, well, inmates have no rights and, in this case, they have no correspondence rights, they have no marriage rights, and in the Shabazz case that’s coming up before this Court, they have no religious rights, then we can all go home, and there won’t be nearly as much prison litigation.

But of course the Court has never accepted such a broad proposition.

What we have–

Sandra Day O’Connor:

Well, the Court has accepted, of course, the fact that a convicted felon can be deprived of his liberty, and his opportunity to live with his family.

And these are very fundamental rights.

And yet you think the right to correspond with another inmate is more fundamental than that, apparently?

Floyd R. Finch, Jr.:

–I guess I’ll have to answer yes.

Sandra Day O’Connor:

Which is a remarkable proposition, I think.

Floyd R. Finch, Jr.:

Well, the prison system of this country recognizes the importance of this communication for rehabilitation of an inmate.

The regulations that were in effect in this case, in their preamble clauses, always said that communication is important because it gives the inmate something to look forward to.

As I mentioned, many of these letters–

Sandra Day O’Connor:

But the rule itself says that a prison… a prisoner may be granted leave for inmate-to-inmate correspondence if it’s determined to be in his best interests, or hers.

Floyd R. Finch, Jr.:

–Yes, that’s right.

Sandra Day O’Connor:

And we’re talking about the validity of the rule facially.

And what’s the matter with that rule, facially.

Floyd R. Finch, Jr.:

Because it is unduly vague.

Sandra Day O’Connor:

Under your theory.

Floyd R. Finch, Jr.:

Ma’am, under my… excuse me, Justice O’Connor, under my theory, it’s wrong because it gives too much discretion to prison authorities to deny a letter solely because they don’t like the content.

And in fact, there was one letter which was stopped because the prison administrators did not like the content of what was said.

There was other correspondence that was stopped because a former inmate who’d been released from prison was a quote writ writer, unquote, and the prison authorities didn’t want her writing back in to her inmates.

Sandra Day O’Connor:

So the facial challenge boils down to a vagueness argument?

Floyd R. Finch, Jr.:

Yes, sir… excuse me, yes, ma’am.

I apologize.

The other issue, of course, in this case is the right of prison officials to stop inmates from marrying one another.

The State has correctly pointed out that there are inmates under the prior rule and under the current… well, I guess there have been three rules in effect.

The first rule was a rule that said inmates… basically said inmates can get married as soon as the prison officials work out the arrangements.

Floyd R. Finch, Jr.:

Now, ironically, in this particular case, Justice… excuse me, Superintendent Turner took it upon himself to stop inmates, even though there was a rule that allowed inmates to be married.

He stopped certain inmates from getting married, because in his opinion the marriage was not a good idea.

Then about a month before the trial was scheduled, and three months before the trial actually occurred, they… the State of Missouri set up a new system where an inmate had to come up with some compelling reason for allowing him to get married.

Sandra Day O’Connor:

Which version of the rule do we have before us on the no marriage?

Floyd R. Finch, Jr.:

Well, the current rule–

Sandra Day O’Connor:

What is before this Court, do you suppose?

Floyd R. Finch, Jr.:

–The last–

Sandra Day O’Connor:

There are three different versions, and I’m not quite clear which one we’re addressing.

Floyd R. Finch, Jr.:

–Justice O’Connor, the last rule before the court… before the trial was a rule that said, an inmate can only be married if he comes up with a compelling reason that the marriage should be allowed.

Sandra Day O’Connor:

Is that the one we have to deal with?

Floyd R. Finch, Jr.:

Yes, ma’am.

The rule that was written by the Missouri Division of Corrections after the case went to trial and the judgment was rendered, allows inmates to be married basically at the convenience of the prison administration.

They file a request, and they are allowed to be married when it is convenient, and under certain restrictions, restrictions as to the number of inmates who may attend, the visitors, and that sort of thing.

Antonin Scalia:

Now, your problem with this one is not that it’s vague, or is it?

Your attack on this is a bit different from your attack on the other one, isn’t it?

Floyd R. Finch, Jr.:

Well, Justice Scalia, it is vague–

Antonin Scalia:

Compelling reason is less vague, certainly, than the conditions for allowing prison mail, which were unspecified.

Floyd R. Finch, Jr.:

–Yes, sir.

I would agree that it is vague.

I do no suggest that it is… that there is a common method of understanding.

We asked the various prison administrators who testified what their definition was, and they did not come down to exactly the same thing.

For example, a defendant Blackwell testified that financial considerations would be good enough to allow two inmates to get married.

But Superintendent… or Warden Wirick testified that the only reason he’d allow two people to get married is if they already had an illegitimate child and to give the baby a name.

Antonin Scalia:

Well, you might ask the nine of us what constitutes a least onerous alternative, and we might all come up with different answers to that.

But it’s a standard, anyway, just as compelling reason is a standard.

Floyd R. Finch, Jr.:

Yes, sir, it is.

And I return to the proposition that I don’t think that prison authorities should have the power, in the absence of some compelling reason that they advance, in the absence of showing there’s no other way around the problem, a least restrictive alternatives analysis, to stop two consenting adults, who satisfy the statutes of Missouri, from getting married.

Justice Powell pointed out earlier that the findings of fact in this case, particularly findings of fact No. 7, do not support the argument of the State in this case, and that is a matter which I would like to deal with.

As you pointed out, sir, the District Court heard testimony over five days from 30-some different witnesses, and had the opportunity to listen to Mr. Turner explain why he denied marriages; had the opportunity to hear defendant Engelbrecht testify about the way he handled correspondence.

And under those circumstances, his findings of fact are entitled to great weight.

Floyd R. Finch, Jr.:

Those were then affirmed by the Court of Appeals.

And the State, even though it’s just arguing in its brief, still contends that this Court should go back and reverse all the findings of fact by the trial court, and presumably enter its own findings at this level.

I would suggest that the findings of fact are entitled to particular deference in this case.

When we had defendant Turner on the stand in the court itself to cross-examine this man about why he was denying marriage and the standards used for denying correspondence.

Antonin Scalia:

Mr. Finch, is it clear… you know, we’ve said that the right to get married is a fundamental right.

But the ordinary marriage has a lot of attributes to it that this marriage here would not.

I mean, what is left of the associations of marriage?

Not the right to cohabit.

Not the right to beget and rear children in the prison context, right?

So it’s basically just a demonstration of commitment to someone, which might be made in other ways, right?

And I suppose there are inheritance effects if the two people get married.

What other… what other attributes of the normal marital relation continue to exist in the prison context?

Floyd R. Finch, Jr.:

Well, Justice Scalia, if you asked the inmates here why they want to get married, they give, in my opinion, a compelling response.

Because they want to share their life with someone, even if it’s only by mail.

Antonin Scalia:

But they don’t.

I mean, in fact, they don’t share their life with one another.

They still live apart.

Floyd R. Finch, Jr.:

Well, for one thing, Your Honor–

Antonin Scalia:

I mean, couldn’t they make that commitment just as well by sending them a fraternity ring?

[Laughter]

Floyd R. Finch, Jr.:

–I don’t think that the religious attributes of a marriage ceremony can be fairly equated with a fraternity ring.

It seems to me, sir, that we must also recall that these inmates are not, in most cases, at least, in prison for life.

Leonard Safley, one of the plaintiffs in this case, was in the Kansas City honor center, and had the opportunity to come down and visit his wife in Renz Correctional Center, and he did that on a regular basis.

Now, admittedly, their marriage at that time may have been limited to letters, sitting together in the visiting room, and holding hands and an occasional kiss when the guard wasn’t looking, but that does not mean that that marriage was any less important or sacred.

There are many people who marry, perhaps in their 60’s or 70’s, who may not have a sexual relationship, but still have care for the person that they’ve chosen to spend the rest of their life with.

And it may be, as the District Court recognized, that these marriages may not all work out.

But that fact is constitutionally irrelevant, I would submit.

Because free people make mistakes, and inmates make mistakes, as the State points out, or they wouldn’t be in there.

But at least they’ve got a right to try to make a better life for themselves.

We had expert testimony that the important thing about the marriage decision is that the inmate is standing up and saying, hey, while I may be incarcerated, I’ve got a right to look forward to a better life.

Floyd R. Finch, Jr.:

I’ve got a right to plan on something after this institution.

And the evidence we had in this case is that the inmates who did get married, despite the prison officials’ objections, ended up becoming better prisoners.

Antonin Scalia:

xxx the prison stop them from getting engaged?

Floyd R. Finch, Jr.:

To the best of my knowledge, there was not something like that.

Although, Justice Scalia, there was something like that that happened at Renz, where both men and women prisoners were located.

As soon as prison administrators noticed any sort of friendship more serious than very Platonic, they would immediately move the man to another institution.

So they were trying to break up any relationship from developing between inmates of the two sexes at that particular institution.

So yes, if… there was no allowance of allowing two inmates at Renz to get engaged.

In fact, Leonard Safley in this case, as soon as the prison administrators became aware that there was a friendship between he and his ultimate fiancee, they moved him to another institution.

Even when he was gone, however, they wouldn’t let the two inmates correspond.

And so Mr. Safley didn’t now until he came to Judge Sacks’ courtroom about… in 1982… whether she would actually consent to marry him.

And that’s when, in the courtroom, is when we found out her answer.

I think that the prison administration in the State of Missouri can balance the interests of the inmates in correspondence and marriage with their own security needs.

As I’ve suggested, they have been able to do so.

All it takes is a little prodding from the courts.

But if this Court takes away that prodding by granting too much deference to prison administrators, then we’re going to have a series of cases, I would suggest, around the country where–

William H. Rehnquist:

Your time has expired, Mr. Finch.

Floyd R. Finch, Jr.:

–Thank you, sir.

William H. Rehnquist:

The case is submitted.