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Sam Heldman


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Wednesday, March 26, 2003
A slew of predictions

I have gotten a little behind (again), so here are my predictions for yesterday’s and today’s oral arguments. I’ll start with today’s, because as I write this, it is still before oral argument.

No. 02-94 Overton v. Bazzetta

In this case, prisoners in facilities run by the Michigan Department of Corrections brought challenges to new visitation policies. The new policies, among other things, restricted the children who may visit inmates and provided a ban on visitation for prisoners who received two or more substance abuse “misconducts.” The Sixth Circuit determined that these practices violate the First Amendment, and constitute cruel & unusual punishment under the Eighth Amendment.* I predict the court will REVERSE

    *For a more fulsome exposition of the background of this case, see the description on SCOTUSblog here.

The point of prison, it seems to me, is that the state gets to take away a lot of your rights. Your basic liberty to do as you please is severely restricted. In its opinion, the Sixth Circuit recognized that a prisoner’s First Amendment right of association is limited by legitimate demands of the prison system. The court found, therefore, that non-contact visitation is a right of association enjoyed by prisoners, and that it does not conflict with legitimate prison interests.

The Court then turns to the specific restrictions themselves. In each case, the court finds that the prison did not provide enough evidence that the restrictions were “reasonably related to a legitimate penological interest.” However, the court did so with little analysis, and the analysis that it did perform indicates that it was imposing a more harsh test than it claimed to be imposing. The analysis is simply unconvincing.

The Court then decided that a ban on non-contact visitation based on substance abuse misconduct violated the proportionality principle of the Eighth Amendment. Well, we know -- by counting votes in the three strikes decisions -- that there still is a proportionality principle to the Eighth Amendment, but I doubt the Court will find that it is implicated here.