Kentucky Department of Corrections v. Thompson
Kentucky Department of Corrections v. Thompson
Opinion of the Court
delivered the opinion of the Court.
In this case we consider whether Kentucky prison regulations give state inmates, for purposes of the Fourteenth Amendment, a liberty interest in receiving certain visitors.
In September 1976, Kentucky inmates brought a federal class action under 42 U. S. C. § 1983 challenging conditions of confinement in the Kentucky State Penitentiary at Eddy-ville. Other cases, one of them relating to the Kentucky State Reformatory at La Grange, were consolidated with the one concerning the penitentiary. The litigation was settled by a consent decree dated 28 May 1980, and supplemented 22 July 1980, containing provisions governing a broad range of prison conditions. App. 2-44, 45-55. See Kendrick v. Bland, 541 F. Supp. 21, 27-50 (WD Ky. 1981); see also Kendrick v. Bland, 740 F. 2d 432 (CA6 1984). Of sole relevance here, the consent decree provides: “The Bureau of Corrections encourages and agrees to maintain visitation at least at the current level, with minimal restrictions,” and to “continue [its] open visiting policy.” See 541 F. Supp., at 37.
The Commonwealth in 1981 issued “Corrections Policies and Procedures” governing general prison visitation, including a nonexhaustive list of visitors who may be excluded.
This particular litigation was prompted in large part by two incidents when applicants were denied the opportunity to visit an inmate at the reformatory. The mother of one inmate was denied visitation for six months because she brought to the reformatory a person who had been barred for smuggling contraband. Another inmate’s mother and woman friend were denied visitation for a limited time when the inmate was found with contraband after a visit by the two women. In both instances the visitation privileges were suspended without a hearing. The inmates were not prevented from receiving other visitors.
The representatives of the Kendrick-inmate class filed a motion with the United States District Court for the Western District of Kentucky (the court which had issued the consent decree), claiming that the suspension of visitation privileges without a hearing in these two instances violated the decree and the Due' Process Clause of the Fourteenth Amendment.
The United States Court of Appeals for the Sixth Circuit affirmed and remanded the case. 833 F. 2d 614 (1987). Relying not only on the consent decree but also on the regulations and stated policies, the court held that the relevant language was sufficiently mandatory to create a liberty interest. The Court of Appeals found that the relevant prison policies “placed ‘substantive limitations on official discretion.’” Id., at 618-619, quoting Olim v. Wakinekona, 461 U. S. 238, 249 (1983). The court also found that the language of the consent decree, that “[defendants shall continue their open visiting policy” (emphasis supplied by Court of Appeals), see Kendrick v. Bland, 541 F. Supp., at 37, coupled with a provision from the policy statement that “[a]n inmate is allowed three (3) separate visits . . . per week” (emphasis added by Court of Appeals), Reformatory Procedures ¶B(3), App. 108, satisfied the requirement of “mandatory language” articulated by our prior cases. See 833 F. 2d, at 618.
Because this case appeared to raise important issues relevant to general prison administration, we granted certiorari. 487 U. S. 1217 (1988).
II
The Fourteenth Amendment reads in part: “nor shall any State deprive any person of life, liberty, or property, without
Respondents do not argue — nor can it seriously be contended, in light of our prior cases — that an inmate’s interest in unfettered visitation is guaranteed directly by the Due Process Clause. We have rejected the notion that “any change in the conditions of confinement having a substantial adverse impact on the prisoner involved is sufficient to invoke the protections of the Due Process Clause.” (Emphasis in original.) Meachum v. Fano, 427 U. S. 215, 224 (1976). This is not to say that a valid conviction extinguishes every direct due process protection; “consequences visited on the prisoner that are qualitatively different from the punishment characteristically suffered by a person convicted of crime” may invoke the protections of the Due Process Clause even in the absence of a state-created right. Vitek v. Jones, 445 U. S. 480, 493 (1980) (transfer to mental hospital). However, “[a]s long as the conditions or degree of confinement
We have held, however, that state law may create enforceable liberty interests in the prison setting. We have found, for example, that certain regulations granted inmates a protected interest in parole, Board of Pardons v. Allen, 482 U. S. 369 (1987); Greenholtz v. Nebraska Penal Inmates, 442 U. S. 1 (1979), in good-time credits, Wolff v. McDonnell, 418 U. S., at 556-572, in freedom from involuntary transfer to a mental hospital, Vitek v. Jones, 445 U. S., at 487-494, and in freedom from more restrictive forms of confinement within the prison, Hewitt v. Helms, supra. In contrast, we have found that certain state statutes and regulations did not create a protected liberty interest in transfer to another prison. Meachum v. Fano, 427 U. S., at 225 (intrastate transfer); Olim v. Wakinekona, supra (interstate transfer). The fact that certain state-created liberty interests have been found to be entitled to due process protection, while others have not, is not the result of this Court’s judgment as to what interests are more significant than others; rather, our method of inquiry in these cases always has been to examine closely the language of the relevant statutes and regulations.
Most of our procedural due process cases in the prison context have turned on the presence or absence of language creating “substantive predicates” to guide discretion. For example, the failure of a Connecticut statute governing commutation of sentences to provide “particularized standards or criteria [to] guide the State’s decisionmakers,” Connecticut Board of Pardons v. Dumschat, 452 U. S., at 467 (Brennan, J., concurring), defeated an inmate’s claim that the State had created a liberty interest. Id., at 465 (majority opinion). See also Olim v. Wakinekona, 461 U. S., at 249-250 (interstate prison transfer left to “completely unfettered” discretion of administrator); Meachum v. Fano, 427 U. S., at 228 (intrastate prison transfer at discretion of officials); Montanye v. Haymes, 427 U. S., at 243 (same). In other instances, we have found that prison regulations or statutes do provide decisionmaking criteria which serve to limit discretion. See, e. g., Hewitt v. Helms, 459 U. S., at 472 (administrative segregation not proper absent particular substantive predicates); Board of Pardons v. Allen, 482 U. S., at 381 (parole granted unless certain standards met, even though the decision is “‘necessarily subjective . . . and predictive’”).
Ill
The regulations and procedures at issue in this case do provide certain “substantive predicates” to guide the decisionmaker. See nn. 1 and 2, supra. The state procedures provide that a visitor “may be excluded” when, inter alia, officials find reasonable grounds to believe that the “visitor’s presence in the institution would constitute a clear and probable danger to the institution’s security or interfere with [its] orderly operation.” See n. 1, supra. Among the more specific reasons listed for denying visitation are the visitor’s connection to the inmate’s criminal behavior, the visitor’s past disruptive behavior or refusal to submit to a search or show proper identification, and the visitor’s being under the influence of alcohol or drugs. Ibid. The reformatory procedures are nearly identical, and include a prohibition on a
The regulations at issue here, however, lack the requisite relevant mandatory language. They stop short of requiring that a particular result is to be reached upon a finding that the substantive predicates are met.
Because the regulations at issue here do not establish a liberty interest entitled to the protections of the Due Process Clause, the judgment of the Court of Appeals is reversed.
It is so ordered.
The relevant provision states:
“Certain visitors who are either a threat to the security or order of the institution or nonconducive to the successful re-entry of the inmate to the community may be excluded. These are, but not restricted to:
“A. The visitor’s presence in the institution would constitute a clear and probable danger to the institution’s security or interfere with the orderly operation of the institution.
“B. The visitor has a past record of disruptive conduct.
“C. The visitor is under the influence of alcohol or drugs.
“D. The visitor refuses to submit to search, if requested to do so, or show proper identification.
“E. The visitor is directly related to the inmate’s criminal behavior.
“F. The visitor is currently on probation or parole and does not have special written permission from both his or her Probation or Parole Officer and the institutional Superintendent.” Commonwealth of Kentucky Corrections Policies and Procedures §403.06 (issued Aug. 28, 1981, effective Sept. 28, 1981); App. 101-102.
The memorandum reads in relevant part:
“K. Vinitor Ref lined Admittance
“1. A visitor may be denied a visit at any time if one or more of the following exists or there are reasonable grounds to believe that:
“a. The visitor’s presence in the institution would constitute a clear and probable danger to the safety and security of the institution or would interfere with the orderly operation of the institution, including, but not limited to:
“(1) The visitor has a past record of disruptive conduct.
“(2) The visitor is under the influence of alcohol or drugs.
“(3) The visitor refuses to submit to search or show proper identification upon request.
“(4) The visitor is directly related to the inmate’s criminal behavior.
“(5) The visit will be detrimental to the inmate’s rehabilitation.
“(6) The visitor is a former resident currently on parole who does not have the approval of his Parole Officer or the Warden.
“(7) The visitor is a former resident who has left by maximum expiration of sentence and does not have the prior approval of the Warden.
“(8) The visitor has previously violated institutional visiting policies.
“(9) Former employees of the Kentucky State Reformatory will not be allowed to visit inmates unless they have authorization from the Warden prior to the time of the visit.
*458 “2. A master log will be kept at the Visiting Desk of all visitors who have been denied a visit for any of the reasons listed above. A visitor who is denied a visit will not be allowed to visit an inmate for up to six (6) months following the incident. Persons who bring dangerous drugs or contraband into the institution may be denied visits indefinitely, until permission is granted by the Warden. The Duty Officer has the responsibility of denying a visit for the above reasons.
“a. The master log will be furnished to all institutions and updated as required.
“3. Any time a staff member feels a visitor should not be allowed admittance for any of the reasons above, the Shift Supervisor and the Duty Officer shall be notified. The final decision will be with the Duty Officer. All decisions will be documented. If it is felt that the individual presents a serious threat of danger to himself or others the Kentucky State Police will be advised of the situation so they may make a decision on whether their intervention is needed.” Kentucky State Reformatory Procedures Memorandum, No. KSR 16-00-01 (issued and effective Sept. 30, 1985); App. 132-134.
Petitioners and their amici urge us to adopt a rule that prison regulations, regardless of the mandatory character of their language or the extent to which they limit official discretion, “do not create an entitlement protected by the Due Process Clause when they do not affect the duration or release from confinement, or the very nature of confinement.” See Brief for Petitioners 10. They argue that this bright line would allow prison officials to issue guidelines to prison staff to govern minor decisions, without thereby transforming the details of prison life into “liberty inter
It should be obvious that the mandatory language requirement is not an invitation to courts to search regulations for any imperative that might be found. The search is for relevant mandatory language that expressly requires the decisionmaker to apply certain substantive predicates in determining whether an inmate may be deprived of the particular interest in question. Thus, one of the examples of mandatory language relied upon by the Court of Appeals is unavailing, that is, the statement that an inmate “is allowed three (3) separate visits in the Visiting Building per week.” App. 108. This directive says nothing about whether any particular visitor must be admitted, and thus has no direct relevance to the decision whether to exclude a particular visitor, which is what is at issue here. Another example of irrelevant mandatory language is the following: “A visitor who is denied a visit will not be allowed to visit an inmate for up to six (6) months following the incident.” (Emphasis added.) See n. 2, supra. This language refers only to the penalty to be imposed once an individual is found to be unfit to visit, and has no role to play in guiding prison officials’ discretion in deciding whether to exclude a visitor in the first instance.
The language of the consent decree, that “[defendants shall continue their open visiting policy,” is mandatory only to the extent that it prevents the State from making its regulations more restrictive than they were at the time the decree was entered. Obviously, the promise to leave unchanged a discretionary policy does not transform that policy into a mandatory one. The District Court found that the regulations enacted after the decree was signed were no more restrictive than those already in place. App. 147. For this reason, we need make no judgment as to whether a consent decree can create a liberty interest protected by the Fourteenth Amendment. The issue was not briefed or argued by the parties or discussed below and is not necessary to our decision.
Dissenting Opinion
dissenting.
As a result of today’s decision, correctional authorities at the Kentucky State Reformatory are free to deny prisoners visits from parents, spouses, children, clergy members, and
I
The majority begins its analysis by conceding, as it must under our precedents, that prisoners do not shed their constitutional rights at the prison gate, but instead retain a residuum of constitutionally protected liberty independent of any state laws or regulations. See ante, at 459-461.
I have previously stated that, when prison authorities alter a prisoner’s conditions of confinement, the relevant question should be whether the prisoner has suffered “a sufficiently ‘grievous loss’ to trigger the protection of due process.” Olim v. Wakinekona, 461 U. S. 238, 252 (1983) (Marshall, J., dissenting), quoting Vitek v. Jones, 445 U. S. 480, 488 (1980); see also Morrissey v. Brewer, 408 U. S. 471, 481 (1972). The answer depends not only on the nature and gravity of the change, but also on whether the prisoner has been singled out arbitrarily for disparate treatment. “For an essential attribute of the liberty protected by the Constitution is the right to the same kind of treatment as the State provides to other similarly situated persons. A convicted felon, though he is properly placed in a disfavored class, retains this essential right.” Hewitt, supra, at 485-486 (Stevens, J., dissenting) (footnote omitted); see also Olim, supra, at 252 (Marshall, J., dissenting). Put another way, the retained liberty interest protected by the Constitution encompasses the right to be free from arbitrary
Prison visits have long been recognized as critically important to inmates as well as to the communities to which the inmates ultimately will return.
“brings alienation and the longer the confinement the greater the alienation. There is little, if any, disagreement that the opportunity to be visited by friends and relatives is more beneficial to the confined person than any other form of communication.
“Ample visitation rights are also important for the family and friends of the confined person. . . . Preservation of the family unit is important to the reintegration of the confined person and decreases the possibility of recidivism upon release. . . . [Visitation has demonstrated positive effects on a confined person’s ability to adjust to life while confined as well as his ability to adjust to life upon release . . . .” National Conference of Commissioners on Uniform State Laws, Model Sentencing and Corrections Act §4-115, Comment (1979) (hereinafter NCCUSL) (citations omitted).4
The majority intimates that the actions taken against prisoners Bobbitt and Black were based on good cause, see ante, at 458, but the very essence of these prisoners’ factual allegations is that no such cause existed. Id., at 57-58, 61, 66-68, 70-71. If Bobbitt and Black are correct, they may well have suffered a “grievous loss” by being singled out arbitrarily for unjustifiably harsh treatment. No evidence whatsoever indicates that visitors to the reformatory have ever been
II
Even if I believed that visit denials did not implicate a prisoner’s retained liberty interest, I would nonetheless find that a liberty interest has been “created” by the Commonwealth’s visitation regulations and policies.
Only then does the Reformatory Memorandum enumerate the very specific reasons for which a visitor may be excluded. Id., at 132-134, quoted ante, at 457-458, n. 2. The duty officer does not have unfettered discretion with respect to visitors. Rather, he “has the responsibility of denying a visit for the above [enumerated] reasons.” App. 134 (emphasis added). When a visit is denied, the reasons “will be documented.” Ibid, (emphasis added). Presumably this means that the duty officer must keep a record of which of “the above reasons” caused him to exclude the visitor. The Reformatory Memorandum also expressly references the American Correctional Association’s visitation standards, which provide that “visits may be limited only by the institution’s schedule, space, and personnel constraints, or when there are substantial reasons to justify such limitations.” American Correctional Association, Standards for Adult Correctional Institutions, Standard 2-4381 (2d ed. 1981) (emphasis added), cited at App. 106. Nothing in these standards even remotely contemplates the arbitrary exclusion of visitors.
When these mandatory commands are read in conjunction with the detailed rules set forth in the Commonwealth Procedures,
Finally, the majority’s reliance on the fact that both the Commonwealth Procedures and the Reformatory Memorandum provide that a visitor “may” be excluded if he falls within one of the enumerated categories, ante, at 464, is misplaced. The word “may” in this context simply means that prison authorities possess the discretion to allow visits from persons who fall within one of the enumerated categories. Surely this possibility cannot defeat a prisoner’s legitimate expectation that visitors will be denied only when they fall within one of those categories. In Hewitt, regulations regarding administrative segregation were deemed to have created a liberty interest even though they stated that a prisoner “may” be placed in segregation on the occurrence of specified substantive predicates. See 459 U. S., at 470, n. 6. Likewise, in Vitek, a prisoner had a state-created liberty interest in not being transferred to a mental hospital even though the applicable state statute provided that the director of correctional services “may” transfer a prisoner to such a hospital after certain medical findings are made. See 445 U. S., at 483, n. 1. If the use of the word “may” could not defeat a liberty interest in Hewitt or Vitek, I fail to see how it could do so here.
Ill
The prisoners in this case do not seek a right to unfettered visitation. All they ask is that the Court recognize that visitation is sufficiently important to warrant procedural protections to ensure that visitors are not arbitrarily denied. The protections need not be extensive, but simply commensurate with the special “needs and exigencies of the institutional environment.” Wolff, 418 U. S., at 555. In making the threshold determination that the denial of visits can never implicate a prisoner’s liberty interest, the majority thus establishes that when visitors are turned away, no process, not
“[I]f the inmate’s protected liberty interests are no greater than the State chooses to allow, he is really little more than the slave described in the 19th century cases. I think it clear that even the inmate retains an unalienable interest in liberty — at the very minimum the right to be treated with dignity — which the Constitution may never ignore.” Meachum v. Fano, 427 U. S. 215, 233 (1976) (Stevens, J., dissenting).
The majority’s refusal to take seriously the prisoners’ retained liberty claim is demonstrated by its unwillingness to acknowledge this claim when, at the very outset of its opinion, it frames the issue in this case as one solely involving state-created rights. See ante, at 455.
Cf. Leverson, Constitutional Limits on the Power to Restrict Access to Prisons: An Historical Re-Examination, 18 Harv. Civ. Rights-Civ. Lib. L. Rev. 409, 413-415 (1983) (describing widespread visitation practices in early English and American prisons).
See also, e. g., National Sheriffs’ Association, Inmates’ Legal Rights 67 (rev. ed. 1987) (hereinafter NSA) (visits “with family, friends and others [are] important if the inmate is to retain his ties to the community and his knowledge of what the free society is like”); U. S. Dept, of Justice, Federal Standards for Prisons and Jails, Standard 12.12, Discussion (1980) (hereinafter DOJ) (“Visiting is an important element in maintaining inmates’ contact with outside society”); ABA Standards for Criminal Justice 23-6.2, Commentary (2d ed. 1980) (hereinafter ABA) (“Because almost all inmates ultimately will be returned to the community at the expiration of their
See also, e. g., NSA, at 67; DOJ, Standards 12.12-12.15; NCCUSL, §§4-114, 4-118; ABA, Standard 23-6.2; American Correctional Assn., Standards for Adult Correctional Institutions, Standards 2-4380 to 2-4386 (2d ed. 1981); NAC, Standard 2.17.
Although the Court’s past decisions establish that a liberty interest may be “created” by state regulations and policies, I have taken a somewhat different view of the relationship between such regulations and policies and the Due Process Clause. See Olim v. Wakinekona, 461 U. S. 238, 255, n. 6 (1983) (Marshall, J., dissenting), quoting Hewitt v. Helms, 459 U. S. 460, 488 (1983) (Stevens, J., dissenting) (“Prison regulations ‘provide evidentiary support for the conclusion that the [adverse action taken against a prisoner] affects a constitutionally protected interest in liberty,’ but they ‘do not create that interest’ ”) (emphasis in Hewitt).
See also, e. g., Dace v. Mickelson, 816 F. 2d 1277, 1279 (CA8 1987) (en banc) (a prisoner’s “expectancy” is based on “a review of a state rule, regulation, or practice”); Whitehom v. Harrelson, 758 F. 2d 1416, 1422 (CA11 1985) (“The court must examine the . . . practices of the prison officials in administering the program to determine whether [it]. . . placets] a restriction on the prison official’s discretion . . .”); Parker v. Cook, 642 F. 2d 865, 876 (CA5 Unit B 1981) (“[T]he interaction between written regulations and actual practices often produces results not apparent by a. mere examination of the regulations”); cf. Perry v. Sindermann, 408 U. S. 593, 602 (1972) (“[T]here may be an unwritten ‘common law’ in a particular university that certain employees shall have the equivalent of tenure”).
The majority does not state clearly whether its rationale applies solely to prisoners in the reformatory, or to prisoners in all of the Commonwealth’s correctional institutions. I read the majority opinion as limited to prisoners in the reformatory for several reasons. First, although the majority points to language both in the statewide Commonwealth Procedures and the institution-specific Reformatory Memorandum in first determining that there are sufficient substantive predicates cabining official discretion, ante, at 463-464, the majority relies exclusively on statements in the Reformatory Memorandum in finding insufficient mandatory language to create a liberty interest. Ante, at 464-465. Second, Bobbitt and Black — the only prisoners subject to visitation denials in this case — were both incarcerated in the reformatory at the time of the incidents giving rise to this litigation. Third, the Reformatory Memorandum is the only institution-specific set of rules before the Court. Tr. of Oral Arg. 28. It is quite possible that other correctional facilities in the Commonwealth have promulgated rules which create a liberty interest even under the majority’s linguistic approach. As the Court of Appeals for the Sixth Circuit noted below, “it is unclear from the record what set of regulations governs visits in other parts of the Kentucky System.” 833 F. 2d 614, 619 (1987).
These procedures pertain to such matters as the days, lengths, times, and places for visits; the dress code for prisoners and visitors; the scope of permissible searches of prisoners and visitors; the type of contact permitted between prisoners and visitors; and the special rules for night visits
Although the Commonwealth Procedures are somewhat less elaborate — because the individual correctional institutions are charged with
It is no answer to say that most of the mandatory commands are irrelevant because the decision “to exclude a particular visitor” is the only issue in this case. Ante, at 464, n. 4. After today’s decision, there are no constraints whatsoever on the reformatory’s ability to exclude all of an inmate’s visitors simply by invoking its unreviewable discretion whenever a person seeks to visit the inmate.
Concurring Opinion
concurring.
I concur fully in the opinion and judgment of the Court. I write separately to note that this case involves a denial of prison access to particular visitors, not a general ban on all prison visitation. Nothing in the Court’s opinion forecloses the claim that a prison regulation permanently forbidding all visits to some or all prisoners implicates the protections of the Due Process Clause in a way that the precise and individualized restrictions at issue here do not.
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