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Rehnquist Family Values

by JOANNE MARINER

With prisons filled to overflowing, it’s no wonder that state governments are seeking to cut costs. The goal of rehabilitation was long ago replaced with that of warehousing, and now the only real goal is to warehouse cheaply.

The Michigan prison system is a microcosm of national problems. Holding fewer than 19,000 inmates in 1986, it confined more than double that number in 1995. It was in that year, as prisoner numbers continued to swell, that the state corrections department instituted strict new rules to reduce the number of visitors that prisoners received. Visitors, the department claimed, were overwhelming the prison system’s resources.

A federal district court struck down the most restrictive of the new regulations, in a ruling that an appellate court unanimously affirmed. Chiding the corrections department for having implemented “a series of haphazard policies” that violated inmates’ rights to family contact, the court found that the department had utterly failed to justify them.

Last week, the Supreme Court disagreed. Although the Court issued three opinions – we might call them mean, meaner, and meanest – its judgment was unanimous. A more callous and short-sighted ruling is hard to imagine.

Fewer Visitors, Less Work, Better Security

Under the reasoning of last week’s ruling in Overton v. Bazzetta, state corrections departments are almost entirely free to restrict or deny prisoners’ visiting privileges. Because, in the Supreme Court’s view, regulations meant to reduce the number of prison visitors serve the goal of promoting prisons’ internal security, they merit only the most deferential scrutiny.

Upheld in the Overton case was a regulation that barred prisoners who had twice committed drug infractions from receiving any family visits, including non-contact visits (where inmates see their relatives through a reinforced glass window). Other regulations that were sustained prevented inmates from receiving visits from their siblings, nieces and nephews under age eighteen, and from minors who are not accompanied by an immediate family member or legal guardian.

In its decision, the Court stopped just short of ruling explicitly that prisoners have no right at all to intimate association – in other words, no right to family contact. Its reasoning, however, was broad enough to relegate any residual right to insignificance.

“Alternatives to Visitation Need Not be Ideal”

How would you react if you were told that you could no longer see your children, but, not to worry, you could still write them letters? And if you were told that if you – like some 40 to 80 percent of Michigan inmates – were functionally illiterate, or if your children were too young to read, you still had the option of short phone calls, at least a few minutes long?

The Overton case was, in part, based on the judgment that while such options may not be optimal, they are nonetheless sufficient. “Alternatives to visitation need not be ideal,” the Court emphasized, “they need only be available.”

In other words, it doesn’t matter if prisoners spend years without ever seeing their children. Because allowing greater numbers of visits might require “a significant reallocation of the prison system’s financial resources,” it’s enough to grant prisoners access to letters and phone calls (calls that are charged at exorbitant rates, one should note).

Increasing Recidivism and Harming Children

The Overton ruling might be a relief to financially-strapped prison systems, but its long-term costs are likely to be heavy. The social impact of limiting inmates’ family visits – measured in higher recidivism rates and in damage to children’s lives – is unquestionably negative.

According to unrefuted evidence admitted at trial, visitation with family and friends is the single most important factor in ensuring a prisoner’s successful return to society. Prisoners who maintain continuous, quality contact with three people while they are incarcerated, for example, are only one-sixth as likely as others to be back in prison a year after their release.

Children, too, need contact with their incarcerated parents. According to Denise Johnston, a national authority on the psychological and developmental implications of parental incarceration, parent-child visits improve children’s emotional well-being and may prevent or mitigate negative behavior.

If other states were to follow Michigan’s example, the impact could be enormously damaging. An estimated 1.5 million children have a parent behind bars in the United States, according to the Bureau of Justice Statistics. Indeed, researchers estimate that over 10 million children have undergone the imprisonment of a parent at some point in their lives.

Justice Thomas’s Reminiscences

One would be remiss to discuss the Overton ruling without commenting on Justice Clarence Thomas’s separate opinion, so successfully does it caricature the decision’s flaws.

Reviewing the history of American prisons through the nineteenth century, Thomas describes prison regimes built around solitary confinement, stringent regimentation, and frequent humiliation. “No reading materials of any kind, except a Bible, were allowed inside,” he notes in describing Sing Sing circa 1840.

Does Thomas mention such conditions in order to condemn them, or to underscore how far the country’s prison have come? Hardly. Not only is his tone entirely unjudgmental, he writes, if anything, with a certain wistfulness. Although he acknowledges that states are free to grant increased constitutional rights to prisoners, he never suggests that this would be a good idea.

Thomas’s callousness toward prisoners is especially striking in light of the enormous racial disparities in the nation’s prisons and jails. As of June 2002, 884,500 of the country’s two million prisoners were African-American. Among males between the ages twenty-five and twenty-nine, 12.9 percent of blacks were incarcerated, compared to 1.6 percent of whites.

Rights “of Basic Importance to Our Society”

It was not that long ago that the Supreme Court ruled that associational rights pertaining to “marriage, family life, and the upbringing of children” were “of basic importance to our society.” Such rights, the Court emphasized, should be “sheltered against the State’s unwarranted usurpation, disregard, or disrespect.”

In Overton v. Bazzetta, a ruling likely to accelerate the disintegration of families, the Court signally failed to heed its own advice.

JOANNE MARINER is a human rights attorney and regular CounterPunch contributor. She is the author of No Escape: Male Rape in US Prisons published by Human Rights Watch. An earlier version of this piece appeared in FindLaw’s Writ. She can be reached at: mariner@counterpunch.org.

JOANNE MARINER is a human rights lawyer living in New York and Paris.

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