Bazzetta v. McGinnis
| Decision Date | 19 April 2001 |
| Docket Number | No. 95-CV-73540-DT.,95-CV-73540-DT. |
| Citation | 148 F.Supp.2d 813 |
| Parties | Michelle BAZZETTA, Stacy Barker, Toni Bunton, Debra King, Shante Allen, Adrienne Bronaugh, Alesia Butler, Tamara Prude, Susan Fair, Valerie Bunton and Arturo Zavala, through his Next Friend Valerie Bunton, on behalf of themselves and all others similarly situated, Plaintiffs, v. Kenneth McGINNIS, Director of Michigan Department of Corrections, Dan Bolden, Deputy Director of the Correctional Facilities, Michigan Department of Corrections, Marjorie VanOchten, Administrator of the Office of Policy and Hearings of the Michigan Department of Corrections, Michigan Department of Corrections, Defendants. |
| Court | U.S. District Court — Eastern District of Michigan |
Michael J. Barnhart, Detroit, MI, Deborah A. LaBelle, Ann Arbor, MI, Patricia A. Streeter, Detroit, MI, for Plaintiffs.
Lisa C. Ward, Kevin M. Thom, Barbara A. Schmidt, George N. Stevenson, Michigan Dept. of Atty. General, Lansing, MI, for Defendants.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Plaintiffs, inmates of the Michigan Department of Correction and their prospective visitors, brought this suit against the Director of the Department challenging various restrictions on visitation. Specifically, Plaintiffs challenge restrictions which 1) prohibit visits by siblings, nieces and nephews who are under eighteen years old; 2) prohibit visits by children whose prisoner parents have had their parental rights terminated (even when that termination is voluntary); 3) prohibit visits from former prisoners who are not immediate family; 4) require visiting children to be brought by a parent or legal guardian; and 5) impose a permanent ban on visitation for any prisoner who has been found guilty of two substance abuse misconducts.
With respect to claims 1 through 4, this Court issued two previous decisions, affirmed by the Sixth Circuit Court of Appeals, upholding the restrictions in the context of contact visits. Thus, the only remaining issue on claims 1 through 4 is whether the restrictions are constitutional in the context of non-contact visits. Claim 5 was not ripe at the time of the earlier decisions and is addressed here for the first time.
In support of their claims, Plaintiffs presented testimony from a number of MDOC officials, present and former inmates, and from several experts and family members.
Marjorie VanOchten was the MDOC administrator of the Office of Policy and Hearings until January 2000; she drafted the rules at issue in this case. Although she had been an executive level official of the MDOC for over twenty years, she was critical of many aspects of the visitation restrictions, including the exclusion of minor siblings, nieces and nephews, the requirement that a minor child be accompanied by a parent or legal guardian, and the permanent ban on visitation following two substance abuse misconducts. She testified about her own concerns, concerns raised by the public, and about the procedural history and problems related to the restrictions.
Suellen Scarnecchia, Associate Dean for Clinical Affairs at the University of Michigan Law School, testified as an expert on the subject of incarcerated parents. She was particularly critical of the rule requiring a minor child to be accompanied by a parent or legal guardian and the rule precluding visits by a child whose prisoner/parent had terminated parental rights.
Dan Bolden, the Deputy Director of the MDOC since 1984, was called by Plaintiffs for cross-examination. He testified about the penological objectives of the rules and procedures used by the MDOC to draft the restrictions, and the reasons the Department had for deciding on particular exclusions and sanctions. He was cross-examined extensively on the justification for excluding minor siblings, nieces and nephews, on the efficacy of using non-contact visitation to address his various concerns, and on the procedural problems (inconsistent enforcement, lack of notice and standards) related to the permanent ban on visitation following two substance abuse misconducts.
Phillip Creekmore, called by Plaintiffs as one of their experts, was asked to compile data supplied by the MDOC and summarize it in exhibit form. See Pls.' Exs. 41-48, 50-51. The statistical data compiled by Creekmore primarily addressed the issues of volume (including early termination of visits), misconducts related to visits, and the inconsistences in the enforcement of the permanent ban.
Barry Mintzes is a psychologist who worked for the MDOC from 1970 to 1982, including positions as administrative assistant to the director, and warden of the facilities at Kinross and Jackson. In criticizing the Department's permanent ban on visitation following two substance abuse misconducts, Dr. Mintzes testified about the importance of visitation to prison management, as well as for the rehabilitation of the prisoner. He also testified that the use of visitation standards and non-contact booths would have been more than adequate to meet the penological objectives stated by the Department, without excluding whole categories of visitors.
Joan Yukins, the warden of the women's facility in Plymouth (Scott), was called as an adverse witness. She testified about the impact of the restrictions concerning minor children, particularly as they affect women prisoners, and she was also cross-examined about the procedural difficulties she and the inmates encountered in connection with the permanent ban (inconsistent enforcement, inadequate or confusing notice, absence of criteria for restoration of privileges, collateral consequences).
Dr. Terry Kupers, a psychiatrist with extensive background in correctional issues, was one of Plaintiffs' key witnesses. Dr. Kupers testified about the importance of visitation to the mental health, stability, and rehabilitation of the prisoner. He commented on the impact of incarceration on family bonds, and the additional impact caused when visitation is restricted; he testified to the inadequacy of telephone calls and letters as alternatives, particularly where children are involved. Although Dr. Kupers touched on a number of topics related to the visitation restrictions, the primary thrust of his testimony was the social and psychological damage caused by the permanent ban on visitation, the counterproductive effect on long term drug abuse and the prisoner's reintegration with society, the destruction of marital and family relationships, and the cruelty involved in the Department's denial of a basic human need. He also testified that Michigan's visitation restrictions are an excessive response to problems with much better alternative solutions, and that Michigan's use of visitation sanctions in this manner is unique among prison management regulations.
Plaintiffs also called a number of prisoners, former prisoners, and family members who testified about the impact of the various restrictions on their family relationships and mental health.
Defendants did not challenge or contradict any of Plaintiffs' experts with experts of their own. Instead they relied on the testimony of a number of MDOC witnesses to support the penological objectives of the rules and to otherwise counter Plaintiffs' claims.
Kenneth McGinnis, Director of the MDOC from 1991 to January 1999, testified concerning the penological objective of maintaining security with the increasing volume of visitors. He testified to security concerns involving minor children, and he discussed the impact of the visitation standards introduced in 1995. With respect to the permanent ban on visitation, Mr. McGinnis testified about his desire for a zero tolerance policy to get at the problem of drug abuse within the system, which he considered to be ongoing and complex. He was cross examined about the justification for excluding minor siblings, the procedural inconsistencies with the permanent ban, the alternative of using non-contact visitation, and the criticism of the permanent ban as being overly harsh and punitive.
Pat Caruso, an MDOC regional administrator and former warden, testified about the difficulties of managing the visiting room in a level 5 facility. She testified that the permanent visitation ban was a powerful management tool, particularly because level 5 and 6 prisoners are already restricted to non-contact visits.
Pamela Withrow, a warden at various MDOC facilities since 1983, supported the decision to exclude as many minor children as possible from visitation, including minor siblings. She also testified that non-contact visitation does not solve the security concerns addressed by the rules, because sexual misconduct can occur even in non-contact booths.
Kurt Jones, who has been with the MDOC since 1977, has been the warden at Carson City since 1996. He testified that the 1995 changes have had a positive impact on the visitation process, and that he supports the permanent visitation restriction because he believes it has helped reduce substance abuse misconduct.
Sally Langley, the warden at Crane (women's) facility, also testified in support of the permanent visitation restriction as an effective management tool.
Finally, Julie Southwick, administrative assistant to Dan Bolden, testified concerning the availability of non-contact booths, the policies of several other states concerning visiting restrictions, and the procedure for seeking restoration of visiting privileges.
In addition to the witnesses called, both parties submitted exhibits and affidavits, including a selection from the random sample (20%) of all prisoners placed on permanent visitation restriction since 1995.1
These matters were tried to the bench in the fall of 2000; the Court makes the following findings of fact and conclusions of law.
Visits from family and other loved ones are extremely important in the life of most prisoners. A broad consensus,...
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...representative[s], [or] qualified clergy and staff from the Office of the Legislative Corrections Ombudsman...." Bazzetta v. McGinnis, 148 F.Supp.2d 813, 833 (E.D.Mich.2001). Inmates could also request that the visitation ban be lifted after six months or two years, depending on the underly......
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Bazzetta v. McGinnis
...representative[s], [or] qualified clergy and staff from the Office of the Legislative Corrections Ombudsman...." Bazzetta v. McGinnis, 148 F.Supp.2d 813, 833 (E.D.Mich.2001). Inmates may also request that the visitation ban be lifted after six months or two years, depending on the underlyin......
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Bazzetta v. McGinnis
...[or] qualified clergy and staff from the Office of the Legislative Corrections Ombudsman. . . ." Bazzetta v. McGinnis, 148 F.Supp.2d 813, 833 (E.D.Mich.2001). Inmates may also request that the visitation ban be lifted after six months or two years, depending on the underlying infractions. I......
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Bazzetta v. McGinnis, 01-1635.
...by phone and view them through glass walls. After a bench trial, the district court found for the plaintiffs. See Bazzetta v. McGinnis, 148 F.Supp.2d 813 (E.D.Mich. 2001). It held that the regulations limiting visits infringed on prisoners' First Amendment right of intimate association and ......
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...to renewed judicial scrutiny. References Baum, L. (1992). The Supreme Court (4th ed.). Washington, DC: CQ Press.Bazzetta v. McGinnis, 148 F.Supp.2d 813 (E.D.Mich. 2001).Bell v. Wolfish, 441 U.S. 520 (1979).Booth v. Churner, 532 U.S. 731 (2001).Bounds v. Smith, 430 U.S. 817 (1977).Brown v. B......