Contesting expertise in prison law.

• Author: Kerr, Lisa Coleen
• Position: Continuation of III. American Judicial Review: Intervention and Retreat through Conclusion, with footnotes, p. 68-94

The 2003 case of Overton v. Bazetta (101) exemplifies how application of the Turner standard fosters heightened judicial deference in a later generation of cases, where deference is deployed so as to defeat prisoner claims regardless of whether evidentiary standards are satisfied by the state. In Overton, a majority of the United States Supreme Court upheld extensive limits on the ability of prisoners to receive visits from outside the prison. The regulations included a ban on parents receiving visits from natural-born children where parental rights had been terminated for any reason, and a complete ban on visits for prisoners with a substance abuse violation in the previous two years. Given the importance of visiting to prisoners, and the fact that the parental rights of prisoners can be comparatively easily terminated under American law, these were severe limits. In upholding the restrictions, the majority simply asserted that the regulations "promote internal security, perhaps the most legitimate penological goal." (102) The majority also found that the regulations protect children, by reducing the number of children at visits and allowing guards to better supervise them. With respect to the withdrawal of visitation from inmates with two substance abuse violations, the majority concluded: "Withdrawing visitation privileges is a proper and even necessary management technique to induce compliance with the rules of inmate behavior, especially for high-security prisoners who have few other privileges to lose." (103)

Despite the empirical issues at the heart of this holding, such as whether it was too difficult for guards to safely supervise a larger number of visiting children, the majority in Overton did not cite or elaborate on any evidentiary sources for its claims, and did not cite the findings of the courts below, each of which found the regulations to be invalid. The majority justified its approach in the name of granting due deference to prison administrators. (104) Overton suggests that prison administrators are to receive deference regardless of the content or the quality of their professional judgment, which echoes the doctrine asserted by some Canadian judges discussed above. This standard of adjudication has led many United States commentators to cite the return of the "slaves of the state" approach or of keeping judicial hands off the field of prison administration. (105)

Judicial deference to the unquestioned expertise of administrators reached new rhetorical heights in the 2006 plurality opinion of Justice Breyer in Beard. This case involved prisoners housed in highly restrictive conditions at Pennsylvania's Long Term Segregation Unit (LTSU). At the LTSU, all prisoners were confined to cells for twenty-three hours a day, with no access to commissary goods or phone calls, and a single immediate family visitor once per month. Confined almost constantly to cells, they nevertheless had no access to television or radio. The basis of the legal complaint was quite restrained given the circumstances. Prisoners assigned to Level 2 (the most restrictive level of LTSU) had no access to newspapers, magazines, or personal photographs. The Level 2 prisoners were held in total isolation, often for months at a time, and were denied access to the most basic forms of human communication. The constitutional claim was that the restriction violated the First Amendment's protection of free expression, and that it was not justified because the restriction bore no relation to a legitimate penological objective.

At issue before the Supreme Court was whether the complaint could be dismissed by way of summary judgment; that is, whether the case raised a triable issue. At such an early stage of litigation, the record consisted only of the deposition of a deputy superintendent at the prison, and various prison policy manuals and related documents. Despite the early stage of the case and the very low threshold required to show a triable issue, Justice Breyer, in a 6-2 plurality opinion, directed the summary dismissal of the complaint on the basis that "the prison officials have set forth adequate legal support for the policy." (106) While the court noted that it must draw all inferences in favour of the claimant at the pretrial stage, it held (citing Overton and Turner) that it must "distinguish between evidence of disputed facts and disputed matters of professional judgment." (107) In the latter circumstance, Justice Breyer reasoned, courts are to accord deference to the views of prison authorities.

The deference Justice Breyer offered did not turn on any evidentiary support for the claims of the prison authorities. In the pretrial proceedings in Beard, the prison authority asserted in its materials that it was depriving LTSU Level 2 inmates of newspapers, magazines, and personal photographs mainly in order to motivate better behaviour, and also to minimize property in cells and ensure prison safety. The prison stated that deprivation, especially for those who have already been deprived of almost all privileges, was a legitimate technique as an "[incentive] for inmate growth." (108) The only evidence adduced to justify these techniques consisted of the statements of the prison administrator. The Third Circuit Court of Appeals (the court below) noted that there was no other evidence to suggest the necessity of the measures, nor was there any evidence to confirm the state's theory of behavioural incentives. The Third Circuit found that the Department of Corrections' deprivation theory of behaviour modification had no basis in real human psychology, and that it had not been shown that the restrictions were implemented in a way that could effectively fectively modify behaviour, given the deleterious effects on prisoners living with such deprivations.

Justice Breyer rejected the evidentiary concerns of the Third Circuit as follows:

The court's statements and conclusions ... offer too little deference to the judgment of prison officials about such matters. The court [below] offered no apparent deference to the deputy prison superintendent's professional judgment that the Policy deprived "particularly difficult" inmates of a last remaining privilege and that doing so created a significant behavioral incentive. (109) Justice Breyer's opinion in Beard is remarkable for its articulation of a legal rule: So long as the subject matter of a case concerns the judgment of prison administrators, then in almost no circumstance will the prisoner succeed. The case indicates that, so long as the factual dispute in a case concerns how the prison should operate, dismissal even in advance of trial is justified. It follows that the case substantially effaces the notions that, first, constitutional rights survive imprisonment, and second, that courts must interpret and balance rights infringements in the prison context, such as by analyzing whether a rights infringement is "necessary or essential" (from Martinez) or "proportionate" (from Oakes) to a governmental interest. Justice Breyer purports to use a standard of "reasonable relation" to a "legitimate penological objective", but his application of that standard suggests the barest minimum of judicial review. (110)

Like the Third Circuit below, the dissenting justices in Beard pointed to the lack of evidentiary support to justify the prison's policy. Justice Stevens, in dissent, chronicled the lack of evidence to suggest that the state's theory of behaviour modification had any basis in human psychology, or the notion that the rule had a rehabilitative effect specifically in the LTSU. Justice Stevens noted further that this concept of rehabilitation has no limiting principle:

[I]f sufficient, it would provide a "rational basis" for any regulation that deprives a prisoner of a constitutional right so long as there is at least a theoretical possibility that the prisoner can regain the right at some future time by modifying his behavior. (111) In addition, Justice Stevens found that there were multiple other reasons why an inmate would be motivated to rehabilitate out of LTSU, and that the lack of access to a single newspaper was an invasion of the "sphere of intellect and spirit" which the First Amendment protects. (112) Justice Stevens concluded that a full trial was necessary in order to form a definitive judgment as to whether the challenged regulation was "reasonably related" to the prison's valid interest in security and rehabilitation, in accordance with the Turner standard.

Justice Ginsburg echoed these concerns in a separate dissent, noting that the defendant relied entirely on the deposition of the prison's own deputy superintendent, whose evidence was simply:

[O]bviously we are attempting to do the best we can to modify the inmate's behavior so that eventually he can become a more productive citizen.... [Newspapers and photographs] are some of the items that we feel are legitimate as incentives for inmate growth. (113) Justice Ginsburg concluded that these statements are not sufficient to show that the challenged regulation is reasonably related to inmate rehabilitation. (114) Justice Ginsburg concluded that the plurality's reasoning means that it is sufficient for a prison defendant to say "in our professional judgment the restriction is warranted" in order to avoid even the burden of a trial. (115) Justice Ginsburg's analysis reveals the structural similarity between the plurality's approach and the era of civil death for prisoners, the only difference being that prisoners can now access the courts and, at least briefly, assert a right in a language cognizable to the courts. But so long as the prison points to its own professional judgment, then the scope of the right is diminished so significantly that it does little good to bear it.

Cases like Overton and Beard have led Sharon Dolovich to argue that United States prison law wholly lacks principled and consistent...