Request By:
Mr. Franklin S. Yudkin
Belker & Yudkin
Suite 400
Hart Block Building
730 W. Main Street
Lousiville, Kentucky 40202
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Your office represents Lynn Bray, whose fiance is an inmate at the Kentucky State Reformatory in LaGrange. You say that "Ms. Bray has been refused her right to visit her fiance at the Kentucky State Reformatory for arbitrary and capricious reasons."
The Bureau of Corrections has informed us that Ms. Bray was a former employee of the Bureau of Corrections, assigned to the Luther Luckett Correction's Complex for the teaching of some classes for the inmates (involving high school subjects).
The Bureau of Corrections gave us this additional information:
"During the course of that employment, Ms. Bray became romantically involved with inmate Joe Lloyd and when Luckett authorities learned this to be the case, she resigned her position. It is policy at the Reformatory and at other Corrections' facilities in Kentucky that former employees who become personally involved with inmates are not permitted to visit that inmate during the remaining term of his incarceration.
"Not only did Ms. Bray become romantically involved with inmate Joe Lloyd while he was confined, but also continued that involvement when he was released on a Parole Furlough on August 7, 1981. Inmate Lloyd was furloughed to go to Adair County for the purpose of finding employment in order to meet the requirements of his parole. Inmate Lloyd told his officer in Adair County that he could not find employment there and requested a transfer of supervision on a temporary basis to the Louisville, Kentucky, area and that request was granted. When it was learned at the Luckett Complex of the romantic involvement between Joe Lloyd and Ms. Bray, Lloyd was directed by parole authorities to return to Adair County. Inmate Lloyd did not return to Adair County and on August 21, 1981, it was learned that Lloyd and Ms. Bray had been observed at the scene of an automobile accident in Louisville, Kentucky. Finally, inmate Joe Lloyd, in fact, did not return from that furlough and escape charges were filed against him on August 28, 1981. (When Ms. Bray was confronted with the facts of her involvement with Joe Lloyd, she resigned her position on August 19, 1981.)
"On January 14, 1982, Joe Lloyd was apprehended in Houston, Texas, and was found at that time to be in the company of Ms. Bray. On page 16 of the Reformatory's Visiting Regulations, you will note that we do restrict visiting privileges and visitors are not allowed if they were directly related to the inmate's criminal behavior. Ms. Bray was, indeed, related to Lloyd's criminal behavior when she assisted him while on furlough from which he did not return and further from which he violated those conditions by not going back to Adair County as directed by parole authorities. Further, Ms. Bray was involved in Lloyd's escape from custody when she accompanied him to Houston, Texas.
"We believe that we are properly enforcing procedures and regulations governing Department of Corrections and the Kentucky State Reformatory and have not infringed upon anyone's civil rights."
The Bureau also forwarded to us a copy of the Bureau's Internal Management Directive Chapter 100, plus a copy of Kentucky State Reformatory's Procedures Memorandum 06-001 that governs visiting inmates at the Kentucky State Reformatory.
On page 16 of KSR 06-001, relating to "Vistor Refused admittance", the Bureau in this situation invoked paragraph if. and k., which state as grounds for visitation refusal that "The visitor is directly related to the inmate's criminal behavior" and "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."
The Bureau in this situation invoked Section 101.01, "Incompatible Activities", (C), (D) and (I) of Chapter 100 of the Bureau's Internal Management Directive. They read: "(C). . . . Hereinafter in this document the phrase 'person(s) under supervision' will be used to mean probationers, shock probationers, parolees, conditional releasees and misdemeanant releasees who have not gotten a final discharge or whose maximum sentence has not expired." "(D) Employees of the Bureau must not trade, barter, lend or otherwise engage in any other personal transactions, with any inmate or person under supervision. " "(I) Familiarity: Bureau of Corrections employees shall not engage in undue familiarity with: 1. Inmates and/or their families or friends; 2. . . . Whenever there is reason for an employee to have personal contact, or discussions, with any of the persons listed above, the employee must maintain a helpful, but professional, attitude and demeanor. Employees must not discuss their personal affairs with any of the above listed persons. This directive shall apply to Bureau employees, at all times, whether they are on duty or off duty."
Thus the Bureau of Corrections maintains that Ms. Bray, during the course of her state employment, became romantically involved with the prisoner, and affected the prisoner's refusal to return from a furlough to Adair County. She resigned her employment on August 19, 1981, but accompanied the prisoner to Houston, Texas, later, where Lloyd was apprehended. The Bureau's regulations call for ending a visitor's admittance to prison facilities where the visitor's visits are directly related to the prisoner's illegal behavior. The Bureau's regulation that an employee must not engage in undue familiarity or personal transactions with the prisoner were broken, so says the Bureau. See KRS 15A.140 and 15A.020.
Your question is whether the Bureau of Corrections in this situation has violated any rights or constitutional rights of Ms. Bray in denying further visitation with the inmate. Your question suggests also the correlative rights of the prisoner to be visited.
The Court, in Kelly v. Dowd (C.C.A. -7, 1944) 140 F.2d 81, wrote this about the discretion of prison officials in dealing with inmates:
"The acts of prison officials, vested with a rather wide discretion in safe-keeping and securing prisoners committed to their custody and charged with the right and duty to maintain discipline among the inmates, should be upheld if reasonably necessary to effectuate the purposes of imprisonment. Whether a state warden, in keeping and caring for prisoners of the commonwealth, has adopted regulations or performed acts which result in unreasonable discrimination against an inmate or take from him the right not to be subjected to indignities or deprive him of what prisoners are permitted to enjoy under the statutes, are questions peculiarly fit to be determined in the first instance by the courts of the state."
The Eighth Circuit, in Blake v. Pryse, Warden (C.C.A. -8, 1971) 444 F.2d 218, pointed out that a criminal defendant upon incarceration loses certain rights:
"An individual upon incarceration loses certain personal freedoms and rights and is under a temporary duty to conform to reasonable institutional regulations. The courts will not interfere with prison regulations and discipline except in exceptional circumstances and those involving cruel and unusual punishment. We find neither here. The trial court's published opinion adequately deals with the issue in this case."
Thus the court said in Blake, above, that absent a deprivation of a constitutional right, the federal courts will not interfere with the administration of the prison system.
"The fact that an inmate such as Jones disagrees with a particular administrative prison determination does not render that determination a violation of the inmate's constitutional rights. " See Jones v. McCalley (U.S.D.Ct., Md - 1975) 404 F.Supp. 350, 352 and 42 U.S.C.A. § 1983.
The Supreme Court of the United States, in Pell v. Procunier, 417 U.S. 817, 41 L. Ed. 2d 495, 94 S. Ct. 2800 (1974), observed that lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system. The court wrote this at 41 L. Ed. 2d 501-502:
"In the First Amendment context a corollary of this principle is that a prison inmate retains those First Amendment rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system. Thus, challenges to prison restrictions that are asserted to inhibit First Amendment interests must be analyzed in terms of the legitimate policies and goals of the corrections system, to whose custody and care the prisoner has been committed in accordance with due process of law.
"An important function of the corrections system is the deterrence of crime. The premise is that by confining criminal offenders in a facility where they are isolated from the rest of society, a condition that most people presumably find undesirable, they and others will be deterred from committing additional criminal offenses. This isolation, of course, also serves a protective function by quarantining criminal offenders for a given period of time while, it is hoped, the rehabilitative processes of the corrections system work to correct the offender's demonstrated criminal proclivity. Thus, since most offenders will eventually return to society, another paramount objective of the corrections system is the rehabilitation of those committed to its custody. Finally, central to all other corrections goals is the institutional consideration of internal security within the corrections facilities themselves. It is in the light of these legitimate penal objectives that a court must assess challenges to prison regulations based on asserted constitutional rights of prisoners. "
In speaking of governmental prison regulations, the court said this in Pell, above, at 41 L. Ed. 2d 504:
"'The nature of a place, the pattern of its normal activities, dictate the kinds of regulations of time, place, and manner that are reasonable.' Grayned, supra, at 116, 33 L Ed 2d 222 (internal quotation marks omitted). The 'normal activity' to which a prison is committed-the involuntary confinement and isolation of large numbers of people, some of whom have demonstrated a capacity for violence-necessarily requires that considerable attention be devoted to the maintenance of security."
The complexity of prison administration was pointed out by the Supreme Court in Procunier v. Martinez, 416 U.S. 396, 40 L. Ed. 2d 224, 94 S. Ct. 1800, at 40 L. Ed. 2d 235:
"Prison administrators are responsible for maintaining internal order and discipline, for securing their institutions against unauthorized access or escape, and for rehabilitating, to the extent that human nature and inadequate resources allow, the inmates placed in their custody. The Herculean obstacles to effective discharge of these duties are too apparent to warrant explication. Suffice it to say that the problems of prisons in America are complex and intractable, and, more to the point, they are not readily susceptible of resolution by decree. Most require expertise, comprehensive planning, and a commitment of resources, all of which are preculiarly within the province of the legislative and executive branches of government. For all of those reasons, courts are ill equipped to deal with the increasingly urgent problems of prison administration and reform."
Even as concerns the prisoner, there is no constitutional right to visitation in and of itself. The Fifth Circuit wrote this in Newman v. State of Ala., (U.S.C.A. -5, 1977) 559 F.2d 283, 291:
"Under our decision in McCray v. Sullivan, we feel that visitation regulations should be left to prison authorities, wisely adapted to individual circumstances if their sound discretion should so dictate, or included in general rules which allow prisoners reasonable visitation. "
In Dothard v. Rawlinson, 433 U.S. 321, 336, 97 S. Ct. 2720, 53 L. Ed. 2d 786 (1977), the mere presence of a woman as a guard in a "contact" position in a prison, under the conditions prevailing in the Alabama prison system, was regarded as a "real threat . . . to the basic control of the penitentiary and protection of its inmates. "
The federal courts have gone so far as to hold that a county jail's withholding the privilege from inmates of the opportunity for conjugal relationships, i.e., intimate sexual relations including intercourse, with female prisoners or with female visitors did not constitute a deprivation of the prisoner's civil rights concerning cruel and inhuman punishment. See Stuart v. Heard, (U.S.D. Ct. S.D. Tex., 1973) 359 F.Supp. 921, 923; and Eighth Amendment of the U.S. Constitution. The court concluded that "conjugal visits" or other sexual intimacy visits do not involve a constitutionally protected right under the federal constitution.
The basic rule relating to the internal management of a prison is stated in 72 C.J.S., Prisons, § 18, page 872:
"Ordinarily, a jailer or like prison official is vested with a certain amount of discretion with respect to the safe-keeping, security, and discipline of his prisoners; and his acts, in this respect, should be upheld, if reasonably necessary to effectuate the purpose of imprisonment, so that the court will not interfere, where it does not appear that he has misused his power for the purpose of oppression."
As to visitors being permitted to see prisoners, this is written in 72 C.J.S., Prisons, § 18, page 874:
"A prisoner is not to be allowed untrammeled intercourse with the outside world. . ."
As the federal courts have said, the prisoner has no constitutional right to visitation in and of itself. Newman v. State of Alabama, 559 F.2d 283, 291, above. A fortiori, a friend or even a fiance of a prisoner has no constitutional right to visit the prisoner in and of itself. However, in refusing a prisoner's fiance visitation privileges, which is inextricably intertwined with the prisoner's desire for such visitation, the prison authority must act reasonably such as not to violate the spirit of § 2 of the Kentucky Constitution. See Pritchett v. Marshall, Ky., 375 S.W.2d 253 (1963).
CONCLUSION
Under the facts as presented to this office, and when such facts are weighed against the judicial principles referred to above, it is our opinion that the Bureau of Corrections is acting reasonably under the circumstances, and not arbitrarily nor capriciously, in denying Ms. Bray visitation privileges.
Note that under Pell v. Procunier, 41 L. Ed. 2d 495, and Procunier v. Martinez, 40 L. Ed. 2d 224, prison regulations dealing with visitation will be upheld as being "reasonable", where the prison objectives involved include any of the following: internal order and discipline, deterrence of crime, quarantining of criminal offenders, rehabilitation of the criminal, and security of the prison.