# Kentucky Department of Corrections v. Thompson/Concurrence Kennedy

* Court Documents
* Case Syllabus
* Opinion of the Court
* Concurring Opinion Kennedy
* Dissenting Opinion Marshall
Justice KENNEDY, 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.
Justice MARSHALL, with whom Justice BRENNAN and Justice STEVENS join, 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 close friends for any reason whatsoever, or for no reason at all. Prisoners will not even be entitled to learn the reason, if any, why a visitor has been turned away. In my view, the exercise of such unbridled governmental power over the basic human need to see family members and friends strikes at the heart of the liberty protected by the Due Process Clause of the Fourteenth Amendment. Recognizing a liberty interest in this case would not create a right to "unfettered visitation," ante, at 460, but would merely afford prisoners rudimentary procedural safeguards against retaliatory or arbitrary denials of visits. Because the majority refuses to take this small step, I dissent.
* The majority begins its analysis by conceding, as it must under our precedents, that prisoners do not shed their constitutio al rights at the prison gate, but instead retain a residuum of constitutionally protected liberty independent of any state laws or regulations. See ante, at 459-4611908. In the balance of its opinion, however, the majority proceeds to prove the emptiness of this initial gesture. In concluding that prison visits implicate no retained liberty interest, the majority applies the following oft-cited test: " 'As long as the conditions or degree of confinement to which the prisoner is subjected is within the sentence imposed upon him and is not otherwise violative of the Constitution, the Due Process Clause does not in itself subject an inmate's treatment by prison authorities to judicial oversight.' " Ante, at 1908, quotingMontanye v. Haymes, 427 U.S. 236, 242, 96 S.Ct. 2543, 2547, 49 L.Ed.2d 466 (1976). On its face, the "within the sentence" test knows few rivals for vagueness and pliability, not the least because a typical prison sentence says little more than that the defendant must spend a specified period of time behind bars. As applied, this test offers prisoners scant more protection, for the Justices employing it have rarely scrutinized the actual conditions of confinement faced by the prisoners in the correctional institutions at issue. Under this approach, therefore, "a prisoner crosses into limbo when he enters into penal confinement." Hewitt v. Helms, 459 U.S. 460, 482, 103 S.Ct. 864, 877, 74 L.Ed.2d 675 (1983) (STEVENS, J., dissenting). In theory he retains some minimal interest in liberty protected by the Due Process Clause, but in practice this interest crystallizes only on those infrequent occasions when a majority of the Court happens to say so.
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, 103 S.Ct. 1741, 1749, 75 L.Ed.2d 813 (1983) (MARSHALL, J., dissenting), quoting Vitek v. Jones, 445 U.S. 480, 488, 100 S.Ct. 1254, 1261, 63 L.Ed.2d 552 (1980); see also Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (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, 459 U.S., at 485-486, 103 S.Ct., at 879 (STEVENS, J., dissenting) (footnote omitted); see also Olim, supra, 461 U.S., at 252, 103 S.Ct., at 1749 (MARSHALL, J., dissenting). Put another way, the retained liberty interest protected by the Constitution encompasses the right to be free from arbitrary governmental action affecting significant personal interests. See Wolff v. McDonnell, 418 U.S. 539, 571-572, n. 19, 94 S.Ct. 2963, 2982, n. 19, 41 L.Ed.2d 935 (1974).
Prison visits have long been recognized as critically importan to inmates as well as to the communities to which the inmates ultimately will return. Without visits, a prisoner "may be entirely cut off from his only contacts with the outside world." Olim, supra, 461 U.S., at 253, 103 S.Ct., at 1750 (MARSHALL, J., dissenting). Confinement without visitation
"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. . . . [V]isitation 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 NCCUSLA) (citations omitted).
Consistent with this view, numerous governmental and private organizations which deal closely with correctional institutions have promulgated standards designed "to maximize visiting opportunities for inmates." U.S. Dept. of Justice, Federal Standards for Prisons and Jails, Standard 12.12 (1980). Although the details vary, the standards uniformly provide that visitors should not be barred except for good cause shown. Kentucky itself, in its statewide Corrections Policies and Procedures (Commonwealth Procedures), recognizes that visits permit reformatory inmates such as Kenneth Bobbitt and Kevin Black "to maintain morale and contact with the community," and thus "are important to the inmate and his success within the community upon release." App. 98.
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 barred for any reason except those enumerated as legitimate in the Commonwealth Procedures and the institution-specific Reformatory Procedures Memorandum (Reformatory Memorandum). See ante, at 456-458, nn. 1, 2. It is nowhere suggested, furthermore, that these prisoners' sentences contemplated denials of visits for nonenumerated reasons, or that such denials are " 'well within the terms of confinement ordinarily contemplated' " in the reformatory. Ante, at 461, quoting Hewitt, 459 U.S., at 468, 103 S.Ct., at 869. Under the majority's disposition, neither prisoner will ever have a right to contest the prison authorities' account. One need hardly be cynical about prison administrators to recognize that the distinct possibility of retaliatory or otherwise groundless deprivations of visits calls for a modicum of procedural protections to guard against such behavior.
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. As the majority notes, " 'a State creates a protected liberty interest by placing substantive limitations on official discretion.' " Ante, at 462, quoting Olim, 461 U.S., at 249, 103 S.Ct., 1747. I fully agree with the majority that "[t]he regulations and procedures at issue in this case do provide certain 'substantive predicates' to guide the decisionmaker." Ante, at 463. But I cannot agree that Kentucky's prison regulations do not create a liberty interest because they "lack the requisite relevant mandatory language." Ibid. As an initial matter, I fail to see why mandatory language always is an essential element of a state-created liberty interest. Once it is clear that a State has imposed substantive criteria in statutes or regulations to guide or limit official discretion, there is no reason to assume-as the majority does-that officials applying the statutes or regulations are likely to ignore the criteria if there is not some undefined quantity of the words "shall" or "must." Drafters of statutes or regulations do not ordinarily view the criteria they establish as mere surplusage. Absent concrete evidence that state officials routinely ignore substantive criteria set forth in statutes or regulations (and there is no such evidence here), it is only proper to assume that the criteria are regularly employed in practice, thereby creating legitimate expectations worthy of protection by the Due Process Clause. Common sense suggests that expectations stem from practice as well as from the language of statutes or re ulations. Vitek v. Jones, 445 U.S., at 489, 100 S.Ct., at 1261 (approving lower courts' reliance on "objective expectation, firmly fixed in state law and official Penal Complex practice"). This point escapes the majority, which apparently harbors the "unrealistic [belief] that variations such as the use of 'may' rather than 'shall' could negate the expectations derived from experience with a [prison] system and . . . enumerated criteria. . . ." Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 29-30, n. 9, 99 S.Ct. 2100, 2115 n. 9, 60 L.Ed.2d 668 (1979) (MARSHALL, J., dissenting) (citation omitted).
Even if I thought it proper to rely on the presence or absence of mandatory language, I would still disagree with the majority's determination that the regulations here lack such language. The majority relies primarily on a statement in the Reformatory Memorandum that "administrative staff reserves the right to allow or disallow visits." It is important, however, to put this "caveat," ante, at 464, in proper context. The Reformatory Memorandum's section on visitation occupies 33 pages of the joint appendix. The caveat appears just once in a general, introductory paragraph which also includes the statement that "it is the policy of the Kentucky State Reformatory to respect the right of inmates to have visits." App. 106 (emphasis added). Over the next 20 pages, the Reformatory Memorandum lays out in great detail the mandatory "procedures to be enforced in regard to all types of visits." Ibid. (emphasis added). It states, for example, that "[v]isits will be conducted seven (7) days a week," id., at 107 (emphasis added); that "[a]n inmate is allowed three (3) separate visits . . . per week," id., at 108 (emphasis added); that "[t]here will be no visit list maintained which specifies who may visit an inmate," ibid. (emphasis added); that "[a]n inmate is allowed to have . . . three (3) adult visitors . . . per visit," id., at 108-109 (emphasis added); that visits "will be one and one-half hours," id., at 109 (emphasis added); and that "[e]ach inmate will be allowed one (1) outdoor visit per week," id., at 125 (emphasis added).
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, it is inconceivable that prisoners in the reformatory would not "reasonably form an objective expectation that a visit would necessarily be allowed absent the occurrence of one of the listed conditions." Ante, at 465. The majority inexplicably ignores nearly all of these commands, despite claiming to have considered the "overall effect of the regulations," ibid., and despite the Commonwealth's striking concession that the regulations "repeatedly use 'will', 'shall', and similar directive or mandatory language" in an effort "to advise inmates and potential visitors what is expected." Brief for Petitioners 13, 30 (emphasis added); see also Tr. of Oral Arg. 5-6 ("[O]ur procedures are very limiting in the discretion of the officials"). In light of these mandatory commands, the caveat, as well as any other language that could be taken to suggest that visitors need not "fall within one of the described categories in order to be excluded," ante, at 464, amount to nothing more than mere boilerplate. The Court should reject the view that "state laws which impose substantive limitations and elaborate procedural requirements on official conduct create no liberty interest solely because there remains the possibility that an official will act in an arbitrary manner at the end of the process." Olim, 461 U.S., at 258-259, 103 S.Ct., at 1752 (MARSHALL, J., dissenting) (discussing holding in Hewitt ); see also 461 U.S., at 259, n. 13, 103 S.Ct., at 1752, n. 13 (discussing similar holding in Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979); cf. Brennan v. Cunningham, 813 F.2d 1, 8 (C.A.1 1987).
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, 103 S.Ct., at 871, 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, 100 S.Ct., at 1259, 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.
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, 94 S.Ct., at 2974. 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 even notice, is constitutionally due. I cannot accept such a parsimonious reading of the Due Process Clause, and therefore dissent.

## Notes

* ↑ "[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, 96 S.Ct. 2532, 2542, 49 L.Ed.2d 451 (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, (hereinafter NSA), 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 terms, it is important to preserve, wherever possible, family and community ties"); National Advisory Commission on Criminal Justice Standards and Goals, Corrections, Standard 2.17, Commentary (1973) (hereinafter NAC) ("Strained ties with family and friends increase the difficulty of making the eventual transition back to the community. The critical value for offenders of a program of visiting with relatives and friends long has been recognized"); cf. Thornburgh v. Abbott, 490 U.S. 401, 407, 109 S.Ct. 1874, 1878, 104 L.Ed.2d 459 (1989) ("Access [to prisons] is essential . . . to families and friends of prisoners who seek to sustain relationships with them . . ."); Pell v. Procunier, 417 U.S. 817, 825, 94 S.Ct. 2800, 2805, 41 L.Ed.2d 495 (1974) (noting prison director's determination that personal visits "aid in the rehabilitation of the inmate while not compromising the other legitimate objectives of the corrections system").
* ↑ 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 Ins itutions, 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, 103 S.Ct. 1741, 1745 n. 6, 75 L.Ed.2d 813 (1983) (MARSHALL, J., dissenting), quoting Hewitt v. Helms, 459 U.S. 460, 488, 103 S.Ct. 864, 880, 74 L.Ed.2d 675 (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 (C.A.8 1987) (en banc) (a prisoner's "expectancy" is based on "a review of a state rule, regulation, or practice"); Whitehorn v. Harrelson, 758 F.2d 1416, 1422 (C.A.11 1985) ("The court must examine the . . . practices of the prison officials in administering the program to determine whether [it] . . . place[s] a restriction on the prison official's discretion . . ."); Parker v. Cook, 642 F.2d 865, 876 (C.A.5 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, 92 S.Ct. 2694, 2700, 33 L.Ed.2d 570 (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 f 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 and outdoor visits, as well as for legal, clergy, and hospital visits. App. 106-132.
* ↑ Although the Commonwealth Procedures are somewhat less elaborate-because the individual correctional institutions re charged with supplementing these statewide rules with ones designed to fit their own institutions-there is no shortage of mandatory language. Visits "are to be promoted and facilitated by each institution," id., at 98 (emphasis added); "[a]t a minimum," weekend and holiday visiting "shall [be] permi[tted]," id., at 99 (emphasis added); the individual institutions "must allow each inmate the opportunity to visit a minimum of eight hours per month," ibid. (emphasis added); and "[u]nder normal conditions, any [regular visitor] can visit unless visits could reasonably create a threat to the security and order of the institution," id., at 100 (emphasis added).
* ↑ 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.
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