Full opinion text
FINDINGS OF FACT AND CONCLUSIONS OF LAW EDMUNDS, District Judge. INTRODUCTION 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 Pis.’ 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 Southwiek, 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. These matters were tried to the bench in the fall of 2000; the Court makes the following findings of fact and conclusions of law. FINDINGS OF FACT I. Importance of Visits Visits from family and other loved ones are extremely important in the life of most prisoners. A broad consensus, supported by decades of research, affirms that visits promote rehabilitation, reduce behavior problems, and significantly increase a prisoner’s chance for success on parole. Visits are also important to maintaining prisoners’ mental health. Because a high percentage of prisoners suffer from significant substance abuse, mental illness, and life-threatening illnesses, they are particularly vulnerable to the impact of stress. Visits help ease the impact of these conditions, particularly for those suffering from depression or dual diagnosis (mental illness combined with substance abuse). Letters and telephone calls are inadequate as an exclusive means of maintaining family bonds over a period of years. Because of the importance of visits to the prisoner, the system, and the larger community, the American Correctional Association Standards state that visits should be limited only by institutional schedule, space, and personnel constraint, or when there are substantial reasons to justify limitations; that prisoners should be permitted to visit with people of their choice unless there is a clear and convincing threat to safety and security; and that even prisoners in segregation should have opportunities for visitation unless there are substantial reasons for withholding it. Defendants’ visiting policy used to expressly state that visits are important to rehabilitation and post-release adjustment, and should be encouraged. II. Imposition of Restrictions The evolution of the challenged restrictions goes back to the early 1990’s. Michigan’s prison population increased substantially from 1990 to 1994, and has continued to increase through 2000. Many facilities house inmate populations beyond their intended capacities; double bunking became commonplace by the early 1990’s. See Tr. 1, pp. 72-73. In none of these facilities, however, was visiting space expanded to accommodate the additional prisoners. See Tr. 1, p. 73. By 1994, some management personnel at MDOC perceived problems related to the increased number of visitors and visits at the facilities. These problems included the necessity to terminate some visits early, the difficulty of detecting drug trafficking and .smuggling related to visits, and the difficulty of supervising young children who became bored or restless during long hours in the visiting room or waiting room. As an initial response to these problems, in April 1995, the MDOC promulgated regulations which established certain restrictions on visitation, department-wide visiting standards to be applied uniformly at each facility. See Pls.’ Ex. 4 (“visiting standards”). These standards, adopted the following month, limited the number of visits allowed to prisoners each month, depending on their security classification, restricted the hours of visitation and the number of weekend visits, and also restricted the number of persons who could visit a prisoner at one time. Facilities which housed prisoners in more than one security level were required to split their visiting hours between those groups of prisoners. These standards are not challenged by Plaintiffs. Later in 1995, the Department issued amendments to administrative rules for prisoner visiting privileges. The 1995 rules that are at issue in this case set forth the following criteria, among others: [Mich. Admin. Code Rule 791.6607 through 791.6614] Define what persons are in a prisoner’s immediate family; [For purposes of this provision, siblings are defined as immediate family]. See § 791.6609(9). Limit the number of visitors for a prisoner; [Prisoners are limited to an approved list of ten visitors, not including immediate family]; see id. § 791.6609(2). Require visitors and immediate family members to be on a prisoner’s list of approved visitors; [Pre-screening of all visitors.] see id. § 791.6609(2). Restrict prisoner’s access to minors, in that minors under the age of 18 are not permitted to visit unless they are the child, stepchild, or grandchild of the prisoner and accompanied by an adult immediate family member or a legal guardian. Additionally, a child is not permitted to visit if the parental rights of the prisoner have been terminated; see id. § 791.6609(2)(b), (5), (6). Prohibit former prisoners from visiting unless they are the immediate family of a prisoner or unless prior approval for the visit is obtained from the warden of the institution where the visit will occur; see id. § 791.6609(7) and Permanently ban all visitation (other than attorneys or clergy) for prisoners with two or more major misconduct charges of substance abuse. See id. § 791.6609(H). See Pls.’ Ex. 1. MDOC Deputy Director Dan Bolden testified that one goal of the Department in enacting visiting restrictions was to reduce the volume of visits and visitors by 10-15%. See Tr. 3, p. 83. As a result of the restrictions imposed by the visiting standards adopted in May 1995, the volume of visits and visitors decreased substantially over the next several months. Plaintiffs’ witness Philip Creekmore, who compiled summaries of visiting statistics from MDOC’s computerized visitor tracking system and other MDOC documents, testified that in April 1995, most facilities were below two visits per inmate per month, and that indeed the majority were below one visit per inmate per month. With respect to the fifteen facilities which had the highest volume of visits, the April 1995 average was 2.407 visits per inmate; that ratio dropped in August/September 1995 to 1.5 visits per inmate. The ratio decreased further in October 1995, down to approximately 50% of the numbers prior to the May 1995 rule change. Thus, within six months, the visiting restrictions exceeded, by three to five times, the original goal of a 10-15% reduction in prison visits. In succeeding months and years, the ratio of visits per month per prisoner remained relatively flat. If the statistics are examined in terms of the number of visitors rather than the number of visits, one finds a decrease of approximately 25% from 1994 to 1995, another 24% from 1995 to 1996, and another 10-15% from 1996 to 1997. See Defs.’ Ex. 6. Again the result of the restrictions far exceeded the original reduction goals. Marjorie VanOchten, the former MDOC Administrator of the Office of Policy and Hearings who drafted the administrative rules concerning visitation, testified that the visiting standards that Deputy Director Bolden drafted were supposed to have an impact on volume. See Tr. 1, p. 66. She does not recall any discussion about increasing the use of cameras or increasing the number of staff supervising visits as an alternative method of addressing problems caused by the volume of visits. See Tr. 1, p. 71. She stated: A.... [T]he idea was that the volume would be decreased by these standards and by the rules, and so you would have fewer people in the visiting room, so it would be easier for the one person who had been in the room before — ■ there had always been an officer monitoring visits, it would be easier for that officer to monitor visits if there were fewer people. Q. And in the standardization and with the list of 10, visits have decreased almost in half, isn’t that true? A.... that sounds right, about half. It was significant, I know. Tr. 1, pp. 71-72. Ms. VanOchten also indicated that there was no attempt, during the consideration and drafting of the rules, to actually quantify the number of children who were visitors or the number who would be excluded by the new restrictions. See Tr. 1, pp, 58, 75. One of the concerns articulated by the Department was that the large number of visitors contributed to the volume of drugs and other contraband smuggled into the facilities. Although several MDOC witnesses testified that they believed drugs and other contraband were introduced into prison facilities through visitors, little hard data was available to confirm or refute this. Plaintiffs’ Exhibit 44, compiled by Philip Creekmore from MDOC records, shows the misconduct to visit ratio from 1995 to 1997 for all facilities, i.e., the number of misconducts that were related to something which occurred during or related to a visit. With the exception of one facility, AMI, which showed a spike to six per thousand visit-related misconducts in 1996 (compared to zero per thousand in 1995 and 1997), the ratio was almost completely flat over the three year period. With respect to non-contact visitation, the MDOC acknowledged that it has no records reflecting an incident of introduction or attempted introduction of contraband during a non-contact visit since January 1, 1994. See Pls.’ Ex. 39, ¶ 4. Another articulated concern in passing the visitation restrictions was the safety and security of minor children. In 1994, an inmate at the MDOC Muskegon facility was found to have molested a three year old girl who had been brought to the facility by her mother (a friend of the inmate) for a prison visit. This horrible incident spurred the Department to re-examine its regulations concerning visits by minor children; the Department was also concerned generally with the security and safety issues which arose when children spent long times waiting or confined to the visiting room. To address these concerns, the Department issued regulations through a Director’s Office Memorandum 1995-58, effective August 25, 1995, limiting visits by minor children as follows: Visitors under the age of 18 must be the child, stepchild, or grandchild of the prisoner ... A person under the age of 18 may be placed on a prisoner’s approved visitors list only if s/he is an emancipated minor or is the child, stepchild or grandchild of the prisoner, except that in the following circumstances, placement of the child on the list shall not be approved [if]: (a) The parental rights of the prisoner to the child have been terminated. Pls.’ Ex. 5; see also Pls.’ Ex. 1 (the part of the Administrative Code which incorporated the regulations in the Director’s Office Memorandum). Thus, although siblings are considered “immediate family” for inclusion on a prisoner’s approved visitor list (and thereby exempted from the quota of ten), siblings under the age of eighteen are precluded from any and all visitation, as are minor nieces and nephews, and children whose parents have terminated their parental rights. See Pls.’ Ex. 1, Mich. Admin. Code R. §§ 791.6609(2), (6), (7). III. Exclusions of Minor Siblings, Nieces and Nephews On the issue of sibling visitation, Department witnesses all acknowledged that they had no specific penological or other substantive concern relating to this exclusion, other than the general objective to reduce the number of children visiting to the greatest possible extent. Marjorie Va-nOchten, the former MDOC Administrator of the Office of Policy and Hearings, expressed in writing her concern about the narrow definition of minor children permitted to visit, but her suggestions for more flexibility were rejected. See Pis.’ Ex. 14. Ms. VanOchten testified as following: Q. Let’s talk about, unless they had some close relationship of the prisoner. What about a brother or sister of the prisoner? Was that rejected as simply not a close relationship? A. I don’t recall a lot of discussion. I know that subsequently it became— it became more of an issue because I think we didn’t realize at the time that so many prisoners would have siblings who were under the age of 18 because, of course, if they’re 18 or older, they would have been allowed under the definition of immediate family. It’s just if they were under the age of 18, and there just was not an appreciation of the number of prisoners who we would have who had siblings who were under the age of 18. I know that subsequently there was a lot of attention to that particular issue because it affected a number of people. Q. Initially, is it fair to say that the siblings were excluded not because of any stated purpose, but because people just didn’t think about it? A. We really did not think about the impact it would have, didn’t realize that there would be as many people affected as it turned out there were. Q. But was there a specific rationale given at this time as to why siblings, some rationale that connected with the penological purpose, why the siblings, the younger brothers and sisters of prisoners should not be allowed in? A. Not other than the general concern about children that I just articulated. Q. The general concern you articulated about children was, we’re not a day care center and children who are unrelated to prisoners shouldn’t come in; is that correct? A. Well, just that — not exactly. It’s not a day care center and that the children who are allowed in should have a close relationship with the prisoner so that you would limit the number of children who were inside the prison as much as possible. The idea was we don’t like children in here at all. Let’s make sure we have as small a group as possible, but we realize we have to let people see their children and their grandchildren, and so we’ll let those people in, but other than that, we just wanted to keep the number of children inside the prison as limited as possible. Q. Do you think brothers and sisters aren’t close? A. I think brothers and sisters are close, no question about it. Q. You think they should have been included in the rules? A. That was the recommendation that I made. Q. Do you see any penological difficulty through security or any other concern that would be impacted by letting prisoners see their younger brothers and sisters? A. The only thing would be it would expand the number of minors, children in the prison. How much, I don’t know, and that might be a concern. But other than that, I don’t see any concern with allowing siblings to come and visit. Q. Did anybody ever know how many siblings you were talking about, whether it would cause any impact at all? A. Not that I’m aware of. There was not anything done to try to quantify that. Q. And certainly siblings weren’t — minor siblings weren’t pulled out as a significant source of volume in any of your discussions? A. No, no. Tr. 1, pp. 55-57, 58. The new restrictions on minor visitors have had enormous negative consequences for prisoners and their families. Siblings, nieces and nephews under eighteen who had been visiting without incident could no longer see their incarcerated brothers, sisters, aunts, and uncles. The prohibition on minor nieces and nephews makes it difficult for the prisoners’ adult siblings to visit because they cannot bring their own children, or for the prisoners’ .own parents to visit if they cannot bring other grandchildren for whom they are caring, and this may even prevent the prisoner from seeing his or her own children if these relatives are caring for the prisoners’ children as well. Deputy Director Dan Bolden testified that three of his major concerns related to visits by minor children were “smuggling of contraband, physical injury and sexual assault.” Tr. 3, p. 33. He also stated his administrative concern about the supervision of unruly children, and his “personal and philosophical” belief that prison is “not a good place for kids to grow up,” that kids should fear prison and that they should not visit because they become “too comfortable” with the prison environment. Tr. 3, pp. 33, 58-60. On the general subject of prison visits by children, Mr. Bolden acknowledged as follows in cross examination: Q. Could you give me an idea of the number of critical incident reports that you’ve — that have been issued relating to children in the visiting rooms or the parking lots? A. I absolutely cannot. I’m speaking basically of my own personal observations from the time that I worked in prisons and the túne that I visited prisons from what I observed. I don’t have any documents or any numbers I can give you. Mine are from personal observations. Tr. 3, p. 34. A. Yes, with our visitor standards, we have continually tried to enforce children- — being responsible for the children. Q. And how do you do that? A. By warnings and termination of visits if they’re not. Q. And do you have any idea how many times that’s had to occur in the last five or six years? A. No, I do not. Q. Do you know if it’s occurred? A. Yes, I do know it has occurred. Tr. 3, p. 35. Q. Do you believe that — let me — your testimony is that you do believe that injuries are occurring in the visiting rooms? A. I said I think injury — injuries do occur, and there’s always a potential for injury to occur. When children are not supervised properly, we have moving gates, we have things that you can climb on. We have prisoner porters in a lot of institutions that are working in administration buildings, and they’re working up front or on the grounds, so there is a potential for injury to a child under those circumstances. Q. Okay. So you’re not saying that children are in fact being harmed. There’s just a potential for harm; is that correct? A. I’m saying that I am aware of a— I’m aware of situations where children can be harmed. I’m not — I can’t cite you any specific situations where a child has been harmed. If I said that, I misspoke myself. I’m saying that there are situations in a prison environment, in the visiting room and administration building, between the gates, where a child is at some risk if they’re not properly supervised. Tr. 3, p. 37. Q. Do you know how many children currently are visiting prisoners? A. No, I do not. Q. And as far as you know, there are, at least in the waiting room, no actual injuries to children; is that correct? A. There are none that I can under oath testify to. Q. But you are sure that there is potential for injury. A. I’m certain of that. Q. But today you do not have any information for us that there has been injury at least in the last four or five years; is that correct? A. Well, I can’t say that because I don’t know. Q. Well, would you at least agree that if there has been an injury or two or three, the number of injuries would be minuscule in comparison to the number of visits per year? A. I don’t have any data to substantiate that fact, but I think it would be small. Tr. 3, pp. 39^10. Q. Now, I’d like to get a sense of the number of children visiting before the rules, say up to 1995 and after 1995. Could you give me a sense of what percentage of children visited before, and then after the rules? A. I can’t give you a number. There was a significant number that did visit before the rule change, but I can’t give you a percentage or a number, but there were a number of children that visited. Q. In your mind, what does significant mean? Is it 5 percent, 10 percent? A. I would say that most cases, where there was females coming to visit, there was at least one to two children with that visitor, so how do you break that out on a percentage basis, I don’t know, but there were probably — prior to the rule changes, there was probably 10 to 15 percent would probably be a good number. Q. And it’s your best estimate that 10 to 15 percent of all visitors that go into the visiting room or come to the facility and are in the waiting rooms. A. Well, they come to visit, and we’re talking about pre-rule change, as I understood the question. Q. I just want to be clear. So it would be fair to say that 10 to 15 percent of the visitors before the rules went into effect were children; is that correct? A. That is a very rough estimate on my part. Q. And for purposes of my question, by children, I’m meaning people under the age of 18. A. Yes. Q. Is that also your understanding? A. Yes. Q. Now, what about after the rules took effect? A. I think the number has been substantially reduced after the rule change. Q. To what level do you think it’s reduced? A. I don’t have a precise number or percentage, but I know there’s been substantial reduction in the number of children coming after the rule change. Q. For the groups that were coming in before, the 10 to 15 percent coming in before the rule change, did you have any sense of whether they were related to the prisoner they were visiting? A. I don’t have a sense of the kinship or relationship of those that were coming prior to the rule change. I just can’t tell you definitively one way or the other. Q. Do you have any sense of, before the rule change, who the children accompanying the adult were visiting? A. Yes. Prior to the rule change, I had some general idea that a number of the children that were coming to visit were the children of girlfriends of prisoners, they were children that were in some cases relatives, distant relatives of the prisoner. I think it just filled the whole spectrum of types of people that were coming to visit. But a lot of circumstances the children were children of the girlfriend of the prisoner. Q. Who just were not related at all? A. Yes. Q. By distant relative, what do you mean? A. Well, maybe a nephew, niece, or a cousin, people of that kinship. Tr. 3, pp. 46-^49. Q. What changes have you made at your facilities to make them more safe for children? A. Well, the big change, I think, to make facilities safer for everybody, is dealing with drugs and narcotics. Seems to me to be the, a central theme here. Q. So in terms of children running around, being left abandoned in the parking lot, getting into administrative offices, you have not made any specific change that would address those things that you say make them not safe? A. I didn’t understand the question. Let me answer that question and— One of the things that we did is reduce the number. By reducing the number, you can better supervise those that are there. Before, we had visiting rooms that were packed elbow to elbow, and often out our front door, which made it very difficult to supervise children or anybody else. By reducing the number to a manageable number, our front desk staff can properly supervise and monitor what’s going on. Q. And reducing the number, are you referring to the point in time when, in 1995 when prisoners were required to have an approved visitor list? A. I’m talking about what has happened' — you asked me what had happened in the way of improvements or changes to ensure children’s safety, and what I said we have done is as a result of the new rules and the new visiting standards, we have reduced the number to a manageable number where we can properly supervise the children and the guests that are visiting in our facilities. Q. So when you say reduce the number, you’re referring to overall visitors, and not a prisoner’s list? A. Yes, I’m talkfing] about the overall visitors. Q. So the changes at the facilities, you have not made changes at the facilities other than the rules that are under discussion today? A. Not other than as they relate to your question. Q. For example, you didn’t add staff or change the seats, number of seats, carpet on the floor? A. No, we did not make any of those kind of changes. Tr. 3, pp. 53-54. Q. I notice in your credentials you have a degree in sociology; is that correct? A. That’s correct. Q. And that was from what year? A. 1967. Q. And have you read any studies or literature that supports you in this view? [that children who visit prisoners become too comfortable with the environment] A. No, I have not. Q. Have you spoken with a statistically significant number of children to reach this conclusion? A. No, I have not. I think I testified that a lot of this was my personal and philosophical rationale. I don’t ever recall saying I read a study or talked to anyone. Q. In your studies for your sociology degree, did you study child development at that time? A. Yes. Q. And since that time have you become aware of any studies that addressed the risk for children created by separation from the parents or how the separation would manifest differently in different age groups? A. No, I have not read anything, and I don’t advocate total separation. Q. You’re not a psychologist, are you? A. No, I’m not. Q. You do not purport to be able to professionally evaluate what’s in the best interest of a child, do you? A. I do not. Tr. 3, pp. 60-61. Q. And the department’s definition of immediate family for purposes of visiting a prisoner under the age of 18 excludes brothers and sisters, nieces and nephews and cousins; isn’t that correct? A. That is true. Q. Do you have any idea how many nieces an[d] nephews under 18 would want to visit your prisons? A. I don’t have a clue as to how many there would be. Q. What about brothers and sisters under 18? A. I don’t have a good handle on what that number would be either. Tr. 3, pp. 71-72. Q. Now, are you aware that aunts and uncles that have acted as a surrogate parent to a prisoner may visit? A. Yes. Q. But you do not allow nieces and nephews under 18 to whom a prisoner has been a surrogate parent to visit? A. Well, I think if someone can make a case that they provided significantly to someone’s upbringing, that that’s one of those cases where an exception would be sought. I was the person responsible for the language with regard to aunts and uncles, as I understand fully that a lot of the minority prisoners were raised by someone other than a natural parent. Q. Under the rules as written, you do not allow nieces and nephews under 18 to whom a prisoner has been a surrogate parent to visit? A. That’s right. Tr. 3, p. 73. Q. Okay. Now, one of the points I believe you’ve made in your prior testimony is that your opposition, generally speaking, to nieces and nephews under 18 visiting was because you couldn’t verify that they were nieces and nephews. Do you recall that testimony? A. Yes. Q. And isn’t it the case that when a prisoner comes into the system, he comes with a presentence report that identifies family members? A. I don’t think it goes to nieces and nephews. I’ve looked at many, many presentence reports, and it usually covers your immediate family; mother, father, siblings. Q. My question was does it identify brothers and sisters? A. Yes. Q. And the presentence report stays in the institution, and even the counselor’s files, does it not? A. Yes. Tr. 3, pp. 76-78. Q. If the brother or sister can produce a birth certificate of their child, doesn’t that give you adequate documentation of a niece or nephew? A. I think it would if you could get access to that kind of information. Tr. 3, p. 78. Thus, the thrust of Mr. Bolden’s testimony is that the restrictions on visits by minor siblings, nieces and nephews evolved out of the broader desire to reduce visits by minors in general, that this broader desire was based primarily on personal observation and philosophy, and that there is no documentation or other evidence to support the need for or the efficacy of those particular restrictions. Minor siblings, nieces and nephews appear to have been restricted from visitation out of the general desire to reduce the number of minor visitors, and not because of any specific concern for their safety or the security of the prison. Warden Joan Yukins of the Scott Correctional Facility (women) acknowledged that some of the inmates at Scott were as young as fourteen years old, that many had younger brothers and sisters who were precluded from visiting, that prior to the 1995 rule change there had been no problems at Scott related to sibling visitation, and that this particular limitation was not one she had recommended. See Tr. 6, pp. 56-57. She also testified that she did not know the volume of non-contact visits at Scott, nor the number of minor siblings, nieces and nephews who visited Scott prior to the 1995 rule change. When asked about the concerns which led to the change in visitation in 1995, former MDOC Director Kenneth McGinnis testified to many of the same issues that Mr. Bolden raised: security, overcrowding, introduction of contraband, inappropriate visiting room behavior, and sexual abuse. He also acknowledged that he was not aware of the number of minor siblings, nieces or nephews visiting MDOC prior to the 1995 rules, and that he had not considered the sibling relationship when the policy was implemented: Q. Did you ever know how many siblings were visiting the facilities in 1994, minor siblings? A. No, I did not. Q. And you were never able to determine that number, were you? A. No. Q. Nieces and nephews, were you ever able to determine how many nieces and nephews visited your prison facilities in, let’s say, ’94? A. No, I do not. Q. And that would be the same for minor nieces and nephews? A. That’s correct. Q. Your position is that you wanted to stop minors who didn’t have a relationship with prisoners from coming in; correct? A. Well, first, that was the primary issue, is that we really wanted to minimize any minors coming into the institution except for those who had a real purpose in being there. Q. A real purpose. Is it your position that brothers and sisters of prisoners don’t have a relationship with them? A. No, I don’t think that’s my position. I think the primary relationship we were focusing on was parent-child. Tr. 8, pp. 40-41. Q. Did you specifically talk about excluding minor brothers and sisters with the Executive Policy Team? A. No. Q. Did you specifically discuss excluding minor nieces and nephews when you prepared the rules with the Executive Policy Team? A. Yes, there was a discussion about that. Q. There was a discussion about nieces and nephews but not siblings; correct? A. Yes. Tr. 8, pp. 41-42. Although Mr. McGinnis, Deputy Director Bolden, and Warden Withrow testified that they were aware of sexual misconducts occurring in non-contact situations, no evidence was presented to establish that minor children were either involved in or able to see any such activity. See Withrow, Tr. 8, pp. 139-142; Bolden, Tr. 4, pp. 32-33; McGinnis, Tr. 8, p. 8, 52-55. Defendants also acknowledged in their discovery responses that a survey of all correctional facilities has revealed that no records exist reflecting or identifying incidents of sexual abuse or misconduct of minors which occurred during a non-contact visit since January 1, 1984. Plaintiffs also introduced a statement made by Regional Administrator Denise Quarles, who stated that the exclusion of visits by minor siblings had been inadvertent, and that the Department had decided to support a change in the Administrative Rule so as to permit visits by minor siblings. See Pls.’ Ex. 56. That change has never been implemented. The restrictions on minor visitors have disrupted family relationships in a myriad of ways, as testified to by over a dozen different witnesses. Moreover, the peno-logical interests identified by Defendants seem to have a weak connection, if any, to the limitations placed on minor visitors. With respect to the issue of reducing volume generally, Defendants estimate that prior to the 1995 rule changes, 10-15% of visitors were minors. Defendants have no idea how many of these minors who visited prior to 1995 were siblings, nieces and nephews, as opposed to girlfriends’ children or others unrelated to the prisoner. Because nieces and nephews over eighteen can visit a prisoner so long as they fit within the prisoner’s approved list of ten non-immediate family members, there appears to be no logical justification for excluding nieces and nephews under eighteen, who would also have to fit within the fist, as a means of controlling the volume of visits. Although Defendants speculate that small children might be used to carry contraband, there is no evidence that relatives under eighteen present any greater risk of smuggling than relatives over eighteen, and concern about smuggling was not the basis on which siblings, nieces and nephews under eighteen were prohibited from visiting. Defendants have numerous ways of controlling smuggling, even on contact visits, that do not require excluding categories of visitors. One instance of a major misconduct, such as drug smuggling, that occurs during or is associated with a visit, or one criminal act that occurs during a visit, is a basis for imposition of a permanent visiting restriction under the administrative rule and policy. Defendants have adequate methods to prevent and detect drug smuggling, including the use of non-contact visits and a number of steps taken in 1995, such as implementation of the approved visitor lists, a prohibition on visitors being on multiple visitor lists if they are not immediate family, restrictions on the conduct of visits, and more intrusive searches of visitors. Both prisoners and visitors involved in smuggling are subject to criminal prosecution. Limiting minor siblings, nieces and nephews to non-contact visits eliminates the opportunity to smuggle in any event. IV. Non-Contact Visits Although contact visits may be more desirable from the perspective of prisoners and their families, if contact visits are not permitted, then the visual contact that occurs on non-contact visits is crucial to the family member’s ability to reassure themselves about a loved one’s welfare. See Kupers, Tr. 6, pp. 141-42. Family members who had experience with non-contact visits found them to be a critical means of maintaining relationships because they allow for face-to-face contact and spontaneous conversation. All facilities currently have either built-in or portable non-contact visiting booths available. See Bolden, Tr. 3, pp. 29-30. Portable booths are built by prison industries and a warden who needed more could afford to purchase them. Contact and non-contact visitors are processed in exactly the same way. See Benejam, Tr. 2, pp. 40-41. Portable booths can be placed in the contact visiting room at whichever spot allows for the most effective surveillance by officers and cameras. Given the 50% reduction in visiting volume and the fact that many facilities had no volume problems to begin with, it is highly unlikely that restoring non-contact visits to a limited group of people, who would have to fit on a prisoner’s approved list in any event, would substantially burden Defendants’ staff and resources. If Defendant finds that non-contact visits become burdensome at any particular facility or group of facilities, the Deputy Director can adjust visiting hours or take any of the other steps that are within his authority to control visits without excluding these categories of visitors altogether. While Defendants cannot be required to restore minor siblings, nieces and nephews to contact visitation, Defendants could amend R 791.6609 to permit that option if it decided that contact visits for these groups were more workable after all. See Pis.’ Ex. 56, Public Statement of RPA Denise Quarles. To whatever extent Defendants’ concerns about minors are valid, non-contact visits were designed specifically to be an alternative to contact visits where security concerns exist. Visits with whole categories of individuals should not be prohibited altogether absent a reasonable basis for believing that non-contact visits will not address security concerns adequately. Other than the Higdon incident, which occurred in a contact situation, involved a very young unrelated child, and could have been prevented under existing security rules, there was no evidence presented of a problem which would justify the exclusion of whole categories of minor children from visiting. The potential risk that someone will act inappropriately toward a visitor does not justify excluding an entire group of visitors. See Mintzes, Tr. 5, pp. 133-34. The fact that drugs can be left by visitors in bathrooms or outside buildings for pickup by a prisoner does not logically justify denying non-contact visits by minor children. Cf. Bolden, Tr. 4, p. 29 (non-contact visitation does not eliminate the threat of smuggling). Concern that prisoners’ girlfriends used to bring a lot of children who were unrelated to prisoners for lengthy visits does not logically justify prohibiting visits by prisoners’ siblings, nieces and nephews. Cf. Bolden, Tr. 4, pp. 26-27. V. Other Exclusions A. Former Prisoners The challenged regulations also exclude from visitation former prisoners who are not immediate family. The stated peno-logical interests in this exclusion do not relate to volume, but rather to the potential for illegal or disruptive activity occasioned by such visits. However, because each prisoner is now limited to ten non-family visitors, each of whom must be screened and approved in advance of any visit, the Department has the ability to screen out any problematic former prisoner on an individual basis. Moreover, the limitation of former prisoner visits to a non-contact setting virtually eliminates the possibility of smuggling. There are many instances in which exclusion of former prisoners creates significant hardship on friends and family, including instances where former prisoners have completely rehabilitated and have served as social workers or governmental ombudsman, and instances where an in-law’s prior record has made it impossible for immediate family to visit. B. Minor Children of Prisoners Whose Parental Rights Have Been Terminated When the Department eliminated from visits any child of a prisoner whose parental rights had been terminated, it did not consider that some prisoners voluntarily terminate parental rights to provide adoptive homes for their children. In addition, Plaintiffs submitted substantial unre-futed evidence to establish that contact between parent and child is an important ongoing need for both parent and child regardless of the basis for the termination of parental rights. Moreover, any concern for the safety and security of the child during a visit would be accommodated by limiting these visits to a non-contact setting. C. Minor Children Must Be Accompanied By Immediate Family Members or Guardian The stated penological concern for requiring that a minor child be accompanied by an immediate family member or guardian is the safety and security of the child. Former practice permitted a child to be accompanied by any responsible adult, designated by power of attorney. Deputy Director Bolden testified that powers of attorney were too easy to forge and that the guardianship presented more protection for the child and for the system. According to the unrefuted evidence submitted by Plaintiffs, however, many prisoners, especially women, do not have another immediate family member available to bring their child to visit. In addition, a guardianship is a complex legal responsibility and procedure, with many risks to the future legal relationship of the parent to her child, and beyond the resources of many prisoners. There was no evidence establishing any instance of forgery of a power of attorney; and the pre-screening procedures established by Defendants appear completely adequate to protect against the abuse of a system utilizing a power of attorney. Finally, again, if concern for the safety of the child is an issue because the accompanying adult might not exercise the same degree of oversight and responsibility as a parent or guardian, the restriction to non-contact visits would provide adequate safety and security. VI. Permanent Ban on Visits Based on Two Substantive Abuse Misconducts A. Penological Interest Also in 1995, the Department implemented regulations which impose a permanent ban on visitation for any prisoner convicted of two or more substance abuse misconducts. The regulations state as follows: BBB. Except as set forth in Paragraph EEE, the Director may permanently restrict all visits for a prisoner who is convicted or found guilty of any of the following: 1. A felony or misdemeanor that occurred during a visit. 2. A major misconduct violation that occurred during a visit or was associated with a visit. 3. Escape, attempted escape or conspiracy to escape. 4. Two or more violations of the major misconduct charge of substance abuse. CCC. If a prisoner has been found guilty of the conduct set forth in Paragraph BBB, the warden shall recommend that all visits be permanently restricted. S/he shall submit the recommendation, along with all supporting documentation, to the appropriate RPA. The RPA shall review and forward the recommendation to the CFA Deputy Director for review. If the CFA Deputy Director agrees that the restriction is warranted, the recommendation shall be submitted to the Director for a final determination. DDD. The CFA Deputy Director or des-ignee shall ensure that the warden is notified of the Director’s determination and that any restriction is entered into the computerized tracking system. The warden shall ensure the prisoner is notified of the Director’s- determination. EEE. A prisoner whose visits have been permanently restricted shall be allowed visits only with attorneys or his/her representative, qualified clergy and staff from the Office of Legislative Corrections Ombudsman in the manner set forth in this policy. FFF. The Director may remove a restriction upon written request of the warden or the restricted prisoner, subject to the following: 1. The restriction shall not be removed if it is based on a felony or misdemeanor that occurred during ' a visit or if it is based on an escape, attempted escape or conspiracy to escape associated with a visit. 2. The restriction shall not be considered for removal until at least two years after imposition of the restriction by the Director if it is based on two or more violations of the major misconduct charge of substance abuse if one or both of the charges were for possession or use of any prohibited substance other than alcohol, or if one or both of the charges were for refusal to submit to substance abuse testing. 3. The restriction shall not be considered for removal until at least six months after imposition of the restriction by the Director it if is based on a major misconduct that occurred during a visit or was associated with a visit, if it is based on an escape, attempted escape or conspiracy to escape not associated with a visit, or if it is based on two or more violations of the major misconduct charge of substance abuse if the charges were for possession or use of an alcoholic beverage. GGG. If eligible for removal of the restriction based on the criteria set forth above, a prisoner may request removal of the restriction by sending a written request to the warden of the facility where the prisoner is housed. 1. If the prisoner is eligible for removal of the restriction, the warden shall submit his/her written recommendation, along with the prisoner’s written request if one was submitted, to the appropriate RPA. The RPA shall review and forward the documentation to the CFA Deputy Director. The CFA Deputy Director shall review the request and make a written recommendation to the Director for a final determination. If denied, the Director shall determine when the prisoner may reapply for removal of the restriction. 2. If the prisoner is not eligible for removal of the restriction, the warden or designee shall notify the prisoner in writing of his/her ineligibility and ifiwhen the prisoner will be eligible to apply for removal. Defs.’ Ex. 4; MDOC Policy Directive 05.03.140 (01/12/98), based on Administrative Rules 791.6607-6614, as amended 1995. No evidence was introduced to establish that any other State has a provision similar to Michigan’s permanent restriction, either in duration or in substantive content. Defendant submitted the policies of Florida, Ohio, Indiana, Pennsylvania, and New York, which were represented to have policies “similar to Michigan.” See Defs.’ Ex. 9. A review of these policies shows that they are not nearly as harsh. Florida utilizes a three month suspension if an inmate refuses or is removed from a primary program due to “negative behavior” or is rated “unsatisfactory” for the work/program performance rating or security assessment. Further, Florida imposes a two year suspension for visit-related misconduct, which includes conduct such as engaging in sexual misconduct or possessing drugs during a visit. Only if a dangerous weapon is involved, however, is a permanent suspension imposed. See Defs.’ Ex. 9, Florida Dept, of Corrections, Inmate Visitation, pp. 20-22. Ohio permits suspensions of visitation for a visit-related infraction (i.e. contraband found on the visitor). However, the inmate must be given notice of the time period of suspension. Further, visits may be suspended up to two months if an inmate tests positive for or is in possession of illegal drugs, or refuses to comply with a drug screen. If a second offense occurs, however, visitation may be suspended up to six months. See Defs.’ Ex. 9, Ohio Dept, of Rehabilitation & Correction, Inmate Visitation, pp. 6-7. Indiana imposes a temporary suspension for a variety of infractions. No suspension lasts more than thirty days. Written notice to the prisoner is required stating the reasons, duration, and right to appeal. Furthermore, contact visits may be denied for a variety of offenses such as possession of contraband, but the inmate may still have non-contact visits. A denial of contact visits also requires notice. See Defs.’ Ex. 9, Indiana Dept, of Corrections, Offender Visitation, pp. 8-9. Pennsylvania permits suspension of visitation for drug infractions, but the suspension is limited to contact visits. Moreover, “[r]estriction of visiting privileges will not be used as a disciplinary measure for unrelated facility rule infraction.” Defs.’ Ex. 9, Pennsylvania Dept, of Corrections, Inmate Visiting Privileges, pp. 14-15. New York permits suspension of contact visiting as punishment for visit-related misconduct, but permits non-contact visitation under these circumstances. See Defs.’ Ex. 9, New York Dept, of Correctional Services, Inmate Visitor Program, pp. 7-14. Thus, no other State imposes a permanent restriction on visitation other than Florida’s restriction if a prisoner is involved with a dangerous weapon in a visiting situation. Former Director McGinnis testified that Michigan’s permanent restriction for two substance abuse misconducts was developed because he was committed to reducing drug use within the prison system, and that he was searching for a way to implement a zero tolerance policy. He stated as follows: Well, based on my experience, and one of the biggest problems, one, of the biggest problems that prison systems face is the introduction of drugs. It creates a tremendous amount of other issues within the prison environment, violence probably being the most predominant one. It creates situations of trafficking for drugs, pressuring for money, but in my experience, it almost always resulted in some form of violence, eventually, in a prison environment. It creates a very dangerous atmosphere in prisons, and that’s why there’s so much emphasis' placed on it. Tr. 8, p. 34. I think [the policy] sent a clear message that we were interested in zero tolerance as it involved substance abuse in prison. Did I think it was severely harsh? No. Tr. 8, p. 62. This testimony was amplified by Deputy Director Bolden, who testified that “our former director and I concurred, felt that we just had to take a tougher stand with regard to trying to get a handle on what is a very, very serious problem, not only in prison, but in our communities.” Tr. 4, p. 51. According to both McGinnis and Bol-den, the use of illegal substances in the prison system compromises security and discipline. Aggressive action was believed to be necessary in this area. Bolden acknowledged that substance abuse misconducts trigger other automatic punishment within the prison system including loss of good time and reclassification of a prisoner’s security level. Others in the MDOC, including Marjorie VanO-chten, testified that the permanent ban on visitation was not tied to concerns about smuggling which occurred during the visitation process; rather, visits were chosen as the vehicle of punishment because they are very important to prisoners — and loss of visits would be a significant deprivation. B. Procedural Issues There have been many procedural problems associated with the implementation of the permanent ban on visitation. First, although Department witnesses testified that the new policy was made available to prisoners at the time of implementation, Plaintiffs introduced substantial evidence to establish that notice was spotty and inconsistent. In addition, although the implementing language suggests discretion in the imposition of the ban, there are no written criteria to guide the Director’s decision. Section CCC of the policy directive states that if a prisoner has two substance abuse misconducts, “the warden shall recommend that all visits be permanently restricted.” The warden is required to submit this recommendation, with all supporting documents, to the appropriate regional prison administrator (RPA) who, in turn, is to review the recommendation and forward it to the Correctional Facilities Administration (CFA) Deputy Director. “If the CFA Deputy Director agrees that the restriction is warranted, the recommendation shall be submitted to the Director for a final determination.” Defs.’ Ex. 4 ¶ CCC. Thus, the Director has absolute discretion to impose or not impose the restriction on any prisoner who has two substance abuse tickets. See Bolden, Tr. 3, p. 127. The CFA Deputy Director has absolute discretion to prevent a restriction from being imposed by not forwarding a recommendation to the Director. But see Bolden, Tr. 3, p. 127 (Deputy Director does not believe he has authority to not forward recommendation). It was understood when the new rule was adopted that a permanent visiting restriction would be imposed automatically whenever a prisoner received two substance abuse misconducts and that the director would not in fact exercise discretion on a case by case basis. See VanOchten, Tr. 1, pp. 103-04, 106. Although Deputy Director Bolden and Marjorie VanOchten both testified that the ban is supposed to be imposed automatically after two substance abuse misconducts, the actual practice has been inconsistent. Over a period of nearly five years, 1715 of 4188, i.e. 41 %, of the prisoners who had two substance abuse misconducts actually received permanent restrictions. By year, the disparity ranged from 20.9% in 1996 to 59.1% in 1999. The evidence does not show to what extent this is because: a) the wardens are not recommending restrictions in all cases where they are required by policy to do so; b) the Deputy Director is exercising his discretion not to forward recommendations to the Director on some unknown and unreviewable basis; or c) the Director is deciding not to impose restrictions in a proportion of the eligible cases on some unknown and unreviewable basis. See Pls.’ Ex. 51; Creekmore, Tr. 5, pp. 48-50. Although a warden’s recommendation for restriction is supposed to be mandatory after two tickets, wardens do not in fact make these requests automatically. See, e.g., Pls.’ Ex. 40: No. 169509, Michael Willis, p. 274 (has misconducts at SMI in and %, but no request for restriction un