Overton v. Bazzetta, 539 U.S. 126, 14 (2003)

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Cite as: 539 U. S. 126 (2003)

Thomas, J., concurring in judgment



The Court is asked to consider "[w]hether prisoners have a right to non-contact prison visitation protected by the First and Fourteenth Amendments." Brief for Petitioners i. In my view, the question presented, as formulated in the order granting certiorari, draws attention to the wrong inquiry. Rather than asking in the abstract whether a certain right "survives" incarceration, ante, at 132, the Court should ask whether a particular prisoner's lawful sentence took away a right enjoyed by free persons.

The Court's precedents on the rights of prisoners rest on the unstated (and erroneous) presumption that the Constitution contains an implicit definition of incarceration. This is manifestly not the case, and, in my view, States are free to define and redefine all types of punishment, including imprisonment, to encompass various types of deprivations—provided only that those deprivations are consistent with the Eighth Amendment. Under this view, the Court's precedents on prisoner "rights" bear some reexamination.

When faced with a prisoner asserting a deprivation of constitutional rights in this context, the Court has asked first whether the right survives incarceration, Pell v. Procunier, 417 U. S. 817, 822 (1974), and then whether a prison restriction on that right "bear[s] a rational relation to legitimate penological interests." Ante, at 132 (citing Turner v. Safley, 482 U. S. 78, 89 (1987)).

Pell and its progeny do not purport to impose a substantive limitation on the power of a State to sentence a person convicted of a criminal offense to a deprivation of the right at issue. For example, in Turner, the Court struck down a prison regulation that prohibited inmates from marrying absent permission from the superintendent. 482 U. S., at 89, 94-99. Turner cannot be properly understood, however, as holding that a State may not sentence those convicted to both impris-


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