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On consideration of Appellant’s motion to attach filed June 29, 2007, said motion is hereby granted as it pertains to the affidavit from Appellant; the letter from Appellant’s wife; and the summary of forms documenting his exhaustion of administrative remedies at the USDB, Fort Leavenworth to established contact with his children. Said motion is denied as it pertains to the letter from his children.
Can someone from NAMARA fill us in on the details of this case? Was this a challenge to post-trial conditions of confinement at the USDB concentrating on denial of access to family members? If so, I litigated a similar case in Maryland, though my case was pre-Overton v. Bazzetta, 539 U.S. 126 (2003) (and my case was a 42 U.S.C. § 1983 action).
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Ward was convicted of numerous crimes involving the molestation of a child. He has two children, a boy and girl, ten and twelve years old. Neither child was the victim of the molestation. The children are in the custody of their mother. Ward, the mother, and the children would all like to visit Ward in Leavenworth. Prison officials, due to the nature of the crime, will not allow visitation without a letter from a psychologist that such a visit would not be detrimental to the children. Ward's argument was that he did not have money for a psychologist and that in any event, such a requirement was an undue burden on his right to have a relationship with his children. This case was brought by LT Darrin MacKinnon, who has since left active duty.
Thanks, anonymous!
Anonymous has it about 50% right:
Ward's lack of money is not the issue, though. Ms. Ward says her kids are just fine, thank you, they were not victims of her ex-husband's crimes, they do not know about the crimes, and she does not want a psychologist intervening in her family affairs.
And USDB does not want a "letter," they want to talk to the psychologist, privately, off-the-record, and come to their own conclusions of what is in the best interest of the Ward children.
So this case is not about money, and its not even primarily about prisoner's rights; its about the astonishing overreach of the federal government. Even conservatives would do a double take looking at this case: bureaucrats in Leavenworth, Kanas, get to decide what is in the best interest of children who they do not know, who live 1,000 miles away.
And this case does not involve an Overton issue at all. USDB has enacted the most sweeping prisoner regulations in the country, prohibiting ANY contact whatsoever in such cases, including even phone calls and letters to the prisoner's children! Yes, you heard right: not even phone calls or letters.
Ms. Ward wanted her children to have contact and believed the contact was in the best interest of her children. (The children also wanted contact). But, of course, the government is a better judge of what is in the best interest of children than parents are. So, USDB issued a no contact order to Ward.
CAAF probably denied Ward's petition due to his purported failure to exhaust administrative remedies - he certainly would have won on the merits (allowing letters at a minimum).
I think CAAF was wrong to deny the petition. It was a grave injustice. Besides the fact that the "remedies" were completely outside of Ward's control, "exhaustion" of them was also imposible; USDB has set up a carousel of requirements that will never stop and can never be "exhausted." I wish CAAF had seen through USDB's disingenous scheme.
While I have left active duty - I will fight for my client until the bitter end. (Collateral relief?)
Anonymous2: I am dealing with a similar issue at Fort Knox, and would love to discuss it with you. I can be reached at bill@williamcassara.com
The AFCCA dealt with a similar issue in United States v. McMaster. The bottom line:
... we conclude that this policy bears a rational relation to the legitimate government interest in prisoner rehabilitation and in the protection of children. Taking into account all the criteria set forth in [Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69 (1963)], we conclude that the policy is not punitive and that the USDB has not abused its discretion by implementing it.
Chris, the cases are not entirely similar: McMaster was trying to contact the SAME family unit that included the child victim. The mother did NOT want McMaster to have contact with her children, either.
By the way: how does preventing Ward from telling his children he loves them, or vice-versa, further his rehabilitation?
Also, I don't know why AFCCA had to dig so deep into the well in McMaster for a not-on-point 1963 case (dealing with collateral immigration consequences) for an oblique point about punitive intent. I call this the "Charles Manson test" - who killed his victims because he "loved" them. So a court does not look to the actual punitive consequences - just the prison administration's intent. Pretty light standard.
Anonymous3: I'm fairly conversant with the facts in McMaster, not so much with the facts in Ward. Of course it goes without saying that every case is unique.
The USDB regulation in McMaster forbade him access to his natural son -- who was not a victim of his offenses -- as well as the two stepchildren who were. You could argue that granting him access to that particular child would not be harmful, especially in light of the mother's death after the trial -- McMaster being the boy's only parent. On the other hand, McMaster was a seriously pathological individual who characterized his repeated rape of a six-year-old as an "affair" and who displayed significant antisocial and violent tendencies, evidenced by his armed robbery conviction in civilian court as well as his assaults on the two stepchildren. It's not too much of a stretch to envision a mental health professional concluding it would not be in the best interests of the boy to have him as a parental role model.
Similarly, you could argue that giving McMaster access to the boy would not have an adverse affect on his rehabilitation ... or his therapist might believe that holding out such access would be a valuable incentive for participation in a treatment program.
I'm not endorsing any of these views, but neither do I think any would be wholly unreasonable. In any event, my citation to McMaster was intended only to point out that the question of family visitation in military confinement facilities has come up before.
Chris,
Your analysis of McMaster is valid. I stressed family "unit" to distinguish the child victims. (In Ward, it was a different wife, different step-child - hence different family "unit"). I frankly agree that in McMaster contact would be unhealthy. My point is that McMaster is probably case-specific - or at least it should not represent a very broad principle. I guess my central point is that the McMaster Mom is a better judge of contact in the end than buraucrats. If the court is essentially endorsing her decision...than all is well...no controversy. It would get dicey if the McMaster Mom was saying, "yes, I want contact."
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