Monday, December 19, 2016

No due process right for inmates to wear what they want at funerals

You probably have not given this any thought, but inmates are allowed to go to funerals when their loved ones die. When that happens, what do they wear? What can they wear?

The case is Baez v. Pinker, a summary order decided on December 8. Baez went to his father's funeral but was forced to wear state-issue release clothing. In other words, he wore what the jail told him to wear, not what he wanted to wear. Baez sues under the Due Process Clause, arguing that he has a constitutional right to wear the clothing of his choice for funerals.

I would imagine the public would be outraged that a case like this can proceed all the way to the Court of Appeals, but it is not as frivolous as you think. Due process prevents the government from restricting a liberty or property interest without good reason. Liberty and property interests are found in state law or regulations that absolutely entitle you to be able to do something such that the government has no discretion to decide otherwise. State regulations do say that prison officials "may permit" an inmate to attend the funeral of an immediate family member. So there is some discretion there, which cuts against Baez's case. But another state rule says that when inmates are granted permission to attend the funerals, he "shall appear in civilian clothes." Shall means must, not may. Does not this create a liberty interest?

There is no liberty interest, the Court of Appeals (Calabresi, Raggi and Lynch) says. This is because another directive says that when inmates attend funerals, they "shall be given the option to wear either the State-issue green clothing or the State-issue release clothing." The state-issue release clothing satisfies the "civilian clothes' requirement under the regulations. All things considered, the policies allow inmates to wear civilian clothing in the form of state-issue release clothing (khaki trousers and a white shirt), which is what Baez wore to his father's funeral. The regulations do not allow inmates to wear what they want.  

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