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AGO 1971 No. 12 - March 16, 1971
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Slade Gorton | 1969-1980 | Attorney General of Washington

OFFICES AND OFFICERS ‑- STATE ‑- DEPARTMENT OF SOCIAL AND HEALTH SERVICES ‑- REGULATION OF LENGTH OF HAIR AND BEARDS WORN BY PRISONERS IN STATE PENAL INSTITUTIONS

The provisions of RCW 36.63.130 do authorize (but do not require) the department of social and health services, acting through the superintendents of the various penal institutions under its jurisdiction, to regulate the length of hair and beards worn by convicted felons imprisoned therein, at least where such considerations as those of identification or of personal cleanliness and health are deemed by the department in the exercise of its sound administrative discretion to justify such regulation.

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                                                                  March 16, 1971

Honorable Gordon L. Walgren
State Senator, 23rd District
Legislative Building
Olympia, Washington 98501

                                                                                                                 Cite as:  AGO 1971 No. 12

Dear Sir:

            This is written in response to your recent letter requesting the opinion of this office on a question pertaining to the regulation of the length of hair and beards worn by prisoners in our various state penal institutions.  We paraphrase your question as follows:

            Do the provisions of RCW 36.63.130 authorize the department of social and health services, acting through the superintendents of the various penal institutions under its jurisdiction, to regulate the length of hair and beards worn by convicted felons imprisoned therein?

            We answer this question in the affirmative as qualified in our analysis.

                                                                     ANALYSIS

            At the outset we believe it appropriate to comment, briefly, regarding the factual background for your request; i.e.,  [[Orig. Op. Page 2]] an informal memorandum which was written by an assistant attorney general assigned to the department of social and health services on February 15, 1971.  This memorandum, which was not processed or issued as an official attorney general's opinion, pertained to the constitutional enforceability of certain then existing institutional rules governing the length of hair and beards worn by prisoners in the several adult correctional institutions under the department's jurisdiction.  Based upon a factual determination expressed by the assistant secretary of the department, division of institutions, that these regulations were not necessary either for purposes of identification or for personal cleanliness and safety, it was concluded that their continued enforcement could not be constitutionally justified.  By way of contrast, please note that the several recent federal court rulings which will be discussed hereinafter with regard to the constitutionality of hair and beard regulations for prisoners were all based upon a factual premise that the challenged regulationswere necessary for identification and/or health purposes.

            With this preliminary observation in mind, we now turn to your immediate question.  RCW 36.63.130, to which you have referred, originated as a part of chapter 12, Territorial Laws of 1877, the original text of which reads as follows:

            "The keeper of any prison may upon the commitment after judgment of a person convicted of a felony punishable by imprisonment cause the hair on the head of said prisoner to be closely crop[p]ed and so kept during his term of imprisonment."

            We discern no material difference between this original language and the present codified revision of it, as set forth in § 36.63.130, chapter 4, Laws of 1963:

            "The keeper of any prison may, upon the commitment of a person convicted of a felony punishable by imprisonment, cause the hair on the head of such prisoner to be closely cropped and so kept during his term of imprisonment."

            In so far as its applicability to prisoners in our state penitentiary and other adult correctional institutions is concerned, we note that although codified among the statutes  [[Orig. Op. Page 3]] relating to county jails, the statute in question refers to ". . . a person convicted of a felony subject to imprisonment . . ." and to his ". . . term of imprisonment."  Under current statutes,1/ persons serving prison terms in this state for felony convictions do so in various penal institutions (including the state penitentiary and reformatory) which are each administered by a superintendent appointed pursuant to RCW 72.01.060, operating under the general jurisdiction of the department of social and health services as provided for in chapter 18, Laws of 1970, Ex. Sess.  Therefore, notwithstanding its manner of codification, we are of the opinion that the statute is applicable to prisoners within the class to which your question refers.  Moreover, with regard to these prisoners, the specific provisions of this statute are supplemented by a series of more general statutes authorizing the department to make and enforce rules and regulations for ". . . the government of the public institutions placed under its control . . ." (RCW 72.01.090) and ". . . the discipline, employment, instruction, education and compensation . . ." of prisoners in the various adult correctional institutions (RCW 72.08.120; RCW 72.12.070; and RCW 72.13.170).

            However, within the context of the present factual situation which has given rise to your question, it should be emphasized that RCW 36.63.130 is merely permissive and not mandatory.  It does notrequire "The keeper of any prison" to cause the hair on the head of his prisoners (including, we believe, facial hair) to be "closely cropped"; rather, it merely authorizes him to do so.  Whether or not to impose such a requirement by some sort of a regulatory policy thus constitutes an administrative decision for the department to make, based upon the necessities of the factual situation.

            With respect to any constitutional issues which may be thought to exist regarding this statute, we must respond by again citing the long-standing policy of this office of presuming the constitutionality of any statute which has been duly enacted by our legislature.  The reasons for this policy have been most recently explained in our letter dated February 24, 1971, to State Senator Herbert F. Donohue in which we first stated that

             [[Orig. Op. Page 4]]

            ". . .  The power to declare an act constitutional or unconstitutional is vested solely in the courts.  Consequently, nothing can be gained by this office expressing an opinion as to the constitutionality of a statute.  A pronouncement of unconstitutionality would merely cause confusion and disorder among the administrative officers whose duty it is to give effect to the presumption of constitutionality which attaches to all laws until declared otherwise by a court of competent jurisdiction."

            In addition, we made note in this letter of the following provisions of RCW 7.24.110, a part of the uniform declaratory judgments act which was adopted by our legislature in 1935 (see, chapter 113, Laws of 1935):

            ". . .  In any proceeding which involves the validity of a municipal ordinance or franchise, such municipality shall be made a party, and shall be entitled to be heard,and if the statute, ordinance or franchiseis alleged to be unconstitutional, the attorney general shall also be served with a copy of the proceeding and be entitled to be heard."  (Emphasis supplied.)

            Of this statute we then said:

            "By this enactment, the legislature has imposed upon the attorney general a responsibility to appear and present all available legal arguments tosupport the constitutionality of any duly enacted statute whenever such a statute is attacked in a declaratory judgment proceeding. . . .

            "Accord,Clark v. Seiber, 49 Wn.2d 502, 503, 304 P.2d 708 (1956), in which the court said of this statute:

            "'. . .  The purpose of this provision is to protect the public, should the parties be indifferent to the result.  The state is interested in the constitutionality of its  [[Orig. Op. Page 5]] statutes as they affect the public welfare.  SeeParr v. Seattle, 197 Wash. 53, 84 P.2d 375 (1938).'"

            Beyond this policy aspect of our treatment, in an official opinion such as this, of any question pertaining to the constitutionality of RCW 36.63.130,supra, we would only add by way of general information a brief reference to certain pending litigation in this area.  We are advised that on January 12, 1971, the United States District Court for the Central Division of California, in the case ofWinsby v. Walsh,        F. Supp.        ,2/ upheld the constitutionality of the following policy statement governing inmates of the federal correctional institution at Terminal Island, California:

            "To maintain identification, no beards or mustaches are authorized since they radically change the appearance.  Sideburns may not extend below an imaginary line drawn from the bottom of the nose to the bottom of the ears.  They will be no wider at any point than the natural growth width of hair at a point along an imaginary line drawn between the corner of the eye and the center of the ear.  They will not obscure the ears when the face is viewed from the front.

            "Hair may extend over the forehead to one and one‑half inches above the eyebrows.  Black inmates may wear a natural style.  Hair may not extend below the top of the ears, nor reach below the top of the shirt collar when buttoned.  It will not be grown to a length where it becomes unmanageable or unkept in appearance.  No specific maximum length of hair on the head is established.  Shaved heads are not authorized unless prescribed by the medical department."

            In upholding this policy statement, the court relied upon three other recent federal court decisions which have also validated similar hair and beard regulations governing incarcerated prison inmates in various other states.  See,Brown v. Wainwright, 419 F.2d 1376 (5th Cir. 1970);Brooks v. Wainwright, 428 F.2d 652 (5th Cir. 1970); and Blake v.  [[Orig. Op. Page 6]] Pryse, 315 F.Supp. 625 (D.C. Minn. 1970).  The basic rationale in support of the constitutionality of these regulations was stated by the Court of Appeals inBrown v. Wainwright, supra, as follows:

            "Lawful incarceration brings with it the necessary withdrawal or limitations of many privileges and rights.  Price v. Johnston, 334 U.S. 266, 68 S.Ct. 1049, 92 L.Ed. 1356 (1948); Jackson v. Godwin, 5 Cir., 1968, 400 F.2d 529; Walker v. Blackwell, 5 Cir., 1969, 411 F.2d 23.

            "The rule in question is applied to all inmates alike.  For personal cleanliness and for personal identification under prison conditions, the rule appears to be neither unreasonable nor arbitrary.  There is thus no Constitutional basis for our interference with this vital state function."  419 F.2d at 1377.

            We understand that the court's decision in the Winsby case is now on appeal to the Court of Appeals for the Ninth Circuit, and we shall await with interest the outcome of this litigation.  At this time, however, based upon the presumption of constitutionality which must in any event attach to RCW 36.63.130 until otherwise declared by court decision, we may, in summary, answer your question essentially in the affirmative.  It is the opinion of this office that the provisions of RCW 36.63.130, supra, do authorize (but do not require) the department of social and health services, acting through the superintendents of the various penal institutions under its jurisdiction, to regulate the length of hair and beards worn by convicted felons imprisoned therein, at least where such considerations as those of identification or of personal cleanliness and health are deemed by the department in the exercise of its sound administrative discretion to justify such regulation.

             [[Orig. Op. Page 7]]

            We trust the foregoing will be of assistance to you.

Very truly yours,


SLADE GORTON
Attorney General


PHILIP H. AUSTIN
Deputy Attorney General


                                                         ***   FOOTNOTES   ***

1/See, RCW 9.95.010, et seq.

2/Cause No. 70-2714.

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