Waterman v. Farmer

Opinions of the United

1999 Decisions States Court of Appeals

for the Third Circuit

6-30-1999

Waterman v. Farmer

Precedential or Non-Precedential:

Docket 98-6261

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Filed June 30, 1999

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 98-6261

RICHARD WATERMAN; MICHAEL CURTIS

v.

JOHN FARMER, JR., New Jersey Attorney General; JACK

TERHUNE, New Jersey Commissioner of Corrections;

WILLIAM PLANTIER, Superintendent of the Adult

Diagnostic & Treatment Center, individually and in their

official capacity,

Appellants

ON APPEAL FROM THE

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

(D.C. Civil No. 98-cv-1938)

District Judge: The Honorable Alfred M. Wolin

Argued: January 14, 1999

Before: NYGAARD, ALITO, and LEWIS, Circuit Judges

(Opinion Filed: June 30, 1999)

Lawrence S. Lustberg (argued)

Mark A. Berman

Laura K. Abel

Gibbons, Del Deo, Dolan, Griffinger

& Vecchione

One Riverfront Plaza

Newark, NJ 07102-5497

Attorney for Appellees

Peter Verniero

Ronald L. Bollheimer

Joseph L. Yannotti (argued)

Adrianna Calderon

Office of Attorney General

of New Jersey

Richard J. Hughes Justice Complex

Trenton, NJ 08625

Attorneys for Appellants

Gregory J. Sullivan

3812 Quakerbridge Rd.

Hamilton, New Jersey 08619

Dennis J. Saffran

Center for the Community Interest

New York Regional Office

345 East 37th Street, Suite 303

New York, New York 10016

Attorneys for Amici Curiae Center

for the Community Interest,

Assemblyperson Marion Crecco, The

Friends of Amanda Foundation,

Voices for Victims, The Mark Klaas

Foundation for Children, Justice for

All, Protecting Our Children, and

Women Against Violence.

OPINION OF THE COURT

ALITO, Circuit Judge:

Two prisoners at a facility for sex offenders who have

exhibited "repetitive and compulsive" behaviorfiled this

lawsuit under 42 U.S.C. S 1983, alleging that a recently

enacted New Jersey statute, N.J.S.A. 2C:47-10, violated

their constitutional rights by restricting their access to

pornographic materials. The District Court concluded that

the statute was unconstitutional and permanently enjoined

state officials from enforcing it. Waterman v. Verniero, 12

F.Supp.2d 378 (D.N.J. 1998). Subsequent to the District

Court's decision, the state adopted regulations clarifying

2

the statute's scope. Informed by these regulations, we hold

that the plaintiffs' constitutional challenge lacks merit, and

we therefore reverse the decision of the District Court.

I.

Plaintiffs Richard Waterman and Michael Curtis are

convicted pedophiles1 incarcerated at the Adult Diagnostic

and Treatment Center ("A.D.T.C.") in Avenel, New Jersey.

The New Jersey Department of Corrections ("D.O.C.")

operates the A.D.T.C. for the sole purpose of housing and

rehabilitating sex offenders (i.e., pedophiles, child

molesters, and rapists) who have exhibited behavior that is

"repetitive and compulsive." Non-repetitive and non-

compulsive sex offenders are housed in other institutions

with the general prison population. The A.D.T.C. houses

750 inmates, approximately 70% of whom are pedophiles.

The A.D.T.C.'s therapeutic staff provides the inmates with

intensive sex offender treatment, employing a four-step

program that "is designed to present information and

therapeutic experiences in a progressive order to ameliorate

the offender's proclivity towards criminal sexual behavior."

App. at 127. Each step focuses on concepts of victim

empathy and the offender's sexual deviance. D.O.C. officials

believe that this type of treatment can reduce recidivism.

In 1998, the New Jersey Assembly and Senate

unanimously enacted a bill that banned "sexually oriented

and obscene materials" from the A.D.T.C.2 Governor

_________________________________________________________________

1. Plaintiff Waterman is currently serving a 54-year prison sentence for

sexually abusing a nine-year-old girl. Waterman has two previous

convictions for pedophiliac offenses--one for abducting and raping an

eleven-year-old girl and the other for fondling a nine-year-old girl.

Plaintiff Curtis is currently serving a 20-year sentence with 10 years of

parole ineligibility for sexually abusing and taking nude photographs of

a 14-year-old boy. Curtis also has a prior pedophiliac conviction: he

received a sentence of probation for sexually assaulting a 15-year old

boy.

2. Prior to 1998, A.D.T.C. officials had authority to prohibit inmates

from

possessing certain obscene publications pursuant to N.J.A.C. 10A:18-

4.9(a)(6). However, before taking such action, officials had to find that

3

Whitman signed the bill into law. The statute reads as

follows:

a. As used in this act, "sexually oriented material"

means any description, narrative account, display, or

depiction of sexual activity or associated anatomical

area contained in, or consisting of, a picture or other

representation, publication, sound recording, live

performance, or film.

b. An inmate sentenced to a period of confinement

in the Adult Diagnostic Treatment Center shall not

receive, possess, distribute or exhibit within the center

sexually oriented material, as defined in subsection a.

of this section. Upon the discovery of any such material

within the center, the commissioner shall provide for

its removal and destruction, subject to a departmental

appeal procedure for the withholding or removal of

such material from the inmate's possession.

c. The commissioner shall request an inmate

sentenced to confinement in the center to acknowledge

in writing the requirements of this act prior to the

enforcement of its provisions. Any inmate who violates

the provisions of subsection b. of this section shall be

subject to on-the-spot sanctions pursuant to rules and

regulations adopted by the commissioner.

_________________________________________________________________

[t]he publication contains material which, based upon the

experience and professional expertise of correctional

administrators

and judged in the context of a correctional facility and its

paramount interest in security, order and rehabilitation:

i. Taken, as a whole, appeals to a prurient interest in sex;

ii. Lacks, as a whole, serious literary, artistic, political or

scientific

value; and

iii. Depicts, in a patently offensive way, sexual conduct including

patently offensive representations or descriptions of ultimate sex

acts, masturbation, excretory functions, lewd exhibition of the

genitals, sadism or masochism.

N.J.A.C. 10A:18-4.9(a)(6). This section still applies in New Jersey's

other

correctional facilities.

4

d. A person who sells or offers for sale the material

prohibited in subsection b. either for purposes of

possession or viewing or who receives, possesses,

distributes or exhibits any text, photograph, film, video

or any other reproduction or reconstruction which

depicts a person under 18 years of age engaging in a

prohibited sexual act or in the simulation of such an

act as defined in section 2 of P.L. 1992, c. 7 (C.2A:30B-

2), within the center shall be considered to have

committed an inmate prohibited act and be subject to

sanctions pursuant to rules and regulations adopted

by the commissioner.

N.J.S.A. 2C:47-10.

Plaintiffs filed this lawsuit pursuant to 42 U.S.C. S 1983,

alleging that the statute violated their constitutional rights.

They named as defendants Peter Verniero, then the

Attorney General of New Jersey;3 Jack Terhune,

Commissioner of the New Jersey Department of

Corrections; and William Plantier, Superintendent of the

A.D.T.C. (collectively, "Defendants").

The District Court preliminarily enjoined the enforcement

of N.J.S.A. 2C:47-10 pending a final determination

regarding the statute's constitutionality. Waterman v.

Verniero, 12 F.Supp.2d 364 (D.N.J. 1998) (Waterman I). The

District Court later concluded that the statute was

unconstitutional and permanently enjoined Defendants

from enforcing it. Waterman v. Verniero, 12 F.Supp.2d 378

(D.N.J. 1998) (Waterman II). Defendants appealed.

Several weeks after this case was argued on appeal,

counsel for Defendants advised the Court, pursuant to Fed.

R. App. P. 28(j), that New Jersey had promulgated

regulations implementing N.J.S.A. 2C:47-10. The

regulations significantly narrow the statute's scope by

defining many of the operative terms. The regulations

contain the following definitions:

"Associated anatomical area" means exposed or

unclothed genitalia or female breasts.

_________________________________________________________________

3. John Farmer, Jr. has since replaced Peter Verniero as Attorney

General of New Jersey.

5

"Sexual activity" means actual or simulated ultimate

sexual acts including sexual intercourse, oral sex,

masturbation, or bestiality.

"Sexually oriented material" means a picture or other

representation, publication, sound recording, live

performance or film that contains a description or

depiction of sexual activity or associated anatomical

area, as these terms are herein defined.

N.J.A.C. 10A:18-9.1 (1999). The regulations also provide

that "[m]aterials containing a depiction or description of

sexual activity or an associated anatomical area shall not

be considered `sexually oriented' unless the material is

predominantly oriented to such depictions or descriptions."

N.J.A.C. 10A:18-9.2(b). A publication is considered

"predominantly oriented to the depiction or description of

sexual activity or associated anatomical area" only if it

"features or contains such descriptions or displays on a

routine or regular basis or promotes itself based upon such

depictions in the case of individual one-time issues."

N.J.A.C. 10A:18-9.2(c).

The regulations prescribe the procedures that A.D.T.C.

staff must follow when notifying inmates that a particular

publication is prohibited by the statute. N.J.A.C. 10A:18-

9.3. They also impose sanctions for violations of the

statute, N.J.A.C. 10A:18-9.5, and exempt from regulation

all materials deemed to serve a legitimate rehabilitative

purpose, N.J.A.C. 10A:18-9.4.

II.

Defendants raise two arguments on appeal. First, they

argue that the District Court erred in finding the statute

unconstitutionally vague and overbroad. Second, they

argue that the District Court erred in concluding that the

statute is not rationally related to a legitimate penological

interest. Because both of these arguments present

questions of law, our review is plenary. See United States v.

Various Computers & Computer Equip., 82 F.3d 582, 589

(3d Cir. 1996) ("Constitutional interpretations are questions

of law subject to plenary review.").

6

A. Vagueness and Overbreadth

The District Court declared N.J.S.A. 2C:47-10

unconstitutionally vague4 and overbroad.5 In so doing, the

Court noted that the statute was unconstitutional

regardless of whether it was rationally related to a

legitimate penological interest under Turner v. Safley, 482

U.S. 78 (1987). See Waterman II, 12 F.Supp.2d at 381

("Although the Court need not address whether New Jersey

had a valid penological interest when it passed N.J.S.A.

2C:47-10, it will briefly discuss the issue because the

parties have hotly contested the issue and because the

Court's analysis may aid the New Jersey Legislature if they

decide to rewrite the statute.").

_________________________________________________________________

4. A law or regulation can be deemed unconstitutionally vague if "men of

common intelligence must necessarily guess at its meaning and differ as

to its application. . . ." Connally v. General Constr. Co., 269 U.S. 385,

391 (1926). Although the vagueness doctrine was originally used to

invalidate--on due process grounds--penal statutes that fail to "define

the criminal offense with sufficient definiteness that ordinary people can

understand what conduct is prohibited," Kolender v. Lawson, 461 U.S.

352, 357 (1983), courts frequently apply it in the First Amendment

context.

The vagueness doctrine is similar--though not identical--to the

doctrine of overbreadth. As with the overbreadth doctrine, a vagueness

challenge can nullify an ambiguous law that "chills" protected First

Amendment activities. But unlike the overbreadth doctrine, the

vagueness doctrine was designed to guarantee "fair and non-

discriminatory application of the laws, thus reflecting its roots in the

due

process clause." Kriemer v. Bureau of Police for the Town of Morristown,

958 F.2d 1242, 1266 (3d Cir. 1992).

5. A law or regulation is invalid on its face under the overbreadth

doctrine if it "does not aim specifically at the evils within the

allowable

area of control [by the government] but . . . sweeps within its ambit

other

[constitutionally protected] activities." Thornill v. Alabama, 310 U.S.

88,

97 (1940). The overbreadth doctrine is an exception to conventional

standing requirements. It provides that an individual whose conduct

may be prohibited may challenge a regulation "because [that regulation]

also threatens others not before the court--those who desire to engage

in legally protected expression but who may refrain from doing so rather

than risk prosecution or undertake to have the law declared partially

invalid." Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 503 (1985).

7

Defendants now argue that the District Court erred in

concluding that it could declare the statute

unconstitutional without first considering whether it was

rationally related to a legitimate penological interest. We

agree.

Constitutional challenges to laws, regulations, and

policies governing prison management must be examined

under the framework of Turner v. Safley, 482 U.S. 78

(1987). In Safley, the Supreme Court acknowledged that

"courts are ill-equipped to deal with the increasingly urgent

problems of prison administration and reform." Id. at 84

(internal quotations omitted). Accordingly, the Court set out

"to formulate a [comprehensive] standard of review for

prisoners' constitutional claims that is responsive both to

the `policy of judicial complaints and [to] the need to protect

constitutional rights.' " Id. (quoting Procunier v. Martinez,

416 U.S. 396, 406 (1974)). Because vagueness and

overbreadth challenges embody "constitutional claims,"

they must be analyzed under the four-pronged test

announced in Safley. See, e.g., Procunier v. Martinez, 416

U.S. 396 (1974) (analyzing plaintiffs' vagueness claims

under an evolutionary precursor to the Safley test); Amatel

v. Reno, 156 F.3d 192, 203 (D.C. Cir. 1998) (addressing

plaintiffs' overbreadth claims under Safley ), cert. denied, 67

U.S.L.W. 3588 (U.S. June 24, 1999) (No. 98-1452); Mauro

v. Arpaio, 147 F.3d 1137, 1140-1144 (9th Cir.) (analyzing

plaintiffs' overbreadth claims under Safley ), withdrawn,

162 F.3d 547 (1998) (ordering rehearing en banc).

Furthermore, the substantial overlap between the Safley

test and the doctrines of vagueness and overbreadth 6

suggests that the Supreme Court did not intend for those

_________________________________________________________________

6. The Safley test takes into account many of the same factors

considered under the doctrines of vagueness and overbreadth. As we

explain in greater detail later in this opinion, see infra., section

II.B.,

Safley requires courts to consider (1) whether a rational connection

exists between the regulation and a neutral, legitimate government

interest; (2) whether alternative means exist for inmates to exercise the

constitutional right at issue; (3) what impact the accommodation of the

right would have on inmates, prison personnel, and allocation of prison

resources; and (4) whether obvious, easy alternatives exist. Safley, 482

U.S. at 89-91.

8

doctrines to apply with independent force in the prison-

litigation context. It would therefore be both redundant and

inconsistent with Safley to subject N.J.S.A. 2C:47-10 to an

independent challenge under the doctrines of vagueness

and overbreadth.7

For this reason, we need not address Plaintiffs' vagueness

and overbreadth challenges separately. Instead, if the

challenged statute withstands review under Safley, it does

not violate the Constitution. See Safley, 482 U.S. at 89

("[W]hen a prison regulation impinges on inmates'

constitutional rights, the regulation is valid if it is

reasonably related to legitimate penological interests.") The

District Court erred in concluding otherwise.

B. Reasonable Relation to Legitimate Penological Interests

As the District Court correctly noted, prisoners"do not

lose their constitutional rights when they become

incarcerated, and free citizens do not lose their ability to

`exercis[e] their own constitutional rights by reaching out to

those on the inside.' " Waterman I, 12 F.Supp.2d. at 371

(quoting Thornburgh v. Abbott, 490 U.S. 401, 407 (1989)).

Nevertheless, prisoners' constitutional rights are necessarily

limited. Jones v. North Carolina Prisoners' Union, 433 U.S.

119, 125 (1977) ("The fact of confinement and the needs of

the penal institution impose limitations on constitutional

rights, including those derived from the First Amendment,

which are implicit in incarceration.").

In Safley, the Supreme Court explained that "when a

prison regulation impinges on inmates' constitutional

rights, the regulation is valid if it is reasonably related to

legitimate penological interests." 482 U.S. at 89. Safley

directs courts to assess the overall reasonableness of such

regulations by weighing four factors. "First, there must be

a `valid, rational connection' between the prison regulation

and the legitimate governmental interest put forward to

justify it," and this connection must not be "so remote as to

_________________________________________________________________

7. Counsel for Plaintiffs effectively conceded this point at oral

argument.

Transcript of Oral Argument at 34 ("[T]he truth of the matter is that

pretty conventional vagueness and overbreadth analysis are built into

the four factors of [Safley].").

9

render the policy arbitrary or irrational." Id. at 89-90

(quoting Block v. Rutherford, 486 U.S. 576, 586 (1984)).

Second, a court must consider whether inmates retain

alternative means of exercising the circumscribed right. Id.

at 90. Third, a court must take into account the costs that

accommodating the right would impose on other inmates,

guards, and prison resources generally. Id. And fourth, a

court must consider whether there are alternatives to the

regulation that "fully accommodate[ ] the prisoner's rights

at de minimis cost to valid penological interests." Id. at 90-

91. Although the factors are intended to serve as guides to

a single reasonableness standard, "the first factor looms

especially large" because it "tends to encompass the

remaining factors, and some of its criteria are apparently

necessary conditions." Amatel, 156 F.3d at 196.

1. Rational Connection to a Legitimate and Neutral

Objective

Under the first prong of the Safley test, we must decide

whether the statute bears a "valid, rational connection" to

a legitimate and neutral governmental objective. Safley, 482

U.S. at 89-90 (quoting Block v. Rutherford, 468 U.S. at

586). Accordingly, we may conclude that the statute fails to

satisfy this prong if the statute promotes an interest that is

illegitimate or not neutral, or if the statute bears no "valid,

rational connection" to the asserted interest. Id. at 89-90.

a. Legitimacy

Defendants argue that the statute promotes the

legitimate penological interest of rehabilitation. While the

District Court acknowledged that "rehabilitation is a valid

penological interest," it concluded that Defendants'

explanation of the statute's purpose was pretextual and

theorized that the statute was motivated more by an

indignant animus toward sex offenders than a genuine

attempt to rehabilitate them:

New Jersey did not have a valid penological interest

when it enacted N.J.S.A. 2C:47-10 because

rehabilitation does not appear to be the true reason

why the New Jersey Legislature passed N.J.S.A. 2C:47-

10. The legislative history does not mention

10

rehabilitation, and Dr. Nancy Graffin, the Director of

Psychology at the ADTC, did not testify before either

the Assembly or the Senate, and learned about the

statute after it was enacted. Most importantly, the

Department of Corrections formally opposed the statute

before Governor Whitman signed it because the

Department believed that adult pornography for

inmates at the ADTC was a step in the right direction.

Thus, the true reason for the enactment of N.J.S.A.

2C:47-10 appears to be public outrage over some of the

heinous, pedophiliac crimes that occurred in New

Jersey.

Waterman II, 12 F.Supp.2d at 381. Thus, the District Court

treated the dearth of legislative history as conclusive proof

that the "true" purpose of the statute was not to

rehabilitate sex offenders, but instead to satisfy the

widespread "public outrage over some of the heinous,

pedophiliac crimes that occurred in New Jersey." Id. at 381.

This assessment cannot withstand review. The absence of

legislative facts has no bearing on whether a statute's

purpose is legitimate. Nordlinger v. Hahn, 505 U.S. 1, 15

(1992). Moreover, a time-honored principle of constitutional

law reminds us that judicial second-guessing of a

legislature's motives is "generally unwarranted" "absent

some reason to infer antipathy." Vance v. Bradley, 440 U.S.

93, 97 (1979). Consequently, the fact that the statute's

"legislative history does not mention rehabilitation" is

irrelevant. As our en banc court emphasized in Phillips v.

Borough of Keyport, 107 F.3d 164 (3d Cir. 1997):

[t]here is a significant difference between the

requirement that there be a factual basis for a

legislative judgment presented in court when that

judgment is challenged and a requirement that such a

factual basis have been submitted to the legislative

body prior to the enactment of the legislative measure.

We have always required the former; we have never

required the latter. Whatever level of scrutiny we have

applied in a given case, we have always found it

acceptable for individual legislators to base their

judgments on their own study of the subject matter

11

of the legislation, their communications with

constituents, and their own life experience and

common sense so long as they come forward with the

required showing in the courtroom once a challenge is

raised. . . . We perceive no justification in policy or

doctrine for abandoning our traditional approach.

Moreover, we believe that insistence on the creation of

a legislative record is an unwarranted intrusion into

the internal affairs of the legislative branch of

governments.

Id. at 178.

In this case, it is beyond dispute that New Jersey has a

legitimate penological interest in rehabilitating its most

dangerous and compulsive sex offenders. See O'Lone v.

Estate of Shabazz, 482 U.S. 342, 348 (1987) (recognizing

rehabilitation as a "valid penological objective"); see also

Waterman II, 12 F.Supp.2d at 381 ("[T]he Court recognizes

that rehabilitation is a valid penological interest . . . .").

Seeing no reason to question Defendants' assertion that the

statute serves the purpose of promoting the rehabilitative

efforts of the A.D.T.C., we reject the District Court's

conclusion that the statute's purpose is illegitimate.

b. Neutrality

The District Court made no findings concerning the

statute's neutrality. However, in Thornburgh v. Abbott, 490

U.S. 401 (1989), the Supreme Court made clear that

Safley's "neutrality" requirement is met if the asserted

interest is "unrelated to the suppression of expression." Id.

at 415. As we have already explained, the statute's purpose

is to enhance the A.D.T.C.'s efforts to rehabilitate New

Jersey's most serious sex offenders. Because the state's

interest in rehabilitation is "unrelated to the suppression of

expression," we conclude that the statute's purpose is

neutral for purposes of Safley.

c. Means-End Fit

We may conclude that the statute bears no "valid,

rational connection" to rehabilitation if "the logical

connection between the [statute] and the asserted goal is so

12

remote as to render the policy arbitrary or irrational."

Safley, 482 U.S. at 89-90. This standard is similar to

rational-basis review, under which a statutory classification

can be declared unconstitutional only where the

relationship of the classification to its asserted goal is "so

attenuated as to render the distinction arbitrary or

irrational." Nordlinger, 505 U.S. at 11 (1992). See Amatel,

156 F.3d at 198-99 (D.C. Cir. 1998) ("[T]he similarity

between Safley's phrasing and the language of rational

basis review suggests to us that, as far as the means-end

fit is concerned, Safley's standard is, if not identical,

something very similar."). The legislature's judgment

therefore need not be perfect, just rational.

During proceedings before the District Court, Defendants

presented evidence that the statute bears a "valid, rational

connection," Safley, 482 U.S. at 89-90, to the rehabilitation

of sex offenders. They submitted affidavits from two

psychologists--Dr. Nancy Graffin, Ph.D., and Dr. Timothy

Foley, Ph.D.--both of whom testified that pornographic

material threatened to thwart the effectiveness of the

treatment given to A.D.T.C. inmates.

Dr. Graffin testified that throughout their treatment,

A.D.T.C. inmates are required to develop an advanced

understanding of the consequences of their sexual assaults

and recognize cognitive distortions associated with their

sexual abuse. App. at 125-29. She further explained that

during the final treatment phase, inmates are required to

demonstrate victim sensitivity and the ability to connect

emotionally with others. Id. Finally, Dr. Graffin explained

that sexually oriented material can be a threat to A.D.T.C.

treatment because pornographic material tends to objectify

the individuals depicted. Id.

Similarly, Dr. Foley testified that sexually explicit

material could be harmful to A.D.T.C. inmates, reasoning

that exposure to such material can lead the inmates to

believe that intimacy can be achieved only through sexual

release and that a victim is necessary for sexual enjoyment.

App. at 135-140. He also concluded that pornography is

particularly dangerous to A.D.T.C. inmates because some

sex offenders tend to use such material to supply and

fortify their fantasies and are likely to engage in a series of

13

"trial runs" of these fantasies once they are released from

prison. Id.

In addition to the affidavits of Drs. Graffin and Foley,

Defendants also referred the Court to "a considerable body

of research supporting the view that the sexual material

prohibited by the statute is harmful to prisoners and poses

a danger to society when these sex offenders consume it."

Br. for Appellants at 16, 31.

Nevertheless, the District Court concluded that the

statute did not bear a "valid, rational connection" to a

legitimate and neutral governmental objective. See

Waterman II, 12 F.Supp.2d at 381. In so doing, the Court

suggested that the lack of consensus among psychologists

invalidated Defendants' contention that the statute

enhanced the state's efforts to rehabilitate its most serious

sex offenders. The Court wrote:

After reviewing the experts' affidavits, the Courtfinds

that the psychology field has not yet reached an

agreement on how sexually oriented materials affect

the treatment of sex offenders. Although the Court is

not equipped to resolve that issue, it has determined

that plaintiffs' experts are more convincing because

their position is more reasonable. Given the

disagreement in the psychology field on this issue, it

seems most appropriate for psychologists to determine

whether to use such materials on a case-by-case basis.

On the other hand, flatly prohibiting such materials, as

N.J.S.A. 2C:47-10 proposes to do, would deny certain

sex offenders valuable treatment. Thus, N.J.S.A.

2C:47-10 actually diminishes New Jersey's purported

interest in rehabilitation. The Court concludes that the

statute is not rationally related to rehabilitation

because plaintiffs' experts' recommendation that the

materials be reviewed on a case-by-case basis is a

better method for handling the materials than that

provided by the statute and New Jersey's experts.

Id. at 382. Simply stated, the District Court based its

conclusion on the fact that "[t]he experts in this case

disagree on the effect that the materials will have on the

treatment of the inmates at the A.D.T.C." Id. at 381; see

14

also id. at 382 ("The psychology field has not yet reached

an agreement on how sexually oriented materials affect the

treatment of sex offenders.").

Notably, the Court did not conclude that the opinions

expressed by the Defendants' experts were irrational or

unreasonable. Rather, the Court opined that the theories

advanced by the Plaintiffs' experts were "better," "more

convincing," and "more reasonable," id . at 382, thereby

suggesting that the opinions expressed by the Defendants'

experts were in fact reasonable, but simply less so than the

Plaintiffs' experts' opinions.

The District Court applied the wrong standard, replacing

the New Jersey legislature's policy decisions with its own

"more reasonable" judgment. In so doing, the Court failed

to accord the legislature's judgment the deference to which

it is entitled.8 The appropriate question is not whether the

theories advanced by either party's experts are"more

reasonable" and "more convincing," but instead whether

"the logical connection between the [statute] and the

asserted goal" of improving the A.D.T.C.'s sex offender

_________________________________________________________________

8. Two factors present in this case compel us to examine the New Jersey

legislature's judgment deferentially. First, the statute governs the

management of one of New Jersey's prisons. As the Supreme Court

explained in Safley, determinations related to prison management are

"peculiarly within the province of the legislative and executive branches

of government," and must therefore be reviewed with a "policy of judicial

restraint." Safley, 482 U.S. at 84-85 (internal citations and quotation

marks omitted). That policy applies with even greater vigor here because

"[w]here a state penal system is involved, federal courts have . . .

additional reason to accord deference to the appropriate . . .

authorities."

Id.

Second, in enacting N.J.S.A. 2C:47-10, the legislature has

"undertake[n] to act in [an] area[ ] fraught with . . . scientific

uncertainties." Marshall v. United States, 414 U.S. 417, 427 (1974). The

Supreme Court has explained that in such circumstances, "legislative

options must be especially broad and courts should be cautious not to

rewrite legislation, even assuming arguendo, that judges with more

direct exposure to the problem might make wiser choices." Id. at 427.

Stated differently, courts are bound to give the legislature greater

deference--not less--where the latter has "undertake[n] to act in [an]

area[ ]" where "experts disagree." Id. at 427.

15

rehabilitation program is "so remote as to render the policy

arbitrary or irrational." Safley, 482 U.S. at 89-90.

In a recent decision upholding a statute that effectively

prohibits the distribution of sexually explicit material in

federal prisons, the United States Court of Appeals for the

District of Columbia Circuit acknowledged its deferential

role under Safley. The Court explained that the legislative

judgment underlying the challenged statute need not be

perfect to be deemed rationally connected to a legitimate

penological interest:

The legislative judgment is that pornography adversely

affects rehabilitation. It does not matter whether we

agree with the legislature, only whether we find its

judgment rational. The question for us is not whether

the regulation in fact advances the government

interest, only whether the legislature might reasonably

have thought that it would.

Amatel, 156 F.3d at 199 (D.C. Cir. 1998).

We agree with the Amatel panel's analysis; as long as the

statute is rational, it clears Safley'sfirst hurdle. Thus,

Defendants need only demonstrate that "the [New Jersey]

legislature might reasonably have thought that [the statute]

would" advance the interest of rehabilitating the sex

offenders housed at the A.D.T.C. Id. at 199.

We conclude that the Defendants made such a showing

and that New Jersey "could rationally have seen a

connection between pornography and rehabilitative values."

Id. at 199. Many psychologists--Defendants' experts

included--have expressed well-reasoned opinions

supporting Defendants' argument that the statute will

enhance the A.D.T.C.'s rehabilitative efforts. These opinions

provide a sufficient basis for us to conclude that the statute

bears a valid rational connection to a legitimate penological

interest.

Moreover, "[c]ommon sense tells us that prisoners are

more likely to develop the now-missing self-control and

respect for others if prevented from poring over pictures

that are themselves degrading and disrespectful." Id. at

199. Thus, even without the opinions of Defendants'

16

experts, we could conclude that New Jersey acted rationally

in enacting N.J.S.A. 2C:47-10 because the theoretical

underpinnings of the statute

share[ ] at least a core with ideas that have a lineage of

a few centuries, perhaps millennia, stressing the

desirability of deferring sexual gratification, of

sublimation of sexual impulses, of channeling sexual

expression into long-term relationships of caring and

affection, of joining eros to agape. The supposition that

exclusion of pornography from prisons will have much

of an impact in this direction may be optimistic, but it

is not irrational.

Id. at 199.

Plaintiffs acknowledge that Amatel is "consistent with

th[e] well-established line of cases" applying Safley. Br. for

Appellees at 23. However, they attempt to distinguish

Amatel by pointing out that the statute upheld in Amatel

" `is not enforced directly,' " but is instead enforced

pursuant to " `regulations defining the terms of the

proscription and significantly narrowing its scope.' " Id.

(quoting Amatel, 156 F.3d at 194).

Whatever force this argument carried prior to the

issuance of the new implementing regulations, we see no

basis for the argument now. As previously noted, New

Jersey has now promulgated regulations "defining the

terms of the proscription and significantly narrowing [the

statute's] scope." Id. (quoting Amatel, 156 F.3d at 194); see

N.J.A.C. 10A:18-9 (narrowing the operative terms of

N.J.S.A. 2C:47-10). Thus, Plaintiffs' attempt to distinguish

Amatel fails.9

_________________________________________________________________

9. Plaintiffs liken N.J.S.A. 2C:47-10 to a prison regulation that was

declared unconstitutional in Mauro v. Arpaio, 147 F.3d 1137 (9th Cir.

1998). However, the Ninth Circuit has withdrawn its opinion in that case

pending rehearing en banc. See 162 F.3d 547 (1998).

But even if the Mauro opinion had not been withdrawn, it would not

affect the outcome of this case. The Mauro panel's holding was based on

the the defendants' failure to demonstrate that the regulation was

reasonably related to a legitimate penological interest. As the panel

noted, the defendants' evidence amounted to little more than a

17

We are satisfied that N.J.S.A. S 2C:47-10 bears a valid,

rational connection to the legitimate penological interest

put forward to justify it, and we hold that the District Court

erred in concluding otherwise.

2. Alternative Means

The second factor requires us to assess the availability of

alternative means of exercising the right at stake. For

obvious reasons, this factor tends to favor plaintiffs where

the alleged right is defined narrowly, and where the scope

of the restriction is construed broadly. Thus, "if the `right'

at stake is defined in terms of the materials excluded by the

ban, any regulation will come up short." Amatel, 156 F.3d

at 192.

Not surprisingly, Plaintiffs define the right narrowly, and

read the statute broadly. Br. for Appellees at 44-45. While

not commenting directly on the scope of the right, the

District Court construed the statute broadly, finding that it

"could potentially prohibit the inmates from reading or

viewing many legitimate publications." Waterman I, 12

F.Supp.2d at 376. The Court feared that (1) "the word `any'

ensures that the statute is overbroad because `any'

mandates that no exceptions will be made to the statute"

and (2) "the words `any associated anatomical area' appears

to mean that every publication that contains a body part

that is associated with sexual activity is banned." Id.

According to the District Court, the statute could be read

as allowing A.D.T.C. officials to prohibit everything from the

Bible to legal publications. Id.

We find the District Court's analysis of this factor to be

unreasonable and inconsistent with Thornburgh v. Abbott,

490 U.S. 401 (1989). In Thornburgh, the Court upheld a

regulation that barred all "sexually explicit material which

by its nature or content poses a threat to the security, good

_________________________________________________________________

conclusory assertion that "inmates will misbehave when using materials

depicting frontal nudity." Mauro, 147 F.3d at 1143. Unlike the

defendants in Mauro, the Defendants before us--like the defendants in

Amatel--have met their burden under Safley. Mauro is therefore

distinguishable.

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order, or discipline of the institution, or facilitates criminal

activity." Id. at 405 n.5. The Court concluded that the

second Safley factor was "clearly satisfied" because "the

regulations permit a broad range of publications to be sent,

received, and read." Id. at 418. Significantly, the Court saw

no problem with the breadth or ambiguity of the regulation.

The Thornburgh Court also explained that the relevant

right "must be viewed sensibly and expansively." Id. at 417.

Here, it was not "sensible" for the District Court to conclude

that the statute was broad enough to forbid prisoners from

reading the Bible, legal publications, or other non-

pornographic books. See Waterman I, 12 F.Supp.2d at 376

("[T]he Court agrees with plaintiffs' argument that the

statute prohibits them from reading the Bible, fashion

magazines, books, and cases."). We therefore disagree with

the District Court's conclusion and conclude that N.J.S.A.

2C:47-10 provides Plaintiffs with an alternative means of

exercising their constitutional rights.

Even if we were otherwise inclined to reach the opposite

conclusion, the recently promulgated regulations

implementing the statute would foreclose any need for us to

do so. As noted, the regulations significantly narrow the

statute's broad scope by defining many of its operative

terms, providing that

"Associated anatomical area" means exposed or

unclothed genitalia or female breasts.

"Sexual activity" means actual or simulated ultimate

sexual acts including sexual intercourse, oral sex,

masturbation, or bestiality.

"Sexually oriented material" means a picture or other

representation, publication, sound recording, live

performance or film that contains a description or

depiction of sexual activity or associated anatomical

area, as these terms are herein defined.10

_________________________________________________________________

10. The regulations also explain that "[m]aterials containing a depiction

or description of sexual activity or an associated anatomical area shall

not be considered `sexually oriented' unless the material is

predominantly oriented to such depictions or descriptions." N.J.A.C.

19

N.J.A.C. 10A:18-9.1 (1999). Thus, the regulations eliminate

any concern that Plaintiffs will be left without alternative

means of exercising their constitutional rights.

Accordingly, we conclude that N.J.S.A. 2C:47-10 satisfies

Safley's second prong.

3. Impact of Accommodation on Prison

Resources/Absence of Alternatives

Safley's third prong requires us to evaluate the adverse

impact that accommodating the Plaintiffs' asserted rights

would have "on guards and other inmates, and on the

allocation of prison resources." Safley, 482 U.S. at 90.

Similarly, the fourth prong requires us to determine

whether there are alternatives that can accommodate the

right "at de minimis costs to valid penological interests." Id.

at 91. As the District Court noted before issuing the

preliminary injunction, Defendants' "arguments on[the

third and fourth] factors overlap." Waterman I, 12

F.Supp.2d at 375. We will therefore discuss them together.

The District Court declined to address Safley 's third and

fourth prongs when issuing the permanent injunction,

concluding that "the ruling that New Jersey does not have

a legitimate penological interest renders those factors

moot." Waterman II, 12 F.Supp.2d at 382 n.2. However,

Plaintiffs maintain that reasonable alternatives are available

and argue that the A.D.T.C. staff "could review incoming

publications [on a case-by-case basis and selectively

prohibit] materials [found to be] harmful to rehabilitation."

Br. for Appellees at 46-47.

As the Supreme Court has acknowledged, Safley does not

impose a least-restrictive-alternative test. 492 U.S. at 90.

Consequently, we need not conclude that no less restrictive

alternatives are available. Id. Where accommodation of the

asserted right would have a "ripple effect" on prison staff,

_________________________________________________________________

10A:18-9.2(b). A publication is only considered"predominantly oriented

to the depiction or description of sexual activity or associated

anatomical

area" if it "features or contains such descriptions or displays on a

routine or regular basis or promotes itself based upon such depictions in

the case of individual one-time issues." N.J.A.C. 10A:18-9.2(c).

20

courts are encouraged to give particular deference to the

informed discretion of corrections officials. Id. (internal

quotations omitted).

Defendants maintain that no reasonable alternatives are

available. They point out that, while some inmates might

not be adversely affected by limited access to pornography,

any limited distribution would have to be carried out on the

basis of a case-by-case review. Such a review, Defendants

argue, "would have to be specifically controlled and

monitored by a qualified therapist, thereby causing an

undue burden on a staff already inundated with sex

offender cases." Br. for Appellants at 35. Defendants also

assert that even if the A.D.T.C. were sufficiently staffed to

enable it to conduct a case-by-case review, a limited

distribution would be impossible to control since"prisoners

are more than likely to pass their material to other

prisoners." Id. at 36.

We agree. The costs of the case-by-case alternative

proposed by Plaintiffs would be "far from de minimis."

Amatel, 156 F.3d at 201 ("The most obvious alternative is

a detailed prisoner-by-prisoner (and presumably

publication-by-publication) sifting to determine whether a

particular publication will harm the rehabilitation of a

particular prisoner. The costs of this approach seem far

from de minimis."). Moreover, any attempt to accommodate

the Plaintiffs' asserted rights would have an unduly

burdensome effect "on guards . . . and on the allocation of

prison resources." Safley, 482 U.S. at 90.

In sum, having analyzed the statute under the four-

pronged test announced in Safley, we conclude that

N.J.S.A. 2C:47-10 is "reasonably related to legitimate

penological interests," id. at 89, andfind that the District

Court erred in concluding otherwise.

III. CONCLUSION

For the foregoing reasons, we reverse the decision of the

District Court and remand for the entry of judgment in

favor of the Defendants.

21

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

22