Amicus Curiae Brief — Turner v. Safley

Department

and Resources for the State of Missouri,

Vv |

LEONARD SAFLEY, et al., MARY WEBB, et .,

individually and as a class of similary situated people,

Respondent.

DR. LEE ROY BLACK; DAVID W. BLACKWELL;

DONALD WYRICK; BETTY BOWEN;

EARL ENGELBRECHT,

of the Department of Corrections

and Resources for the State of Missouri,

v Petitioners,

LEONARD SAFLEY, et al., MARY WEBB, et al..

individually and as a class of similary situated people,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals For The Eighth Circuit

BRIEF FOR THE STATE OF TEXAS AS AMICUS

CURIAE IN SUPPORT OF THE PETITIONER

F. SCOTT McCOWN

Cait, Ratercomenl Divicion

MICHAEL F. LYNCH

Assistant Atterney General

P.O. nag Bony siggy Station

TABLE OF CONTENTS

Page

r . . „. ii

INTERESTS OF AMICUS CURIAE Eg 1

ZT 3

r . 4

I. THE EIGHTH CIRCUIT VIEW OF THE THREAT

POSED BY INMATE-TO-INMATE MAIL 18

ER ES ••24 . 4

e

II. WiDESPREAD ABUSE OF THE INMATE-TO-

INMATE CORRESPONDENCE PRIVILEGE

CREATES SERIOUS SECURITY PROBLEMS ....... 7

III. NO MEANS SHORT OF A GENERAL BAN OF

INMATE-TO-INMATE CORRESPONDENCE

WILL END THE ABUSE WHICH THREATENS

eee WWVwꝛꝛꝛ 10

D ̃è LT......, . „.... 17

-ii-

TABLE OF AUTHORITIES

Cases Page

Abbott v. Richardson, No. 73-1047, slip op. at 3

(D.C. D.C. Sept. 13, 1984) (Bryant, J.) .................. 4,9

Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861

. 5.7, 10

Guajardo v. Beto, 349 F.Supp. 211 (S. D. Tex. 1972),

vacated and remanded sub nom. Sands v. Wainwright,

491 F.2d 417 (5th Cir. 1973), cert. denied, :

406 UE GER eee... eee 2,3

Guajardo v. Estelle, 432 F.Supp. 1373 (S.D. Tex. 1977)

(on remand), rev'd in part, 580 F.2d 748 (5th Cir.

. . 4 ĩi[krꝛ 2,3

Guajardo v. Estelle, 568 F.Supp. 1354 (S.D. Tex. 1983)

(on remand) aff d sub nom. Franks v. McKaskle, No.

GD-GS58 Gi Gis. Daly GERD. . oo.o vdeo cesnvusedanteasesss 2,3

Jones v. North Carolina Prinsoner s Labor Union, Inc.,

433 U.S. 119, 97 S.Ct. 2532 (1977) T 6

Mitchell u. Carlson, 404 F.Supp. 1220 (D. Kan 1975) 4,5

Pell v. Procunier, 417 U.S. 817, 94 S.Ct. 2800

OOD on .. ½/ůT) ae 3,6,10

Petterson v. Davis, 415 F.Supp. 198 (E.D. Va. 1976) ........ 5

Procunier v. Martinez, 416 U.S. 396 (1974) ................. 3

Ruiz v. Estelle, 679 F.2d 1115 (5th Cir. 1982) ............. 10

Safley v. Turner, 777 F.2d 1307 (8th Cir. 1985) ......... 3,5,6,7

Schlobohm v. U.S. Attorney General, 479 F.Supp. 401

nnn re ee eer 11

Vester v. Rogers, No. 85-6639 (4th Cir. July 18, 1986)

(Murnaghan, J., dissenting) .....................e2eee- 11

TABLE OF AUTHORITIES, continued

Constitutions, Statutes and Rules:

No. 85-1384

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1985

WILLIAM R. TURNER; CATHY CROCKER;

EARL ENGELBRECHT; BETTY BOWEN;

BERNICE E. TRICKEY; HOWARD WILKINS;

JANE PURKETT; WILLIAM F. YEAGER;

LARRY TRICKEY,

-Employees of the Department of Corrections

and Human Resources for the State of Missouri,

v Petitioners,

LEONARD SAFLEY, et al., MARY WEBB, et al.,

individually and as a class of similary situated people,

Respondent.

DR. LEE ROY BLACK; DAVID W. BLACKWELL;

DONALD WYRICK; BETTY BOWEN;

EARL ENGELBRECHT,

Employees of the Department of Corrections

and Human Resources for the State of Missouri,

v Petitioners,

LEONARD SAFLEY, et al., MARY WEBB, et al.,

individually and as a class of similary situated people,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals For The Eighth Circuit

BRIEF FOR THE STATE OF TEXAS AS AMICUS

CURIAE IN SUPPORT OF THE PETITIONER

INTERESTS OF AMICUS CURIAE

Pursuant to United States Supreme Court Rule 36.4, the

State of Texas, by and through its Attorney General, files this

brief as amicus curiae in support of petitioner. Texas has had

significant experience in the Texas Departmet of Corrections

(TDC) with inmate-to-inmate correspondence and supports her

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sister state s contention that this correspondence undermines

security in a state’s prison, while serving little, if any, useful

purpose. Texas thus contends that states should be free to pro-

hibit or limit all inmate-to-inmate mail.

TDC’s correspondence policies are found in TDC’s Cor

respondence Rules, which were adopted pursuant to a lengthy

class action litigation known as the Guajardo case. See Gua-

jardo v. Beto, 349 F.Supp. 211 (S.D. Tex. 19'/2), vacated and

remanded sub nom. Sands v. Wainwright, 491 F.2d 417 (5th

Cir. 1973), cert. denied, 416 U.S. 992 (1974); Guajurdo v. Estelle,

432 F.Supp. 1373 (S.D. Tex. 1977) (on remand), rev'd in part,

580 F.2d 748 (5th Cir. 1978); Guajardo v. Estelle, 568 F.Supp.

1354 (S.D. Tex. 1983) (on remand) aff'd sub nom. Franks v.

McKaskle, No. 83-2508 (5th Cir. July 1984).

In partial settlement of Guajardo, in 1978, TDC agreed to

provide for unlimited inmate-to-inmate mail in its Cor

respondence Rules. TDC’s experience in the years since 1978

has convinced the department that a serious mistake was made

in agreeing to allow inmate-to-inmate mail. In October 1985,

TDC moved for modification of the agreed injunction in Gua-

jardo to allow the department to prohibit inmate-to-inmate mail.

See Defendant's Motion to Modify the Correspondence Rules,

Guajardo v. McCotter, Civil Action No. 71-H-570 (Oct. 1985).

In January 1986 a hearing was held on this motion.’ At the

urging of the district court, the hearing was recessed to deter-

mine if the motion could be compromised. The parties did set-

tle on a compromise that allows TDC to restrict inmates whom

are adjudicated guilty of serious violations of the Cor

respondence Rules from sending or receiving further inmate-

to-inmate mail for up to two years.

While it may prove helpful, this new provision is not nearly

enough of a restriction to meet the department’s needs. TDC

nevertheless agreed to compromise because something was bet-

ter than nothing, which is what the district court made clear

1. A copy of the transcript of the hearing along with some of the exhibits

introduced into evidence has been lodged with the Clerk of the Court. Cita-

tions to this lodging will be noted as (L. at J. Texas offers this

lodging to illuminate the facts that should inform the Court's legal

conclusions.

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TDC was going to get unless it settled. (L. at 122-134.) The

district court’s comments during the hearing implied that the

district court strongly believed the case was controlled by Pro-

cunier v. Martinez, 416 U.S. 396 (1974), rather than Pell v. Pro-

cunier, 417 U.S. 817 (1974). The Eighth Circuit decision in

Safley had just been decided, which the Guajardo plaintiffs

touted to the district court. Had this Court already clearly an-

nounced that Pell controlled and inmate-to-inmate mail could

be prohibited, TDC would either have won in the district court

or appealed. In the face of a hostile district court and uncer-

tain law, however, TDC could not suffer the length and cost

of further litigation. While the dye has been cast for Texas,

she wishes better for her sister states.

That Pell controls and the first amendment does not protect

inmate-to-inmate mail is well explained in the briefs of Missouri,

Iowa, and the United States. In this brief, Texas will limit

herself to explaining why inmate-to-inmate correspondence is

why it cannot be effectively monitored or controlled,

and why its prohibition does significantly increase security.

SUMMARY OF ARGUMENT

The circuit court erred when it concluded that the security

concerns presented to prison officiais by inmate-to-inmate cor-

respondence were of minimal significance and that a ban on

inmate· to- inmate mail was overly restrictive and an unconstitu-

tional infringement of the First Amendment.

Seven years experience in allowing inmate-to-inmate cor-

has convinced Texas that the security risk created

by inmate abuse of the privilege is both real and substantial,

including murder, drug traffic, and gang activity.

Any response less restrictive than a general ban on cor-

respondence between inmates does little to enhance security.

Effective monitoring is impossible. First, there is too much

mail. Second, prisoners, particularly gang members, engage in

all manner of deception and subterfuge in order to circumvent

monitoring procedures. Gang jargon and codes are easily

employed in order to ensure that messages, including instruc-

tions to kill, are transmitted undetected throughout the system.

Texas agrees with the contention of petitioner that a state

should only be required to show a rational basis for implemen-

ting a ban of inmate-to-inmate correspondence, and that such

a rational basis does, in fact, exist. In any case, given the ex-

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perience of the Texas prison system, such a ban is the only

effective, and therefore the least restrictive, means of controll-

ing this threat to security.

ARGUMENT

I.

THE EIGHT CIRCUIT VIEW OF THE THREAT POSED

BY INMATE-TO-INMATE MAIL IS MISINFORMED

TDC is the second largest state prison system in the nation,

housing 38,000 prisoners in twenty-seven facilities. A survey

of all prison unit mailrooms in early 1985 disclosed that 33,918

pieces of inmate-to-inmate mail were handled during a two week

period.’ There is no practical means by which TDC can effec-

tively monitor and censor that amount of mail.

Over the past three years, TDC has witnessed a dramatic

increase in the number of inmate gangs, gang members, and

gang violence. In late 1985, there were six organized groups

operating within TDC, with known or suspected membership

totaling around 1200. Prison officials are not at all confident

that they had identified all members, and are certain that an

unknown number of sympathizers and associates exist

throughout the system. (L. at 106-110.) TDC estimates that

approximately thirty-seven prison homicides in 1984-85 were

gang-related killings. (L. at 110.)

Extensive intelligence gathering has revealed that by far the

most significant means of corresponding between gang

members is through the use of the United States mail. TDC

has been plagued by the very security threats posed by inmate

correspondence which have been dicussed in past court opin-

ions. Through the mail, prisoners have conducted drug tran-

sactions, formulated escape plans and planned gang-related

assaults. (L. at 18-28, 51-53, 141-161, 167-174.) Abbot: v.

Richardson, No. 73-1047 slip op. at 3 (D.C.D.C., Sept. 13, 1984)

(Bryant, J.): Mitchell uv. Carlson, 404 F.Supp. 1220, 1224 (D.

Kan 1975). They have circumvented protective interfacility

2. Since mail is processed at both the sending and receiving unit this figure

actually counts much of the same mail twice. However, the processing and

monitoring function must be done at each unit to have any degree of effec-

tiveness, so the time and effort involved is the same as if there were 33,918

separate mailings. Of course this figure does not include the much greater

amount of mail to and from the outside, which also must be processed. (L.

at 175-186.)

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transfers. Watts v. Brewer, 588 F.2d 646, 650 n.6 (8th Cir. 1978);

Peterson v. Davis, 415 F.Supp. 198, 200 (E.D. Va. 1976). They

have planned further crimes and generally disrupted effective

operation of the corrections system. See Mitchell v. Carlson,

404 F.Supp. 1220, 1224 (D. Kan. 1975).

When messages involve obvious gang business or murder

they are usually coded or hidden in some manner. The methods

vary from the simplest of greetings or innocent phrases that

have special meaning only to the knowledgeable reader, to

sophisticated number and letter codes that take great time and

patience to decipher. When faced with a large numbcr of in-

geniou:; inmates with a great deal of time on their hands, a

tremendous volume of inmate mail to process, and a limited

staff without tne ability and knowledge necessary to effectively

monitor the mail, the task becomes impossible. TDC firmly

believes that this open avenue of largely unrestricted com-

munication is a very significant factor in the growth of gangs

and gang violence over the past three years. Interviews with

former gang members, together with confiscated inmate mail,

has revealed that serious assaults and homicide have resulted

both directly and indirectly from messages sent through the

mail.

Missouri and other states who have not allowed cor-

respondence between inmates are handcuffed in their effort to

produce evidence as to security risks involved in inmate cor-

respondence because they do not have personal experience with

the dangers. Based upon the limited record Missouri cculd pro-

vide, the Eighth Circuit wrongly, indeed foolishly, concluded

that ., the presumption of dangerousness applied by the Jones

Court to prisoner unions loses its force in the context of mail

between two inmates in two different institutions physically

separated by many miles. Safley uv. Turner, 777 F.2d 1307,

1311 (8th Cir. 1985).

The Eighth Circuit’s conclusion underscores the wisdom of

this Court’s oft-repeated caution that prison administrators

must be given broad discretion in the adoption and execution

of policies involving institutional security and that courts are

ill-equipped to supply the specialized expertise required in this

type of decision making. Bell v. Wolfish, 441 U.S. 520, 99 S.Ct.

-6-

1861 (1979); Pell v. Procunier, 417 U.S. 817, 94 S.Ct. 2800 (1974);

Jones v. North Carolina Prisoners’ Labor Union, Inc., 433 U.S.

119, 97 S.Ct. 2532 (1977). For it is the very ability of two in-

mates in two different institutions physically separated by

many miles to communicate information in a fast and efficient

manner that has greatly assisted inmate gangs in conducting

their everyday business of disruption and violence and in

spreading like a cancer from one unit through the entire prison.

The experience of TDC shows that far from being exag-

gerated as the Safley court suggests the security concerns of

prison officials about inmate-to-inmate correspondence are real

and substantial. In contrasting what it considered the minor

security concerns inherent in inmate correspondence with the

serious potentiality for trouble presented by prisoner union ac-

tivities in Jones v. North Carolina Prisoners’ Labor Union, Inc.,

the Safley court stated:

First Amendment associational rights, the Jones

court acknowledges, were more directly implicated

but wers still subject to a reasonableness standard.

Id. at 132, 97 S.Ct. at 2541. This was a reflection of

the Court’s concern with the special dangers inherent

in concerted group activity by prisoners. The Court

noted the ever present potential for violent confron-

tation and conflagration among inmates, and the

fact that a prisoners’ union, where the focus is on

the presentation of grievances to, and encouragement

of adversary relations with, institution officials surely

would rank high on anyone's list of potential trouble

spots. Id. at 132-33, 97 S.Ct. at 2541.

Safley at 1311. Prison gangs and their growth and violence have

provided much more than a potential trouble spot for Texas

prison officials. The special dangers inherent in concerted

group activities by prisoners have manifested themselves in

widespread gang activity, including many homicides. Inmate-

to-inmate correspondence has been directly connected to much

of this activity. The fears and dangers addressed by this Court

in Jones are exactly the ones presently being confronted by

TDC. Reasonable prison officials might well seek to restrict

inmate-to-inmate mail privileges under such circumstances.

7.

In a further attempt to distinguish adverse case law, the

Eighth Circuit contrasted the ban on hardback books upheld

in Bell v. Wolfish, 441 U.S. 520, 99 S. Ct. 1861 (1979), to

Missouri's ban on inmate-to-inmate correspondence. The court

noted that hardback books, unlike letters, could easily conceal

contraband. Additionally, the Eighth Circuit noted the small

amount of inmate-to-inmate mail allowed by Missouri could be

easily opened and scanned by a single prison officer on a daily

basis. Safley at 1311-1312. The Eighth Circuit concluded that

a letter does not present the same sort of obvious security

problem’ as does a hardback book. Safley at 1312. Given the

Eighth Circuits speculative factual premise, its conclusion may

follow. The flaw is in the factual premise. The Eighth Circuit

did not understand the realities of inmate-to-inmate mail, show-

ing again the danger in lawyers attempting expert security

judgments.

II.

WIDESPREAD ABUSE OF THE INMATE-TO-INMATE

CORRESPONDENCE PRIVILEGE CREATES SERIOUS

SECURITY PROBLEMS

The use of inmate-to-inmate correspondence to conduct all

varieties of gang business has been well documented in the TDC

system. In the district court hearing to modify TDC’s Cor-

respondence Rules, mentioned earlier, a TDC inmate and ex-

Texas Mafia (TM) gang member discussed in detail how inmate-

to-inmate mail was used to investigate and recruit potential

members. (L. at 21-24.) He also detailed how he personally sent

letters to other units to keep a lookout for an individual who

had been transferred after a stabbing incident. The sole pur-

pose of the correspondence wos to make members on other units

aware that the victim had not been killed and that the job

should be completed if he appeared on their unit. (L. at 19-21,

286-288.)

This inmate also testified that correspondence played a

significant role in the death of inmate David Robidoux in

September of 1984. Robidoux was transferred from Ramsey

II Unit to the Eastham Unit. These units are a substantial

distance apart and the only reliable means of regular inmate

8.

communications is through the mail. Robidoux, a Texas Mafia

member, had been locked up in segregation before his transfer

from Ramsey II under what members there felt were curious

circumstances. Letters travelled to members on Eastham in

which this information was discussed, and the conclusion even-

tually reached was that Robidoux was an informant and need-

ed to be killed. Shortly after his arrival at Eastham, he was

stabbed and killed by TM members. (L. at 29-35, 289-293.)

Subsequent to this stabbing, another hit letter was sent out

through the mail by TM members to kill an inmate who had

been transferred from Eastham Unit after witnessing the

Robidoux killing. This inmate was also attacked on his new

unit. (L. at 35-36.)

The deposition testimony of Salvador Buentello, TDC’s gang

expert, further explains gang misuse of mail privileges.

Buentello testified that recruiting, drug transactions, and the

planning of assaults all occur through the mail. Specifically,

his investigations and interviews with former gang members

revealed that at least four additional known assaults involv-

ing death or serious injury were tied to the mail. (L. at 141-161.)

Inmate Ronnie Evans was chairman of the Aryan

Brotherhood (AB) white supremacy gang at the Eastham Unit.

He received instructions through the mail from “Steering Com-

mittee” members on other units to carry out certain “hits”

ordered by gang leaders. Evans failed to carry out the mail

ordered hits and consequently letters were sent tc other

members to assasinate Evans. Evans was subsequently attack-

ed and stabbed on the Eastham Unit by several gang members.

(L. at 151-154, 258-274, 294-297.)

Buentello received information from two sources that gang

letters were sent out containing a reference to taking out the

trash. One ex-gang member admitted that he clearly

understood this phrase to mean that inmate Melvin Douglas,

nickname Trash Can, was to be killed as soon as possible. Subse-

quent to these mailings, Melvin Douglas was killed on the Ellis

II Unit of TDC. (L. at 154-156, 298-300.)

Inmate Steve Garcia was a Texas Syndicate (TS) member

who had been paroled. Unknown to him, he had been marked

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for death by the gang over unpaid debts to a gang member.

When he returned to TDC he was processed through the

Diagnostic Center. Word went out through the mail from

Diagnostic to Ellis I Unit that Garcia was in the system and

to be on the lookout for him. Ellis I sent the word to other units.

By the time Garcia completed the diagnostic process and

transferred to his unit of assignment, word of his troubles and

the gang’s solution was well known by members; he was kill-

ed several hours after arriving at the unit. (L. at 156-159,

303-306.)

Raphael Jacquez was a TS member serving at the Retrieve

Unit of TDC. It was determined by a member on another unit

that Jacquez had wronged a member and was unworthy of TS

membership. The only way out of TS is through death, so orders

were sent through United States mail to Retrieve Unit to kill

Jacquez, and he was subsequently stabbed to death. (L. at

159-161, 224-225, 301-302.)

As these cases illustrate, the most important and effective

means of communication for gang members is through the

avenue of regular mail service. It is relatively fast and depen-

dable. Other methods exist (legal visits between inmates,

messages mailed through outside sources, messeges carried by

transferring inmates), but none are as dependaL.v and as much

in the inmates’ control as mail service. The evidence, in the eyes

of TDC officials, overwhelmingly shows that gangs rely heavily

on the ability to correspond through the mail and that disrup-

tion of this communication link would cripple them much more

severely than any alternative action. (L. at 17-19, 50-53,

141-142, 168-169.)

The courts should not substitute their judgment for that of

prison officials under circumstances such as these. Nor should

it matter that other less effective avenues of communication

are available to inmates bent on wrongdoing. All security

measures can be circumvented, but those responsible for securi-

ty must nonetheless take reasonable steps to control violence

and disorder. A prison system should not be “required to forego

controlling one means of communcatiosn where it cannot con-

troll all means. Abbott v. Richardson, No. 73-1047 slip op. at

3 (D.C.D.C., Sept. 13, 1984) (Bryant, J.). Those controls

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that can be maintained, must be maintained to ensure, to the

extent possible, the safety of staff and inmates.

III.

NO MEANS SHORT OF A GENERAL BAN ON IN-MATE-

TO-INMATE CORRESPONDENCE WILL END THE

ABUSE WHICH THREATENS SECURITY AND SAFETY

Respondents, as well as the Eighth Circuit, argue that the

general prohibition of inmate correspondence is overly restric-

tive and that the proper response for a prison system is to

monitor inmate mail and thereby restrict the flow of illicit com-

munication. In a system such as TDC, with 38,000 inmates and

many units throughout the state, the task of simply process-

ing the tremendous volume of mail is enormous. The energy

and expense necessary to properly staff each of twenty-seven

mailrooms with knowledgeable monitors who have bilingual

abilities as well as knowledge of gang jargon and codes would

be overwhelming. A penal institution’s financial resources

should be considered when prisoners challenge the constitu-

tionality of its practices. Bell v. Wolfish, 441 U.S. 520, 99 S.Ct.

1861 (1979); Ruiz v. Estelle, 679 F.2d 1115, 1146 (5th Cir. 1982)

(Ahe cost of one proposed remedy in comparison with the

cost of others and the demonstrable need for the remedy should

both be considered ). See Pell uv. Procunier, 417 U.S. 817, 826,

94 S.Ct. 2800, 2806 (1974) (institutional considerations, such

as security and related administrative problems, may justify

limits on prisoner communications).

Upholding the Federal Bureau of Prisons’ rule while refus-

ing to require costly alternatives, one court put the matter this

way:

Ideally we would like to allow this correspondence,

and to direct the prison officials to monitor each let-

ter for threats to security or order. But in practical

terms such an Order would cause shifts in manpower,

it would result in a need for more help, more money,

and changes in the administration of the entire

system of mailing. We cannot act as administrator,

and we will not substitute our judgment for that of

1

the prison administrators... [w]e are satisfied that [the

rule] is as narrowly drawn as the prison system

allows.

Schlobohm v. U.S. Attorney General, 479 F.Supp. 401, 403

(M.D. Penn. 1979) (emphasis added).

Moreover, experience would indicate that no amount of

monitoring, regardless of the resources committed, would ef-

fectively curb the abuse of the mail privilege. Inmates at TDC

have developed an incredible range of methods to circumvent

attempts at censoring inmate-to-inmate mail. The following ex-

amples have been obtained through investigation, searches, in-

terviews with inmates, and confiscation of mail; they vary from

the simple and straightforward to the sophisticated and

complex.

Inmates know that not all mail can be completely monitored.

Gang members whose mail is being closely watched or who have

been restricted merely use a clean inmate who is a secret sym-

pathizer or who has been threatened or intimidated to send out

their important gang mail to other members or secret sym-

pathizers. (L. at 27-28.)

Inmates are aware of the abilities of mailroom monitors.

Often, bold messages dealing with gang business are sent hid-

den only by use of the Spanish language if members feel confi-

dent that no one can decipher the language, or their own Tex

Mex variety of it. Two letters included in the Texas Lodg-

ing, confiscated in late 1985, are representative of this type

of gang communication. They involve inflamed rhetoric by

members of the Mexican Mafia (MexiKanemi or E.M.E.) con-

‘ cerning their on-going ‘‘war’’ with the TS. This war resulted

in several prison homicides in mid-1985, most victims being

members of E.M.E. (L. at 247-257.)

In a cynical dissent in a very recent Fourth Circuit case,

which upheld a ban on inmate-to-inmate mail, Judge Mur-

naghan stated that the more innocuous a statement might

seem, the more devious at cryptography the authorities might

assert the would-be communicator to be.” Vester v. Rogers,

No. 85-6639 (4th Cir. July 18, 1986) (Murnaghan, J., dissenting).

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Such assertions by Texas prison authorities, however, are not

based on some unreasonable attempt at creative argument, but

on their experience gained through dealing with gangs and gang

correspondence. (L. at 25-26, 162-165.)

TDC has confiscated a copy of the constitution of the Aryan

Brotherhood, one of the largest and most vicious gangs

operating in the prison. (It is interesting to note that this

writing was disguised within the text of a class action legal

document.) This constitution discusses the duty of different

units to stay in communication with one another and the

methods by which to accomplish this end. (L. at 187-198.) Con-

cerning the important area of correspondence in recruitment

of members the constitution states:

IV. If a chairman submits a candidate's name to his S.C.

(Steering Committee) member, he should word it as

follows: John Doe wants to know how life is over

there. When the S.C. has made its investigation, and

if the candidate is to be approved, and placed in train-

ing, the S.C. will respond as follows: Tell John Doe

that life is fine.’’ If the candidate is denied, the S.C.

will say, Tell John Doe that life is bad. (L. at 194.)

In discussing the area of gang-ordered killings and the pro-

per procedure to be employed, members are informed as follows:

J. The S.C. must keep all units informed of the plaintiff-

class hit list. The chairman/captain on each unit will

be responsible for keeping his hit list up to date, and

carr ing out those assignments on his individual unit.

Unless there is no question, such as a plaintiff that

deserts or an automatic emergency situation, a chair-

man will consult his assigned S.C. member before

ordering a hit. This is to ensure that no false moves

are ordered. If the hit is ordered but cannot be car-

ried out at its assigned time, the S.C. (all five) must

be informed of the problems involved:

I. All additions to the plaintiff-class hit parade list

will come from S.C. members only. No excep-

tions, unless there is no doubt as defined earlier.

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If an individual is to be added to the hit list, the

S.C. over his unit will say, John Doe (in-

dividual’s name) got a write-up the other day.

When this is spoken, you add John Doe’s name

(L. at 195.)

Throughout the document legal terms such as plaintiff and

plaintiff · class are used to refer to the gang and its members.

Investigation has revealed that other legal phrases, as well as

ali types of other innocuous words and phrases, have been add-

ed to the underground vocabulary of the AB and other gangs.

File a brief, file an affidavit,” file a writ, file a suit,

in AB parlance, are all instructions to kill another inmate.

Depending on how it is used in a sentence and what is already

known about an individual, give our regards to John Doe

could mean that the inmate is to be killed, or that the inmate

has been approved for AB membership. (L. at 199-205.) TDC’s

list of gang phraseology now includes in excess of 100 phrases,

and of course many have not been uncovered.’

If mail censors confiscated each piece of mail in which one

of these phrases appeared, nearly all mail would be banned. On

the other hand, if mail was only stopped when monitors were

sure hidden meaning existed, virtually all mail would go

through. This dilemma confronts mailroom personnel daily.

The gang assault on inmate Ronnie Evans, discussed above,

exemplifies efficient gang use of these kinds of innocuous

phrases. Letters, confiscated after the attack, reflect the in-

creasing displeasure of gang leaders with Evans’ work. (L. at

3. The Texas Lodging includes confiscated letters in which several of the

listed terms are used. One letter states we just filed suit against Texas Mon-

thly Magazine and advises caution since they are Trying to file a counter-

suit at the same time. The underlying meaning is that AB has put out hits

on Texas Mafia members and TM is seeking to strike back.

Another letter states: A fried of mine was going to Austin Babtist Col-

lege and he let us know about them Texas Medical changing colleges. '’ The

letter continues in this vein with more innocuous information. In fact, this

letter is a discussion between two gang members concerning the significant

defection of Texas Mafia members to the rival AB. (L. at 275-284.)

D>

253-274.) In a September 6, 1985, letter, Evans was told, in

connection with certain members marked for killing due to their

own failure to carry out ordered hits:

Hey Bro

Look, that one with the legal work shouid of filed

when the court told him too 5 months ago. But he

didn’t nor did the other one that was on the suit. The

court gave them both ample time to deal with it and

they chose not to. It was just that they failed to de-

fend the class action as the United States Constitu-

tion calls for, Period.

You can tell the other plaintiff's that if anyone

neglect, the same ruling will be passed on them.

If you take care of whats to be and regain contol

of the class plaintiff's I'll personal writ your judge(s)

and take a stand.

(L. at 259.)

Letters sent to Evans over the next several months by AB

members urged him to take care of the Eastham hits as ordered

by the Court. A November 16, 1984, letter implored but

Ronnie man, you need to have that other brief prepared and

filed from out there Bro as soon as possible man. (L. at 271.)

Finally, a letter was sent from Ellis Unit to another AB

member at Eastham on November 20, 1984, that sealed Evans’

fate:

November 20, 1984

Bros, |

In reference to the class action, Ruiz v. Procunier,

a recent Supreme Court RULING has taken place and

it is by order of the Court that inmate John S. Montes

replace Ronnie Evans in heading and coordinating the

present litigation in the class action entitled Ruiz v.

Procunier.

15

This is the result of an en banc’’ (unanimous) opi-

nion of the Court and there seems to be a mistaken

opinion that such Court Orders are appealable. This

is not the casel The Supreme Court defines the law

as the law is, and so it stands.

Each and every plaintiff in the above entitled class

action is fully expected to abide by this Ruling, and

the recipients of this notice are to help circulate and

inform plaintiffs of this Ruling.

Love and Respect,

Bosco

(L. at 274.)

On December 1, 1984, in the Eastham Unit dining room, Ron-

nie Evans was attacked and stabbed by several AB members.

(L. at 294-297.)

Codes create another major obstacle to effective monitoring

of inmate mail. Even if the code is discovered, it is a losing

proposition to expect to catch all the correspondence making

use of it. Cryptic messages properly hidden will constantly

sneak past the best of busy monitors. (L. at 162-166, 21-27,

37-40.)

Among the codes TDC first uncovered was one used by TS

which employed a Braille system and was designed by an in-

mate who was going blind. A series of grouped dots spread

throughout a letter would form the hidden message. As time

progressed, TS developed another code using both dots and

symbols. (L. at 217-218, 230-231.) Inmate letters are routinely

filled with such drawings and symbols, and so these letters in-

itially aroused little suspicion.

As gangs have proliferated at TDC, so have the variety and

sophistication of codes. Apparently, the most effective and

widely used code, which has several variations, is a numerical

or direct substitution” code. Basically, each letter of the

alphabet is assigned a different number and the numbers are

incorporated throughout the innocent version of the cor-

respondence to form messages. The recipient then pulls all the

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numbers and translates them to letters thereby decoding the

message. The number-letter relationship can be changed by

prearranged agreement or through some tip off in the message

itself. This allows for continued use of the code despite the fact

that authorities might break the versior being employed. To

apply twenty six variations to each inmate letter containing

numbers, is to ask the impossible of any mail monitor. (L. at

206-216, 36-48.)

The ex-Texas Mafia member, whose hearing testimony has

previously been discussed, gave a detailed explanation of gang

use of this type of code, including how he personnally used it

in sending messages concerning gang recruitment and hits. Ad-

ditionally, his testimony included working through a sample

coded letter which he himself had written and an explanation

of how this garden-variety inmate letter actually reduced down

to an order to kill the unit warden. The method by which he

had hidden the all-important code indicator in the letter re-

quired a trial and error method of decoding which would take

even a person in the know a significant period of time to resolve.

But as the witness explained, unlike a TDC mail monitor, the

one thing an inmate has is plenty of time. (L. at 36-48, 83-88.)

The latest innovation in secret correspondence used by AB,

and perhaps other gangs as well, involves the use of soap (or

very recently, egg white) diluted in water and then applied to

paper with any type of sharply pointed object. An invisible

message can be written on the edges or between the lines of

the innocent cover letter. In order to effectively screen a letter

for this type of hidden message, the page must be held to a

bright light. (L. at 24-25, 219-222.)

All these methods, and perhaps many others, are being us-

ed today within the Texas prison system in an effort to cir-

cumvent the mail monitoring effart. No doubt many are effec-

tive. It is unreasonable to believe that prison officials could

ever obtain sufficient resources or expertise to adequately

screen the huge volume of mail moving through the system

on a daily basis. Moreover, it is folly to suggest that the Con-

stitution compels a state to spend funds on such an effort in

order to preserve the correspondence rights of inmates in

prison.

— ——— 2 — — as

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CONCLUSION

Texas’ experience demonstrates that a state's interest in ban-

ning inmate-to-inmate mail in order to provide security and

order within the institution is not only reasonable, but the least

restrictive method to accomplish that end.

Respectfully submitted,

JIM MATTOX

Attorney General of Texas

MARY F. KELLER

Executive Assistant Attorney

General for Litigation

F. SCOTT McCOWN

Assistant Attorney General

Chief, Enforcement Division

MICHAEL F. LYNCH

Assistant Attorney General

P.O. Box 12548, Capitol Station

Austin, Texas 78711

(512) 463-2080

Attorneys for Amicus Curiae