# Amicus Curiae Brief — Turner v. Safley

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0081%3A11

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1987
- **Citation:** 482 U.S. 78

## Text

In THE Supreme Count oF THE Uniteo States
OCTOBER TERM, 1986

WILLIAM R. TURNER, ET AL., PETITIONERS,
V.

LEONARD SAFLEY, ET AL., RESPONDENTS.

ON WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE EIGHTH CIRCUIT

Motion for Leave to File Brief and
Brie Amicus Curiae in Support of Respondents
Submitted by the Plaintiff Inmates in
Vv. TTER

Harry M. Reasoner

Of Counsel: Ann Lents
3000 First City Tower
Clara L. Meek 1001 Fannin
VINSON & ELKINS Houston, Texas 77002-6760
3300 First City Tower 713-651-2358
1001 Fannin
Houston, Texas 77002-6760
(713) 651-2222
Attorneys for Guajardo Plaintiffs

No. 85-1384

In THE SuPREME Court OF THE UNitep States
OCTOBER TERM, 1986

WILLIAM R. TURNER, ET AL., PETITIONERS,
V.

LEONARD SAFLEY, ET AL., RESPONDENTS.

ON WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE EIGHTH CIRCUIT

Motion for Leave to File Brief and
Brief Amicus Curiae in Support of Respondents
Submitted by the Plaintiff Inmates in
GUAJARDO V. McCOTTER

Harry M. Reasoner

Of Counsel: Ann Lents
3000 First City Tower
Clara L. Meek 1001 Fannin
VINSON & ELKINS Houston, Texas 77002-6760
3300 First City Tower 713-651-2358

1001 Fannin
Houston, Texas 77002-6760
(713) 651-2222

Attorneys for Guajardo Plaintiffs

i

aa oS ease

QUESTION PRESENTED

Whether a Missouri prison regulation which prohibits
correspondence between inmates who are not members of an
immediate ‘amily violates the constitutional rights of the
inmates.

TABLE OF CONTENTS

eee ii
MOTION FOR LEAVE TO FILE

BRIEF AMICUS CURIAE ..................4.. iv
ag kas 6 64d o's 40.0 0.8600 80 vi
EE ee ree 1
SUMMARY OF THE ARGUMENT ................. 3
ER A ee ere 4

I. TO RESTRICT INMATE-TO-INMATE
CORRESPONDENCE, PRISON OFFICIALS
MUST SHOW THAT THE RESTRICTION
WILL FURTHER A SUBSTANTIAL GOVERN-
MENTAL INTEREST AND IS NO BROADER
THAN NECESSARY TO PROTECT THAT
Cee eC coast sb Sc bbcecebeces 4

ll. ©THE COURT SHOULD NOT BE MISLED BY
THE STATE OF TEXAS’ ATTEMPT TO
INTERJECT A PARTIAL AND DISTORTED
RECORD INTO THIS CASE ............. 8

A. Texas Has Repeatedly Belied Its
Ostensible Concern with Inmate-
to-inmate Correspondence by
Accepting the Obligation to
AE ENN 8

B. Texas’ Presentation Distorts the
Facts and Is Fundamentally

es ane oa ws 6s 6 6 0 ss 10

RL as RT ee eT 16
APPENDIX

Letter from Counsel for Petitioners............. Al

Letter from Counsel for Respondents........... A2

©
Ps
—-

No. 85-1384

In THE SuPREME Court oF THE United States
OCTOBER TERM, 1986

WILLIAM R. TURNER, ET AL., PETITIONERS,
V.

LEONARD SAFLEY, ET AL., RESPONDENTS.

ON WRIT OF CERTIORARI TO THE UNITED STATES
“COURT OF APPEALS FOR THE EIGHTH CIRCUIT

MOTION FOR LEAVE TO FILE BRIEF
AMICUS CURIAE

Guadalupe Guajardo, Jr., A. L. Lamar, Thomas E. Hill,
James E. Baker, Lawrence Pope, and Ronaid Kent Franks,
class representatives of inmates of the Texas Department of
Corrections in Guajardo v. McCotter, No. 71-H-570 (S.D.
Tex. July 1, 1986) (the “Guajardo plaintiffs”) hereby respectfully
move for leave to file the attached brief amicus curiae in this
case. The consent of the attorney for the respondents has
been obtained. The consent of the attorney for the petitioner
was requested but refused. (See Appendix.)

iv

WM i o.

The interest of the Guajardo plaintiffs in this case arises
from the fact that they have been parties to litigation involving
inmate correspondence rights in Texas for more than fourteen
years. Plaintiffs currently are permitted to correspond with
inmates at other prison institutions as a result of two settlement
agreements in Guajardo.

The State of Texas ha .ied an amicus brief in this case
in which it now states that inmate-to-inmate correspondence
may be prohibited. It also lodged with this Court parts of the
Guajardo record purportedly to “illuminate the facts that should
inform the Court's legal conclusions” in this case. The record
Texas presented is both partial and distorted. The Guajardo
plaintiffs believe that its amicus curiae brief contains a more
complete statement of the facts in Guajardo.

Wherefore the Guajardo plaintiffs respectfully request that
they be granted leave to file their Brief Amicus Curiae in
Support of Respondents attached hereto.

Respectfully submitted,

Harry M. Reasoner

Ann Lents

Attorneys for Guajardo
Plaintiffs

3000 First City Tower

1001 Fannin

Houston, Texas 77002-6760

(713) 651-2358

OF COUNSEL:

Clara L. Meek

Vinson & Elkins

3300 First City Tower

1001 Fannin

Houston, Texas 77002-6760
(713) 651-2222

.

vi

TABLE OF AUTHORITIES

Cases
Abdul Wali v. Coughlin, 754 F.2d 1015 (CA2 1985)

Bell v. Wolfish, 441 U.S. 520 (1979) ............
Block v. Rutherford, 468 U.S. 576 (1984) errr
Corpus v. Estelle, 551 F.2d 68(CA5 1977) .......
Daigre v. Maggio, 719 F.2d 1310 (CA5 1983) .....

Davis v. Balson, 461 F.Supp. 842 (N.D. Ohio 1978)
Farmer v. Loving, 392 F.Supp. 27 (W.D. Va. 1975)

Guajardo v. Estelle, 432 F.Supp. 1373 (S.D. Tex.
1977) (on remand), modified, 580 F.2d

a ES a ee

Guajardo v. Estelle, 568 F.Supp. 1354 (S.D. Tex.
1983), aff'd mem. sub nom. Franks v.
Procunier, No. 83-2508 (CA5 July 27,

he OE ee ce cence
Guajardo v. McAdams, 349 F.Supp. 211 (S.D. Tex.

1972), vacated and remanded sub nom.
Sands v. Wainwright, 491 F.2d 417 (CA5

1973), cert. denied, 416 U.S. 992 (1974) .....

Guajardo v. McCotter, No. 71-H-570 (S.D. Tex.
July 1, 1986) (final judgment and order

approving settlement)....................

Johnson v. Avery, 393 U.S. 483 (1969) ..........

Jones v. North Carolina Prisoners’ Labor

Union, Inc., 433 U.S. 119 (1977).............

Mayberry v. Robinson, 427 F.Supp. 297 (M.D.

8 ES re ee

Mitchell v. Carlson, 404 F.Supp. 1220 (D. Kan.

ee Py ee oy ge eee

toe

—— «<

ae

vii

Cases
Pell v. Procunier, 417 U.S. 817 (1974) .............
Peterson v. Davis, 415 F.Supp. 198 (E.D. Va. 1976)
Procunier v. Martinez, 416 U.S. 396 (1974) ..........
Ruiz v. Estelle, 503 F.Supp. 1265 (S.D. Tex. 1980),

modified, 679 F.2d 1115 (CA5 1982), cert.

denied, 460 U.S. 1042 (1983).................
Safley v. Turner, 777 F.2d 1307 (CA8 1985) .........

Schlobohm v. U.S. Attorney General, 479
F.Supp. 401 (M.D. Pa. 1979) ....... Bata ae aay

Storseth v. Speliman, 654 F.2d 1349 (CA9 1981) .....

Vester V. Rogers, 795 F.2d 1179 (CA4 1986) ........

Watts v. Brewer, 588 F.2d 646 (CA8 1978) ..........

Williams v. Ward, 404 F.Supp. 170 (S.D.N.Y. 1975)

Wolff v. McDonnell, 418 U.S. 539 (1974) ............
Secondary Authorities

G. Camp & C. Camp, Prison Gangs: Their extent,
Nature and Impact on Prisons (1985)
(prepared under grant from U.S. Dept.
et Ga a

S. Ekland-Olson, Judicial Decisions and the Social
Order of Prison Violence: Evidence from
the Post-Ruiz Years in Texas (1985)
(unpublished report commissioned by TDC) .....

Twenty-Eighth Monitor's Report of Factual
Observations to the Special Master [for
I

Report of the Special Master [for Ruiz v. Estelle}
Concerning the Twenty-Fifth Monitor's
ee ie se eT G4 os 6 2 60 do K 008

4,5
)

passim

passim

47

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No. 85-1384

In THE Supreme Court oF THE Unitep States
OCTOBER TERM, 1986

WILLIAM R. TURNER, ET AL., PETITIONERS,
V.

LEONARD SAFLEY, ET AL., RESPONDENTS.

ON WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE EIGHTH CIRCUIT

BRIEF AMICUS CURIAE IN SUPPORT OF RESPONDENTS
SUBMITTED BY THE PLAINTIFF INMATES IN
GUAJARDO v. McCOTTER

INTEREST OF AMICI

Pursuant to Supreme Court Rule 36, Guadalupe Guajardo,
Jr., A. L. Lamar, Thomas E. Hill, James E. Baker, Lawrence
Pope, and Ronald Kent Franks, class representatives of the
inmates of the Texas Department of Corrections in Guajardo v.
McCotter, No. 71-H-570 (S.D. Tex. July 1, 1986) (final
judgment and order approving settlement) (“Guajardo /V"), by
and through their attorneys, file this brief as amici curiae in
support of respondents with respect to the correspondence

issue. The Guajardo plaintiffs have litigated various issues of
inmate correspondence rights, including the right to inmate-
to-inmate correspondence, in the Texas Department of
Corrections (“TDC”) for more than fourteen years. Should this
Court retreat from the principles of Procunier v. Martinez, 416
U.S. 396 (1974) (“Martinez”), there could be serious
ramifications for the correspondence rights won in the TDC.

Plaintiffs currently are permitted to correspond with inmates
at other prison institutions as a result of two settlements in
Guajardo. in 1983, the TDC agreed to the issuance of an
injunction requiring that, among other things, inmate-to-
inmate correspondence be permitted subject to the same,
rather extensive, censorship conducted on outside
correspondence.’

in October 1985, just over two years after the 1983
settlement had been approved, TDC’s director filed a Rule
60(b) motion to modify the correspondence rules, seeking to

1/ The class first settled in Guajardo v. Estelle, 568 F. Supp. 1354 (S.D.
Tex. 1983), affo mem. sub. nom. Franks v. Procunier, No. 83-2508
(CAS July 27, 1984) (“Guajardo /i/"), after twelve years of litigation
and over three years of monitoring by an independent consultant.
Pursuant to the settlement agreement, the TOC adopted and
implemented a new set of correspondence rules. The new rules
provided for correspondence between prisoners but permitted a
restriction on such correspondence where correspondence rights
were abused.

See also Guajardo v. McAdams, 349 F. Supp. 211 (S.D. Tex. 1972),
vacated and remanded sub nom. Sands v. Wainwright, 491 F.2d 417
(CA5 1973), cert. denied, 416 U.S. 992 (1974) (“Guajardo /");
Guajardo v. Estelle, 432 F. Supp. 1373 (S.D. Tex. 1977) (on remand),
modified, 580 F.2d 748 (CAS 1978) (“Guajardo //").

et. wd

restrict inmate-to-inmate correspondence drastically.2’
Again, TDC compromised, deciding that it should accept
inmate-to-inmate correspondence unless the inmate is
found guilty of a serious violation of the correspondence rules.
See Guajardo IV.

Now, as indicated in its amicus brief, the State of Texas
states that it believes the prohibition of such correspondence is
justified in spite of its series of decisions to allow the
correspondence in its own system. It has filed with this Court
its “Texas Lodging” and mischaracterized its own decisions,
the record in Guajardo, and the Texas system, in an ostensible
attempt to “inform” this Court's conclusions. Amicus Brief of
State of Texas at 2 -.1 (“Texas Brief”). The Guajardo plaintiffs
wish to respond to Texas’ brief and lodging.

SUMMARY OF ARGUMENT

A ban on inmate-to-inmate correspondence must be
justified by a substantial governmental interest and a showing
that the means chosen to effectuate the state’s purposes are
nce broader than necessary to protect the state’s interest. The
right to correspond with other inmates is not inconsistent with
an inmate’s status as a prisoner, and correspondence is not
by nature inherently dangerous, even in the prison context.

State prison officials cannot meet the strict scrutiny
standard because there is no credible evidence that inmate
correspondence poses a real threat to prison security. The

2/ A copy of portions of the transcript of the hearing on that motion along
with some of the deposition testimony and exhibits introduced into
evidence, has been lodged with the Cierk of the Court. Citations to
this lodging are noted as (“L. at ."). The Guajardo plaintiffs
offer this lodging in response to the Brief for the State of Texas as
Amicus Curiae and the Lodging by the State of Texas.

VO cat arb aalen Wee es

current move to restrict inmate correspondence rights stems
more from the desire to make Communication with disfavored
groups difficuit and an aversion to reviewing inmate mail than
from the need to control prison gangs.

ARGUMENT

|. TO RESTRICT INMATE-TO-INMATE CORRESPONDENCE,
PRISON OFFICIALS MUST SHOW THAT THE RESTRICTION
WILL FURTHER A SUBSTANTIAL GOVERNMENTAL
INTEREST AND IS NO BROADER THAN NECESSARY TO
PROTECT THAT INTEREST.
“There is no curtain drawn between the Constitution and
the prisons of this Country.” Wolff v. McDonnell, 418 U.S. 539,
555-56 (1974). Prison inmates retain those First Amendment
rights that are not inconsistent with their status as prisoners or
with legitimate penological goals of the corrections system.
Pell v. Procunier, 417 U.S. 817, 822 (1974) (“Pell”). Thus, a
restriction on prisoners’ right to correspond with other
prisoners must be justified by a substantial governmental
interest and a showing that the means chosen to effectuate the
state’s purposes are no broader than necessary to protect that
interest. Martinez, 416 U.S. at 423. These principles have
governed the courts’ review of inmate mail censorship since
they were enunciated by this Court in 1974. These settled
principles, which have governed significant numbers of prison
cases, such as Guajardo,2’ should not be abandoned now.

3/ A number of lower courts have applied the Martinez test to restraints
on inmate corre dence that did not involve the rights of free
persons. See Safley v. Turner, 777 F.2d 1307 (CA8 1985) (standard
not met); Daigre v. Maggio. 719 F.2d 1310 (CA5 1983) (Martinez
satisfied); Storseth v. Speliman, 654 F.2d 1349 (CA9 1981) (restriction
broader than necessary); Watts v. Brewer, 588 F.2d 646 (CA8 1978)
( al statement that Martinez would apply); Schiobohm v. U.S.
orney General, 479 F. Supp. 401 (M.D. Pa. 1979) (Martinez test

satisfied); Davis v. Balson, 461 F. Supp. 842 (N.D. Ohio 1978)
(Footnote Continued)

5

Recent opinions by this Court on the rights of state prison
inmates have not departed from this precedent to establish a
dual standard for First Amendment rights, with one for inmates
and the other for free persons. Thus, the choice between
application of the reasonableness test and the strict scrutiny
standard does not turn on the identity of the person claiming
the First Amendment right.

In Pell v. Procunier, decided only a few months after
Martinez, this Court applied the same analysis to inmates and
journalists. Had the Court intended to adopt different
standards for inmates and free persons, the dual standard
would have been revealed in Pe./. The Court's application of
the reasonableness standard in Peli was based on its
characterization of the restriction as a time, place, and manner
regulation that was content neutral.

In Jones v. North Carolina Prisoners Labor Union, Inc.,
433 U.S. 119, 130 (1977) (“Jones”), “First Amendment speech
rights [were] barely implicated.” Moreover, the activity in
which the prisoners sought to engage, solicitation for a
prisoners union, was one that was “presumptively dangerous.”
id. at 133. The Court emphasized that the restriction was
~ Narrowly tailored to meet the difficulties posed by the union.

(Footnote Continued)

(regulation more onerous than necessary); Mayberry v. Robinson, 427
F. Supp. 297 (M.D. Pa. 1977) (upheld regulation), Peterson v. Davis.
415 F. Supp. 198 (E.D. Va. 1976) (upheld prior approval requirement);
Farmer v. Loving, 392 F. Supp. 27 (W.D. Va. 1975) (ban too broad);
Williams v. Ward, 404 F. Supp. 170 (S.D.N.Y. 1975) (ban satisfied
Martinez), Mitchell v. Carlson, 404 F. Supp. 1220 (D. Kan. 1975)
(Martinez applied to censorship of inmate-to-inmate mail).

7

In applying a reasonableness standard in Bell v. Wolfish,
441 U.S. 520 (1979), this Court stressed three points. First, the
regulation that prohibited receipt of hard-bound books by
pre-trial detainees from any source other than a publisher, a
bookclub, or a bookstore, was content neutral and a time,
place, and manner restriction. /d. at 551-52. Second, since
the inmates could receive softcover books and magazines, or
use the jail’s library, there were alternative means of
communication. /d, at 552. Third, the restriction worked only a
limited deprivation since the pre-trial detainees would be
subject to it for a very short period of time. /d.

This Court's holding in Block v. Rutherford, 468 U.S. 576
(1984), followed the reasoning of Jones. In determining that
courts should defer to the professional judgment of prison
officials, the Court regarded contact visits as a presumptively
dangerous activity. Further, and more importantly, only the
mode of communication and not its very existence was at
issue.

As the Second Circuit recognized in Abdul Wali v.
Coughlin, 754 F.2d 1015, 1033 (CA2 1985), a reading of those
cases suggests a tripartite standard, drawn by reference to the
nature of the right being asserted, the type of activity involved,
and whether the challenged restriction works a total deprivation
or serves merely as a time, place, and manner limitation on
the exercise of that right.4’

4 Of the four circuits that have looked at the First Amendment rights of
prisoners, only the Fourth Circuit would subscribe to the
reasonableness test where a complete ban on communication is
involved. Vester v. Rogers, 795 F.2d 1179 (CA4 1986). The Second,

(Footnote Continued)

ot Naty

As the Circuit Court below recognized, the ban on
inmate-to-inmate correspondence directly implicates First
Amendment rights and cannot be characterized as merely a
time, place, and manner restriction. It leaves no alternative
means for communication between inmates. Safley, 777 F.2d
at 1312. To extend the Jones-Bell-Block reasonableness
standard to such a situation would require overruling Martinez
and would mark a virtually complete withdrawal from judicial
protection of First Amendment rights in a prison context.

To reaffirm that the Martinez standard applies is not to
suggest that the courts may unduly interfere in prison
administration or be insensitive to the difficult problems facing
prison administrators. This Court counselled against these
errors in Martinez itself. Martinez merely stands for the

(Footnote Continued)

Ninth and Eighth Circuits would hold that such restrictions on inmate
correspondence must pass “strict scrutiny.” See Safley v. Turner,
777 F.2d 1307 (CA8 1985); Abdul Wali v. Coughlin, 754 F.2d 1015
(CA2 1985): Storseth v. Speliman, 654 F.2d 1349 (CAQ9 1981).

5/ inmate-to-inmate correspondence can imph. ute the right of access
to the courts. Absent alternatives, states must allow prisoners to
receive assistance from inmate writ writers. Johnson v. Avery, 393
U.S. 483 (1969). While the time, place, and manner for rendering
such assistance may be reasonably restricted, states cannot deny it
altogether. 393 U.S. at 490. Within some state prison systems, such
as TDC, inmate-to-inmate mail is very important to the process of
giving and receiving inmate writ writer assistance and adequate
alternatives to writ writer assistance do not exist. Ruiz v. Estelle, 503
F.Supp. at 1367. See also Corpus v. Estelle, 551 F.2d 68 (CA5 1977).
Nevertheless, TDC often has sought to “severely inhibit
communication among inmates about legal matters” and writ writers
have been the inmates most frequently singled out for abusive
treatment such as officially-induced stabbings, segregation, and
unwarranted disciplinary actions. Auiz, 503 F.Supp. at 1300, 1355,
1369 & 1372.

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unassailable proposition that when First Amendment rights are
clearly implicated by a prison restriction, as in this case, the
courts will insist that the restriction be one that serves a
legitimate penological goal and that is not overbroad. To
require less is to return to unbridied stifling of peaceful dissent
and harassment once prevalent in our prisons. See Martinez,
416 U.S. at 399-400 (prison officials censored letters that
“unduly complain{ed],” “express[ed] inflammatory political,
racial, religious or other views or beliefs,” or were “otherwise
inappropriate”); Guajardo /i/, 580 F.2d at 754, 760-61 (TDC
had demonstrated a propensity toward blanket denials of
permission to correspond when the would-be correspondent
belonged to an “undesirable group,” such as prison reform
organizations, “left wing” groups, married women, former
inmates, known homosexuals and inmates at other institutions;
and to suppress material critical of prison administrators).

i. THE COURT SHOULD NOT BE MISLED BY THE STATE OF
TEXAS’ ATTEMPT TO INTERJECT A PARTIAL AND
DISTORTED RECORD INTO THIS CASE.

In arguing for a reasonableness standard, Texas tries to
convince the Court that an injustice has somehow been done
in Texas due to the Guajardo Court's reliance on the Martinez
test and that inmate-to-inmate correspondence has caused
violence in the TDC. Neither is true.

A. Texas Has Repeatedly Belied Its Ostensible
Concern with Inmate-to-inmate Correspon-
dence by Accepting the Obligation to Allow It.

The record Texas uses stems from a Rule 60(b) motion
made by O. Lane McCotter, the current director of TDC,
seeking to change a judgment entered in Guajardo in 1983 as
a result of a voluntary settlement of constitutional challenges to

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many of TDC’s correspondence rules and practices. The
1983 settlement allowed inmate-to-inmate correspondence
subject to TDC’s right to read all correspondence and to reject
objectionable letters. (in fact, inmate-to-inmate
correspondence had been permitted in TDC for several years
before 1983.) Mr. McCotter, who joined the system after the
settlement had been concluded, disagreed with his
predecessor's action and sought to virtually end inmate-to-
inmate correspondence, alleging that it could not be effectively
censored and therefore had led to violence. After extensive
discovery and less than two days of the presentation of Mr.
McCotter’s case, the proceeding was settled by a minor
change in the TDC rules to provide that inmate-to-inmate
correspondence could be restricted if the inmate committed a
serious violation of the correspondence rules. In short, Mr.
McCotter, as had his predecessor, apparently decided that
inmate-to-inmate correspondence could be adequately
handled by screening.

Texas tries to avoid recognition of its choice by implying
it was somehow forced to settle by the District Court or the
Martinez standard or both. In fact, TDC and Mr. McCotter
chose to settle freely and voluntarily, and indeed knew
certiorari had been granted in this case at the time they did
so. Had TDC truly felt that inmate-to-inmate

6/ There is nothing in the Guajardo record to suggest that either of the
two able trial judges who jointly presided over the hearing were nostile
to TDC. (Because Mr. McCotter's motion also implicated a previous
settlement in Ruiz v. Estelle, 503 F. Supp. 1265 (S.D. Tex. 1980),
modified, 679 F.2d 1115 (CAS 1982), cert. denied, 460 U.S. 1042
(1983), an Eighth Amendment, conditions of confinement case, the
motion was tried before both District Courts at Mr. McCotter’s

(Footnote Continued)

ee id

10

correspondence posed as great a threat as it now claims, it
surely never would have settled Guajardo and thereby
compromised its central security concerns.

B. Texas’ Presentation Distorts the Facts and Is

Fundamentaily Unreliable.

The record Texas presents in a fundamental sense is
unreliable: It has never been subjected to full cross-
examination and rebuttal and no fact finding has ever been
made on it. Texas’ rendition of “the facis” is thus both partial
and distorted.

The Guajardo hearing was recessed, at TDC’s request,
after only one and a half days of testimony. As a result,
plaintiffs never cross-examined the chief witness Texas now
relies on to argue that inmate-to-inmate correspondence is
dangerous, Salvador Buentello,? or put on their own case at
all. Had the record been fully developed, it would show even
more clearly that inmate violence within the Texas prison
system is caused by inadequate and poorly trained staff, failure

(Footnote Continued)

request.) Contrary to Texas’ intimation that it became clear during the
hearing that TDC would not get any relief from the District Court,
portions of the transcript Texas omitted from its presentation show the
Court may have been inclined to approve a restriction on mail
between gang members. The Guajardo Court merely noted that in a
Rule 60(b) motion, Mr. McCotter would have to demonstrate “changed
circumstances” to obtain a modification of the agreement. It was noi
hostile to TDC’s security concerns.

7/ Texas also lodges Mr. Buentello's deposition testimony about alleged
correspondence abuses. That testimony was based entirely upon
hearsay and was never tested or indeed admitted in open court. In
fact, the incidents Mr. Buentello recounted are shown by TDC's own
documents, admitted as plaintiffs’ exhibits in Guajardo, to have been

(Footnote Continued)

ard

|
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11

to station guards in housing and recreation areas, a historic
policy of ignoring gangs, old and unsafe facilities, and TDC
negligence — not by inmate correspondence.

Although a violation of state law, up until 1981, TDC used
inmate guards called “building tenders” to compensate for
chronic shortages of security personnel. Ruiz, 503 F. Supp. at
1294 n.54. Building tenders were allowed to carry weapons
and performed most security functions. They served as
enforcers of the ranking officers’ will and harassed, threatened
and physically punished inmates perceived as troublemakers.
id. at 1295. The court characterized tne building tender
system as an abusive, brutal system and ordered its
elimination. /d. at 1295-98.

When the system was not immediately replaced by a
trained civilian guard force, violence escalated,2 as the TDC
had been warned that it would if TUC failed to hire and train a
sufficient number of guards to replace building tenders:

(Footnote Continued)

caused by TDC’s own unrelated negligence and not by
correspondence. TDC’s investigators attributed the Evans and
Douglas murders to staff negligence. (L. at 2, 6). An independent
court monitor in Ruiz v. Estelle, 503 F. Supp. 1265, concluded that the
Robidoux attack evidenced a “clear lack of adequate supervision
during recreation.” Twenty-Eighth Monitor's Report of Factual
Observations to the Special Master [for Ruiz v. Estelle] 67-68 n.78
(1985). (L. at 10). TDC’s own report on the Jaquez murder shows
that his assailants got the contract to kill him “from initially the
streets,” not through inmate-to-inmate correspondence. (L. at 11).

8 S. Ekiand-Olson, Judicial Decisions and the Social Order of Prison
Violence: Evidence from the Post-Ruiz Years in -Texas 23-24
(1985) (unpublished report commissioned by the TDC). (L. at 14-
15).

12

“Reportedly, Texas has thus far experienced only
limited gang influence within its prisons. To whatever
extent a “power vacuum” is permitted to exist within the
prisons, gangs will probably assert their poisonous
influence .... Maintaining the capacity to control and
manage the prisoners will require numerous changes in
operational practice, and perhaps in law... . If these
things do not occur and prisoners realize they dhave
nothing to fear and nothing to lose, TDC institutions will
become unmanageable and very dangerous.2

TDC failed to heed that warning. Until very recently, TDC
had a “totally inadequate” system of inmate classification.
Ruiz, 503 F. Supp. at 1282. Even after developing a
classification plan, TDC did not fully implement it12 TDC’'s
staffing patterns have fallen short of minimum security
requirements.1! TDC has failed to provide adequate
supervision during recreation.12 It should not be surprising,

9/ Id. at 24, quoting N. Benton & D. Stoughton, Remedial Actions to

Reduce Unnecessary Use of Force in the Texas Department of
Corrections 4 (1983) (filed as appendix B to Nineteenth Monitor's
of Factual Observations to the Special Master [for Ruiz v.
Estalle} (1984)) (L. at 15).

10/ As Mr. McCotter, then Deputy Director of Operations, reported on
discovering violations of the classification system on a unit

F experiencing violence (a situation he called “a mess"): “This

probably explains how our last stabbing occurred — and it’s only a

miracle we haven't had many others!” (L. at 17).

:

TDC itself concluded that in November 1985, 19 of the 27 units still
had staff shortages in housing areas (L. at 20-21), and as of January
1985, 10 of TDC's Units had no guards assigned to any housing
areas. Report of the Special Master [for Fiuiz v. Estelle] Concerning
the Twenty-Fifth Monitor's Report 5 (1985). (L. at 23).

es
—
——
~

12/ Twenty-Eighth Monitor's Report of Factual Observations to the
Special Master [for Ruiz v. Estefle} (1985). (L. at 10).

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13

then, that the Texas prison system has experienced violence,
for reasons having nothing to do with correspondence.12

Texas distorts even the partial record by failing to
mention significant portions. Most significantly, TDC’s own
paid expert, Dr. Sherman Day, found the TDC’s proposed rule
banning inmate-to-inmate correspondence an exaggerated
response to the perceived danger. He saw no need to ban all
inmate-to-inmate correspondence when all that was needed
was some type of restriction on gang members’ communi-
cation. In his view, the latter was sufficient to deal with TDC’s
security concerns.

The only recent national study to examine this problem
found that inmate corres, ondence was not a significant factor
in the spread of prison gangs and in the increase in prison
violence.1# in fact, some states reported that inmate
correspondence was a valuable intelligence gathering tool that
enabled them to identify gang members.12 When asked what

strategies they employed to combat gangs, no prison agency

13/ TDC’s rate of violence, at a time when it allowed inmate-to-inmate
correspondence, was less than that of the Federal Bureau of Prisons,
which banned such correspondence, until 1983, when the effects of
ending the brutal building tender system were felt. S. Ekiand-Olson,
supra note 8 at 23-24. (L. at 14-15).

14/ G. Camp & C. Camp, Prison Gangs: Their Extent, Nature and Impact
on Prisons (1985) (prepared under grant from the U.S. Dept. of
Justice). The study includes data from Texas, as well as most other
States.

15) —s Id. at. 70.

_

14

cited cutting off correspondence between inmates as a means
of controlling gangs.1&

Louis M. Dentici, Chief of Internal Affairs of the California
Department of Corrections and in charge of gang inielligence,
testified by deposition that California’s allowance of inmate-
to-inmate correspondence without prior approval has not
heightened the level cf prison gang activity. (L. at 29).
Similarly, TDC permitted inmate-to-inmate correspondence
for approximately seven years with no complaint or public
allegation that it caused any security problems.

Texas argues that inmate-to-inmate mail cannot be
monitored effectively. Texas Brief at 11. Yet, TDC has never
made even rudimentary efforts to deal responsibly with
inmate-to-inmate correspondence. TDC, for example, does
not provide any formal training to its mailroom staff on gangs
and codes. (L. at 35). It has not developed any guidance
materials on how to spot codes.1/’ Despite the fact that about

16/ id. at 65-66. Some agencies indicated that enforcement of mail
regulations and intercepting communications were among the
Strategies they used.

17/ In arguing that inmate-to-inmate mail cannot be monitored, Texas
relies heavily on the testimony of Robert Humphries, a TDC inmate in
protective custody who admitted he was dependent on TDC’s good
graces for his very life. (Texas Lodging at 53.) Humphries admitted
that the code he referred to had never been used in real life, but was
concocted for the TDC's use. (Texas Lodging at 40). Humphries also
admitted that the rules and guidelines of his former gang directed
gang members to send important messages by hand delivery, not
through the mail, presumably because of the risk of detection through
mail censorship. (Texas Lodging at 76). In addition, Humphries
testified that if TDC wanted to learn what codes were being used all it
had to do was “just stand down in the cell block” and listen to the
codes being called off by the inmates. (Texas Lodging at 65-66).

15

a third of its inmate population is Spanish-speaking, fourteen
of its twenty-seven prison units had no Spanish-speaking
mailroom staff as of December 1985. (L. at 38). Further, a
1985 survey of TDC unit mailrooms showed that TDC could
review all inmate-to-inmate correspondence with a modest
increase in civilian, or non-corrections officer, staff. (L. at
40).18

The entire record in Guajardo clearly suggests that a ban
on inmate-to-inmate correspondence is at best a much
exaggerated response to security concerns, as Texas
evidently concluded when it decided that it should instead
adopt a rule merely precluding such correspondence by
inmates who had committed a serious violation of the mail
rules. The Guajardo plaintiffs respectfully suggest that this
Court should not be swayed by Texas’ distorted lodging but by
the indisputable fact of its actions.

18/ its reliance on a two-week survey of inmate-to-inmate mail within
TOC to show the volume of such correspondence is misplaced. First,
it neglected to point out that the true volume of such correspondence
is about one-half the total figure shown, since each piece was
counted at both the sending and receiving units. (L. at 36-37).
Second, the admittedly unscientific study encompassed Valentine's
Day, with its increased mail volume. Third, fully 40 percent of the
inmate-to-inmate correspondence within TDC is to and from the
two women's units, where TDC admits there are no gangs and very
little violence.

16

CONCLUSION

| For all of the above reasons, this Court is respectfully
requested to affirm the decision of the United States Court of
Appeais for the Eighth Circuit.

Respectfully submitted,

Harry M. ce

Ann Lents

Attorneys for Guajardo
Plaintiffs

3000 First City Tower

1001 Fannin

Houston, Texas 77002-6760

(713) 651-2358

OF COUNSEL:

Clara L. Meek

VINSON & ELKINS

3300 First City Tower

1001 Fannin

Houston, Texas 77002-6760
(713) 651-2222

=
=

APPENDIX

ATTORNEY GENERAL OF MISSOURI

JEFFERSON CITY
WILLIAM L. WEBSTER P O. Box see

ATTORNEY OENERAL 65102 (914) 751-3921

August 27, 1986

Ms. Ann Lents

Vincent & Elkins

3300 First City Tower
101 Fanin

Houston, TX 77002-7660

Re: Turner et al. v. Safley,-Supreme Court File 85-1384
Dear Ms. Lents:

I have received your request to write an amicus curiae brief
in opposition to the brief filed by Texas. Frankly, I do not
believe that the Supreme Court is an appropriate forum for you
and your adversaries in the Attorney General's Office in Texas to
litigate the truthfulness of a transcript. With that in mind, I
will not consent to the filing of a brief in opposition to Texas’
brief.

Sincerely,

WILLIAY L. WEBSTER

——- Attorney General

HTH:ds
cc: Service List

Al

)

BLACKWELL SANDERS MATHENY WEARY & LOMBARDI

FIVE CROWN CENTER 40, CORPORATE WOODS, SUITE 210

2480 PERSHING ROAD @40! INDIAN CREEK PARKWAY
P.O 80x 28388
pony eget KANSAS City, Missour! 64108 OVERLAND PARK. KANSAS 66225-5368
816 474-903) 913 345-8400

BIE 474-5700

AUG 25 1986
rae

August 21, 1986

Ms. Ann Lents

Vinson & Elkins

3300 First City Tower

1001 Fannin

Houston, Texas 77002-6760 ‘
Re: Safle et al.

Turner, et al. v.

TT
Our File: 5132
Dear Ms. Lents:

This is to inform you that Respondents in the above-referenced

case hereby consent to the filing of an amicus curiae brief in
this case on behalf of the inmate class in Guajardo v. McCotter.

Very truly yours,

dnd bl 4A,

Floyd R. Finch, Jr.
FRF,Jr./rmg

cc: William L. Webster
Henry T. Herschel

A2

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0081%3A11. Public record. Not legal advice.