Amicus Curiae Brief — Thornburgh v. Abbott

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No. 87-1344

In the Supreme Court of the U

OCTOBER TERM, 1987

EDWIN MEESE III, Attorney General of the

United States, et al.,

Petitioners,

VS.

JACK ABBOTT, et al.,

Respondents.

On Writ or CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE STATE OF MISSOURI AS

AMICUS CURIAE IN SUPPORT

OF PETITIONERS

WILLIAM L. WEBSTER

Attorney General

KELLY MESCHER

Counsel of Record

Assistant Attorney General

P. O. Box 899

Jefferson City, Missouri 65102

(314) 751-3321

Attorneys for Amicus Curiae

State of Missouri

(Other Counsel on Inside Cover)

E. L. Menpennatt, Inc., 926 Cherry Street, Kansas City, Mo. 64106, (816) 421-3030

STEVE CLARK

Attorney General for the State of Arkansas

200 Tower Building

Fourth and Center Streets

Little Rock, Arkansas 72201

JAMES T. JONES

Attorney General of Idaho

State House, Room 210

Boise, Idaho 83720

W. J. Micnaget Copy

Attorney General of Tennessee

450 James Robertson Parkway

Nashville, Tennessee 37219

TABLE OF CONTENTS

I I

EE 2

SE 3

Argument:

i imssuisvmnnianoececes 4

I. A Reasonableness Standard of Review As Ap-

plied to Prison Officials’ Decisions About the

Introduction of Literature Into a Prison Is

Appropriate Because the Decision Requires

the Expertise of Prison Administrators Ex-

ercising Day-to-Day Operations’ Skills, an

Area the Courts Have up to Now Been Loath

ESSE 5

TABLE OF AUTHORITIES

Cases

Abbott v. Meese, 824 F.2d 1166 (D.C. Cir. 1987) ........ 1

Bell v. Wolfish, 441 U.S. 520 (1979) 000-0. 4

Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1

IE Sali ieiisiadesicnedisieinidiainigteiidbatncicdiaeegnsanmecrnencmezceseesscesees 6

Hewitt v. Helms, 459 U.S. 460 (1983) 0... 6

Hudson v. Palmer, 468 U.S. 517 (1984) —...00.... 4-5

Jago v. Van Curan, 454 U.S. 14 (1981) 00... 6

Jones v. North Carolina Prisoners’ Union, 433 US.

I ll sateticctdaainltanecnessansanesescnsecimnanisesinccsanceenes 4

Meachum v. Fano, 423 U.S. 1013 (1976) an AE 6

Murphy v. Missouri Department of Corrections, 814

MIS, TIED ecspnienssniceeserwncsonecnsninccsnasnecensmecmias 3

Olim v. Wakinekona, 461 U.S. 238 (1933) —.....0000000...... 6

O’Lone v. Estate of Shabazz, ........ See cane , 107 S.Ct.

8, eee sseniniancinnipeiisiembiiiein 7

Pell v. Procunier, 417 U.S. 817 (1974) 2000... 5)

Procunier v. Martinez, 416 U.S. 396 (1974) 00000... 3

Superintendent, Massachusetts Correctional Institution

Walpole v. Hill, 472 U.S. 445 (1985) 200. 5-6

Turner v. Safley, -...... , 107 S.Ct. 2254 (1987)

sielehideiniacllaeptsiiaiailaehaeo ilagieninaptalag ieainiddieciinadaatuddtahsicatsiteiaiielicitdisaas 7, 8,9

Whitley v. Albers, 475 U.S. 312 (1986) 2.0000. 7

Wolff v. McDonald, 418 U.S. 539 (1974) 2000 .. 5

Constitutional Provisions

First Amendment, United States Constitution .............. 4,9

Eighth Amendment, United States Constitution ........... 6

Rule

UD Ge TI I inns cecesecceettntncsncenescmnincnsantn 1

No. 87-1344

In the Supreme Court of the United States

OCTOBER TERM, 1987

EDWIN MEESE III, Attorney General of the

United States, et al.,

Petitioners,

vs.

JACK ABBOTT, et al.,

Respondents.

On Writ or CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE STATE OF MISSOURI AS

AMICUS CURIAE IN SUPPORT

OF PETITIONERS

The State of Missouri, as amicus curiae pursuant to

Supreme Court Rule 36.4, urges the Court to reverse the

judgment of the United States Court of Appeals for the

District of Columbia Circuit in Abbott v. Meese, 824 F.2d

1166 (D.C. Cir. 1987) for the reasons set forth herein.

INTEREST OF AMICUS CURIAE

Amicus, like the Federal Bureau of Prisons, operates

prisons within its jurisdiction. Missouri currently has

sixteen separate facilities throughout the state housing

twelve to thirteen thousand inmates. Day-to-day admin-

istration of prisoners necessarily involves maintenance of

security. A significant part of security is screening an

inmate’s incoming mail.

Security concerns in a prison are implicated not only

when “contraband” such as illegal drugs, weapons or

escape plans come through the mails, but when literature

which serves to polarize and increase tensions between

already existent racial groups finds its way into the prison

population as well. Stopping inflammatory literature be-

fore it enters general circulation is critical. It is infinitely

more difficult, and often dangerous, to remove literature

after received by inmates, and, if it must thereafter be

removed, it has already achieved an effect. Amicus has

had to deal with precisely that fact pattern at one of the

medium security institutions in Missouri. Prior to 1984,

white supremacist literature in the form of mailings from

the Ku Klux Klan, Aryan Nations/the Church of Jesus

Christ Christian, the Euro-American Alliance and the Moun-

tain Church of Jesus Christ the Savior, among others, was

allowed into the institution. In early 1984, under a new

institutional superintendent, mailings were more closely

monitored and much of the above-listed literature was

rejected. Prompting this approach were reports by cor-

rectional officers that racial tension and fear among black

and white inmates in the housing units was high, espe-

cially due to postings and hand-outs of white supremacist

literature. The institutional superintendent considered

events at Missouri’s then-only maximum security prison

where inmate members of groups professing a belief in

white supremacy were involved in two murders, both racial

in nature.

Once the new, closer review of incoming mail took

effect, racial tension at the institution reduced. Correc-

tional officers noted a much less volatile housing unit

environment. The review, or screening, did not, however,

survive a constitutional appeal before the United States

Court of Appeals for the Eighth Circuit. In Murphy v.

Missouri Department of Corrections, 814 F.2d 1252 (8th

Cir. 1987), the Court, in a review of the procedures em-

ployed at the medium security institution to screen in-

coming mail under Procunier v. Martinez, 416 U.S. 396,

413 (1974), found the policy was “more restrictive of pris-

oner First Amendment rights than is necessary to maintain

prison security.” Murphy v. Missouri Department of Cor-

rections, supra, at 1257. Therefore amicus has a strong

interest in the outcome of the presen* case, as its resolution

will directly bear upon the formulation of a mail review

policy for the Missouri Department of Corrections which

will pass constitutional muster.

SUMMARY OF ARGUMENT

In some areas of prison administration which are

unique to prisons, deference has been given by the courts

to institutional officials in their handling of day-to-day

operations when a constitutional challenge is mounted to

the action taken. Examples are found in the decision of

prison officials to discipline inmates for committing an in-

fraction of prison rules, in locking a prisoner in a pre-hear-

ing detention and/or administrative segregation cell with-

out prior hearing, and, finally, in deciding when, or

whether, an inmate may be released from incarceration

on parole. The case at issue, while dealing with First

Amendment rights, a concept not peculiarly a prison issue,

does have an aspect which, when viewed in a prison setting,

becomes something which necessarily triggers the special,

specific knowledge of prison officials to determine the se-

curity impact particular literature has to a prison.

Because the Courts have already concluded that the

length of time an inmate serves and the relative restrictive-

ness of his environment are questions best left to prison

officials, with only a rational basis review of decisions, the

selection of the same standard in questions of what litera-

ture may Safely circulate in prison should likewise be ap-

plicable.

ARGUMENT

Introduction

When undertaking any analysis of constitutional rights

of incarcerated persons, the basic tenet must be that “con-

victed prisoners do not forfeit all constitutional protections

by reason of their conviction and confinement in prison.”

Bell v. Wolfish, 441 U.S. 520, 545 (1979). However, “the

fact of confinement and the needs of the penal institutions

impose limitations on constitutional rights, including those

derived from the First Amendment which are implicit in

incarceration.” Jones v. North Carolina Prisoners’ Union,

433 U.S. 119, 125 (1977). Prisoners “retain those first

amendment rights of speech not inconsistent with [their]

status as ... prisoner|s| or with the legitimate penological

objectives of the corrections system.” Hudson v. Palmer,

468 U.S. 517, 522 (1984) quoting Pell v. Procunier, 417 U.S.

817, 822 (1974). In the end “there must be mutual accom-

modation between institutional needs and objectives and

the provisions of the constitution that are of general ap-

plication.” Wolff v. McDonnell, 418 U.S. 539, 556 (1974).

A Reasonableness Standard of Review As Ap-

plied to Prison Officials’ Decisions About the Intro-

duction of Literature Into a Prison Is Appropriate

Because the Decision Requires the Expertise of Prison

Administrators Exercising Day-to-Day Operations’

Skills, an Area the Courts Have Up to Now Been Loath

to Undertake.

In examining this Court’s opinions in the area of pris-

oner civil rights cases, it can be said that there is every

willingness to step into the unique environment which is

a prison setting to protect prisoners’ civil rights, but at the

same time there is a reluctance to take over the administra-

tion of prisons from the bench. The most illustrative cases

are those which deal with the length and restrictiveness of

confinement a prisoner faces.

Prison discipline, including the ultimate sanction of

removal of an inmate’s “good time” credit, or making the

inmate serve more time in prison than he might have, had

he not committed an infraction of the prison rules, has

been an area this Court has left to the peculiar expertise

of prison officials. While guiding prison administrators in

what process is due an inmate before a sanction may be

imposed, Wolff v. McDonnell, supra, this Court has re-

cently capped the extent of review the federal courts may

engage in when grappling with inmate civil rights chal-

lenges to discipline meted out. In Superintendent, Massa-

chusetts Correctional Institution Walpole v. Hill, 472 US.

445 (1985), the standard to be applied is whether there

existed “some evidence” upon which a prison disciplinary

board based its finding of guilt. In the Hill case itself, the

evidence was only that four inmates were in an exercise

yard, one was injured in a fight and the other three ran

away, yet that was sufficient evidence to support a viola-

tion against Hill. This Court deferred to the prison of-

ficials’ ability to enforce rules even on the slimmest of

cases.

Relative restrictiveness of confinement while in prison,

as contrasted to the conditions of confinement under the

Eighth Amendment, has not caused this Court to apply a

stricter standard of review. This Court has declined to

entertain challenges to placement in institutions within a

State’s prison system, Meachum v. Fano, 423 U.S. 1013

(1976) and transfers between prisons even if the result is

ultimately a more harsh environment. Olim v. Wakinek-

ona, 461 U.S. 238 (1983). In addition, with the holding

in Hewitt v. Helms, 459 U.S. 460 (1983), this Court has

allowed prison officials to place an inmate in virtual “lock-

down” status after an informal, non-adversary review of

the inmate’s placement in administrative segregation,

while an investigation into charges of a violation of institu-

tional rules takes place. Indeed, Helms remained in ad-

ministrative segregation for nearly five months awaiting

resolution of an investigation into his conduct during a

near-riot in one of Pennsylvania's prisons.

Finally, this Court has accorded corrections officials

discretion to determine when, or even if, an inmate may

be released from prison on parole. Greenholtz v. Nebraska

Penal Inmates, 442 U.S. 1 (1979), and Jago v. Van Curan.

454 U.S. 14 (1981).

While there are other areas left to prison officials’

decision-making rather than a court’s, see e.g. Whitley v.

Albers, 475 U.S. 312 (1986) (type of force chosen to quell

an inmate disturbance), the examples provided serve to em-

phasize the gravity of issues prison officials are deemed to

have special knowledge of, and thus are not to be second-

guessed by federal courts, unless a rule or decision is not

“reasonably related to penological interests”. Turner v.

Safley, ........ Ee , 107 S.Ct. 2254 (1987); O’Lone v.

Estate of Shabazz, _ ..... U.S. ....., 107 S.Ct. 2400 (1987).

Determining what type, or kind, of publications, or mail-

ings, which would or even could have a deleterious impact

on internal institutional security is also an area this Court

may safely and should defer to prison officials’ expertise.

Perhaps nowhere better than in a prison can mere

words and symbcls, the very essence of what the First

Amendment protects, have a devastating effect. In a

prison context, to be able to receive mail replete with

“catch phrases” i.e. “Aryan Nation”, “mongrel mixed

breed”, “race traitor”, “children of darkness” |Jews],

“black plague”, “the only recourse . . . is violence, anarchy,

mayhem, gorilla warfare, not welfare .. .” and symbols

i.e. swastikas, flags, crowns, swords, “KKK”, hoods, etc.,

allows inmates to become an identifiable group. Once a

group of “believers” is identifiable to each other, prison

gangs are a likely result. Gangs are not known for their

proclivity to uphold prison rules, but are rather known to

thwart the rules. Allowing white supremacist literature

to freely enter ore of Missouri's medium security prisons,

the Missouri Training Center for Men (MTCM), enabled

the recipients to band together and “recruit”, by means of

threats, new converts to their beliefs. At MTCM re-

cruitment caused tension as the white supremacists posted

their literature emblazened with identifiable symbols.

Rumors of an inmate “take over” circulated and the black

inmates feared assaults by whites who might take the

“call to arms”, espoused by the literature publishers,

seriously. Racial murders at the state’s maximum se-

curity institution made the fears real. The only solution

seen by MTCM’s officials was to prevent the white su-

premacist literature from coming into the institution, The

solution worked, as attested to by the correctional of-

ficers in the trial which challenged MTCM'’s choice. Per-

haps an argument may be made that the necessity to

eliminate the literature should have only occurred at that

particular time, and there may be support for that propo-

sition. However, the decision as to when, if ever, such

potentially inflammatory literature should enter the prison

is best left to the sound reasoning of prison administrators,

whose stock in trade is gauging the atmosphere in their

prisons, and not those who only occasionally, as the ju-

diciary, are called upon to pass on corrections’ decisions.

Such an approach and the Turner v. Safley, supra, stan-

dard of review does not leave inmate plaintiffs at the

mercy of cruel “captors”, rather it allows for the routine

of prison day-to-day operations to remain constant. Giv-

ing deference to prison administrators with respect to

their normal operations and matters of prison security

will not preclude all judicial review. Extraordinary oper-

ations and unusual circumstances, as well as “conditions

cases”, can and will continue to find their way to the

federal courts, with regularity, in the form of prisoner

civil rights litigation. Allocating scarce judicial resources

in such a way can only benefit all parties litigant.

Amicus would urge this Court to apply a reasonableness

standard of review to prison administrator’s screening of

inmate mail on the basis of protecting internal security.

While First Amendment issues normally trigger strict

scrutiny, this Court has in other equally weighty issues

deferred to corrections officials and, finally, the facts, at

least in Missouri, show that white supremacist mailings,

at least, do in fact create a security problem in prison.

In light of the foregoing, smicus curiae join with

petitioners in requesting that this Court apply the Turner

v. Safley, standard of review to the issues presented in the

instant case.

Respectfully submitted,

WILLIAM L, WEBSTER