Amicus Curiae Brief — Shaw v. Murphy

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No. 99-1613

IN THE SUPREME COURT OF THE UNITED STATES

NOY 1% onne

er ao.

Robert Shaw; Larry Bearley; Michael Mahoney;

Myron Beeson; and Richard S. Day,

Petitioners,

v.

Kevin Murphy,

Respondent.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

AMICUS CURIAE Brief of the States of Florida, Alabama,

Arkansas, Delaware, Illinois, lowa, Kansas, Louisiana,

Commonwealth of Massachusetts, Nebraska, New

Hampshire, North Dakota, Ohio, Oklahoma, Utah, Vermont

and Commonwealth of Virginia in Support of Petitioners

ROBERT A. BUTTERWORTH

Attorney General of Florida

By and Through

THOMAS E. WARNER

Solicitor Generai of Florida

Counsel of Record

CECILIA BRADLEY

Assistant Attorney General

Office of the Attorney General

The Capitol — Suite PL-01

Tallahassee, FL 32399-1050

(850) 414-3681

Bill Pryor

Attorney General

State of Alabama

Mark Pryor

Attorney General

State of Arkansas

M. Jane Brady

Attorney General

State of Delaware

James E. Ryan

Attorney General

State of Illinois

Thomas J. Miller

Attorney General

State of Iowa

Carla J. Stovall

Attorney General

State of Kansas

Richard P. Leyoub

Attorney General

State of Louisiana

Thomas F. Reilly

Attorney General

Commonwealth of

Massachusetts

Don Stenberg

Attorney General

State of Nebraska

Philip T. McLaughlin

Attorney General

State of New Hampshire

Heidi Heitkamp

Attorney General

State of North Dakota

Betty D. Montgomery

Attorney General

State of Ohio

W. A. Drew Edmondson

Attorney General

State of Oklahoma

Jan Graham

Attorney General

State of Utah

William H. Sorrell

Attorney General

State of Vermont

Mark L. Earley

Attorney General

Commonwealth of Virginia

QUESTION PRESENTED

Does the First Amendment to the United States

Constitution guarantee a state prison inmate law clerk the

unrestricted right to communicate with another state prison

inmate regarding a pending legal matter ?

TABLE OF CONTENTS D. Restrictions on inmate-to-inmate

correspondence are per se

ee inccdccenucedkeesseuenes iv reasonable under the Turner v.

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E. The prison regulations and the

SUMMARY OF ARGUMENT ....................... l actions of the prison officials in

this case are reasonable under the

PENNS 00600 tuccnnnenneieneudséncenccesoees’ 2 Turner v. Safley test ......-..- 620-005:

I. THE FIRST AMENDMENT DOES NOT CUT. «ccc ccc cc ccs cccccccsccccccsccsbes

GUARANTEE A STATE PRISON INMATE

LAW CLERK AN UNRESTRICTED RIGHT r

TO COMMUNICATE WITH ANOTHER y

INMATE REGARDING PENDING LEGAL -

St cncknntint ndernusednennnetiinntidiants 2

Il. LEGITIMATE PENOLOGICAL INTERESTS

SUPPORT REGULATION OF INMATE

COMMUNICATIONS INCLUDING THOSE OF

Bb amncdedencesednieedntienyess 6

A. Restrictions on inmate-to-inmate

correspondence are intended to

prevent inmates from passing

contraband to each other ................ 6

B. Prison security and operation will f

be threatened if inmate law clerks

are afforded special rights or a

I cicrnttegeennernecnnesinerieunanrs 8

.. Other “legitimate penological

interests” will be frustrated if the

Ninth Circuit’s holding is

ET tintin cniieeadniamenwbendtdill 10

ii iii

TABLE OF AUTHORITIES

CASES

Adams v. James, 784 F.2d 1077 (11th Cir. 1986) ......... 6

Altizer v. Deeds, 191 F.3d 540 (4 Cir. 1999) ............ .

Bass v. Singletary, 143 F.3d 1442 (11th Cir. 1998) ....... 6

Bates v. State Bar of Arizona, 433 U.S. 350(1977) ....... 4

Bell v. Wolfish, 441 U.S. 520(1979) .................. 2

Billups v. Galassi, 202 F 3d 272 (7th Cir. 2000) ........ 10

Bounds v. Smith, 430 U.S. 817 (1977)... . 2... eee. 4

Buise v. Hudkins, 584 F.2d 223 (7th Cir. 1978) .......... 6

Cooper v. Tard, 855 F.2d 125 (3rd Cir. 1988) ........... 9

DiRose v. McClennan, 26 F Supp.24 550

ES 7,10

Frost v. Symington, 197 F.3d 348 (9th Cir. 1999) ....... 10

Gassler v. Rayl, 862 F.2d 706 (8th Cir. 1988) ........... 5

Gibbs v. Hopkins, 10 F 34 373 (6th Cir. 1993) ......... 5,6

Hall v. Singletary, 999 F.2d 1537 (11th Cir. 1993) ...... 13

Herlein v. Higgins, 172 F.3d 1089 (8th Cir. 1999) ... . .. 10

Hewitt v. Helms, 459 U.S. 460 (1983). .............. 6,10

IV

Johnson v. Avery, 393 U.S. 483 (1969) .........-555- 3,4

Johnson v. Fout, 173 F.3d 429 (6th Cir. 1999) .......... 10

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

GIDE GIT oc cccccccccccccccccsccves 2.535559

Lewis v. Casey, 518 U.S. 343 (1996) ............. 2,3,4,5

McDonaid v. Hall, 610 F.2d 16 (ist Cir. 1979) .......... 6

Meachum v. Fano, 427 U.S. 215 (1976) ............4.. 10

Pell v. Procunier, 417 U.S. 817 (1974)... .- ee ee eee ee 2

Preiser v. Rodriguez, 411 U.S. 475 (1973) ...........-- 10

Rhoden v. Campbell, 202 F.3d 269 (6th Cir. 1999) ...... 10

Rhodes v. Robinson, 612 F.2d 766 (3d Cir. 1979) ........ 6

Sasnett v. Sullivan, 908 F.Supp. 1429

CU WEED, BOE cc cred pecervensrvccaccccccccances 8

Smith v. Maschner, 899 F 24 940 (10th Cir. 1990) ...... 5,6

Thornburgh v. Abbott, 490 U.S. 401 (1989) ............. 2

Tighe v. Wall, 100 F.3d 41 (Sth Cir. 1996) .............. 5

Turner v. Safley, 482 U.S. 78 (1987) ........ 2,11,12,13,14

U.S. v. Felipe, 148 F.3d 101 (2d Cir. 1998) .............. 8.

United States v. Robinson, 913 F.2d 712 (9" Cir. 1990) .... 5

Williams v. Nix, 1 F.3d 712 (8th Cir. 1993) ............. 5

Wolff v. McDonnell, 418 U.S. 539 (1974) .............. 6

OTHER AUTHORITIES

ETE nos onc seducwsecseemsccen 12

103 Mass. Code of Regs. § 481.21 ................... 12

Ga: Comp. R..& Rags. § 125-3-3.01 ............00005. 12

TEED nc ccc cccccccccccccvees 12

DO COBO STSAIO ow icc cccccwccscccsees 13

Z20Oi Ind. Admin. Code'§ 3-21-16... 2... ccc cnc ecces 12

EEE 96440 be kendan Nek eekdboedbs deemed 12

SF GED 0 08 ct verre ener cowrenene 12

INC. Adm Cate GZ aee) 2... ccc ccs cnencess 13

6 Va. Admin. Code § 15-40-10 ...................5.. 13

7 N.Y. Comp. Codes R. & Regs. §§ 720.3,720.6 ....... 12

Conn. Agencies Regs. § 18-81-30 ................... 12

Ohio Admin. Code §5120-9-18 ..................... 12

Fla. Admin Code § are 4,9,12,13

Pia. Admin. Code § 33-602.401 .................. 12,13

vi

FF. 4

Jowa Admin. Code § 201-20.4 ........- eee e cece ences 12

Kan. Admin. Regs. § 44-12-601 ........-..0eeeeees 12,13

N.J. Admin. Code § 10A:18-2.5 , 10: 5-6, 29 ........-+: 12

Ohio Admin. Code § 5120-9-18] .. 02.6... 6. eee eeeeee 13

Or. Admin. r. 291-131-0010(15) ... 6.0... cece eee eens 13

Utah Admin. R. 251-705-3 «1... 6. cece eee eee eee eens 12

Wash. Admin. Code § 137-48-020 ........-...0e sees 13

Wis. Admin. Code § DOC 309.04(2), (4) .........+555: 13

vil

INTEREST OF AMICI

The amici States operate prison systems in their respective

jurisdictions and each has regulations or policies which, in

furtherance of “legitimate penological interests,” prohibit or

restrict correspondence between inmates even if the

correspondence purportedly relates to legal matters. The validity

of those regulations is called into question by the Ninth Circuit’s

holding. Furthermore, the States’ ability to maintain the order

and security of their prisons will be undermined if the Court

affirms the expansive First Amendment right recognized by the

Ninth Circuit.

SUMMARY OF ARGUMENT

The Court has historically been sensitive to the volatile

nature of the prison environment and has consistently recognized

that state prison inmates do not enjoy unrestricted First

Amendment rights of expression and association. Specific

examples from the states show that inmates repeatedly attempt

to exchange contraband including escape plans, weapons, child

pornography, and drugs, under the guise of legal materials.

Applying the holding of the Ninth Circuit in this dangerous

environment severely undermines the efforts of the prison

administrators in the amici States to maintain the order and

security of their correctional institutions. The holding will allow

inmates to avoid prison regulations and discipline through

communications purporting to be “legal advice.”

The holding of the Ninth Circuit also elevates inmate law

clerks to a position substantially equivalent with attorneys, thus

enhancing the status of the inmate law clerks in the prison.

Creating a special status for some inmates leads to dissension,

and presents other difficult problems of maintaining order and

security in the institutions. Restricting inmate-to-inmate

l

correspondence is reasonably related to the institutions’ interest

in maintaining order and security, an interest which the Court has

always recognized as a legitimate penological interest.

. The amici States urge the Court to reverse the Ninth

Circuit’s holding and reaffirm the broad discretion afforded to

prison officials to restrict inmate-to-inmate correspondence.

ARGUMENT

The prison environment is volatile. The efforts of prison

officials to maintain order and security are highl y demanding and

require constant vigilance. The Court has repeatedly recognized

that prison officials have broad discretion in restricting inmates’

First Amendment rights of expression and association. The

decision below, which confers an independent, freestanding and

unrestricted First Amendment right on an inmate law clerk to

give “legal advice” to other inmates, goes beyond any decision

of the Court and undermines legitimate penological objectives of

prison officials to maintain order and security.

I. THE FIRST AMENDMENT DOES NOT GUARANTEE

A STATE PRISON INMATE LAW CLERK AN

UNRESTRICTED RIGHT TO COMMUNICATE

WITH ANOTHER INMATE REGARDING PENDING

LEGAL MATTERS.

The Court has repeatedly recognized that an inmate’s

constitutional rights may be restricted to the extent that they

conflict with institutional rules which are reasonably related to

a legitimate penological interest. Pell v. Procunier, 417 U.S. 817

(1974); Jones v. North Carolina Prisoners’ Labor Union, Inc,

433 U.S. 119 (1977); Bell v. Wolfish, 441 U.S. 520 (1979);

Turner v. Safley, 482 U.S. 78 (1987); Thornburgh v. Abbott, 490

U.S. 401 (1989); Lewis v. Casey, 518 U.S. 343 (1996).

Specifically, the Court has held that the First Amendment rights

2

of inmates “may be curtailed whenever the institution’s officials,

in the exercise of their informed discretion, reasonably conclude

that such associations ... possess the likelihood of disruption of

prison order or stability . . .” Jones, 433 U.S. at 132. While

recognizing that inmates generally have a right of access to

courts, Johnson v. Avery, 393 U.S. 483 (1969), the Court has not

expanded the right of access to hold that an inmate law clerk has

an independent, freestanding unrestricted right under the First

Amendment to provide legal advice or assistance to another

inmate, especially where, as here, an attorney was appointed, and

another inmate law clerk was provided by the institution. Lewis

v. Casey, supra. The Court should not do so in this case.

The Ninth Circuit found that a letter written by Respondent

(a high security inmate) to a fellow inmate (Tracy, a maximum

security inmate) was an expression entitled to a special,

enhanced level of protection under the First Amendment because

it contained “legal advice.” Pet. App. at 6-7. Additionally, the

Ninth Circuit held that Respondent had an independent First

Amendment right of association to provide legal assistance to

Tracy, not because Tracy who already had court-appointed

counsel needed legal advice, nor because Respondent was

assigned as a law clerk for Tracy, but because Respondent had

provided Tracy legal assistance “on several occasions in the

past.” Pet. App. at 7. Having established this independent right

of an inmate acting in the capacity of a law clerk, the Ninth

Circuit then applied a balancing test finding that the prison’s

penological interest in maintaining order and security is “... at a

low ebb when the correspondence in question is legal advice”,

and held that prison officials could not restrict such

communications between inmates. Pet. App. at 12-13. The

decision below is neither supported by the decisions of the Court

nor any other circuit court.

Correspondence by non-lawyers purporting to give legal

advice in a prison has no special status under the First

- 3

Amendment. As a threshold matter, although the Ninth Circuit

makes no distinction between “legal advice” and “legal

assistance”, clearly inmate law clerks are not attorneys and have

no independent hasis to assert a right to provide legal advice.

See, e.g., Fla. Admin Code § 33-501.301(10){i) (prohibiting

inmate law clerks from practicing law or appearing in judicial or

administrative proceedings on behalf of other inmates). See also

Bates v. State Bar of Arizona, 433 U.S. 350, 361 (1977)

(regulation of the practice of law is “. . . at the core of the State’s

power to protect the public’’).

While the Court has generally recognized an inmate’s right

of access to courts, the Court has never characterized this as a

right of the inmate law clerk. In Lewis, 518 U.S. at 350-51, the

Court clarified that the right of access to courts, as articulated by

Bounds v. Smith, 430 U.S.817 (1977), did not constitute a per se

right to legal assistance. Because there is no freestanding right

to receive legal assistance from an inmate law clerk, it is

unreasonable to say that the inmate law clerk has a right to give

legal assistance. The Ninth Circuit’s holding that Respondent

has a First Amendment right to give legal assistance to other

inmates contravenes Lewis.

In Johnson v. Avery, supra, the Court rejected a prison

regulation that prohibited prisoners from assisting each other

with habeas corpus applications and other legal matters. The

basis for that decision, however, was the fact that no alternative

forms of legal assistance were made available to the prisoner,

Johnson, 393 U.S. at 489, and in Lewis, the Court explained that

“legal assistance programs are not ends in themselves, but only

means for ensuring ‘a reasonably adequate opportunity to present

claimed violations of fundamental constitutional rights to the

courts.’” See Lewis, 518 U.S. at 351 (citation omitted). The

instant case does not present a situation implicating the right of

access to the courts. The state district court had already

appointed an attorney to represent inmate Tracy, and prison

4

officials also had provided another inmate law clerk to assist him

in this matter. Pet. App. at 7. Ironically, the Ninth Circuit has

held that a criminal defendant does not have an unrestricted nght

to counsel of his choice, see United States v. Robinson, 913 F.2d

712 (9" Cir. 1990), but here implicitly holds than an inmate has

a right to an inmate law clerk of his choice.

The Lewis Court made clear that an inmate’s right of access

to courts is not to be construed without adequate deference to the

judgment of prison administrators. Lewis, 518 U.S. at 361.

“Subjecting the day-to-day judgments of prison officials to an

inflexible strict scrutiny analysis would seriously hamper their

ability to anticipate security problems and to adopt innovative

solutions to the intractable problems of prison administration."

Id. at 361 (quoting Jones v. North Carolina Prisoners' Labor

Union, Inc., 433 U.S. 119, 128 (1977)).

The holding of the Ninth Circuit appears to confer on an

inmate law clerk a freestanding constitutional right to provide

legal advice to other inmate. By contrast, other circuits have

refused to recognize an independent right which is freestanding

from an inmate’s right of access to the courts.' Indeed, most

circuits have not even recognized an inmate’s standing to assert

, See, e.g., Williams v. Nix, 1 F.3d 712, 716 (8th Cir. 1993) (“[A}n

individual inmate does not have a constitutional right to ‘practice’ jailhouse

law.”); Smith v. Maschner, 899 F.2d 940, 950 (10th Cir. 1990) (An inmate

“does not have a protected interest in providing legal representation to other

inmates.”); Tighe v. Wall, 100 F.3d 41, 42 (Sth Cir. 1996) (The court noted

that an inmate has no constitutionally protected interest in a specific work

* assignment and held that “[t]he right to act as inmate counsel in a certain

facility is no exception to that general rule.”); Gassler v. Rayl, 862 F.2d

706,707 (8th Cir. 1988) (“There is, however, no right to be or to receive legal

assistance from a jailhouse lawyer independent of the right of access to the

court.”); Gibbs v. Hopkins, 10 F.3d 373, 378 (6th Cir. 1993) (Court

recognized that there was “technically” no right to assist.).

5

another inmate’s claims.’ The Ninth Circuit’s holding should be

rejected in favor of the reasoning of the other circuits on this

issue. Cf Wolff v. McDonnell, 418 U.S. 539, 561-63 (1974)

(refusing to second-guess actions taken by prison officials in

recognition of the volatile nature of the prison environment);

Hewitt v. Helms, 459 U.S. 460, 470-71 (1983).

Il. LEGITIMATE PENOLOGICAL INTERESTS

SUPPORT REGULATION OF INMATE

COMMUNICATIONS INCLUDING THOSE OF LAW

CLF RKS.

A. Restrictions on inmate-to-inmate correspondence

are intended to prevent inmates from passing

contraband to each other.

Inmates across the country have attempted to pass

contraband disguised as legal mail or legal material. If the Court

approves the Ninth Circuit’s holding and inmates may exchange

purported legal mail without restriction, these incidents will

increase dramatically and pose an extreme threat to the order

and security of the institutions. Several examples illustrate this

2 See Bass v. Singletary, 143 F.3d 1442, 1446 (11th Cir. 1998)

inmate law clerks, “did not have standing to assert other inmate’ claims for

denial of their rights of access to courts.”); Adams v. James, 784 F.2d 1077,

1080 (11th Cir. 1986) (“In the non-class-action context a prisoner has no

standing to litigate another prisoner’s claim of denial of access to the

courts.”); McDonald v. Hall, 610 F.2d 16 , 19 (1* Cir. 1979) (same); Buise

v. Hudkins, 584 F.2d 223, 227 (7th Cir. 1978) (same); Rhodes v. Robinson,

612 F.2d 766, 769 (3d Cir. 1979) (“Prison writ writers have standing to assert

other prisoners’ right of access to the courts.”); Gibbs, 10 F.3d at 378

(“[P)rison officials may not prevent such assistance or retaliate for providing

such assistance where no reasonable alternatives are available.”). And cf.

Smith, 899 F.2d at 950 (“Prison inmates do not possess the right to a particular

prisoner’s help in preparing their legal materials.”)

6

point.’

In Ohio, inmates received transcripts as part of their

purported legal mail in which officials discovered carved out

areas in the bindings where cocaine and other drugs were

concealed. In Florida, inmates have sent contraband such as

marijuana and money in inmate-to-inmate correspondence

labeled as legal mail. Another inmate in Florida was found with

a homemade “law book” which contained nude pictures of

children and adult females among purported legal materials.

Inmates in New York have engaged in the practice of “kiting” in

order to avoid the prohibition against inrmate-to-inmate

correspondence.‘ In another Florida case, a mailroom supervisor

testified about finding hacksaw blades under the bindings of a

transcript which was sent to an inmate as legal mail.

In Idaho, directions on how to manufacture drugs and

potential weapons were found in legal materials and mail. In

another Idaho case, two inmates were setting up a law practice

from behind bars and were mailing materials to non-attorneys

under the guise of legal mail. These inmates had also set up fee

arrangements and were charging other inmates for legal work.

An inmate in New York was convicted of participating in

racketeering activities as the leader of the Latin Kings gang while

incarcerated at Attica. The court noted that the inmate was

’ Twenty copies of the compiled incident reports illustrating these

examples have been lodged with the Clerk’s Office.

* The practice of “kiting” involves mailing a letter marked as legal

mail to an alleged attorney with a non-existent address. The letter bears the

return address of another inmate so it is returned to that inmate when found

undeliverable. A second practice of “kiting” involves placing insufficient

postage on the letter and the letter is “returned” to the return name and address

of another inmate. See DiRose v. McClennan, 26 F Supp.2d 550 (W.D.N.Y.

1998).

skilled at using secret codes to control the Latin Kings

organization and orchestrate numerous murders. U.S. v. Felipe,

148 F.3d 101, 109 (2d Cir. 1998). Placing such codes in

allegedly legal mail would pose a severe threat to the internal

order and security of the institution if exchanged within the

institution and a more far reaching threat if sent outside the

prison environment without inspection. In Sasnett v. Sullivan,

908 F.Supp. 1429, 1435 (W.D. Wis. 1995), the court noted that

“(t]he most time-consuming aspect of a cell search is the

searching of paper such as letters, legal materials, books

magazines and newspapers but it is necessary for the security of

staff, inmates, and the public. Officers have found razor blades

and drugs in such papers as well as motor vehicle registration

stickers stolen by an inmate from his institution’s production

factory and intended to be sent to his family for illegal sale ‘on

the street.’” (emphasis added).

During the search of an inmate’s cell in Virginia, a

document was discovered hidden among legal materials which

outlined the procedure on how to assemble several different

incendiary devices. A further search revealed materials for

constructing such a device. In Altizer v. Deeds, 191 F.3d 540,

5491 (4" Cir. 1999), the court upheld inspection of an inmate’s

legal mail noting that during the course of the litigation the

inmate had attempted to mail a homemade knife in his legal mail

to the federal district court.

B. Prison security and operation will be threatened if

inmate law clerks are afforded special rights or a

special status.

The Ninth Circuit’s decision has the dangerous effect of

conferring a special right on inmate law clerks or, for that matter,

any inmate who purports to provide legal assistance, thereby

elevating such inmates to positions of influence within the prison

system. It is well recognized that allowing an inmate to have a

position of power and authority over other inmates presents a

serious threat to prison security. See, e.g., Cooper v. Tard, 855

F.2d 125 (3° Cir. 1988)(recognizing the threat to prison

authority by inmate adherents of the Nation of Islam who set

themselves apart from the other inmates as an affinity group with

an established hierarchy). Indeed, in Jones v. North Carolina

Prisoners’ Labor Union, Inc., 433 U.S. at 127-129, the Court

recognized the rational relationship between banning inmate

solicitation and group meetings where prison administrators

claimed that such activity could potentially cause inmate

organizers to be power figures among inmates and misuse their

influence.

If the Court were to recognize greater First Amendment

protection for correspondence to or from an “inmate law clerk”

or require heightened scrutiny of prison regulations restricting

such correspondence, the Court would be elevating “inmate law

clerks” to quasi-attorney status. Such a holding would have a

direct and adverse impact on the States because at least 29 states

have formal “inmate law clerk” programs or policies which

authorize inmates to assist other inmates with legal matters.

Florida, for example, has established a program to “certify”

inmates as law clerks. Fla. Admin Code § 33-501.301(10).

Other states which report having formal training and/or

certification programs for inmate law clerks are Illinois,

Kentucky, Louisiana, Massachusetts, Michigan, New Jersey,

Oklahoma, Oregon, Pennsylvania, Rhode Island, Tennessee,

Vermont and Wyoming. (Source: Fla. Attn’y Gen. phone and

e-mail survey of state corrections departments, Oct. 2000). States

which report having inmate law clerks but which do not provide

formal training or certification for them are Alaska, Georgia,

Nebraska, Nevada, New York, South Carolina, and West

Virginia. Jd. States which report having “informal” programs

which allow inmates to assist each other with the preparation of

Mexico, Ohio, Texas, Washington and Wisconsin. /d.

9

C. Other “legitimate penological interests” will be

frustrated if the Ninth Circuit’s holding is affirmed.

In reviewing inmate cases, the Court has held that the safe

and efficient operation of a prison on a day-to-day basis has

traditionally been entrusted to the expertise of prison officials.

Meachum v. Fano, 427 U.S. 215 (1976); Hewitt v. Helms, 459

U.S. 460 (1983); Preiser v. Rodriguez, 411 U.S. 475 (1973).

“Moreover, because most potential litigation involving state

prisoners arises on a day-to-day basis, it is most efficiently and

properly handled by the state administrative bodies and state

courts, which are, for the most part, familiar with the grievances

of state prisoners and in a better physical and practical position

to deal with those grievances.” Preiser, 411 U.S. at 492.

The type of legitimate penological interests recognized by

courts throughout the country include: DiRose v. McClennan, 26

F.Supp.2d 550 (W.D.N.Y. 1998) (heightened scrutiny of

inmate’s mail was justified after escape plans were found in his

mail; abstract of officer’s drivers license with home address was

confiscated in order to maintain security for correctional officers

and to prevent the practice of "kiting.”); Johnson v. Fout, 173

F.3d 429 (6th Cir. 1999) (rule prohibiting law clerks from

charging for their assistance upheld as necessary to maintain

secunity of institution by preventing disagreements and violence

among inmates.); Herlein v. Higgins, 172 F.3d 1089 (8th Cir.

1999) (court upheld ban on musical cassettes containing labels

warning of explicit lyrics as reasonably related to legitimate

penological interest of maintaining security; music with violent

or sexuaily explicit lyrics might present security risk.); Frost v.

Symington, 197 F.3d 348 (9th Cir. 1999) (rule prohibiting

magazines depicting sexual penetration was necessary to ensure

the safety of inmates and prison officers, and protect female

officers from abuse and harassment and such publications are

likely to cause inmates who come in contact with the materials

to harass and/or abuse other individuals); Rhoden v. Campbell,

10

von gg

202 F.3d 269 (6th Cir. 1999) (inmate denied request for day off

from work to celebrate Million Man March recognizing that

staffing and security dilemmas are legitimate penological

interests, also upheld decision not to allow inmate to wear fez at

work because such religious headgear may be used to conceal

drugs, weapons, or other contraband and may spark internal

violence among prisoners thus posing security threat); Billups v.

Galassi, 202 F.3d 272 (7th Cir. 2000) (spot-checks of inmate’s

non-legal mail was reasonably related to legitimate penological

interest of preventing threat which letter presented to prison’s

security and order; the letter, which described sex act which

inmate and girlfriend performed in visitors area could encourage

other prisoners to attempt sexual acts during visiting hours,

create disrespect for prison rules and foster emotionally charged

disputes amongst prisoners over the letter’s possession if the

letter were to become lost or stolen).

D. Restrictions on inmate-to-inmate correspondence

are per se reasonable under the Turner v. Safley test.

In Turner, the Court reviewed state prison regulations

governing inmate-to-inmate correspondence and inmate

marriage. The Court expressly upheld the rule restricting

inmate-to-inmate correspondence because it was reasonably

related to a legitimate penological interest. Turner, 482 U.S. at

89. As pointed out in the Petitioner’s brief on the merits, the

Missouri prison regulation approved by the Court’s decision in

Turner prohibited all inmate-to-inmate correspondence

(including correspondence dealing with legal matters) absent

prior approval of prison officials. This regulation, the Court

noted, was “consistent with the practice of other well-run

institutions, including institutions in the federal system.” Turner,

482 U.S. at 93. A significant number of states have regulations

(or uncodified policies) which prohibit or stringently regulate

inmate-to-inmate correspondence. Many of these regulations and

policies are patterned after the federal prison regulation (28

11

C.F.R. § 540.17 (1986)) cited in the Petitioner’s brief and,

presumably the subject of the Court’s reference in Turner. The

prison regulation adopted in Florida, for example, provides:

Correspondence with inmates of other penal institutions

shall be subject to the approval of the warden of each

institution. Either warden may withhold approval if he

finds that the intended correspondence would present a

substantial threat of interference with the security, order

of the rehabilitative objectives of his institution.

Fla. Admin. Code § 33-602.401(4). Accord 15 Cal. Admin Code

§ 3139; Kan. Admin. Regs. 44-12-601(j); 103 Mass. Code of

Regs. § 481.21; N J. Admin. Code § 10A:18-2.5; 7 N.Y. Comp.

Codes R. & Regs. §§ 720.3(b)(3), 720.6; 37 Pa. Code §

93.2(b)(1); 37 Tx. Admin. Code § 291.2(1)(A). See also N.J.

Admin. Code § 10:5-6.29(a) (“[I]nmates assigned to the Security

Threat Group shall not be permitted to send mail to, or receive

mail from, any other incarcerated inmates”); Fla. Admin. Code

§ 33-501.301(10)(1) (requiring inmate law clerk to obtain prior

approval from prison officials to correspond with an inmate law

clerk at another institution); Conn. Agencies Regs. § 18-81-

30(c\(3) (prohibiting correspondence between inmates except

those who are immediate family members); lowa Admin. Code

§ 201-20.4(3)g. (same); Utah Admin. R. 251-705-3(19)

(prohibiting inmate-to-inmate correspondence in the absence of

a “compelling need” and where there is no alternative means of

accomplishing that need). Cf. 210 Ind. Admin. Code § 3-1-16(b)

(authorizing sheriffs to restrict correspondence between inmates

in county jails).

Even states which do not appear to prohibit inmate-to-

inmate correspondence have regulations which authorize prison

officials to open, read and withhold inmate correspondence

under certain circumstances. See, e.g., Ohio Admin. Code §

5120-9-18(K); Ga. Comp. R. & Regs. § 125-3-3.01(3); Wis.

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Admin. Code § DOC 309.04(2)c), (4). The Ohio regulations,

like the regulations of most states, restrict the prison officials’

ability to read “legal mail.” See Ohio Admin. Code § 5120-9-

18(C)(1)-(4) (“legal mail” may only be opened by prison officials

in the presence of the inmate and if there is a “reasonable belief

that the envelope contains contraband”). However, neither Ohio

- nor any other states whose regulations define “legal mail”

include inmate-to-inmate correspondence or, more specifically,

correspondence to or from an “inmate law clerk” within that

definition. See id. at § 5120-9-18(C). Accord Fla. Admin. Code

33-602.402(2); 20 Ill. Admin. Code 525.110(g); Kan. Admin.

Regs. § 44-12-601(a)(1); 5 N.C. Admin. Code § 2D.0307(a); Or.

Admin. r. 291-131-0010(15); 6 Va. Admin. Code § 15-40-10;

Wash. Admin. Code § 137-48-020(8). If the Ninth Circuit’s

holding were adopted, it would be tantamount to classifying

inmate-to-inmate correspondence on legal matters as “legal

mail.” Cf Hall v. Singletary, 999 F.2d 1537 (11" Cir. 1993)

(citing Turner and upholding prison’s refusal to permit inmate to

correspond with another inmate on a legal matter where inmate

had failed to comply with prison’s rule).

If the Court were to adopt the reasoning of the Ninth Circuit

that inmate-to-inmate correspondence purportedly relating to

legal matters is entitled to greater First Amendment protection,

the Court would not only be receding from its holding in Turner

and its progeny but would also be invalidating the regulations

and practices of many States’ prisons, as indicated above.

E. The prison regulations and the actions of the

prison officials in this case are reasonable under the

Turner v. Safley test.

The Court in Turner articulated a four-prong test in

evaluating the constitutionality of prison rules which impinge on

the inmate’s constitutional rights. Turner, 482 U.S. at 89-90. In

deciding whether prison rule is valid, the court should consider:

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whether there is valid, rational connection between prison

regulation and legitimate governmental interest put forward to

justify it; whether there are alternative means of exercising rights

that remain open to inmates; whether accommodation of asserted

rights will have significant “ripple effect” on fellow inmates or

prison staff; and whether there is ready alternative to regulation

that fully accommodates prisoners’ rights at de minimis cost to

valid penological interest. /d. at 107.

Respondent, an inmate law clerk classified as high security,

attempted to mail a letter to inmate Tracy who was confined in

the maximum security unit of the prison. In addition to

providing advice on how to handle Tracy’s case, Respondent’s

letter contained allegations about the officer whom Tracy

attacked and more information about personal events occurring

outside the prison. The facts of the instant case satisfy the test

established in Turner. First, the policy allowing censorship of

inmate-to-inmate correspondence is legitimately related to the

institution’s interest in maintaining the security of the institution.

Second, there was an alternative method of communicating such

information because inmate Tracy already had a court-appointed

attorney, to whom communication was not restricted, as well as

a prison supplied inmate law clerk.

Moreover, accommodating Respondent’s asserted right in

the instant case would have a tremendous ripple effect on the

prison system by establishing another viable option for passing

contraband among inmates. Opening additional channels for

passing contraband and information to maximum and high

security inmates would threaten the security of the institution.

Accordingly, the penological interests in this case clearly satisfy

the Turner standard of review.

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CONCLUSION

For the foregoing reasons, the decision of the Ninth

Circuit Court of Appeals should be reversed.

November 13, 2000

Respectfully submitted,

ROBERT A. BUTTERWORTH

Attorney General of Florida

By and Through

THOMAS E. WARNER

Solicitor General

Counsel of Record

CECILIA BRADLEY

Assistant Attorney General

Office of the Attorney General

The Capitol — Suite PL-01

Tallahassee, FL 32399-1050

(850) 414-3681

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