Amicus Curiae Brief — Shaw v. Murphy

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No. 99-1613! NOV 13 9000

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IN THE CLERK

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Supreme Court of the United States Av 13, 200°

ROBERT SHAW, LARRY BEARLEY, MICHAEL MAHONEY,

MYRON BEESON, AND RICHARD S. Day,

Petitioners,

VS.

KEVIN MURPHY,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

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BRIEF AMICUS CURIAE OF THE

CRIMINAL JUSTICE LEGAL FOUNDATION

IN SUPPORT OF PETITIONERS

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KENT S. SCHEIDEGGER

CHARLES L. HOBSON

Attorney of Record

Criminal Justice Legal Fdn.

2131 L Street

Sacramento, CA 95816

Phone: (916) 446-0345

Fax: (916) 446-1194

E-mail: cjlf@cjlf.org

Attorneys for Amicus Curiae

Criminal Justice Legal Foundation

prisoner

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TABLE OF CONTENTS

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The right of access to the courts is not implicated

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II

Prisoners do not have a First Amendment right to

provide legal assistance to other inmates ............. 8

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The administration did not violate the plaintiff's

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(iii)

iv

TABLE OF AUTHORITIES

Cases

Bass v. Singletary, 143 F. 3d 1442 +CA11 1998) ..... 7,11

Bounds v. Smith, 430 U. S. 817, 52 L. Ed. 2d 72,

Sy as Gk Pe UU 6 ahinds caneenteenucecneses 5,8

Brotherhood of Railroad Trainmen v. Virginia Bar,

377 U.S. 1, 12 L. Ed. 2d 89, 84S. Ct. 1113 (1964) ....9

Caplin & Drysdale, Chartered v. United States,

491 U.S. 617, 105 L. Ed. 2d 528,

, § & arene ore ree 6

Conn v. Gabbert, 526 U. S. 286, 143 L. Ed. 2d 399,

ae Gee, SOD od cdvedanenckasandehaeshes 10

Faretta v. California, 422 U. S. 806, 45 L. Ed. 2d 562,

Ses Gk, SED on bb cueeddadnoddneenneunetan 6

Gassler v. Rayl, 862 F. 2d 706 (CA8 1988). ............ 7

Gibbs v. Hopkins, 10 F. 3d 373 (CA6 1993) ............ 7

Gideon v. Wainwright, 372 U. S. 335, 9 L. Ed. 2d 799,

ak Gh EE vo ccnceddncecuauesuestbaucter 6

In re Primus, 436 U. S. 412, 56 L. Ed. 2d 417,

Se Gs SEED Dic ccexecdenbnnnebeansneses 10

Johnson v. Avery, 393 U. S. 483, 21 L. Ed. 2d 718,

Ba Gk SE ED ov cccancecensesesesbuedencens: 6

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

433 U.S. 119, 53 L. Ed. 2d 629, 97 S. Ct. 2532

ee en re ee 12, 13, 17, 19

Kunzelman v. Thompson, 799 F. 2d 1172 (CA7 1986) .... 7

Lewis v. Casey, 518 U. S. 343, 135 L. Ed. 2d 606,

Seas GR, SEP S OEE coccccecdecocescasces 7, 8,9, 11

Meachum v. Fano, 427 U. S. 215, 49 L. Ed. 2d 451,

Ss Ec edeskatedduscasveccodavans 13

Mine Workers v. Illinois Bar Assn., 389 U. S. 217,

19 L. Ed. 2d 426, 88 S. Ct. 353 (1967) ........ 9,10, 11

Murphy v. Shaw, 195 F. 3d 1121

DP ciidisdushebedutdadedbensnseea? Passim

NAACP v. Button, 371 U. S. 415, 9 L. Ed. 2d 405,

Se SE av cueedccdesessdoncrenesesde 8,9

O’Lone v. Estate of Shabazz, 482 U. S. 342,

96 L. Ed. 2d 282, 107 S. Ct. 2400 (1987) ........ 13,15

Rhodes v. Chapman, 452 U. S. 337, 69 L. Ed. 2d 59,

ED otcdectcdandnessuedoaieees 13

Rizzo v. Dawson, 778 F. 2d 527 (CA9 1985) ........... 8

Smith v. Maschner, 899 F. 2d 940 (CA10 1990) ......... 7

Soldal v. Cook County, 506 U. S. 56, 121 L. Ed. 2d 450,

SD hc icedvocunkiedieuseksvent 10

Thornburgh v. Abbott, 490 U. S. 401, 104 L. Ed. 2d 459,

Be ee Gh CPE oc ccvcccsccoscess 13, 14, 15, 19

Tighe v. Wall, 100 F. 3d 41 (CAS 1996) ............... 7

Turner v. Safley, 482 U. S. 78, 96 L. Ed. 2d 64,

107 S. Ce. 2254 (1987) .. 0... cee ee eneee 12, 13, 15-19

United Transportation Union v. Michigan Bar,

401 U. S. 576, 28 L. Ed. 2d 339, 91 S. Ct. 1076

SP bees sedeneesegeenceesecucieusss 8,9, 10, 11

vi

Miscellaneous

Doumar, Prisoners’ Civil Rights Suits: A Pompous

Delusion, | 1 Geo. Mason U. L. Rev. 1 (1988)........

Engel & Rothman, The Paradox of Prison Reform:

Rehabilitation, Prisoners’ Rights, and Violence,

7 Harv. J.L. & Pub. Pol’y 413 (1984) ..............

IN THE

Supreme Court of the United States

ROBERT SHAW, LARRY BEARLEY, MICHAEL MAHONEY,

MYRON BEESON, AND RICHARD S. Day,

Petitioners,

VS.

KEVIN MURPHY,

Respondent.

BRIEF AMICUS CURIAE OF THE

CRIMINAL JUSTICE LEGAL FOUNDATION

IN SUPPORT OF PETITIONERS

INTEREST OF AMICUS CURIAE

The Criminal Justice Legal Foundation (CJLF)' is a non-

profit California corporation organized to participate in

litigation relating to the criminal justice system as it affects the

public interest. CJLF seeks to bring the constitutional protec-

tions of the accused into balance with the rights of the victim

and of society to rapid, efficient, and reliable determination of

guilt and swift execution of punishment.

The present case involves the creation of a new right for

prisoners, a right to act as a law clerk separate from their right

of access to the courts. Recognizing this right would disrupt

This brief was written entirely by counsel for amicus, as listed on the

cover, and not by counsel for any party. No outside contributions were

made to the preparation or submission of this brief.

Both parties have given written consent to the filing of this brief.

delicate balance of interests maintained by the prisoner right-of-

access cases. This threatens prison security, endangering

guards and prisoners alike, and intrudes upon the prison

administration’s discretion to manage prisons free from judicial

influences. The dangerous expansion of the prisoner’s right to

association threatens public safety and is therefore contrary to

the interests that CJLF was formed to protect.

SUMMARY OF FACTS AND CASE

The plaintiff in this case, Kevin Murphy, is a prisoner law

clerk in the Montana State Prison. Murphy v. Shaw, 195 F. 3d

1121, 1123 (CA9 1999). In early 1995 he became aware that

Pat Tracy, another inmate, was charged with assaulting Correc-

tional Officer Glen Galle. /bid. Murphy had previously given

legal assistance to Tracy and found out that Tracy wanted his

help in the assault case. Murphy also knew that Tracy already

had appointed counsel for that case. /bid. Since Tracy was in

the maximum security wing, they could not directly meet each

other. /bid. Murphy, as an inmate in the “high” security

classification, was not allowed to visit the maximum security

unit, but another inmate clerk with a low security classification

was allowed to visit Tracy. Pet. for Cert. 4.

After investigating the matter, Murphy wrote a letter to

Tracy in February 1995 in which he asked Tracy not to plead

guilty. Murphy, supra, 195 F. 3d, at 1123. Murphy claimed to

have found “ ‘at least 100 witnesses to testify that Galle is an

over zealous [sic] guard who has a personal agenda to punish

and harass inmates.’ ” Jbid. The letter further alleged that

Officer Galle had made homosexual advances to inmates. /bid.

Murphy stated that “[t]here are petitions against” Galle, and that

Murphy would be “filing a suit with everyone in Close I and

Close II named against him.” J/bid.

The letter was read by prison officials, who kept it from

reaching either Tracy or his attorney. See ibid., andn. 1. Asa

result of the letter, Murphy was punished by prison officials for

violating prison regulations against insolence and interference

with due process hearings. /d., at 1124. The latter finding is

implicitly a finding that Murphy’s allegations against Officer

Galle were false. See id., at 1124, n. 3 (quoting Rule 022); Pet.

for Cert. 5. In October 1995, Murphy filed a class action civil

rights suit on behalf of all inmate law clerks at the prison,

claiming that disciplining him violated the First Amendment,

and denied prisoners their right of access to the courts. He also

asserted that the prison regulations used to punish him were

void on the their face and as applied to legal advice given by

law clerks. Murphy, supra, 195 F. 3d, at 1124. The District

Court granted defendant’s motion for summary judgment on all

claims. /bid. The Ninth Circuit reversed on the First Amend-

ment claim, finding that Murphy was entitled to summary

judgment in his favor on this claim. /d., at 1128. The Ninth

Circuit did not decide the right of access claim, ibid., while

upholding the District Court’s dismissal of the facial challenge

to the regulations. /d., at 1129. This Court granted Montana’s

certiorari petition on September 26, 2000.

SUMMARY OF ARGUMENT

While this case is best analyzed under the prisoner’s right

of access to the courts, that right was not implicated by the acts

of the Montana authorities. The prisoner that the plaintiff

sought to assist through his letter already had counsel under the

Sixth Amendment, a more than adequate alternative to a

prisoner law clerk. Furthermore, the administration did not

prevent the plaintiff from filing a civil rights suit on behalf of

any prisoner allegedly harmed by Officer Galle. There is no

right to be a law clerk separate from the right of access to the

courts. Since all prisoners had at least adequate access, this

right is not implicated.

' The First Amendment right of association does not support

a right to be a prisoner law clerk. The cases giving civilian

organizations the right to find adequate legal representation for

their members have no place in prisons. These cases create a

civilian right of access to the courts which is much more

extensive than the prison right. Importing these concepts inside

the prison walls would disrupt the delicate balance found in the

prisoner right-to-access decisions. Finally, these civilian cases

are based upon the right of association, the First Amendment

right that is the most heavily curtailed within prisons. Since the

organizations that are protected under the association right can

be banned inside prisons, applying these First Amendment

cases to prisons is particularly inappropriate.

The administration did not violate the plaintiff s free speech

rights. Although imprisonment does not end prisoners’ rights,

it necessarily restricts their constitutional protections. The

difficulty of running a prison and the important federalism

interests in keeping the courts from interfering with prison

operation combine to support a very deferential standard for

reviewing limitations on prisoners’ First Amendment rights.

Appropriate deference to prison administrators is achieved by

applying the four-part test of Turner v. Safley.

The Montana authorities satisfied the Turner standard. The

interest served by their actions, security, is legitimate and

content-neutral. Keeping prisoners from using the courts to

harass guards through false accusations and keeping prisoners

of different security classifications from communication with

each other are both rationally related to this interest, thus

satisfying 7urner’s first factor. The second Turner factor, the

presence of alternate means of communication, is also avail-

able, as the plaintiff was not prevented from voicing prisoner

complaints against Officer Galle through the prison grievance

process or through civil rights litigation. Turner's third factor,

the effect that accommodating the plaintiff prisoner would have

on the guards and other prisoners, again favors the administra-

tion. Accommodating the plaintiff threatens institutional

security. placing both guards and other prisoners in danger.

The fourth 7urner factor, the absence of ready alternatives, also

favors the administration, since the plaintiff's desire to commu-

———

nicate with Tracy cannot be accommodated without compro-

mising the prison’s interests in preventing guards from being

harassed and segregating prisoners of different security classifi-

cations.

ARGUMENT _

I. The right of access to the courts is not

implicated in this case.

This case revolves around prison litigation. The plaintiff

was purporting to act as a law clerk when he investigated

Officer Galle and when he made the allegations against Galle

in his letter to Tracy. The offending letter was intended to

influence prison-related litigation and raised the prospect of

litigation against the prison. This suit is a class action on behalf

of all prisoner law clerks in the plaintiff's prison. Even though

this case is seemingly inseparable from prison litigation, the

Ninth Circuit deferred analysis under the more straightforward

prisoner's right to access to the courts for an esoteric extension

of First Amendment case law.

Although this case is best analyzed under the right of

access, this right was not implicated by the actions of the

Montana authorities. This right is only violated when some

prisoner is actually kept from having his or her day in court.

Since the disciplinary action kept no prisoner from the courts,

the right of access was not implicated.

The right to fccess is a very limited guarantee that is

intended to place minimal burdens on prison authorities. States

are not forced into a rigid set of requirements, but instead may

meet the constitutional minimums through whatever means they

choose. Thus, “a legal access program need not include any

particular element we have discussed, and we encourage local

experimentation” so long as it satisfies “constitutiogal stan-

dards.” Bounds v. Smith, 430 U. S. 817, 832 (1977). This

combination of deference and flexibility is found throughout

the access cases.

So long as the prisoner has some adequate means of

presenting his or her claims in court, the constitutional mini-

mum is met. Johnson v. Avery, 393 U. S. 483 (1969) provides

a clear example of this principle. Like the present case, the

prisoner in Johnson was prevented from giving legal help to a

fellow inmate. See id., at 484 (regulation prohibiting inmates

from giving legal advice). Even though this Court understood

that “writ writers” could menace prison discipline and security,

see id., at 488, the Tennessee prison regulation was still

unconstitutional because the prisoners had no alternatives for

presenting their claims to the courts. /d., at 490. Since there

was no “other source of assistance for prisoners” who were

incapable of representing themselves in court, the rule was

unconstitutional. See id., at 487. Had the state provided an

adequate alternative, it could “prohibit mutual assistance among

inmates.” See id., at 489-490. Representation by an actual

attorney is a more than adequate alternative.

The plaintiff in this case was attempting to give legal help

to an inmate who was already represented by counsel. See

Murphy v. Shaw, 195 F. 3d 1121, 1123 (CA9 1999). Since the

representation concerned a criminal matter, Tracy’s assault of

Officer Galle, see ibid.; Pet. for Cert. 3, the right to access is

irrelevant, as Tracy had a Sixth Amendment right to counsel.

See Gideon v. Wainwright, 372 U. S. 335 (1963). This right to

counsel does not include a right to the additional assistance of

a fellow inmate. While Tracy may represent himself, Faretta

v. California, 422 U.S. 806, 834 (1975), or may retain counsel

of his choice, see Caplin & Drysdale, Chartered v. United

States, 491 U. S. 617, 624-625 (1989), he has no right to the

additional assistance of a freelance inmate paralegal of his own

choosing. Criminal defendants who accept appointed counsel

do not “have a Sixth Amendment right to choose their counsel.”

Id., at 624. Similarly, the selection of investigators, paralegals,

or experts to help prepare the defense must be left to appointed

~~ Ene

om

counsel or the state. The Montana authorities offered Tracy the

services of an inmate law clerk with a lower security classifica-

tion than the plaintiff, but Tracy refused, insisting upon

Murphy. See Pet. for Cert. 4. Even though Tracy wanted the

plaintiff's legal help, he was not entitled to it.

There is no right to be a writ writer or law clerk independent

of insuring a prisoner’s adequate access to the courts. Law

clerks or any other component of the right to access such as

“prison law libraries and legal assistance programs are not ends

in themselves, but are only means for ensuring ‘a reasonably

adequate opportunity to present claimed violations of funda-

mental constitutional rights to the courts.” ” Lewis v. Casey,

518 U. S. 343, 351 (1996) (quoting Bounds, supra, 430 U. S..,

at 825). Prisoners have no right “to discover grievances, and to

litigate effectively once in court.” /d., at 354 (emphasis in

original). There is only “a right to bring to court a grievance

that the inmate wished to present....” J/bid. “There is,

however, no right to be or to receive assistance from a jailhouse

lawyer independent of the right of access to the court.”

Gassler v. Rayl, 862 F. 2d 706, 707-708 (CA8 1988); see,

Tighe v. Wall, 100 F. 3d 41, 43 (CAS 1996); Gibbs v. Hopkins,

10 F. 3d 373, 378-380 (CA6 1993) (claim stated only if no

alternatives exist; plaintiff must amend complaint to so allege);

Smith v. Maschner, 899 F. 2d 940, 950 (CA10 1990); Bass v.

Singletary, 143 F. 3d 1442, 1446 (CAI11 1998) (collecting

cases); but see Kunzelman v. Thompson, 799 F. 2d 1172, 1178,

n. 6 (CA7 1986) (open question under the First Amendment

right to association).”

The right to access is only violated where there has been an

actual injury which frustrates or impedes a prisoner’s presenta-

tion of anonfrivolous legal claim. See Casey, supra, 518 U.S.,

2. There is also a substantial controversy in the circuit courts over whether

an inmate has the standing to assert another inmate’s right of access.

See Smith, supra, 899 F. 2d, at 950 (collecting cases). Since this issue

has not been raised in this case, amicus will not discuss it.

at 351. That has not happened here. Tracy had counsel through

his Sixth Amendment right, which more than satisfies the

prisoner’s right to access. Cf. id., at 354. No other prisoner has

been kept from litigating Officer Galle’s alleged misdeeds. If

plaintiff s allegations were true, then the prisoners harmed by

Officer Galle may present their claims in an appropriate forum

with the help of inmate law clerks like the plaintiff, as was

promised in the letter, see Murphy, supra, 195 F. 3d, at 1123,

or through reasonable alternatives. Since the administration’s

actions have not kept any prisoner from having his day in court,

the right of access has not been implicated, let alone violated.

II. Prisoners do not have a First Amendment right to

provide legal assistance to other inmates.

The Ninth Circuit avoided the controlling authority under

the right to access, see Part I, supra, by invoking the First

Amendment right to association to support Murphy’s claim.

See Murphy v. Shaw, 195 F. 3d 1121, 1125-1126 (CA9 1999).

The decision applied circuit precedent, holding that prisoners

had a right to assist their fellow inmates in civil rights litigation

under the First Amendment right-to-association decisions. See

id., at 1126 (citing Rizzo v. Dawson, 778 F. 2d 527, 531-532

(CA9 1985) (citing NAACP v. Button, 371 U.S. 415 (1963) and

United Transportation Union v. Michigan Bar, 401 U.S. 576

(1971))). This is an unnecessary and unrealistic extension of

the right to association that has no place in the First Amend-

ment. There is no First Amendment right to be a prisoner law

clerk.

The First Amendment doctrine invoked by the Ninth Circuit

is unnecessary in the prison context because prisoners already

have a right of access to the courts. See, e.g., Bounds v. Smith,

430 U. S. 817 (1977). The right-of-association cases allow

organizations to secure adequate legal representation for

individuals who otherwise may be without proper counsel to

present their grievances to the courts, a different and more

extensive right of access than that afforded prisoners under

Bounds and Lewis v. Casey, 518 U. S. 343 (1996). In NAACP

v. Button, 371 U. S. 415 (1963), Virginia had expanded the

definition of “capper” in order to hinder the NAACP in getting

clients for civil rights actions. See 371 U. S., at 423-426. What.

mattered was not the act of soliciting clients, but the fact that

the NAACP’s litigation gave a voice to people who otherwise

would not be heard. In this context,

“litigation is not a technique of resolving private differ-

ences; it is a means for achieving the lawful objections of

equality of treatment by all government, federal, state and

local, for the members of the Negro community in this

country. It is thus a form of political expression. Groups

which find themselves unable to achieve their objectives

through the ballot frequently turn to the courts.” /d., at 429.

The Virginia rule was therefore unconstitutional because its

vagueness and potential for selective enforcement endangered

the ability of people to protect their civil rights through the

courts. See id., at 435-436.

The Button rule extends to nonpolitical litigation. In a

series of cases, this Court upheld the rights of unions to secure

counsel for their members in workplace-related personal injury

and workers’ compensation actions under state or federal law.

See Brotherhood of Railroad Trainmen v. Virginia Bar, 377

U.S. 1, 8 (1964); Mine Workers v. Illinois Bar Assn., 389 U. S.

217, 218, 225 (1967); United Transportation Union v. Michi-

gan Bar, 401 U. S. 576 (1971). Although these decisions went

beyond Button’s premise of giving a voice to the politically

powerless, they still centered on the theme of securing effective

representation for the organization’s members. As this Court

stated in 7rainmen, “Laymen cannot be expected to know how

to protect their rights when dealing with practiced and carefully

counseled adversaries, cf. Gideon v. Wainwright, 372 U.S. 335

[(1963)], and for them to associate together to help one another

to preserve and enforce their rights under federal laws cannot be

condemned as a threat to legal ethics.” 377 U. S., at 7. Mine

10

Workers, relying on Button and Trainmen, also held that the

union could retain counsel to represent its individual members

in private actions. See 389 U. S., at 223-224. Finally, in

United Transportation Union, the Court stated “The common

thread running through our decision in NAACP v. Button,

Trainmen, and United Mine Workers is that collective activity

undertaken to obtain meaningful access to the courts is a

fundamental right within the protection of the First Amend-

ment.” 401 U. S., at 585 (emphasis added); accord, /n re

Primus, 436 U.S. 412, 426 (1978).

These First Amendment cases are not necessary in a prison

context already governed by its own right-to-access jurispru-

dence, or when the prospective client already has counsel. Ifa

prisoner is prevented from presenting claims attacking his or

her sentence or the prison conditions to a court, then the prison

right-of-access cases are violated, and the judiciary can inter-

vene to correct the violation. See Part 1, supra. Therefore the

First Amendment right-of-association cases could only be

relevant in situations where the prisoner does not have a right

to access under Casey or the other prisoner rights cases. While

the applicability of one constitutional guarantee does not

preempt other amendments, see Soldal v. Cook County, 506

U. S. 56, 70 (1992), the delicate balance struck in the prisoner

rights cases should not be disrupted through the intrusion of

these civilian right-to-association cases. When one constitu-

tional provision already provides a standard for reviewing a

particular government action, that standard should not be

subverted by invoking some other part of the Constitution to

create a different standard. Cf. Conn v. Gabbert, 526 U. S. 286,

293 (1999) (the Fourth Amendment, not the Fourteenth,

provides the standard to analyze the reasonableness of a

search).

The right to access provides an excellent example of the

delicate balance in prison law. The civilian First Amendment

cases provide for a relatively broad right, allowing organiza-

tions considerable flexibility to secure for their members

11

effective and affordable representation by counsel for any

litigation involving a member. See Mine Workers, supra, 389

U. S., at 223 (not limited to political claims); United Transpor-

tation Union, supra, 401 U. S., at 585 (effective and affordable

representation). The prisoner right is far more limited. It is not

a right to effective litigation, but merely the ability to present

grievances to the courts. Casey, supra, 518 U. S., at 354. The

grievances covered by this right are similarly limited in

comparison to the First Amendment right.

“In other words, Bounds does not guarantee inmates the

wherewithal to transform themselves into litigating engines

capable of filing everything from shareholder derivative

actions to slip-and-fall claims. The tools it requires to be

provided are those that the inmates need in order to attack

their sentences, directly or collaterally, and in order to

challenge the conditions of their confinement. Impairment

of any other litigating capacity is simply one of the inciden-

tal (and perfectly constitutional) consequences of conviction

and incarceration.” /d., at 355 (emphasis in original).

Letting the right-to-association cases inside the prison walls

disrupts the careful balance struck by this Court in Casey and

its other prisoner access-to-the-courts cases, because the broad

association right and the limited prisoner right are incompatible.

Therefore no other circuit follows this expansive interpretation

of the right to association. See Bass v. Singletary, 143 F. 3d

1442, 1446 (CAI11 1998) (listing cases).

The Button line of cases is particularly inappropriate to

apply to prisons because they are based upon the right to

association.

“Perhaps the most obvious of the First Amendment rights

that are necessarily curtailed by confinement are those

associational rights that the First Amendment protects

outside of prison walls. The concept of incarceration itself

entails a restriction on the freedom of inmates to associate

with those outside of the penal institution. Equally as

12

obvious. the inmate's ‘status as a prisoner’ and the opera-

tional realities of a prison dictate restrictions on the associa-

tional rights among inmates.” Jones v. North Carolina

Prisoners’ Labor Union, Inc., 433 U. S. 119, 125-126

(1977).

The types of organizations which can help their members

get access to the courts in the civilian world can be banned

inside prisons. While labor unions were the beneficiaries of the

Trainmen, Mine Workers, and United Transportation Union

cases, such organizations are prohibited inside prisons. See id..

at 126. n. 4. Prison authorities can prevent the formation “of a

fenetioning organization of the inmates within the prison”

through such means as banning inmate solicitation or group

meetings by prisoners. See id., at 129. Since a prison can

forbid “concerted group activity” by prisoners, see ibid., the

right to association decisions have no place inside the prison.

These cases are simply irrelevant to prison life and do not allow

a court to circumvent the limits placed on the prisoner's right of

access to the courts by this Court in Casey.

Ill. The administration did not violate the

plaintiff's free speech rights.

Although the right to association does not apply to this case,

the First Amendment is still implicated. Preventing the

plaintiff's note from reaching Tracy and punishing him for

sending it does impact his free speech rights. Although the

“[p]rison walls do not form a barrier separating prison inmates

from the Constitution,” Turner v. Safley, 482 U. S. 78, 84

(1987), it is equally true that “[t}he fact of confinement and the

needs of the penal institution impose limitations on constitu-

tional rights. including those derived from the First Amend-

ment, which are implicit in incarceration.” Jones v. North

Carolina Prisoners’ Labor Union, Inc., 433 U.S. 119, 125

(1977). The limits on prisoner rights come from many sources.

“The limitations on the exercise of constitutional rights arise

13

from both the fact of incarceration and from valid penological

objectives—including deterrence of crime, rehabilitation of -

prisoners, and institutional security.” O'Lone v. Estate of

Shabazz, 482 U. S. 342, 348 (1987). A chief purpose of prison

is to deter crime by punishing those convicted of crimes. See

Rhodes v. Chapman, 452 U. S. 337, 352 (1981). Ifa prison is

to punish, then the prisoners’ rights must be curtailed. Since

security is also a paramount concern in prisons, see Jones,

supra, 433 U.S., at 132, great deference is accorded to prison

-~~ officials in security matters. See, e.g., Thornburgh v. Abbott,

490 U. S. 401, 407-408 (1989). Finally, federalism also limits

federal judicial supervision of state prisons in the name of

prisoner rights. See Turner, supra, 482 U. S., at 85. “The

federal courts do not sit to supervise state prisons, the adminis-

tration of which is of acute interest to the States.” Meachum v.

Fano, 427 U.S. 215, 229 (1976).

Respecting federalism and “the ‘inordinately difficult

undertaking’ that is modern prison administration,” Thorn-

burgh, supra, 490 U. S., at 407 (quoting Turner, supra, 482

U. S., at 85), this Court applies a deferential standard to prison

regulations that implicate a prisoner’s First Amendment rights.

The analysis, which was first formally recognized in Turner,

relies on four factors. First, courts look to whether there is “a

‘valid logical connection’ between the prison regulation and the

legitimate government interest put forward to justify it.”

Turner, supra, 482 U. S., at 89 (quoting Block v. Rutherford,

468 U. S. 576, 586 (1984)). Second, the availability of alter-

nate means of exercising the right is evidence of the regula-

tion’s reasonableness. /d., at 90. Third “is the impact [that]

accommodation of the asserted constitutional right will have on

guards and other inmates, and on the allocation of prison

resources generally .... Finally, the absence of ready alterna-

tives is evidence of the reasonableness of the prison regulation.”

Ibid.

The first and most important factor in the Turner test, the

action’s rational relation to legitimate interests, is satisfied in

14

this case. The Court of Appeals found that the regulations

invoked to punish the plaintiff satisfied the first Turner factor.

Murphy v. Shaw, 195 F. 3d 1121, 1126-1127 (CA9 1999). As

to the actual decision to intercept the letter and apply the

regulations to the plaintiff, the Ninth Circuit effectively

dispensed with the first Turner factor, as it “ “balance[d] the

importance of the prisoner’s infringed right against the impor-

tance of the penological interest served by the rule.” /d., at

1127 (quoting Bradley v. Hall, 64 F. 3d 1276, 1280 (CA9

1995)). It found the plaintiff's First Amendment interest in

acting as a law clerk high,’ while the government’s security

interest weak, as other means were available to guard its

interests. /bid. Finding “that the ‘logical nexus’ here between

fhe governmental interest and the application of the rules to law

clerk correspondents is weak,’ ” the Ninth Circuit labeled the

administration’s actions “ ‘an exaggerated response’ ” that

tipped the balance of interests in the plaintiff's favor with

respect to Turner’s first factor. See ibid.

This contradicts the standards set forth by this Court for

reviewing the decisions of prison authorities. While there is a

necessary balancing between the prisoners’ rights and govern-

ment interests, like security, that balance is struck with defer-

ence to the great burdens placed on prison administrators.

“Acknowledging the expertise of these [prison] officials and

that the judiciary is ‘ill-equipped’ to deal with the difficult and

delicate problems of prison management, this Court has

afforded considerable deference to the determinations of prison

administrators who, in the interest of security, regulate the

relations between prisoners and the outside world.” Thorn-

burgh, supra, 490 U. S., at 407-408. That balance is main-

tained by applying each part of the Turner test in its entirety.

Turner’s first part simply addresses whether there is an appro-

priate government interest to justify the regulation and the

3. This premise is incorrect, as there is no First Amendment right to act as

a law clerk. See Part Il, supra.

15

regulation’s logical relationship to that interest. See Turner,

supra, 482 U. S., at 89-90. No balancing is involved. The

balancing of interests is achieved by applying the remaining

three Turner factors, where the various interests and the costs

of their accommodation are weighed. The Ninth Circuit’s

rebalancing effectively equates the interests of the prisoner and

the administration, contrary to the deference that this Court

accords to those who run our prisons.

This deference does not end with the regulation, but applies

equally to the administration’s enforcement of its regulations.

Although this Court applies the Turner standard to general

prison regulations, as opposed to their specific application, the

case for deference is even stronger when addressing the more

specific decisions of prison administrators. Judges should not

micromanage prisons. This Court has taken pains to “reaffirm

our refusal, even where claims are made under the First

Amendment to ‘substitute our judgment on . . . difficult and

sensitive matters of institutional administration,’ Block v.

Rutherford, 468 U. S. 576, 588 (1984), for the determinations

of those charged with the formidable task of running a prison.”

O’Lone, supra, 482 U. S., at 353. If the courts are to be kept

from running the prisons, then the individual decisions of

administrators must be given at least the same deference as for

the regulations that they write.

The government interest, security, is unquestionably

legitimate and neutral. See Thornburgh, supra, 490 U. S.., at

415. The actions in response to the plaintiff's letter are also

rationally related to maintaining this interest. In addition to

protecting prisoner rights, the courts are also used by prisoners

as a means to harass or intimidate prison personnel. Prisoners

“have essentially nothing to lose, including time, by prosecut-

ing such actions [prisoner initiated suits], and-they-may gain

something even if it is nothing but the satisfaction of harassing,

inconveniencing and annoying those who have them in charge.”

Wycoff v. Brewer, 572 F.2d 1260, 1267 (CA8 1978), overruled

on other grounds, Williams v. Delo, 49 F. 3d 442, 446 (CA8

16

1995). Therefore prisoners use the threat of litigation in an

attempt to extort favors from the guards or administrators or to

deter them from enforcing discipline. See id., at 1266; Doumar,

Prisoners’ Civil Rights Suits: A Pompous Delusion, 11 Geo.

Mason U. L. Rev. 1, 18-19 (1988) (quoting Wycoff and noting

it is consistent with the experience of most federal judges). If

guards and administrators are afraid to enforce the rules for fear

of legal retaliation, then discipline is sure to erode, threatening

both guards and prisoners. See Engel & Rothman, The Paradox

~~ of Prison Reform: Rehabilitation, Prisoners’ Rights, and

Violence, 7 Harv. J.L. & Pub. Pol’y 413, 431-433 (1984).

The plaintiff was, in effect, punished for making false

accusations against a guard. See supra, at 2-3. The state

certainly can protect guards from intentionally false accusations

made by prisoners. The fact that the plaintiff chose another

prisoner's litigation as the vehicle for his harassment does not

change the analysis. Since the litigation was an attempt to

punish an inmate for assaulting a guard,‘ it is reasonable to see

the letter as an attempt to harass Officer Galle for reporting the

assault, which threatens to intimidate guards from making such

reports in the future. This does not have to be the most likely

interpretation in order to satisfy the Turner’s reasonableness

standard. Instead, “the logical connection between the regula-

tion and the asserted goal [cannot be] so remote as to render the

policy arbitrary or irrational.” Turner, supra, 482 U. S., at 89-

90 (emphasis added).

The Montana authorities were neither arbitrary nor irratio-

nal when they sought to protect Officer Galle. Attacking the

victim or witness is one way to deter the reporting or prosecu-

tion of criminal acts. Harassing guards also hurts morale. The

privilege of being a law clerk is not a right to harass guards.

4. Tracy pled guilty to assaulting Officer Galle. See Murphy v. Shaw, 195

F. 3d 1121, 1123, n. 1 (CA9 1999).

17

The state also has a substantial interest in controlling the

communications between prisoners. Cf. Turner, supra, 482

U. S., at 92 (correspondence between prisoners in different

institutions “facilitates the development of informal organiza-

tions that threaten” security). When the authorities placed

Tracy in maximum security, they separated him from high

security prisoners such as the plaintiff. This physical isolation

can reasonably include limits on communication, particularly

when it involves an assault on a guard. Indeed, the authorities

did not prevent all law clerks from helping maximum security

inmates like Tracy, but only those in high security, such as the

plaintiff, because the security risk was too great. See Pet. for

Cert. 4. The prison, in accordance with its policy, instead sent

a low security inmate law clerk to help Tracy. Tracy rejected

this offer, insisting upon the plaintiff. See ibid. The prison was

not arbitrarily denying legal aid to Tracy. Instead, it rationally

sought to preserve security, and therefore satisfied the first

Turner factor.

The availability of other means of communication, 7urner’s

second factor, see 482 U. S., at 90, reinforces the conclusion

that the authorities acted reasonably. The plaintiff sought to

expose Officer Galle’s alleged misdeeds and to provide Tracy

with this information to aid his defense against the charge of

assaulting Officer Galle. A better way to expose a guard’s

actual misdeeds is not by a letter to another prisoner, but

through the prison’s grievance mechanism or federal civil rights

litigation, as the plaintiff promised to do in his letter to Tracy.

See Murphy, supra, 195 F. 3d at 1123. These are legitimate

alternate means of communication under Turner. See Jones,

supra, 433 U. S., at 130, n. 6. Since Montana has not fore-

closed either option, the plaintiff could still expose Officer

Galle’s alleged wrongs. Of course, the plaintiff would actually

have to come up with proof before a grievance hearing or a

court.

If the plaintiff had utilized the proper forums to voice his

complaints, Tracy’s defense team could have found any

18

information worth discovering. Prisoner grievances against

Officer Galle would be placed in his personnel file, which

competent counsel could obtain through discovery. Counsel

could then use his or her professional judgment to evaluate

whether the complaints warranted further investigation, and

advise Tracy on its potential impact on his defense. The

existence of these other channels heavily favors the reasonable-

ness of the administration’s actions. “Where ‘other avenues’

remain available for the exercise of the asserted right, see Jones

v. North Carolina Prisoners’ Union, supra, at 131, courts

should be particularly conscious of the ‘measure of judicial

deference owed to corrections officials . . . in gauging the

validity of the regulation.’ ” Turner, supra, 482 U. S., at 90

(quoting Pell v. Procunier, 417 U.S. 817, 827 (1974)).

Turner’s third factor, the impact of accommodating the

plaintiff on the guards and the other prisoners, see ibid., again

supports deference. “In the necessarily closed environment of

the correctional institution, few changes will have no ramifica-

tions on the liberty of others or on the use of the prison’s

limited resources for preserving institutional order.” /bid. The

present case follows this pattern, even though it involves a

single disciplinary action. If one prisoner can get away with

using the prison mails and prison litigation to malign a guard,

others will follow in the plaintiff s footsteps. Besides harassing

the guards, such practices can make them less willing to

confront inmates and enforce discipline, thus endangering

prisoners and guards.

Finally, Turner’s fourth factor, “the absence of ready

alternatives,” see 482 U. S., at 90, also supports reasonableness.

It is important to understand that the cost of accommodation

must truly be minimal in order to be considered as an alterna-

tive. Prisons are not required to employ the least restrictive

means available when limiting a prisoner’s speech. See ibid.

Instead this factor favors the prisoner only “if an inmate

claimant can point to an alternative that fully accommodates the

19

prisoner’s rights at de minimis cost to valid penological

interests....” /d., at 91. )

Such accommodation is not feasible in this case.. The threat

to institutional security was posed by the heart of the letter, the

plaintiff's allegations against Officer Galle and his attempt to

influence Tracy’s litigation through this information. Any

attempt to “shield” Officer Galle from this information, cf.

Murphy, supra, 195 F. 3d at 1128, is therefore impossible

without compromising the full accommodation of the plaintiff s

speech. Nor can Officer Galle be immunized from effects of

the letter if it is not read by him. At best, he will not be allowed

to know that a prisoner is making false, highly prejudicial

allegations about him. More importantly, the prison’s interest

in preventing high and maximum security inmates from

communicating with each other, see supra, at 17, is compro-

mised by creating a legal advice exception to this rule, whether

or not Officer Galle is shielded from the content of the

plaintiff s letter.

Prisons are self-contained universes with their own special

rules. Regulations that would “raise grave First Amendment

concerns outside the prison context,” Thornburgh, supra, 490

U. S., at 407, can be an entirely reasonable accommodation of

the prison’s special needs. The decision to stop the letter and

punish the plaintiff rationally advanced prison security, left him

with alternative means of communication, protected the general

population of prisoners and guards from a ripple effect, and had

no alternative without significant cost to the prison system. It

is not necessary for this Court to agree with what was done in

order to uphold the administration. “It is enough to say that

they have not been conclusively shown to be wrong” that the

letter threatened prison security. See Jones, supra, 433 U. S.,

at 132. The Montana administrators have more than satisfied

this low standard. To hold them to any different standard

would threaten to substitute the judgment of courts for the

judgment of those charged with running the prisons.

CONCLUSION

The decision of the Ninth Circuit Court of Appeals should

be reversed.

November, 2000

Respectfully submitted,

CHARLES |L.. HOBSON

Attorney for Amicus Curiae

Criminal Justice Legal Foundation