Petitioners Brief — Beard v. Banks

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No. 04-1739

IN THE

Supreme Court of the United States -

JEFFREY BEARD,

Petitioner

Vv.

RONALD BANKS,

Respondent

be

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE THIRD CIRCUIT

BRIEF FOR PETITIONER

THOMAS W. CORBETT, JR.

Attorney General

Commonwealth of Pennsylvania

Louis J. ROVELLI

Executive Deputy Attorney General

Counsel of Record

CALVIN R. KOONS

KEMAL A. MERICLI

Senior Deputy Attorneys General

JOHN G. KNorgR, Ill

Chief Deputy Attorney General

Office of Attorney General

15th Floor, Strawberry Square

Harrisburg, PA 17120

(717) 787-1100

QUESTION PRESENTED

Does a prison policy that denies newspapers,

magazines, and photographs to the most difficult

inmates in the prison system in an effort to promote

security and good behavior violate the First Amendment

under the standards of Turner v. Safley, 482 U.S. 78

(1984) and Overton v. Bazzetta, 539 U.S. 126 (2003)?

TABLE OF CONTENTS

Page

I i

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OPINIONS BELOW.......... a ak 1

STATEMENT OF JURISDICTION ..........ccccccceceesseeeeeceees 1

CONSTITUTIONAL AND STATUTORY PROVISIONS

URGE Rita Week 1

STATEMENT OF THE CASE .............ccccccseceeeeseeeeeeeeees 1

SUMMARY OF ARGUMENT. ..............ccccccecscesecessseseeees 12

(AEGIS nw Aeon near RTE Mies RAO PTO 15

I. The Court Of Appeals Subjected Pennsylvania’s

Policies To An Exacting and Hostile Scrutiny

Which Is Contrary To This Court’s Decisions........ 15

A. In assessing the _ constitutionality of

restrictions upon prisoners, the Court has

consistently required deference to _ the

judgment of prison officials. .................cceeeeeeees 15

B. The Court of Appeals failed to adhere to this

IIIT: <oticinsnsitihnctvenisninnctinvsiunmmnentbabebegbiabisiieniiennn 21

Il. The Restrictions Which Pennsylvania Imposes

On The Most Recalcitrant Prisoners In Its System

Are Reasonably Related To The Legitimate

A. The restrictions on access to periodicals and

photographs are rationally connected to

improving the behavior of the most difficult

li

and dangerous prisoners, and to enhancing

ST seniccceteceqeevsinsinesenteciniennnetin 24

B. Prisoners subject to these restrictions retain

ample alternative means of receiving

information and communications from the

ey CEs suncinsctntscvemnennntsssienietimeemnaninin 29

C. The right asserted cannot be accommodated

without imposing substantial costs................. 30

EE ne Pee La ENE na EN ET 33

li

TABLE OF AUTHORITIES

Page

Cases

Bazzetta v. McGinnis,

- Fe Fie fe S ee 22

Bell v. Wolfish,

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Block v. Rutherford, |

SE Es SU HEU cevcececccnscocccnsncesnidecninsiniennsnnanaion 19

Jones v. North Carolina Prisoners’ Labor Union,

GE SEs BS CS FP wstesinavineeicecensenatenninstieendilnaann 21

Kleindienst v. Mandel,

GR Ss FEE UT OED cc sccctrsevscnceceteeceesessesaunnienal 30

Lewis v. Casey,

ee Bee 12, 18, 22

O’Lone v. Estate of Shabazz,

~ FS GB. DAS (EDGE) ccccorcecceccscesvesecionnssescocssssness passim

Overton v. Bazzetta,

Bee IUD cncccchvncccessecssuctninsntenbnenintens passim

Pell v. Procunier,

OOF UK. er COO cxecisecncecetssiscctentenentisioniunian 21

Procunier v. Martinez,

GOB BB. FED CGO ocececccsascsccqsicsesossssctnnstensnsnes 16, 18

Shabazz v. O’Lone,

FO Fe GO Cee cc ccesnccccccessccnsccsesincessicicnnsennetete 22

Shaw v. Murphy, ;

ee Sci SEP EOD cncccccccssvscsecussesecenieloneibeds 18, 21

Thornburgh v. Abbott,

GD UE. GIRS CED ovccccctncsivcccneccscsveeceisncenionant passim

Turner v. Safley,

GEE SED. FS TRE cccccctnsicexicccecteccvasinsnetneaas passim

Statutes

BD UGG... BEBO occccacesscteenssvtescseevsisenseciteimanuana l

AB UBS. B BGT cecerescctoceceecsccseccnuuscssivssbeassennnaeeaaenl 7

iv

Constitutional Provisions

RG MINED, © cccnnnsenecussessenssgecsessscsessscsnnt passim

Other Authorities

L,I cs crrnenenenenneuebensqnecosseses 7

PA. DEPT. OF CORRECTIONS, Policy Statement DC-

ADM 801, “Inmate Discipline,” available at

http: //www.cor.state.pa.us/standards/lib/standa

rds/DC-ADM_801_Inmate_Discipline.pdf (visited

athe rrrinrrinnarnapunigctoneoupepenuseess 2,3

Pa. DEPT. OF CORRECTIONS, Policy Statement DC-

ADM 812, “Inmate Visiting Privileges,” available at

http: / /www.cor.state.pa.us/standards/lib/standa

rds/DC-ADM_812_Inmate_Visiting_ Privileges. pdf

eae 3

PA. DEPT. OF CORRECTIONS, Policy Statement DC-

ADM 815, “Personal Property, Basic State Issued

Items and Commissary,” available at

http: / /www.cor.state.pa.us/standards/lib/standa

rds/DC-ADM_815_Personal_Property-

_Basic_State_Issued_Items-_and_Commissary.pdf

I is cemeemenmnnnnecns 3

The decision of the Court of Appeals is reported at

399 F.3d at 134 and is reprinted in the appendix to the

Petition for Certiorari (Pet. App.) at la. The decision of

the District Court is not reported, but is reprinted at

Pet. App. 32a.

STATEMENT OF JURISDICTION

The judgment of the Court of Appeals was entered

on February 25, 2005. A petition for rehearing was

timely filed and was denied on March 22, 2005 by a

vote of 6-5. Pet. App. 30a-31la. The petition for certiorari

was filed within 90 days thereafter, on June 20, 2005.

The Court has jurisdiction pursuant to 28 U.S.C.

§1254(1).

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED

The First Amendment to the Constitution provides

that “Congress shall make no law .. . abridging the

freedom of speech . . .” U.S. CONST., Amend. I.

STATEMENT OF THE CASE

This is a class action by a group of state prisoners

challenging the conditions of confinement in the Long

Term Segregation Unit operated by Pennsylvania’s

Department of Corrections. The Long Term Segregation

Unit (LTSU) is a small unit, specifically designed to

house those prisoners who are the “worst of the worst,”

that is, those prisoners with the very worst behavioral

histories in the prison system. The incorrigible

prisoners assigned to the LTSU lose a variety of

privileges, which they may earn back by their behavior;

among the privileges lost is access to non-religious

l

newspapers, magazines and photographs. The issue is

whether this restriction violates these prisoners’ First

Amendment rights, under the standard articulated by

the Court in Tumer v. Safely, 482 U.S. 78 (1984), and

Overton v. Bagzetta, 539 U.S. 126 (2003).

1. a. The LTSU is the most severe of a series of

disciplinary regimes with which the Department of

Corrections responds to prisoner misconduct. Lesser

infractions, such as smoking in a prohibited area or

failing to report to work, may be dealt with by the loss

of specific privileges - television, commissary, visitation,

and so forth - while the prisoner himself remains in the

general prison population.' Serious or repeated

misconduct, however, such as murder, assault, or

possession of drugs, may result in placement in one of

several special, and increasingly severe, housing units.

Thus, each prison has a Restricted Housing Unit

(RHU), to which prisoners may be assigned for up to

ninety days for each infraction. Among other

restrictions, prisoners in an RHU spend 23 hours a day

in their cell. They are not permitted tobacco, radio or

television; are permitted only one (non-contact) visit per

month and only from their immediate family; and are

allowed to purchase only toilet articles from the prison

commussary.? J.A. 102. They may, however, have one

newspaper and ten photographs in their cell.

! See PA. DEPT. OF CORRECTIONS, Policy Statement DC-

ADM 801, “Inmate Discipline,” §§ VI.D, VI.J, available at

http: / /www.cor.state.pa.us/standards/lib/standards/DC-

ADM_801_Inmate_Discipline. pdf (visited Dec. 23, 2005).

2 Prisoners who are in the general population are

permitted to have tobacco, and to have radios and televisions

in their cells. They may have at least one contact visit per

week with anyone on their approved visitors list; and may

spend up to $45 per week to buy a wide variety of snacks,

toiletries and other personal items at the commissary. See

(continued ...}

2

The Department of Corrections has also established

two Special Management Units (SMU’s) to house

prisoners who are “continually disruptive, violent,

dangerous, or a threat to the orderly operation of their

assigned facility.” J.A. 85. The SMU’s are multi-phased

programs, structured to “to change or modify behaviors

to a more acceptable level.” J.A. 136. At the beginning,

most restrictive level, prisoners in an SMU are subject

to the same restrictions they would face in an RHU. In

addition, they face more severe restrictions on their

commissary privileges - they are permitted to buy only

writing materials - and they lose their magazine

privileges entirely. They are still, however, permitted to

have one newspaper and ten photographs, J.A. 102. By.

modifying their behavior, they can progress from one

SMU level to another, through five levels, regaining

privileges as they progress. J.A. 86-88.

b. The last stop on the disciplinary continuum is the

LTSU. Prisoners eligible for the LTSU include those who

have an escape history, who have a predilection for

PA. DEPT. OF CORRECTIONS, Policy Statement DC-ADM 812,

“Inmate Visiting Privileges,” §VI.A, available at

http: / /www.cor.state. pa.us/standards/lib/standards/DC-

ADM_812_Inmate_Visiting_Privileges.pdf (visited Dec. 23,

2005); Pa. DEPT. OF CORRECTIONS, Policy Statement DC-ADM

815, “Personal Property, Basic State Issued Items and

Commissary,” Approved Master Commissary List, available at

http: / /www.cor.state.pa.us/standards/lib/standards/DC-

ADM_815_Personal_Property-_Basic_State_Issued_Items-

_and_Commissary.pdf (visited Dec. 23, 2005).

3 The record is not entirely clear on what, if any,

magazines prisoners in the RHU may have. One witness

testified that they are not permitted to have any. J.A. 162.

But see DC-ADM 801, “Inmate Discipline,” supra, § VI.M

(prisoner in disciplinary custody may have up to ten

magazines).

assaultive behavior with an intent to cause death or

serious injury, or who otherwise present a serious

threat to prison security: prisoners, for example, who .

have engaged in or instigated riots, who are members of

prison gangs, or who have a history of sexual predation.

J.A. 85-86. Simply put, the LTSU was designed to

house the most recalcitrant and incorrigible prisoners

in Pennsylvania’s prisons. As a practical matter, most

of the prisoners assigned there have “flunked out” of an

SMU, and thus have few privileges left to lose. J.A. 136-

137.

The LTSU, like the SMU’s, is a multi-phase program

aimed primarily at behavior modification. J.A. 124-125,

189. Prisoners begin at Level 2,4 the most restrictive

level, where they face the same restrictions as in the

most restrictive level of an SMU. In addition, they lose

all commissary privileges, and are not permitted to have

any newspapers or photographs. They are, however,

allowed to have religious reading material in their cell,

and they may order recreational reading from the

prison library. They are permitted legal and personal

correspondence, which may include newspaper or

magazine articles having some personal connection to

the prisoner. J.A. 102, 154-155. They are allowed

monthly visits with family members, and may receive

unlimited visits from legal counsel. J.A. 98-99. They

receive daily visits from a Facility Chaplain. J.A. 100.

And they may visit, one at a time, the mini-law library

maintained in the LTSU.5 J.A. 157.

* The text describes the LTSU program as it existed at the

time of the district court proceedings. Currently, the LTSU

comprises four levels rather than two, but there has been no

material change in the restrictions imposed at the beginning,

most restrictive level.

> For security reasons, the mini-law library seats only one

prisoner at a time. See J.A. 191 (only one LTSU prisoner at a

time may leave his cell).

The restrictions imposed upon prisoners in the

LTSU, including the restrictions on newspapers,

magazines and photographs, are essentially a program

of behavior modification, aimed at the behaviors which

have the most potential to undermine individual and

institutional security. By treating access to newspapers

and magazines as a privilege to be earned (or retained),

the LTSU program provides an incentive for good

behavior and a deterrent to bad behavior. The

recalcitrant prisoners who are already in the LTSU are

encouraged to change their behavior and begin

progressing toward reintegration into the general prison

population and, if their sentences permit, into civil

society; while prisoners who are not in the LTSU are

encour -to continue their good behavior so as not to

lose their privileges. The LTSU program thus

simultaneously serves the interrelated penological goals

of rehabilitation and security. J.A. 135-137, 188-190.

The restrictions on newspapers and magazines also

further prison security within the LTSU even apart from

their role in modifying behavior. First, the less property

these dangerous prisoners have in their cells, the more

difficult it is for them to hide contraband among their

possessions. Second, both newspapers and magazines

can be fashioned into crude tools and weapons, and

provide material for starting cell fires. J.A. 189.

Prisoners remain at Level 2 for at least ninety days.

J.A. 32. At that time, and every thirty days thereafter,

their progress is reviewed by a committee who, applying

prescribed criteria, can recommend promotion to the

less restrictive conditions of Level 1. J.A. 40, 88-89. At

Level 1, prisoners are permitted one newspaper and five

magazines.® Prisoners may be released from the LTSU

altogether at any time, to an SMU, an RHU or into the

general prison population; and they are considered for

such release at least annually. J.A. 41. But if a

prisoner's behavior fails to improve, he may be held at

the LTSU indefinitely.

The LTSU was established in April of 2000, and was

located within the State Correctional Institution at

Pittsburgh.” J.A. 123. It is a small unit, capable of

housing a maximum of forty-eight prisoners but

ordinarily housing no more than forty, or about one-

tenth of one percent of the total prison population. J.A.

127, 136, 188. In August of 2002, for example, it

housed thirty-nine prisoners, of whom thirty-six were in

Level 2 and three were in Level 1, although typically the

proportion in Level 1 is somewhat higher. J.A. 130-131.

Another ten prisoners had “graduated” out of the LTSU

altogether. J.A. 138.

The LTSU holds “extremely disruptive, violent and

problematic inmates,” and is therefore an area of

“extremely high levels of security.” J.A. 80-81 Prisoners

ordinarily spend 23 hours a day in their cells; and for a

prisoner to leave his cell — for example, to visit the mini

law library - requires an escort of two corrections

officers. Only one LTSU prisoner at a time may leave his

cell, wearing handcuffs and leg irons and tethered to

one of his two escorts. J.A. 191. p

6 Level 1 prisoners are also permitted to spend $5 per

week on commissary items, and may receive two visits per

month instead of one. J.A. 102. -

7 The LTSU is now located within the State Correctional

Institution at Fayette, about fifty miles south of Pittsburgh,

near Brownsville in Fayette County, and thus still within the

Western District of Pennsylvania. See J.A. 3 (certifying class

of present and future LTSU prisoners “within the Western

District of Pennsylvania”).

2. Respondent Ronald Banks brought this action

pursuant to 42 U.S.C. § 1983 against the petitioner, the

Secretary of the Pennsylvania Department of

Corrections, challenging the constitutionality of the

policy denying entry-level inmates of the LTSU access to

newspapers, magazines and photographs, and seeking

declaratory and injunctive relief. The District Court

certified a class comprising all prisoners within the

Western District of Pennsylvania who are or will be

confined in Level 2 of the LTSU.® J.A. 3. After the

completion of discovery, the parties filed cross motions

for summary judgment. Pursuant to the District Cou> 's

local rules, the petitioner filed, along with his motion, a

statement of undisputed material facts. J.A. 25.

Respondent did not respond to this statement or file a

similar statement of his own, and the facts stated by

the petitioner were therefore deemed admitted under

the local rules.?

The District Court granted petitioner’s motion for

summary judgment and denied that of the

respondent.!° The District Court, applying the four-part

analysis of Turner v. Safley, 482 U.S. 78 (1984), first

held that the challenged policy is rationally related to

8 Banks himself left the LTSU in July of 2005, and is

currently housed in a Restricted Housing Unit at another

prison.

® The Local Rules of the Western District of Pennsylvania

require a party opposing a motion for summary judgment to

file a responsive statement admitting or denying each fact,

and setting forth the basis for each denial. All facts presented

by the moving party not controverted in this way “will, for the

purpose of deciding the motion for summary judgment, be

deemed admitted....” L.R. 56.1(C)(1), (E).

10 The District Court adopted as his own the report and

recommendation of the Magistrate Judge to whom the

motions had been referred. Pet. App. 32a.

the legitimate penological goals of rehabilitation and

prison security. Pet. App. 37a-4la. The _ policy

encourages compliance with prison rules by especially

obdurate intractable prisoners, by using access to

newspapers, magazines and personal photographs as

an incentive for their good behavior. Pet. App. 39a. By

depriving especially dangerous and difficult prisoners of

materials they could use to fashion crude weapons or to

start cell fires, the policy also rationally advances

prison security. Pet. App. 40a-4la. The District Court

thought it rational to conclude, as a matter of security,

that inmates would be more likely to use magazines

and newspapers for illicit purposes than legal papers

and religious texts they were permitted to have in their

cells. Pet. App. 40a. The District Court did not think the

rationality of the policy was undermined by the fact

that recalcitrant and dangerous prisoners in other

segregation units were not completely deprived of

periodicals. LTSU inmates had not progressed in other,

less restrictive programs, and the District Court

believed it “not onl; rational to impose more restrictive

conditions in an effort to encourage compliant behavior

but imperative to the success of the LTSU.” Pet. App.

40a.

The District Court also held that inmates have

alternative means of exercising their rights: first, by

modifying their behavior so as to be assigned a custody

status which entitles them to newspapers, magazines,

and photographs, and second, by visitation and

correspondence. Pet. App. 4la-42a. And he concluded

that accommodating their interest was not reasonably

possible: “{H)javing already found ample evidence to

support a finding that access to magazines, newspaper,

and photographs presents a threat to the security of

both guards and other prisoners in the LTSU, it

appears that accommodating plaintiffs’ asserted right

would have the very ‘ripple effect’ referred to in Turner

...” Pet. App. 43a. Finally, the District Court rejected

the idea that there were ‘ready alternatives” to the

8

challenged policy, such as providing inmates with

reading periods. This suggestion, the District Court

said, would not alleviate the security concerns

occasioned by newspapers and magazines and “would

not be without sacrifice to the prison’s behavioral

modification goals.” Pet. App. 45a.

3. A divided panel of the Court of Appeals reversed

the District Court’s judgment. While the Court of

Appeals likewise applied the four-part Turner standard,

the Court of Appeals did not mention the Court’s more

- recent decision in Overton v. Bazzetta, 539 U.S. 126

(2003).!! Moreover, in applying Tumer, the panel

majority disagreed with the District Const s conclusions

at virtually every turn. '

a. The panel majority acknowledged that “the

deterrence of future iniractions of prison rules can be

an appropriate justification for temporarily restricting

the nghts of inmates,” but noted that “the [petitioner]

has offered no evidence that the rule achieves or could

achieve its stated rehabilitative purpose.” Pet. App. 12a,

and thought it “unclear how the policy would achieve

the deterrence that it seeks”, Pet. App. 1 la-17a, in view

of the indefinite period of confinement in the LTSU and

the discretionary nature of decisions regarding custody

status. The majority also discounted the prison officials’

security concerns because “there [was] no evidence in

the record of the misuse of periodicals or photographs

in any of the ways described by the DOC,” Pet. App.

14a.!2 The majority also thought that, because LTSU

1! The Court decided Overton in June of 2003, six months

after the District Court’s decision in this case, and more than

a year before the decision of the Court of Appeals.

‘2 For example, the majority acknowledged the evidence

that cell fires had in fact been started in the LTSU, and that

paper products had been used to start them, Pet. App. 15a n.

11, but criticized the lack of evidence that “particular fires” _

(continued ...)

9

prisoners could commit similar misbehaviors with other

materials, Pet.’ App. 1l6a-17a, the ban on papers,

magazines and photographs “may be too attenuated to

be reasonable.” Pet. App. 17a.

The majority also rejected the District Court’s

conclusion that inmates have alternative means of

exercising their rights. The majority defined the nght in

question as a “First Amendment right of access to a

reasonable amount of newspapers, magazines and

photographs,” Pet. App. 20a, and found that the policy’s

“blanket prohibition” left no way for prisoners to

exercise that “nght.” Pet. App. 19a-20a. Thus, the

“blanket prohibition” on photographs left prisoners with

“no way to look at images of loved ones,” and the

availability of actual visits from those loved ones was

not, in the majority’s view, a satisfactory alternative.

Pet. App. 19a. The majority rejected the possibility that

LTSU prisoners could regain their privileges by simply

modifying their behavior because “segregation in Level 2

is not linked to a particular infraction and is of

potentially unlimited duration,” Pet. App. 19a-20a, and

because. there were no affidavits in the record from

those who made decisions regarding custody level or

documentation of the review process. Pet. App. 20a.

Turning to the last two elements of the Tumer

standard, the panel majority thought that the prison

could accommodate the prisoners’ interests by

establishing “reading periods” during which corrections

officers could deliver, and then retrieve, newspapers

and magazines, or by escorting prisoners individually to

had been started with these specific materials, Pet. App. 14a-

lSa, or that LTSU prisoners had a specific history of

misusing them, Pet. App. 15a, and the lack of specific

testimony “as to the effect such a ban has had on the

frequency of fires, be it in the LTSU or elsewhere.” Pet. App.

15a.

10

a secure mini library “to read a periodical of their

choosing.” Pet. App. 22a-24a. The majority “failfed] to

see” Pet. App. 23a, 24a, how these alternatives could be

thought either burdensome or dangerous. Finally, the

majority rejected the idea that extending these

privileges to LTSU prisoners would impose “more than a

de minimis cost” to the program’s goal of behavior

modification, because prison officials could still seek

that goal by granting and withholding other privileges.

Pet. App. 25a.

b. Judge Alito dissented because he thought the

panel majority had misapplied Tumer, “a standard that

instructs courts to extend considerable deference to

judgments of correctional officials.” Pet. App. 26a. In

Judge Alito’s view, each of the four Tumer factors

counseled in favor of upholding the challenged policy.

Judge Alito thought that it was rational for

corrections officials to think that inmates who are not

in Level 2 will be deterred from engaging in serious

misconduct because they do not want to be transferred

to that unit and thus be subjected to the restrictions

that accompany that assignment.” Pet. App. 26a. “It is

also ‘rational’,” Judge Alito continued, “for corrections

officials to think that inmates who are in Level 2 will be

deterred from engaging in serious misconduct while in

that unit because they wish to be transferred out and

thus to escape such restrictions.” Pet. App. 26a-27a. He

also thought that the majority, in demanding empirical

evidence to support the policy, had misconstrued the

nature of the first Turner factor:

This factor requires us to determine whether there is

a ‘logical connection between the regulation and the

asserted goal,’ see 482 U.S. at 89 (emphasis added),

not whether there is empirical evidence that the

regulation in fact serves that goal. The entire system

of prison discipline might be imperiled if each

sanction for prison misconduct could not be

11

sustained without empirical evidence that the

sanction provided some incremental deterrent.

Pet. App. 27a-28a.

Judge Alito thought that the second Turner factor -

alternative means of exercising the right - was the

“most troubling,” but still not sufficient to “support the

majority’s conclusion that the regulations are facially

invalid.” Pet. App. 28a. Judge Alito found it significant

that inmates in Level 2 could still read books and

receive letters, and had the option of modifying their

behavior so as to be promoted to Level 1. Ibid.

Finally, as to the availability. and impact of

accommodation, Judge Alito thought that the

modifications to prison policies proposed by the

majority would be, at best, “time consuming,” Pet. App.

29a, and at worst would impose a “significant burden”

in the handling of the “most violent and disruptive”

prisoners. Ibid.

4. The full Court of Appeals denied petitioner’s

request for en banc rehearing, by a vote of 6-5.

SUMMARY OF ARGUMENT

Crystallizing the principle that courts must accord

substantial deference to the judgment of prison

administrators, the Court in Turner v. Safely, 482 U.S.

78 (1987), articulated the now-familiar rule that,

“[w]hen a prison regulation impinges on inmates’

constitutional rights, the regulation is valid if it is

reasonably related to legitimate penological interests.”

Id. at 89. This principle of deference, the Court has

said, applies with special force when applied to policies

which pertain to inmates with special disciplinary and

security problems. Lewis v. Casey, 518 U.S. 343 (1996).

12

The respondent in this case represents a prisoner

class - LTSU Level 2 inmates - whose histories of violent

and disruptive prison behavior necessitate their

confinement at the highest level of security. They

challenge, on First Amendment grounds, a policy that

denies Level 2 inmates access to non-religious

periodicals and photographs. That policy, however, is

clearly constitutional; applying the four factors that

Turner recites as relevant to the “reasonable

relationship” inquiry establishes that the policy is

reasonably related to the legitimate penological

objectives of prisoner rehabilitation and prison security.

1. Aimed primarily at behavior modification, the

policy is logically connected to the interrelated goals of

rehabilitation and security; it encourages Level 2

inmates to improve their behavior and _. begin

progressing toward reintegration into the general prison

population, while discouraging other inmates from

behavior that could cause their assignment to Level 2.

The policy also reduces the opportunity for further

misconduct by Level 2 inmates.

2. Level 2 inmates retain ample alternative means of

receiving information and communications from the

outside world: they are allowed monthly visits from

family members and unlimited visits from counsel; they

are visited daily by a Facility Chaplain; they may order

books from the prison library; and they may correspond

with family and friends. They can also improve their

behavior and regain access to periodicals upon transfer

to Level 1 and access to photographs upon transfer

from the LTSU.

3. Accommodating the asserted mght would

compromise the purpose of the LTSU. Level 2 inmates

are the highest-security prisoners in the Pennsylvania

prison system, at the apex of a progressive discipline

regime where few privileges remain. Accommodation

would diminish the severity of Level 2, reducing its

13

value both as a deterrent to serious misconduct by

other inmates and as a means of reforming Level 2

inmates so they can rejoin the general population as

less a threat. Accommodation would also increase the

risk to LTSU guards and other prison staff who must

enter the unit.

4. Accommodations suggested by respondent, such

as aé_ specified reading period, could not be

accomplished without substantial costs, in the form of

increased demands on personnel ‘resources and

increased security risks.

In the closely similar case of Overton v. Bazzetta,

539 U.S. 126 (2003), the Court upheld, against a First

Amendment challenge, a prison policy that withdrew

visitation privileges for at least two-years from prisoners

with two or more substance abuse violations. Applying

Turner, the Court concluded that “withdrawing

visitation privileges is a proper and even necessary

management technique to induce compliance with the

rules of inmate behavior, especially for high-security

prisoners who have few other privileges to lose.” Id. at

134. The Court found it a sufficient alternative that

prisoners could still communicate with persons outside

the prison by letter and phone, and rejected suggested

accommodations, such as shortened visitation periods,

as not “goling) so far toward accommodating the

asserted right with so little cost to penological goals

that they meet Turner’s high standard.” /d. at 136.

The Court of Appeals, in a divided-panel decision,

grossly misapplied the Tumer factors, disregarded the

principle of deference on which they rest, completely

ignored Overton, and assigned no _ significance

whatsoever to the special disciplinary, high-security

context from which this case arises. Contrary to the

Court’s direction in Turner, Overton and numerous

other decisions, the panel majority subjected the

challenged policy to an exacting and hostile scrutiny,

14

imposing on prison officials, rather than the prisoners,

the burden of proving that the policy is valid. Its

decision should be reversed.

I. The Court Of Appeals Subjected Pennsylvania’s

Policies To An Exacting and Hostile Scrutiny

Which Is Contrary To This Court’s Decisions.

A. In assessing the constitutionality of

restrictions upon prisoners, the Court has

consistently required deference to the

judgment of prison officials.

The Court has long recognized that “[pjrison walls

do not form a barrier separating prison inmates from

the protections of the Constitution.” Turner v. Safley,

482 U.S. 78, 84 (1987). Prisoners “clearly retain” the

protections of the Constitution, including those afforded

by the First Amendment. O’Lone v. Estate of Shabazz,

482 U.S. 342, 348 (1987). Nevertheless, those nghts are

not unlimited: “Many of the liberties and privileges

enjoyed by other citizens must be surrendered by the

prisoner. An inmate does not retain rights inconsistent

with proper incarceration.” Overton v. Bazzetta, 539

U.S. 126, 131 (2003). Prisoners’ constitutional nghts

are limited both by “the fact of incarceration” and by

“valid penological objectives — including deterrence of

crime, rehabilitation of prisoners and institutional

security.” O’Lone, 482 U.S. at 348.

The Court has likewise long recognized that prison

officials face “Herculean obstacles” to the discharge of

their responsibilities, which require “expertise,

comprehensive planning, and the commitment of

resources, all of which are peculiarly within the

province of the legislative and executive branches of

government.” Procunier v. Martinez, 416 U.S. 396, 404-

15

405 (1974). That “courts are ill equipped to deal with

the increasingly urgent problems of prison

administration and reform,” the Court has said,

“reflects no more than a healthy sense of reality.” Jd, at

405.

Accordingly, the Court has “often said” that in

balancing these factors, “the evaluation of penological

objectives is committed to the considered judgment of

prison administrators, ‘who are actually charged with

and trained in the running of the ... institution.”

O’Lone, 482 U.S. at 349, quoting Bell v. Wolfish, 441

U.S. 520, 562 (1979). The Court has accorded prison

officials “wide ranging deference in the adoption and

execution of policies and practices that in their

judgment are needed to preserve internal order and

discipline and to maintain institutional security.” Bell v.

Wolfish, 441 U.S. at 547 (citations omitted). Absent

“substantial evidence in the record to indicate that the

officials have exaggerated their response to these

considerations,” the Court has said, “courts should

ordinarily defer to their expert judgment in such

matters.”-Id., at 548 (citation omitted).

In Turner v. Safley, the Court, crystallizing these

principles, articulated a standard of review “that is

responsive both to the ‘policy of judicial restraint

regarding prisoner complaints and |to] the need to

protect constitutional rights.” /d. at 85, quoting

Procunier v. Martinez, 416 U.S. at 406. Recognizing that

subjecting the daily decisions of prison officials to a

strict scrutiny analysis “would seriously hamper their

ability to anticipate security problems” and to “adopt

innovative solutions to the intractable problems of

prison administration,” Turner, 482 U.S. at 89, the

Court instead stated a more flexible rule: “[wjhen a

prison regulation impinges on inmates’ constitutional

rights, the regulation is valid if it is reasonably related

to legitimate penological interests.” Jbid. This less

restrictive standard was necessary, the Court

16

emphasized, if “prison administrators . . . and not the

courts [are] to make the difficult judgments concerning

institutional operations.” Jbid. (internal quotations and

citations omitted). ‘

To determine whether a prison regulation is

“reasonably related to a legitimate penological interest,”

Tumer and its progeny have explained that four factors

are relevant. First, “there must be a ‘Valid, rational

connection’ between the prison regulation and the

legitimate governmental interest put forward to justify

it.” Id. at 89 (internal quotations and citations omitted).

In this regard, “[wje must accord substantial deference

to the professional judgment of prison administrators,

who bear a significant responsibility for defining the

legitimate goals of a corrections system and for

determining the most appropriate means to accomplish

them.” Overton, 539 U.S. at 13. Thus, prison officials

need not produce evidentiary proof that a challenged

regulation will or has been actually effective in

accomplishing those goals; all that is required is “a

logical connection,” Turner, 482 U.S. at 94 n.*

(emphasis in original), between the two.

Second, a court should determine “whether there

are alternative means of exercising the right that

remain open to prison inmates.” Jd. at 90. The absence

of such alternatives does not necessarily condemn a

regulation, but is “properly considered a factor in the

reasonableness analysis.” O’Lone, 482 U.S. at 349 n. 2;

Overton, 539 U.S. at 135. In any event, the “right” in

question must be viewed “sensibly and expansively,”

not narrowly. Thornburgh v. Abbott, 490 U.S. 401, 417

(1989). See, e.g., Turner, 482 U.S. at 92 (ban on inmate-

to-inmate correspondence did not deprive prisoners of

“all means of expression”); O’Lone, 482 U.S. at 352

(regulation preventing attendance at particular religious

ceremony did not deprive prisoners of “all forms of

religious exercise”).

17

The third factor is “the impact accommodation of the

asserted constitutional right will have on guards and

other inmates, and on the allocation of prison resources

generally”; in the prison environment, “few changes will

have no ramifications on the liberty of others or on the

use of the prison’s limited resources for preserving

institutional order.” Turner, 482 U.S. at 90. Finally, “the

absence of ready alternatives is evidence of the

reasonableness of a prison regulation.” Jbid. This, the

Court emphasized in Tumer, is not a “least restrictive

alternative” test, ibid; indeed, the Court specifically

rejected any regime in which every administrative

judgment “would be subject to the possibility that some

court somewhere would conclude that it had a less

restrictive way of solving the problem at hand.” Turner, |

482 U.S. at 89. But an “obvious, easy alternative” that

“accommodates the prisoner’s rights at de minimis cost

to valid penological interests” may be evidence that the

reguiation is an “exaggerated response to prison

concerns.” Jd., at 90-91.

Since the Turner decision was announced, the Court

has termed it “a unitary, deferential standard for

evaluating prisoners’ constitutional claims,” Shaw uv.

Murphy, 532 U.S. 223, 121 S.Ct. 1475, 1479 (2001),

and, although the standard is “not toothless,”

Thornburgh v. Abbott, 490 U.S. at 414, the Court has

consistently made clear that it commands substantial

deference to the judgment of prison administrators. In

fact, the Court has said that Tumers principle of

deference has “special force” when applied to policies,

as here, which pertain to inmates with special

disciplinary and security problems. Lewis v. Casey, 518

U.S. 343, 361 (1996). See Procunier v. Martinez, 416

U.S. at 413 n. 12 (striking down regulations censoring

prison mail, but not reaching validity of “temporary

prohibition of correspondence ... as a disciplinary

sanction”).

18

In the twenty years since it was decided, the Court

has applied Turmer to sustain a number of prison

reguiations against challenges based on the First

Amendment. In Tumer itself, of course, the Court held

that a regulation restricting correspondence between

inmates was constitutional,'3 and in Tumers

companion case of O’Lone v. Shabazz, the Court upheld

regulations limiting the ability of Muslim inmates to

attend Friday religious services, “reaffirm[ing] our

refusal, even where claims are made under the First

Amendment, to ‘substitute our judgment on .

difficult and _ sensitive matt rs of institutional

_ administration.” 482 U.S. at 353, quoting Block v.

Rutherford, 468 U.S. 576, 588 (1984).

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

Court considered and upheld regulations that

prevented inmates from receiving publications found by

a prison warden to be detrimental to prison security.

The Court concluded that the regulation was logically

related to security concerns, and that alternative means

of exercise were available because the regulation

permitted a broad range of other publications to be sent

and received. The Court went on to say that the right in

question could not be accommodated without

“significantly less liberty and safety for everyone else,”

since the regulation proscribed only publications which

were a threat to the order and security of the prison. /d.

at 418. Finally, the Court rejected proposed alternatives

to the rule - such as tearing out the rejected portions

and admitting the rest of the publication - refusing to

second-guess the prison officials’ view that this

procedure would cause “more discontent than the

current practice.” Id. at 419. The Court said, “{w]hen

prison officials are able to demonstrate that they have

'3 The Court also struck down a regulation that restricted

inmates from marrying other inmates or civilians without

permission of the prison superintendent.

19

rejected a less festrictive alternative because of

reasonably founded fears that it will lead to greater

harm, they succeed in demonstrating that the

alternative they in fact selected was not an ‘exaggerated

response’ under Turner.” Id.

Most recently, in Overton v. Bazzetta, 539 U.S. 126

(2003), the Court considered the constitutionality of

prison regulations that imposed various restrictions on

inmates’ visitation privileges, one of which banned

visits from family and friends, for at least two years, for

prisoners who had committed certain disciplinary

infractions.'* The District Court and the Court of

Appeals had held that the regulation impermissibly

infringed the inmates’ First Amendment right of

association, but the Court disagreed. It emphasized

again that it was proper to “accord substantial

deference to the professional judgment of prison

administrators,” and that “the burden .. . is not on the

state to prove the validity of prison regulations but on

the prisoner to disprove it.” Jd. at 132. Applying Turner,

it concluded that the regulation banning visitation for

substance abuser: served a legitimate purpose:

“withdrawing visitation privileges is a proper and even

necessary management technique to induce compliance

with the rules of inmate behavior, especially for high-

security prisoners who have few other privileges to

1¢ The two-year ban was imposed upon prisoners with

two or more substance-abuse violations. Visits from clergy

and attorneys were permitted. Overton, 539 U.S. at 130. The

Court also reviewed, and approved as_ constitutional,

restrictions on non-contact with minor nieces and nephews

and children as to whom parental rights had been

terminated; on inmate visits with former inmates, a

regulation which required children visiting the prison to be

accompanied by a family member or legal guardian. /d., at

129-130.

20

lose.” Id. at 134. The Court further concluded that

prisoners subject to the ban -had alternative means of

exercising their rights, . since they could - still

communicate with those outside the prison by letter

and by phone. With respect to the availability of “ready

alternatives,” the Court refused to second guess the

prison officials, rejecting arguments that the duration of

the visitation restriction could be shortened or only

imposed on the most serious violators, saying that

“these alternatives do not go so far toward

accommodating the asserted right with so little cost to

penological goals that they meet TJumer’s high

standard.” Jd. at 136.15

B. The Court of Appeals failed to adhere to this

standard.

The Court of Appeals’ approach to this case was a

far cry from the deferential review required by Turner,

Overton, and the other cases just discussed. The Court

of Appeals got off on the wrong foot from the start,

beginning its analysis with the observation that “in

some cases” the constitutional nghts of prisoners “may”

be limited, Pet. App. 8a, thus implying that such

limitations are the exception rather than the rule. But,

at least in the First Amendment context, surely the

reverse is more nearly true. A prisoner retains only

“those First Amendment rights that are not inconsistent

with his status as a prisoner or with the legitimate

penological objectives of the corrections system,” Pell v.

Procunier, 417 U.S. 817, 822 (1974); and as the Court’s

cases demonstrate, there are few aspects of First

Amendment rights that may not be limited by

imprisonment. See Overton (freedom of association),

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

119 (1977)(same); Shaw v. Murphy, 532 U.S. 223

'S The Court also concluded that accommodation would

cause a significant reallocation of financial resources.

21

(200 1)(correspondence}; Turner (same); Lewis v. Casey

(access to courts); Thornbm:rgh v. Abbott (incoming

publications); O’Lone v. Estate of Shabazz (attendance

at religious services).

The Court of Appeals then purported to apply the

Tumer standard to Pennsylvania’s policy, while ignoring

the principle of deference to the judgment of prison

officials which animates Turner and this Court’s other

cases. In fact, the Court of Appeals mentioned

deference only once, in passing and limited to the idea

that prison officials should receive “significant

deference” in “interpreting” and “implementing” their

own regulations. See Pet. App. 8a. The Court of Appeals

did not mention this Court’s repeated admonitions that

such deference must also be exercised in assessing the

constitutionality of such regulations; rather, the Court

of Appeals chose to emphasize its own role in the

“policing of prison policy.” Pet. App. 9a. Nor did the

Court of Appeals in fact extend such deference: to the

contrary, the Court of Appeals demanded that prison

officials prove that the restrictions involved in this case

were narrowly tailored to respond to specific problems,

and demanded that they support their informed

judgment with empirical data. E.g., Pet. App. 12a, 14a,

15a. In this respect, the Court of Appeals’ approach is

remarkably similar to that of the Sixth Circuit in

Overton, and to its own earlier approach in O’Lone —

both of which this Court rejected. '©

1© In Overton, the Sixth Circuit criticized the State for not

offering “data or expert testimony,” but only “anecdotal

evidence” and the “vast experience” of its prison officials, to

support its visitation restrictions. See Bazzetta v. McGinnis,

286 F.2d 311, 319, 322 (6th Cir. 2002). In O’Lone, the Third

Circuit thought that prison officials should be required to

“produce convincing evidence that they are unable to satisfy

their institutional goals in any way that does not infringe

inmates’ free exercise rights.” See Shabazz v. O’Lone, 782

F.2d 416, 419 (1986).

22

The panel majority thus grossly misapplied the

Turner factors, disregarded the principle of deference on

which they rest, completely ignored Overton, and

assigned no significance whatsoever to the context in

which this case arises: the LTSU, which houses the

most incorrigible prisoners in the Pennsylvania prison

system, whose dangerous and disruptive behavioral

histories necessitate their confinement at the highest

level of security until their behavior improves. Contrary

to the Court’s direction in Turner, Overton and

numerous other decisions, the panel majority subjected

the challenged policy to an exacting and hostile

scrutiny, imposing on prison officials, rather than the

prisoners, the burden of proving that the policy is valid

- a burden that, according to the panel majority, could

be met only by empirical proof that the policy could

achieve its goal of rehabilitation and was narrowly

tailored to respond to specific, demonstrated security

risks.

This exacting and hostile scrutiny is completely at

odds with this Court’s settled approach to these issues.

We turn then to the proper application of the governing

- principles to this case.

23

Il. The Restrictions Which Pennsylvania Imposes

On The Most Recalcitrant Prisoners In Its

System Are Reasonably Related To The

Legitimate Penological Objectives Of

Rehabilitation And Security.

A. The restrictions on access to periodicals and

photographs are rationally connected to

improving the behavior of the most difficult

and dangerous prisoners, and to enhancing

prison security.

The first Turner factor asks whether there exists a

valid, rational connection between the challenged

regulation and the legitimate governmental interest on

which it is predicated. The restrictions on access to

newspapers, magazines and photographs for Level 2

inmates are rationally connected to the legitimate goals

of prisoner rehabilitation and prison security. They

serve those goals, first by contributing to a program of

behavior modification, presenting to Level 2 inmates the

incentive of regaining access to such materials by

improving their behavior, and presenting to other

inmates the disincentive of losing access to such

materials by engaging in serious misconduct; and

second by reducing the opportunity for further

misconduct by LTSU prisoners.

1. Behavior modification, of course, is a

fundamental goal of incarceration itself, and of the

entire function of prison administration. Prisoners are

segregated from society and subjected to a rigorous

regimen of behavior regulation, which includes the

granting, withdrawal and restoration of privileges,

programs and opportunities. All of this is directed

toward the immediate goals of maintaining prison

security and rehabilitating in-prison behavior, and

toward the ultimate goal, sentence permitting, of

rehabilitating prisoners for re-entry into society.

24

In a comprehensive effort to modify the behavior of

prisoners who engage in serious, in-prison misconduct,

Pennsylvania prison officials have instituted a system of

progressively restrictive confinement and progressively

restrictive privileges and opportunities, which, for the

most dangerous and disruptive prisoners, culminates in

Level 2 of the LTSU. The rationality of restricting access

to periodicals and photographs in LTSU Level 2 must be

viewed in this context — and, so viewed, is unassailable.

The Court in Overton observed unequivocally that

“[wlithdrawing visitation privileges is a proper and even |

necessary management technique to induce compliance

with the rules of inmate behavior, especially for high-.

security prisoners who have few other privileges to lose.”

Overton, 539 U.S. at 134 (emphasis added). The-parallel

is obvious: LTSU Level 2 inmates are the highest-

security prisoners in the Pennsylvania prison system,

at the apex of a progressive discipline regime where

indeed there are few privileges left to lose. Withdrawing

access to periodicals and photographs for such

inmates, like withdrawing access to visitors for the

high-security prisoners in Overton, is a proper, and of

course rational, technique for managing their behavior. _

Yet the panel majority ignored both Overton and the

high-security context from which both Overton and this

case arise, occupying itself instead with its various

concerns that assignment of a prisoner to the LTSU is

not the product of a particular adjudication for a

particular violation of prison rules, that a prisoner’s

term in the LTSU is indefinite, that the petitioner

ostensibly offered no evidence that the restrictions

achieve or could achieve rehabilitation, and that the

district court failed to consider whether petitioner’s

“deprivation theory of behavior modification had any

basis in real human psychology, or had proven effective

with LTSU inmates.” Pet. App. pp. lla-l3a. In its

musings and conjectures, the panel majority strayed far

25

from the proper Turner analysis, which asks not

whether there is empirical evidence that the regulation

serves its stated goal, but rather whether there exists a

“logical connection between the regulation and the

asserted goal.” Turner, 48 U.S. at 89.

That assignment to the LTSU is usually the product

of cumuiative serious misconducts - most if not all of

which undoubtedly resulted in adjudicated violations -

as opposed to a particular adjudicated misconduct, has

_ no bearing on whether the challenged restrictions are

“logically connected” to the goal of rehabilitation. The

same is true with respect to the indefinite term of a

prisoner’s confinement in the LTSU, which is reviewed

every thirty days after a mandatory initial term of

ninety days. The two-year ban on visitation privileges in

Overton was similarly indefinite in that reinstatement at

the end of two years was discretionary. The Court

agreed that “the restriction is severe,” Overton, 539 U.S.

at 134, but did not see that as undermining the

regulation’s rationality.

Nor is it even accurate that the petitioner offered no

evidence that the challenged restrictions achieve or

could achieve the goal of rehabilitation. In the first two

years of the LTSU’s operation, numerous prisoners

progressed from Level 2 to Level 1 and graduated from

the LTSU altogether. While no amount of proof could

isolate the contribution of the challenged restrictions to

that outcome, it ‘s a fair inference that the desire of

Level 2 inmates ito free themselves of the restrictions

indeed contributes to their improved behavior.

Finally, the panel inajority’s skepticism about the

efficacy of granting and withdrawing privileges as a

means of encouraging desired behavior — what it called

a “deprivation theory of behavior modification” — is

itself difficult to credit. In Overton, the Court had no

difficulty recognizing a similar regime as “a proper and

even necessary management technique to induce

26

compliance with the rules of inmate behavior.” This

“deprivation theory of behavior modification” informs a

vast array of policies both within prisons and - as any

parent who has ever “grounded” a teenager can attest -

outside them as well; indeed, as we discussed above,

the very idea of incarceration is grounded in such ideas.

If prison officials must prove the validity of such

theories, then the core tenet of Turner that courts

should defer to the professional judgment of prison

officials is meaningless. Overton, of course, counsels

otherwise, as the Court rejected the similarly misguided

approach of the lower court in that case.

2. The logical connection between the restrictions on

access to periodicals and photographs, as instruments

of behavior modification for inmates in the highest

security setting in the Pennsylvania prison system, and

the interrelated goals of prisoner rehabilitation and

prison security is itself sufficient to satisfy the first

Turner factor. The challenged restrictions, however,

serve the goal of prison security even beyond their role

in behavior modification, by reducing the opportunity to

hide contraband and by withdrawing material that can

be fashioned into crude tools and weapons or used to

start cell fires.

Here again the panel majority indulged in exacting

scrutiny, decrying the absence of proof that periodicals

and photographs had actually been used in the ways

suggested, that the restrictions had reduced the

frequency of fires, or that “any LTSU inmates were

transferred there because they had created a security

risk with periodicals or photographs.” Pet. App. pp.

14a-15a. Because LTSU inmates are permitted to have

other material in the cells that they could misuse, the

panel majority thought that “the relationship between

the policy and the penological interest [in security] may

be too attenuated to be reasonable.” Pet. App. p. 17a.

27

But Turner does not require that prison officials wait

for a specific security problem to arise, that they limit

their response to a narrowly drawn and empirically

tested policy, or that they forego a response that

diminishes but does not eliminate a security risk.

Turner itself involved a ban on inmate-to-inmate

correspondence, which prison officials justified on the

ground that such correspondence can be used to

arrange escapes, assaults and other acts of violence.

Id., at 92. The Court found no need to determine

“whether there was sufficient proof that inmate

correspondence had actually led to an escape plot,

uprising or gang violence,” but asked only whether

there was a “logical connection between the security

concerns ... and the ban.” /d., at 93 n* (emphasis in

original).

Turner thus requires that the courts allow prison

officials “to anticipate security problems and to adopt

innovative solutions to the intractable problems of

prison administration.” Turner, 482 U.S. at 89. More

exacting review, the Court admonished, would “distort

the decision-making process, for every administrative

judgment would be subject to the possibility that some

court somewhere would conclude that it had a less

restrictive way of solving the problem at hand.” Jd.

28

B. Prisoners subject to these restrictions retain

ample alternative means of receiving

information and comiuunications from the

outside world.

The second Turner factor asks whether there are

alternative means of exercising the right that remain

available to the affected inmates. Addressing this jactor,

the Court of Appeals defined the right in questica here

very narrowly as “the right of access to a reasonable

amount of newspapers, magazines and photographs.”

Pet. App. p.20a. The Court’s decisions applying Turner,

however, have stressed that “the right in question must

be viewed reasonably and expansively.” Thornburgh v.

Abbott, 490 U.S. at 417.

Tumer itself set the tone. Analyzing a regulation that

restricted correspondence between inmates, the Court

did not “look to see whether prisoners had other means

of communicating with each other, but instead

examined whether the inmates were deprived of ‘all

means of expression.“ O’Lone v. Shabazz, 482 U.S.

342, 352 (1987), quoting Turner, 482 U.S. at 92.

Analyzing policies that prevented Muslim_inmates from

attending Jumu’ah service, the Court in O’Lone

examined whether such inmates “retain the ability to

participate in other Muslim religious ceremonies.” Jd.

Analyzing the withdrawal of visitation privileges in

Overton, the Court examined whether inmates “have

alternative means of associating with those prohibited

' from visiting.” Overton, 539 U.S. at 135. Noting that

“inmates may communicate with persons outside the

prison by letter and telephone,” the Court emphasized

that “[ajlternatives to visitation need not be ideal...; they

need only be available.”

Here, the right in question, “viewed reasonably and

expansively,” is not “the right of access to a reasonable

amount of newspapers, magazines and photographs,”

but rather the right to receive information and

29

communications from the outside world. See

Kleindienst v. Mandel, 408 U.S. 753, 762 (1972)

(recognizing well established First Amendment right to

“receive information and ideas”). LTSU Level 2 inmates

have ample alternative means of exercising that right:

they are allowed monthly visits with immediate family,

and unlimited visits from legal counsel; they receive

daily visits form a Facility Chaplain; they may order

books from the prison library; and they may send

letters to and receive letters from family, friends and

others, which may include newspaper or magazine

articles with a personal connection to themselves.

Because it defined the right so narrowly, the panel

majority barely mentioned and didn’t consider these

alternatives. Level 2 inmates, of course, can also

improve their behavior and regain the privilege of

access to periodicals upon transfer to Level 1 and

access to photographs upon transfer from the LTSU.

C. The right asserted cannot be accommodated

without imposing substantial costs.

The third and fourth Turner factors ask what impact

accommodation of the nght would have on guards and

other inmates and whether there are ready alternatives

to the challenged policy. Regarding the third factor,

Turner counsels that ‘[w]hen accommodation of an

asserted right will have a significant ‘ripple effect’ on

fellow inmates or on prison staff, courts should be

particularly deferential to the informed discretion of

prison officials.” Turner, 482 U.S. at 90. Regarding the

fourth factor, Turner emphasizes that “[t]his is not a

east restrictive alternative’ test: prison officials do not

have to set up and then shoot down every conceivable

alternative method of accommodating the claimant’s

constitutional complaint.” Jd. At 90-91.

_

Accommodating the asserted right of access to

periodicals and photographs would compromise the

purpose of the LTSU. Again, LTSU Level 2 inmates are

30

the highest-security prisoners in the Pennsylvania

prison system, at the apex of a progressive discipline

regime where few privileges remain. Excluding those

privileges from the management arsenal of prison

administrators would diminish the severity of Level 2,

with the “ripple effect” of diminishing its value both as a

deterrent to serious misconduct by other inmates and

as a means of reforming Level 2 inmates to where they

can rejoin the general population as less a threat to

other inmates. Accommodating the right has the

additional ‘ripple effect” of increasing the risk to LTSU

guards and other prison staff who must enter the unit.

The panel majority suggested that the asserted right

of access to periodicals could be accommodated by a

guard delivering a periodical to an inmate’s cell and

retrieving it at the end of a specified reading period, or

by a guard escorting the inmate to the mini law library -

a privilege permitted already for access to legal material

- to read a periodical of the inmate’s choosing. Neither

accommodation, however, could be implemented

without the imposition of substantial costs, in the form

of increased demands on personnel resources and

increased security risks. Again, the majority panel

ignored the context of the high-security LTSU,

discounting, for example, the increased difficulty that

would attend increased demand to visit the mini law

library. Perversely, the majority panel went so far as to

suggest that the small number of inmates in the LTSU,

compared with the entire prison population, would

minimize the cost of accommodation. But, though small

in number, the inmates of the LTSU require greatly

disproportionate expenditure of resources to ensure

security.

As a means of accommodating the asserted nght to

view photographs, the majority panel suggested limiting

“the total number of photographs that an inmate could

have in his cell at one time.” Pet. App. p.22a. And as a

means of limiting its own suggested accommodations,

31

the panel majority suggested that access to periodicals

and photographs could be withheld from prisoners who

“pose a risk given their records or...who have abused

their use of periodicals or photographs.” Pet. App. pp.

22a-23a. About such intense second-guessing of prison

officials, little more need be said than that the court

missed for the forest for the trees - the prisoners in

LTSU Level 2 universally “pose a risk given their

records” - and that such fine-tailoring is way beyond

the province of the courts under Turner and its progeny.

In summary, all four Turner factors support the

conclusion that the- challenged policy is rationally

connected to the legitimate penological objectives of

rehabilitation and security. Thus the policy is clearly

constitutional.

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CONCLUSION

For the foregoing reasons, the judgment of the Court

of Appeals should be reversed and the case remanded

with instructions to affirm the judgment of the District

Court.

Respectfully submitted,

THOMAS W. CORBETT, JR.

Attorney General

Louis J. ROVELLI .

Executive Deputy Attorney General

Counsel of Record

JOHN G. KNorR, III

Chief Deputy Attorney General

CALVIN R. KOONS

KEMAL A. MERICLI

Senior Deputy Attorneys General

Office of Attorney General

15th Floor, Strawberry Square

Harrisburg, PA 17102

(717) 787-1100

COUNSEL FOR PETITIONER

DATE: JANUARY 5, 2006

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