# Petitioners Brief — Beard v. Banks

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0107%3A05

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petitioners Brief
- **Published:** January 1, 2006
- **Citation:** 548 U.S. 521

## Text

”~

Ly

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
Ne ee iv
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: 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.

32

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

33

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0107%3A05. Public record. Not legal advice.