Respondents Brief — Beard v. Banks

oa FILED

; 4 } F

ct EB 16 2006

No. 04-1739 OFFICE OF THE CLERK

IN THE

Supreme Court of the Anited States

JEFFREY BEARD,

Petitioner,

Vv.

RONALD BANKS,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Third Circuit

RESPONDENT?’S BRIEF

JERE KRAKOFF *

STEMBER FEINSTEIN

429 Forbes Avenue

1705 Allegheny Building

Pittsburgh, PA 15219

(412) 232-0276

ANDREW SHUBIN *

216 East Beaver Avenue

State College, PA 16801

(814) 867-3115

* Counsel of Record On Behalf of the Pennsylvania

Institutional Law Project

WILSON-EPES PRINTING CO., INC. — (202) 789-0096 — WASHINGTON, D.C. 20001

QUESTION PRESENTED

Whether the Pennsylvania Department of Corrections’

policy of denying secular newspapers, magazines, and

personal photegraphs to the most difficult inmates in its

system in an effort to promote security and good behavior

violates the First Amendment under the standard of Turner v.

Safley.

ma, *

a Dee

er

ied St te aT ae

TABLE OF CONTENTS

Page

QUESTION PIRESEN TED. ....ccccsccsosssoecesscovssccsesesesceeseee i

TABLE OF AUTHORITIES ...cccccccccosscessosccsevcccessssesoeeee V

STATEMENT OF THE CASE ....... occ cceceeceeeeeeeneneeeeees I

SUMMARY OF THE ARGUMENT ............cceeeeseeeeees 9

FTG ciinticiinbntititiiiniiaininsnninparalaniinneicimayimaetiin 1]

1. The Challenged Policy Infringes Upon Core

Inmate Free Speech Rights .............:cccccceeeeeeseeees 11

2. The Constitutionality of the Challenged Policy

Must be Examined Within Turner's Analytical

Framework Because the First Amendment

Rights of Level 2 Inmates are Implicated.......... 15

A. The Policy of Denying Secular News-

papers, Magazines, and Photographs to

Level 2 Inmates is not Rationally Related

to the Department's Stated Objectives

{Factor One]................. sovecesecvecsesseeserecoveesonee 16

(i) The Department’s Policy is Not Ra-

tionally Related to Security ..............00 19

(ii) The Policy is not Rationally Related to

eR anrceienivicssaneprmeienesastibersesene 21

B. There are no Meaningful Alternative Ave-

nues for Level 2 Inmates to Acquire

Information Related to Current Political,

Cultural and Other Such Activities or to

View Images of, and Events Involving,

Loved Ones [Factor TwWo]...............ccecc0eeees 23

TABLE OF CONTENTS

Page

C. Allowing Level 2 Prisoners to Receive the

Banned Publications Will Have No Appre-

ciable Negative Impact on the Long Term

Segregation Unit or on the Prison Where E

the Unit is Located [Factor Three] .............. 26

D. There Are Easy Alternatives to a Total

Ban of Secular Periodicals and Personal

Photographs [Factor Four]...............ccceseeeeeee 28

CIE SINS covserveessviescsescsssevenspneounionsnnnsesniniansaninites 30

iV

TABLE OF AUTHORITIES

CASES Page

Abdul Wali v. Coughlin, 754 F.2d 1015 (2 Cir.

ERTS AES ee SEE AE eno ener ee eOe EE 14

Aikens v. Jenkins, 534 F.2d 751 (7 Cir. 1976)....... 4

Allen v. Coughlin, 64 F.3d 77 (2 Cir. 1995).......... 14

Balance v. Virginia, 130 F.Supp. 2d 754 (W.D.

EEE TREE SE Se 14

Banks v. Beard, 399 F.3d 134 (3 Cir. 2005)......20, 22, 29

Battle v. Anderson, 376 F.Supp. 402 (E.D.Okla.

Tienda iedindldiaiaiinridncinaannndneniccdercensteesees 14

Bell v. Wolfish, 441 U.S. 520 (1979) oo. eceeeeeee 13,14

Bigelow v. Virginia, 421 U.S. 809 (1975) ............. 13

Blount v. Rizzi, 400 U.S. 410 (1971) «0.0.0.0... 12

Carpenter v. State of §.D., 536 F.2d 759 (8 Cr.

nae haiten nciaieaienebiinnpeannmntiniemperensees 14

Cooper v. Schriro, 189 F.3d 781 (8 Cir. 1999) ..... 14

Crofton v. Roe, 170 F.3d 957 (9 Cir. 1999)........... 13

Cruz v. Beto, 405 U.S. 319 (1972)... eccecceeeeeeeeeee 13

Davis v. Norris, 249 F.3d 800 (8 Cir. 2001).......... 14

First National Bank of Boston v. Bellotti, 435

SE SII atchiestnbicigentbdinnnenntasenonetstesseseesers 12

Griswold v. Connecticut, 381 U.S. 479 (1965) ..... 12

Grosjean v. American Press Co., 297 U.S. 233

EERE AES Se Oe 12

Jackson v. Elrod, 67\ F.Supp. 1508 (N.D. Il.

i ieheilaiidciteriaind dele nimeannemniniueginiventateepesceuenins 14,21

Johnson vy. California, 543 U.S. 499, 125 S.Ct.

EE 16

Jones v. North Carolina Prisoners Union, 433

SE STITT stints ihieliadnsnnieintetenabaseunisenasestzincens 13, 28

Kaplan v. California, 413 U.S. 115 (1973)........... 13

Kleindienst v. Mandel, 408 U.S. 753 (1972)......... 12,24

Laaman v. Hancock, 351 F.Supp 1265 (D.N.H.

Nai licica i claeceaalinmninienibnndeesrenmnense 14

Vv

TABLE OF AUTHORITIES—Continued

Page

LaMont v. Postmaster General of United States,

Fe ec Se CE citetatncisentnitinctisaieabaianteiantins 12

Lindell v. Frank, 377 F.3d 655 (7 Cir. 2004) ........ 14

Mann v. Smith, 796 F.2d 79 (5 Cir. 1986)............. 21

Mills v. Alabama, 384 U.S. 214 (1966)..............0+. 13

Morrison v. Hall, 261 F.3d 896 (9 Cir. 2001) ....... 21

NAACP v. Claiborne Hardware, 458 U.S. 886

Feel hnctinsennscinicsinianinctoummesiisiteitaiassisemieniinns 12

O’ Lone v. Shabazz, 482 U.S. 342 (1987) .......... 17, 18, 26

Overton v. Bazzetta, 539 U.S. 126 (2003)............. passim

Pell v. Procunier, 417 U.S. 817 (1972).x.......... 13, 23, 24

Peperling v. Crist, 678 F.2d 787 (9 Cir. 1982)...... 14

Prison Legal News vy. Cook, 238 F.3d 1145

Gs ED eencentiscssnttisishinaniaiiidinindninhinbiigunitiblian 14

Prison Legal News v. Lehman, 692 (9 Cir. 2005)... 21

Procunier v. Martinez, 416 U.S. 396 (1974)......... 13

Shaw v. Murphy, 532 U.S. 223 (2001) ...............04 16

Sheets v. Moore, 97 F.3d 164 (6 Cir. 1996)........... 14

Sizemore v. Williford, 829 F.2d 608 (7 Cir. 1987) .. 14

Spellman v. Hopper, 95 F.Supp.2d 1267 (M.D.

FED, Ge ccnuicscninmsnemcemnssnuiienapinnicdinnmeniiuninittio 2!

Thornburgh vy. Abbott, 490 US. 401

CF ecrecnsnarsepesnssevestntnsanieemensninminninntees 15, 24, 26, 28

Trapnell v. Riggsby, 622 F.2d 290 (7 Cir.

Fare ncctesinssinensiajuipiuitutasciidineniitaneimiaabciguiuaiiabedii 14, 15, 16

Turner v. Safley, 482 U.S. 78 (1987) .......ccceeeeeeeees passim

U.S. v. National Treasury Employees Union, 513

BF ke SSW CIPI cnccereccnsemesemesentiatncgqnannainesengionns 12

Van Cleave v. U.S., 854 F.2d 82 (5 Cir. 1988)...... 14

Virginia State Board of Pharmacy v. Virginia

Citizens Consumer Council, 425 U.S. 748

Waterman v. Farmer, 183 F.3d 208 (3 Cir. 1999) .. 15

vi

TABLE OF AUTHORITIES—Continued

OTHER

PA. DEPT. OF CORRECTIONS, Policy State-

ment DC-ADM 803, “Inmate Mail and In-

coming Publications”, available at http://www.

cor.state.pa.us/standards/lib/standards/DC-ADM

_803_Inmate_Mail_and_Incoming_Publica-

tions | .pdf(visited February 10, 2006) ...............

vil

Page

STATEMENT OF THE CASE

The genesis of this Section 1983 class action was the

Pennsylvania Department of Corrections’ seizure of a

Christian Science Monitor newspaper mailed to inmate

Ronald Banks pursuant to a subscription Mr. Banks had

with the publisher. [JA 14,4 11; JA 21, 4 11; JA 178-179;

JA 50] Banks was confined at that time in the Department’s

Long Term Segregation Unit, a maximum security cellblock

located on the grounds of the State Correctional Institution at

Pittsburgh. [JA 12, 94 2; JA 21] The confiscation occurred

within the framework of an administrative policy which

prohibits inmates housed on Level 2 status in the Unit

(as Banks was) from receiving newspapers or magazines that

are not religious or legal in nature. [JA 12, 99 2; JA 21; JA

90-91 |

Banks filed a civil rights complaint in the United States

District Court in Pittsburgh to challenge the constitutionality

of the policy after prison personnel refused to deliver his

Christian Science Monitor. [JA 11-19] The pleading alleged

that the regulation violates free speech by unreasonably

denying him and other Level 2 prisoners access to periodicals

addressing governmental affairs, international news, and

other current event topics which pose no threat to institutional

security or to any other legitimate penological interest. [See

JA 14, 99 12; JA 17, 9§ 22] It also asserted that the policy’s

prohibition against the receipt by Level 2 inmates of

photographs of spouses, children, and other loved ones

offends the First Amendment. [JA 17, 94 23] Banks asked

on his own behalf and on behalf of all other Level 2 prisoners

that the regulation be declared unconstitutional and enjoined.

[JA 18] |

The Department of Corrections viewed access to news-

papers, magazines, and personal photographs as “privileges”

when issuing the challenged policy soon after the Long Term

Segregation Unit was established in April of 2000.' [JA 75;

JA 90; JA 48; JA 131; JA 189; JA 191] Guided by this

perspective, the Department has systematically prevented

Level 2 inmates from receiving what it characterizes as

“common, secular newspapers or magazines” and from

having photographs in their cells for as long as they remain in

the Unit.? [JA 26, § 3; JA 13-14, 4 10; JA 21; AIS, 4 18; JA

22; JA 48]

There are no secular newspapers or magazines available on

the Unit for Level 2 inmates nor do they have access to these

materials from the main prison library. [JA 155; JA 26, 4 5;

JA 52-64] Level 2 inmates are prohibited from receiving

even individual clippings through the mail from secular

newspapers or magazines unless an article has a direct nexus

to them, such as a relative’s obituary. [JA 154-155; JA172;

JA 26, | 5] The Department encourages inmates to cancel

their subscriptions to secular periodicals upon their admission

to the Unit. [JA 158] All newspapers or magazines received

by an inmate prior to admission to the LTSU are stored, sent

out of the institution, or destroyed. [JA 159] Prison

personnel intercept and confiscate prohibited materials mailed

to Level 2 prisoners. [JA 158-159] Banned items found in a

Level 2 inmate’s possession are treated as contraband,

exposing the prisoner to discipline. [JA 156-157; JA 176]

Publications deemed to be religious in nature are exempted

from the challenged regulation. [JA 12, § 2; JA 21] The

' These privileges are equated by the Department to shower shoes, ac-

cess to the prison commissary, and the opportunity to work without pay as

a Unit janitor. [See JA 48]

* These items are banned only in the Long Term Segregation Unit. As

a matter of Department policy, every other housing category (including

inmates on Death Row as well as disciplinary and administrative confine-

ment) are permitted to receive varying amounts of secular periodicals and

personal photographs. [JA 15,4 15; JA 22; JA 15, 4 19; JA 22; JA 274 8,

JA 102; JA 173-174; JA 141-143; JA 149-152; JA 113; JA 159-160]

2

exemption is broader than a Bible, Koran or other books of

scripture and encompasses newspapers and magazines. [JA

179-180] Under this standard, the Jewish Daily Forward,

The Watchtower, The Christian Science Monitor Magazine,

and other such “religious” periodicals may be received.’ Banks

v. Beard, 399 F.3d 134, 147 (3 Cir. 2005) The Procedures

Manual governing the Long Term Segregation Unit defines

“approved” religious materials as “any written documents

that are reasonably related to religion.” |JA 77; JA 101]

There is a protocol in place to resolve doubts as to whether a

particular newspaper or magazine is religious. [JA 178-179;

JA SO} ‘The publication is sent to the prison Chaplain for

review and it will be delivered to the inmate if he decides that

it is religious. [JA 178-179] Likewise, periodicals deemed -

by prison officials to be “legal mail” are exempt from the ban.

[See JA 49] By virtue of these exemptions, a Level 2

prisoner is permitted to have as many religious or law related

periodicals in his cell that will fit in a standard records box.

[JA 101; JA 35] There are no exceptions to the photograph

ban; even a single photograph is prohibited. [See JA 26, 4 3;

JA 15,4 18; JA 22,4 18; JA 48]

The ban on secular publications and personal photographs

often persists for many months, even years; and applies to a

substantial majority of the Unit's occupants at any given time.

[JA 26, 9 3; JA 13,9 7; JA 21,49 7; JA 127-131] Inmates are

confined on Level 2 for a minimum of three months. [JA 26;

q 3; JA 32] However, inmates can remain on that status much

longer since an inmate’s retention is open-ended, unlimited in

duration, and determined by criteria that are vague and

subjective.’ [See JA 13, 4 7; JA 21,9 7; JA 131-132; JA 26,

‘At the time Ronald Banks’ Christian Science Monitor newspaper was

seized, a Christian Science Monitor Magazine was delivered. [JA 179]

* Among the factors that determine how long an inmate will remain on

Level 2 are the “amount of time” an inmate has been on the level, the

“sanitation” of the inmate's cell, his “personal hygiene and grooming,” his

3

q 3; JA 40) At the close of discovery, some prisoners had

been on Level 2 since the Unit's inception—a period of more

than two years. [JA 131-132] The Department Procedures

Manual recognizes that inmates admitted to the Unit

“demonstrated an inability or unwillingness” to conform to

Department requirements. [JA 80] As such, there are some

Unit prisoners who are unable to conform their behavior and,

in the Department’s words, will “never succeed in transcend-

ing the strictures of that status.” [JA 26, | 3; JA 31] On the

day of the LTSU administrator’s deposition, 36 of the 39

prisoners in the LTSU were on Level 2. [JA 130] The

number of Level | inmates is “generally in the single digits

... JA 130-131]

The challenged policy precludes Level 2 prisoners from

reading any news accounts, analyses, editorials, investigative

reports, feature stories, and other elements of general circu-

lation journalism related to political, cultural, and other

developments unfolding in the world beyond the Unit’s walls,

or from seeing the photographic images of their family and

friends. [See JA 26; 94 3 and 4; JA 13,4 10; JA 21,4 10] This

comprehensive suppression of knowledge occurs in an en-

vironment where Level 2 inmates have no meaningful oppor-

tunity to acquire information about political, scientific, or

cultural events occurring in society at large and only rare

opportunities to see the actual faces of loved ones. The Long

Term Segregation Unit is essentially a prison within a prison; a

cellblock in which inmates are “consigned to an existence of

rigid isolation and enforced idleness for periods of many

months and even years.” [JA 13, 49; JA 21] There are no

“interaction” with other inmates, his “demeanor” with the Unit staff, and

his “involvement” in self-improvement activities. [JA 40; JA 89] As

noted later, Level 2 prisoners have little opportunity to interact with other

inmates and there is no indication in the LTSU Rules and Regulations or

other Unit-related documents that they are offered any self improvement

programs. |See JA 29-47; JA 65-101}

4

radios or televisions in the Unit. [JA 102] The only published

materials Level 2 inmates are permitted to read, other than

religious or legal publications, are paperback “leisure” books

ordered from the prison library which consist largely of fantasy

and romance novels, westerns, science fiction, and other forms

of literature that do not focus on current events. [JA 39; JA 56]

Social visits are limited to one hour a month with immediate

family members, if an inmate has immediate family members

who are willing and able to visit him. [JA 34; JA 98] No

weekend or holiday visits are permitted. [JA 34; JA 98]

Social telephone calls to persons outside the prison are barred.

[JA 48] Level 2 prisoners are isolated in one-person cells

twenty-three hours a day and “rarely able to speak or socialize

directly” with each other. [JA 13, 4 9; JA 21,49] Their ability

to communicate with other Unit inmates is limited by a rule

that prohibits “[lJoud talking or yelling from cell to cell.” [JA

45, ¢ 6] Interaction with fellow prisoners is further constricted

by a policy that permits only one inmate at a time to be outside

a cell, under escort of two guards and in hand and leg irons.

[JA 28, § 12] Even when allowed to leave their cells for

outdoor recreation, they do so “individually” in small “cages.”

[JA 13,9 9; JA 21,9 9; JA 37]

Level 2 inmates are permitted to receive mail. [JA 36]

Under Department policy, the processing of incoming mail

includes periodicals and photographs. [JA 115-117; JA 149]

Mail is inspected for contraband in the prison mailroom prior

to being delivered to the Unit. [JA 36] Incoming mail is

delivered to the LTSU every day the mailroom is in operation

and distributed to LTSU inmates by Unit officers. [JA 36]

Officers collect outgoing mail-when they pick up the inmate's

morning food trays. [JA 36]

Deputy Superintendent Joel Dickson, the Department's

designated deposition witness and administrator of the Unit,

testified that petitioner's ban on secular periodicals and per-

sonal photographs is premised on two penological objectives:

5

security and rehabilitation. [JA 188-189] According to Mr.

Dickson, denying Level 2 prisoners access to general circu-

lation publications and photographs is designed to make it

more difficult for inmates to hide contraband in their cells;

reduce the possibility that they will start cell fires; and

decrease the potential for them to fashion paper weapons or

implements with which to hurl waste and other projectiles

from cells. [JA 189] Mr. Dickson did not contend that the

ban on secular periodicals and photographs was enacted in

response to any historical abuse of these materials by Level 2

prisoners. [See JA 118-200] He stated that precluding

inmates from having secular periodicals and photographs

might encourage them to modify their behavior and, thus,

lead to their rehabilitation. [JA 189]

There is an abundance of authorized items in the cells of

Level 2 inmates that can readily be used for the illicit

purposes Deputy Dickson cited. In addition to a boxful of

religious or law related newspapers and magazines, they are

permitted to have two paperback library books; a writing

tablet; ten envelopes; a cluster of personal letters; a pillow

case; two bed sheets; a blanket; a laundry bag; a towel; a

washcloth; a jumpsuit; several sets of undershirts, underpants,

and socks; a roll of toilet paper; a drinking cup; a plastic food

tray; and a spoon, in their cells. [JA 34-35; JA 38-39; JA

194-198] Even without secular periodicals and photographs,

Mr. Dickson acknowledged that contraband can readily be

hidden, fires can be started, paper weapuns can be fashioned,

and items can be thrown from the cells.” [JA 195-198]

LTSU policy requires that all cells “be subjected to a

security inspection” at least three times a week and

“thoroughly searched” at least once a week, and that inmates

* There are only a few inmates who throw items from their cells. [JA

194] Those who do, use the authorized cups, pieces of paper, and other

things in the cells for that purpose. [JA 194]

6

“change cells monthly.” [JA 42] The policy also prohibits

inmates from having any “flame producing materials” in their

cells, including matches. [JA 39; JA 195] The LTSU cells

are fronted by metal doors with a food slot (i.e., a “pie hole”)

through which meals and other items can be passed. [JA 199;

JA 46, 4 10; JA 81] Under Department policy, the cell fronts

are required to have “appropriate devices to prevent inmates

from throwing items at staff (i.e. screening, door shields,

etc.).” [JA 81]

While Deputy Dickson stated that LTSU inmates are not

“totally predictable”, he conceded that Unit personnel “fairly

well know” which inmates “are prone to use their personal

property in a violent sort of way...” [JA 197] As a matter of

policy, an inmate’s property is subject to confiscation if he

uses or alters it in a way “that it is considered a threat to the

safety and security of the institution. . . ” [JA 34] Fur-

thermore, an inmate’s privileges may be suspended or taken

away if his “behavior is deemed to warrant such loss.” [JA

33} The Unit Team has “total authority regarding what

privileges and for what period the privileges shall be forfeited”

and any action in that regard is “administrative in nature.”

[JA 33-34]

When testifying about the behavior modification rationale,

Deputy Dickson theorized that depriving inmates of secular

newspapers, magazines, and personal photographs might

encourage the prisoners to conform their behavior to Unit

rules. [JA 189] Consistent with the Department's view that

“being able to read a newspaper or a magazine . . . should be

an eared privilege,” he stated that Level 2 inmates must

“earn” access to these items by “graduating” to Level |. [JA

191] He asserted that the prohibitions are a way of inducing

compliance with institutional rules—enabling an inmate either

to become a “more productive citizen” (if released from

incarceration) or to be integrated into the system's general

population cellblocks (if not released). [JA 189] According to

7

Dickson, the Department is “very limited... in what [it] can

and cannot deny or give an inmate” and secular periodicals and

personal photographs “are some of the items that we feel are

legitimate as incentives for human growth.” [JA 190]

Although the Department utilizes behavior modification coun-

seling with Level | prisoners in the areas of “substance abuse;

anger/violence management; life skills . . . and effective

emotional expression,” as ways of producing “human growth,”

these rehabilitative programs are not offered to Level 2 pris-

oners. [See JA 43] Instead, the Department relies exclusively

on its deprivation theory to induce change.

The Long Term Segregation Unit was established primarily

as a repository for prisoners expelled from the Special

Management Units for failure to modify their behavior. [See

JA136-137; JA 66-67, 94 C and F] In a “minority of cases”,

inmates come from non-SMU housing areas. [JA 137] The

Special Management Units are behavior modification cell

blocks for “inmates who are, or have been, disruptive or

violent.” [JA 136, JA 68] They are “specifically designed to

provide each inmate with the opportunity to demonstrate a

stable level of behavior so they can be safely returned to

general population or another suitable status.” [JA 80] Most

of the LTSU inmates are “people who have flunked out of or

failed” in the Special Management Units. [JA 137] While in

the SMUs, these prisoners were given a much broader

spectrum of incentives to induce behavioral change than what

is offered in the LTSU. Those inducements included: the

opportunity to earn access to radios and televisions; up to ten

magazines; bi-weekly social telephone calls; weekly visits

with both friends and family members; weekly use of the

prison commissary for purchases of up to twenty dollars; the

ability to associate outside their cells with small groups of

fellow prisoners; group recreational yard activities; educa-

tional classes and supervised study programs; the opportunity

to leave their cells unshackled; and, if warranted, a pro-

bationary period in the general prison population. [JA 9I-

8

102] Behavior modification failed for these men despite

these incentives. [See JA 136-137]

Virtually all of the SMU incentives are eliminated or

substantially d''uted the instant an inmate enters the LTSU.

[See JA 48] What remains (either in whole or in reduced

form) is the ability to earn access to a secular newspaper; five

magazines; one social telephone call per month; two social

visits per month; use of the prison commissary for purchases

of up to five dollars per week; and in-cell GED or special

education study, if approved. [JA 102] During the first two-

and-a-half years of the LTSU’s operation, only ten inmates

“graduated” from the Unit. [JA 138] Another two were

released because their criminal sentences expired.” [JA 138]

SUMMARY OF THE ARGUMENT

1. Outside the prison walls, the free speech component of

the First Amendment protects the right to “suitable access to

social, political, aesthetic, moral, and other ideas and experi-

ences.” The acquisition of information includes the right to

read what is printed in newspapers and magazines. Free

speech, however, is not limited to printed words in period-

icals; it also encompasses photographs.

2. A convicted inmate retains those First Amendment

rights that are not inconsistent with his status as a prisoner or

with legitimate penological interests. Because the right to

receive information in a prison setting is not inherently

inconsistent with imprisonment itself or the objectives of

imprisonment, it is not extinguished as an inmate passes

through the prison gates.

" Left to debate in another forum is the specter of incorrigibles being

released to society who have been kept ignorant of political, social, and

other developments during the period of their segregation.

9

3. A prison policy impinging upon_an inmate’s free speech

rights is valid only if it is “reasonably related” to a legitimate

penological interest.

4. The four-part standard established in Turner v. Safley to

determine whether an administrative regulation is reasonably

related to a legitimate penological interest is rooted in two

fundamental principles: First, when considering a consti-

tutional challenge to a prison policy, a court owes substantial

deference to prison officials; and second, it must also “take

cognizance” of valid claims asserted by inmates.

5. Neither judicial deference nor restraint will save the

regulation if a court concludes that a policy either lacks a

“rational connection” to legitimate a penological interest or is

an “exaggerated response” to such an interest.

6. Level 2 inmates have shown that the challenged policy

does not satisfy Turner’s threshold requirement that a regu-

lation impinging on a prisoner’s constitutional right bear a

rational connection to a legitimate penological interest. The

ban on secular periodicals and personal photographs is arbi-

trary within the meaning of Turner because any connection

the policy may have to the Department’s asserted security and

rehabilitative objectives is too attenuated to be rational.

Among other things, the Department could not reasonably

have thought when adopting the policy that it would advance

security, since many of the items Level 2 inmates are allowed

to have in their cells (including a boxful of religious or law-

related periodicals) can be used for the illicit purposes cited

by the Department as justifications for the policy. Likewise,

in light.of the incorrigible histories of the prisoners the Long

Term Segregation Unit was designed to hold, the Department

could not reasonably have thought the behavior of Level 2

inmates might be modified by the withholding of the First

Amendment materials.

10

7. Because Level 2 inmates are isolated in an environment

in which they have only the most minimal contact with the

outside world, they do not have suitable alternate means of

exercising their right to receive information about current

political or other developments unfolding in society at large.

The Department’s contention that the inmates can receive

such information through letters or visits is belied by the

record and common sense. Petitioner's position also vastly

understates the nature of the right at stake and the breadth of

the knowledge that its policy suppresses.

8. Accommodation of the inmates’ rights can be achieved

without adverse impact on LTSU security or on the prison

as a whole. The record confirms that permitting them to

have some quantum of newspapers, magazines, and personal

photographs in their cells is unlikely to have any negative

“ripple” effect on inmates or guards in the Unit or on the

institution. The Department already engages in routine

screening and censorship of mail, and the addition of the

banned items for fewer than forty men will not appreciably

add to any administrative or other burden. Lifting the ban

may, in fact, diminish the burden by eliminating the need to

ascertain whether a publication is religious, law-related, or

secular.

9. Finally, an alternative exists to a total ban on secular

periodicals and photographs. These items can be delivered to

the inmates’ cells with their regular mail, kept for a specified

“reading period”, and returned when food trays are retrieved

after meals.

ARGUMENT

1. The Challenged Policy Infringes Upon Core In-

mate Free Speech Rights

The parameters of free speech outside the prison walls are

well charted. In society at large, “|t]he use of the mails is

almost as much a part of free speech as the right to use our

tongues. . .” Blount v. Rizzi, 400 U.S. 410, 416 (1971).

Freedom of speech extends both to the speaker and a willing

listener. Virginia State Board of Pharmacy v. Virginia

Citizens Consumer Council, 425 U.S. 748, 756-757 (1976).

As such, the protection of free speech on matters of public

interest goes beyond the desire to foster self-expression and

includes affording the public access to the dissemination of

information and ideas. First National Bank of Boston vy.

Bellotti, 435 U.S. 765, 783 (19878). “The dissemination of

ideas can accomplish nothing if otherwise willing addressees

are not free to receive and consider them.” LaMont vy.

Postmaster General of United States, 381 U.S. 301, 308

(1965) (Brennan concurring).

The First Amendment’s free speech component is broad in

scope. It protects the right to “suitable access to social,

political, aesthetic, moral, and other ideas and experiences

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

encompasses the right to “acquire information about. . .

common interests.” Grosjean v. American Press Co., 297

U.S. 233, 243 (1936). In conjunction with the acquisition of

information, it includes a “right to read.” Griswold v.

Connecticut, 381 U.S. 479, 482-83 (1965). The First

Amendment also prohibits the government from “limiting the

stock of information from which members of the public may

draw,” Virginia State Board of Pharm. vy. Virginia City Con-

sumer Council, 425 U.S. 748, 783 (1976) and from needlessly

burdening the “public’s right to hear and read” what others

write and say. U.S. v. National Treasury Employees Union,

513 U.S. 454, 470 (1995). Consistent with the spirit of the

First Amendment, the State may not unduly “contract the

spectrum of available knowledge.” Griswold v. Connecticut,

381 U.S. at 481.

“|E|xpression on public issues has always rested on the

highest rung of the hierarchy of First Amendment values.”

NAACP vy. Claiborne Hardware, 458 U.S. 886, 913 (1982).

}?

a

The First Amendment “favors dissemination of information

and opinion” and the guarantee of free speech was designed to

prevent any action by the government which might unduly

prevent “free and general discussion of public matters . . .”

Bigelow vy. Virginia, 421 U.S. 809, 829 (1975). The Consti-

tution contemplates that the press, which includes newspapers

and magazines, will “play an important role in the discussion

of public affairs.” Mills v. Alabama, 384 U.S. 214, 218-219

(1966). Freedom of speech, however, is not limited to printed

words appearing in periodicals: it encompasses photographs as

well. See Kaplan v. California, 413 U.S. 115, 119-120 (1973).

Prisons are not immune from the sweep of the First

Amendment. See Cruz v. Beto, 405 U.S. 319, 322 (1972). A

convicted inmate “retains those First Amendment rights that

are not inconsistent with his status as a prisoner or with

legitimate penological objectives of the prison system.” Pell v.

Procunier, 417 U.S. 817, 822 (1972). One of the First

Amendment rights that survive incarceration is freedom of

speech. Bell v. Wolfish, 441 U.S. 520, 545 (1979). Inmates are

not stripped of free speech protection as they pass through the

prison gates, although the exercise of this right is less extensive

in a prison context. See Jones v. North Carolina Prisoners

Union, 433 U.S. 119, 125 (1977). More to the point, lower

federal courts, following Pell's “inconsistency principle’, have

long recognized that the right to receive information and ideas

is not inherently inconsistent with imprisonment itself or the

objectives of imprisonment.’ See Crofton v. Roe, 170 F.3d

" In their concurring opinion in Procunier v. Martinez, 416 U.S. 396

(1974), Justices Marshall and Brennan underscored the importance of an

inmate's access to information in a prison setting. They wrote: “When

the prison gates slam behind an inmate, he does not lose his human

quality; his mind does not become closed to ideas; his intellect does not

cease to feed on a free and open interchange of opinions; his yearning tor

self-respect does not end: nor ts his quest for self-realization concluded.

It anything, the needs for identity and self-respect are more compelling m

the dehumanizing prison environment...It ts the role of the First

13

957, 959 (9 Cir. 1999); Carpenter v. State of S.D., 536 F.2d

759, 761 (8 Cr. 1976); Abdul Wali v. Coughlin, 754 F.2d 1015,

1030, 1036 (2 Cir. 1985); Sizemore v. Williford, 829 F.2d 608,

610 (7 Cir. 1987); Laaman v. Hancock, 351 F.Supp 1265, 1267

(D.N.H. 1972); Battle v. Anderson, 376 F.Supp. 402, 426

(E.D.Okla. 1974); Jackson v. Elrod, 671 F.Supp. 1508, 1511

(N.D. Ill. 1987). Courts have concluded that the right to

receive information in a prison setting encompasses news-

papers and other such conduits.” See Aikens v. Jenkins, 534

F.2d 751, 755 (7 Cir. 1976); Sizemore v. Williford, 829 F.2d

608, 609-610 (7 Cir. 1987): Prison Legal News v. Cook, 238

F.3d 1145, 1149 (9 Cir. 2001); Abdul Wali v. Coughlin, 754

F.2d at 1033-1034; Allen v. Coughlin, 64 F.3d 77, 80 (2 Cir.

1995); Van Cleave v. U.S., 854 F.2d 82, 84 (5 Cir. 1988);

Cooper v. Schriro, 189 F.3d 781, 784 (8 Cir. 1999). They have

also recognized that photographs enjoy First Amendment

protection in a prison context. See Davis v. Norris, 249 F.3d

800, 801 (8 Cir. 2001); Peperling v. Crist, 678 F.2d 787, 790

(9 Cir. 1982); Trapnell v. Rigeshy, 622 F.2d 290, 292-93 (7

Cir. 1980); Balance v. Virginia, 130 F.Supp. 2d 754, 758-59

(W.D. Va. 2000).

It is settled that prison officials may constitutionally limit,

for security reasons, the volume of free speech material that

may be sent to an inmate or stored in a cell. See Sheets v.

Moore, 97 F.3d 164, 168 (6 Cir. 1996); Lindell v. Frank, 377

F.3d 655, 659 (7 Cir. 2004). Prison officials may also impose

appropriate restrictions on the source, nature, and content of

such materials for security and other legitimate penological

reasons without crossing the constitutional line. See Bell v.

Wolfish, 441 U.S. at 549-551 (upholding a policy requiring

Amendment and this Court to protect those precious personal rights by

which we satisfy such basic yearmng of the human spirit.” /d. at 428.

* The Department does not dispute that access to information and ideas

is a right that continues in a prison setting. Nor does it dispute that

photographs enjoy constitutional protection in a penitentiary conte xt.

14

hardback books to be sent directly from the publisher or

bookstores due to fact that hardback books are serviceable for

smuggling contraband into an institution); Thornburgh vy.

Abbott, 490 U.S. 401 (1989) (upholding on security grounds a

regulation authorizing federal wardens to reject publications

whose content would be detrimental to the security, good

order, or discipline of the prison, or might facilitate criminal

activity); Waterman v. Farmer, 183 F.3d 208, 209 (3 Cir.

1999) (allowing on rehabilitation grounds a ban on the receipt

of sexually oriented materials by sex offenders); Trapnell,

622 F.2d at 293 (sustaining a ban on the receipt of sexually

explicit photographs of an inmate’s spouse). Whether the

categorical ban in this case comports with the strictures of the

First Amendment requires an examination of the record under

the illumination of legal principles set out in Turner v. Safley

and related Supreme Court decisions.

2. The Constitutionality of the Challenged Policy

Must be Examined Within Turner’s Analytical

Framework Because the First Amendment Rights

of Level 2 Inmates are Implicated

The analytical framework for determining the constitu-

tionality of a prison policy impinging on an inmate's free

speech rights is the four-prong reasonableness standard

announced in Turner v. Safley, 482 U.S. 78 (1987). Under

Turner, a regulation affecting the receipt of written pub-

lications and other First Amendment materials by prisoners ts

valid only if tt is “reasonably related to legitimate penological

interests.” Thornbureh v. Abbott, 490 U.S. at 413. This

multi-faceted test requires a Court to ascertain whether there

is a “valid, rational connection” between the challenged

policy and the “legitimate and neutral” governmental interests

said to justify it; whether the inmates have the ability to

exercise the circumscribed right apart form the means

prohibited by the policy; the costs that accommodating the

right would have on other prison guards. fellow inmates and

Ps)

prison resources; and whether there are alternatives to the

policy that would fully accommodate the inmate’s mghts at

little or no cost to valid penological interests. Turner, 482

U.S. at 89-9].

This is not a “toothless” standard that ts inattentive to the

rights of prisoners. See Thornburgh, 490 U.S. at 414-415. It

is rooted in the principles that, when considering a consti-

tutional challenge to a prison policy a court must not only

defer to prison officials and exercise judicial restraint, but

also “take cognizance” of valid claims asserted by inmates.

See Turner, 482 U.S. at 84. Neither deference nor restraint

will save a regulation if a court concludes that a policy lacks a

“rational connection” to legitimate penological interests. See

Turner, 482 U.S. at 89. The same is true if it finds that a

policy represents an “exaggerated response” to such interests.

See Turner, 482 U.S. at 97-99.

A. The Policy of Denying Secular Newspapers,

Magazines, and Photographs to Level 2

Inmates is not Rationally Related to the

Department's Stated Objectives [Factor One]

Under the first Turner factor, a prison policy “cannot be

sustained where the logical connection between the regulation

and the asserted [penological] goal is so remote as to render

the policy arbitrary or irrational.” Turner, 482 U.S. at 89-90.

“If the connection between the regulation and the asserted

goal is ‘arbitrary or irrational,’ then the regulation fails,

irrespective of whether the other |/urner| factors tlt in its

favor.” Shaw v. Murphy, 532 U.S. 223, 229-230 (2001).

When examining the nexus, a court must determine whether

prison administrators “mught reasonably have thought the

policy would advance its interests.” Johnson v. California,

$43 U.S. 499, 125 S.Ct. 1141, 1150 (2005) (citation omitted)

(emphasis added). In that regard, a court may call upon

“common sense” to aid the inquiry. See Turner, 482 U.S. at

16

98. There are instances where a logical connection between a

policy and a stated penological objective is “self-evident.”

See Overton v. Bazzetta, 539 U.S. 126, 133 (2003) (where a

regulation prohibiting visitation by former inmates was found

to bear a “self-evident connection” to interests in maintaining

prison security and preventing future crimes). There are also

occasions when it is obvious that there is no logical

connection between a regulation and an asserted objective.

See Turner, 482 U.S. at 98 (where “common sense” sug-

gested that there was no logical connection between the

challenged marriage restrictions and the formation of love

triangles). If the existence or absence of a logical connection

is not self evident, a court should examine the evidence to

determine whether prison officials might reasonably have

thought, when adopting the policy, that it would “advance” or

“promote” the underlying objectives.” See Overton, 539 U.S.

at 133; O' Lone v. Shabazz, 482 U.S. 342,351-52 (1987).

In Overton, this Court, when concluding that a prison

visitation regulation restricting visitation by children bore a

rational relationship to maintaining internal security and

protecting child visitors, wrote: “The regulations promote

internal security, perhaps the most legitimate of penological

goals ... by reducing the total number of visitors and limiting

the disruption caused by children in particular. Protecting

children from harm is also a legitimate goal. . . The logical

* The amicus brief submitted by the Council of State Governments

mistakenly suggests that the “rational connection” factor ts merely a

traditional rational basis review in which “[t}he burden ts on the one

attacking the |rule| to negative every conceivable basis which mught

support it whether or not the basis has a foundation in the record” See

Briet at p. 9 (citations and internal quotations omitted Kemphasts added. ).

In truth, Turner requires prison officials to “put forward” the legitimate

governmental interests upon which the policy ts predicated and it ty those

objectives that are the focus of Turner's first and three remaining factors.

It is not the inmate's burden to negate “every conceivable basis” which

might suppor a challenged policy.

17

’

connection between this interest and the regulations is

demonstrated by the trial testimony that reducing the number

of children allows guards to supervise them better and to

ensure their safety...” Overton, 539 U.S. at 133 (emphasis

added). Ina similar vein, in O'Lone this Court examined the

factual record before concluding that the goals cited by prison

officials for a policy prohibiting inmates from returning to the

institution during the day (and thus, precluding Muslim

inmates from attending a daily religious service) “were

advanced.” 482 U.S. at 351 (emphasis added). Chief Justice

Rehnquist wrote:

“The subsequent policy prohibiting returns to the

institution during the day also passes muster under

[the logical connection] standard. Prison officials

testified that the returns from outside work details

generated congestion and delays at the main gate, a

high risk area in any event. Return requests also

placed pressure on guards supervising outside de-

tails, who previously were required to ‘evaluate each

reason possibly justifying a return to the facilities

and either accept or reject that reason.’ Rehabili-

tative concerns further supported the policy; cor-

rections officials sought a simulation of working

conditions and responsibilities in society. Chief

Deputy Ucci testified: “One of the things that society

demands or expects ts that when you have a job, you

show up on time, you put in your eight hours, or

whatever hours you are supposed to put in, and you

don't get off...If we can show inmates that they're

supposed to show up for work and work a full day,

then when they get out at least we've done some-

thing.’ These legitimate goals were advanced by the

prohibition on returns; it cannot seriously be main-

tained that ‘the logical connection between the

regulation and the asserted goal is so remote as to

render the policy arbitrary or irrational.””

O'Lone, 482 U.S. at 351) (citations omitted) (emphasis

added).

18

(i) The Department’s Policy is Not Rationally

Related to Security

The existence of a logical relationship between the chal-

lenged policy and the Department’s security rationale is not

self-evident. Moreover, the evidence shows that prison

officials could not reasonably have thought that Unit security

would be advanced to any appreciable degree by an absolute

ban of secular periodicals and photographs." It is obvious

that the presence of the prohibited materials will not increase

the security risk given the nature and amount of authorized

items in the cells which can fuel cell fires, hide contraband, or

be used for the other illicit activities identified by Mr.

Dickson. It had to be obvious to Department officials when

designing the policy, that without the banned materials, Level

2 inmates could readily conceal contraband in the boxful of

religious or law related periodicals they are allowed to have,

within the pages of a Bible or paperback books, in envelopes,

between bed linen, and in numerous other places where

authorized property is located. Department administrators

' The Department’s answer to the complaint reflects that security

might not have been an objective of the policy at its inception but was

developed as an ad hoc rationale in reaction to the litigation. The

complaint alleged that neither the contents of the Christian Science Moni-

tor nor the paper on which the newspaper was printed posed any mean-

ingful risk to the security of the Long Term Segregation Unit or to prison

as a whole. [JA 14,4 12-13] The Department replied: “After reasonable

investigation and reflection, defendant can neither admit nor deny the

allegations... without an extensive review of the origins, rationale and

operation of the policy in question from the standpoint of prison security

and general prison administration and the safe and effective operation

of the LTSU program.” (JA 21, 9§ 12-13) The policy originated only

sixteen months prior to the filing of the lawsuit. See [JA 1] It denying

Banks and his fellow Level 2 inmates access to general circulation news-

papers was an effort to reduce the potential for hiding contraband, setting

cell fires, fashioning paper weapons, and hurling projectiles trom cells, as

the Department later claimed, why was it unable to identity these security

considerations soon after promulgating the policy”?

19

could not have been oblivious to the fact that these inmates

(if so inclined) can start or fuel fires with the array of

approved flammable items and fashion paper weapons or

fling projectiles with the approved items in their cells. Under

these circumstances, one would have to suspend common

sense to conclude that the elimination of a secular newspaper,

a magazine, or a few photographs from Level 2 cells might

have any appreciable positive impact on LTSU security.

Deference should not trump common sense or the evidence.

Any connection between the policy and security is so remote

as to render the regulation arbitrary and irrational.

The Court of Appeals recognized the attenuated relation-

ship between the policy and institutional security. When

examining the connection, it wrote: “[I]f the prohibition of

[secular] newspapers, magazines and photographs has only a

minimal effect on security in the LTSU because of the other

materials that they are permitted in the cells, the relationship

between the policy and the [security| interest may be too

attenuated to be reasonable.” Banks v. Beard, 399 F.3d 134,

144 (3 Cir. 2005). The Court concluded that “given the

materials Level 2 inmates are permitted in their cells, pro-

hibiting a single newspaper or magazine has no significant

relationship to the stated security objectives. There are many

other non-prohibited means for inmates to fuel fires, hurl

waste, conceal contraband and create weapons.”"'' Id. at 143.

'' In parallel cases, lower federal courts have recognized the tenuous

connection between absolute prohibitions of newspapers and other such

periodicals, and prison security. As observed in one case, “given the fact

that inmates in administrative segregation are permitted to have miat-

tresses, blankets, pillow cases and sheets, clothing, letters and writing

materials, legal papers, Bibles, and a limited number of non-subscription

magazines and books . . . the court is compelled to conclude that inmates

who wish to set fires can and will do so, whether or not they have sub-

scription publications for fuel . . . and [that] deprivation of such pub-

lications would have, if at all, de minimis effect on the number of fires set

20

(ii) The Policy is not Rationally Related to

Rehabilitation

The Department argues that because the challenged policy

is part of a system-wide effort to medify the behavior of

prisoners who engage in serious misconduct—the last step in

a series of “progressively restrictive confinement and pro-

gressively restrictive privileges and opportunities”—the logi-

cal relationship is “unassailable.” [Petitioner's Brief, p. 25]

This formulation is inconsistent with the rational relationship

inquiry articulated by this Court. What must be determined is

whether it is self-evident that the elements of this particular

set of deprivations or rewards advances the rehabilitation of

Level 2 prisoners and, if not, whether prison officials, when

designing the policy, might reasonably have thought that it

would advaace their rehabilitation. The rationality of the

challenged policy must stand or fall on its own logical con-

nection to the rehabilitation of the Level 2 prisoners and is

not “unassailable” merely because it is part of the Depart-

ment’s broader behavior médification efforts. Moreover, the

existence of a rational relationship between the policy in

in administrative segregation” or on the intensity of fires. Spellman vy.

Hopper, 95 F.Supp. at 1273-74. See also Mann v. Smith, 796 F.2d 79, 82

(5 Cir. 1986) (where the court stated that “because the jail has a no

smoking rule for inmates and the jailer. permit the inmates to have other

forms of paper and similar materials, the official rationale seems tenuous

at best”); Jackson v. Elrod, 671 F.Supp. at 1511 (where the court con-

cluded that the possibility of hiding contraband was not a sufficiently

rational reason for circumscribing the receipt of publications by inmates

where there were a number of other places in cells in which to conceal

contraband items); Prison Legal News v. Lehman, 397 f.2d at 700 (Cit ts

irrational to prohibit prisoners form receiving bulk mail and catalogs on

the theory that it reduces fire hazards because the DOC already regulates

the quantity of possessions that prisoners may have in their cells”;

Morrison v. Hall, 261 F.3d 896, 902 (9 Cir, 2001) (where prison officials

already regulate the amount of possessions inmates may have in their

cells, itis... ‘irrational’ to prohibit prisoners from receiving subscription

for-profit mail on the theory that it reduces fire hazards”).

21

question and the asserted rehabilitative objective cannot be

established merely by incanting the proposition that there is

an obvious link (in general) between behavior modification

and rehabilitation.

The policy in this case bears no self-evident link to the

rehabilitation of Level 2 prisoners. It is not apparent on its face

or a matter of common sense that depriving the most difficult

inmates in the Pennsylvania prison system of secular

periodicals and photographs might cause them to change their

behavior. Furthermore, the record strongly suggests that there

was no reason for the Department to believe that the regulation

might have any positive impact on the rehabilitation of these

historically incorrigible prisoners.'* As outlined above, most

of the inmates who are transferred to the LTSU come from

Special Management Units where these so called “worst of the

worst” failed to alter their behavior despite a cluster of

incentives to do so. When creating the Unit, the Department

knew that it would be populated by inmates who are incapable

or unwilling to modify their behavior no matter what the

incentives. If the prospects of having radios and televisions,

weekly social visits, out of cell encounters with fellow

prisoners, and the other inducements previously catalogued

were insufficient to catalyze change, how could Department

officials have reasonably entertained a view that withholding a

newspaper or a few photographs might succeed? Under these

circumstances, the policy lacks a rational relationship to

rehabilitation and, therefore, is fatally flawed.'*

'? In fact, three years after the policy's implementation, the Department

stated during oral argument below that it was a “hope” that the policy

might some day work. Banks, 399 F.3d at 142.

In an effort to bolster its rehabilitation and security justifications, the

Department asserts for the first time in this litigation that there is a

deterrent aspect to the challenged policy. In its brief to this Court, the

Department argues: “The restrictions on access to newspapers, magazines

and photographs for Level 2 inmates are rationally related to the legiti-

22

B. There are no Meaningful Alternative Avenues

for Level 2 Inmates to Acquire Information

Related to Current Political, Cultural and

Other Such Activities or to View Images of, and

Events Involving, Loved Ones [Factor Two]

This factor recognizes that the evaluation of a challenged

policy “cannot be considered in isolation but must be viewed

in the light of alternative means” of exercising the right at

issue. See Pell, 417 U.S. at 823. In a free speech context,

when a court “is called upon to balance First Amendment

rights against [legitimate] governmental interests,” the exis-

tence of alternative methods of communication are “relevant

in determining the scope of the burden placed by the regu-

lation on inmates’ First Amendment rights.” Turner, 482

U.S. at 88. While the alternatives “need not be ideal” and

only have to “be available,” they must, nevertheless be of

“sufficient utility” to give “some support to the regulations

... Overton, 539 U.S. at 135. It is when “reasonable and

effective” means of exercising the right remain open that

administrators “must be accorded [particular] latitude in

mate goals of prisoner rehabilitation and prison security [by] presenting to

other inmates the disincentive of losing such materials by engaging in

serious misconduct .. .” [Petitioner's Brief, p. 24| There is no reference

in the record to this “deterrence” justification. Even the Department's

Statement of Material Facts Not in Dispute made no mention of any goal

of deterring inmates housed outside the LTSU from engaging in

misconduct. [See JA 27, 9f 8-10] Proffering this rationale five years after

commencement of this lawsuit raises additional questions with respect to

the policy’s actual purpose. In Turner, when addressing an argument

torwarded by the Missouri Division of Corrections that permitting inmate

marriages might result in “love triangles” and violent confrontations

between inmates, this court underscored the fact that the petitioners had

“pointed to nothing in the record suggesting that the marriage regulation

wus viewed as preventing such entanglements” when concluding that

the marriage policy was not reasonably related to security. Turner, 482

U.S. at 98.

tv

)

drawing [the] lines” which impact the right. See Pell, 417

U.S. at 826. Where there are “particular qualities inherent” in

the prohibited form of speech which are not present in the

available avenues, “[the] existence of other alternatives {does

not] extinguis[h] altogether any constitutional interest on the

part of the [prisoner] in this particular form” of speech. Pell,

417 U.S. at 823-824, quoting K/eindienst, 408 U.S. at 765.

When applying Turner, “the right in question must be

viewed reasonably and expansively.” Thornburgh, 490 U.S.

at 417. The right impinged by the periodical ban is the access

of Level 2 prisoners to information and ideas from the outside

world. Foreclosing them from subscribing to secular newspa-

pers and magazines effectively eliminates all meaningful

avenues through which they can acquire current information

related to the spectrum of political, cultural, scientific, and

other societal activities occurring in the United States and

abroad. These men are among the most isolated citizens in

the nation. Cutting them off from the means by which

Americans routinely acquire their information (newspapers,

magazines, radios, and televisions) causes an extraordinary

constriction—approaching absolute—of the stock of informa-

tion from which these men may draw. See e.g. Virginia State

Board of Pharm., 425 U.S. at 783. It is disingenuous for the

Department to suggest that this Turner prong can be satisfied

through letters, sporadic social visits, access to the prison

chaplain, and the opportunity to mect with attorneys.

The time when letters served as a primary means of

communicating political and other public developments ex-

pired long ago. Furthermore, it is specious for the Depart-

ment to argue that the few individuals with whom Level 2

prisoners may interact can fill this void. According to the

DOC Procedure Manual, the chaplains “are responsible for

tending to cach inmates’ religious needs...” [JA 100] Their

purpose is not to summarize news or other evolving develop-

=

ments for inmates. Likewise, if an inmate has counsel, the

attorney's purpose is to discuss his legal affairs. Social visits

for inmates who have family members willing and able to

visit are limited to an hour a month. Against this backdrop, it

is absurd to contend that letters, chaplains, attorneys or family

visits can function as suitable surrogates for periodicals.

None of these avenues can approximate the diversity and

depth of coverage provided by newspapers and magazines.

Any information conveyed through these means cannot

reasonably be expected to be anything more than sporadic

and superficial.

Furthermore, the fact that Level 2 prisoners are permitted

to receive religious and law related publications and paper-

back “leisure” books does not fill the informational void. The

availability of these materials merely creates the anomalous

situation where an inmate can read about biblical wars and

political intrigue occurring thousands of years ago, but not

about the war in Iraq or lobbying practices affecting the

operation of Congress; where he can learn about the plagues

of ancient Egypt but not about the ravages of Hurricane

Katrina; where he can plumb the depths of science fiction but

not follow current scientific developments,

The scope and intent of general circulation periodicals

are profoundly different than any of the available avenues

through which Level 2 inmates can acquire information and

ideas. The alternative avenues, to borrow from Overton,

are not of “sufficient utility” to “give some support to the

regulations. . .” See Overton, 539 U.S. at 135. Nor are they,

in the words of Pell, “reasonable and effective means” of

exercising the right. See Pell, 417 U.S. at 826. The practical

implication of the Department’s ban ts to literally wall these

inmates off from the contemporary world.

Under the Department's policy, Level 2 inmates also have

no suitable alternatives to photographs. Letters and occa-

sional visits with immediate family members cannot sub-

25

stitute for photographs when a parent, spouse, or child is

deceased; when a relative is too ill or disabled to travel to

prison; if a person is merely a friend and thus ineligible to

visit; or if a picture concerns past events like an inmate's

combat service, the birth of a child, a high school graduation,

or a wedding. There are unique qualities inherent in

photographs that are not approximated by the available

avenues of contact that remain open to these prisoners.

C. Allowing Level 2 Prisoners to Receive the

Banned Publications Will Have No Appreciable

Negative Impact on the Long Term Segregation

Unit or on the Prison Where the Unit is

Located [Factor Three]

Turner's third factor assesses the “impact” that accom-

modating an inmate's constitutional rights will have on

guards and fellow prisoners and on “the allocation of prison

resources generally.” Turner, 482 U.S. at 90. This element

addresses whether an accommodation will have “adverse

effects on the institution.” See O'Lone, 482 U.S. at 352.

Identifying the nature and extent of any adverse impact is

important because courts must be “particularly deferential to

the informed discretion of prison officials” only if the impact

“will have a significant ‘ripple effect’ on fellow inmates or on

prison staff...” See Turner, 482 U.S. at 90. Such an effect

occurs when “the right can be exercised only at the cost of

significantly less liberty and safety for everyone else, guards

and other prisoners alike,” Thornburgh, 490 U.S. at 418, or

where an accommodation “would cause a significant reallo-

cation of the prison system's financial resources ;

Overton, 539 U.S. at 126.

As discussed under Factor One, the record shows that

accommodating the inmates” access to secular periodicals and

photographs will have no significant negative impact on the

Department's asserted penological interesis. Because these

inmates are in strict isolation, and already have access to

26

religious and legal periodicals as well as the other items

catalogued above, allowing a small quantum of secular

newspapers, magazines, and family photographs in individual

cells is unlikely to have the "ripple effect" claimed by the

Petitioner of increasing security risks to guards and prison

staff.'* Moreover, for the reasons discussed under Factor One,

Level 2 inmates’ access to these First Amendment materials

will not adversely affect their rehabilitation.

Finally, there will be no significant impact on the allocation

of prison resources. Department policy contemplates that

newspapers, magazines, and photographs, like other inmate

mail, will be received at the prison mailroom for screening.

The addition of periodicals or photographs for the fewer than

forty Level 2 inmates will not significantly burden that process.

Instead, lifting the ban may, in fact, diminish the burden by

eliminating the need to ascertain whether a publication is

religious, law related, or secular. Department policy also con-

templates that mail will be forwarded to the Unit and delivered

to inmates by LTSU officers. [JA 36] The addition of a small

number of periodicals or photographs would not significantly

burden this process. Under existing protocol, LTSU outgoing

mail is given to Unit officers when they pick up the moming

food trays. Within this format, a newspaper, magazine, or

photograph could easily be delivered to a Level 2 prisoner with

his authorized mail and the periodicals retrieved when his food

tray is picked up after one of the later daily meals. The

addition of periodicals and photographs to that process will

have litthe impact. Furthermore, there are already policies in

place which control the volume of periodicals and photographs

inmates in various housing categories are permitted to receive

' For the first time, the Department makes a deterrence argument in

connection with this factor; one that it did not advance in the courts

below. It contends that “|e|xcluding those privileges from the manage-

ment arsenal of prison administrators would diminish the severity of

Level 2, with the “ripple effect” of diminishing its value . . . as a deterrent

to serious misconduct by other inmates. ..” |Petitioner’s Brief at p. 31|

27

as well as censorship policies regulating the content of those

items.'" The volume policies can readily be amended to

incorporate a specific provision for Level 2 inmates and the

censorship standards can be applied to their receipt of secular

publications and photographs, thus enabling the Department to

protect its security and rehabilitative interests.

D. There Are Easy Alternatives to a Total Ban of

Secular Periodicals and Personal Photographs

{Factor Four]

Turner's last factor focuses on the availability of “ready

alternatives” to a challenged policy. Turner, 482 U.S. at 90.

“When prison officials are able to demonstrate that they have

rejected a less restrictive alternative because of reasonably

founded fears that it will lead to greater harm [or significant

administrative inconvenience], they succeed in demonstrat-

ing that the alternative they in fact selected was not an

‘exaggerated response’ under Turner.” Thornburgh, 490 U.S.

at 419 (emphasis added). On the other hand, if an inmate can

show an alternative that fully accommodates his rights at “de

minimus cost” to valid penological interests, this is evidence

that a policy is not reasonable, but is an ‘exaggerated

response’ to prison concerns. See Turner, 482 U.S. at 97-98.

When there is “substantial evidence in the record to indicate

that officials have exaggerated their response to [penological |

considerations,” the need to defer to their judgment dissi-

pates. See Jones, 433 U.S. at 128. Under this factor, a court

is to “consider whether the presence of ready alternatives

undermines the reasonableness of the regulations.” Overton,

539 U.S. at 136. While this factor is not a “least restrictive

alternative” test where prison administrators are required to

' See PA. DEPT. OF CORRECTIONS, Policy Statement DC-ADM

803. “Inmate Mail and Incoming Publications”, available at http) ‘www’,

cor.state pa.usistandards/lib/standards/DC-ADM 803 Inmate _Mail_ and

_Incoming Publications] pdf (visited February 10, 2006).

28

“set up and then shoot down every conceivable alternative

method of accommodating” an inmate's constitutional right,

“the existence of obvious, easy alternatives may be evidence

that the regulation is not reasonable, but is an ‘exaggerated

response’ to prison concerns.” Turner, 482 U.S. at 90-91.

“[I]f an inmate claimant can point to an alternative that fully

accommodates the prisoner’s rights at de minimis cost to

valid penological interests, a court may consider that as

evidence that the regulation does not satisfy the reasonable

relationship standard.” Turner, 482 U.S. at 91.

In the proceedings below, the Level 2 prisoners pointed to

an easy alternative suggesting that LTSU officers deliver a

periodical to an inmate's cell for a limited period of time and

retrieve the newspaper or magazine when the time expires.

The Court of Appeals found that alternative acceptable under

Turner’ s third and fourth factors, reasoning:

Banks proposes [that] . . . the DOC could establish a

specific reading period, or several different reading

periods, in which guards deliver a single newspaper

or magazine to an inmate’s cell, if requested, and

retrieve it at the close of the period. The DOC could

easily control the number of periodicals in his cell at

one time, the frequency of the distributions, the

amount of time any inmate would be in possession of

the materials, as well as the number of inmates who

would have the periodicals in their cells at any one

time. The DOC could also limit the total namber of

photographs a Level 2 inmate could have in his cell

at one time to what they consider a reasonable

number. In conjunction with this policy, access to

periodicals could be entirely withheld from those

individual prisoners who, in the judgment of prison

officials, would pose a particular risk given their

records, or those inmates who fave abused their use

of periodicals or photographs. . .

Banks, 399 F.3d at 146-147.

29

- -

This approach is consistent with Turner where a Missouri

marriage regulation was found to be an exaggerated response

to security objectives. Turner concluded that there was an

easy alternative to the broad prohibition against inmate mar-

riages at issue in that case, namely, that the right to marry

could be accommodated by generally permitting marriages to

take place “but not if [the] warden finds that it presents a

threat to security or order of [the] institution, or to public

safety.” Turner, 482 U.S. at 97-98. As noted previously, the

Department’s policy already contemplates a suspension or

loss of an LTSU inmate’s privileges if his behavior is deemed

to warrant either. [JA 33] An existing LTSU rule provides

for the confiscation of any item in an inmate’s cell that is

altered or misused. [See JA 34] Applying these regulations

to newspapers, magazines and photographs on Level 2 will

not, for the reasons expressed above, be burdensome.

CONCLUSION

For the reasons expressed above, the Department of

Correction’s policy of denying Level 2 inmates access to

secular newspapers, magazines, and photographs is not

reasonably related to the security and rehabilitation objectives

cited by the Department either because it bears no rational

relationship or is an exaggerated response to those ob-

jectives. As such, it violates the inmates’ First Amendment

right to freedom of speech and the Circuit Court’s decision

should be affirmed.

Respectfully submitted,

JERE KRAKOFF *

STEMBER FEINSTEIN

429 Forbes Avenue

1705 Allegheny Building

Pittsburgh, PA 15219

(412) 232-0276

ANDREW SHUBIN *

216 East Beaver Avenue

State College, PA 16801

(814) 867-3115

* Counsel of Record On Behalf of the Pennsylvania

Institutional Law Project

February 16, 2006