# Respondents Brief — Beard v. Banks

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0107%3A06

## Record

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

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0107%3A06. Public record. Not legal advice.