Amicus Curiae Brief — Beard v. Banks

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No. 04-1739 ae

In the Supreme Court of the Anited States

JEFFREY A. BEARD, PETITIONER

RONALD BANKS

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONER

- —

tie ll

PAUL D. CLEMENT

Solicitor General

Counsel of Record

PETER D. KEISLER

Assistant Attorney General

GREGORY G. GARRE

Deputy Solicitor General

SRI SRINIVASAN

Assistant to the Solicitor

General

BARBARA L. HERWIG

EDWARD HIMMELFARB

Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTION PRESENTED

Whether, under the standard set forth in Turner v. Safley,

482 U.S. 78 (1987), prison officials may deny newspapers,

magazines, and photographs to the most dangerous and

recalcitrant inmates until they exhibit improved behavior.

(1)

TABLE OF CONTENTS

Page

Interest of the United States ................ cece cece eens 1

SE cou wedevdevenceddvudes cudeeedevestasencices 2

IIIS onc ccusccedpcccdeccoducesesesecess 9

Argument:

A State may seek to induce improved behavior on the

part of its most dangerous and incorrigible inmates by

denying newspapers, magazines, and photographs to

those inmates until they exhibit acceptable conduct ..... 12

A. Respondent’s First Amendment challenge is

governed by the deferential standard set forth

EE cc dunveusddidcewsbbdonstnceee 12

B. The restrictions at issue are part of a system

of incentives for good behavior and bear a

rational connection to legitimate government

EES. gdicaceccaceass Wi ccdenenckawasbehesees 15

1. The objectives of inducing acceptable behavior

by inmates and thereby promoting prison order

and security constitute legitimate governmental

ED hb bpdcuadddeddecdddesdnbecsvsiecede 16

2. The denial of newspapers, magazines, and

photographs to LTSU2 inmates is logically

connected to the State’s legitimate penological

PED 6 Keb cdopetecescdsakdsnedeesidsedsas 17

C. The remaining considerations under Turner

___ reinforce the reasonableness of the challenged

DEE néanedsundecsecnccedasssoretcsicsss 26

PEE cndeneddetatsnonsdcneeecedacsedensennsetess 30

(IIT)

TABLE OF AUTHORITIES

Cases: Page

Amatel v. Reno, 156 F.3d 192 (D.C. Cir. 1998), cert.

denied, 527 U.S. 1035 (1999) ............. 16, 17, 24, 26

Bell v. Wolfish, 441 U.S. 520 (1979) .............44. 16, 20

Cutter v. Wilkinson, 125 S. Ct. 2113 (2005) ......... 16,20

Hewitt v. Helms, 459 U.S. 460 (1983) ..............06. 23

Johnson v. California, 125 S. Ct. 1141 (2005) .... 14, 15, 25

Jones v. North Carolina Prisoners’ Labor Union,

Hen. GES Bas LENSE nv cccccebscesonsiccanss 13, 25

Lewis v. Casey, 518 U.S. 348 (1996) ....... 0... cece eee 19

Mauro v. Apaio, 188 F.3d 1054 (9th Cir. 1999), cert.

denied, 529 U.S. 1018 (2000)... 2... cece cece eee 25

McKune v. Lile, 536 U.S. 24 (2002) ...........-. 10, 18, 20

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

GED avscceddocnectéebecevastasoncnnaen 13, 15, 26, 28

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

Pell v. Procunier, 417 U.S. 817 (1974)... 2... eee eee 13

Sandin v. Connor, 515 U.S. 472 (1995) ...........2085- 17

Shaw v. Murphy, 532 U.S. 223 (2001) ......... 2, 13, 14, 15

Thornburgh v. Abbott, 490 U.S. 401 (1989) ....... 2, 15, 16

17, 26, 28, 29

Turner v. Safley, 482 U.S. 78 (1987) ..........005 passim

Constitution and regulations:

U.S. Const. Amend. I (Free Exercise Clause) ...... passim

28 C.F.R.:

Section 541.13 table 4, para.2(g) .........2.seeeeeee 1

ins BER BOG koccccenseseteneseseueeuee 1

Miscellaneous: Page

Tom Baker et al., The Virtues of Uncertainty in Law:

An Experimental Approach, 89 lowa L. Rev. 443

EES a RPS ee 22

Lawrence M. Friedman, Crime and Punishment in

i D c.ccndieseenesteeseesese: 2

Dru Stevenson, Toward a New Theory of Notice and

Deterrence, 26 Cardozo L. Rev. 1535 (2005) ......... 22

Jn the Supreme Court of the Anited States

No. 04-1739

JEFFREY A. BEARD, PETITIONER

vz.

RONALD BANKS

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONER

INTEREST OF THE UNITED STATES

This case raises the question whether, under the standard

set forth in Turner v. Safley, 482 U.S. 78 (1987), prison offi-

cials may deny newspapers, magazines, and photographs to

the most dangerous and recalcitrant inmates until they ex-

hibit improved behavior. The United States has a substantial

interest in the proper application of Turner to claims by in-

mates raising First Amendment challenges to restrictions on

their privileges. The Federal Bureau of Prisons (BOP) oper-

ates more than 100 penal institutions, which house more than

180,000 inmates. Under BOP regulations, prison officials

have discretion to suspend or limit the privileges of inmates

who violate prison rules in order to create incentives for good

behavior. See 28 C.F.R. 541.13 table 4, para. 2(g). BOP regu-

lations also impose significant limitations on the privileges of

inmates placed in disciplinary segregation for their miscon-

duct, including impoundment of personal property and re-

strictions on the books that any such inmate may possess.

See 28 C.F.R. 541.21(c)(7)-(8). The United States has partici-

pated as an amicus or party in several cases involving the

application of Turner to prison restrictions challenged under

the First Amendment. See, e.g., Overton v. Bazzetta, 539 U.S.

(1)

126 (2003); Shaw v. Murphy, 532 U.S. 223 (2001); Thornburgh

v. Abbott, 490 U.S. 401 (1989).

STATEMENT

Before the nineteenth century, imprisonment was rarely

used as punishment for criminal offenses in America and,

instead, more harsh measures were commonly applied. See

Lawrence M. Friedman, Crime and Punishment in American

History 48 (1993). The modern prison system took root in the

nineteenth century as States adopted rehabilitation as a pri-

mary goal of the penal system. See id. at 76-80, 159-163.

Since then, prison administrators at the state as well as the

federal level have expended great effort—often through ex-

perimentation with different approaches—to finding ways of

encouraging inmates to behave within prison walls and reha-

bilitating them for introduction back into society. The prison

restrictions at issue in this case represent one State’s efforts

to encourage better behavior among inmates who have proven

themselves to be among the most dangerous and recalcitrant

inmates in the State’s prison system.

1. a. In Pennsylvania’s prison system, inmates housed in

the general population who commit disciplinary infractions

and disrupt the orderly operation of their facility are subject

to transfer to a more secure housing unit and a corresponding

restriction of their privileges. Pennsylvania maintains three

levels of secure housing units for inmates segregated from the

general population because of their misconduct: (i) Restricted

Housing Units (RHUs); (ii) Special Management Units

(SMUs); and (iii) a Long Term Segregation Unit (LTSU). At

each level, there is a graduated increase in security measures

and an associated reduction of privileges available to inmates.

Pet. App. 47a; Br. in Opp. App. 50-51, 59.

Among the three levels, RHUs contain the beast restric-

tive conditions, and serve principally to house inmates placed

in disciplinary custody for their misconduct. The next level,

SMUs, “house inmates who exhibit behavior that is continu-

ally disruptive, violent, dangerous or a threat to the orderly

operation of their assigned facility,” and who “may have been

repeatedly subject to disciplinary action or investigation(s).”

The most restrictive level, the LTSU, houses “the extremely

disruptive, violent and problematic inmates,” who “have dem-

onstrated an inability or unwillingness to conform to the re-

quirements of general population.” Inmates may be consid-

ered for transfer to the LTSU if they “have continually mani-

fested a negative-influence on the safety and security of the

[Pennsylvania] Department of Corrections, have not suitably

progressed in an SMU, or have reportedly perpetuated crimi-

nal activity that threatens the community.” Br. in Opp. App.

59; see Pet. App. 3a-4a.

The LTSU “provide[s} extremely high levels of security

and sharply reduce[s] the privileges permitted.” Br. in Opp.

App. 59. LTSU inmates must wear physical restraints when

they leave their cells and must be escorted by two corrections

officers, and only one LTSU inmate is permitted outside his

cell at any particular time. Pennsylvania presently maintains

one LTSU, and has determined that no more than 40 of its

38,000 inmates statewide may be assigned to the LTSU. The

LTSU population thus is limited to the 0.1% of the Common-

wealth’s prison population that presents the most intractable

disciplinary problems and that, accordingly, presents the

greatest challenges in maintaining institutional order and in

achieving the Commonwealth’s rehabilitative goals. Pet. App.

3a n.1, 4a, 35a; Br. in Opp. App. 92, 94-95, 111.

b. Inmates who are transferred to an SMU or the LTSU

generally have no fixed date of release from those restricted

units, but they can gain a relaxation of the restrictions on

their privileges—and ultimately can obtain their release back

into the general population—by demonstrating progress in

their behavior and adjustment. An SMU contains five phases,

with the last phase amounting to a probationary period in the

general population. SMU inmates are “given the opportunity

to progress through [the] specific phases * * * based upon

their behavior and ability to adjust under reduced levels of

supervision.” Br. in Opp. App. 65. Promotion from one phase

to another, for instance, can result in increased visitation,

radio, television, telephone, and commissary privileges, and

can also earn an inmate the ability to leave his cell without

physical restraints. /d. at 66, 71, 73-75, 77; see Pet. App. 47a.

The LTSU is principally comprised of inmates who failed

to progress in an SMU. Br. in Opp. App. 21, 95. When this

litigation commenced, the LTSU contained two phases,

LTSU1 and LTSU2.' All inmates reassigned to the LTSU

must initially spend a minimum of 90 days in LTSU2, the

more restrictive of the two phases. /d. at 93. After that initial

90-day period, LTSU2 inmates receive an individualized prog-

ress review every 30 days, id. at 20, and inmates “who have

demonstrated a satisfactory adjustment” may be promoted to

LTSU1 status, id. at 21, 26-27, 67-68. LTSU1 “provides for

increased programming and privileges,” including with re-

spect to visitation, telephone, and commissary privileges, as

well as educational programs. /d. at 21-22, 32, 77; see Pet.

App. 47a. Prison officials also have discretion to authorize

additional privileges for an LTSU1 inmate on an individual-

ized basis. Br. in Opp. App. 21-22.

An inmate ultimately can gain release from the LTSU by

demonstrating “positive adjustment.” Br. in Opp. App. 20.

LTSU inmates “may be considered for release at any time and

at least annually,” and release “can be to a SMU, RHU, gen-

eral population or other appropriate facility.” /d. at 28.

c. Pennsylvania's general policy of granting and withhold-

ing inmate privileges as a means of inducing good behavior is

reflected in the rules concerning the extent to which SMU and

LTSU inmates may keep newspapers, magazines, and photo-

graphs in their cells. While each SMU inmate may possess at

We are acivised by Pennsylvania that it has recently modified the LTSU

such that it now contains four phases instead of two. That modification does

not affect the Court’s consideration of this case, as the initial stage continues

to contain the same restrictions that are at issue here.

least one newspaper and ten photographs in his cell, the num-

ber of magazines that he may retain varies from zero to ten,

depending on his progress through the five SMU phases. See

Pet. App. 47a; Br. in Opp. App. 70, 77. SMU inmates who

reach the final, probationary phase may retain in their cells

the same number of newspapers, magazines, and photographs

as inmates in the general population. /d. at 70.

Inmates transferred to the LTSU are subject to more

substantial restrictions on their possession of newspapers,

magazines, and photographs. LTSI!'2 inmates are barred

from possessing any newspapers or magazines in their cells,

but a promotion to LTSU1 enables an inmate to retain one

newspaper and five magazines. See Pet. App. 3a-4a; Br. in

Opp. App. 32, 70, 77. In addition, both LTSU2 and LTSU1

inmates are barred from possessing any personal photo-

graphs. LTSU inmates may, however, retain two leisure

books, and may also receive unlimited personal correspon-

dence. The correspondence may include clippings from news-

papers and magazines only if the particular article concerns

the inmate or his family. Pet. App. 4a; Br. in Opp. App. 32,

104, 106. The LTSU restrictions do not extend to religious

and legal materials. See Pet. App. 4a.

2. a. Respondeat was confined in the LTSU, and held as

a “Phase 2,” i.e., LTSU2, inmate. Br. in Opp. App. 2. On Oc-

tober 18, 2001, respondent, on behalf of a class of all LTSU2

inmates, brought this action against petitioner, the Secretary

of the Pennsylvania Department of Corrections. The action

alleges that Pennsylvania’s policy of denying newspapers,

magazines, and photographs to LTSU2 inmates is invalid un-

der the First Amendment, and it seeks declaratory and in-

junctive relief that would categorically bar enforcement of

that policy. Pet. App. 5a; Br. in Opp. App. 8-9. On March 22,

Although the complaint is not explicitly styled as either a facial or an as-

applied challenge, the suit is framed in the nature of a facial challenge to the

prison restrictions. The complaint was filed as a class action on behalf of all

LTSU2 inmates, it alleges that the prison restrictions are unconstitutional

2002, the district court granted respondent’s motion for class

certification. Pet. App. 6a.

The only witness to give deposition testimony during dis-

covery was Joel Dickson, a Deputy Superintendent of Correc-

tions who is responsible for supervising the LTSU. See Pet.

App. 5a, 36a; Br. in Opp. App. 90. Dickson observed that

LTSU2 inmates “are the most incorrigible, the most difficult,

problematic” inmates, and that they “have demonstrated the

most behavior conflicts.” /d. at 95. He further testified that

the “most important” reason for imposing the challenged re-

strictions on those inmates’ privileges “is as a means of behav-

ior modification. And by that, I mean that a privilege is an

earned thing based on compliance and modification of nega-

tive behaviors.” /d. at 110; see id. at 113.

Dickson explained that, “we try to give and provide the

inmate every opportunity to progress through this system and

to be able to obtain these privileges. We’re very limited * * *

in what we can and cannot deny or give to an inmate, and

these are some oi the items that we feel are legitimate as in-

centives for inmate growth.” Br. in Opp. App. 110. In the

LTSU, accordingly, “the privilege of being able to read a

newspaper or a magazine” is viewed as “an earned privilege,”

in the sense that an inmate, by adjusting his behavior, “can

earn their right to have those items in his cell and read them

at his leisure.” /d. at 111. The ultimate objective is “to do the

best we can to modify the inmate’s behavior so that” he can

“integrate into the general population in the institution” and

because they “categorically” deny LTSU2 inmates access to newspapers,

magazines, and photographs, Br. in Opp. App. 8, and it seeks declaratory and

injunctive relief that would prevent application of the restrictions against any

LTSU2 inmate, id. at 9. In addition, the court of appeals entertained respon-

dent's challenge as a facial challenge to the restrictions, holding that they were

invalid without any analysis of their application to particular facts. See Pet.

App. 25a; see also id. at 26a (Alito, J., dissenting) (“The question before us is

whether these * * * restrictions are facially unconstitutional under the standard

set out in Turner v. Safley.”). In any event, the court of appeals’ analysis is

erroneous as applied to respondent for the reasons explained below.

“eventually * * * can become a more productive citizen.”

Td. at 110.

b. In September 2002, the parties filed cross-motions for

summary judgment. Pet. App. 6a. Petitioner did not dispute

that inmates retain a First Amendment right to receive news-

papers, magazines, and photographs, but argued that Pennsyl-

vania’s policy represented a valid restriction of that right

under the analysis set forth in Turner v. Safley, 482 U.S. 78

(1987). See Pet. App. 8a n.5, 39a n.33. On January 10, 2003,

the district court, adopting the magistrate judge’s recommen-

dation, granted summary judgment to petitioner. The court

held that the State’s policy of denying newspapers, maga-

zines, and photographs to LTSU2 inmates does not violate the

First Amendment under Turner. The court explained that

the restrictions are reasonably related to the legitimate peno-

logical interest of “furthering prison security and encouraging

compliant behavior in particularly disobedient and rebellious

inmates,” id. at 39a, and, indeed, that the restrictions are

“imperative to the success of the LTSU,” id. at 40a.

3. A divided court of appeals vacated the district court’s

decision and remanded the case. Pet. App. la-29a.

a. The panel majority acknowledged that the objective of

deterring inmate misconduct is legitimate under the Turner

standard, but viewed the challenged restrictions as bearing no

rational relationship to that objective. Pet. App. lla-1l4a.

According to the majority, “the rehabilitation justification [is]

illogical given the nature of LTSU confinement.” /d. at 12a.

The majority reached that conclusion on the basis that

LTSU2 confinement has no fixed duration and that promotion

to LTSU1 is “entirely within the discretion of prison adminis-

trators.” /d. at lla. The majority also emphasized that Penn-

sylvania had “offered no evidence that the [LTSU restric-

tions] achieve[] or could achieve [the] stated rehabilitative

purpose.” /d. at 12a-13a. The majority explained that, in its

view, the requirement of producing such evidence is a “com-

plementary part of the [Turner] analysis in determining

whether an asserted goal is logically connected to the prison

regulation.” /d. at 14a n.10.

In addition to concluding that the restrictions had no logi-

cal connection to the objective of inducing good behavior, the

majority observed that LTSU2 inmates had no alternate

means of obtaining “access to a reasonable amount of newspa-

pers, magazines, and photographs.” Pet. App. 20a. The ma-

jority suggested two, less-restrictive policies that Pennsylva-

nia could adopt: (i) establishment of specific “reading periods”

in “which guards deliver a single newspaper or magazine to an

[LTSU2] inmate’s cell”; or (ii) a program under which an

LTSU2 inmate could be escorted by guards “to the secure

mini-law library to read a periodical of [his] choosing.” Jd. at

22a-23a.

b. Judge Alito dissented. Pet. App. 25a-29a. In his view,

it was rational for prison officials to believe that the chal-

lenged restrictions could deter inmates from violating prison

rules and could induce inmates already in the LTSU to reform

their benavior. Jd. at 27a. Judge Alito concluded that the

panel majority had misapplied Turner by requiring “empirical

evidence that the regulation in fact serves” those objectives,

rather than assessing whether the restrictions bear a “logical

connection” to the asserted goals. /d. at 28a (quoting Turner,

482 U.S. at 89) (emphasis added by Judge Alito). In addition,

Judge Alito observed that LTSU2 inmates can ultimately

remove the restrictions on access to reading materials and

photographs by modifying their behavior. bid. Judge Alito

also explained that the two alternate policies suggested by the

majority would impose significant burdens on prison adminis-

tration. Accordingly, Judge Alito concluded that, under

Turner, “the challenged regulations are not facially unconsti-

tutional.” /d. at 29a.°

In the proceedings below, Pennsylvania advanced two penological justi-

fications for the challenged restrictions. The “first and most important,” or

“primary” justification offered by Pennsylvania was that the restrictions deter

inmate miscenduct and induce LTSU inmates to reform their behavior. Br. in

SUMMARY OF ARGUMENT

Respondent’s First Amendment challenge to Pennsylva-

nia’s policy restricting the possession of newspapers, maga-

zines, and photographs by its most incorrigible inmates is

governed by the deferential standard set forth in Turner v.

Safley, 482 U.S. 78 (1987). As this Court has repeatedly rec-

ognized, Turner is grounded on the recognition that courts

should defer to the reasonable judgments of prison officials on

the difficult and sensitive matters of prison administration.

Under Turner, accordingly, a prison regulation is valid as

long as it is reasonably related to legitimate penological inter-

ests. In addition, in a facial challenge, like this one, a prison

regulation is valid as long as it is capable of being applied in

a manner that meets that reasonable-relationship test. See

Overton v. Bazzetta, 539 U.S. 126, 134 (2003).

The central consideration under Turner’s reasonableness

framework is whether the challenged regulation bears a “logi-

cal” connection to legitimate penological goals. Turner, 482

U.S. at 89. The challenged restrictions on LTSU2 inmates

aim to deter inmate misconduct and to induce the most dan-

gerous and recalcitrant prisoners in Pennsylvania’s prison

system to change their ways. Those objectives relate directly

Opp. App. 110, 113; see Pet. App. 5a, 36a. Pennsylvania also offered as a

secondary justification that the restrictions promote security by limiting the

amount of materials in an inmate’s possession in which contraband could be

hidden, and by preventing use of the prohibited materials as weapons or

instruments of harm. See Pet. App. 5a, 36a-37a; Br. in Opp. App. 110. Judge

Alito would have sustained the restrictions based solely on the primary, reha-

bilitation rationale, and he did not discuss the secondary rationale advanced by

Pennsylvania below. Likewise, because it is a sufficient basis to uphold the

restrictions under Turner, the Commonwealth's principal rehabilitation

rationale is the focus of this brief as well. The Commonwealth's rehabilitation

objective, however, has an important security dimension because encouraging

inmates to reform their deviant behavior promotes institutional order and,

thus, security within the prison walls. See pp. 16-17, infra. That is particularly

true with respect to the special class of inmates subject to the restrictions at

issue in this case, ie., the “worst of the worst.” Br. in Opp. App. 111.

to promoting rehabilitation of recalcitrant inmates and pre-

serving institutional order by encouraging good behavior and

discouraging misconduct, and they unquestionably are “legiti-

mate” objectives under the Turner standard.

The challenged restrictions on LTSU2 inmates also bear

the requisite, logical connection to those governmental inter-

ests. The “authority to offer inmates various incentives to

behave” is an “essential tool of prison administration,” and

the “Constitution accords prison officials wide latitude to be-

stow or revoke these perquisites as they see fit.” McKune v.

Lile, 536 U.S. 24, 39 (2002) (plurality opinion). The Court

therefore has upheld the suspension of visitation privileges

for inmates who commit multiple disciplinary infractions, on

the rationale that denial of those privileges is a valid means of

inducing acceptable inmate behavior. Overton, 539 U.S. at

134. The same conclusion follows in this case with respect to

the denial of newspapers, magazines, and photographs to the

most dangerous and recalcitrant inmates within Pennsylva-

nia’s prison system (7.¢., those inmates housed in the LTSU).

That restriction not only bears a rational connection to the

goal of deterring inmate misconduct, but it is an integral as-

pect of Pennsylvania’s graduated approach of granting and

withholding privileges to induce acceptable behavior.

The court of appeals erred in reasoning that, because

LTSU2 confinement has no preset duration, the challenged

restrictions are incapable of deterring inmate misconduct.

The uncertain duration of LTSU2 confinement does not re-

move the incentive of non-LTSU inmates to refrain from mis-

conduct so as to avoid transfer to the LTSU, or the incentive

of LTSU2 inmates to reform their behavior in the hopes of

earning a relaxation of the restrictions, which is possible as

soon as the initial 90-day period has expired. The uncertain

duration of LTSU2 detention also is entirely rational as peno-

logical policy. Rather than impose a predetermined limit on

the length of LTSU2 confinement, Pennsylvania sensibly ac-

cords prison officials discretion to reinstate the privileges of

the most recalcitrant inmates only upon an individualized

determination that any such inmate has in fact reformed his

behavior.

The court of appeals also erred in supposing that Pennsyl-

vania was required under Turner to accumulate record proof

of the efficacy of the challenged restrictions, and in engrafting

that evidentiary burden on to Turner’s logical-connection test.

Under Turner, the burden “is not on the State to prove the

validity of prison regulations but on the prisoner to disprove

it.” Overton, 539 U.S. at 132. Moreover, the Turner Standard

only requires that the restrictions logically advance the as-

serted governmental interest, not that they be demonstrated

to do so by empirical proof. In addition, the challenged re-

strictions advance the State’s interest in inducing behavior as

a matter of common sense. Unless the fact that the privileges

withheld here implicate First Amendment rights somehow

makes the privileges inviolate, there is no basis for shifting

the burden to the State or requiring empirical proof that pris-

oners respond to the extension and withdrawal of privileges.

Finally, the remaining considerations under Turner's rea-

sonableness framework reinforce the validity of the chal-

lenged restrictions. Because LTSU2 inmates are permitted

to receive books and unlimited personal correspondence, they

are not barred from possessing all forms of expressive materi-

als. Although inmates have no alternative means of receiving

newspapers, magazines, and photographs while they remain

in LTSU2, the very object of the restrictions is to deny those

materials in order to induce behavioral reform, and LTSU2

inmates retain the alternative of earning reinstatement of

their right to receive those materials by demonstrating good

behavior. In addition, there is no obvious, ready alternative

to the challenged restrictions. Indeed, allowing LTSU2 in-

mates limited access to newspapers or magazines would ne-

gate the basic object of the challenged restrictions by allowing

access to those materials without any demonstration of behav-

ioral change, and also would divert corrections officers from

other vital institutional functions.

ARGUMENT

A STATE MAY SEEK TO INDUCE IMPROVED BEHAVIOR

ON THE PART OF ITS MOST DANGEROUS AND INCORRIGI-

BLE INMATES BY DENYING NEWSPAPERS, MAGAZINES,

AND PHOTOGRAPHS TO THOSE INMATES UNTIL THEY

EXHIBIT ACCEPTABLE CONDUCT

In Turner v. Safley, 482 U.S. 78, 84 (1987), this Court

made clear that prison officials rather than courts are to make

the difficult judgments inherent in the inordinately difficult

task of managing prison inmates, and that the judgments of

those officials thus are to be upheld unless they lack a reason-

able relationship to valid penological goals. The Turner

framework rests on “separation of powers concerns” about

judicial interference with a task—prison administration—that

is “committed to the responsibility of [the executive and legis-

lative] branches,” and calls for added deference where, as

_here, the federal courts are asked to review the judgment of

State prison administrators. Turner, 482 U.S. at 85. In con-

cluding that the challenged restrictions on LTSU2 inmates

have no logical connection to the goal of inducing prisoners to

refrain from misconduct, the court of appeals fundamentally

misapplied T'urner, and thus intruded on the prerogatives of

the State in responding to an intractable problem of prison

administration—i.e., encouraging those inmates who have

reneatedly demonstrated an unwillingness to conform their

conduct to prison rules to reform their ways. __

A. Respondent’s First Amendment Challenge Is Governed

By The Deferential Standard Set Forth In Turner v.

Safley

1. Although “[p]rison walls do not form a barrier separat-

ing prison inmates from the protections of the Constitution,”

Turner, 482 U.S. at 84, the nature of confinement dictates

that “[mJany of the liberties and privileges enjoyed by other

citizens must be surrendered by the prisoner,” Overton v.

Bazzetta, 539 U.S. 126, 131 (2003). “{I]nearceration brings

about the necessary withdrawal or limitation of many privi-

leges and rights, a retraction justified by the considerations

underlying our penal system. The limitations on the exercise

of constitutional rights arise both from the fact of incarcera-

tion and from valid penological objectives.” O’Lone v. Estate

of Shabazz, 482 U.S. 342, 348 (1987) (citation and internal

quotation marks omitted); see Overton, 539 U.S. at 131; Shaw

v. Murphy, 532 U.S. 223, 229 (2001); Jones v. North Carolina

Prisoners’ Labor Unien, Inc., 433 U.S. 119, 125 (1977).

“In the First Amendment context, for instance, some

rights are simply inconsistent with the status of a prisoner or

‘with the legitimate penological objectives of the corrections

system.’” Shaw, 532 U.S. at 229 (quoting Pell v. Procunier,

417 U.S. 817, 822 (1974)); see Jones, 433 U.S. at 129. In addi-

tion to recognizing that the exercise of First Amendment

privileges by inmates is subject to “the legitimate penological

objectives of the corrections system,” ibid., this Court has

emphasized the need to “accord substantial deference to the

professional] judgment of prison administrators” when exam-

ining “the legitimate goals of a corrections system and * * *

the most appropriate means to accomplish them.” Overton,

539 U.S. at 132; Shaw, 532 U.S. at 229; Turner, 482 U.S. at 85,

89; Jones, 433 U.S. at 126, 128. The Court, accordingly, has

“reaffirm[ed] [its] refusal, even where claims are made under

the First Amendment, to substitute [its] judgment on. . . dif-

ficult and sensitive matters of institutional administration, for

the determinations of those charged with the formidable task

of running a prison.” O’Lone, 482 U.S. at 353 (citation and

internal quotation marks omitted). Deference to prison offi-

cials should be at its zenith when the policy at issue does not

deny the exercise of First Amendment rights entirely, but

withdraws or extends such rights as part of the process of

providing incentives for good behavior.

2. To give effect to those principles, the Court, in Turner

v. Safley, supra, established “a unitary, deferential standard

for reviewing prisoners’ constitutional claims.” Shaw, 532

U.S. at 229; see Johnson v. California, 125 S. Ct. 1141, 1149

(2005) (discussing “the deferential standard of review articu-

lated in Turner v. Safley”). Under Turner, a challenged

prison regulation is valid as long as it “is reasonably related

to legitimate penological interests.” Turner, 482 U.S. at 89.

Turner identified four specific considerations that inform

the overarching reasonableness inquiry: (i) whether the chal-

lenged restriction is rationally connected to a legitimate gov-

ernment interest; (ii) whether inmates have alternate means

of exercising the asserted constitutional right; (iii) whether

accommodation of the asserted right would adversely affect

other inmates, prison personnel, or prison resources; and (iv)

whether there are ready alternatives for achieving the gov-

ernmenta!l objectives. Turner, 482 U.S. at 89-91; see Overton,

539 U.S. at 132; Shaw, 532 U.S. at 229-230. In applying

Turner, the burden “is not on the State to prove the validity

of prison regulations but on the prisoner to disprove it.”

Overton, 539 U.S. at 132.*

It is undisputed that Turner’s deferential inquiry governs

the resolution of respondent’s challenge to the restrictions on

possession of newspapers, magazines, and photographs by

LTSU2 inmates. See Pet. App. 5a, 37a-38a. As a general

matter, “Turner provides the test for evaluating prisoners’

First Amendment challenges.” Shaw, 532 U.S. at 230. And of

. As the government has explained in United States v. Georgia and

Goodman v. Georgia, Nos. 04-1203 & 04-1236, although the Turner inquiry

affords broad discretion to prison officials, it differs from the minimal rational-

basis review applied in the equal protection and due process contexts. See U.S.

Reply Br. 13-14. For example, unlike rational-basis review, Turner calls for an

assessment of the existence of ready and obvious alternatives to the challenged

restrictions. See Turner, 482 U.S. at 90. Because the court of appeals’ decision

invalidating the restrictions at issue is fundamentally flawed for the reasons

explained helow, there is no need in this case for this Court to explore the

precise distinctions between rational-basis review and the Turner analysis.

particular relevance, the Court has “relied on Turner in ad-

dressing First Amendment challenges to prison * * * restric-

tions on receipt of subscription publications” by inmates.

Johnson, 125 S. Ct. at 1149 (citing Thornburgh v. Abbott,

490 U.S. 401 (1989)); see Abbott, 490 U.S. at 413 (“[Wle now

hold that regulations affecting the sending of a ‘rwblica-

tion’ * * * toa prisoner must be analyzed under the T 2rner

reasonableness standard.”). Significantly, although the Court

has confronted a number of First Amendment challenges to

prison regulations since Turner, it has yet to sustain any of

those First Amendment claims. See Johnson, 125 S. Ct. at

1148 (reviewing decisions applying Turner to First Amend-

ment claims); Overton, 539 U.S. at 128, 131-136; Shaw, 532

U.S. at 230-232; Abbott, 490 U.S. at 414-419; Turner, 482 U.S.

at 91-93; see also O’Lone, 482 U.S. at 349-353 (claim under

Free Exercise Clause). There is no basis for reaching a dif-

ferent result in this case.

B. The Restrictions At Issue Are Part Of A System Of In-

centives For Good Behavior And Bear A Rational Con-

nection To Legitimate Government Interests

The “{(flirst and foremost” question under Turner is

whether there is a “‘valid, rational connection’ between the

prison regulation and the legitimate [and neutral] governmen-

tal interest put forward to justify it.” Shaw, 532 U.S. at 229

(quoting Turner, 482 U.S. at 89) (second alteration in origi-

nal); see Overton, 539 U.S. at 132 (if a regulation “bear[s} a

rational relation to legitimate penological interests,” that

“suffices to sustain the regulation”); Amatel v. Reno, 156 F.3d

192, 196 (D.C. Cir. 1998) (“the first | Turner] factor looms es-

pecially large”), cert. denied, 527 U.S. 1035 (1999). The gov-

ernmental interests asserted in this case are undeniably legit-

imate, and the challenged restrictions are rationally related

to those interests.

1. The objectives of inducing acceptable behavior by

inmates and thereby promoting prison order and se-

curity constitute legitimate governmental interests

The challenged restrictions on LTSU2 inmates aim gener-

ally to encourage good behavior, and specifically, to induce

reformed behavior in inmates who have repeatedly demon-

strated an unwillingness to abide by prison rules. See Pet.

App. 5a, 9a-10a; Br. in Opp. App. 95, 110-111. The court of

appeals did not dispute that those interests qualify as “legiti-

mate” for purposes of Turner. See Pet. App. 10a-lla. And

the legitimacy of those interests is well-settled. Indeed, this

Court has characterized the “interest in preserving order and

authority in the prisons” as “self-evident,” O’Lone, 433 U.S.

at 132, and has explained that “preserving internal order and

discipline are essential goals that may require limitation or

retraction of the retained constitutional rights of * * * con-

victed prisoners,” Bell v. Wolfish, 441 U.S. 520, 546 (1979); see

id. at 548 n.30.

The interests in promoting discipline and order also bear

a direct and obvious connection to preserving institutional

security, “perhaps the most legitimate of penological goals.”

Overton, 539 U.S. at 133; see Cutter v. Wilkinson, 125 S. Ct.

2113, 2124 n.13 (2005) (“It bears repetition * * * that prison

security is a compelling state interest.”); Abbott, 490 U.S. at

415. That interest is all the more forceful in this case in view

of the particular focus of the LTSU on those inmates who

present the greatest threat to institutional security—.e., the

“most incorrigible” and “extremely disruptive, violent and

problematic inmates,” those with “serious behavioral prob-

lems and a high potential for repeating that behavior.” Br. in

Opp. App. 50, 59, 95. Encouraging such recalcitrant inmates

to reform their behavior has long been one of the most press-

ing challenges of prison administration, and is precisely the

sort of “intractable problem[] of prison administration” that

calls out for “innovative solutions.” Turner, 482 U.S. at 89.

The Turner analysis is specifically designed to encourage

rather than stifle such innovation. /bid.°

2. The denial of newspapers, magazines, and photo-

graphs to LTSU2 inmates is logicaliy connected to

the State’s legitimate penological interests

a. It is a matter of common sense that withholding desir-

able inmate privileges—as a sanction for misbehavior—may

deter prisoner misconduct and induce behavioral reform. See

Sandin v. Connor, 515 U.S. 472, 485 (1995) (“Discipline by

prison officials in response to a wide range of miscon-

duct * * * effectuates prison management and prisoner

rehabilitative goals.”). The entire system of prison disci-

pline—and indeed a basic rationale for modern criminal pun-

ishment—operates on such an assumption. Accordingly, as

this Court has recognized, “{a]n essential tool of prison ad-

ministration * * * is the authority to offer inmates various

° Under Turner, the asserted governmental interest must be both

“legitimate” and “neutral.” See Abbott, 490 U.S. at 414-415. Respondent has

not suggested that the challenged LTSU2 restrictions infringe the “neutrality”

requirement. As a general matter, those restrictions bar possession of news-

papers, magazines, and photographs, without regard to the content of those

materials. Although there is an exception for legal and religious materials, that

exception does not cast doubt on the “neutrality” of the restrictions under

Turner. A restriction is neutral for Turner purposes as long as it furthers a

governmental interest that is unrelated to suppression of expression. Abbott,

490 U.S. at 415; see Amatel, 156 F.3d at 197 (“{N jeutrality, in the | Turner]

sense is quite different from the familiar First Amendment notion of ‘content-

neutrality.’”). There could be no serious contention that Pennsylvania's excep-

tion for legal and religious materials—which implicates the affirmative rights

of inmates to have access to the courts and to engage in the free exercise of

religion—somehow suggests an illicit interest in suppression or “censorship”

of certain ideas. Abbott, 490 US. at 416 n.14; see Overton, 539 US. at 130, 134

(upholding suspension of visitation privileges for inmates with misconduct

infractions, where suspension contains exception for visits by attorneys and

members of the clergy); Abbott, 490 U.S. at 415-416 (When “prison admini-

strators draw distinctions between publications solely on the basis of their

potential implications for prison security, the regulations are ‘neutral’ in the

technical sense in which (the Court] meant and used that term in Turner.”).

incentives to behave,” and the “Constitution accords prison

officials wide latitude to bestow or revoke these perquisites as

they see fit.” McKune v. Lile, 536 U.S. 24, 39 (2002) (plurality

opinion). The challenged restrictions in this case fit squarely

within that category, and, like the privileges at issue in

McKune, are designed to address a special class of prison

inmates—i.e., “the most disruptive and dangerous .1% of

|Pennsylvania’s] prison population,” Pet. App. 25a (Alito, J.,

dissenting).°

The Court’s recent decision in Overton v. Bazzetta, supra,

is instructive. The Court there upheld certain restrictions on

inmates’ visitation privileges, including a prohibition against

receipt of any visitors for at least two years (except attorneys

and members of the clergy) in the case of any inmate who

accumulates more than one substance-abuse violation. See

539 U.S. at 130, 134. The Court upheld that sanction and

viewed the objections to it as meriting only relatively brief

discussion. The Court explained: “Withdrawing visitation

privileges is a proper and even necessary management tech-

nique to induce compliance with the rules of inmate behavior,

especially for high-security prisoners who have few other

privileges to lose.” Jd. at 134.

So too here. Just like the withdrawal of visitation privi-

leges in Overton for multiple substance-abusers, the with-

drawal of the privilege of possessing newspapers, magazines,

tutionally adequate disciplinary procedures, the proper focus of analysis may

well be the level of First Amendment rights an inmate can enjoy within prison

walls, not the situation faced by those inmates who would enjoy substantially

greater First Amendment freedoms but for their failure to comply with valid

prison rules. At a minimum, the courts must view the denial of access to

outside materials as a disciplinary sanction much more leniently than a

comparable denial to all inmates. The process of calibrating the extension and

withdrawal of privileges to provide adequate incentives for compliance with

prison rules is peculiarly ill-suited to judicial second-guessing, and the “ready

alternative” of compliance with prison rules to obtain enhanced privileges

should figure prominently in the Turner analysis. See Turner, 482 U.S. at 90.

and photographs for LTSU2 inmates—who by definition have

demonstrated a difficulty in following prison rules—‘“is a

proper and even necessary management technique to induce

compliance with the rules of inmate behavior.” 539 U.S. at

134. The propriety of the restrictions at issue here is espe-

cially manifest because LTSU2 inmates are “high-security

prisoners who have few other privileges to lose.” /bid. The

challenged restrictions on LTSU2 inmates thus plainly bear

the requisite, logical connection to Pennsylvania’s asserted

interests in encouraging good behavior and inducing the most

recalcitrant prisoners to refrain from further misconduct.’

Turner requires according “substantial deference to the

professional judgment of prison administrators” with respect

to “defining the legitimate goals of a corrections system

and * * * determining the most appropriate means to ac-

complish them.” Overton, 539 U.S. at 132 (emphasis added).

The judgments of prison officials are particularly deserving

of deference when, as here, they concern how to deal with

inmates who present pronounced disciplinary challenges and

threaten institutional order, a subject that lies at the heart of

those officials’ expertise. The Court therefore has recognized

that “Turner's principle of deference has special force with

regard to” the treatment of “inmates presenting special disci-

plinary and security concerns,” Lewis v. Casey 518 U.S. 343,

361 (1996), and that prison officials “should be accorded wide-

ranging deference in the adoption and execution of policies

and practices that in their judgment are needed to preserve

: Respondent relies heavily (Br. in Opp. 12-16) on this Court’s invalidation

in Turner of a regulation permitting inmates to marry only with the permission

of the prison superintendent. See Turner, 482 U.S. at 94-99. In invalidating

that restriction, however, the Court reasoned that “[clommon sense * * *

suggest/ ed that there is no logical connection between the marriage restriction”

and the security concerns raised by the possible “formation of love triangles.”

Id. at 98. In this case, by contrast, there is a common-sense, logical connection

between the denial of desirable inmate privileges and the objective of inducing

_ behavioral reform—a connection that this Court specifically recognized in

Overton. See 539 U.S. at 134.

internal order and discipline,” Bell, 441 U.S. at 547. See Cut-

ter, 125 S. Ct. at 2124 n.13 (“prison security is a compelling

State interest, and * * * deference is due to institutional

officials’ expertise in the area”); McKune, 536 U.S. at 39 (plu-

rality opinion).

In view of the common-sense connection between with-

holding valued inmate privileges and inducing good behavior,

as well as the deference owed to prison officials on the precise

means of effectuating that objective, there is no basis for con-

cluding that the “logical connection” between the challenged

restrictions on LTSU inmates “and the asserted goal is so

remote as to render the policy arbitrary or irrational.”

Turner, 482 U.S. at 89-90. Far from being arbitrary or irra-

tional, those restrictions are an integral part of Pennsylva-

nia’s graduated inmate disciplinary system. That system gen-

erally reflects the view that adjusting the privilege of possess-

ing magazines, newspapers, and photographs, constitutes an

important means of inducing good inmate behavior, and is

part and parcel of a broader common-sense philosophy that

granting and withholding privileges is a valuable means of

encouraging desirable prisoner conduct. See pp. 2-5, supra.

Consistent with that general approach, it is entirely rational

that, for the worst of the worst inmates, Pennsylvania would

deny the privilege of possessing newspapers, magazines, and

photographs, until such inmates demonstrate that they are

capable of behavioral reform.

b. In concluding that the challenged restrictions on LTSU

inmates bear no logical connection to Pennsylvania’s asserted

interests, the court of appeals focused on Pennsylvania's elec-

tion to continue LTSU2 confinement until prison officials

deem promotion of the inmate to be appropriate, and the re-

sulting fact that the Commonwealth does not spell out exactly

when an LTSU2 inmate might earn relaxation of the restric-

tions. See Pet. App. 1la-12a. That approach is deeply flawed

and unduly constrains the discretion of prison officials con-

cerning the precise contours of a disciplinary scheme.

As an initial matter, the court of appeals’ approach cannot

be squared with this Court’s decision in Overton. The prohibi-

tion in that case against visitation privileges for inmates with

multiple substance-abuse infractions was imposed for a mini-

mum period of two years, after which an inmate could apply

for restoration of visitation privileges at the discretion of the

warden. See 539 U.S. at 130. In upholding that restriction,

the Court specifically rejected the argument that it bore no

rational connection to the asserted governmental interests

because restoration of visitation was “not automatic even at

the end of two years.” /d. at 134. The Court “agree[d] the

restriction is severe,” but concluded that its severity and in-

definite duration did not warrants its invalidation “in all in-

stances.” /bid. This case, like Overton, involves a categorical

challenge to the validity of the challenged restrictions brought

on behalf of all LTSU2 inmates. And just as in Overton, the

uncertain duration of the restrictions with respect to any par-

ticular inmate, and the discretion accorded prisor officials in

that regard, affords no basis for invalidating the restrictions

as a categorical matter.*

Moreover, the court of appeals erred in concluding that

the uncertain duration of LTSU2 confinement renders the

challenged restrictions “illogical” and incapable of deterring

inmate misconduct. Pet. App. 12a. The court’s reasoning

would apply to all privileges denied to LTSU2 inmates—not

just the bar against possession of newspapers, magazines, and

photographs—and it is unsound in several respects. First, the

* The Court suggested in Overton that, if it were confronted with evidence

in a subsequent as-applied challenge that the visitation restriction were

“treated as a de facto permanent ban on all visitation for certain inmates, [it]

might reach a different conclusion in a challenge to a particular application of

the regulation.” 539 U.S. at 134. Similarly, as Judge Alito observed below,

“[aln as-applied challenge by an inmate subjectea w lengthy confinement in

Level 2 despite a record of reformed behavior would present different con-

siderations, but the majority's opinion is not limited to such a case.” Pet. App.

28a (dissenting opinion).

uncertain duration of LTSU2 confinement does not remove

the deterrent effect on inmates who have yet to be trans-

ferred into the LTSU. See Pet. App. 27a (Alito, J., dissent-

ing). The challenged restrictions similarly serve as an induce-

ment for those LTSU inmates who have been promoted to

LTSU1 status to avoid demotion and re-transfer to LTSU2

confinement. With respect LTSU2 inmates, finally, even if

uncertainty about the duration of LTSU2 confinement “may

have an impact on the degree of the incentive” to “refrain

from disruptive behavior in the hope of obtaining a transfer

out of the unit,” there “is no reason to suppose that the incen-

tive is wholly destroyed,” id. at 27a-28a (Alito, J., dissenting)

(emphasis added), and certainly respondent has not met his

burden of showing that the incentive is “wholly destroyed.”

Accordingly, notwithstanding the uncertain duration of

LTSU2 confinement, Pennsylvania prison officials acted well

within their discretion in concluding that the challenged re-

strictions bear a logical connection to the objectives of deter-

ring inmate misconduct and inducing behavioral reform. Un-

certainty about the duration of the challenged restrictions in

fact is likely to euhance—rather than diminish—the degree to

which they serve as a deterrent.’ Indeed, for the recalcitrant

inmates in LTSU2 confinement, as to whom standard methods

of discipline have proved unfruitful, withholding privileges for

a preset duration may do little more than encourage the in-

mate to wait out the period.

For those reasons, there is nothing arbitrary or irrational

about Pennsylvania’s decision to impose the challenged re-

strictions without also establishing an inflexible, predeter-

See, e.g., Dru Stevenson, Toward u New Theory of Notice and Deter-

rence, 26 Cardozo L. Rev. 1535, 1581 (2005) (“even risk-preferring individuals

—who might be undeterred by normal threats of sanctions—could find uncer-

tainty to be a significant disincentive”); Tom Baker et al., The Virtues of

Uncertainty in Law: An Experimental Approach, 89 lowa L. Rev. 443, 445

(2004) (“uncertain sanctions * * * achieve more deterrence than certain

sanctions”).

mined limitation on the duration of LTSU2 confinement.

LTSU2 inmates, by definition, present extraordinary disci-

plinary problems; indeed, most have found their way to the

LTSU because they have failed to respond to standard disci-

plinary measures including in many cases sanctions of a finite

duration. See Br. in Opp. App. 95. It is entirely rational in

that context to accord esor-oth@ials discretion to continue an

inmate’s LTSU2 confinement until the officials perceive ade-

quate, individualized indicia of behavioral reform. That is

particularly true insofar as promotion from LTSU2 confine-

ment might presage an eventual release to the general inmate

population. Cf. Hewitt v. Helms, 459 U.S. 460, 477 n.9 (1983)

(“The decision whether a prisoner remains a security risk will

be based on facts relating to a particular prisoner * * * and on

the officials’ general knowledge of prison conditions and ten-

sions, which are singularly unsuited for ‘proof’ in any highly

structured manner.”).’°

0 In addition to relying on the uncertain duration of LTSU2 confinement,

the court of appeals also pointed to a perceived lack of clarity concerning the

precise forms of misconduct that result in transfer to the LTSU, as well as the

precise sorts of behavioral reforms that can result in an LTSU inmate’s pro-

motion from LTSU2 status. See Pet. App. lla. Those perceived uncertainties

offer no more basis for invalidating the challenged restrictions than does the

uncertainty surrounding the duration of LTSU2 confinement. Moreover, the

sound reasons that support Pennsylvania’s decision to refrain from imposing

an inflexible limitation on the duration of LTSU2 confinement also support

preserving the discretion of prison officials to determine, based on indivi-

dualized assessments, both whether an inmate’s misconduct is sufficiently

severe to warrant transfer to the LTSU and whether an LTSU2 inmate has

reformed his behavior in a manner warranting advancement to LTSU1 status.

See id. at 3a n.2 (enumerating conduct that can warrant transfer to LTSU); Br.

in Opp. App. 26-27 (setting forth considerations that bear on propriety of

promotion from LTSU2). The court of appeals also appeared to misperceive

the potential grounds for transfer to the LTSU. The court indicated that an

inmate could be transferred to the LTSU in the absence of any misconduct

infraction at all, see Pet. App. lla, but the record does not support that

understanding. The portion of the deposition testimony cited by the court of

appeals indicates that an inmate, in atypical circumstances, might be

ec. The court of appeals reasoned that Pennsylvania had

failed to accumulate sufficient record proof that the chal-

lenged restrictions in fact advance the objectives of deterring

misconduct and inducing behavioral reforms. Pet. App. 12a-

14a. In the court’s view, prison officials were required to

demonstrate that their “deprivation theory of behavior modifi-

cation” has a “basis in real human psychology, or ha[s] proven

effective with LTSU inmates.” /d. at 13a. That analysis is

contradicted by this Court’s precedents.

Turner does not require a State to amass evidentiary

proof to justify its prison rules. Turner requires only that

prison regulations “logically advance[]” a legitimate penologi-

cal interest, not that they be empirically proven to have the

desired effect. 482 U.S. 93; see id. at 91, 93. Turner itself

illustrates the point. In upholding restrictions on correspon-

dence between inmates in different institutions based on con-

cerns about the possibility of communicating escape plans or

coordinating acts of violence, the Court explained that there

need only be “a logical connection between [those] security

concerns * * * and a ban on inmate-to-inmate correspon-

dence,” not “a searching examination of the record to deter-

mine whether there was sufficient proof that inmate corre-

spondence had actually led to an escape plot, uprising, or

gang violence.” /d. at 93-94 n.*. Indeed, the absence of the

need for empirical proof and factual findings is what distin-

guished the Turner standard from strict scrutiny. See ibid."

transferred to the LTSU without first having been assigned to an SMU, not

that an inmate could be transferred to the LTSU without any predicate

determination of misconduct at all. See Br. in Opp. App. 95.

'l As the District of Columbia Circuit explained in upholding restrictions on

inmates’ possession of pornographic publications, “(t)here is, of course, no

‘record evidence,’ and certainly no sophisticated multiple regression analysis

or other social science data, to support [the] belief” that excluding pornography

from prisons advances the asserted interest in prisoner rehabilitation. Amatel,

156 F.3d at 199. The court did “not think, however, that common sense must

be the mere handmaiden of social science data or expert testimonials.” /bid.

Instead, while “scientific studies can have a corrective effect by establishing an

Because the existence of a rational connection between the

challenged restrictions on inmates and the asserted govern-

mental interests is evident as a matter of common sense, re-

spondent bore the burden of disproving the rationality of the

restrictions. See Jones, 433 U.S. at 127-128 (“Without a show-

ing that [the] beliefs” of prison administrators “were unrea-

sonable, it was error for the District Court to conclude that

[they] needed to show more.”). As a practical matter, the

court of appeals’ approach shifted that burden and errone-

ously placed it on the State. See Overton, 539 U.S. at 132; see

also Johnson, 125 S. Ct. 1146 n.1 & 1151 (rejecting application

of Turner analysis in race context because burden of proof in

considering government’s use of race should not be on the

inmate). Indeed, the court of appeals accepted, in the absence

of any record proof, the common-sense conclusion that various

restrictions on the privileges of LTSU2 inmates other than

the ones challenged in this case (such as restrictions on visita-

tion, telephone calls, commissary use, compensation, and in-

cell educational programs) advance Pennsylvania’s “behavior

modification goals.” Pet. App. 25a. The court had no basis for

imposing any different burden with respect to the challenged

restrictions on newspapers, magazines, and photographs.”

apparently implausible connection or refuting an apparently obvious one, * * *

conformity to commonsensical intuitive judgments is a standard element of

both reasonableness and rationality.” /bid.; accord Mauro v. Arpaio, 188 F.3d

1054, 1059-1060 (9th Cir. 1999) (en banc), cert. denied, 529 U.S. 1018 (2000).

2 Respondent’s claim ultimately requires adopting the view that privileges

that implicate First Amendment interests are categorically different from

other privileges. But that position cannot be sustained either practically or

legally. As a practical matter, many of the most desirable privileges—from

watching television to receiving visitors—implicate First Amendment interests.

And the extension and withdrawal of privileges provide effective incentives

precisely because they are desirable. As a legal matter, moreover, this Court

has made clear that Turner deference is fully applicable to al) First

Amendment claims, and that deference is particularly appropriate when such

privileges are withdrawn as part of an effort to induce compliance with prison

rules. See Overton, 539 U.S. at 134. The court of appeals speculated that the

Finally, imposing an evidentiary burden on States to

prove that a challenged prison regulation advances particular

penological objectives would discourage if not prevent States

from pursuing “innovative solutions to the intractable prob-

lems of prison administration,” Turner, 482 U.S. at 89, be-

cause it would be difficult and costly for prison administrators

to amass the necessary data to sustain such a burden.

Turner's deferential standard, however, was designed to pro-

mote creative approaches to prison administration with full

appreciation of the fact that innovative approaches may be

needed to address persistent problems— such as encouraging

reform among the prison’s most incorrigible inmates.

C. The Remaining Considerations Under Turner Reinforce

The Reasonableness Of The Challenged Restrictions

1. Turner’s reasonableness test calls for consideration of

three other factors. The first is whether “alternative means

of exercising the right” remain available to inmates. Turner,

482 U.S. at 90. “Of course if the ‘right’ at stake is defined in

terms of the materials excluded by the ban, any regulation

will come up short.” Amatel, 156 F.3d at 201. The Court thus

has emphasized that the right “must be viewed sensibly and

expansively.” Abbott, 490 U.S. at 417. In O’Lone, for in-

stance, the Court upheld a regulation even though it elimi-

nated the ability of inmates to attend a weekly Muslim con-

gregational service, reasoning that inmates retained the abil-

ity to participate in other Muslim religious exercises. 482

challenged restrictions “may produce less rather than more compliance in at

least some inmates,” Pet. App. 14a, a supposition that was based on a handful

of statements in judicial opinions generally supporting the abstract notion that

“isolating prisoners from the going|s]-on in the outside world tends to undercut

any genuine rehabilitation,” id. at 13a. But Turner warns against judges

substituting their assessment of proper prison administration for that of prison

officials. That admonition cannot be circumvented by relying on the judicial

assessments of other judges in earlier reported cases. More fundamentally,

that analysis mistakes what is sound prison policy for inmates in general, with

the proper way to deal with the most recalcitrant inmates.

U.S. at 351-352. Likewise, in Overton, the Court acknowl-

edged that the complete ban on visitation for repeat offenders

eliminated any alternative form of visitation, but nonetheless

emphasized that the inmates “may communicate with people

outside the prison by letter and telephone.” 539 U.S. at 135.

The need to view the right at stake “sensibly and expan-

sively” is particularly manifest in the circumstances of this

case, as the entire object of the challenged restrictions is to

deny access to newspapers, magazines, and photographs, in

order to deter misconduct and induce behavioral reform. Be-

cause the very purpose of the restrictions is to deny a privi-

lege as a means of inducing good behavior, the most straight-

forward “alternative means of exercising the right,” Turner,

482 U.S. at 90, is the inmate’s ability to avoid the sanction by

complying with prison rules and to earn reinstatement of the

privilege by demonstrating modified behavior. In Overton,

the Court accordingly upheld the prohibition against visita-

tion for multiple substance-abuse violators despite the lack of

any means of obtaining visitation other than persuading the

warden to reinstate the privilege as a matter of discretion.

See 539 U.S. at 130, 134-135."

In addition, LTSU2 inmates are not denied all forms of

expressive materials. See T'urner, 482 U.S. at 92 (upholding

restrictions on inmate-to-inmate correspondence that did “not

‘3 The court of appeals suggested that there was insufficient record

evidence documenting the precise process by which an inmate could obtain pro-

motion from LTSU2 confinement and a resulting reinstatement of newspaper

and magazine privileges. See Pet. App. 20a-21a. This case, however, has been

litigated by respondent as a facial challenge, not an as-applied challenge in

which a particular inmate contends that he has been unfairly denied promotion

under facially valid rules. With respect to the facial validity of the restrictions,

the record contains the rules setting forth the criteria by which prison officials

decide whether promotion from LTSU2 confinement is warranted, see Br. in

Opp. App. 26-27, and also contains deposition testimony about the availability

of promotion, zd. at 110. That testimony indicates that some inmates have been

promoted from LTSU2 to LTSU1 status, and that some inmates have advanced

out of the LTSU altogether. /d. at 93-95.

deprive prisoners of all means of expression”). LTSU2 in-

mates may retain books in their cells, and also have no special

restrictions on their receipt of personal correspondence. See

Pet. App. 47a. Respondent suggests thet LTSU2 inmates

nonetheless are denied the ability to keep abreast of “current

political, social, and other public events.” Br. in Opp. 5. A

narrow focus on publications about current events, however,

is not a “sensibl[e] and “expansive[]” understanding of the

right at stake. Abbott, 490 U.S. at 417. At any rate, the re-

strictions do not prevent LTSU2 inmates from learning about

current events through personal correspondence, or through

their limited personal visits.

2. The remaining considerations under Turner are: (i) the

impact on prison persor.nel, other inmates, and institutional

resources, of accommodating the interest of LTSU2 inmates

in possessing newspapers, magazines, and photographs; and

(ii) the availability of “ready alternatives” to the challenged

restrictions. Turner, 482 U.S. at 90. Cf. O’Lone, 482 U.S. at

352-353 (examining the two considerations together). With

respect to the impact on prison personnel and other inmates,

the challenged restrictions aim to deter extreme conduct of

the kind that warrants transfer to the LTSU, and to induce

behavioral reforms in the most unruly inmates. The restric-

tions thus are grounded in concerns about protecting the

safety of prison personnel and other inmates. See Turner,

482 U.S. at 92 (deferring to judgment of prison officials that

relaxing restrictions on inmate-to-inmate correspondence

would threaten safety of “guards and other prisoners alike”).

With respect to the availability of ready alternatives and

the effect on institutional resources, the Court has empha-

sized that “Turner does not impose a least-restrictive alterna-

tive test, but asks instead whether the prisoner has pointed to

some obvious regulatory alternative that fully accommodates

the asserted right while not imposing more than a de minimis

cost to the valid penological goal.” Overton, 539 U.S. at 136.

The court of appeals proposed two alternative policies in place

of the one adopted by prison administrators. The first con-

templates establishing a prescribed “reading period” during

which corrections officers could bring a newspaper or maga-

zine to an inmate’s cell, and the second envisions officers es-

corting inmates to the secure LTSU library to read a newspa-

per or magazine. Pet. App. 22a-23a. Each of those alterna-

tives would nullify the basic object of the restrictions by par-

tially restoring the denied privileges without any demonstra-

tion of improved behavior on the part of LTSU2 inmates. For

that reason alone, the court’s preferred alternatives cannot be

said to impose “so little cost to penological goals that they

meet Turner's high standard.” Overton, 539 U.S. at 136.

The proposed alternatives also would impose potentially

significant costs on prison resources by diverting corrections

officers from other essential duties, either to facilitate escort-

ing of each LTSU2 inmate to the designated reading area, or

to permit delivering the materials to (and retrieving them

from) each LTSU2 inmate’s cell. See Pet. App. 29a (Alito, J.,

dissenting); see also Abbott, 490 U.S. at 419 (noting that “ad-

ministrative inconvenience of [the] proposed alternative is

also a factor to be considered”). The diversion of corrections

officers raises particular concerns in the potentially volatile

setting of the LTSU, which houses Pennsylvania’s most dan-

gerous inmates. In the LTSU, two officers must be on hand

to escort any inmate for any permissible activity outside of his

cell, including showers, exercise, disciplinary proceedings,

and the like. Pulling officers away from those responsibilities

to supervise inmate trips to a recreational “reading room” or

to serve as librarians ferrying reading materials to and from

inmates’ cells would unduly interfere with the significant de-

mands of securing the LTSU. For those reasons, the alterna-

tives proposed by the court of appeals in no sense constitute

“obvious, easy alternatives” to the policy chosen by Pennsyl-

vania prison officials for dealing with the State’s most danger-

ous and recalcitrant inmates. Turner, 482 U.S. at 90.

CONCLUSION

The judgment of the court of appeals should be reversed.

Respectfully submitted.