# Amicus Curiae Brief — Beard v. Banks

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0107%3A09

## Record

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

## Text

| FEB 16 2005

No. 04-1739 —— Of — p-ERK
=e Ur TUS.

IN THE

Supreme Court of the United States

.> 2s

* BEST AVAILABLE COPY (~o)

JEFFREY A. BEARD, SECRETARY,
PENNSYLVANIA DEPARTMENT OF CORRECTIONS,

Petitioner,

RONALD BANKS, et al.,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE THIRD CIRCUIT

BRIEF OF THE AMERICAN CIVIL LIBERTIES UNION,
ACLU OF PENNSYLVANIA, THE LEGAL AID SOCIETY,
PEOPLE FOR THE AMERICAN WAY FOUNDATION,
AMERICAN FRIENDS SERVICE COMMITTEE, AND
CALIFORNIA PRISON FOCUS AS AMICI CURIAE

IN SUPPORT OF RESPONDENTS
STEVEN R. SHAPIRO JEFFREY M. MONKS
AMERICAN CIVIL LIBERTIES DAVID C. FATHI
UNION FOUNDATION Counsel of Record
125 Broad Street, 18th Floor ELIZABETH ALEXANDER
New York, New York 10004 AMERICAN CIVIL LIBERTIES
(212) 549-2500 UNION FOUNDATION

915 15th Street, NW, 7th Floor
Washington, D.C. 20005
(202) 393-4930

Attorneys for Amici
(Counsel continued on inside front cover)

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TABLE OF AUTHORITIES

INTERESTS OF AM/C] CURIAE

BEAD eemeees COP POU CARS 2 on. wc ccc eserves

SUMMARY OF THE ARGUMENT

ARGUMENT

TABLE OF CONTENTS

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TURNER DEFERENCE IS
INAPPROPRIATE ON THE

FACTS OF THIS CASE -...........

A. An amorphous interest in
general deterrence is not
entitled to Turner deference

B. The nature of Respondents’
asserted nght supports a
heightened standard

| Le ane i ere

EVEN UNDER TURNER,
PETITIONER’S POLICY IS AN

“EXAGGERATED RESPONSE” ......

A. Banning all news and
commentary 1s not
logically connected with
Petitioner's asserted

interest in deterrence ..........

SS @€.8 oe 6 O24. © oO 68 4.09 6 a a6

1. The Court of Appeals
did not err in evaluating
a errr ry 15

2. Even if Petitioner was
not required to adduce
evidence, the policy is
not logically connected
to a legitimate
penological interest ..... 19

B. The policy leaves
Respondents with no
alternatives for exercising
their First Amendment
Ee ae ia oe wince 23

C. Accommodating
Respondents’ First
Amendment nghts will
have no more than a de
minimis etfect on legitimate

penological interests ........... 26
D. Turner is not toothless ............ 28
I ia oo oa aks oa ek oon once weeds 30

APPENDIX

INTERCOtS OF AMICICURIAE ................. la

ill

TABLE OF AUTHORITIES

CASES
Abdul Wali v. Coughlin, 754 F.2d 1015

ot Breen rir ee en St 20
Ashker v. California Dep't of Corrections,

Coe kg ek ere ee 17
Banks vy. Beard, 399 F.3d 134

tole eer rrr rrr errr
Beerheide v. Suthers, 286 F.3d 1179

ft er er mer ees eee 17
Bell v. Wolfish, 441 U.S. 520 (1979) ................- 7

Board of Trustees of Univ. of Alabama
vy. Gepost, S31 US. SIO GIGS) co kes stkverredes 16

Central Virginia Community College v. Katz,
tk ee Pee: ere eee 11

Clement v. California Dep't of Corrections,

220 F.Supp.2d 1098 (N.D. Cal. 2002),

aff'd, 364 F.3d 1148 (9th Cir. 2004)... 2.0.0.0... 20)
Connick v. Myers, 461 U.S. 138 (1983) ............. }2

Daigre v. Maggio, 719 F.2d 1310
et DFR Eee Orr 20

Davis v. Norris, 249 F.3d 800 (8th Cir. 2001) 2.2.2... 1?

IV

Estelle v. Gamble, 429 U.S. 97 (1976) .............. 2)
Flagner v. Wilkinson, 241 F.3d 475

ee eet ee een deers 17
Garrison v. Louisiana, 379 U.S. 64 (1964) ........... 1]
Gregory v. Auger, 768 F.2d 287

NE Oe ae 20
Grosjean v. American Press Co.,

Ee a) i we ecwwen 11
Guajardo v. Estelle, 568 F. Supp. 1354

ES SS 7, 20
In Re Medley, 134 U.S. 160 (1890) ................. 18
Jacklovich v. Simmons, 392 F.3d 420

es os wees 20, 21

Johnson v. California, 543 U.S. 499
ES

Jones v. North Carolina Prisoners’ Labor
Union, Inc., 433 U.S. 119 (1977) ....

Jones ‘El vy. Berge, 164 F.Supp.2d 1096
a ira oe g's g A e:0 4

Kimberlin v. U.S. Dep't of Justice,
150 F.Supp.2d 36 (D.D.C. 2001) _..

Kimberlin v. U.S. Dep't of Justice,
318 F.3d 228 (D.C. Cir. 2003) ......

Vv

King v. Fed. Bureau of Prisons,
a 6, 16

Knecht v. Collins, 903 F. Supp. 1193
(S.D. Ohio 1995), rev'd on other grounds,

187 F.3d 636 (6th Cir. June 15,1999) ............ 20
Lewis v. Casey, 518 U.S. 343 (1996) ................ 13
Lutle v. Norris, 787 F.2d 1241

EER ee ETT DLT AI Eb ae Bees 20
McKune v. Lile, 536 US. I oid tak 0 ee ok Be ta 6
Miller-El v. Cockrell, 537 U.S. 322 (2003) ........... 28
Morrison v. Garraghty, 239 F.3d 648

I id a ht hl nate te re eis ie 17
Morrison v. Hall, 261 F.3d 896

RRS ee. ee en may oe 20
New York State Club Ass'n, Inc. v.

City of New York, 487 U.S. 1 (1988) ............. 16
O'Lone v. Estate of Shabazz,

I Pn sr a passim
Overton v. Bazzetta, 539 U.S. 126 (2003) ......... passim
Pell v. Procunier, 417 U.S. 817 (1974) ............ 7, 25

Procunier v. Martinez.
es SI, 0 hn cla c 0 u'uh wa dda eee ie ¢ passim

v1

Red Lion Broadcasting Co. v. F.C.C.,

EE «bce 4600 od band > he cuea nies 23
Romer v. Evans, 517 U.S. 620 (1996) ................ 7
Rust v. Sullivan, 500 U.S. 173 (1991) ............... 16
Shaw v. Murphy, 532 U.S. 223 (2001)... ..... 4,7,11,29
Spellman v. Hopper, 95 F.Supp.2d 1267

I EE a'n' bare ik aa 059 64 wins oh 7, 20
Thornburgh v. Abbott, 490 U.S. 401

SE piu we unveenedencidessheuescecdeiin passim
Trop v. Dulles, 356 U.S. 86 (1958) .............. 11,12
Turner v. Saflev, 482 U.S. 78 (1987) .. 2.2... 26... passim

Washington v. Harper, 494 U.S. 210
EE 5% ah 4d oiin'e i ed hele ob whe ae eee 4, 16,17

STATUTES AND REGULATIONS

mee Oe. cc ie: 2
RI Greet eRe Reese pain As 21, 22
os SO Geen iy eereeery ee 21
I oe ee ee

Vil
OTHER AUTHORITIES

American Correctional Association,
Standards for Adult Correctional
i a. iw whee ween’

Harry Elmer Barnes, Evolution of Penology
RR ere ror ee

M. Keith Chen and Jesse M. Shapiro,
Does Prison Harden Inmates?
A Discontinuity-based Approach (2005),
http://www.som. yale.edu/Faculty/keith.
chen/papers/pnson072405S pdf ..................

Corrections Compendium, High Level
Security Inmates, September 2003,
SEE ERACdkales Adank 6e6benu sew ab oewe ets

Richard Morin, 7ime /n and Time Out,
Washington Post, Feb 2, 2006, at A2.............

David J. Rothman, Perfecting the Prison,
in Oxford History of the Pnson,
(Morns & Rothman eds.1995) ..................

United Nations Congress on Prevention
of Cnme and Treatment of Offenders,
Standard Minimum Rules for the
Treatment of Prisoners (1955) ..................

22

18

8

18

_-_-

INTERESTS OF AMICI CURIAE'

The statements of interest of the amici curiae are set
forth in the Appendix.

STATEMENT OF THE CASE

Opened in April 2000, the Long Term Segregation Unit
(LTSU) at SCI-Pittsburgh is designed to make life as unpleas-
ant as possible for those prisoners who are deemed incormigible
and recalcitrant by prison administrators. Respondents are a
class of all “current and future [Level] 2 Long Term Segrega-
tion inmates.” J.A. 3.

Respondents are subject to nearly total isolation and
idleness. They are locked 1n their cells for al! but one hour
each day, and are prohibited from purchasing commissary
items and engaging in educational activities, group religious
services and pnson jobs. J.A. 32-33, 38, 100, 102. Human
contact is limited to a few pnson employees, legal counsel and
once-a-month, one hour, weekday visits from immediate
family members. J.A. 48,98. Telephone calls are permitted
only in emergencies. J.A. 48, 102.

Respondents are tsolated not only from other people,
but also from current thoughts and ideas. The challenged
policy prohibits Respondents from receiving or reading all
non-religious newspapers, magazines and articles cut out of
newspapers and magazines, unless the article relates to the
prisoner or a family member. J.A. 48, 91, 102. Respondents
are also prohibited from ordering books, watching television

' No counsel for any party authored any part of this brief No persons

or entities other than the amici curiae made any monetary contribution to
the preparation or submussion of this bnef. Pursuant to Supreme Court
Rule 37.3, copies of letters of consent to the filing of this bref have been
lodged with the Court

2

and listening to the radio. J.A. 102. As a result, they are
completely cut off from public affairs and other current
political, social, moral, aesthetic and educational news and
commentary.

Respondent Ronald Banks filed a lawsuit under 42
U.S.C. § 1983, challenging Petitioner's ban on newspapers and
magazines as a First Amendment violation. The United States
District Court for the Western Distnct of Pennsylvania granted
Banks’ motion for class certification, but laterdeni espon-
dents’ motion for summary judgment and granted Peutioner’s,
concluding that Petitioner’s asserted interests in security and
rehabilitation were reasonably related to the ban, under Turner
v. Saflev, 482 U.S. 78 (1987). The Court of Appeals for the
Third Circuit reversed the order granting Petitioner's motion
for summary judgment and remanded for further proceedings.
Banks v. Beard, 399 F.3d 134 (3d Cir. 2005). The court
concluded that Petitioner was not entitled to judgment as a
matter of law under 7urner, with respect to either a security or
rehabilitation rationale. P

The Third Circuit demed Beard’s petition for rehearing
en banc, and this Court granted certiorart.

SUMMARY OF THE ARGUMENT

In Turner v. Safley, 482 U.S. 78 (1987), this Court set
forth a multi-factor test for evaluating many, but not all,
constitutional claims brought by prisoners. As the Court has
subsequently explained, 7urner establishes a deferential
standard of review that 1s most appropnate when considering
“regulations that are centrally concemed with the maintenance
of order and secunty." Thornburgh v. Abbott, 490 U.S. 401,
409-10 (1989). In addition, the Court has applied /urner
deference when it has concluded that the rights asserted by
pnsoner plaintiffs are inconsistent with the fact of incarcera-
tion. Overton v. Bazzetta, 539 U.S. 126, 131 (2003).

This case fits neither category. The “primary”

3

justification for the challenged publication ban is not security
but general deterrence or what Petitioner has descnbed as
“behavior modification,” an amorphous, ill-defined and
potentially boundless interest. Conversely, the mght asserted
by Respondents — reading news and commentary ~ is entirely
consistent with their status as prisoners and, if anything, assists
their eventual reentry to society by allowing them to remain
informed citizens.

Amici are aware of no decision, from this Court or any
other court, that has ever sustained such a sweeping restriction
of prisoners’ First Amendment nights. Nor has this Court ever
approved a challenged prison restriction based solely on such
a potentially limitless rationale as general deterrence. Al-
though Petitioner argues that a ruling in his favor involves no
more than an application of well-settled principles, Petitioner's
construction of 7urner has no logical stopping point. If his
arguments are accepted, there will be nothing left of the First
Amendment for prisoners because any restriction on prisoner
rights, whether it applies only to “recalcitrant” pnsoners or to
pnsoners in general population, could be justified on the
ground of general deterrence. Only the Eighth Amendment
will remain as a potential substantive limit on deprivations
imposed on prisoners.

These factors strongly counsel against applying 7urner
and argue instead for requiring “a closer fit,” Thornhurgh, 490
U S. at 412, between Petitioner’s asserted interest and the
means employed to further it. Alternatively, if the Court
determines that 7urner provides the appropriate standard, 11 1s
critical that the Court conduct a searching inquiry under
Turner into whether Petitioner's policy constitutes an “exag-
gerated response” to the state's asserted interests. Petitioner
can only prevail if Turner is “toothless,” and this Court has
clearly held that itis not. Thornhurgh, 490 U.S. at 414.

4

ARGUMENT

I. TURNER DEFERENCE IS INAPPROPRIATE ON
THE FACTS OF THIS CASE

Although there is language in this Court’s opinions
suggesting that 7urner is a “unitary” standard, Shaw v.
Murphy, 532 U.S. 223, 229 (2001), and that it “applies to all
circumstances in which the needs of prison administration
implicate constitutional rights,” Washington v. Harper, 494
U.S. 210, 224 (1990), the Court’s actual practice has been
more nuanced. Just last Term, the Court declined to apply
Turner when reviewing a claim of racial segregation. Johnson
v. California, 543 U.S. 499, 509-510 (2005). The Court has
also recognized that the interests asserted by the government
are necessarily relevant in determining whether Turner applies.
Thornburgh, 490 U.S. at 412.

In this case, the Court should hold that 7urner is
inapplicable for several reasons. First, Petitioner's interest in
general deterrence does not implicate security or other core
needs of “running a prison,” 7urner, 482 U.S. at 84. Second,
the nght to read news and commentary is not only consistent
with incarceration, it is a critical means by which prisoners
maintain their status as citizens. Third, given the amorphous
and boundless nature of Petitioner’s deterrence interest, any
reliance on Turner’s deferential standard threatens the continu-
ing viability of the First Amendment in the prison context.
Accordingly, the Court should require “a closer fit,”
Thornburgh, 490 U.S. at 412, between Petiiioner’s means and
ends. F.g., Procunier v. Martinez, 416 U.S. 396, 414 (1974)
(requiring prison officials to show that regulation is “generally
necessary to protect . . . legitimate government interests”).

Because amic: do not believe the challenged policy can
survive 7urner scrutiny, see Part Il, infra, it plainly cannot
survive the more exacting scrutiny that is required if 7urner
does not apply.

A. An amorphous interest in general
deterrence is not entitled to Turner
deference

“Behavior modification” is the “primary reason”
asserted by Petitioner as justification for his policy prohibiting
Respondents from reading all non-religious newspapers and
magazines.” J.A. 197. See also Br. for Pet. at 4. Petitioner
asserts a “hope” that making life as unpleasant as possible will
both force Respondents to improve their behavior and deter
others from misbehaving. Banks, 399 F.3d at 142. Such a
boundless and ill-defined goal should be rejected as illegiti-
mate where it is used as an excuse to limit First Amendment
nghts. At the very least, Petitioner's interest should be
assessed under heightened scrutiny.

Petitioner characterizes his interest as one of “rehabili-
tation,” which the Court has recognized as legitimate, although
never as the sole justification for a restriction. E.g., O'Lone
v. Estate of Shabazz, 482 U.S. 342, 351 (1987). However,
Petitioner’s attempt to shoehorn his policy into the box of

* In the courts below, Petitioner asserted two justifications for his policy.
an interest in “rehabilitation,” which amici suggest is more accurately
characterized as “general deterrence” or “behavior modification,” and an
interest in “security.” specifically, the potential danger caused by allowing
Respondents to handle periodicals. This brief does not focus on Petitioner's
security interest, which the Court of Appeals correctly found ts not
reasonably related to the ban on newspapers and magazines. As stated in
the court's opinion, the policy ts an “exaggerated response” to any security
concerns. Banks, 399 F 3d at 146-47. One obvious alternative would be
to jumut the number of newspapers and magazines that Respondents may
keep in thei cell and take them away from those who abuse them. Because
Petitioner already allows Respondents to keep up to “one records box of
religious materials,” J A. 178, there would be no cost to extending this
policy to other publications.

o

“rehabilitation” 1s mconsistent with common sense and this
Court’s and other courts’ understanding of the term.

Th. ordinary meaning of “rehabilitation” is preparation
for releas: back into society. See McKune v. Lile, 536 U.S. 24,
36 (2002) (plurality opinion) (noting that rehabilitation is
objective of corrections system because "most offenders will
eventually return to society”). In a constitutional democracy,
however, any conception of rehabilitation must include
allowing prisoners to become or remain informed and engaged
citizens. Petitioner's policy has precisely the opposite effect

To the extent that deprivation is used as a means of
rehabilitation, there 1s generally a specific goal targeting
specific behavior, often related to the prisoner's conviction.
Eg, McKune, 536 US. at 30: King y Fed Bureau of Prisons.
415 F.3d 634, 639 (7th Cir. 2005) (Posner, J.). Here, Peti-
tioner’s interest in “rehabilitation” 1s vague at best, which by
itself should heighten the Court's skepticism of its legitimacy.
Petitioner 1s not targeting behavior related to Respondents’
convictions ~ he is not targeting any specific behavior at all.
Moreover, the conduct he is prohibiting is unrelated to Peti-
tioner’s determination that Respondents are “recalcitrant and
incorngible,” Br. for Pet. at 4, as there is nothing in the record
to suggest that a significant number of Respondents have
abused newspapers or magazines in the past or were trans-
ferred to the LTSU because of such conduct.

Although Petitioner claims that the ban on newspapers
and magazines ts not intended to suppress expression, that 1s
undoubtedly its effect. And at least on some level, that 1s
Petitioner’s purpose: he censors nearly all incoming publica-
tions primarily because he believes that doing so will make Irfe
more miserable for Respondents. Under such circumstances,
it becomes difficult to distinguish Petitioner’s motives from
those the Court has condemned tn the past. particularly where
Petitioner has so many other ways to modify Respondents’
behavior, including withdrawing privileges that do not

7

implicate First Amendment nghts. See Romer v. Evans, 517
U.S. 620, 635 (1996) (concluding that law was motivated by
animus 1n part because it inflicted “immediate, continuing, and
real injunes that outrun and belie any legitimate justifications
that may be claimed for it”).’

However, even assuming that Petitioner’s general
interest in deterrence is legitimate on its face, it is not entitled
to 7urner deference. This Court has never afforded that level
of deference to such an interest, but rather has consistently
identified security as the most important goal of a prison and
the interest that 1s most entitled to deference. F.g., Pell v.
Procunier, 417 U.S. 817, 823 (1974) (“[C]Jentral to all other
corrections goals is the institutional consideration of internal
security within the corrections facilities themselves.”). In fact,
in every case in which the Court has upheld a prison policy
against a First Amendment challenge, the Court has empha-
sized the detrimental impact that the behavior could have on
safety, order or security. FE.g., Shaw, 532 U.S. at 231;
Thornburgh, 490 U.S. at 416-17; O ‘Lone, 482 U.S. at 350-51,
Turner, 482 U.S. at 91-92; Bell v. Wolfish, 441 U.S. 520, 550
(1979); Jones v. North Carolina Prisoners’ Labor Union, Inc.,
433 U.S. 119, 132-33 (1977); Pell, 417 U.S. at 827.

These cases show that determining the appropriate
standard of review is closely tied to the nature of the risk
involved in the event of an erroneous decision. Government
actors need greatest discretion where limiting it could have
serious consequences for personal safety. But where giving
greater protection to constitutional mghts does not entail a

See also Spellman v Hopper, 95 F.Supp.2d 1267, 1281 (M.D. Ala.
1999) (stating that it 1s “questionable” whether it is legitumate interest to
punish prisoners “for being problem inmates in general”), Guayardo v
Estelle. 568 F Supp 1354, 1366 (S.D. Tex 1983) (holding that prison
officials “may not infringe upon first amendment nghts of an inmate tn
solitary confinement solely to enhance the punishment’)

credible risk of harm, the need for deference 1s diminished
significantly, and a heightened standard of review is appropri-
ate.

Thornburgh provides support for this approach. In
that case, the Court explained that it had departed from the
heightened scrutiny of Martinez in later cases, such as Turner,
because “‘such a strict standard simply was not appropnate for
consideration of regulations that are centrally concerned with
the maintenance of order and security.” Thornburgh, 490 US.
at 409-10. In Martinez, less deference was appropriate
because the outgoing correspondence at issue did not “pose a
serious threat to prison order and secunty.” Thornburgh, 490
U.S. at 411. More generally, Thornburgh makes clear that
where the government’s asserted interest does not require the
same degree of discretion as a security interest, “‘a closer fit
between the regulation and the purpose it serves may safely be
required.” 490 U.S. at 412 (emphasis added). Because in this
case neither the form nor the content of the banned materials
implicate security, the Court should require a “closer fit”
between the publications ban and Petitioner’s asserted interest
in deterrence.

More fundamentally, applying 7urner to Petitioner’s
general deterrence interest is simply incompatible with
Turner’s four-factor test, at least as Petitioner seeks to apply it.
As pointed out by Judge Tatel in Kimberlin vy U.S. Dep't of
Justice, 318 F.3d 228, 239-40 (D.C. Cir. 2003) (Tatel, J.,
concurring in part and dissenting in part), evaluating a prison’s
interest in general deterrence under 7urner is a nonsensical
exercise 1f the government’s assertions are taken at face value.
In this case, if one accepts Petitioner’s theory that depriving
prisoners of constitutional nights will improve behavior, there
can be no “exaggerated response” to any policy enacted to
further this interest because the more severe the restriction, the
more likely it will deter. Any accommodation of the prisoner’s
First Amendment nights, no matter how easily and inexpen-

9

sively implemented, could undercut that interest.

Petitioner's argument has no stopping point, because
all prison policies that restnct constitutional nghts could be
defended on the basis of deterrence. Although Petitioner
claims that Respondents represent the “worst of the worst”
prisoners, constitutional deprivations imposed on prisoners in
general population equally could be justified as intended to
make the prison sufficiently miserable so as to deter both
prisoners (from reoffending after release) and those outside the
prison (from committing their own crimes). See, eg.,
Kimberlin v. U.S. Dep't of Justice, 150 F.Supp.2d 36, 45
(D.D.C. 2001) (upholding ban on musical instruments for
general population prisoners on ground of deterrence, “‘[t}hat
is, prisons should be seen as a ternble place to effectively deter
crime’), aff'd on other grounds, 318 F.3d 228 (D.C. Cir.
2003). A belief that harsh conditions will deter misconduct
may actually be more rational with respect to non-prisoners
and prisoners in general population than those prisoners who
are “incorrigible and recalcitrant.” Certainly, the regulations
struck down in Turner and Martinez could be quickly revived —
and justified on deterrence grounds just as easily as Peti-
tioner’s publication ban. Marnage and correspondence would
be at least as powerful as newspapers and magazines as
“incentives” in any attempt to modify behavior.

Applying Turner deference to a policy based on a
general interest in deterrence not only undermines Turner, but
also provides an extraordinary incentive for pnson officials to
enact the harshest restrictions. Under Petitioner's theory, the
more miserable a restriction makes life for prisoners, the more
likely it will deter, and therefore, the more likely it will be
upheld as “reasonably related” to deterrence. See Br. for Pet.
at 31 (arguing that ““diminish{ing] the seventy” of restriction
will “diminis[h] its value . .. as a deterrent”); Br. for U.S. at 22
(arguing that potential long duration of deprivation enhances
its deterrent effect); Br. for Council of State Governments at

10

18 (arguing that burden on nght must be significant or it will
have no deterrent effect). The Court can avoid this self-
justifying result by either concluding that Petitioner may not
deprive Respondents of First Amendment nghts as a way to
deter general misconduct or declining to apply 7urner defer-
ence to Petitioner’s interest in behavior modification.

B.. ~The nature of Respondents’ asserted
right supports a heightened standard
of review

Just last Term, the Court made clear that it may depart
from Turner depending on the right at stake: “|W]Je have
applied 7urner’s reasonable-relationship test on/y to nghts
that are inconsistent with proper incarceration.” Johnson, 543
U.S. at 510 (emphasis in original) (internal quotation marks
omitted). In upholding restrictions, the Court has similarly
emphasized the extent to which the asserted right was funda-
mentally inconsistent with incarceration. For example, in
Overton v. Bazzetta, 539 U.S. 126, 131 (2003), the Court
upheld restrictions on prisoner visitation while noting that
“freedom of association is among the nghts least compatible
with incarceration.” See also Jones, 433 U.S. at 126. Thus,
in determining whether 7urner should apply to a particular
regulation, the question is whether the nght at issue is one
“that need necessarily be compromised for the sake of proper
prison administration.” Johnson, 543 U.S. at 510.

The Court did apply 7urner in Thornburgh, which
involved restrictions on incoming publications. But in that
case, there was a fundamental incompatibility between the
restricted conduct ~ reading material that was “detrimental to
security” — and the operational needs of the prison.
Thornburgh, 490 U.S. at 415. See supra Part 1.A. The nature
of the deprivation was also different, as it only minimally
limited the information prisoners could seek out.

Here, Petitioner’s policy attempts to cut off Respon-

1]

dents from all information about the outside world, which
prevents them from being informed and engaged citizens. As
the Court observed in Garrison v. Louisiana, 379 U.S. 64,
74-75 (1964), “speech concerning public affairs is more than
self-expression; it is the essence of self-government.” See also
Grosjean v. American Press Co., 297 U.S. 233, 250 (1936)
(noting that “informed public opinion is the most potent of all
restraints upon misgovernment”). To deny prisoners all
traditional outlets for learning about political affairs and other
news is to deny their very citizenship -- 1.e., to say that because
they are deemed “recalcitrant,” their knowledge and under-
standing on matters of public affairs no longer matter.’

This Court made clear long ago that citizenship is not
something that a prisoner forfeits upon incarceration. See Trop

* In Shaw, 532 U.S at 230, the Court stated, “the Turner test, by its
terms, simply does not accommodate valuations of content.” However, the
question before the Court in Shaw was not whether the nature of the nght
is relevant, but whether First Amendment claims by “jailhouse lawyers”
should be given heightened protection. /d at 225. The Court dechined to
do so, at least in part because of the sigmficant security problems granting
such heightened protection would cause. /d at 231 (“[E}ven if we were to
consider giving special protection to particular kinds of speech based upon
content, we would not do so for speech that includes legal advice,” noting
that prisoners often abuse legal assistance programs to pass contraband or
communicate instructions regarding unlawful behavior). Simply granting
prisoners some access to the news does not implicate the security concerns
that were present in Shaw

Further, as noted, the Court Aas considered the mght at issue in
particular cases, at least the extent to which the right 1s inconsistent with
incarceration. E g , Overton, 539 U.S at 131. Thus, amici respectfully
request that the Court reconsider its broad statement in Shaw for a more
context-sensitive approach See Central Virginia Community College v
Katz,- U.S - , 1268 Ct. 990, 996 (2006) (“we are not bound to follow our
dicta in a prior case in which the point now at issue was not fully debated”).
To the extent that the Court concludes that 7urner 1s incompatible with
such an approach, this provides a further argument why the Court should
not apply 7urner in this case.

12

v. Dulles, 356 U.S. 86, 101 (1958) (holding that denationaliza-
tion as punishment for crime violates Constitution in part
because it "strips the citizen of his status in the national and
international political community"). See also Overton, 539
U.S. at 138 (Stevens, J., concurring) (“‘a criminal conviction
...do[es] not place the citizen beyond the ethical tradition that
accords respect to the dignity and intrinsic worth of every
individual’’’) (citation omitted). To the contrary, in a free
society, any goal of rehabilitation must allow room for a
prisoner to become educated about the affairs of his own
country and the world in which he lives. Thus, like the nght
to equal treatment considered in Johnson, allowing prisoners
to remain informed “is not only consistent with proper prison
administration, but also bolsters the legitimacy of the entire
criminal justice system.” 543 U.S. at 511. ,

It is entirely appropriate to consider the nature of the
speech being suppressed in deciding what standard of review
to apply. The Court has done so in various other contexts,
even those in which it usually affords greater deference
because of concerns about the operation of government. E£.g.,
Connick v. Myers, 461 U.S. 138, 152 (1983) (government may
need a “stronger showing” of disruption to justify discipline of ~
employee “if the employee's speech more substantially
involved matters of public concern”). It is also likely that the
nature of the speech at issue was a concern of the Court in
Martinez, 416 U.S. at 415-16, in striking down a policy that
censored statements by prsoners that “unduly complain,”
“magnify grievances,” or express “inflammatory political,
racial, religious or other views.” Although one could plausibly

It scarcely needs mentioning that the policy restricts not only the nghts
of prisoners but also of any member of the press seeking to communicate
with them. Thernburgh, 490 U.S at 408 (“publishers who wish to
communicate with those who, through subscription, willingly seek their
point of view have a legitimate First Amendment interest im access to
prisoners’).

13

believe that these kinds of statements could undermine pnson
security (whether included in incoming or outgoing mail), a
stronger evidentiary showing was necessary because it is
simply antithetical to the First Amendment to censor criticism
of the government. It is similarly antithetical to free speech
values to force ignorance and apathy on any segment of
society, as Petitioner has done in this case.
Even if one accepts that the censorship in this case is
incidental rather than purposeful, failing to give adequate
consideration to the nght at issue in this case will give prison
officials carte blanche to act as censors in the future. Under
the guise of “behavior modification,” they may prohibit any
form of speech they disfavor. Such censorship would still be
“neutral” under Turner so long as the government could
articulate a reason for believing that censoring the speech
provided some “incentive” to better behavior. See
Thornburgh, 490 U.S. at 415 (stating that prison regulation is
“neutral” if it furthers interest “unrelated to the suppression of
expression’). For example, would it not be reasonable to
believe under Petitioner's logic that recalcitrant prisoners
would be deterred by a policy that forbade them from com-
plaining about pnson conditions or from filing litigation
challenging those conditions or their cnminal convictions?
See Lewis v. Casey, 518 U.S. 343, 361-62 (1996) (applying
Turner standard to claim about court access). Certainly, these
are forms of speech that prisoners consider to be very impor-
tant and withdrawing their ability to engage in them would
make their lives more miserable. The First Amendment could
not tolerate such a ban and it cannot tolerate Petitioner’s.
Both the nature of Petitroner’s asserted interest and
Respondents’ asserted nght require that there be a “closer fit”
between the asserted interest in deterrence and the restnction
imposed. Whether the Court applies a standard akin to
.Martinez, 416 U.S. at 414, requiring the government to show
that its policy is “generally necessary” to further a legitimate

14

interest, or even a minimally heightened standard of review,
this policy would certainly fail. Petitioner has provided
absolutely no support for the propositions that depriving
Respondents of newspapers and magazines will improve their
behavior and that using any number of other approaches for
behavior modification would not be at least as effective.
Rather, Petitioner’s only hope in this case is that the Court will
simply afford unquestioning deference to his unsupported
allegations. :

II. EVEN UNDER TURNER, PETITIONER’S
POLICY IS AN “EXAGGERATED RESPONSE”

If the Court does apply the test of 7urner v. Saflev, 482
U.S. 78 (1987), it should nevertheless affirm the Court of
Appeals’ decision. Part of the merit of the Turner test is its
“express flexibility.” Thornburgh, 490 U.S. at 414. Such
flexibility—in particular, sensitivity to context is essential if
the Court applies 7urner to all prison First Amendment
challenges. This is especially true when the asserted interest
is general deterrence. Because that rationale is potentially
boundless, the Court must weigh each of the four factors
carefully, lest prisoners’ First Amendment nghts be completely
eradicated.

Turner itself illustrates this point. There, the Court
upheld a restriction on prisoner correspondence while stnking
down a restriction on prisoner marriage. It certainly could be
(and was) argued that it was “rational” for the government to
believe that prisoner marriages would lead to problematic
“love tnangles” and would encourage dependency among
some prisoners. The Court nevertheless concluded that the
marriage restriction was an exaggerated response to the
government’s expressed concerns, despite the dissent’s
observations that the test would require that the marnage
regulation be sustained if it were applied in the same manner
as it had been to the ban on prisoner correspondence. Ser

15
Turner, 482 U.S. at 112-13 (Stevens, J., dissenting). However,
these seemingly disparate results can be explained easily if one
recognizes that application of 7urner is sensitive to context,
including the interest asserted by the government, the night
cldimed by the prisoner, and the severity of the deprivation of
the right. Each of these factors demonstrates that Petitioner’s
policy is an exaggerated response to his stated concerns.

A. Banning all news and commentary
is not logically connected with
Petitioner’s asserted interest in
deterrence

Under the first Turner factor, a prison policy must have
a valid, logical connection with a legitimate penological
interest. 482 U.S. at 89. For the reasons discussed in Part I,
supra, the Court should conclude that the attempt to modify
prisoners’ behavior by depriving them of information neces-
sary to preserve their status as citizens is not a legitimate
penological goal. However, even assuming that an interest in
general detérrence is valid in this context, there is simply no
logical connection between an interest in general deterrence
and a denial of all news and commentary.

1. The Court of Appeals did not
err in evaluating the evidence

Petitioner contends that the Court of Appeals imposed
a “hostile scrutiny” on his policy, focusing primarily on the
Third Circuit's consideration of the evidence that the parties
presented to the district court. Br. for Pet. at 22-23, 27. In
arguing that the court erred, Petitioner relies almost entirely on
one sentence in Overton, 539 U.S. at 132: “The burden . . . is
no! on the State to prove the validity of prison regulations but
on the prisoner to disprove it.” Petitioner, however, interprets
this statement far too broadly. Even in non-prisoner cases, the
ultimate burden 1s almost always on the party contending that

16

the regulation or statute is unconstitutional. See, e.g., Rust v.
Sullivan, 500 U.S. 173, 183 (1991); New York State Club
Ass'n, Inc. v. City of New York, 487 U.S. 1. 17 (1988). But
that does not mean that the government is completely relieved
of all obligation to justify its decisions. Further, under 7urner,
the Court has assumed that the government has some burden
to justify its actions, because the Court has never considered a
rationale for a policy unless it was actually advancec sy the
government, unlike cases in which the Court has ap,..1ed a
rational basis analysis. See Board of Trustees of Univ. of
Alabama vy. Garrett, 531 U.S. 356, 367 (2001) (stating that,
under rational basis review, challenging party has burden to
negate “any reasonably conceivable state of facts that could
provide a rational basis for the classification”) (internal
quotation marks omitted).

In practice, this Court has in many cases evaluated the
evidence presented by the government. In Turner, 482 U.S. at
98, the Court found that the marnage restriction was an
exaggerated response to security objectives, in part because the
government’s position was not supported by evidence. And
in O'Lone, 482 U.S. at 345-46, 350-51, the Court carefully
explained the long history of security problems that prevented
officials from allowing prisoners to attend specific religious
services. See also Harper, 494 U.S. at 226 & n.9 (citing
evidence that “proper use of [anti-psychotic] drugs is one of
the most effective means of treating and controlling a mental
illness likely to cause violent behavior’); Johnson, 543 U.S. at
525-527 (Thomas, J., dissenting) (applying 7urner and
discussing evidence adduced by state that racial segregation is
required by prison gang violence). Further, the circuits are in
agreement that, at least in some circumstances, prison officials
must come forward with evidence showing the connection
between their interest and the restriction. See King, 415 F.3d
at 639 (Posner, J.) (“the government must present some
evidence to show that the restriction is justified”). Accord

17

Ashker v. California Dep't of Corrections, 350 F.3d 917,
922-23 (9th Cir. 2003); Beerheide v. Suthers, 286 F.3d 1179,
1189 (10th Cir. 2002); Davis v. Norris, 249 F.3d 800, 801 (8th
Cir. 2001); Flagner v. Wilkinson, 241 F.3d 475, 486 (6th Cir.
2001); Morrison v Garraghty, 239 F.3d 648, 660-61 (4th Cir.
2001).

Even assuming that it is appropmate to credit a
“because we said so” argument by the government where there
is a plain and indisputable relationship between the challenged
restriction and the governmental interest, that assumption does
not apply here for at least three reasons, all of which counsel
in favor of requiring some showing that there is an actual fit
between means and end.

First, as explained in Part I, Petitioner’s behavior
modification interest is ill-defined and does not implicate
security. When safety 1s an issue, it is reasonable, even ~
necessary, to allow prison officials to act before a problem
arises. See Turner, 482 U.S. at 89. In these circumstances,
prison officials have not only an interest, but also an obligation
to protect those inside the prison, Harper, 494 U.S. at 225,
and the consequences of an error may be so grave that more
leeway should be allowed. See, e.g., Overton, 539 U.S. at 129
(explaining security problems associated with increasing levels
of visitation and prisoner drug abuse and drug smuggling);
Turner, 482 U.S. at 91 (noting Missouri’s “growing problem
with prison gangs’”’).

When the interest asserted is general deterrence, the
need for deference to the judgment of prison officials is
significantly diminished. No not will occur if Respondents are
allowed to read the news and no contraband will be smuggled
into the prison. The most serious consequence will be that the
cumulative unpleasantness of life on Level 2 will be reduced
by the restoration of a single activity.

Second, there is no obvious link between banning
current publications and rehabilitating prisoners. In some

18

cases, the connection between the interest being asserted and
the restriction imposed is so clear that further evidence is
simply unnecessary. E.g., Turner, 482 U.S. at 91 (“Undoubt-
edly, communication with other felons is a potential spur to
criminal behavior”). The connection between security and the
marriage restriction was not so obvious in Turner, 482 U.S. at
97-98, and the Court appropriately concluded that more was
required from the government than simple rote assertions.
Similarly, in this case, one cannot seriously argue that
an obvious connection exists. Common sense does not support
a belief that allowing prisoners to read newspapers and
magazines will make them “act worse” in some undefined
way, particularly when, according to Petitioner, they have
already failed to respond appropriately after numerous other
privileges were taken away. To the contrary, common sense,
scholarship and Pennsylvania’s own history suggest that
intellectually isolating Respondents will have only a negative
impact on their prospects of rehabilitation.® Thus, this is

Lt

A recent study by economists at Yale University and
the University of Chicago refutes Petitioner's basic premise that
imposing harsher conditions on prisoners will improve _ their

behavior, M_ Keith Chen and Jesse M. Shapiro, Does

Prison Harden Inmates? A Discontinuity-based Approach (2005),
http.//www.som. yale.edu/Faculty/keith.chen/papers/prison072405 pdf, at
| (“We find that harsher prison conditions are associated with significantly
more post-release crime”). See also Richard Morin, Time In and Time
Out, Washington Post, Feb. 2, 2006, at A2 (summarizing study’s findings).
This study only confirms what Petitioner surely already knows through
Pennsylvania's own failed and long discredited 19" century practice of
attempting to “rehabilitate” prisoners by cutting off all contact with the
outside world. Harry Elmer Barnes, Evolution of Penology in
Pennsylvania (1968), 290-302; David J. Rothman, Perfecting the Prison,
in Oxford History of the Prison, (Morns & Rothman, eds 1995), 111-29.
See also In Re Medley, 134 U.S. 160, 168 (1890) (noting that “experience
demonstrated. serious objections” to “complete isolation of [a] prisoner
from all human society,” including failure to “recover sufficient mental
activity to be of any subsequent service to the community”).

19

precisely the type of case in which prison officials can properly
be required to come forward with evidence that their interests
are being furthered by the practice at issue.

Finally, as explained below, Petitioner’s position om the
remaining 7urner factors is extremely weak. The nature of
multifactor tests means that the showing required for one
factor depends on the relative strength of the others. For
example, in O'Lone, there were severe security risks in
allowing Muslim prisoners to attend Jumu’ah, nsks which
could not be diminished through lesser restrictions. 482 U S.
at 351 (noting that it would be “extraordinarily difficult” for
officials to allow prisoners to attend service). Because the
first, third and fourth factors favored the prison *-. *- = e af °
-

27

Here, Petitioner's argument is at its weakest. Respon-
dents are locked in their cells nearly around the clock, are
excluded from all educational activities and other prison
programs, may not work and earn money, may not buy items
from the commissary, are denied all but the most minimal
visiting privileges, and may not use the telephone except in
emergencies. J.A. 32-33, 48, 102. They are excluded from
even the additional privileges allowed to some Level |
prisoners at the discretion of prison officials. J.A. 32-33. Yet
Petitioner would have the Court believe that, in the face of all
these other deprivations, letting the prisoners exercise the First
Amendment night to read even a limited number of magazines
and newspapers would undermine their rehabilitation and
therefore prison security.

Arguably, the “costs” addressed by the third and fourth
factors do not even encompass a state’s interest in general
deterrence. As stated by the Court in Overton, 539 U.S. at
135, the question is whether accommodation would "cause a
significant reallocation of the prison system’s financial
resources” or “impair the ability of corrections officers to
protect all who are inside a prison's walls.” Where the interest
asserted is neither security nor finances, these factors are a
non-issue.

Ifthe Court determines that the Turner framework docs
encompass “costs” to a behavior modification interest, it must
limit either the weight it gives to the third and fourth factors or
the deference it grants to the Petitioner’s allegation that his
ability to deter misconduct will be significantly impaired by
accommodating the right. As explained in Part I, if one
accepts Petitioner’s premise that prohibiting Respondents from
reading the news will improve their behavior, it follows that
any accommodation of Respondents’ First Amendment nights,
no matter how small or easily granted, could potentially impair
Petitioner’s interest in behavior modification. Thus, almost by
definition, there can be no “ready” alternative to the restriction,

28

making it impossible for prisoners to satisfy these factors, and
giving prison officials carte blanche to deprive prisoners of any
right they choose simply by alleging that the deprivation ts part
of a behavior modification plan.

The Petitioner has subjected Respondents to multiple,
cumulative deprivations of the amenities of prison life. In the
context of this massive deprivation of privileges, it is simply
not credible that whatever rehabilitative or deterrent effect the
sum of these deprivations may have will be significantly
impaired by allowing Level 2 prisoners to read some small
number of magazines and newspapers.

Thus, in Turner’s terms, the de minimis cost alternative
is already in place. These numerous other restrictions are
clearly sufficient to preserve Petitioner’s asserted interest in
using disincentives to modify behavior, absent any evidence
that the newspaper and magazine ban contributes in any
significant way to any deterrent effect of placement in Level 2.

Respondents are not being denied news because they
have abused that nght in the past. Petitioner has imposed the
ban only because he believes it is yet another way to make life
less pleasant for Respondents. It cannot be reasonably argued
that lifting this single restriction will make the prison less safe
or Respondents less likely to improve their behavior.

D. Turner is not toothless

This Court has recognized that “deference does not
imply abandonment or abdication of judicial review.”
Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). But if
Petitioner's arguments are accepted, there will simply be
nothing left of the First Amendment for prisoners. Jurner
itself will become obsolete. The Court will return to the long-
abandoned “hands-off” philosophy, in which prisoners are ”
deemed to have no First Amendment nights that the pnson
official is bound to respect. Only the Eighth Amendment will
remain as a potential substantive limit on deprivations :mposed

29

on prisoners. See J.A. 28 (in Petitioner’s summary judgment
materials before district court, stating that it is Eighth rather
than First Amendment that “legitimately constrains the array
of punishments, behavior incentives and forms of deprivation
that the prison system can use to modify the behavior of
recalcitrant inmates’).

Such a result would flatly contradict this Court’s
statement that 7urner’s “reasonableness standard is not
toothless,” Thornburgh, 490 U.S. at 414, as well as the
repeated declarations over the past 30 years that pnsoners do
not sacrifice all of their First Amendment rights when they
pass through the jailhouse gate. FE.g., Shaw, 532 U.S. at 228-
29, Thornburgh, 490 US. at 407; O'Lone, 482 U.S. at 348;
Turner, 482 U.S. at 84. See also Overton, 539 U.S. at 138
(Stevens, J., concurring) (rejecting view that Overton “signals
a resurrection” of hands-off approach). The Court’s review of
prisoners’ constitutional claims must be “responsive both to
the ‘policy of judicial restraint regarding prisoner complaints
and {to] the need to protect constitutional nghts.”” Turner, 482
U.S. at 85 (quoting Martinez, 416 U.S. at 406) (emphasis
added). To do this, the Court must place some limit on the
government’s discretion to restrict constitutional nghts under
the guise of deterrence, or its promises to uphold prisoners’
constitutional rights will be merely empty words.

30

CONCLUSION
The judgment of the Court of Appeals should be affirmed.

Respectfully submitted,

Jeffrey M. Monks
David C. Fathi
Counsel of Record
Elizabeth Alexander
American Civil Liberties
Union Foundation
915 15" Street, NW, 7" Floor
Washington, DC 20005
(202) 393-4930
Steven R. Shapiro
American Civil Liberties
Union Foundation
125 Broad Street, 18" Floor
—— New York, NY 10004
(212) 549-2500

Witold J. Walczak
ACLU of Pennsylvania
313 Atwood Street
Pittsburgh, PA 15213
(412) 681-7864

31

Steven Banks

John Boston

The Legal Aid Society
199 Water Street

New York, NY 10038
(212) 577-3300

Elliot M. Mincberg

Deborah Liu

People For the American Way
Foundation

2000 M Street, N.W., Suite 400

Washington, DC 20036

(202) 293-4999

Charles F.A. Carbone, Esq.
California Prison Focus
2940 16th Street, Suite B-5
San Francisco, CA 94103
(415) 252-9211

APPENDIX

la

INTERESTS OF AMICI CURIAE

The American Civil Liberties Union (ACLU) is a nation-
wide, non-profit, nonpartisan organization of more than
500,000 members dedicated to the principles of liberty and
equality embodied in the Constitution and this nation's civil
rights laws. Consistent with that mission, the National Prison
Project of the ACLU Foundation was established in 1972 to
protect and promote the civil and constitutional nghts of
prisoners. The ACLU of Pennsylvania is a state affiliate of
the ACLU.

The Legal Aid Society is a private organization that has
provided free legal assistance to indigent persons in New Y ork
City for nearly 125 years. Through its Prisoners’ Rights
Proyect, the Society seeks to ensure that prisoners are afforded
full protection of the constitutional and statutory rights. The
Society advocates on behalf of prisoners in New York City
jails and New York state prisons, and conducts litigation on
prison conditions.

People For the American Way Foundation is a nonpartisan,
education-oriented citizens’ organization established to
promote and protect civil and constitutional nghts, including
First Amendment freedoms. Founded in 1980 by a group of
religious, civil and educational leaders, People For now has
over 750,000 members nationwide who are dedicated to the
democratic tradition of liberty and freedom embodied in this
country's Constitution. One of the organization's primary
objectives is to educate the public on the vital importance of
these principles, and to defend them through litigation and
other means as necessary. People For has frequently repre-
sented parties and filed amicus curiae briefs in similar cases
and is vitally concerned with the threat to basic First Amend-
ment freedoms posed by this case

——— -

2a

The American Friends Service Committee (AFSC), the
social justice and peace organization formed by the Religious
Society of Friends (Quakers) in 1917, has worked with
prisoners, their families, and with prison officials since 1947.
AFSC's work stems from the belief that the way a society treats
people convicted of crimes is an indicator of the human values
of that society and Quakers’ belief in the intrinsic work of all
human beings. Quakers not only founded AFSC, they also
founded the penitentiary, institutions initially comprised of
isolation units, the predecessors of today's supermax prisons.
Through AFSC's criminal justice work, especially with
programs developed to monitor the conditions 1n isolation
units across the nation, AFSC believes that isolation units
should be abolished because of the inhumane conditions that
are endemic to these institutions and practices. AFSC has .
published a variety of reports and histories regarding control
or isolation units, and its staff members have testified widely
on the issue. In 1997, AFSC published a "Survivor's Manual,”
written by prisoners who survived isolation for other prisoners
facing the same situation. The policies at issue would ban the
"Survivor's Manual” and other AFSC publications promoting
institutional change through nonviolent means.

California Prison Focus (CPF) is a nearly two decade old
human nghts organization that defends and advances the nghts
of pmsoners in California, particularly those confined in
super-maximum security units. CPF publishes a monthly
newsletter, to which approximately 800 prisoners subscribe.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0107%3A09. Public record. Not legal advice.