Amicus Curiae Brief — Beard v. Banks

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No. 04-1739 fi

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CFPICE OF 7:

IN THE

Supreme Court of the United States

a i

JEFFREY BEARD,

Petitioner,

Vv.

RONALD BANKS,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Third Circuit

BRIEF OF THE

COUNCIL OF STATE GOVERNMENTS,

NATIONAL CONFERENCE OF STATE

LEGISLATURES, NATIONAL ASSOCIATION

OF COUNTIES, AND INTERNATIONAL

MUNICIPAL LAWYERS ASSOCIATION

AS AMICI CURIAE SUPPORTING PETITIONER

RICHARD RUDA *

Chief Counsel |

JAMES I. CROWLEY

STATE AND LOCAL LEGAL CENTER

444 North Capitol Street, N.W.

Suite 309

Washington, D.C. 20001

(202) 434-4850

* Counsel of Record for the

Amici Curiae

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

QUESTION PRESENTED

Whether a prison policy that denies newspapers, maga-

zines, and photographs to the most difficult inmates in the

prison system in an effort to promote security and good

behavior violates the First Amendment.

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TABLE OF CONTENTS

Page

QUESTION PRESENTED...............sccccossssesscssscssessesees i

TABLE OF AUTHORITIES ............cccccccecesececeeeeeeeeenes iv

INTEREST OF THE AMICI CURIAE .000.....cccccccceseeeeees ]

SUMMARY OF ARGUMENT ..................cccceeseeeeeeeeeees

TT ciecscsinnsistiabisiniapcesibdiiapicininitiahepiiantendaaeainiiininiatanion 4

THE COURT OF APPEALS FAILED TO GIVE

PROPER DEFERENCE TO THE JUDGMENT OF

PENNSYLVANIA’S PRISON OFFICIALS ............ 4

A. In Reviewing Prisoners’ Constitutional Claims

Federal Courts Are Required To Show Appro-

priate Deference To The Policy Decisions Of

Prison Administratofs ................:ccccsececeeeseeeeeerees 6

B. Pennsylvania’s Policy Of Denying News-

papers, Magazines, And Photographs To

LTSU Level 2 Inmates Satisfies The Turner

‘1. The LTSU Policy Has A Valid, Rational

Connection To A _ Legitimate Govern-

I ee cicsisctnisceiitichininiiniinteninsinsininmeens 9

2. LTSU Inmates Have Sufficient Alternative

Means Of Exercising Their First Amend-

pineeitiiiadintiinineiliesaiaiitataniceniindiiniiin 16

3. Respondent’s Proposed Accommodations

Would Have A Substantial Impact On

Prison Management And There Are No

re II OIODD vccecinintonsicesiatsadintonienesnnces 19

IEE esnncntnresenscnoneaseveisccensinpocsnmiinetnenipemevientes 23

TABLE OF AUTHORITIES ~

Cases Page

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

1DBS)....scssrsrcerscecscecesersvrerensererecscecececesnenenceceeees 13, 13-14

Block v. Rutherford, 468 U.S. 576 (1984)............. 8

Daigre v. Maggio, 719 F.2d 1310 (Sth Cir. 1983).. 10

FCC v. Beach Communications, Inc., 508 U.S.

BF Cee Pi scevisevernestntaiascintinitenbianiaepdaaauiiniciiiiatietiindass )

Gregory v. Auger, 768 F.2d 287 (8th Cir. 1985)... 10

Heller v. Doe, 509 U.S. 312 (1993)........cccceeseeeeeees )

Jones v. North Carolina Prisoners’ Labor Union,

Frac. 433 U.S. 119 (1977) ....ccccorcccosessccecsccees 6, 7, 11, 16

Lehnhausen v. Lake Shore Auto Parts Co., 410

SR Se Uae ivccssisintiisinctiiainiemennstencbpiaiisesinaiiliie )

Lewis v. Casey, 518 U.S. 343 (1996)........cccccceneeee 1,7

Morrison v. Hall, 261 F.3d 896 (9th Cir. 2001)..... 13, 14

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

CPTI Dinsrascvssocsecnesciinninininiiialesdanieiaiimmniiiasaatataitiles 11

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

Pell v. Procunier, 417 U.S. 817 (1974)....7, 16, 17, 17-18

Preiser v. Rodriguez, 411 U.S. 475 (1973) ........... 7

Procunier v. Martinez, 416 U.S. 396 (1974)......... 7,8

Price v. Johnston, 334 U.S. 266 (1948)..............0 6

Shaw v. Murphy, 532 U.S. 223 (2001)............... 11, 16,19

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

FORD Fe ccsinsansnissnicstineenicuatdisiiindiniieiidineaauaas 14

Turner v. Safley, 482 U.S. 78 (1987)..........c:cceeee passim

Rules

Federal Rule of Evidence 201(b)...................00000008 14

Other Authorities

Emma Clare et al., Gov’t of the U.K., Home

Office Research, Development and Statistics

Directorate, Evaluation of Close Supervision

CI Gre PB cctcecernsntcactvteneinainsieiaaiiiiiiataids 15

TABLE OF AUTHORITIES—Continued

Page

Pennsylvania Dep’t of Corrections, Monthly Pop-

ulation Report As of Nov. 30, 2005.................... 14

Chase Riveland, U.S. Dep’t of Justice, Supermax

Prisons: Overview and General Considera-

ET Ta 22

INTEREST OF THE AMICI CURIAE

Amici, organizations whose members include state and

local governments and officials throughout the United States,

have a compelling interest in legal issues that affect state and

local governments.’ Prison administration is a core function

of all States and many local governments. The proper ap-

plication of the standards of judicial review set forth in

Turner v. Safley, 482 U.S. 78 (1987), regarding the. deference

which federal courts must show to the decisions of prison

administrators is therefore of continuing concern to amici and

their members.

As the Court held in Turner, federal courts “are ill

equipped to deal with the increasingly urgent problems of

prison administration,” id. at 84 (citation omitted), and must

uphold prison regulations challenged as unconstitutional if

“reasonably related to legitimate penological interests.” Jd. at

89. Moreover, in this case, which involves judicial review of

State prison administration, federal courts have “additional

reason to accord deference to the appropriate prison authori-

ties.” Jd. at 85 (citation omitted).

The court of appeals disregarded this Court’s teachings in

Turner and other cases to hold unconstitutional Pennsyl-

vania’s policy of denying newspapers, magazines, and photo-

graphs to what the lower court recognized were “the most

incorrigible and difficult prisoners” in the State’s custody.

Pet. App. lla. In so holding, the court disregarded the rea-

sonable judgment of the State’s prison administrators and en-

gaged in precisely the sort of micromanagement of state pris-

ons that this Court has repeatedly held to be impermissible.

See, e.g., Lewis v. Casey, 518 U.S. 343, 361-63 (1996).

' The parties have consented to the filing of this amicus brief and their

letters of consent have been filed with the Clerk of the Court. This brief

was not authored in whole or in part by counsel for a party, and no person

or entity other than amici or their members has made a monetary con-

tribution to the preparation or submission of this brief.

Because the holding of the court of appeals improperly

restricts the ability of prison administrators to manage cor-

rectional facilities in ways clearly related to legitimate

penological interests, amici submit this brief to assist the

Court in the resolution of this case.

SUMMARY OF ARGUMENT

In Turner v. Safley, 482 U.S. 78, 85 (1987), the Court

“formulate[d] a standard of review for prisoners’ constitu-

tional claims that is responsive both to the policy of judicial

restraint regarding prisoner complaints and [to] the need to

protect constitutional rights.” (internal citation and quotation

omitted) The court of appeals misapplied each of the four

Turner prongs to Pennsylvania’s regulation that denies news-

papers and magazines to those inmates who, because of their

intractability, have been assigned to LTSU Level 2. More-

over, in violation of Overton v. Bazzetta, 539 U.S. 126, 132

(2003), the panel majority shifted the burden of proof from

respondent, to disprove the validity of the regulation, to the

State to prove its validity.

1. The court of appeals held that the State’s regulation

lacks a rational relationship to a legitimate penological inter-

est. While the court acknowledged that the State had a strong

penological interest in deterring infractions of prison rules, it

also observed that confinement in LTSU Level 2 can be of an

indeterminate duration. The court therefore concluded that

the State’s “rehabilitation justification” was “illogical.” Pet.

App. 12a. The court also faulted the State because it “offered

no evidence that the rule achieves or could achieve its stated

... purpose.” /d.

This reasoning is erroneous. Under 7urner and Overton,

the State has no obligation to offer evidence showing that

the LTSU rule achieves its stated purpose. Rather, under

Turner’s first prong, the State is only required to articulate a

plausible justification for its regulation. There are several

plausible justifications for the State’s rule.

For example, it is rational to believe that denying privileges

to troublesome inmates will induce them to modify their

behavior and obey prison rules whether their initial assign-

ment to LTSU Level 2 is for a fixed or indeterminate

duration. Moreover, the policy serves as an incentive to those

inmates who are not in the LTSU—whether they are in the

general population or one of the other units used to manage

difficult inmates—to behave or suffer the loss of their

privileges through assignment to the LTSU. The court of

appeals failed to recognize this “self-evident connection to

the State’s interest in maintaining prison security” and order.

Overton, 539 U.S. at 133.

2. The court of appeals erroneously held that LTSU Level -

2 prisoners did not have adequate alternative means for

exercising their First Amendment rights. According to the

court, the State’s rule imposed a “blanket” prohibition on

Level 2 prisoners’ access to newspapers and magazines. Pet.

App. 19a.

The court ignored that Level 2 inmates retain significant

First Amendment rights. They can engage in expressive

activity by writing letters. Moreover, they can obtain books

from the prison library. They can obtain information about

political and social events by asking that their family

members include such information in their letters. Level 2

prisoners can also receive this information from family

members during monthly visits. Finally, Level 2 prisoners

can gain access to newspapers and periodicals by modifying

their behavior.

3. The court of appeals further erred in holding that there

were two ready alternatives to the State’s regulation. Ac-

cording to the court, the State could distribute a newspaper or

magazine to each inmate who requested one and retrieve it at

the end of a reading period. See id. at 22a. Alternatively, the

State could escort each inmate to the mini-law library where

they could “read a periodical of their choosing.” /d. at 23a.

Both alternatives are problematic because they would

result in an increase in the number of interactions between

guards and inmates and thus raise the potential number of

security incidents. Under the first alternative, the guards

would still have to retrieve the newspaper at the end of the

reading period at which time an inmate could use it to commit

an assault. And given the troublesome nature of Level 2

inmates, it is reasonable to believe that on occasion some

might refuse to return the newspaper and thus cause a

confrontation with the guards.

Under the second alternative, it is obvious that prisoner

demand for library visits would increase substantially because

being able to look at newspapers and magazines would

reduce the harshness of LTSU confinement. While the court

of appeals “fail[ed] to see how the mere addition of non-legal

and non-religious periodicals to the materials already avail-

able to the inmates in the library” would burden the State, id.

at 24a, it is rational to believe that many prisoners would find

newspapers and magazines more entertaining than the Federal-

Reporter series and insist upon receiving every visit that the

State’s regulations entitle them to. This alternative would

clearly result in substantial additional burdens upon the prison

system and its personnel, including the guards needed to

escort inmates on library visits.

ARGUMENT

THE COURT OF APPEALS FAILED TO GIVE

PROPER DEFERENCE TO THE JUDGMENT OF

PENNSYLVANIA’S PRISON OFFICIALS

The court of appeals held violative of the First Amendment

Pennsylvania’s policy that denies newspapers, magazines and

photographs to those inmates who are so troublesome as to

warrant assignment to Level 2 of the State’s Long Term

Segregation Unit (LTSU). Notwithstanding that inmates

assigned to the LTSU Level 2 are “the most incorrigible and

difficult prisoners” in the State’s custody, Pet. App. Ila, the

court rejected Pennsylvania’s contention that the policy was

justified by its legitimate penological interests in encouraging

LTSU prisoners to modify their behavior and in preserving

institutional security.

In so holding, the court of appeals engaged in micro-

managing of the most intrusive sort and ignored the funda-

mental teachings of Turner v. Safley, 482 U.S. 78 (1987).

While the court’s opinion pays lip service to the Turner

factors, its application of them reflects a blatant disregard for

Turner’s instruction regarding the respective roles and

competencies of the courts and prison administrators. As

explained below, in analyzing the first Turner factor, the

court failed to defer to the expert judgments of the State’s

prison administrators. Instead, the panel majority imposed

heightened scrutiny by requiring that the State adduce

empirical proof that prison policies will achieve the desired

objective and by dismissing the rational judgments of

administrators.

The court below also erred in analyzing the impact that

accommodation of the right would have on the prison and

whether there are alternative means for the State to ac-

complish its penological objectives. Indeed, the problematic

nature of the alternatives suggested by the court demonstrates

why prison administrators and not judges should make

decisions of this sort. The judgment of the court of appeals

should therefore be reversed.

A. In Reviewing Prisoners’ Constitutional Claims

Federal Courts Are Required To Show Appro-

priate Deference To The Policy Decisions Of

Prison Administrators

The Court has held that “[p]rison walls do not form a

barrier separating prison inmates from the protections of the

Constitution,” and that “federal courts must take cognizance

of the valid constitutional claims of prison inmates.” Turner,

482 U.S. at 84. Thus, as a general proposition it is undisputed

that prisoners retain some constitutional rights, including

some First Amendment protections.

“[{I]t is obvious,” however, that prisons “differ in numerous

respects from free society. They, to begin with, are pop-

ulated, involuntarily, by people who have been found to have

violated one or more of the criminal laws established by

society for its orderly governance.” Jones v. North Carolina

Prisoners’ Labor Union, Inc., 433 U.S. 119, 129 (1977).

The Court has therefore long recognized that “[l]awful

incarceration brings about the necessary withdrawal or limi-

tation of many privileges and rights, a retraction justified by

the considerations underlying our penal system.” Price v.

Johnston, 334 U.S. 266, 285 (1948) (quoted in Jones, 433

U.S. at 125 (collecting cases)). As the Court further

explained in Jones, “[t)he fact of confinement and the needs

of the penal institution impose limitations on constitutional

rights, including those derived from the First Amendment,

which are implicit in incarceration.” 433 U.S. at 125. The

Court has accordingly held that:

[A] prison inmate retains those First Amendment rights

that are not inconsistent with his status as a prisoner or

with the legitimate penological objectives of the cor-

rections system. Thus, challenges to prison restrictions

that are asserted to inhibit First Amendment interests

must be analyzed in terms of the legitimate policies and

goals of the corrections system, to whose custody and

care the prisoner has been committed in accordance with

due process of law.

Pell v. Procunier, 417 U.S. 817, 822 (1974) (quoted in Jones,

433 U.S. at 125).

This Court has repeatedly recognized that “courts are ill

equipped to deal with the increasingly urgent problems of

prison administration and reform.” Turner, 482 U.S. at 84

(quoting Procunier v. Martinez, 416 U.S. 396, 405 (1974));

see also Lewis v. Casey, 518 U.S. 343, 361-63 (1996); Jones,

433 U.S. at 126. As the Court recognized in Turner, “Run-

ning a prison is an inordinately difficult undertaking that

requires expertise, planning, and the commitment of re-

sources, all of which are peculiarly within the province of the

legislative and executive branches of government.” 482 U.S.

at 84-85. And “[w]here a state penal system is involved,

federal courts have . . . additional reason to accord deference

to the appropriate prison authorities.” /d. (citing Martinez,

416 US. at 405). See also Lewis, 518 U.S. at 362 (quoting

Preiser v. Rodriguez, 411 U.S. 475, 492 (1973)); Jones, 433

U.S. at 126 (quoting Martinez, 416 U.S. at 405).

The Court has accordingly directed that federal courts

should “ordinarily defer to [the] expert judgment” of state

prison administrators in setting penological policies. Pell,

417 U.S. at 827. As the Court explained in Jones, “[bJecause

the realities of running a penal institution are complex and

difficult, we have . . . recognized the wide-ranging deference

to be accorded the decisions of prison administrators.” 433

U.S. at 126.

This Court adopted the Turner standard to give appropriate

weight to these important considerations. See 482 U.S. at 85.

As the Turner Court explained, “[o]ur task . . . is to formulate

a standard of review for prisoners’ constitutional claims that

is responsive both to the ‘policy of judicial restraint regarding

prisoner complaints and [to] the need to protect constitutional

rights.” /d. (quoting Martinez, 416 U.S. at 406).

The four-prong 7urner standard is not “a standard of

heightened scrutiny.” /d. at 87. Yet, as explained below, the

court of appeals plainly applied a heightened standard of

review to Pennsylvania’s LTSU policy. Moreover, contrary

to this Court’s explicit instruction in Overton v. Bazzetta, 539

U.S. 126, 132 (2003), and earlier cases, see id. (collecting

cases), the panel majority shifted the burden of proof from the

prisoners to disprove the validity of the regulation to the State

to prove its validity. The court below thus did exactly what

Turner admonishes that federal courts must not do: it became

“the primary arbiter[] of what constitutes the best solution to

[an] administrative problem, thereby ‘unnecessarily perpet-

uat{ing] the involvement of the federal courts in affairs of

prison administration.” 482 U.S. at 89 (quoting Martinez,

416 U.S. at 407). The judgment below should therefore

be reversed.

B. Pennsylvania’s Policy Of Denying Newspapers,

Magazines And Photographs To LTSU Level 2

Inmates Satisfies The Turner Standard

In Turner, the Court articulated four factors for deter-

mining whether a prison rule violates a prisoner’s consti-

tutional right: “First, there must be a ‘valid, rational con-

nection’ between the prison regulation and the legitimate

governmental interest put forward to justify it.” /d. (quoting

Block v. Rutherford, 468 U.S. 576, 586 (1984)). Second, the

Court examines “whether there are alternative means of

exercising the right that remain open to prison inmates.” /d.

at 90. Third, the Court determines “the impact accom-

modation of the asserted constitutional right will have on

guards and other inmates, and on the allocation of prison

resources generally.” /d. Finally, the Court examines

“whether there are ‘ready alternatives’ to the regulation.”

Overton, 539 U.S. at 132 (citing Turner, 482 U.S. at 90-91).

1. The LTSU Policy Has A Valid, Rational Con-

nection To A Legitimate Governmental Interest.

Under the first Turner factor, “there must be a ‘valid,

rational connection’ between the prison regulation and the

legitimate governmental interest put forward to justify it.”

482 U.S. at 89. The Court has explained that “a regulation

cannot be sustained where the logical connection between the

regulation and the asserted goal is so remote as to render the

policy arbitrary or irrational.” Jd. at 89-90. Furthermore,

“the governmental objective must be a legitimate and neutral

one.” /d. at 90.

The court of appeals repeatedly ignored that these form-

ulations do not impose a standard of heightened scrutiny but

rather that of rational basis review. Under rational basis

review, the State does not have the obligation of proving the

validity of its regulation. See Overton, 539 U.S. at 132; ef.

Heller v. Doe, 509 U.S. 312, 320 (1993) (“[A] legislative

choice is not subject to courtroom factfinding and may be

based on rational speculation unsupported by evidence or

empirical data.”) (quoting FCC v. Beach Communications,

Inc., 508 U.S. 307, 315 (1993)). Rather, the burden is on “the

prisoner to disprove it.” Overton, 539 U.S. at 132. And

under the classic formulation, “‘[t]he burden is on the one

attacking the [rule] to negative every conceivable basis which

might support it,’ whether or not the basis has a foundation in

the record.” Heller, 509 U.S. at 320-21 (quoting Lehnhausen

v. Lake Shore Auto Parts Co., 410 U.S. 356, 364 (1973)).°

? Amici acknowledge that the source of these rational basis formu-

lations were cases that challenged legislative classifications. But whether

a court is reviewing the action of a legislative body or the policy decision

of prison administrators, the same separation of powers concerns exist.

As Turner explains, “[p}rison administration is . . . a task that has been

committed to the responsibility of [the legislative and executive] branches,

and separation of powers concerns counsel a policy of judicial restraint.”

482 U.S. at 85.

The court of appeals acknowledged that “‘deterrence of

future infractions of prison rules’ is a legitimate penological

interest.” Pet. App. 10a (quoting Gregory v. Auger, 768 F.2d

287, 290 (8th Cir. 1985), and citing Daigre v. Maggio, 719

F.2d 1310, 1313 (Sth Cir. 1983)). The court also “agree[d]

that deterrence of future infractions of prison rules can be an

appropriate justification for temporarily restricting the rights

of inmates.” /d. at lla. The court, however, then faulted the

State for not having “shown how the regulations in this case

serve such a purpose.” /d.

This was so, the court reasoned, because “[t]he LTSU is

not a place where inmates are sent for a discrete period of

punishment, pursuant to a specific infraction, but is a place

for ‘Long Term’ segregation of the most incorrigible and

difficult prisoners as long as they fall under that umbrella.”

Id. Noting that “several inmates have remained in Level 2

since the LTSU’s inception two years ago,” id. at 12a, the

court observed that “[a]s administered, it is unclear how the

policy would achieve the deterrence it seeks.” /d. The court

thus concluded that “[njot only is the rehabilitation jus-

tification illogical given the nature of LTSU confinement, but

LTSU Level 2 is a far cry from the disciplinary contexts in

which such bans have been deemed constitutional.” /d. The

court further faulted the State because it “offered no evidence

that the rule achieves or could achieve its stated rehabilitative

ourpose.” /d. at 14a n.10.

The court’s reasoning reflects several fundamental errors.

Under Overton and other cases, the State is not required to

offer evidence that, as the court of appeals put it, “the rule

achieves or could achieve its stated . . . purpose.” See Over-

ton, 539 U.S. at 132. Rather, the burden is on the inmates to

show that the rule serves no legitimate penological purpose.

See id.

It is thus immaterial that the State produced no affidavits

establishing the effectiveness of the prohibition in inducing

inmates to modify their behavior. And the court of appeals’

belief that its “insistence that the DOC offer some evidence is

not .. . at odds with Turner but rather a complementary part

of the analysis in determining whether an asserted goal is

logically connected to the prison regulation,” Pet. App. 14a

n.10, is flatly contradicted by Overton and other cases which

clearly place the burden on “the prisoner to disprove” the

validity of a regulation. See Overton, 539 U.S. at 132 (citing

Shaw v. Murphy, 532 U.S. 223, 232 (2001); O’Lone v. Estate

of Shabazz, 482 U.S. 342, 350 (1987); Jones, 433 U.S. at

128). In short, under the first prong of Turner, the State is

only required to articulate a plausible justification for its

regulation; it has no obligation to produce empirical evidence

showing that its regulation is effective. Thus, the purported

“paucity of any such evidence” proving the effectiveness of

the LTSU prohibition in “achiev{ing] its stated rehabilitative

purpose,” Pet. App. 14a n.10, is of no legal consequence.‘

> Further demonstrating its fundamental misunderstanding of this

Court’s prisoners’ rights jurisprudence, the court of appeals faulted the

district court because it “did not examine the fit between the policy and its

rehabilitative goals, whether the ban was implemented in a way that could

modify behavior, or inquire into whether the DOC’s deprivation theory of

behavior modification had any basis in real human psychology, or had

proven effective with LTSU inmates.” Pet. App. 13a. These criticisms

find no support in this Court’s cases. They reflect heightened scrutiny, an

approach incompatible with Turner and its progeny. See, e.g., Shaw, 532

U.S. at 230 (“{UJjnder Turner . . . prison officials are to remain the

primary arbiters of the problems that arise in prison management.”); see

also id. at 232 (“To prevail, [a prisoner] must overcome the presumption

that the prison officials acted within their broad discretion.”) (internal

quotation and citation omitted).

* At the time of Deputy Superintendent Dickson’s deposition, 10 in-

mates had “graduated” from the LTSU and been transferred to other

institutions, Opp. App. 95 (Dickson Dep. 27), and three inmates had been

promoted to Level |. /d. at 93 (Dickson Dep. 17). Considering that “the

main reasons for an inmate to come to the LTSU” include an inmate's

having failed to complete the Special Management Unit, id. at 95 (Dick-

That the State’s LTSU policy “has a ‘valid, rational con-

nection’ to a legitimate governmental interest,” Overton, 539

U.S. at 132 (citation omitted), is established by the court of

appeals’ acknowledgment “that deterrence of future infrac-

tions of prison rules can be an appropriate justification for

temporarily restricting the rights of inmates.” Pet. App. | la.

Indeed, as a general matter it is rational to believe that

denying privileges to troublesome inmates will induce them

to modify their behavior and obey prison rules whether or not

their initial assignment to LTSU Level 2 is for a fixed or

indeterminate duration.

Relatedly, the LTSU policy has a valid, rational connection

to the State’s legitimate penological interest in obtaining

compliance with prison rules for another reason. The policy

serves aS an incentive to those inmates who are not in the

LTSU—whether they are in the general population or one of

the other units used to manage difficult inmates—to behave

or suffer the loss of privileges. As the dissenting judge below

explained: “It is ‘rational’ for corrections officials to think

that inmates who are not in Level 2 will be deterred from

engaging in serious misconduct because they do not want to

be transferred to that unit and thus . . . be subjected to the

restrictions that accompany that assignment.” /d. at 26a-27a

(Alito, J., dissenting). The court of appeals, however, failed to

recognize this “self-evident connection to the State’s inter-

est in maintaining prison security” and order. Overton, 539

U.S. at 133.

Ignoring this alternative interest served by the LTSU rule,

the court of appeals apparently found persuasive respondent’s

contention that “isolating prisoners from the going[s]-on in

son Dep. 28), a form of disciplinary segregation that is not as severe as the

LTSU, there is—contrary to the view of the court of appeals—-substantial

evidence that the LTSU policy induces troublesome inmates to modify

their behavior.

the outside world tends to undercut any genuine rehabili-

tation.” Pet. App. 13a. Notwithstanding that there was “no

evidence in the record on this point,” and that respondent

had only “cite[d] to language in several cases,” the court

speculated that “[ijt certainly seems relevant to the...

inquiry, as well as likely, that the ban may produce less rather

than more compliance in at least some inmates.” /d. at 13a-

14a (emphasis added). See also id. at 13a n.9 (asserting that

“[(rjehabilitative goals are ‘furthered by efforts to inform and

educate inmates, and foster their involvement in the world

outside the prison gates’”) (quoting Abdul Wali v. Coughlin,

754 F.2d 1015, 1034 (2d Cir. 1985)).

This reasoning refutes any claim that the court of appeals

adhered to the principles of Turner and its progeny. While

Overton makes clear that the prisoners bear the burden of

proving—with evidence—the invalidity of a regulation, the

court of appeals rejected the State’s justification not on the

basis of evidence but based purely on its own speculation that

the LTSU policy does not work. The snippets from judicial

opinions cited by the court of appeals, see id. at 13a n.9, do

not establish that the LTSU policy lacks a rational connection

to a legitimate penological interest. The court of appeals’

reliance on them is a transparent attempt to impose its own

judgment as to what constitutes a valid penological goal.

Indeed, the court of appeals’ invocation of these passages

demonstrates the soundness of this Court’s long-standing di-

rective that federal “courts should ordinarily defer to [the]

expert judgments” of state prison administrators in setting

penological policies. Pell, 417 U.S. at 827. Two of the

cases—Abdul Wali and Morrison v. Hall, 261 F.3d 896 (9th

Cir. 2001)}—involved First Amendment restrictions on pris-

oners in the general population. Tellingly, although the court

of appeals in this case faulted Pennsylvania for failing to

produce evidence that the LTSU rule would achieve its stated

purpose, Pet. App. 14a n.10, in Abdul Wali the Second Circuit

cited no evidence in support of its assertions as to what

constitute proper penological goals. See 754 F.2d at 1033-34.

And in Morrison the Ninth Circuit relied on two newspaper

articles to support its holding, reasoning that there is a

““correlation between reading, writing and inmate rehabili-

tation.’” 261 F.3d at 904 n.7 (citation omitted) (quoted at Pet.

App. 13a n.9).°

Thus, the conclusion that “isolating prisoners from the

going[s]-on in the outside world tends to undercut any gen-

uine rehabilitation,” Pet. App. 13a, which the court of appeals

found both “relevant” to the Turner prong-one inquiry and

“likely” as a factual matter, is without foundation. Jd. at 13a-

14a. And even if there is a “correlation between reading,

writing and inmate rehabilitation,” id. at 13a n.9 (citation

omitted), the State allows Level 2 prisoners to read books and

write letters. See Opp. App. 77a. In any event, the court of

appeals’ conclusion says nothing about the strength of the

correlation and whether the proposition holds true for all

42,000 inmates in Pennsylvania’s prison system. See Penn-

sylvania Dep’t of Corrections, Monthly Population Report As

of Nov. 30, 2005 <available at http://www.cor.state.pa.us/

portal/lib/portal/monthly_population.pdf>.

* The court of appeals also noted that in a case involving the Alabama

prison system “there was testimony that deprivation of reading materials

in segregation can cause ‘psychological deterioration’ which in turn can

cause inmates either to be ‘very withdrawn and curl up in infancy, or [to]

become acting out and aggressive people.’” Pet. App. 13a n.9 (quoting

Spellman v. Hopper, 95 F. Supp.2d 1267, 1281 (M.D. Ala. 1999)).

There is, however, “no evidence in the record on this point.” /d. Nor is

this assertion a proper subject for judicial notice. See Fed. R. Evid. 201(b)

(“A judicially noticed fact must be one not subject to reasonable

dispute[.]”). In any event, Level 2 inmates are allowed to obtain books

from the library. See Pet. App. 14a.

The inmates assigned to the LTSU comprise one tenth of

one percent of Pennsylvania’s state prison population. Pet.

App. 25a (Alito, J., dissenting). They are—as the magistrate

judge found—‘“‘the most incorrigible, the most difficult,

[and] problematic’” of all the prisoners in the state system

“*and have demonstrated the most behavior conflicts.’” Pet.

App. 34a-35a (Op. Mag. J.) (citation omitted); see also Pet.

App. 25a (Alito, J., dissenting). “Indeed, [inmates] are in the

LTSU because efforts in other units [where they had access to

newspapers and magazines] failed.” Jd. at 40a (Op. Mag. J.).

Moreover, some inmates may have committed crimes of such

a serious nature and received such lengthy sentences (e.g.,

life) that they have no interest in rehabilitation as the court of

appeals has redefined that term. And in the unique culture of

prisons, some inmates may take special pride in being

intractable and disruptive. Cf. Emma Clare et al., Gov’t of

the U.K., Home Office Research, Development and Statistics

Directorate, Evaluation of Close Supervision Centres 52

(2001) (“[G]iven the nature of the prison environment and

culture . . . there are many pressures operating on prisoners to

maintain their disruptive behaviour.”).

“The question of what motivates disruptive prisoners is

extraordinarily complex[.]” /d. at 123 (Appendix A). Deter-

mining what measures are necessary to induce LTSU inmates

to modify their behavior is a matter which is manifestly

within the expertise of prison administrators and not federal

judges. In substituting its own judgment for that of Penn-

sylvania’s prison administrators as to what constitute valid

penological goals, the court of appeals failed to accord proper

deference to the State’s officials and thus violated the fun-

damental teaching that “prison officials are to remain the

primary arbiters of the problems that arise in prison man-

agement.” Shaw, 532 U.S. at 230 (citing Turner, 482 U.S.

at 89).°

2. LTSU Inmates Have Sufficient Alternative Means

of Exercising Their First Amendment Rights

Turner’s second factor “is whether there are alternative

means of exercising the right that remain open to prison

inmates.” 482 U.S. at 90. As Turner explains, “[w]here ‘other

avenues’ remain available for the exercise of the asserted

right, Jones, 433 U.S. at 131, courts should be particularly

conscious of the ‘measure of judicial deference owed to

corrections officials . . . in gauging the validity of the

regulation.”” 482 U.S. at 90 (quoting Pell, 417 U.S. at 827).

The court of appeals apparently accepted respondent’s

argument “that while Level 2 inmates can read leisure books,

they have no meaningful access to current news accounts or

published information about current political, social, or other

public events and activities occurring outside the prison

walls.” Pet. App. 19a. Likewise, “they have no way to look

® The court of appeals also rejected the State’s contention that the

prohibition serves a legitimate penological interest because the proscribed

reading materials could potentially be used as weapons or to start fires.

See Pet. App. 14a-18a. Here, too, the court ignored the self-evident

connection between the rule and the State’s penological interests and

instead subjected the State’s justification to heightened scrutiny. See, e.g.,

id. at 16a (“[W]e agree with Banks that given the materials Level 2

inmates are permitted in their cells, prohibiting a single newspaper or

magazine has no significant relationship to the stated security objectives.)

(emphasis added).

As explained above, Turner and its progeny only require a rational

relationship. See 482 U.S. at 89-90. Moreover, the court’s approach is

counterproductive to the interests of prisoners. If a State cannot ban items

for security reasons because it allows inmates to possess other items that

can also be used for improper purposes, States would have an incentive to

impose even greater restrictions on inmates’ possessions.

at images of loved ones and friends apart from the possibility

of infrequent visits.” /d.

The court of appeals reasoned that the LTSU rule was a

“blanket” prohibition and “that as long as an inmate is at

Level 2 status and is subject to the policy in question, he has

no alternative means to exercise his First Amendment right of

access to a reasonable amount of newspapers, magazines, and

photographs.” Pet. App. 19a-20a. While acknowledging that

Level 2 inmates can gain access to the prohibited materials by

behaving and thereby getting promoted out of the LTSU, the

court apparently found this insufficient because “segregation

in Level 2 is not linked to a particular infraction, and is of

potentially unlimited duration.” /d. at 20a. The court appar-

ently was also concerned with the adequacy of the process for

reviewing Level 2 status. See id. (“There are no affidavits in

the record from any of those decision-makers mentioned by

Dickson, nor is there any documentation of the review

process.”). The court thus concluded that “the LTSU pro-

hibition cannot be characterized as merely a ‘time, place or

manner’ restriction.” /d. at 21a. (citation omitted).

The court’s reasoning reflects a fundamental misunder-

standing of this Court’s prisoner rights cases. Turner itself

rejects the notion that the Court’s “time, place, or manner”

jurisprudence is pertinent in evaluating prison regulations that

implicate First Amendment rights. See 482 U.S. at 87-88.

Indeed, it is strange to apply a doctrine whose purpose is to

assess the validity of governmental regulation of speech in a

public forum to the regulation of speech in prison.

True enough, Pell v. Procunier cited several time, place

and manner cases. See 417 U.S. at 826. But as Turner

observed, the regulation at issue in Pell was not “a ‘time,

place, or manner’ restriction in any ordinary sense of the

term.” 482 U.S. at 88. Thus, while Pell recognized that “the

alternative methods of personal communication still available

to prisoners would have been ‘unimpressive’ if offered to

justify a restriction on personal communication among mem-

bers of the general public . . . . [T}hey were relevant in

determining the scope of the burden placed by the regulation

on inmates’ First Amendment rights.” /d. at 88 (quoting Pell,

417 U.S. at 825).

While the burden imposed on Level 2 inmates’ First

Amendment rights is not insignificant—otherwise it would

serve no penological purpose—Level 2 inmates retain

substantial First Amendment rights. For instance, they can

engage in expressive activity by writing letters. Moreover,

they can obtain books from the prison library.

Level 2 inmates also have several alternative means of

obtaining access to information about political and social

events. While they cannot receive news clippings unless they

relate to them or their families, they can receive personal

correspondence. See Opp. App. 77. The LTSU rule does not

prevent an inmate from requesting that family members

include within their letters a discussion of current events. See

Pet. App. 28a (Alito, J. dissenting); id. at 41a-42a (Op. Mag.

J.). Similarly, inmates can also receive information regard-

ing news events during their monthly visits with family

members. See id. at 4la-42a. The court of appeals ignored

these alternatives.

Furthermore, as the district court found, Level 2 prisoners

can obtain newspapers and magazines by modifying their

behavior and gaining promotion to Level 1. See id. at 41a;

see also id. at 28a (Alito, J., dissenting). The court of

appeals, however, rejected this alternative, explaining that

Level 2 segregation “is not linked to a particular infraction,

and is of potentially unlimited duration.” /d. at 20a.’

” Under almost all of the criteria that render an inmate subject to

transfer to the LTSU, see Pet. App. 3a n.2, “particular infraction[s]” are

relevant. /d. at 20a. For example, “engaging in facility disturbances” or

“assaultive behavior with the intent to cause death or serious bodily

This aspect of the program does not, however, present a

First Amendment question. Indeed, the court’s reasoning

ignores that the duration of the prohibition is within each

inmate’s power to control. And even if this feature of the

program were relevant in determining the validity of the rule,

once again the court of appeals failed to follow this Court’s

Overton holding.”

3. Respondent’s Proposed Accommodations Would

Have A Substantial Impact On Prison Man-

agement And There Are No Ready Alternatives .

Under Turner’s third and fourth prongs, a court must

consider “‘the impact accommodation of the asserted con-

stitutional right will have on guards and other inmates, and on

the allocation of prison resources generally,’ and ‘the absence

of ready alternatives’ available to the prison for achieving the

governmental objectives.” Shaw, 532 U.S. at 230 (quoting

Turner, 482 U.S. at 90). The Court has recognized that “[i}n

the necessarily closed environment of the correctional insti-

tution, few changes will have no ramifications on the liberty

of others or on the use of the prison’s limited resources for

preserving institutional order.” 7urner, 482 U.S. at 90. The

Court has further made clear that Turner’s fourth prong “is

injury” would seem to clearly involve a particular infraction. Moreover,

none of the plaintiffs have alleged that their assignment to the LTSU was

not based on a particular infraction or that they have been improperly kept

in Level 2 status. See Opp. App. la-10a (Complaint).

* That “[t}here are no affidavits in the record from any of those

decision-makers” on the unit management team, id. at 20a, the lack of

“any documentation of the review process,” id., and the absence of any

documents in the record “which indicated, with respect to current LTSU

inmates, how long they had been at the facility and how long they had

been at Level 2,” id. at 20a-21a, are evidentiary matters which respondent

had the burden of proving. See Overton, 539 U.S. at 132. There was thus

no evidentiary basis for the court of appeals to rule against the State on the

second Turner prong.

not a ‘least restrictive alternative’ test: prison officials do not

have to set up and then shoot down every conceivable

alternative method of accommodating the claimant’s con-

stitutional complaint.” Jd. at 90-91 (citation omitted). If,

however, a prisoner “can point to an alternative that fully

accommodates the prisoner’s rights at de minimis cost to

valid penological interests, a court may consider that as

evidence that the regulation does not satisfy the reasonable

relationship standard.” /d. at 91.

The court of appeals accepted respondent’s contention that

there were two alternative policies which could accommodate

inmates’ rights with minimal impact on prison resources and

safety. See Pet. App. 22a-23a. According to the court, the

State “could establish a specific reading period, or several

different reading periods, in which guards deliver a single

newspaper or magazine to an inmate’s cell, if requesfed, and

retrieve it at the close of the period.” /d. at 22a. In the

court’s view, “[e]ven if limited distribution of periodicals

were to require additional monitoring, such an accommo-

dation would have a minimal impact on prison resources.” Jd.

at 23a.

The court also accepted respondent’s suggestion that in-

mates “could be escorted to the secure mini-law library to

read a periodical of their choosing.” /d. at 23a. The court

reasoned that “[i]nmates are already permitted to leave their

cells under guard escort to use the library to view legal

materials, so individual inmate escort has not been deemed

prohibitively- burdensome or dangerous by prison admin-

istrators.” /d. at 23a-24a.

In analyzing these alternatives, the court of appeals again

substituted its own judgment for that of the State’s prison

administrators and misapplied the Turner standard. The court

did pay lip service to the fact that “Level 2 inmates are some

of the most ‘intractable’ in the Pennsylvania prison system.”

Id. at 22a. The court ignored, however, the fundamental fact

that both alternatives would result in an increase in the

number of interactions between guards and inmates and thus

raise the potential number of security incidents.

For example, under the first alternative, the guards would

still have to retrieve the newspaper at the end of the reading

period at which time an inmate could use it to commit an

assault. See Pet. App. 45a (Op. Mag. J.). In addition, given

the troublesome nature of Level 2 inmates, it is reasonable to

believe that on occasion some might refuse to return the

newspaper, thus creating the potential for a confrontation

between themselves and the guards and raising the possibility

of injury to either the inmate or the guards.

While the court of appeals acknowledged that those in-

mates who “abuse[] their use of periodicals,” id. at 23a, could

thus have their “access to periodicals . . . be entirely with-

held,” id. at 22a, the court’s rule would allow Level 2 inmates

at least one opportunity to misuse them.” Moreover, even the

court acknowledged that it would “require additional moni-

toring,” id., i.e., that more guards would have to be assigned

to the LTSU. Thus, contrary to the views of the court below,

this alternative would have more than a de minimis impact on

prison resources.

The alternative of escorting prisoners to the mini-law

library is equally problematic. While the court of appeals

admitted that “it is possible that the demand for mini-law

library sessions may increase if the policy were changed,” the

court faulted the State for failing show “how this would

significantly increase the burden on prison staff.” Jd. at 24a.

It is obvious, however, that prisoner demand for library visits

* The court of appeals also suggested that access to newspapers “could

be entirely withheld from those individual prisoners who, in the judgment

of prison officials, would pose a particular risk given their records.” Pet.

App. 22a-23a. Pennsylvania's officials have, however, already made this

finding when determining that an inmate should be placed in Level 2.

would increase substantially for the reason that being able to

look at newspapers and magazines would reduce the

harshness of LTSU confinement. While the court of appeals

“failfed] to see how the mere addition of non-legal and non-

religious periodicals to the materials already available to the

inmates in the library” would burden the State, id., it is

rational to believe that many prisoners would find newspapers

and magazines more entertaining than the Federal Reporter

series and would be sure to demand every visit that the

DOC’s regulations entitle them to. This alternative would

thus clearly result in substantial additional burdens on the

prison system. '°

Finally, the court of appeals rejected the district court’s

conclusion that the prisoners’ alternatives would impose

“more than a de minimus |sic] cost to the DOC’s behavior

modification goals because the accessibility of periodicals

would render the threat of Level 2 segregation toothless as a

deterrent.” Pet. App.25a. In this regard, the court of ap-

peals reasoned that “even without the challenged restriction,

Level 2 . . . segregation is more restrictive than Level | in sig-

nificant respects.” /d.

The scope of restrictions necessary to induce Level 2

inmates to modify their behavior is, however, a matter which

is uniquely within the expertise of prison administrators and

not federal judges to decide. The court of appeals dis-

regarded this Court’s admonition that federal courts are not to

“become the primary arbiters of what constitutes the best

solution to” the problems that arise in running prisons.

'° Cf Chase Riveland, U.S. Dep’t of Justice, Supermax Prisons:

Overview and General Considerations 9 (1999) (“The number of staff

required to move cach inmate from a cell to the exercise space and back

three to seven times cach weck is considerable. As these events also

constitute the most frequent time that the inmate is out of his/her cell, they

also present the most likely opportunity for resistive or combative

behavior or the exchange or introduction of contraband.”’).

Turner, 482 U.S. at 89. In this and numerous other ways

discussed above, the court of appeals’ reasoning squarely

conflicts with this Court’s teachings.

CONCLUSION

The judgment of the court of appeals should be reversed.

Respectfully submitted,

RICHARD RUDA *

Chief Counsel

JAMES |. CROWLEY