Amicus Curiae Brief — Beard v. Banks

| preme Court, U.S.

BEST AVAILABLE COPY =. | rites”

(YY | FEB 16 2006

No. 04-1739 OFFICE OF THE CLERK

IN THE

Supreme Court of the United States

JEFFREY BEARD,

EPRI NY ED cor’ Petitioner,

RONALD BANKS,

Respondent.

On WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

BRIEF FOR LUMUMBA KENYATTA INCUMAA AS

AMICUS CURIAE SUPPORTING RESPONDENT

Justin S. ANTONIPILLAI

Counsel of Record

ROBERT ALEXANDER SCHWARTZ

C. Ezexiet Ross

ARNOLD & Porter LLP

555 Twelfth Street, N.W.

Washington, D.C. 20004-1206

(202) 942-5000

Counsel for Mr. Incumaa

199559 g

COUNSEL PRESS

(800) 274-3321 + (800) 359-6859

i

QUESTION PRESENTED

Whether a state is entitled to summary judgment

upholding a prison policy that denies newspapers, magazines,

and photographs to certain inmates, where the state: (1) baldly

asserts that the policy will deter certain inmates from

violating prison rules, will prevent fire, will reduce

contraband, and will increase security; (2) fails to articulate

any valid and rational connection between the policy and its

asserted justification; and (3) fails to submit any evidence to

establish that the policy actually furthers these interests.

il

TABLE OF CONTENTS

Page

eh oyy ee) Be i

pp 8 Ce ee ere er rrr re ii

TABLE OF CITED AUTHORITIES ............ iv

INTEREST OF MR. INCUMAA ............... |

STATEMENT OF THE CASE ..........:...... 2

SUMMARY OF ARGUMENT ................. 5

TE 50 eS edddulexcmspeekheeseeeteens 6

I TURNER REQUIRES EITHER AN

OBVIOUSLY VALID AND RATIONAL

NEXUS BETWEEN RESTRICTIONS OF

RIGHTS AND THE ASSERTED

PENOLOGICAL INTERESTS OR,

ALTERNATIVELY, EVIDENCE OF A

eee ere roy Pee 8

A. Turner Requires More Than Bald

Assertions That A Restriction Will

Prevent Bad Behavior. .............. 8

B. Applying Turner, Courts of Appeals

Have Required That The Connection To

The Penological Goal Be A Matter of

PE EE.” no ca ciccaveseeces 1]

il

Contents

Page

C. The Third Circuit’s Analysis Is

Consistent With This Court’s Holdings

In Other Circumstances Requiring

GS Sccedouidwace tu kokudaw ka 13

Il. DOC HAS NOT ESTABLISHED A

VALID AND RATIONAL CONNECTION

BETWEEN THE BANS AND THE

ASSERTED PENOLOGICAL INTERESTS.

A. Common Sense Does Not Establish That

The Worst Behaved Prisoners In

Pennsylvania Will Be Motivated By The

Selection Of Reading Material In LTSU

DEE is 46 Si ees co caebee a bee? aes 17

B. Common Sense Belies The Fire,

Contraband, And Weapons Justifications.

III. PETITIONER’S REGULATION LEAVES NO

ALTERNATIVE MEANS TO EXERCISE

THE RIGHT IN QUESTION. ............ 23

IV. THE COURT OF APPEALS CORRECTLY

CONCLUDED THAT PRISONERS’ FIRST

AMENDMENT RIGHTS CAN BE

ACCOMMODATED AT A DE MINIMIS

COST TO THE PETITIONER, WHICH CAN

ACHIEVE ITS GOALS BY ALTERNATE

REE, sébdscpacwardesedsvestacvesna 25

CURE ck cc cccsreveuvibpeccsderdieare 26

iv

TABLE OF CITED AUTHORITIES

Page

Cases:

Abdul Wali v. Coughlin, 754 F.2d 1015 (2d Cir. 1985)

Amatel vy. Reno, 156 F.3d 192 (D.C. Cir. 1998) ... 11, 12

Asker v. Cal. Dep't of Corr., 350 F.3d 917 (9th Cir.

BED. bb bids Cacexd debe n sane whee 12

Banks v. Beard, 399 F.3d 134 (3d Cir. 2005) ..... passim

Bd. of Educ. v. Pico, 457 U.S. 853 (1982) ........ 24

Bell v. Wolfish, 441 U.S. 520 (1979) ...... 7, 10,21, 24

Block v. Rutherford, 468 U.S. 576 (1984) ........ 10

Chevron v. Natural Res. Council, 467 U.S. 837

SOR. énedcdateseisntcuweeet tele 14

City of Cleburne, Texas v. Cleburne Living Center,

GFS UR. GIS CORSE cccctocewdswendaceaneans 14

Giano vy. Senkowski, 54 F.3d 1050 (2d Cir. 1995) . 11, 12

Griswold v. Connecticut, 381 U.S. 479 (1965) .... 24

Howard v. Snyder, 389 F. Supp. 2d 589 (D. Del.

, PITT 22

v

Cited Authorities

Page

Jacklovich v. Simmons, 392 F.3d 420 (10th Cir. 2004)

ieee ee ee a eee ee kite 6 11,18

Kleindienst v. Mandel, 408 U.S. 753 (1972) ...... 6

Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999)

Cree ed ta eS oes eee bee eee 8

Lehnert v. Ferris Faculty Ass'n, 500 U.S. 507 (1991)

a ee ee Ls oe Seek cate as 25

Mann vy. Smith, 796 F.2d 79 (Sth Cir. 1986) ....... 22

Morrisson v. Hall, 261 F.3d 896 (9th Cir. 2001) ...

pede abd a ce eee Pea Se pele ae 16, 20, 21

Motor Vehicles Mfrs. Ass'n v. State Farm Mut. Auto.

ee, Ga Ge RUD «tb oc heb seceneses 14

O'Lone v. Estate of Shabazz, 482 U.S. 342 (1987)

Aiea at aed ie ae eee ae ine Dee 20

Overton v. Bazzetta, 539 U.S. 126 (2003) ........ 5, 10

Payne v. Whitmore, 325 F. Supp. 1191 (N.D. Cal.

| er aie ree ee re ere 22.

Prison Legal News v. Lehman, 397 F.3d 692 (9th

ER Se Seen ee ae Taw ene 21

Procunier v. Martinez, 416 U.S. 396 (1974) ...... 7, 20

vi

Cited Authorities

Page

Ramirez v. Pugh, 379 F.3d 122 (3d Cir. 2004) .... 12, 18

Rompilla v. Beard, 125 S. Ct. 2456 (2005) ....... 13

Shakur v. Selsky, 391 F.3d 106 (2d Cir. 2004) .... 11, 18

Shaw v. Murphy, 532 U.S. 223 (2001) ........... 22

Shimer v. Washington, 100 F.3d 506 (7th Cir. 1996)

DaWehD chrcund b CaRdSdERES Eee ases weeks 13

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

SD bai uiwaws oOde sw cekavass bane beet 16, 20

Thomas v. Collins, 323 U.S. 516 (1945) ......... 24

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

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

Va. State Bd. of Pharm. v. Va. Citizens Consumer

Council, 425 U.S. 748 (1976) ............... 24

Walker v. Gomez, 370 F.3d 969 (9th Cir. 2004) .... II

Washington v. Harper, 494 U.S. 210 (1990) ......5, 10

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

Whitney v. Brown, 882 F.2d 1068 (6th Cir. 1989) .. 13

vil

Cited Authorities

Page

Williams v. Lane, 851 F.2d 867 (7th Cir. 1988) .... 13

Williams v. Taylor, 529 U.S. 362 (2000) ......... 13

Wolf v. Ashcroft, 297 F.3d 305 (3d Cir. 2002) ..... 12

Wolfish v. Levi, 573 F.2d 118 (2d Cir. 1978) ..... 10, 21

Statutes:

es GEE vb vv dcawt ns bees nustnes nwes 123

State Regulations:

South Carolina Department of Corrections Policy/

og 8 Terre Tere l

Other Authorities:

Webster's Third New International Dictionary (1986)

INTEREST OF MR. INCUMAA'

Lumumba Kenyatta Incumaa, an inmate incarcerated in

South Carolina state prison, is the plaintiff in /ncumaa v. Ozmint,

pending before the United States Court of Appeals for the Fourth

Circuit.” On August 29, 2003, Mr. Incumaa, pro se, filed a

complaint under 42 U.S.C. § 1983 in the United States District

Court for the District of South Carolina against Jon Ozmint, in

his official capacity as Director of the South Carolina

Department of Corrections (“the Director”). Mr. Incumaa has

challenged South Carolina Department of Corrections Policy/

Procedure OP-22.11:

13.1 MSU inmates may continue to receive

periodical subscriptions that were purchased and

paid for prior to their admission to MSU until the

subscription expires, but will only be allowed to have

in their possession the number of paperback books

or periodicals authorized in paragraph 14, below.

No subscriptions may be renewed.

13.2 No new periodical subscriptions or purchases

of books, publications, or magazines will be

approved after the inmate’s admission to MSU.

MSU inmates will not be allowed to receive any

free books, periodicals, publications, or magazines

in their correspondence.

OP-22.11 (emphases in original). Specifically, Mr. Incumaa

claims that this policy, which substantially bars inmates housed

1. Neither party in this case nor their counsel authored this brief

in whole or in part, and no person or entity other than amicus curiae

and his counsel made any monetary contribution to its preparation or

submission. The parties’ written consent, pursuant to Supreme Court

Rule 37, is attached hereto.

2. Docket No. 04-7824.

2

in that state’s “Maximum Security Unit” from receiving books,

magazines, or other publications in the mail, violates the First

and Fourteenth Amendments to the United States Constitution.

On October 26, 2004, the district court granted the

Director’s motion for summary judgment, based on arguments

similar to those advanced by the Petitioner here.’ Mr. Incumaa

appealed. |

On April 15, 2005, the Fourth Circuit appointed undersigned

counsel to represent Mr. Incumaa. Mr. Incumaa has submitted

his opening brief in the Fourth Circuit.

STATEMENT OF THE CASE

Inmates in the Long Term Segregation Unit (“LTSU”)

“Level 2” of the Pennsylvania Department of Corrections

(“DOC”) are subject to a “total prohibition” on possession of

“secular newspapers or magazines.” Joint Appendix (“J.A.”) at

26-27. They have “no access to the newspapers and magazines

in the prison library.” /d. “Nor can they receive news clippings

or articles in the mail unless they have a personal nexus” to the

inmate. Jd. All LTSU inmates are also prohibited from

possessing photographs of family members or loved ones. /d.

On October 18, 2001, Ronald Banks (“Mr. Banks” or

“Respondent”), a Level 2 LTSU inmate, sued Jeffrey Beard, in

his official capacity as Secretary of the DOC (“DOC” or

“Petitioner”), seeking injunctive and declaratory relief under

42 U.S.C. § 1983. J.A. at 1. Mr. Banks claimed that the ban on

newspapers, magazines, and photographs violates the Free

Speech Clause of the First Amendment to the United States

Constitution. /d. at 17.

3. In several respects not discussed here, OP-22.11 is more

restrictive, both on its face and as applied to Mr. Incumaa, than the

prohibition at issue here.

3

According to DOC, the “primary, most important

purpose” of the ban on newspapers, magazines, and

photographs is “behavior motivation.” /d. at 27. In other

words, “it provides the Level 2 inmates with the prospect of

earning a privilege” and serves as a deterrent to inmates

outside of Level 2 who are not subject to the prohibition. /d.

A “secondary purpose,” officials explain, is that if inmates

have “less property,” it is “easier. . . for the unit’s correctional

officer to detect concealed contraband.” /d. Finally, officials

assert that “newspapers and magazines can be used as

weapons, ... or employed as tools to catapult feces at the

guards without the necessity of soiling ones own hands and

as tinder for cell fires.” /d.

Following class certification and discovery,’ the parties

cross-moved for summary judgment. /d. at 4. The district

court granted summary judgment in favor of DOC, holding

that the prohibitions were rationally related to DOC’s

penological interests in rehabilitation and security. Banks v.

Beard, 399 F.3d 134, 138 (3d Cir. 2005).

Mr. Banks then appealed to the United States Court of

Appeals for the Third Circuit. J.A. at 7. The Third Circuit

analyzed Mr. Banks’s claims under the framework set forth

in Turner v. Safley, 482 U.S. 78, 89 (1987), which held

that “when a prison regulation impinges on inmates’

constitutional rights, the regulation is valid if it is reasonably

related to legitimate penological interests.” See Banks, 399

F.3d at 139-48. This test weighs four factors: (1) the validity

and rationality of the connection between the restriction and

the asserted penological interest; (2) the availability of

4. The district coun certified a class comprising all prisoners within

the Western District of Pennsylvania who are or will be confined within

Level 2 of the LTSU. J.A. at 3.

4

alternative means for exercising the implicated right; (3) the

impact of accommodating that right; and (4) the existence

of obvious alternatives for achieving the asserted penological

goal. Turner, 482 U.S. at 89-90.

With respect to the first factor, the Third Circuit agreed

generally that “[cJertainly “deterrence of future infractions

of prison rules’ is a legitimate penological interest.” Banks,

399 F.3d at 140. It concluded, however, that the behavioral

modification justification offered by DOC was “illogical

given the nature of LTSU confinement.” /d. at 141. The court

next concluded that DOC’s fire, contraband, and security

justifications were also unsupported by common sense or

evidence. /d. at 142-44.

The Third Circuit then examined the other Turner factors

and determined that each of them supported the claims by

Mr. Banks. /d. at 144-48. Justice Alito, then sitting on the

United States Court of Appeals for the Third Circuit,

dissented, arguing that the majority had placed an improper

evidentiary burden on the government. See id. at 148-50. But

the majority countered that its evidentiary inquiry was a

complementary part of its Turner analysis:

[O]ur insistence that the DOC offer some evidence

is not, in our view, at odds with 7urner but rather

a complementary part of the analysis in

determining whether an asserted goal is logically

connected to the prison regulation. See Turner,

482 US. at 89 (requiring prison authorities to put

forward a legitimate governmental interest

justifying the regulation). Indeed, in Turner, the

Supreme Court evaluated the evidence in

determining whether the prison rules in question

served - in theory or in practice - the alleged

5

penological goals. See id. at 91-93, 98-99. In our

view, the paucity of any such evidence in this

matter reinforces the conclusion that there is no

valid, rational connection between the DOC rule

and its stated rehabilitative purpose.

Banks, 399 F.3d at 142 n.10. Based on this analysis, the Third

Circuit reversed the district court’s grant of summary

judgment for DOC and remanded the case for further

proceedings. /d. at 148.

SUMMARY OF ARGUMENT

DOC’s assertion of entitlement to deference from this

Court begins rather than ends the central inquiry in this case.

Indeed, no one disputes that federal courts should “accord

substantial deference to the professional judgment of prison

administrators.” Overton v. Bazzetta, 539 U.S. 126, 132

(2003). However, courts must balance this deference with

the need to protect prisoners’ constitutional rights under a

standard that “is not toothless.” Thornburgh v. Abbott, 490

U.S. 401, 414 (1989); see Washington v. Harper, 494 U.S.

210, 223 (1990) (discussing “need to reconcile” protection

of prisoners’ rights with need for deference). In this case,

the Court must decide the proper allocation of burdens where,

as here, the government has made a motion for summary

judgment without any evidentiary support for the nexus

between its penological justifications and its restrictions on

prisoners’ constitutional rights. The Third Circuit concluded

that, under those circumstances, the government was not

entitled to summary judgment. As explained below, this Court

should affirm the judgment of the court of appeals.

Petitioner’s primary justification for the ban on

possession of newspapers, magazines, and photographs in

6

LTSU Level 2 is the bald assertion that the ban will induce

the worst inmates in the Pennsylvania corrections system to

behave. In other words, because this categorical restriction

On newspapers, magazines, and photographs makes LTSU

Level 2 a less desirable place to live, inmates in the general

population and special management units, who might

otherwise commit terrible offenses in prison and who have

proven undeterrable by any other means, might be dissuaded

from breaking prison rules. By the same logic, DOC predicts

that inmates committed to LTSU Level 2 will be motivated

to obey the prison rules in order to be promoted to an

environment with a larger selection of reading materials.

However, under Jurner v. Safley, 482 U.S. 78 (1987), an

unadorned assertion that a restriction will make a facility

less desirable is not sufficient to establish the “validity” and

“rationality” of the connection between the restriction and

the asserted penological interest. See id. at 89. Were that

sufficient, virtually any restriction would satisfy the standard.

Turner requires more than superficial plausibility — it requires

sound logic and some basis in fact. Thus, this Court should

affirm the judgment of the court of appeals, which properly

required under these circumstances that DOC demonstrate

the connection based on evidence.

ARGUMENT

It is “well established that the [First Amendment to the

U.S.] Constitution protects the right to receive information

and ideas.” Kleindienst v. Mandel, 408 U.S. 753, 762 (1972)

(internal quotation marks omitted). Incarcerated persons

retain that right, which includes reasonable access to books

and periodicals. See, e.g., Thornburgh, 490 U.S. at 409-11

& n.9. In the corrections context, the Court has insisted that

“It}here must be a mutual accommodation between

—

institutional needs and objectives and the provisions of the

Constitution that are of general application.” Bell v. Wolfish,

441 U.S. 520, 546 (1979).

In Turner v. Safley, this Court formulated “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.’”

482 U.S. at 85 (quoting Procunier v. Martinez, 416 U.S. 396,

406 (1974)) (emphases added). First, “there must be a valid,

rational connection between the prison regulation and the

legitimate governmental interest put forward to justify it.”

Id. at 89 (internal quotation marks omitted). Second, a court

should consider “whether there are alternative means of

exercising the right that remain open to prison inmates.”

Id. at 90. Third, a court should consider “the impact

accommodation of the asserted constitutional right will have

on guards and other inmates, and on the allocation of prison

resources generally.” /d. Finally, “the existence of obvious,

easy alternatives” to the regulation “may be evidence that

the regulation is not reasonable, but is an ‘exaggerated

response’ to prison concerns.” /d.

But these principles do not answer the question

presented: Is a state entitled to judgment as a matter of law

upholding a prison restriction that bars the exercise of a core

constitutional right_if the state’s only real justification for

the restriction is a bald assertion that it will make part of the

prison less attractive forinmates? The Third Circuit correctly

applied all four Turner factors in a manner consistent

with this Court’s precedent and held that under these

circumstances a state needs to submit some evidence in

support of its justifications.

8

I. TURNER REQUIRES EITHER AN OBVIOUSLY

VALID AND RATIONAL NEXUS BETWEEN RE-

STRICTIONS OF RIGHTS AND THE ASSERTED

PENOLOGICAL INTERESTS OR, ALTERNA-

TIVELY, EVIDENCE OF A CONNECTION,

A. Turner Requires More Than Bald Assertions That

A Restriction Will Prevent Bad Behavior.

The Turner test first requires that courts examine whether

the means-ends connection asserted by prison administrators

is both “valid” and “rational.” See 482 U.S. at 89. “Valid”

and “rational” are not synonyms. Webster's defines “rational”

as “based on reason.” Webster's Third New International

Dictionary 1885 (1986). By contrast, “valid” is defined as

“able to effect or accomplish what is designed or intended,”

“strong,” and “founded on an adequate basis.” Jd. at 2529-

30. Thus, while logic alone can satisfy the Turner requirement

that the connection be “rational,” “validity” of the connection

requires some basis in fact. Cf. Kumho Tire Co. v.

Carmichael, 526 U.S. 137, 149 (1999) (proponent of expert

testimony must establish a “‘valid .. . connection”” to trial

issue based on “factual basis, data, principles, methods, or

their application”).

Turner itself illustrated how courts are to apply the

“valid” and “rational” components of the first Turner factor.

There, the State of Missouri sought to justify an “almost

complete ban” on prisoner marriages by asserting a security

need to prevent “love triangles” and a rehabilitation interest

in engendering self-reliance among female prisoners. See 482

U.S. at 97-98. The Court observed that “[c]ommon sense”

did not establish as a matter of law a connection between the

marriage restrictions and the prevention of “love triangles,”

id. at 98, and it questioned the logic of the connection to

9

rehabilitation. Jd. Requiring something more persuasive, the

Court scoured the trial record for evidence of a connection.

See id. at 97-99. But it found that evidence insufficient and,

therefore, struck down the offending regulation. See id. at

97 (“We conclude that on this record, the Missouri prison

regulation, as written, is not reasonably related to these

penological interests.”); id. at 98 (“We are aware of no place

in the record. . . .”); id. (Nor, on this record, is the marriage

restriction reasonably related to the articulated rehabilitation

goal.”); id. at 99 (“On this record .. . the almost complete

ban on the decision to marry is not reasonably related to

legitimate peno! sgical objectives.”). This Court held that the

marriage restriction swept “much more broadly,” both

logically and empirically, than could “be explained by [the

government's] penological objectives.” /d. at 98. By contrast,

the Court concluded that Missouri’s other challenged

regulation — a ban on inmate-to-inmate correspondence — was

“logically connected to” the state’s articulated “legitimate

security concerns” and also that “the record clearly

demonstrate[d] that the regulation was reasonably related”

to those interests. /d. at 91 (emphasis added).°

Petitioner is, therefore, only partially correct in its

assertion that Turner requires a “*logical connection between

the regulation and the asserted goal.’” Brief for Petitioner

(“Pet. Br.”) at 26. If such a connection is absent, Petitioner

is correct that the restriction cannot stand. See 482 U.S. at

89-90 (“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”

(emphasis added)). However, Turner did not hold, as

5. Note that Turner reached the Supreme Court following a tnal,

and that the well-developed factual record informed the Court's

discussion throughout. 482 U.S. at 82; see generally id. at 91-99.

10

Petitioner claims, that “prison officials need not produce

evidentiary proof” in any case in which a regulation is

challenged. A court also must determine whether the

connection is “valid.” /d. at 89.

Indeed, only in cases where the connection between

regulation and penological interest has been obviously

rational and valid has this Court required no evidence of the

connection from the state. See Harper, 494 U.S. at 226

(noting “little dispute in the psychiatric profession that proper

use of the drugs is one of the most effective means of treating

and controlling a mental illness likely to cause violent

behavior”);° Block v. Rutherford, 468 U.S. 576, 586 (1984)

(“That there is a valid, rational connection between a ban on

contact visits and internal security of a detention facility is

too obvious to warrant extended discussion.”); Wolfish, 441

U.S. at 550-51 (“It hardly needs to be emphasized that

hardback books are especially serviceable for smuggling

contraband... .”).

Overton y. Bazzetta is entirely consistent with this

analysis. In Overton, this Court upheld Michigan's rule

restricting certain prisoners from having, among other things,

certain children visit them in prison, because Michigan's

stated goals were obviously valid and rational and supported

by persuasive evidence. 539 U.S. at 133 (connection was

“demonstrated by trial testimony.”); see also id. at 129-30

(detailing evidentiary record supporting the government's

case). This Court held that, on the extensive factual record

before it, the prisoners in Overton failed to carry their

burden of showing the invalidity of the connection at trial.

Id. at 132. Overton did not involve a motion by the

6. Like Turner, the Harper decision also followed a trial,

which provided much of the basis for the Court's analysis in that case.

See 494 U.S. at 217.

Lod

government for judgment as a matter of law and did not speak

to the Petitioner's contention here that it has no burden of

production in support of its motion. The Court’s statement in

that case that the burden “is not on the State to prove the validity

of prison regulations,” id., referred to the burden of persuasion

at trial. Jd. at 133. Nothing in that case or any other precedent

of this Court required the courts below to grant DOC’s summary

judgment motion in this case on the basis of its assertions alone.

B. Applying 7urner, Courts of Appeals Have Required

That The Connection To The Penological Goal Be

A Matter of “Common Sense.”

Courts of appeals, applying 7urner, have carefully applied this

Court’s requirement that the nexus between the restriction and

asserted penological interest be both valid and rational. Thus, the

courts of appeals for the Second, Third, Ninth, and D.C.

Circuits have followed an approach whereby if, and only if,

the asserted connection is a matter of “common sense,” the

government need not submit evidence in support of the nexus.

See Walker v. Gomez, 370 F.3d 969, 975 n.7 (9th Cir. 2004)

(explaining burdens); Waterman v. Farmer, 183 F.3d 208, 217 (3d

Cir. 1999) (Alito, J.) (prohibition on pornography bore common

sense connection to rehabilitation of sex offenders); Amatel v. Reno,

156 F.3d 192, 199 (D.C. Cir. 1998) (same); Giano v. Senkowski,

54 F.3d 1050, 1055 (2d Cir. 1995) (affirming summary

judgment upholding prison policy). If, however, the connection is

not conclusively established by common sense, the government

must support its restriction on constitutional rights with

evidence. See Jacklovich v. Simmons, 392 F.3d 420, 429 (10th Cir.

2004) (rejecting unsupported contention that “a four-month

complete denial of access to constitutionally protected materials

... furthers behavior management or rehabilitation”); Shakur v.

Selsky, 391 F.3d 106, 115 & n.4 (2d Cir. 2004) (vacating

dismissal); Gomez, 370 F.3d at 975 n.7 (explaining that prisoners

12

bear a “light” burden of rebutting common-sense of connection),

Asker v. Cal. Dep't of Corr., 350 F.3d 917, 922-23 (9th Cir.

2003) (affirming summary judgment for prisoner); Wolf v.

Ashcroft, 297 F.3d 305, 308-09 (3d Cir. 2002) (vacating

judgment on the pleadings).

“Common sense” in this context has meant something more

than “plausible” or “reasonable.” In Wolf v. Ashcroft, the Third

Circuit explained that the standard is “obviousness.” 297 F.3d

at 308-09. For example:

A prohibition on inmate gatherings in prison

commor areas after 1 1-o'clock at night might have

an obvious relationship to security concerns, as

would a prohibition on publications that featured

escape plans, Amatel, 156 F.3d at 206 (Wald, J..

dissenting), or instructions on assembling weapons,

Giano v. Senkowski, 54 F.3d 1050, 1059-60 (2d Cir.

1995) (Calabresi, J., dissenting). Likewise, the

connection between the goal of rehabilitation and a

ban on distributing sexually explicit magazines to

“repetitive and compulsive” sexual offenders may

well be . . . sufficiently obvious to be evaluated as a

matter of common sense.

Wolf, 297 F.3d at 309. On the other hand, the government's

assertion in that case that a prohibition on movies rated R or

NC-17 in prison deters the general public from committing

crimes was not so compelling as to be “a matter of common

sense.” Jd. at 309; see also Ramirez v. Pugh, 379 F.3d 122, 129

(3d Cir. 2004) (common sense did not establish a connection

between ban on publications featuring nudity and rehabilitation

of non-sex offenders).

In these Turner-related cases, one theme has been clear:

courts of appeals have been reluctant to credit unadorned

13

justifications by prison authorities in support of restrictions

burdening constitutional rights. See, e.g., Shimer v.

Washington, 100 F.3d 506, 510 (7th Cir. 1996) (in the absence

of evidence, the court is “reduced to speculation”); Whitney

v. Brown, 882 F.2d 1068, 1074 (6th Cir. 1989) (“prison

officials do not set constitutional standards by fiat”); Williams

v. Lane, 851 F.2d 867, 886 (7th Cir. 1988) (Flaum, J.,

concurring in the result) (administrators may not “avoid court

scrutiny by reflexive, rote assertions that existing conditions

are dictated by security concerns”).

C. The Third Circuit’s Analysis Is Consistent With

This Court’s Holdings In Other Circumstances

Requiring Deference.

The analysis by the Third Circuit in Banks not only

follows the consensus developed in the courts of appeals,

but also is entirely consistent with this Court’s decisions in

other similar circumstances.

For example, in the context of federal habeas review of

a state court’s decision, this Court will defer to the state court

unless the decision was contrary to or “involved an

unreasonable application of . . . clearly established Federal

law, as determined by the Supreme Court of the United

States.” Williams v. Taylor, 529 U.S. 362, 404 (2000). Using

that standard, in Rompilla v. Beard, 125 S. Ct. 2456 (2005),

the Court undertook a careful analysis of a state's decision

in light of the evidence set forth in the habeas petition.

Yd. at 2462-67. The Court overturned the state court's decision

on the grounds that it was “objectively unreasonable.”

Id. at 2467.

This Court has performed similar analyses in reviewing

administrative actions. Even the most deferential reviews

14

thereof call for a thorough examination of the analysis

performed by the administrative agency. See Chevron vy.

Natural Res. Council, 467 U.S. 837, 844 (1984). In Chevron,

the Court “recognized that considerable weight should be

accorded to an executive department's construction of a

statutory scheme it is entrusted to administer, and the

principle of deference to administrative interpretations.” /d.

The Court went on to explain, however, that federal courts

are still charged with the obligation of analyzing the evidence

presented in support of the regulation to determine whether

the agency's decision was “arbitrary, capricious, or manifestly

contrary to the statute.” /d. In the same context, the Court

has also held that. “appellate counsel's post hoc

rationalizations” are entitled to no deference at all. See Motor

Vehicles Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463

U.S. 29, 50 (1983).

Likewise, in the equal protection context, this Court has

held that the government's stated interest cannot be taken at

face value, but instead there must be a demonstrated

connection between the claimed interest and the challenged

provision. In City of Cleburne, Texas v. Cleburne Living

Center, 473 U.S. 432 (1985), this Court rejected a lower

court's articulation of a less deferential standard of review

than rational basis, which the lower court had deemed

necessary to protect citizens with mental retardation. /d. at

437-43. The Court stressed that the use of rational basis

review to determine the constitutionality of regulations

affecting the mentally retarded “does not leave them entirely

unprotected.” /d. at 446. It then carefully analyzed the state's

evidence and held that the record did not establish a sufficient

connection between the challenged provision and the

government's stated interest. /d. at 448 (“Because in our view

the record does not reveal any rational basis for believing

15

that the Featherston home would pose any special threat to

the city’s legitimate interests, we affirm the judgment below

insofar as it holds the ordinance invalid as applied in this

case.” (emphasis added)).

In each of these areas of law, in which courts are called

upon to defer to the judgment of another entity, this Court

has fashioned reviews that are similar to what the courts of

appeals have done in Turner cases — that is, defer to the entity

as long as the judgment is obviously valid and rational, or a

matter of common sense, but require proof through evidence

if it is not. That is exactly what the Third Circuit did here.

Il. DOC HAS NOT ESFABLISHED A VALID AND

RATIONAL CONNECTION BETWEEN THE

BANS AND THE ASSERTED PENOLOGICAL

INTERESTS.

In this case, the Third Circuit explained at length why

Pennsylvania's articulated interest was not sufficient as a

matter of common sense. For example, because commitment

to and release from LTSU Level 2 is “not linked to any

particular infraction or compliance,” and inmates there “have

not all been adjudicated by a hearing officer to have violated

the DOC’s rules,” the court held that “it is unclear how the

policy would achieve the deterrence it seeks.” Banks, 399

F.3d at 141. Finding DOC’s explanation illogical and unclear,

the court turned to the evidentiary record, where it found

“no evidence that the rule achieves or could achieve its stated

rehabilitative purpose.” /d. To the contrary, it observed that,

according to some experts, studies, and court opinions, such

a “ban may produce less rather than more compliance in at

least some inmates”:

Rehabilitative goals are “furthered by efforts to

inform and educate inmates, and foster their

16

involvement in the world outside the prison gates.”

Abdul Wali v. Coughlin, 754 F.2d 1015, 1034 (2d

Cir. 1985). In Spellman v. Hopper, 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.” 95 F. Supp. 2d at

1281; see also Morrison v. Hall, 261 F.3d 896, 904

n.7 (9th Cir. 2001) (citing studies and articles noting

the “correlation between reading, writing and mmate

rehabilitation”).

Banks, 399 F.3d at 142 & n.9.

Next, the Third Circuit held that DOC’s fire, contraband,

and security justifications were also not established as a

matter of law by common sense. /d. at 142-44. Particularly

in view of DOC’s numerous other regulations aimed directly

at those potential prison hazards, the connection to the ban

on newspapers, magazines, and photos was “too attenuated

to be reasonable”:

[G]liven the materials Level 2 inmates are

permitted in their cells, prohibiting a single

newspaper or magazine has ne significant

relationship to the stated security object. ves. There

are many other non-prohibited means for the

inmates to fuel fires, hurl waste, conceal

contraband and create weapons. Under current

regulations, each inmate is given a jumpsuit, a

blanket, two bedsheets, a pillow case, a roll of

toilet paper, a copy of a prison handbook, ten

sheets of writing paper, several envelopes, carbon

_ paper, three pairs of socks, three undershorts and

17

three undershirts, and may at any point also have

religious newspapers, legal periodicals, a prison

library book, Bibles, and a lunch tray with a plate

and a cup. Many of these items are flammable,

could be used for the above purposes as effectively

as a newspaper, magazine or photograph, and have

been so used by LTSU Level 2 inmates.

Id. at 143-44; see also id. at 142 (“In fact, matches are not

allowed in the LTSU.”). For those reasons, and because there

was “no evidence in the record of the misuse of periodicals

or photographs in any of the ways described by the DOC,”

id., the court concluded that it could not “see how the DOC

could reasonably have thought that the challenged policy . . .

would meaningfully improve prison security by forbidding”

an inmate even a single secular magazine, id. at 144.

A. Common Sense Does Not Establish That The

Worst Behaved Prisoners In Pennsylvania Will

Be Motivated By The Selection Of Reading

Material In LTSU Level 2.

This analysis notwithstanding, Petitioner continues to

argue that the blackout of non-religious publications

“encourages Level 2 inmates to improve their behavior” and

“discourag|es] other inmates from behavior that could cause

their assignment to Level 2.” Pet. Br. at 13. In other words,

the publications ban makes life worse in LTSU Level 2, so,

logically, prisoners will modify their behavior to avoid the

restriction. DOC argues that because this proposition is

superficially rational, Turner requires the federal courts to

defer to its decision-making authority and its expertise.

See id. at 17.

However, it is difficult to conceive of a restriction of

First Amendment rights that would not satisfy the “valid,

18

rational connection” requirement if all that is necessary is

that prison officials assert that the restriction makes

conditions more unpleasant for prisoners. The marriage ban

struck down in Turner would pass that test. So would a

blanket ban on family visitation, a ban on religious worship,

a ban on speaking English, or a ban on reading or writing

anything at all. Lower courts have, therefore, in accordance

with this Court's precedent, required more before concluding

that governments are entitled to judgment as a matter of law.

See, e.g., Jacklovich, 392 F.3d at 429 (reversing summary

judgment); Shakur, 391 F.3d at 115 & n.4 (vacating

dismissal); Ramirez, 379 F.3d at 129 (same).

Moreover, as Petitioner has explained, LTSU was

“designed to house those prisoners who are the ‘worst of the

worst,’ ... with the very worst behavioral histories in the

prison system.” Pet. Br. at |. Level 2 is reserved for the “most

incorrigible” and “recalcitrant” even among LTSU inmates.

Id. at 4. These “prisoners .. . have engaged in or instigated

riots, . . . are members of prison gangs, or . . . have a history

of sexual predation.” Jd. They may “have an escape

history, ... a predilection for assaultive behavior with an

intent to cause death or serious injury, or. . . otherwise present

a serious threat to prison security.” /d. at 3-4.

These are “‘extremely disruptive, violent and

problematic inmates’,” id. at 6; they are the most “obdurate

intractable prisoners” in the Pennsylvania corrections system,

id. at 8. They have reached the “last stop on the disciplinary

continuum” for prisoners who have effectively “*flunked

out’” of all other “increasingly severe” housing units. /d. at

2-4. When they arrive at Level 2, they lose virtually all of

19

their remaining privileges — even as compared to Level |’ —

as they become subject to severe restrictions on their

movements, possessions, exercise, commissary privileges,

telephone access, and visitation with family or friends. /d. at

4-6; J.A. at 33. They have not been deterred.

This Court should not accept without further inquiry

Petitioner's assertion that these violent murderers, sexual

predators, and prison gang members — undeterred at any step

of the way in the Pennsylvania penal system — will be deterred

from committing violent sexual and physical assaults or from

atempung to escape by the paucity of reading material

7. “Privileges afforded Level 2 inmates” are limited to: “(1) In

cell activities; (2) In cell counseling services; (3) Employment as a unit

janitor [if and only if no Level | inmate is available, see J.A. at 102

(table)]; (4) | Hour, 5 days per week of outside yard; (5) Recreational

and legal law library services [no physical access to the library, see id.

at 129]; (6) Legal and personal correspondence; (7) In cell religious

visits by a Chaplain[]; (8) Three ... showers per week; (9) Onc ...

visit, non-contact, immediate family only, per month; and

(10) Emergency phone calls only once approved and verified by Unit

Management Team.” /d. at 32-33. On the basis of good behavior, an

inmate may be promoted to “Level 1” where he is afforded “increased

programming and privileges.” /d. at 33. For example, a Level ! inmate:

(1) may have two visits a month, id. at 97; (2) may receive “any approved

visitor,” id. at 34, 97; (3) gains commissary privileges, id. at 33; (4) is

entitled to one fifteen-minute phone call per month, id.; (5) may

undertake in-vell study (GE.D. and Special Education programs), id.;

(6) may participate in programming in “substance abuse; anger/violence

management; life skills; parenting skills; and effective emotional

expression,” id. at 44; (7) receives preference in employment decisions,

id, at 102 (table); and (8) is eligible to have further additional privileges

authorized at the discretion of prison administration, id. at 33. Typically,

a large majority of LTSU inmates are assigned to Level 2. /d. at 130-31.

The number of Level | inmates is “generally in the single digits.” /d.

20

available in level 2. The bald statement that this purported

deterrent might work on some small number of inmates does

not, without more, entitle the government to judgment as a

matter of law.

In Thornburgh, the Court explained that “[wJhere .. . the

nature of the asserted governmental interest is such as to require

a lesser degree of case-by-case discretion,” as it does in this

case of a regulation very unlikely to have any constructive effect

on all but a small number of prisoners, “a closer fit between the

regulation and the purpose it serves may safely be required.”

490 U.S. at 412. This is a textbook “exaggerated response”:

The burden on these inmates’ First Amendment rights far

exceeds the speculative benefit.

“Common sense” also does not establish a connection

between the ban on newspapers, magazines, and photographs

and the bope for improved behavior by those “worst of the

worst” prisoners already in Level 2. As the court of appeals

noted in this case, some experts hold the view 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.” Banks, 399 F.3d at 142 n.9 (quoting

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

1999)).* On the other hand, “[r]chabilitative goals are

8. See also O'Lone v. Estate of Shabazz, 482 U.S. 342, 368 (1987)

(Brennan, J., dissenting) (denial of First Amendment activity “may

extinguish an inmate's last source of hope for dignity and redemption”);

Martinez, 416 U.S. at 428 (Marshall, J.. concurring) (observing that,

“[i}t anything, the needs for identity and self-respect” promoted by

preservation of inmates’ First Amendment rights “are more compelling

in the dehumanizing prison environment’),

a eee «

‘furthered by efforts to inform and educate inmates, and foster

their involvement in the world outside the prison gates.’”

Id. (quoting Abdul Wali v. Coughlin, 754 F.2d 1015, 1034

(2d Cir. 1985)); see-also Morrisson v. Hall, 261 F.3d 896,

904 n.7 (9th Cir. 2001) (citing studies and articles noting the

correlation between reading and writing and inmate

rehabilitation). One court noted that “[t]he simple opportunity

to read a book or write a letter, whether it expresses political

views or absent affections, . . . nourishes the prisoner’s mind

despite the blankness and bleakness of his environment.”

Wolfish v. Levi, 573 F.2d 118, 129 (2d Cir. 1978), rev'd sub

nom. Bell v. Wolfish, 441 U.S. at 520. In sum, common sense

does not establish, as a matter of law, that deprivation of

reading material is likely to lead to improved inmate behavior.

B. Common Sense Belies The Fire, Contraband, And

Weapons Justifications.

Petitioner also asserts that “[t]he challenged restrictions

. serve the goal of prison security ... by reducing the

Opportunity to hide contraband and by withdrawing materia!

that can be fashioned into crude tools or weapons or used to

start cell fires.” Pet. Br. at 27. However, the regulations at

issue in this case do not restrict the amount of material

available to the inmates, nor do they address the physical

attributes of that material. Under like circumstances, lower

courts have routinely rejected similar contentions as illogical.

Compare Prison Legal News v. Lehman, 397 F.3d,692, 700

(9th Cir. 2005) (rejecting fire and contraband justifications

for a ban on bulk mail as “irrational” where the prison

administration “already regulates the quantity of possessions

that prisoners may have in their cells”); Morrison, 261 F.3d

at 902 (concluding that it was “‘irrational’ to prohibit

prisoners from receiving subscription for-profit mail on the

22

theory that it reduces fire hazards”); Mann v. Smith, 796 F.2d

79, 82 (Sth Cir. 1986) (“Because the jail has a no-smoking

rule for inmates and because the jailers permit the inmates

to have other forms of paper and similar materials, the official

rationale seems tenuous at best.”); Spellman, 95 F. Supp. 2d

at 1274 (rejecting fire and contraband rationales as irrational):

Payne v. Whitmore, 325 F. Supp. 1191, 1193 (N.D. Cal. 1971)

(“Jail cells are already filled with an abundance of materials

quite suitable for fire starting ...; yet no one suggests that

cells ought to be stripped of bedding, clothing, toilet paper,

writing materials, and so on.”) with Howard v. Snyder, 389

F. Supp. 2d 589, 593-94 (D. Del. 2005) (“two boxes per

inmate” rule had valid, rational connection to fire and

contraband-prevention rationales).

Common sense does not establish these connections. As

the court of appeals held in this case, they are, in fact, “too

attenuated to be reasonable.” Banks, 399 F.3d at 143. Because

DOC did not offer any evidence in support of the contraband,

fire, and weapons justifications, it was not entitled to

judgment as a matter of law.

* * *

In the face of these assertions, it was perfectly appropriate

for the court of appeals to look for evidence in the record.

See Turner, 482 U.S. at 97-99. The “paucity of any such

evidence ... reinforces the conclusion” that the asserted

connections are not valid or rational. Banks, 399 F.3d at 142

n.10 (emphasis added); see also Shaw v. Murphy, 532 U.S.

223, 231 (2001) (citing evidence that “[p]risoners have used

legal correspondence as a means for passing contraband”).

23

Ill. PETITIONER’S REGULATION LEAVES NO

ALTERNATIVE MEANS TO EXERCISE THE

RIGHT IN QUESTION.

Petitioner advances several arguments in support of its _

claim, under the second Turner factor, that LTSU Level 2 offers

inmates adequate alternative means to exercise the right in

question. It is apparent, however, that the DOC’s restrictions

do not leave any alternative means to exercise these rights.

Effectively conceding as much, Petitioner attempts to

redefine the First Amendment right at issue. That is, Petitioner

contends that the right in question is not “‘the right of access to

a reasonable amount of newspapers, magazines and

photographs,’ but rather the right to receive information and

communications from the outside world.” Pet. Br. at 29-30.

Based on this redefined First Amendment night, Petitioner argues

that legal consultations, limited communications with

clergymen, monthly family visits, and “leisure books” from the

prison library provide a reasonable alternative means of

exercising the right:

LTSU Level 2 inmates have ample alternative means

of exercising that right: they are allowed monthly

visits with immediate family, and unlimited visits

from legal counsel; they receive daily visits [from]

a Facility Chaplain; they may order books from the

prison library; and they may send letters to and

receive letters from family, friends and others, which

may include newspaper or magazine articles with a

personal connection to themselves. il

Id. at 30.

9. Note that this argument was not presented to the court of appeals.

See Banks, 399 F.3d at 139 1.5 & 1440.15.

24

This argument is a red herring. First, under the Turner

analysis, “the right in question must be viewed reasonably

and expansively.” See Thornburgh, 490 U.S. at 417. In

Thornburgh, for example, the Court upheld a censorship

policy and explained that the restrictions were constitutional

because they “permit[ted] a broad range of publications to

be sent, received, and read.’ /d. at 418. This Court was

“comforted by the individualized nature of the determinations

required by the regulation” because “no publication” could

“be excluded unless the warden himself ma[de] the

determination that it [wa]s ‘detrimental to security, good

order, or discipline of the institution or ... might facilitate

criminal activity.’” /d. at 416. The Court warned that “[a]ny

attempt to achieve greater consistency” than could be

achieved in case-by-case censorship might “run afoul of the

second Turner factor, i.e., the presence or absence of

‘alternative means of exercising the right’ in question.”

Id. at 417 n.15; see also Wolfish, 441 U.S. at 551 (examining

existence of “alternative means of obtaining reading

material’).

That reasoning is consistent with First Amendment

decisions outside of the prison context, where this Court has

always held that the right to information and ideas is a right

to receive specific information and ideas. See Bd. of Educ. v.

Pico, 457 U.S. 853, 869 (1982) (plurality) (discussing

“regime of voluntary inquiry” in school library); Va. State

Bd. of Pharm. vy. Va. Citizens Consumer Council, 425 U.S.

748, 756 (1976) (“the protection afforded is to the

communication, to its source and to its recipients both”);

Thomas v. Collins, 323 U.S. 516, 534 (1945) (discussing

union president's “right to speak and the rights of the workers

to hear what he had to say”). For example, in Griswold vy.

Connecticut, 381 U.S. 479 (1965), the Court explained that

25

“the State may not, consistently with the spirit of the First

Amendment, contract the spectrum of available knowledge.”

Id. at 482.

Here, Petitioner has, for all practical purposes, stopped

the flow of certain “core” First Amendment information,

including politics and current events, to these prisoners

altogether. See Lehnert v. Ferris Faculty Ass'n, 500 U.S. 507,

522 (1991) (“the discussion of governmental affairs . . . 1s at

the core of our First Amendment freedoms”). Properly

understood and “reasonably” construed within the meaning

of Thornburgh, see 490 U.S. at 417, the right to information

and ideas cannot, therefore, be satisfied by periodic legal

consultations, daily spiritual advice, and monthly family

visits. DOC’s restriction, therefore, cannot be sustained on

the basis of this record.

IV. THE COURT OF APPEALS CORRECTLY CON-

CLUDED THAT PRISONERS’ FIRST AMENDMENT

RIGHTS CAN BE ACCOMMODATED AT A DE

MINIMIS COST TO THE PETITIONER, WHICH

CAN ACHIEVE ITS GOALS BY ALTERNATE

MEANS.

For the reasons stated by the court of appeals, DOC’s

ban on newspapers, magazines, and photographs in LTSU

Level 2 likewise fails under the third and fourth Turner

factors, reinforcing the conclusion that the ban is an

“exaggerated response.”

26

CONCLUSION

\

For the foregoing reasons, the judgment of the court of

appeals should be affirmed.

Respectfully submitted,

Justin S. ANTONIPILLAI

Counsel of Record

RosBert ALEXANDER SCHWARTZ

C. Ezexier Ross

ARNOLD & Porter LLP

555 Twelfth Street, N.W.

Washington, D.C. 20004-1206

(202) 942-5000 -

Counsel for Mr. Incumaa