# Amicus Curiae Brief — Beard v. Banks

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0107%3A12

## Record

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

## Text

| 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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0107%3A12. Public record. Not legal advice.