Opposition Brief — Koutnik v. Brown, 128 S. Ct. 39 (2007) (No. 06-1171)

FILED

© JUL 0 3 2007

No. 06-1171 | OFFICE OF THE CLERK

SUPREME COURT, U.S.

‘In The

Supreme Court of the United States

¢

JOSEPH D. KOUTNIK,

Petitioner,

v.

LEBBEUS BROWN, GERALD A. BERGE, and

MATTHEW J. FRANK,

Respondents.

S

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the Seventh Circuit

+

BRIEF IN OPPOSITION TO PETITION FOR WRIT

OF CERTIORARI

J.B. VAN HOLLEN

Attorney General

* DAVID E. HOEL

Assistant Attorney General

Attorneys for Respondents

Wisconsin Department of Justice

Post Office Box 7857

Madison, Wisconsin 53707-7857 .

(608) 266-9231

* Counsel of Record July 3, 2007

QUESTIONS PRESENTED

The petitioner, a Wisconsin prisoner, had a piece of

outgoing mail confiscated. The mailing contained a drawing

of a Swastika with a legend displaying three prominent,

stylized upper-case letter Ks (KKK). The mailing also

included a letter expressing a desire to merchandise the

drawing in a form in which it could be reintroduced into the

prison.

The two questions presented are:

(1) Did the Seventh Circuit correctly apply the

standard set forth in Procunier v. Martinez, 416 U.S. 396,

413-14 (1974) and Thornburgh v. Abbott, 490 U.S. 401,

411-13 (1989) to the uncontroverted facts in the record?

(2) Is the confiscation of mail containing gang

symbols supported by the legitimate penological interests of

prison security and rehabilitation?

TABLE OF CONTENTS

Page

CF eee FEI 8 iD re cpcccenrscnseseriesersvnveserenetinemveniaretea i

TA Cy Fees Ce catele sete ssccsininrsenntleserscntiiatiiians ill

SEPT ITS CIE CBE Re ssvridksdoeresninecinicinanintiiolabiatiins I

REASONS WHY THIS COURT SHOULD NOT GRANT

FRM PUVEEE TIE vicisitatenicecckctdetalacsadgpenautiasintiaibmeateas 4

A. The Court of Appeals’ Application of

Martinez Does Not Raise a Compelling

tT aah ANI ae Be eae Ree 4d

B. The Seizure of Koutnik's Mail Was Justified

by the Valid Penological Interests of Security

SE TI sincicntantonsnevecratunacsesetiocindandss 7

l. The Judicial System Grants Broad

Deference to Prison Administrators

for the Implementation of Penological

I cecctinniceb Rcsbesieiichsitesdeacenaiedananohins 7

z. The Marketing of White Supremacist

Symbols and Language from Inside

the Prison Threatens Prison

PRRs PLR GT bien ae Oe ae 9

3. In Addition to Safety Concerns, the

Seizure of Koutnik's Mail was

Necessary to Achieve the Compelling

State Interest in Rehabilitation. ........ 11

CRF BoB ORITS cvesinxdcsuiivieniesininiescosvenaenmimiiaionteldneinnintl 13

iii

TABLE OF AUTHORITIES

CASES CITED

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

Beard v. Banks, _U.S.____, 126 S. Ct. 2572,

Oe rc i ee I cenectnititenncentarcipsecsnininssas 9

Ball v. Wolfiels, 441. U.S. S20 GTO). ..cececcssccesssovsessscvsssesvsseess 8

Bell-Bey v. Williams, 87 F.3d 832 (6" Cit. 1996) cccccosccsoseoe 5

Block v. Rutherford, 468 U.S. 576, 82 L. Ed. 2d 438........ 8-9

Brewer v. Wilkinson, 3 F.3d 816 (5™ Cir. 1993) .....c.ccecesse0e-. 5

Herlein v. Higgins, 172 F.3d 1089 (8" Cir. 1999).......c0.0000--. 8

Johnson v. California, 543 U.S. 499 (2005) .......cccceseseeeeeees 7

Koutnik v. Brown, 2004 WL 2110746,

2004 U.S. Dist. LEXIS 19069 (W.D. Wis.).............. 3

Koutnik v. Brown, 2005 WL 1484593,

2005 U.S. Dist. LEXIS 12643 (W.D. Wis.).....c..0.00.. 3

Koutnik v. Brown, 456 F.3d 777

A 3, 5, 7, 12, 13

Mauro v. Arpaio, 188 F.3d 1054 (9" Cir. 1999)... 11

Nasir v. Morgan, 350 F.3d 366 (3% Cir. 2003)...........0.. 5, 6,7

O'Lone v. Estate of Shabazz, 482 U.S. 342 (1987)............ 8-9

iV

Overton v. Bazetta, 539 U.S. 126 (2003) .........cccccceesesesseeeeees 9

Pell v. Procunier, 417 U.S. 817 (1974) uuu... ceeeeseccccesssnneceees 11

Procunier v. Martinez,

416 U.S. 396 (1974)... ee 1,4, 5, 6, 7, 8, 11, 12

Ramirez v. Pugh, 379 F.3d 122 (3 Cir. 2004).......0.0+-. 11,12

Rios v. Lane, 812 F.2d 1032 (7" Cir. 1987),

cert. dismissed, 483 U.S. 1001 (1987) 0.0... eee 9

snaw v. Murpity, S32 U.S. 225 (2OO1)...rccorereesscesecsosooseverseeves 7

Smith v. Delo, 995 F.2d 827 (8" Cir. 1993) ...ceccseeecseeeeene 5,6

Stow v. Grimaldi, 993 F.2d 1002 (1* Cir. 1993).....ccccccceeee I,

Thornburgh v. Abbott, 490 U.S. 401 (1989) ........... i, 4, 5, 8,9

Treff v. Galetka, 74 F.3d 191 (10" Cir. 1996) v.cecccseesceeeeeee 5

Turner v. Safley, 482 U.S. 78 (1987) .............0 4,5, 6, 7, 8,9

Waterman v. Farmer, 183 F.3d 208 (3 Cir. 1999)... 1

Wilkinson v. Austin, 545 U.S. 209 (2005)..........cccccecceeeeees 9,10

Witherow v. Paff, 52 F.3d 264 (9"" Cir, 1995)....ccccscsseseeseeeees 5

STATUTES CITED

PRE EIR fos. shies eta aa inne ee 3

FO RE IE os sisciccc contd naa anniehieayaaccuaaaenenenereimaua ines 3

Vv

CONSTITUTIONAL PROVISIONS CITED

RTL ELL A LIONEL SEPA OO 3,4, 8

Tg EE TE TET 3

OTHER AUTHORITIES CITED

Wis. Admin. Code § DOC 303.02(11)...........cccceecceeseeeeeeenees l

Wis. Admin. Code § DOC 303.20(3)...........cccceseseeeees a ee

eels

Ee aS ike

STATEMENT OF THE CASE

The petitioner, Joseph D. Koutnik, is an inmate at the

Wisconsin Secure Program Facility (WSPF), Boscobel,

Wisconsin, and a member of the Simon City Royals, a

"usually white" gang, that opposes the introduction of other

races into their territories (R. 13:49 1, 62-64). In December

2002 he sent a letter to Northern Sun; a company that sells

t-shirts, posters, and stickers, in his attempt to merchandise

his drawing of a Swastika with a hand-drawn legend

featuring three large, stylized capital Ks (R. 13:4 24). One of

the respondents and prison gang expert Lebbeus Brown

(R. 13:9] 7-10), then a Lieutenant at WSPF, prevented the

letter from being sent, and issued a "Notice of Non-Delivery

of Mail" (R. 13:99] 26-27). He informed Koutnik

(R. 13:41 27) that the Swastika drawing violated Wisconsin

Administrative Code DOC § 303.20(3), which provides as

follows:

(3) | Any inmate who participates in any

activity with an inmate gang, as defined in s.

DOC 303.02(11) or possesses any gang

literature, creed, symbols or symbolisms is

guilty of an offense. An inmate's possession

of gang literature, creed, symbols or

symbolism is an act which shows that the

inmate violates the rule. Institution staff may

determine on a case by case basis what

constitutes an unsanctioned group activity.

Brown averred in an affidavit that the Swastika has

become a symbol of Aryan pride and white supremacy, as

well as racial hatred (R. 13:4 13). Thus it is not allowed in

Wisconsin Department of Corrections (DOC) institutions

(R. 13:4 31). Similarly, Brown reasonably interpreted the

three capital Ks to be a reference to the KKK or Ku Klux

Klan, reinforcing the symbolism of the Swastika drawing

(R. 13:4 37).

White supremacist groups are not sanctioned by or

approved to operate in WSPF (R. 13:4 36). Brown

concluded that Koutnik, by attempting to send the drawing

and accompanying letter to Northern Sun, was identifying

with and trying to promote the growth of white supremacist

groups while merchandising white supremacy material

(R. 13:4 40).

Koutnik's letter to Northern Sun contained a request

that the design be merchandised to prison inmates

(R. 13:4] 24). As a result, Brown concluded that Koutnik was

attempting to use his outgoing mail to directly affect the

safety of the prison system by his attempt to reintroduce his

white supremacy drawing into the prison system, where it

might be possessed by and circulated among other inmates

(R. 13:4] 40). Brown also determined that permitting such an

activity would encourage inmates holding white supremacist

beliefs to engage in racially-motivated disruptive behavior

by associating WSPF with the merchandising of white

supremacist materials (R. 13:4 42-43). As a result,

Koutnik's outgoing mail was seized on December 30, 2002,

and not delivered, because the attempt to merchandise white

supremacy materials from inside the prison was incompatible

with WSPF's duty to provide a safe and secure environment

for all inmates, staff, and visitors. Additionally, the seizure

of Koutnik's mail was related to the penological goal of

rehabilitation (R. 13:4 49). Brown averred that rehabilitation

efforts at WSPF include encouraging Koutnik to live crime-

free upon release and to develop the ability to solve conflicts

without resorting to violence (R. 13: 4 49-50). Another

important rehabilitation goal is to encourage Koutnik to

recognize that successful reintegration into society requires

3

respecting the rights of others (R. 13:41 50). According to

Brown, merchandising white supremacy materials is

incompatible with these rehabilitation goals (R. 13:4 51).

Koutnik brought his action under 42 U.S.C. § 1983.

He mounted a facial challenge to § DOC 303.20(3), as

overbroad and unconstitutionally vague. He also brought an

as-applied challenge to the confiscation of his mailing, that

this action violated his limited First Amendment free speech

rights and rights under the substantive component of the Due

Process Clause (R. 2). In its 28 U.S.C. § 191L5A order, the

district court denied the petitioner leave to proceed on his

facial challenge to § DOC 303.20(3) and on his substantive

due process claim (R. 3). Koutnik v. Brown, 2004

WL 2110746, 2004 U.S. Dist. LEXIS 19069 (W.D. Wis.).

The district court subsequently granted summary judgment

in favor of the respondents on the remaining free exercise

claim (R. 36). Koutnik v. Brown, 2005 WL 1484593,

2005 U.S. Dist. LEXIS 12643 (W.D. Wis.). The court of

appeals affirmed the judgment of the district court, holding

that § DOC 303.20(3) was neither unconstitutionally

overbroad, nor unconstitutionally vague. Koutnik v. Brown,

456 F.3d 777, 781, et seq. (7" Cir. 2006). In addition, the

court of appeals expressed approval of the district court's

handling of the substantive due process claim and held that

the confiscation of the petitioner's mail did not violate the

petitioner's limited free exercise nghts; because this conduct

furthered the important penological interest of rehabilitation.

Id. at 781-82 n.2, 784, et seq.

4

REASONS WHY THIS COURT SHOULD NOT

GRANT THE PETITION

A. The Court of Appeals’ Application of

Martinez Does Not Raise a Compelling

Question.

This Court's first landmark decision regarding First

Amendment rights in the prison context was Procunier v.

Martinez, 416 U.S. 396 (1974). The Court set two

requirements for prison regulations that limited prisoners’

First Amendment rights:

First, the regulation or practice in question

must further an important or substantial

government interest unrelated to the

suppression of expression. .. . Second, the

limitation of First Amendment freedoms must

be no greater than is necessary or essential to

the protection of the particular governmental

interest involved.

Id. at 413. Fifteen years later the Court decided Thornburgh

v. Abbott, 490 U.S. 401 (1989), which replaced the Martinez

standard with the reasonableness test promulgated in Turner

v. Safley, 482 U.S. 78 (1987), when applied to in-coming

mail, and also clarified the holding of Martinez. In regard to

in-coming mail, the Court explained the proper interpretation

of "necessary or essential" by stating:

We do not believe that Martinez

should, or need, be read as subjecting the

decisions of prison officials to a strict "least

restrictive means" test. As noted, Martinez

required no more than that a challenged

5

regulation be "generally necessary" to a

legitimate government interest.

Thornburgh, 490 U.S. at 411.

Following Thornburgh there was a split among the

circuits on the standard applied to out-going mail cases. '

Most circuits apply the standard set out in Martinez. They

are the First, Third, Sixth, Seventh, Ninth, and Tenth. Stow

v. Grimaldi, 993 F.2d 1002 (1* Cir. 1993); Nasir v. Morgan,

350 F.3d 366 (3 Cir. 2003); Bell-Bey v. Williams,

87 F.3d 832 (6" Cir. 1996); Koutnik v. Brown, 456 F.3d 777

(7" Cir. 2006); Witherow v. Paff, 52 F.3d 264 (9" Cir. 1995);

Treff v. Galetka, 74 F.3d 191 (10 Cir. 1996). Two circuits

apply the Turner reasonableness standard. They are the Fifth

‘and Eighth. Brewer v. Wilkinson, 3 F.3d 816 (5" Cir. 1993);

Smith v. Delo, 995 F.2d 827 (8" Cir. 1993).

However, a close reading of the cases applying

Martinez and those applying Turner indicates that the

difference between the two standards is largely superficial.

In Martinez the court required that mail restrictions

(1) further an important government interest, such as

security, order, or rehabilitation, and (2) be no broader than

' Koutnik attempts to further divide the circuits that apply the Martinez

standard into circuits that consider Thornburgh to have "restated"

Martinez and circuits that view Thornburgh as having "preserved"

Martinez, Pet. for Cert. at 12-14, but this difference is purely semantic.

Several circuits have in fact reiterated the Thornburgh Court's statement

that Martinez did not create a "least-restrictive means test." See Bell-Bey

v. Williams, 87 F.3d 832 (6" Cir. 1996); Nasir v. Morgan, 350 F.3d 366

(3 Cir. 2003); and Witherow v. Paff, 52 F.3d 264 (9 Cir. 1995).

However, Koutnik does not identify any post-7hornburgh cases in which

circuit courts have applied a least-restrictive means test, indicating that

the courts applying the "preserved" Martinez standard are applying it as

modified by Thornburgh without an explicit statement that Martinez was

clarified by Thornburgh.

6

"is necessary or essential" to protect the government interest.

Martinez, 416 U.S. at 413. In Turner, the Court created a

four-part test that seeks to determine: (1) whether a prison

regulation is legitimate, neutral, and reasonably related to a

legitimate government interest, (2) whether the plaintiff has

an alternative means of exercising the rights asserted, (3) the

impact the accommodation would have on prison operation,

and (4) whether the presence of other alternatives

undermines the reasonableness of the regulation. Turner,

482 U.S. at 89-90.

The two tests are extremely similar in application.

The first prong of both tests asks whether there is a

relationship between the prison regulation and a legitimate

government interest. The latter portion of each test examines

the strength of the relationship between the regulation and

the government interest, either by asking whether it is

"necessary or essential" or by asking if there are alternative

means of either exercising the right or achieving the

penological goal.

This similarity between Martinez and Turner has

been recognized by two circuits. The Eighth Circuit began

applying Turner to out-going mail cases only after stating:

Martinez should be understood as striking

down the regulation because it was not

rationally related to a legitimate and neutral

penological objective and because the

regulation went further than necessary to

serve valid governmental interests. This is

not different from the analysis mandated by

Turner.

Smith, 995 F.2d at 830. Similarly, in Nasir the Third Circuit

began by applying 7urner to an in-coming mail question and

7

then proceeded to apply Martinez to an out-going mail

question, stating, "[m]uch of the discussion, therefore, that

proceeded in the Turner analysis is relevant here." Nasir,

350 F.3d at 375. In light of the similarity between the two

standards, the split between the circuits, to the extent that

there is one, is not a compelling reason to grant certiorari.

It should be noted that the court of appeals in the

instant matter rejected the respondents’ argument that the

courts should apply the Turner standard to out-going

prisoner mail in light of this Court's indication in Shaw v.

Murphy, 532 U.S. 223, 229 (2001), that there is a unitary

standard applicable to prisoners' constitutional claims.

Koutnik, 456 F.3d at 784 n.4. Of course, the Turner standard

does not apply to all prisoner claims. See, e.g., Johnson v.

California, 543 U.S. 499, 509-511 (2005).

B. The Seizure of Koutnik's Mail Was Justified

by the Valid Penological Interests of Security

and Rehabilitation.

3 The Judicial System Grants Broad

Deference to Prison Administrators

for the Implementation of Penological

Goals.

Koutnik asks the Court to grant a writ of certiorari to

determine whether general rehabilitative goals alone can

justify the seizure of outgoing mail. However, to the extent

that Koutnik ignores the security concerns involved in this

case he mischaracterizes the reason for the seizure of his

mail. Further, by questioning the determination made by

prison officials that restrictions on the use of symbols and

language associated with white supremacist gangs are related

to the safety or rehabilitation goals of the prison, Koutnik

asks the Court to take on a role it has traditionally been

reluctant to fill.

In Bell v. Wolfish, 441 U.S. 520, 547 (1979), this

Court stated:

[T]he problems that arise in the day-to-day

operation of a corrections facility are not

susceptible of easy solutions. Prison

administrators therefore should be accorded

wide-ranging deference in the adoption and

execution of policies and practices that in

their judgment are needed to preserve internal

order and discipline and to maintain

institutional security.

Similarly, in Martinez, this Court found the judicial system

to be "ill equipped to deal with the increasingly urgent

problems of prison administration and reform." Martinez,

416 U.S. at 405. The judicial system is at a disadvantage in

attempting to manage prisons because actions that are

"seemingly innocuous" to people who do not work as prison

administrators may have potentially significant implications

for the operation of the prison. Thornburgh, 490 U.S. at 407.

As a result, prison administrators are not required to prove

harmful consequences, only an _ objectively rational

connection. Herlein v. Higgins, 172 F.3d 1089, 1091

(8"" Cir. 1999), citing Turner, 482 U.S. at 91-92. See also

Thornburgh, 490 U.S. at 417. As the Court in O'Lone v.

Estate of Shabazz, 482 U.S. 342, 353 (1987), emphasized:

We take this opportunity to reaffirm

our refusal, even where claims are made

under the First Amendment, to "substitute our

judgment on . . . difficult and sensitive

matters of institutional administration," Block

9

v. Rutherford, 468 U.S. 576, 588, 82 L. Ed. 2d

438, 104 S. Ct. 3227 (1984), for the

determinations of those charged with the

formidable task of running a prison.

See also Beard v. Banks, __- U.S. __, 126 S. Ct. 2572,

2578, 165 L. Ed. 2d 697 (2006) (plurality opinion)

(reiterating that "courts owe ‘substantial deference to the

professional judgment of prison administrators" (quoting

Overton v. Bazzetta, 539 U.S. 126, 132 (2003))).

a The Marketing of White Supremacis*

Symbols and Language from Inside

the Prison Threatens Prison Security.

Security is central to all objectives of prison

administration. Thornburgh, 490 U.S. at 415. Seizure of

Koutnik's mail bore a logical connection to the provision of

prison security by limiting the ability of an admitted gang

member to market white supremacist material. There can be

no doubt that suppressing any and all white supremacist gang

activity is reasonably related to the valid penological goal of

prison security. See Turner, 482 U.S. at 91-92. See also

Rios v. Lane, 812 F.2d 1032, 1037 (7" Cir. 1987), cert.

dismissed, 483 U.S. 1001 (1987). Prison gangs are the

primary safety concern in the modern prison. Wilkinson v.

Austin, 545 U.S. 209, 227 (2005) ("Clandestine, organized,

fueled by race-based hostility, and committed to fear and

violence as a means of disciplining their own members and

their rivals, gangs seek nothing less than to control prison

life and to extend their power outside prison walls").

The petitioner is a member of the Simon City Royals,

a "usually white” gang, which opposes the introduction of

other races into their territories (R. 13:9] 62-64). He was

attempting to merchandise, through Northern Sun, his

10

drawing of a Swastika, a symbol of Aryan pride, white

supremacy, and racial hatred, accompanied by a legend that

was a coded reference to the Ku Klux Klan (R. 13: 49 13, 24,

37). White supremacist groups, including the Klan, are not

sanctioned or approved by WSPF. Respondent Brown

concluded that Koutnik, by attempting to market the drawing

and in conjunction with the accompanying letter to Northern

Sun, was identifying with and trying to promote the growth

of white supremacy groups while merchandising white

supremacy materials (R. 13:4 41-43).

WSPF's security interests were implicated, because

allowing Koutnik to engage in the business of merchandising

such material out of WSPF would imply that the DOC and

WSPF condoned, or even promoted, white supremacist

activity within the institution (R. 13:4] 42-43). Brown felt

that such a perception by inmates would lead to unrest and

racial tension (R. 13:4 44). Race hatred and the violence

associated with it are particular security concerns within the

prison system (R. 13:4 45). See Wilkinson, 545 U.S. at 227.

In addition, Koutnik's letter included a request that Northern

Sun merchandise his drawing in a form that would be

available to other inmates (R. 13:4 46). Thus his letter

clearly contemplated that the drawing would be reproduced

by Northern Sun in a form which would be reintroduced into

the prison and would circulate among inmates within the

prison system (R. 13:4] 46). Respondent Brown concluded

that allowing Koutnik to engage in merchandising white

supremacy materials from within the prison would be

incompatible with WSPF's duty to provide a safe and secure

environment for all inmates, staff and visitors (R. 13:4 47).

11

3. In Addition to Safety Concerns, the

Seizure of Koutnik's Mail was

Necessary to Achieve the Compelling

State Interest in Rehabilitation.

In addition to the vital prison safety interest at issue

in this case, it is bey und question that rehabilitation is also a

substantial government interest. See Waterman v. Farmer,

183 F.3d 208, 215 (3™ Cir. 1999) (finding the legitimacy of

rehabilitation "beyond dispute"); Amatel v. Reno, 156 F.3d

192, 196 (D.C. Cir. 1998) ("The legitimacy of the

rehabilitative purpose appears indisputable"); Mauro v.

Arpaio, 188 F.3d 1054, 1059 (9" Cir. 1999) ("It is beyond

question that both jail security and rehabilitation are

legitimate penological interests"). Logically, "since most

offenders will eventually return to society, [a] paramount

objective of the corrections system is the rehabilitation of

those committed to its custody." Pell v. Procunier, 417 U.S.

817, 823 (1974). Therefore, "[p]rison administrators are

responsible for . . . rehabilitating, to the extent that human

nature and inadequate resources allow, the inmates placed in

their custody." Martinez, 416 U.S. at 404.

Koutnik attempts to find a split among the circuits on

the issue of whether a broad definition of rehabilitation can

constitute a valid penological interest. Pet. for Cert. at 12-

16. This split is purportedly derived from the Third Circuit's

decision in Ramirez v. Pugh, 379 F.3d 122 (3 Cir. 2004),

which disagreed with an aspect of the reasoning of Amatel,

156 F.3d at 199-200, in regard to th« breadth of the state's

penological interest in rehabilitation. However, the Third

Circuit took issue with the Amatel decision only to the extent

that that decision could be construed to define rehabilitation

as "the promotion of ‘values,’ broadly defined, with no

particularized identification of an existing harm towards

which the rehabilitative efforts are addressed." Ramirez, 379

F.3d at 128.

Even if this Court were to find a substantial split

based on the Amatel and Ramirez decisions, the instant case

is not the case to decide the issue. Koutnik's submission

intended to be sent to Northern Sun was not confiscated for

the general inculcation of "values." The letter was seized for

the narrow reason that it used gang symbols in violation of

Wisconsin Administrative Code DOC § 303.20(3), thus

implicating the security and rehabilitation goals of WSPF.

Finally, although Koutnik claims that the seizure of

his drawing and letter to Northern Sun has impeded his

rehabilitation, Pet. for Cert. at 13, the court of appeals rightly

came to the opposite conclusion. Koutnik, 456 F.3d at

785-86. Koutnik cites this Court's statement in Martinez that

"the weight of professional opinion seems to be that inmate

freedom to correspond with outsiders advances rather than

retards the goal of rehabilitation.” Martinez, 416 U.S. at 412.

This statement, however, was rooted in two internal policy

statements of the Federal Bureau of Prisons. The first stated:

"Constructive, wholesome contact with the community is a

valuable therapeutic tool in the overall correctional process."

Id. at 412 n.13 (internal quotation marks and citations

omitted). The second’ statement found _ that:

"Correspondence with members of an inmate's family, close

friends, associates and organizations is beneficial to the

morale of all confined persons and may form the basis for

good adjustment in the institution and the community." /bid.

(internal quotation marks and citations omitted). The court

of appeals concluded that, "[t]aken in that context, we

believe that the Supreme Court's statement in Martinez

actually supports the defendants’ position here." Koutnik,

456 F.3d at 785. The court of appeals indicated that

Koutnik's correspondence was not an effort to establish

13

"constructive, wholesome contact" with the outside

community that would foster successful reintegration into

society. /bid. Instead, it was an effort to appeal to groups

that would hinder, rather than foster, respectful human

interaction, both inside and outside of prison. J/bid. As a

result, the attempt to market a Swastika drawing with a KKK

legend was obviously incompatible with the identified

rehabilitation goals of living free of crime when the

petitioner is released from custody, developing the ability to

resolve crimes without violence, and "recogniz[ing] that

successful reintegration into society requires respecting the

rights of others" (R. 13: 4 11).

CONCLUSION

The petition should be denied.

Respectfully submitted,

J.B. VAN HOLLEN

Attorney General

DAVID E. HOEL*

Assistant Attorney General

Attorneys for Respondents

Wisconsin Department of Justice

Post Office Box 7857

Madison, Wisconsin 53707-7857

(608) 266-9231

*Counsel of Record

July 3, 2007