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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2007

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_2214%3A2. Public record. Not legal advice.