Opposition Brief — Amatel v. Reno

Supreme Court brief1999

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No. 98-1452

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In the Supreme Court of the United States ~~

JOSEPH AMATEL, ET AL., PETITIONERS

JANET RENO, ATTORNEY GENERAL, ET AL.

ITION FOR A WRIT OF CERTIORARI TO

NITED STATES COURT OF APPEALS

MBIA CIRCUIT

DLT

(AN PRI

THE I

FOR THE DISTRICT OF COLI

BRIEF FOR THE RESPONDENTS IN OPPOSITION

SETH P. WAXMAN

Solicitor (rene ral

Counsel of Re cord

DAVID W. OGDEN

Acting Assistant Atton f Y

(re Vie ral

BARBARA L. HERWIG

EDWARD HIMMELFARB

Attorne ys

De partine nit of Justice

Washington, D.C. 20520-0001

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QUESTION PRESENTED

Whether the court of appeals correctly applied this

Court’s decisions in Turner v. Safley, 482 U.S. 78

(1987), and Thornburgh v. Abbott, 490 U.S. 401 (1989),

in upholding a federal statute that bars federal

prisoners from receiving commercially published ma-

terials that are sexually explicit or feature nudity.

TABLE OF CONTENTS

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TABLE OF AUTHORITIES

Cases:

Bell v. Wolfish, 441 U.S. 520 (1979) ...........ccccccccessercesens

Dawson v. Scurr, 986 F.2d 257 (8th Cir.), cert.

I A I hac sa hcteaichasnracnnsncnoesesesenetonntineie

FCC v. Beach Communications, Inc., 508 U.S. 307

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Giano v. Senkowski, 54 F.3d 1050 (2d Cir. 1995) .............

Jones v. North Carolina Prisoners’ Labor Union,

BLE TR SL. fg 5 SSSIIRRR ROE Spi ene

Kansas v. Hendricks, 521 U.S. 346 (1997) ou... eceseesesees

Mann v. Reynolds, 46 F.3d 1055 (10th Cir. 1995) ............

Motor Vehicle Mfrs. Ass’n v. State Farm Mut.

EAPO TAG. CG, DEB UTS. BO CUGBB) cecccsnsossseccernsensecccsveovosnescsees

Muhammad y. Pitcher, 35 F.3d 1081 (6th Cir.

es cabliopustenbnotenemeiones

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

Pell v. Procunier, 417 U.S. 817 (1974) .......ccccsssccscseccsssees

Pension Benefit Guar. Corp. v. LTV Corp.,

a ccnownbbvnnsaberonbvent

Price V. JORNGON, 334 U.S. BBE (1948) .......ccccccoccocserscesessees

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

Reed v. Faulkner, 842 F.2d 960 (7th Cir. 1988) ...............

Rostker v. Goldberg, 453 U.S. 57 (1981) ........cccsscccceseeeeesees

SEC v. Chenery Corp., 318 U.S. 80 (1948) .......ccescssesesees

(IIT)

Cases—Continued: Page

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

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Swift v. Lewis, 901 F.2d 730 (9th Cir. 1990) 0... 14

Thornburgh v. Abbott, 490 U.S. 401 (1989) ...... 3, 6, 7, 8, 9, 13

Turner v. Safley, 482 U.S. 78 (1987) ........000.. 6, 8, 9, 10, 12, 13

Walker v. Sumner, 917 F.2d 382 (9th Cir. 1990) .............. 15

Constitution, statutes and regulations:

U.S. Const.:

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Omnibus Consolidated Appropriations Act, 1997,

Pub. L. No. 104-208, 110 Stat. 3009 .........cccccoccocccsscssccsscceeee :

5 GL6, TEC See, GC wile cece 2,9

Sentencing Reform Act of 1984, 18 U.S.C. 3582(a) ............ 12

28 C.F.R.:

Sections 540.70-540.71 (1996) ..........scccccccsscssscssssecsesscscscseere 2

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Miscellaneous:

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Program Statement :

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SAAT

Jn the Supreme Court of the Anited States

No. 98-1452

JOSEPH AMATEL, ET AL., PETITIONERS

JANET RENO, ATTORNEY GENERAL, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-49a)

is reported at 156 F.3d 192. The opinion of the district

court (Pet. App. 50a-62a) is reported at 975 F. Supp.

365.

JURISDICTION

The judgment of the court of appeals was entered on

September 15, 1998. The petition for rehearing was

denied on December 11, 1998 (Pet. App. 63a-64a). The

petition for a writ of certiorari was filed on March 11,

1999. The jurisdiction of this Court is invoked under 28

U.S.C. 1254(1).

(1)

STATEMENT

The Ensign Amendment, which Congress enacted as

part of the Omnibus Consolidated Appropriations Act,

1997, Pub. L. No. 104-208, § 614, 110 Stat. 3009-66, bars

the Federal Bureau of Prisons (BOP) from using ap-

propriated funds to distribute to prison inmates com-

mercial material that “is sexually explicit or features

nudity.” The United States District Court for the

District of Columbia enjoined enforcement of the En-

sign Amendment, ruling that it violated the First

Amendment rights of prison inmates. Pet. App. 50a-

62a. The court of appeals reversed that ruling, vacated

the injunction, and remanded the case for further

proceedings. Jd. attla-49a.

1. Before the enactment of the Ensign Amendment,

the BOP regulated prisoners’ receipt of publications

through regulations and an internal policy that

generally permitted an inmate to receive hardcover

publications from the publisher, a book club, or a

bookstore and to receive softcover publications, such as

books, newspaper clippings, or magazines, from any

source. See 28 C.F.R. 540.70-540.71 (1996); Program

Statement (PS) 5266.06 (Apr. 26, 1985). Under Section

5b, the warden had authority to inspect incoming

publications and could reject a publication if he

determined that it was “detrimental to the security,

good order, or discipline of the institution” or that “it

might facilitate criminal activity.” Jbid. The warden

could not reject a publication “solely because its content

is religious, philosophical, political, social or sexual, or

because its content is unpopular or repugnant.” Jbid.

Section 5 b.(7) of PS 5266.06 contained a nonexclusive

list of types of publications that could be rejected,

including “sexually explicit material which by its nature

or content poses a threat to the security, good order, or

discipline of the institution, or facilitates criminal

activity.” Ibid. This Court had rejected First Amend-

ment challenges to an earlier, substantially similar

version of that Program Statement, PS 5266.05 (Jan. 2,

1985). See Thornburgh v. Abbott, 490 U.S. 401 (1989);

Pet. App. 3a.

2. In 1996, Congress enacted the Omnibus Consoli-

dated Appropriations Act, 1997, Pub. L. No. 104-208,

110 Stat. 3009. Section 614 of that Act—commonly

known as the “Ensign Amendment” —provides:

None of the funds made available in this Act to

the Federal Bureau of Prisons may be used to

distribute or make available any commercially pub-

lished information or material to a prisoner when it

is made known to the Federal official having author-

ity to obligate or expend such funds that such in-

formation or material is sexually explicit or features

nudity.

110 Stat. 3009-66. Representative Ensign proposed

that amendment on the ground that “[mJagazines that

portray and exploit sex acts have no place in the re-

habilitative environment of prison, nor should we pay

Bureau of Prison[s] staff to distribute them.” 142 Cong.

Ree. 18,883 (1996).

The BOP implemented the Ensign Amendment by

interim rule, effective December 1, 1996. See 61 Fed.

Reg. 57,568. The interim rule, among other things,

added a section to BOP regulations dealing with

statutory restrictions requiring the return of com-

mercially published material that is sexually explicit or

features nudity. See 28 C.F.R. 540.72(a). The new

section of the regulations also defined some terms in

the Ensign Amendment, including “nudity,” “features,”

and “sexually explicit.” “Nudity” was defined to mean

“a pictorial depiction where genitalia or female breasts

are exposed.” 28 C.F.R. 540.72(b)(2). “Features” was

defined to mean that “the publication contains depic-

tions of nudity or sexually explicit conduct on a routine

or regular basis or promotes itself based upon such

depictions in the case of individual one-time issues.

Publications containing nudity illustrative of medical,

educational, or anthropological content may be ex-

cluded from this definition.” 28 C.F.R. 540.72(b)(3).

“Sexually explicit” was defined to mean “a pictorial

depiction of actual or simulated sexual acts including

sexual intercourse, oral sex, or masturbation.” 28

C.F.R. 540.72(b)(4).’

In addition, the BOP issued a revised Program State-

ment, PS 5266.07 (Nov. 1, 1996), on incoming publi-

cations. That revision included essentially all of the

prior version upheld in Thornburgh but also added a

new Section 6, which provided instructions for the

return of publications covered by the Ensign Amend-

ment, along with an explanation of the revised regu-

lations. Pet. App. 7la-75a. Program Statement 5266.07

gave examples of commercial publications that could be

distributed to inmates even though they may contain

nudity, because they do not feature nudity: National

Geographic; Our Body, Our Selves; Sports Illustrated

(Swimsuit Issue); and the Victoria’s Secret catalog.

' The regulations also defined “commercially published in-

formation or material” to mean “any book, booklet, pamphlet, mag-

azine, periodical, newsletter, or similar document, including

stationery and greeting cards, published by any individual, organi-

zation, company, or corporation which is distributed or made

available through any means or media for a commercial purpose.

This definition includes any portion extracted, photocopied, or

clipped from such items.” 28 C.F.R. 540.72(b)(1).

Pet. App. 74a. It explained that publications with

sexual content that were not returned under Section 6

were still subject to rejection under Section 5 b.(7), the

provision carried forward from earlier versions of the

Program Statement dealing with sexually explicit

material that, by its nature or content, poses a threat to

the security, good order, or discipline of the institution,

or facilitates criminal activity. Pet. App. 75a; PS

5266.07.

3. The current litigation began as three separate

actions initiated by prison inmates, which the district

court consolidated. Appointed counsel filed an amend-

ed complaint on behalf of the three inmates and also on

behalf of Playboy Enterprises, Inc., publisher of Play-

boy magazine; General Media Communications, Inc.,

publisher of Penthouse magazine; and the Periodical

and Book Association of America, Inc., which describes

itself as a trade association of magazine and paperback

book publishers. See Pet. App. 4a, 51a.

The amended complaint challenged the Ensign

Amendment on its face and as applied to petitioners,

claiming that the statute and implementing regulations

were not rationally related to a legitimate penological

interest, were unconstitutionally overbroad, improperly

singled out one class of protected speech (pictorials)

without banning other protected speech (text), and

were excessively vague in violation of the First and

Fifth Amendments. Petitioners moved for a preli-

minary injunction, and the government moved to dis-

miss. Neither side submitted any materials outside the

pleadings. The district court ruled that the Ensign

Amendment is “facially violative of the First Amend-

ment,” Pet. App. 6la, and permanently enjoined en-

forcement of the statute, id. at 50a-62a.

The district court first concluded that the Ensign

Amendment should be reviewed under the reasonable-

ness standard of Turner v. Safley, 482 U.S. 78 (1987),

and Thornburgh v. Abbott, supra. Pet. App. 56a.

Under that test, prison regulations are valid if they are

“reasonably related to legitimate penological interests.”

Safley, 482 U.S. at 89. This Court has identified four

considerations that are relevant to that determination:

(1) whether the government objective is legitimate and

neutral and the regulations are rationally related to

that objective; (2) whether alternative means remain

open for inmates to exercise the right at issue; (3)

whether setting aside the regulations may adversely

affect others, including guards and other inmates; and

(4) whether the regulations are an “exaggerated re-

sponse” to prison concerns. See Thornburgh, 490 U.S.

at 414-419. The district court concluded that the En-

sign Amendment does not satisfy the first of those four

considerations. See Pet. App. 56a-57a. The court

recognized that rehabilitation—the interest asserted by

the government here—is a legitimate penological inter-

est, but it held that the Ensign Amendment never-

theless imposes an unconstitutional restriction on pri-

soner rights because it is content-based and therefore

not “neutral.” Jd. at 57a-60a.

4. The court of appeals reversed. Pet. App. 1a-49a.

The court of appeals concluded, at the outset, that the

district court had misunderstood Turner’s and Thorn-

burgh’s references to “neutrality.” Jd. at 10a-1la. In

evaluating whether Congress has a neutral objective,

the district court had “looked at the statute itself, not

the goal.” Jd. at 10a. The court of appeals explained

that “‘neutral’ here means no more than that ‘the

regulation or practice in question must further an im-

portant or substantial governmental interest unrelated

to the suppression of expression.’” Jbid. (quoting

Thornburgh, 490 U.S. at 415). The court reasoned that

“rehabilitation, and such character-moulding as may be

implicit therein, constitute legitimate and neutral goals

as those are understood in [Turner].” Id. at 13a.

The court of appeals then considered the four factors

set out in Turner and Thornburgh and concluded that

the Ensign Amendment does not violate the First

Amendment. The court first determined that Congress

could properly find that there is a “valid, rational

connection” between restricting inmates’ access to

pornography and promoting their rehabilitation. Pet.

App. 14a-18a. The court explained that it is not un-

reasonable for Congress to believe that pornography

could “thwart the character growth of its consumers,”

id. at 14a, and that, even if that legislative judgment

is debatable, it is “within the realm of reason under the

standards applicable to the political branches’ manage-

ment of prisons.” Jd. at 18a. The court of appeals next

observed that the Ensign Amendment continues to

afford prisoners an opportunity to receive a “broad

range” of alternative reading materials, id. at 19a

(quoting Thornburgh, 490 U.S. at 418), including “all

written forms of smut not barred by the regulations

upheld in Thornburgh.” Id. at 19a n.7. The court

noted that setting aside the Ensign Amendment could

adversely affect guards and other inmates in light of

the prospect that distribution of pornography in prison

could increase the risk of prison rape. Jd. at 19a.

Finally, the court concluded that the most obvious

alternative to the Ensign Amendment’s categorical

ban—“a detailed prisoner-by-prisoner (and presum-

ably publication-by-publication) sifting to determine

whether a particular publication will harm the re-

habilitation of a particular prisoner”—would impose

serious administrative burdens that a general ban

would avoid. Jd. at 20a.

The court of appeals rejected petitioners’ request for

a remand to allow them to introduce evidence in sup-

port of their position, stating that they had “mis-

conceive[d] the legal issue under [Twrner].” Pet. App.

23a. The court explained that the issue is “not whether

curtailment of pictorial smut will advance the prisons’

rehabilitative project, but whether Congress could

reasonably have believed that it would do so.” Ibid.

The court added that “(t]he studies cited [by amici],

coupled with Congress’s implicit appeal to ethical

norms against the undue stimulation of carnal ap-

petites, indicate the reasonableness of such a belief.”

Ibid. The court did remand, however, for consideration

of petitioners’ vagueness claim, which the district court

had not addressed. Jd. at 23a-24a.

Judge Wald dissented, reasoning that, while a more

limited prohibition might be permissible, the record

did not support a connection between the Ensign

Amendment’s prohibition of the materials and the goal

of rehabilitation. Pet. App. 24a-49a.

ARGUMENT

The court of appeals properly applied the analysis

set forth in Turner v. Safley, 482 U.S. 78 (1987), and

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

Ensign Amendment and correctly concluded that the

district court erred in declaring the statute unconsti-

tutional. That court is the first and only court of

appeals to address the constitutionality of the Ensign

Amendment. There accordingly is no conflict among

the courts of appeals on the issue warranting this

Court’s review.

1. This Court has properly recognized that prisoners

cannot claim the same breadth of constitutional rights

as ordinary citizens, because prisoners’ rights are

circumscribed by the fact of their incarceration. See

Bell v. Wolfish, 441 U.S. 520, 545-547 (1979). “Lawful

incarceration brings about the necessary withdrawal or

limitation of many privileges and rights, a retraction

justified by the considerations underlying our penal

system.” Id. at 545-546 (quoting Price v. Johnston, 334

U.S. 266, 285 (1948)). “The fact of confinement and the

needs of the penal institution impose limitations on

constitutional rights, including those derived from the

First Amendment, which are implicit in incarceration.”

Jones v. North Carolina Prisoners’ Labor Union, Inc.,

433 U.S. 119, 125 (1977).

This Court does not generally apply strict or

heightened scrutiny when reviewing prison regulations

affecting First Amendment interests. See O’Lone v.

Estate of Shabazz, 482 U.S. 342, 349 (1987) (the stan-

dard of review is “less restrictive than that ordinarily

applied to alleged infringements of fundamental consti- —

tutional rights”). A “prison regulation [that] impinges

on inmates’ constitutional rights * * * is valid if it is

reasonably related to legitimate penological interests.”

Turner, 482 U.S. at 89; see Thornburgh, 490 U.S. at 409.

Strict scrutiny, or even heightened scrutiny, “simply

lis] not appropriate” in the context of prison regula-

tions. Jd. at 409-410. Rather, a deferential standard is

“necessary if ‘prison administrators . . ., and not the

courts, [are] to make the difficult judgments concerning

institutional operations.’” Turner, 482 U.S. at 89 (quot-

ing Jones, 433 U.S. at 128)). A more demanding

standard would “distort the decisionmaking process” in

prison regulation by allowing courts to “become the

primary arbiters of what constitutes the best solution

to every administrative problem.” bid.

When, as in the case presented here, Congress itself,

rather than prison officials, establishes a penological

policy, judicial review should be especially deferential.

That conclusion follows from two related considera-

tions. First, whenever the Court adjudicates the

“eonstitutionality of an Act of Congress—the gravest

and most delicate duty that this Court is called upon to

perform’—the Court accords ‘great weight to the

decisions of Congress.’” Rostker v. Goldberg, 453 U.S.

57, 64 (1981) (citations omitted). Second, in a challenge

to a policy involving prisons, judicial deference is pre-

dicated on separation-of-powers concerns as well as on

administrative expertise. Judicial deference is required

because “the operation of our correctional facilities is

peculiarly the province of the Legislative and Execu-

tive Branches of our Government, not the Judicial.”

Bell, 441 U.S. at 548; see Turner, 482 U.S. at 84-85;

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

2. The court of appeals correctly applied those prin-

ciples in rejecting petitioners’ First Amendment chal-

lenges to the Ensign Amendment. Congress enacted

the Ensign Amendment to exclude from prison those

commercial publications that are sexually explicit or

feature nudity.” Congress did so based on its judgment

2 Petitioners misstate the language of the statute, changing

the word “feature[]” to “contain[{].” Pet. 14 (“material contain-

ing nudity”); Pet. 15 (“material containing mere nudity”); Pet. 24

(“magazines containing mere nudity”). “Featur[ing]” means more

than simply containing nudity; it means giving special prominence

to nudity. As the regulations implementing the statute interpret

the term, “features” means that “the publication contains depic-

tions of nudity or sexually explicit conduct on a routine or regular

= gee Tena Ee pe rec eee re eres eee eee eee

that those publications have the potential to interfere

with the rehabilitation of federal prisoners, whose

criminal acts have led to their placement in a restrictive

prison environment. As Representative Ensign ex-

plained, “Congress should not be fueling the sexual

appetites of offenders, especially those who have been

convicted of despicable sex offenses against women and

children. Magazines that portray and exploit sex acts

have no place in the rehabilitative environment of

prison, nor should we pay Bureau of Prison|s] staff to

distribute them.” 142 Cong. Rec. 18,883 (1996). “While

a number of factors determine whether a prisoner will

become a law abiding citizen upon release from prison,

cutting prisoners off from their sexually explicit

magazines will certainly do no harm.” bid.”

The court of appeals properly recognized that rehabi-

litation is a legitimate penological interest under

Turner and Thornburgh. Pet. App. 9a-10a. Petitioners

do not seriously dispute that point.’ The court of

basis or promotes itself based upon such depictions in the case of

individual one-time issues.” 28 C.F.R. 540.72(b)(3).

Those pre-enactment statements refute petitioners’ claim

that the government’s invocation of rehabilitation is a “post hoc

assertion.” Pet. 14; see Pet. 18.

4 This Court has repeatedly made that point. See, e.g.,

O’Lone, 482 U.S. at 348 (“limitations on the exercise of consti-

tutional rights arise both from the fact of incarceration and from

valid penological objectives—including deterrence of crime,

rehabilitation of prisoners, and institutional security”); Pell v.

Procunier, 417 U.S. 817, 823 (1974) (“since most offenders will

eventually return to society, another paramount objective of the

corrections system is the rehabilitation of those committed to its

custody”); Martinez, 416 U.S. at 404 (“Prison administrators are

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

nature and inadequate resources allow, the inmates placed in their

custody.”); see also, e.g., Dawson v. Scurr, 986 F.2d 257, 260 (8th

appeals also correctly held that the Ensign Amendment

and its implementing regulations are “reasonably re-

lated” to that legitimate objective. Jd. at 10a-18a. The

court explained that Congress “could rationally have

seen a connection between pornography and rehabilita-

tive values.” Jd. at 14a. It noted that Congress’s

judgment found support in legal and sociological

literature, as well as in common experience. Jd. at 14a-

18a. “Common sense tells us that prisoners are more

likely to develop the now-missing self-control and re-

spect for others if prevented from poring over pictures

that are themselves degrading and disrespectful.” Jd.

at 16a. Congress’s judgment is at least sufficiently

sensible “to place the legislative judgment within the

realm of reason under the standards applicable to the

political branches’ management of prisons.” Jd. at 18a.

See Turner, 482 U.S. at 89-90 (the “logical connection”

between the regulation and the asserted good may not

be “so remote as to render the policy arbitrary or

irrational”); Bell, 441 U.S. at 539 (“arbitrary or pur-

poseless”).

Petitioners contend that the court of appeals’ decision

is wrong because it subjects prison regulations to “mere

rational basis review.” Pet. 13. The court of appeals,

Cir.) (“[rJehabilitation is also a legitimate objective” for rules

limiting access to sexually explicit materials), cert. denied, 510 U.S.

884 (1993). We note that, under the Sentencing Reform Act of

1984, rehabilitation is not a basis for imposing a sentence of

imprisonment. 18 U.S.C. 3582(a). However, with respect to

persons who have been sentenced to prison to further another

penological goal (punishment, deterrence, or incapacitation), re-

habilitation is of great importance. Since the vast majority of

federal prisoners will return to society at some point, it is a matter

of the highest concern that those prisoners not return to a life of

crime upon their release.

however, relied on exactly the standard that this Court

enunciated in Turner and Thornburgh: “the relevant

inquiry is whether the actions of prison officials

fare] ‘reasonably related to legitimate penological

interests.’” Thornburgh, 490 U.S. at 409 (quoting

Turner, 482 U.S. at 89). The court of appeals explicitly

considered the four factors that the Court stated “are

relevant to, and that serve to channel, the

reasonableness inquiry.” Jd. at 414. See Pet. App. 14a-

20a. There is no merit to petitioners’ contention that

the court of appeals departed from the Twrner-

Thornburgh framework. The court of appeals simply

applied that reasonableness standard to a congressional

enactment and concluded that Congress’s judgment

withstands analysis under this Court’s decisions, which

recognize that the setting of prison policies is a matter

“peculiarly within the province of the legislative and

executive branches of government.” Turner, 482 U.S.

at 85.

3. No other court of appeals has addressed the

constitutionality of the Ensign Amendment, and there

accordingly is no conflict among the courts of appeals

respecting the statute’s validity. Petitioners neverthe-

less contend that the court of appeals’ decision conflicts

in principle with other appellate decisions that have

applied Turner and Thornburgh to various other

questions of prison administration. See Pet. 13-27.

Petitioners primarily argue that those decisions have

required a stronger showing of the reasonableness of

the prison policy at issue than the showing that the

court of appeals accepted here. See, e.g., Pet. 16-19, 22-

23. Petitioners’ reliance on those decisions is misplaced.

First, each of the cases that petitioners cite as re-

quiring the government to provide “evidence” to

support the need for a particular prison regulation, Pet.

16-19, involved a challenge to a prison official’s deter-

mination of an administrative policy, and not a chal-

lenge to Congress’s determination of a legislative

policy. The courts’ requirement that prison officials

provide “evidence” in support of their policies arises

largely as a matter of gaministrative law, which

dictates that “the grounds upon which the admini-

strative agency acted be clearly disclosed and

adequately sustained.” SEC v. Chenery Corp., 318 U.S.

80, 94 (1943); see Motor Vehicle Mfrs. Ass’n v. State

Farm Mut. Life Ins. Co., 463 U.S. 29, 438 (1983) (a court

“may not supply a reasoned basis for the agency’s

action that the agency itself has not given”). The

Administrative Procedure Act requires that “an agency

take whatever steps it needs to provide an explanation

that will enable the court to evaluate the agency’s

rationale at the time of decision.” Pension Benefit

Guar. Corp. v. LTV Corp., 496 U.S. 633, 654 (1990).

That approach, however, does not apply to congres-

sional enactments. Courts “never require a legislature

to articulate its reasons for enacting a statute.” FCC v.

Beach Communications, Inc., 508 U.S. 307, 315 (1993).

Second, the courts use the terin “evidence” some-

what loosely in those cases to refer generally to the

agency’s rationale for the policy, rather than to con-

ventional trial evidence. For example, the court stated

in Swift v. Lewis, 901 F.2d 730, 731-782 (9th Cir. 1990),

that prison officials had “failed to provide any evidence

that the interests they have asserted are the actual

bases for their grooming policy” and that they must

produce “some evidence that their policies are based on

legitimate penological justifications” or else “judicial

review of prison policies would not be meaningful.” The

court’s use of the term “evidence” in that context refers

to an explanation of the policy’s purpose. Similarly, in

Shimer v. Washington, 190 F.3d 506 (7th Cir. 1996), the

court was troubled by the fact that the prison authori-

ties submitted in court only “the prison regulations,

which do not contain the disputed policy, and an

affidavit of Patricia Lubben, manager of the prison

policy unit, who states only the policy, with no

illumination as to its purpose.” Id. at 510 (emphasis

added).”

Third, the cases cited by petitioners indicate that the

courts require “evidence” in support of a prison policy

when the prison officials’ policy is contrary to common

sense. See, e.g., Shimer, 100 F.3d at 510 (We, in fact,

are reduced to speculation when not provided with

evidence, and, having speculated, find it difficult to

establish a connection between the prison administra-

tion’s unsubstantiated justifications and its policy.”);

Walker v. Sumner, 917 F.2d 382, 387 (9th Cir. 1990)

(“Not only is there a complete absence of evidence as to

why the officials conducted the mandatory blood tests,

but the record does not reveal what, if anything, the

officials intended to do with the information obtained.”);

Reed v. Faulkner, 842 F.2d 960, 963 (7th Cir. 1988) (“No

evidence of such a danger [of racial conflict] was pre-

* As another example, petitioners quote (Pet. 19) the court’s

reference to “evidence” in Mann v. Reynolds, 46 F.3d 1055 (10th

Cir. 1995). That reference, however, is sandwiched between a

statement that the court found it “disturbing in the Turner

context” that the prison officials “have not provided an explanation

why they have singled out attorneys for the restricted contact,” id.

at 1060, and another statement criticizing “the State’s failure to

provide any rationale for its non-contact policy.” Jd. at 1061. See

also Walker v. Sumner, 917 F.2d 382, 385 (9th Cir. 1990) (stating

that prison officials “must provide evidence that the interest

proferred [sic] is the reason why the regulation was adopted or

enforced”),

sented, and in any event it is not easy to see how

forcing Rastafarians to cut their hair is going to change

this belief [that blacks are superior to whites].”).° Here,

in contrast, common sense supports Congress’s statu-

tory policy, as the court of appeals made clear. Pet.

App. 15a. See Giano v. Senkowski, 54 F.3d 1050, 1055

(2d Cir. 1995) (“common sense” is enough to support

prison policy lacking factual support in record).'

In short, the decisions cited by petitioners do not

support their broad proposition that the court of ap-

peals erred in failing to require Congress to provide

evidence in support of its policy judgment. There is no

conflict between those decisions and the court of

appeals’ decision below that would warrant this Court’s

review.

6 See also Mann, 46 F.3d at 1060-1061 (“record demonstrates a

lack of rationality in the denial of contact between Inmates and

their counsel,” and prison officials failed to provide “any evidence

the restrictions on contact were reasonably related to prison

security”); Muhammad vy. Pitcher, 35 F.3d 1081, 1085 (6th Cir.

1994) (“In light of the fact that the prison is already opening legal

mail from private attorneys, courts, and legal assistance organi-

zations, in the presence of the inmates who submit such requests,

it seems to us that opening mail from the Attorney General’s Office

in the presence of these inmates would entail little or no additional

burden.”).

The congressional policy here, in any event, finds support in

a variety of studies on the effects of pornography. See Pet. App.

l6a-17a. While there may be a difference of opinion on the

relationship between pornography and inmate recidivism, the issue

here is only whether the Ensign Amendment policy has a reason-

able relationship with the goal of rehabilitation. As this Court has

held, “it is precisely where such disagreement exists that legis-

latures have been afforded the widest latitude” in addressing such

problems. Kansas v. Hendricks, 521 U.S. 346, 360 n.3 (1997). See

Pet. App. 17a-18a.

ee oe ee Loe ee

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

SETH P. WAXMAN

Solicitor Gene ral

DAVID W. OGDEN

Acting Assistant Attorney

General

BARBARA L. HERWIG

KE DWARD HIMMELFARB

Attorneys

MAY 1999

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.