Issues
What right do prisoners have to read secular publications and display photographs while serving their sentences? To what extent can prison officials infringe on this right to serve the prison’s legitimate policy goals?
The Long Term Segregation Unit (“LTSU”) of the State Correctional Institution at Pittsburgh, Pennsylvania was established to house “the worst of the worst” of the prison’s population. When they first enter the LTSU, inmates cannot keep newspapers, magazines, or photographs in their cells, though they have limited access to religious and legal materials. In this case, the Supreme Court will decide whether the prison’s regulation is “rationally related to a legitimate penological interest,” and therefore constitutional under the Court’s holding in Turner v. Safley.
Questions as Framed for the Court by the Parties
Does a prison policy that denies newspapers, magazines and photographs to the most difficult inmates in the prison system in an effort to promote security and good behavior violate the 1st Amendment?
Facts
The Long Term Segregation Unit (“LTSU”) in Pittsburgh’s State Correctional Institution serves as a prison within a prison, housing inmates deemed “too disruptive, violent or problematic” to reside in the general prison population. Banks v. Beard, 399 F.3d 134, 136–137 (3rd Cir. 2005). Inmates may end up in the LTSU after unsuccessful escape attempts, assaults on guards or fellow prisoners, or incidents of sexual predation. Id. at 137 n.2. Upon entering LTSU, inmates spend twenty-three hours a day in solitary cells, and may receive only one visit from an immediate family member per month. Id. at 137. LTSU inmates may not receive newspapers, magazines, or photographs, though they do have access to religious and legal publications. Id.
Banks, a former LTSU inmate, instituted a class-action complaint on behalf of the LTSU inmates, arguing that the restrictions on periodicals and photographs impermissibly impinged on their First Amendment rights, in violation of the Supreme Court’s holding in Turner v. Safley. Id. at 138. The district court granted summary judgment for the defendants, finding the regulations “rationally related to the legitimate and interrelated penological interests in rehabilitation and security.” Id. at 138. The court of appeals reversed, in part because defendants failed to show that the challenged policy actually enhanced rehabilitation or security: “under the challenged policy, there have still been cell fires and rashes of feces-flinging . . . .” Id. at 143. Defendants appealed, and the Supreme Court granted certiorari. Beard v. Banks, 126 U.S. 650 (2005).
Analysis
The Turner Framework
The parties agree that the rule of Turner v. Safley, 482 U.S. 78 (1987), governs the constitutionality of prison regulations affecting constitutional rights. It says that a restriction that affects fundamental rights of prisoners “is valid if it is reasonably related to a legitimate penological interest.” Turner, 482 U.S. at 89. Turner also provides four factors to consider when determining whether this reasonable relationship exists. First, is there a “valid, rational connection between the prison regulation and the legitimate governmental interest put forward to justify it”? Id. at 89. Second, do “alternative means of exercising the right” remain open to the affected inmate? Id. at 90. Third, what impact will “accommodation of the asserted constitutional right” have on guards, other inmates, and the prison generally? Id. Finally, are there “ready alternatives … [that] fully accommodate the prisoners’ rights at de minimus cost to the valid penological interests”? Id. at 90–91.
Banks’ Turner Analysis
On the first point, Banks argues that the policy does not enhance security because inmates may still possess items, such as Bibles or legal documents, which they may use to start fires. Respondent’s Brief at 19. He also asserts that, empirically, the policy has no reasonable relation to rehabilitation. Prisoners ending up in the Long Term Segregation Unit (“LTSU”) have already disregarded a number of stronger incentives designed to make them behave. It is therefore patently irrational to expect these prisoners to toe the line merely because you’re taking away their Newsweek subscription. See Id. at 22.
Banks also uses this analysis to address the third Turner factor. If restricting access to newspapers does not further rehabilitation or security, it logically follows that allowing access will not impede these goals—there will be no negative “impact” under Turner. Id. at 27. Nor would such access strain prison resources: If prison officers delivered a secular publication along with the prisoner’s personal, legal, or religious correspondence, and retrieved it when they came for his supper tray, no additional manpower would be needed; indeed, the prison would be saved the administrative task of sorting the material into “restricted” and “permitted” piles. Such a system, envisioned by the Third Circuit on appeal, would thus also satisfy the “ready alternative” analysis of the fourth Turner factor. Id. at 29.
On the question of alternative means, Banks frames the impinged right as “access … to information and ideas from the outside world.” Id. at 24. Letters, old books, and visits from chaplains and attorneys—the only contact with the outside world allowed LTSU inmates—do not fill the void. We no longer use letters to communicate current events, Banks argues, and authorized visitors are too busy discussing the afterlife or the next appeal to bring the inmate up to speed on the war in Iraq or the latest romantic dalliances of Jessica Simpson. See Id. at 24–25.
Beard’s Turner Analysis
Where Banks pounds the facts (“this policy just doesn’t work!”), Beard pounds the law—Turner doesn’t require an empirical showing of success. Thus, the Third Circuit misread Turner by subjecting the prison’s decision to “exacting” review. Petitioner’s Brief at 28. The test should not require officials to prove that the chosen policy, and nothing less, would completely solve the alleged problem. Otherwise, any policy would be suspect, because “some court somewhere” could envision a “less restrictive way of solving the problem at hand.” Id.
As to the second factor, Beard notes that LTSU inmates are permitted monthly visits with immediate family and that the letters they are permitted to receive may include certain newspaper and magazine clippings. Id. at 30 In addition, if the inmates desire further contact with the outside world, they need only behave. Id.
Beard also insists that a different policy would have a substantial impact on prison administration. Removing a single deterrent to misconduct would create a “ripple effect,” that would spread throughout the entire prison—LTSU inmates would have no increased incentive to behave, and inmates in the general population would have less incentive to avoid the sort of behavior that would land them in LTSU. Id. at 30. In addition, providing greater access to library resources would place a severe burden on prison resources. Though the LTSU inmates are few in number, their volatility ensures that they require “greatly disproportionate” oversight—for example, during their visits to the LTSU’s “mini law library,” inmates must wear handcuffs, leg-irons, and be escorted by two guards. Id. at 6. Upholding the Third Circuit’s opinion, Beard contends, would transform the Turner analysis into a “least restrictive alternative” test, a possibility the Turner Court explicitly foreclosed. Id. at 30.
Discussion
Imprisonment strips convicts of a great many liberties, but it does not place them in a “Constitution-free” zone. If prison regulations arbitrarily burden an inmate’s (already limited) freedom of speech or religion, the judiciary will strike the regulations down as unconstitutional. A 1987 Supreme Court case, Turner v. Safley, lays out the framework courts use to determine whether a given restriction passes constitutional muster. Courts must consider whether the rule serves a legitimate goal and leaves some room for the exercise of the prisoner’s rights. They must also determine whether less restrictive, effective alternatives are available and assess the burden, on both prison administrators and other inmates, posed by allowing greater freedom.
Beard, the Secretary of the Pennsylvania Department of Corrections, argues that the contested regulations further the legitimate goals of rehabilitation and security. If the prison can treat greater access to newspapers and magazines as a privilege, they can encourage “incorrigible” prisoners to change their conduct by conditioning that privilege on good behavior. This will also foster better behavior from the general prison population, by giving them further incentives to avoid the behavior that will land them in the LTSU. In addition, the regulations promote prison security by depriving LTSU inmates, an undeniably dangerous group, of materials they apparently use to start cell fires, create crude blow guns, and fling feces at guards. Furthermore, the prison argues that less restrictive measures would be unworkable—any contact with LTSU inmates poses a significant safety risk for the guards, even a visit to deliver or retrieve a newspaper.
Banks counters that the policy does not enhance rehabilitation or security—the strict rules simply do not prevent disruptive behavior. In addition, he claims that the prison did not consider less restrictive measures. For example, by allowing a prisoner to read a newspaper under supervision and then taking it back after an hour or so, the prison could prevent an inmate from setting his reading material on fire without preventing him from reading.
The effects of the Supreme Court’s decision in this case (“Beard”) will reach far beyond the forty-odd LTSU inmates in Pittsburgh. The Court’s ruling will likely help determine exactly what First Amendment rights the nation’s 2.1 million prisoners enjoy. It will clarify how our nation’s penal system can and cannot pursue its twin goals of rehabilitation and deterrence. It also raises troubling questions about the attainability of those goals: if inmates cannot be controlled or rehabilitated by restricted newspaper access, is there any constitutional alternative that can advance these goals?
The Beard case also raises an interesting and momentous question of deference: who decides whether a given prison regulation can achieve its policy goals? Must Beard prove that the policy actually works, as the Third Circuit suggested? Or is it enough, as the district court held, that a reasonable administrator would believe that it could work? In the modern administrative state, myriad officials, from prison overseers to securities regulators, craft hundreds of regulations that may impact constitutional rights. Without sufficient judicial deference, the regulatory state may grind to a halt while judges slowly second guess the regulators’ decisions. Contrariwise, with too little oversight, unelected regulators may be tempted to ride roughshod over civil liberties in their pursuit of efficiency and control. The Beard decision will clarify how much deference the courts owe regulators within the U.S. prison system, a vast administrative apparatus that directly impacts the lives of millions and consumes tens of billions of dollars each year. By implication, they will also suggest how the balance between judge and regulator should be struck in other areas as well.
However, there is some possibility that the Beard case will decide very little. Justice Samuel Alito, then a circuit court judge, sat on the Third Circuit panel that decided Banks v. Beard in 2005 and filed a strenuous dissent from that opinion. He will almost certainly recuse himself, meaning that only eight justices will hear the case. In the event of a 4-4 decision, the judgment for Banks will be affirmed, but the decision will only bind the parties directly involved in the case.
Conclusion
Justice O’Connor, the author of Turner, was routinely pilloried and praised for opinions that concocted “multi-factored” tests to decide cases. For better or worse, these tests, of which Turner is a prime example, seem to allow Justices to decide cases by balancing the equities of a particular dispute, rather than mechanistically applying the facts to a firm legal rule. The result, particularly in criminal- and prisoners-rights cases, was often a 4-4 split, with Justice O’Connor casting the deciding vote. With Justice O’Connor retired, and Justice Alito sidelined, the Court’s four reliably left-leaning Justices likely have the votes to affirm the Third Circuit’s decision, but may not be able to establish a binding precedent.
Written by:
Dennis Chi
Daniel Fisch
Acknowledgments
Additional Resources
- Law about... Prisoners' Rights