Constitutional Limits on Inmate Mail: Safeguarding Security and Free Speech

1. Part II Constitutional Law of Corrections

2. Chapter 7 – First Amendment – Inmate Mail • Introduction: First Amendment states, “Congress shall make no law . . . abridging the freedom of speech” • First Amendment freedoms are not absolute • There are restrictions and limitations • Judicial decisions help determine to what extent these liberties may be restricted

3. Chapter Outline • Prison Mail: The Background • Procunier v. Martinez • Procunier v. Navarette • Turner v. Safley • Correspondence in Foreign Languages • Thornburgh v. Abbott • Bell v. Wolfish • Inmate Postage • Nude Photos

4. Prison Mail: The Background • Prison officials saw need for restrictions on inmate mail Concerns: • Letters containing threats to security • Enclosures for use in illegal activities • Correspondence that discussed or planned illegal activities • Inflammatory content • Pornographic content • Criticism of staff

5. Prison Mail: The Background: cont’d • The practice of restricting content of mail seen by some as “censorship” • Within a prison setting, the volume of mail makes a thorough review impractical • What is practical • Search incoming mail for contraband • Identify inmates who pose security threats (such as gang members, escape risks) and pay closer attention to their mail

6. Prison Mail: The Background: cont’d • Main purpose of monitoring inmate mail is deterrence • Primary concern - incoming mail • Mail sent out of the institution ordinarily is of less concern, as it poses no direct threat to the institution’s internal security

7. Prison Mail: The Background: cont’d • Outgoing mail – while of lesser importance, screening is appropriate • To monitor such areas as security breaches, plans for criminal activity, particularly upsetting inmate problems

8. Prison Mail: The Background: cont’d • A more recent, special interest arises from the confinement of certain types of inmates – such as spies and terrorists – those associated with national security issues and acts of violence and terrorism • Measures have been enacted to prevent disclosure of classified information and to protect persons against the risk of death or serious bodily injury

9. Procunier v. Martinez (1974) • California prison regulations barred inmates from writing letters that unduly complained or magnified grievances • Regulations barred inmates sending or receiving “inappropriate” letters • Those that pertain to criminal activity or are lewd, obscene, or defamatory; contain foreign material; or are otherwise “inappropriate” • Inmates filed class-action lawsuit

10. Procunier v. Martinez: cont’d • Court rejected these prison regulations • Held censorship of inmate mail justified if • The regulation in question furthers one or more of the substantial governmental interests of security, order, and rehabilitation, and • The limitation of First Amendment freedoms is no greater than “is necessary or essential to the protection of the particular governmental interest involved”

11. Procunier v. Martinez: cont’d • Court found the California regulations to be too broad and too vague • Court required procedural safeguards when mail was rejected; these included • Notification of inmate • Author of letter is given opportunity to protest rejection • Protest reviewed by person other than one who did initial disapproval

12. Procunier v. Navarette (1978) • Inmate sued California officials claiming interference with outgoing mail – specifically, the failure to mail several letters • Officials claimed qualified immunity

13. Procunier v. Navarette: cont’d • Court held that in a civil rights action under Section 1983, prison officials are protected against liability (receive qualified immunity) if • When the conduct complained of took place, there was no established First Amendment right of inmates • Court held that, at time of Navarette, there was no clearly established constitutional right protecting inmate’s correspondence

14. Procunier v. Navarette: cont’d • If a case with these facts arose today, a different outcome likely; qualified immunity would not be immediately available • The courts would have to examine the officials’ conduct and hold it up against the established constitutional standards on correspondence (Procunier and succeeding cases)

15. Turner v. Safley (1987) • 2 Missouri regulations under review • Correspondence between inmates • Inmate right to marry

16. Turner v. Safley: cont’d Court recognized • That running a prison is an “inordinately difficult undertaking” that requires expertise, planning, and the commitment of resources • That the courts are not good places to deal with the problems of prison administration • Said “separation of powers concerns counsel a policy of judicial restraint”

17. Turner v. Safley: cont’d • Court held • When prison regulation impinges on an inmate’s constitutional rights, • That regulation is valid • If reasonably related to legitimate penological interests

18. Turner v. Safley: cont’d • Identified following four factors for assessing “reasonableness” • Must be a valid rational connection between prison regulation and the legitimate governmental interest put forth to justify it • A court must look at whether there are alternative means of exercising the right that remain open to prison inmates

19. Turner v. Safley: cont’d • The courts must look at the impact the accommodation of the asserted constitutional right will have on inmates, guards, and general allocation of prison resources • The absence of ready alternatives is evidence of the reasonableness of a prison regulation

20. Turner v. Safley: cont’d • Inmate correspondence • Missouri allowed correspondence with immediate family in other institutions, and • Correspondence between inmates in separate institutions about legal matters • Other correspondence between inmates generally not allowed

21. Turner v. Safley: cont’d • Four part “test” – 1. Is there a valid rational connection between the regulation and the legitimate governmental interest put forth? • Yes, inmate-to-inmate mail between prisons could communicate escape plans or arrange assaults, retribution, other violence

22. Turner v. Safley: cont’d • 2. Are there alternative means of exercising the right that remain open to inmates? • Regulation did not deprive inmates of all means of expression – applied only to a limited group who posed particular concerns to prison officials

23. Turner v. Safley: cont’d • 3. What would be the impact of the accommodation of the asserted constitutional right on inmates, guards, and the allocation of prison resources? • To allow could result in less safety and security for others, both inmates and staff

24. Turner v. Safley: cont’d • 4. Are there ready alternatives? • Court found there was no obvious, easy alternative to the adopted policy • Court held that “the prohibition on correspondence is reasonably related to valid correctional goals” • State regulation found constitutionally valid

25. Turner v. Safley: cont’d • Inmate marriage • State regulation did not allow – prison officials claimed marriage was not constitutionally protected

26. Turner v. Safley: cont’d • Court did not agree • State regulation held to be an exaggerated response to the security concerns of prison officials • Regulation found not to be reasonably related to legitimate penological interests

27. Turner v. Safley: cont’d • Court held that while the right to marry could be subject to necessary restrictions inherent in confinement, the beneficial elements of marriage “are sufficient to form a constitutionally protected marital relationship in the prison context”

28. Turner v. Safley: cont’d • In the 2003 case, Toms v. Taft, appeals court held prison had obligation to assist an inmate in exercising his right to marry where a refusal to assist frustrates that right • Ohio law required both parties seeking a marriage license to personally appear in the probate court to make application • State refused; appeals court held such refusal can amount to a prison regulation under Turner

29. Correspondence in Foreign Language • Supreme Court has not yet addressed • Lower courts have held • When translation service is available and • Correspondence has been allowed for other languages • Prohibiting some mail in a different language is not allowed

30. Thornburgh v. Abbott (1989) • Concerns receipt of publications – magazines, newspapers, books, and clippings from those materials

31. Thornburgh v. Abbott: cont’d • Federal prison regulation allowed inmates to receive outside publications, but allowed prison officials to reject if found detrimental to security, good order or discipline of the prison or if it might facilitate criminal activity

32. Thornburgh v. Abbott: cont’d • Could not reject on such grounds as religious, philosophical, political, social, or sexual content, or if the content was unpopular or repugnant

33. Thornburgh v. Abbott: cont’d • Examples of publications that could be disallowed • Depicted homosexuality, sado-masochism, or bestiality, provided such materials found to pose a security threat to the institution • Sexually explicit material involving children could always be excluded • Inmates and some publishers challenged

34. Thornburgh v. Abbott: cont’d • Court held applicable standard was Turner • Court ruled the regulations were reasonably related to legitimate penological interests – prison security • Court held there was no obvious alternative that could achieve the same result

35. Bell v. Wolfish (1979) • Case primarily known for dealing with jail conditions; also had a mail aspect • Mail aspect dealt with requiring inmates to receive publications only from the publisher • Basis for rule – security concerns – contraband is less likely to be secreted in publications sent from the publisher

36. Bell v. Wolfish: cont’d • Court found regulation to be reasonable, noting • Obvious security concern • There were other ways for inmates to obtain reading materials (prison library being one) • Regulation was content-neutral

37. Inmate Postage • Appeals courts have held that prison officials may limit (for non-legal mail) the number of stamps given to an indigent inmate • May also limit the number of stamps that an inmate may purchase or possess

38. Nude Photos • Lower courts have upheld ban on nude photos of wives and girlfriends • Ban based on valid, rational concern about maintaining prison order and security • Highly emotional, could lead to violent altercations • Lower court noted – “one man’s pornography may be another’s keepsake”