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Ruling bolsters 'deprivation' of prisoner rights

By David L. Hudson Jr.
First Amendment Center research attorney

Nearly 20 years ago, Supreme Court Justice Sandra Day O’Connor wrote that “prison walls do not form a barrier separating inmates from the protections of the Constitution.” But in recent years, the U.S. Supreme Court has erected a wall that has proven quite tough for inmates to scale when alleging First Amendment violations. The Court’s June 28 ruling in Beard v. Banks continued that trend.

The Court has shown itself to be a friendly forum for prison officials when confronted with inmate First Amendment claims. In Shaw v. Murphy (2001), the Court unanimously rejected an inmate’s First Amendment right to provide legal assistance to another inmate. In Overton v. Bazzetta (2003), the Court unanimously upheld rather broad restrictions on inmate-visitation rights. Now the Court has expanded its denial of inmate rights by upholding even more onerous restrictions in Beard v. Banks under a “deprivation” theory of behavior modification.

The background of the case: In April 2000, the Pennsylvania Department of Corrections created the Long Term Segregation Unit to house inmates who displayed persistent disciplinary problems. Corrections officials imposed greater restrictions on LTSU Level 2 inmates, including the banning of newspapers, magazines and even personal photographs of family members.

Prison officials justified the policy as a means of behavior modification — saying that depriving inmates of a privilege (reading material) might cause at least some to improve their behavior. Officials also cited safety reasons, saying inmates could use reading materials to start fires or fling feces at guards.

Ronald Banks, formerly an inmate in LTSU Level 2, filed a class-action lawsuit after he was prohibited from receiving The Christian Science Monitor newspaper. Banks alleged that depriving inmates of even personal photos of their family members served no legitimate safety or rehabilitation interests.

A divided three-judge panel of the 3rd U.S. Circuit Court of Appeals rejected the prison policy as an exaggerated response that did not advance prison officials’ stated interests.

“We fail to see how the [Department of Corrections] could have reasonably thought that the challenged policy, which permits an inmate to have in his cell 10 sheets of writing paper and one ... box full of legal or religious periodicals or texts, would meaningfully improve prison security by forbidding him one copy of the Graterfriends prison newsletter,” Judge Julio Fuentes wrote for the majority.

Judge Samuel A. Alito Jr. (now on the U.S. Supreme Court) dissented, writing that “on their face, these regulations are reasonably related to the legitimate penological goal of curbing prison misconduct.”

Jeffrey Beard, the secretary of the Pennslyvania Department of Corrections, appealed to the U.S. Supreme Court. True to form, the Court reversed and ruled in favor of the prison officials by a vote of 6-2. (Justice Alito recused himself because he had sat on the case at the 3rd Circuit.)

Justice Stephen Breyer in his plurality opinion purported to apply the Court’s deferential standard toward prisons in Turner v. Safley (1987), which asks whether a prison policy that affects an inmate’s constitutional (including First Amendment) rights is reasonably related to legitimate penological concerns, such as safety or rehabilitation. A key inquiry under this deferential standard is whether there is a “valid, rational connection” between the prison regulation and the governmental interest. Turner v. Safley — which examined the constitutionality of restrictions on prisoners’ rights to marry and to mail letters to inmates in other prisons — put forth three other factors: whether there are alternative means for the inmate to exercise his rights, the impact that accommodating the right would have on prison officials and whether there are “ready alternatives” for advancing the government's interest in prison security.

Breyer mentioned the Turner v. Safley factors, but then wrote that “the real task in this case is not balancing these factors, but rather determining whether the Secretary shows more than simply a logical relation, that is, whether he shows a reasonable relation.” Breyer said prison officials' statements and depositions (though there was never a trial) established that the restrictive policy depriving inmates of privileges was a reasonable way to elicit positive behavior.

The acceptance of the deprivation theory may be the most disquieting aspect of the Court’s decision. The Court seemed to approve prison officials’ justification of depriving inmates of privileges to encourage better behavior. Many punishments and deprivations may improve behavior, but such an outcome doesn’t necessarily square them with the Constitution.

In an amicus brief, the Becket Fund for Religious Liberty warned that the “deprivation theory of behavior modification” could easily lead to the suppression of all inmates’ constitutional rights.

Anthony Picarello, president and general counsel of the Becket Fund, said in reaction to Beard v. Banks: “Prison officials shouldn't be allowed to treat fundamental constitutional rights as if they were mere privileges, like weight room access or cigarettes, which can be withdrawn at will.”

Justice John Paul Stevens made this point, as well, writing in dissent: “This justification has no limiting principle; if sufficient, it would provide a ‘rational basis’ for any regulation that deprives a prisoner of a constitutional right so long as there is at least a theoretical possibility that the prisoner can regain the right at some future time by modifying his behavior.”

According to Stevens, the Court’s reasoning in Beard v. Banks “would mean that the marriage ban in Turner could be justified because the prohibition furnished prisoners with an incentive to behave well and thus earn early release.”

Jeff Monks, staff attorney with the ACLU National Prison Project and primary author of the group’s amicus brief, said:

“We absolutely are concerned with the use of the deprivation theory of behavior modification. Potentially prison officials could justify any deprivation of First Amendment rights on the behavior modification theory.

“If you take this theory and run with it," Monks added, "prison officials could justify any First Amendment restriction and inmates would only be left with the 8th Amendment prohibition against cruel and unusual punishment.”

Nearly 20 years after Turner v. Safley, the Court appears to have solidified an impressive wall separating prison inmates from the Constitution.


Prisons can restrict inmates' reading matter

Justices vote 6-2 in Beard v. Banks that state policy doesn't violate free speech of troublesome inmates.
  • Quick look at ruling 06.28.06

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    By Tony Mauro When issue took center stage, court-watchers found rulings ‘a mixed bag.’ 07.06.06

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    Turner v. Safley: high drama, enduring precedent
    By David L. Hudson Jr. More than 20 years after Supreme Court's decision, Safley still governs as leading standard for assessing inmate free-expression claims. 05.01.08

    Ruling against expression is no music to inmates’ ears
    By David L. Hudson Jr. 3rd Circuit defers to Pennsylvania prison officials's claims that allowing inmates to play in independent bands posed security risk. 07.23.08

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