This article is part of an online symposium on the First Amendment Center Online concerning Judge Samuel Alito’s First Amendment jurisprudence.
“Prison walls do not form a barrier separating the inmate from the protections of the Constitution.” Justice Sandra Day O’Connor wrote these words in the Supreme Court's 1987 ruling in Turner v. Safley, a case examining restrictions on inmates’ rights regarding marriage and mail.
It remains debatable whether the nominee selected to take O’Connor’s seat — Judge Samuel A. Alito Jr. — will pause to ponder those words when he reviews constitutional claims raised by inmates. In case after case, the 3rd U.S. Circuit Court of Appeals judge has sided with prison officials and rejected inmate First Amendment claims.
At one level, such results are not surprising given the deferential standard articulated by the high court in Turner v. Safley. Under that standard, restrictions that affect inmates’ constitutional rights are constitutional so long as they are reasonably related to legitimate penological concerns — such as security and rehabilitation. The Safley standard requires courts to examine the following four factors:
- Whether there is a valid, rational relationship between the prison regulation and the prison interest.
- Whether there are alternative means for inmates to exercise their constitutional rights.
- Whether accommodating inmates will negatively affect guards and other inmates.
- Whether there are ready alternatives to the regulation that impose only a de minimis cost on prison interests and show that the regulation is an “exaggerated response to prison concerns.”
Prisoners’ right to receive publications
However, Judge Alito’s deferential application of the deferential Safley standard seems nearly always to result in decisions favoring prison officials. In Banks v. Beard, 399 F.3d 134 (3rd Cir. 2005), a three-judge panel of the 3rd Circuit ruled 2-1 that state prison limitations on inmates’ right to receive most magazines, newspapers, periodicals and photographs could not be supported. Alito cast the dissenting vote.
The prison officials had argued that the regulations for these inmates in the long-term segregation unit — which deprived them of photographs of their family members — were necessary for security and rehabilitative reasons. They contended that inmates could use the printed materials to start fires and fling human feces at guards. They also argued that the policy serves rehabilitative purposes by giving inmates an incentive to behave and move to Level 1 status where they could receive more printed materials.
The panel majority found “no evidence in the record” that the ban on most magazines and periodicals (legal and religious materials were allowed) would further security concerns. The majority also pointed out that there are many other materials that inmates could use in a negative fashion. “There are many other non-prohibited means for the inmates to fuel fires, hurl waste, conceal contraband and create weapons,” the majority wrote. With respect to the rehabilitation justification, the majority noted that prison officials again “offered no evidence that the rule achieves or could achieve its stated rehabilitative purpose.” The majority cited case law for the proposition that giving inmates access to information and education is correlated to rehabilitation.
High level of deference
In his dissent in Beard, Alito found that “these regulations are reasonably related to the legitimate penological goal of curbing prison misconduct.” He noted that an inmate with a “record of reformed behavior” might be able to make an as-applied challenge to the policy, but that the policy on its face was constitutional. The analysis showed a very high level of deference to prison officials.
A pattern of deference to prison administrators by the former federal prosecutor repeats itself in his other opinions. In Waterman v. Farmer (1999), Alito wrote for a unanimous three-judge panel rejecting a challenge to a provision restricting sex-offender inmates from possessing “sexually oriented material.” Alito upheld the pornography ban as a reasonable means of rehabilitation. He was not troubled that the statute’s legislative history did not mention rehabilitation.
In the 2002 ruling Fraise v. Terhune, Alito wrote for a divided three-judge panel that upheld the authority of the New Jersey Department of Corrections to classify the Five Percenters (a group that splintered from the Nation of Islam in the 1960s) as a “security threat group” dangerous to prison safety. Applying the Safley standard, Alito concluded “there is a rational connection between New Jersey’s STG regulations and the legitimate and neutral objective of maintaining order and security within the prison system.”
Writing in dissent, Judge Marjorie Rendell declared that while Safley requires deference to prison officials, “we must make certain that we do not convert the Turner v. Safley test into a rubber stamp.”
A 6th Circuit judge, Gilbert S. Merritt, has said that Turner v. Safley is not a rubber stamp for prison officials and that society should recognize that inmates still possess constitutional rights. In his opinion for the 6th Circuit in a prisoner freedom-of-association case, Bazzetta v. McGinnis (reversed by the Supreme Court in Overton v. Bazzetta), Merritt quoted a 1910 Winston Churchill speech:
“The mood and temper of the public in regard to the treatment of crime and criminals is one of the most unfailing tests of the civilization of any country. A calm and dispassionate recognition of the rights of the accused against the state, and even of convicted criminals against the state … these are the symbols which in the treatment of crime and criminals mark and measure the stored-up strength of a nation, and are the sign and proof of the living virtue in it.”
Much of the same spirit is captured in Justice Thurgood Marshall’s memorable concurrence in the high court's 1974 ruling Procunier v. Martinez:
“When the prison gates slam behind an inmate, he does not lose his human quality; his mind does not become closed to ideas; his intellect does not cease to feed on a free and open interchange of opinions; his yearning for self-respect does not end; nor is his quest for self-realization concluded. If anything, the needs for identity and self-respect are more compelling in the dehumanizing prison environment. Whether an O. Henry writing his short stories in a jail cell or a frightened young inmate writing his family, a prisoner needs a medium for self-expression. It is the role of the First Amendment and this Court to protect those precious personal rights by which we satisfy such basic yearnings of the human spirit.”
Whether Alito as a former prosecutor agrees with this assessment is anyone’s guess; his voting record suggests he is not nearly as sensitive to prisoner claims as Judges Rendell and Merritt. However, Alito’s First Amendment jurisprudence in this area is not unusual for the current federal judiciary. It doesn’t even place him far outside the views of his potential new colleagues at the nation's court of last resort. The current Court has shown itself not very sensitive to inmate First Amendment claims, as its recent decisions in Shaw v. Murphy (2001) and Overton v. Bazzetta (2003) attest. As First Amendment Center scholar Ronald K.L. Collins wrote of the Rehnquist Court in 2004: “No one on the current Court seems to like free-speech claims raised by prisoners — they lose unanimously.”
If confirmed, Alito will have the opportunity to make his mark on much First Amendment jurisprudence including whether it applies, at all, within prison walls.