The Constitutionality of Denying Certain Prisoners Access to Newspapers, Magazines, and Photographs

Beard v. Banks

The Pennsylvania Long Term Segregation Unit, the third of a three tiered disciplinary system over and above that of normal prison administration, houses about 40 prisoners who have committed at least one of a number of serious violations. In all three units inmates are typically held in their cells for 23 hours a day, have their visitations limited, and may not watch television or listen to radio. These conditions have a lighter and a stricter version within each level. There is a program in place to graduate from a more restrictive level to a less restrictive level within the housing unit, but most do not. This case concerns only the most restricted level (level 2) of the highest tier (LTSU). This case considers whether the denial of access to newspapers, magazines, and photographs to a special group of inmates violates the First Amendment. Legal and personal correspondence, legal and religious materials, two library books, and writing paper are still allowed.

Ronald Banks, an LTSU level 2 inmate, argues that the restrictions bear no reasonable relation to a legitimate penological objective. Turner v. Safley held that “restrictive prison regulations are permissible if they are ‘reasonably related’ to legitimate penological interests” and recognized that inmates are not necessarily deprived of important constitutional protections, including their First Amendment rights. Under Turner, the four relevant factors are (1) valid rational connection; (2) alternative means of exercising the right that are still open to inmates; (3) the impact that accommodation of that right will have on guards, inmates, and allocation of prison resources; and (4) are “ready alternatives” to fulfill governmental purpose available? Under Overton v. Bazzetta Banks bears the burden of proof, and the facts are as stipulated and set forth by Pennsylvania, with all justifiable inferences drawn in Banks’ favor (Anderson v. Liberty Lobby, Inc.).

The purposes proposed include the need to motivate better behavior, to provide an incentive to move to level 1 or out of the LTSU, and to discourage backsliding on the part of level 1 inmates. That the privileges provide a significant incentive to improve behavior is logical, therefore the “reasonableness” requirement is met. The fact that there is no alternative ways for the inmates to exercise those rights is “limited” by the ability to graduate to level 1 status, but not eliminated provides “some evidence that the regulations [a]re unreasonable” but is not conclusive under Overton. The evidence at hand indicates that the attempt to accommodate the right at issue would have a negative impact. Finally, no alternative scheme is suggested with a lesser impact on individual rights. However, since the last three factors are logically related, the fact that two of them militate in favor of the State is not sufficient, there needs to be a “reasonable,” not just logical connection.

Banks argues, and points to evidence in previous cases that suggest, that inmates at the level of the LTSU level 2 will not be influenced by such measures, and will actually benefit from contact with the outside world. This does not, in the Court’s opinion, fulfill the “specific facts” requirement under the burden of proof rules for summary judgment.

Justices Thomas and Scalia join, citing Johnson v. California (one of the cases I cut my Equal Protection teeth on), noting that “California subsequently experienced severeral instances of severe race-based prison violence … between newly arrived inmates.” Justice Scalia believes that since the Constitution contains no implicit definition of incarceration the States are free to redefine it with only the Eighth Amendment as a restriction. (Apparently prisons only became standard in 1780-1865). Policies that pass the first test, Scalia argues, necessarily fail the second, for such policies cannot provide an alternative means for inmates to exercise the rights at issue. Also, “when the ‘valid penological objective[e]’ of a prison policy is encouraging compliance with prison rules, it makes little sense to inquire into the third and fourth tests.

Justices Stevens and Ginsburg, dissenting, argue that the Fourteenth Amendment requires that even the “worst of the worst” retain their constitutional protections. This policy, without question, infringes upon the core of the First Amendment. (Because I have just waded through one of Stevens’ drawn out opinions I will spare the digestion of issues outside those discussed by the majority.) I will, however, mention that Justice Stevens takes issue with the “deprivation theory of rehabilitation,” by which any deprivation provides an incentive to rehabilitate, and without a limiting principle would provide a “rational basis” to deprive the prisoner of anything.” Additionally, since prisoners do not regain access to photographs, this cannot, according to the opinion, justify the practice in terms of LTSU-1 and LTSU-2. Stevens concludes that the record is incomplete to rule, as a matter of law, that the practice is constitutional.

Justice Ginsburg, dissenting, argues that unless the State can prove that it is entitled to summary judgment, that judgment must be withheld.