Andrew Fulkerson, JD, PhD Southeast Missouri State University Constitutional Rights of Prisoners Chapter 5

1. Andrew Fulkerson, JD, PhD Southeast Missouri State University Constitutional Rights of Prisoners Chapter 5 Prisoners’ Rights to Use of the Mail, Telephone and Internet

2. Mail • Incarceration means loss of full constitutional rights • Not all rights forfeited • Rights not lost may be reduced

3. Mail • Constitution gives Congress power to establish Post Office • Supreme Court held Congress and US Postal Service have exclusive right to regulate postal system. • But cases hold prison officials may place restrictions on inmate mail

4. Mail • Restrictions on inmate mail. • must be reasonable • may limit number of people inmate corresponds with • open mail • censor mail

5. Justification for Mail Restrictions • Maintain security • Stop contraband • Intercept escape plans • Stop incendiary writings

6. Justification for Mail Restrictions • Administration of prison • Enforcement of restrictions on mail uses resources • More mail requires more staff • Increases cost

7. Justification for Mail Restrictions • Rehabilitation • May limit to and from whom inmate may receive mail

8. Control of Mail -Traditional Approach • Control of inmate mail is an administrative matter • Courts avoid interference with administrative matters • Separate Constitutional right must be involved • Courts following this view have: • refused to prevent warden from refusing to mail inmate’s manuscript to a publisher. No Constitutional rights involved • refused to consider case where warden refused to allow inmate to take correspondence course

9. Control of Mail -New Approach • Purpose of inspecting inmate mail is : • prevent contraband from entering prison • detect escape plans • Mail restrictions based on above purposes always upheld

10. Control of Mail • When mail is restricted that has no contraband or illegal plans, courts formerly would not review (traditional view); but now courts will review (new approach) • Prison officials must justify actions • Outgoing mail censorship limited to plans for illegal activity, such as escape or smuggling contraband

11. Control of Mail • Procunier v. Martinez, 416 U.S. 396 (1974)

12. Control of Mail • Turner v. Safley, 482 U.S. 78 (1987)

13. Control of Mail • Thornburgh v. Abbott, 490 U.S. 401 (1989)

14. Communication With Courts • State may not impair inmate’s right to apply to federal court for writ of habeas corpus. • Ex parte Hull - There Michigan inmate had prepared a writ and wanted to file in court. • State regulation required that pleading first go through institutional welfare officer; if he approved, then to the legal section of the parole board; then if found to be properly drawn, to be filed in the appropriate court. • US Supreme Court found this unconstitutional. Only the Court, not the state agencies, have any authority to rule on any aspect of proposed court pleading.

15. Communication With Courts • Mail between inmate and attorneys, government officials, may only be opened in presence of the inmate and only to verify the addressee • Legal mail (clearly identified as such) may be inspected for contraband only in presence of inmate • Prison officials may inspect for contraband, but may not read

16. Communication With Attorneys • Related to inmate’s right to access to the courts is the right to communicate with attorneys • Inmate who does not have counsel has right to try to obtain counsel, and may mail uncensored letters to attorneys • May also mail uncensored mail to legal organizations, such as ACLU • This right is limited to legal matters

17. Communication With Attorneys-Censorship • Does prison have right to read mail to and from attorney? • Early cases: Censoring inmate mail is a matter of prison administration which courts are reluctant to review • Necessary to review inmate mail to maintain prison security (prevent escapes, etc).

18. Communication With Attorneys-Censorship • Current case law • Prison officials may check for contraband in presence of inmate • Contents may not be read by officials • Not censorship • No chilling effect on communication • Reasonable regulation on inmate-attorney mail • Attorney must first identify himself in signed letter • or inmate provide name and business address of aty

19. Communication With Non-Judicial Officials • First Amendment right to petition government for redress of grievances • For prisoners this may take form of complaining of conditions of confinement • Complaints may be made to administrative agencies rather than courts • Faster than courts • May be effective

20. Communication With Non-Judicial Officials • Cases have enjoined prison officials from preventing inmates from mailing letters to state attorney general, governor, senators, pardon agency, etc. • Taylor v. Sterrett, 532 F.2d 462 (5th Cir. 1976) • Prison officials preventing inmate from mailing letters to government agencies. Court held they could not read such mail, but only check for contraband.

21. Communication With Non-Judicial Officials • Prison officials may not punish an inmate for complaining about conditions. • Punishment is same as preventing communication • Cavey v. Williams - warden ordered to pay compensatory and punitive damages because he punished inmate who complained about prison policies

22. Communication With News Media Through Mail • First Amend. prohibits govt. interference with freedom of speech and press • Courts interpret restrictions: • 1st amendment restriction must have a substantial and controlling state interest. • and restriction be least drastic method of reaching goal

23. Communication With News Media Through Mail • Prison ban on inmate letters to media limits 1st Amendment freedom • Inmate’s right to free speech • Public’s right to know

24. Communication With Inmates in Other Institutions • Courts give broad discretion to prison officials in whether to permit inmates to correspond with inmates in other prisons.

25. Communication With Inmates in Other Institutions • Johnson v. Avery SCOTUS held that when prison officials fail to provide adequate legal assistance to inmates, they cannot prevent inmate’s “jailhouse lawyer” from giving legal assistance. • 9th Circuit Court of Appeals held prohibition of correspondence between inmate and his jailhouse lawyer in another institution violated rights. • 8th Circuit held that regulation prohibiting correspondence between inmates housed in different units of same institution was valid.

26. Communication With Inmates in Other Institutions • Shaw v. Murphy, Sp. Ct. held inmates have no special 1st Amendment right to provide legal assistance to other inmates that enhances the protections under Turner • Some 1st amendment rights are inconsistent with being incarcerated • Unrestricted mail between inmates and jailhouse lawyers could result in other unprotected communication (escape, violence, etc).

27. Inflammatory Material • First Amendment freedom of speech and press includes right to receive information and ideas. Exceptions: • Pornography: not protected by 1st Amendment • Activity that is “clear and present danger” of inciting imminent lawless action.

28. Inflammatory Material • What literature is clear and present danger in context of prison environment? • Material that tells how to make meth from items available in prison. • “How to” books on escape, smuggling drugs, etc. • Social or political writings: • Battle v. Anderson, officials had burden of proving that book about Elijah Muhammad and Black Muslim religion was threat to prison security, discipline and order.

29. Obscene Material • Obscene material not protected by 1st Amendment, so it may be regulated by state and federal governments. • Federal govt. regulate by refusing to mail • State govt. regulate by confiscating and punishing

30. Obscene Material • Sexually explicit material (may not be obscene) • May be excluded from prison on grounds: • detrimental to rehabilitation • leads to deviate sexual behavior

31. Obscene Material • Regulations may not be overbroad • Should not exclude “art”

32. Obscenity - Standards • Material is obscene if the average person applying community standards finds the dominant theme of the material appeals to the “prurient interest.” • What is the “community standard”? • one justice-means local standards • one said a national standard • Justice Blackman said it is impossible to define, but “I know it when I see it.”

33. Racially Oriented Material • Equal protection clause of 14th amendment, provides similarly situated persons should be treated in similar manner.

34. Racially Oriented Material • Several institutions banned black-oriented publications, while permitting white-oriented publications • Publications were not subversive • Black inmates sued claiming violation of equal protection. Jackson v. Godwin, 400 F.2d 529 (5th Cir. 1968) • State argued creation of banned list was within their discretion; and entry of banned publications into the prison would be harmful to prison security and order. • Court ruled exclusion of black-oriented magazines and allowance of white magazines violated equal protection clause.

35. Mail Lists • Prisons control correspondence by requiring inmate send and receive mail only with people who have been approved by the prison • Names can be added and deleted any time

36. Mail Lists • Justification • Inspecting and reading mail is time consuming, and requires a limit on total volume of mail • Rehabilitation concept requires that controls be placed on whom the prisoner corresponds with • Most cases held use of mail lists is reasonable • Exception for pretrial detainees. Cases go both ways

37. Mail Lists • Mail lists closely scrutinized by courts. • Officials must justify mail list regulations • Regulations must meet requirements of Procunier. • Must meet reasonable state interest • Restriction upon constitutional rights no greater than necessary to accomplish state goal. • Prohibiting correspondence with minors without first having consent of minor’s parents found to violate 1st Amendment.

38. Books and Packages • Supreme court upheld regulations requiring that books come directly from publisher. Rationale: • Necessary to maintain prison security • Books used to smuggle contraband • Less risk when from publisher

39. Books and Packages • Also approved ban on packages from outside • State has valid interest in maintaining prison order and security • Therefore, may ban packages from outside • No constitutional right to receive packages. • Distinguish between books and packages. • (books are ideas protected under 1st Amend/ packages are just stuff)

40. Internet • Access to internet • Constitutional issues • Limitations • State interest in limiting internet access

41. Internet • California prohibited mailing material downloaded from internet • Reasonable restriction? • Court held this unreasonable • If inmate can have material downloaded and mailed, should inmate be able to download directly?

42. Telephone • Courts ruled no legitimate interest in not allowing inmates to communicate with family and friends by telephone. • Protected by 1st Amendment

43. Telephone • Limitations • Security concerns • Court will review for unreasonable restrictions

44. Telephone • Washington v. Reno, 35 F3d.1093 (6th Cir. 1994) • BOP replaced collect call system with direct dial system monitored by prison. • Inmates buy minutes of phone time • Indigent inmates guaranteed minimum of one collect call per month, and allowed legal calls to attorney • Inmates allowed 30 numbers on call list, and may be increased if inmate’s situation makes more reasonable (ex. Large family) • Inmates complaints about new system were resolved by amendments to regulations.

45. Telephone • State and local telephone plans • Many use collect call phones • Cost of calls • Equal protection arguments

46. Telephone • Cellular telephone access