No. 85-1384
482 U.S. 78
107 S.Ct. 2254
96 L.Ed.2d 64
Argued January 13, 1987
Decided June 1, 1987
Certiorari
to the U.S. Court of Appeals for the Eighth Circuit
Syllabus: Respondent inmates brought a class action challenging two
regulations promulgated by the Missouri Division of Corrections. The first
permits correspondence between immediate family members who are inmates at
different institutions within the Division’s jurisdiction, and between inmates “concerning
legal matters,” but allows other inmate correspondence only if each inmate’s
classification/treatment team deems it in the best interests of the parties.
The second regulation permits an inmate to marry only with the prison
superintendent’s permission, which can be given only when there are “compelling
reasons” to do so. Testimony indicated that generally only a pregnancy or the
birth of an illegitimate child would be considered “compelling.” The Federal
District Court found both regulations unconstitutional, and the Court of
Appeals affirmed.
Held:
1. The lower courts erred in ruling
that Procunier v. Martinez, 416
U.S. 396 , and its progeny require the application of a strict scrutiny
standard of review for resolving respondents’ constitutional complaints.
Rather, those cases indicate that a lesser standard is appropriate whereby
inquiry is made into whether a prison regulation that impinges on inmates’
constitutional rights is “reasonably related” to legitimate penological
interests. In determining reasonableness, relevant factors include (a) whether
there is a “valid, rational connection” between the regulation and a legitimate
and neutral governmental interest put forward to justify it, which connection
cannot be so remote as to render the regulation arbitrary or irrational; (b)
whether there are alternative means of exercising the asserted constitutional
right that remain open to inmates, which alternatives, if they exist, will
require a measure of judicial deference to the corrections officials’
expertise; (c) whether and the extent to which accommodation of the asserted
right will have an impact on prison staff, on inmates’ liberty, and on the
allocation of limited prison resources, which impact, if substantial, will
require particular deference to corrections officials; and (d) whether the
regulation represents an “exaggerated response” to prison concerns, the
existence of a ready alternative that fully accommodates the prisoner’s [482 U.S. 78, 79] rights
at de minimis costs to valid penological interests being evidence of
unreasonableness. Pp. 84-91.
2. The Missouri inmate
correspondence regulation is, on the record here, reasonable and facially
valid. The regulation is logically related to the legitimate security concerns
of prison officials, who testified that mail between prisons can be used to
communicate escape plans, to arrange violent acts, and to foster prison gang
activity. Moreover, the regulation does not deprive prisoners of all means of
expression, but simply bars communication with a limited class of people -
other inmates - with whom authorities have particular cause to be concerned.
The regulation is entitled to deference on the basis of the significant impact
of prison correspondence on the liberty and safety of other prisoners and
prison personnel, in light of officials’ testimony that such correspondence
facilitates the development of informal organizations that threaten safety and
security at penal institutions. Nor is there an obvious, easy alternative to
the regulation, since monitoring inmate correspondence clearly would impose
more than a de minimis cost in terms of the burden on staff resources required
to conduct item-by-item censorship, and would create an appreciable risk of
missing dangerous communications. The regulation is content neutral and does
not unconstitutionally abridge the First Amendment rights of prison inmates.
Pp. 91-93.
3. The constitutional right of
prisoners to marry is impermissibly burdened by the Missouri marriage
regulation. Pp. 94-99.
(a) Prisoners have a
constitutionally protected right to marry under Zablocki v. Redhail, 434
U.S. 374 . Although such a marriage is subject to substantial restrictions
as a result of incarceration, sufficient important attributes of marriage
remain to form a constitutionally protected relationship. Butler v. Wilson, 415
U.S. 953 , distinguished. Pp. 94-96.
(b) The regulation is facially
invalid under the reasonable relationship test. Although prison officials may
regulate the time and circumstances under which a marriage takes place, and may
require prior approval by the warden, the almost complete ban on marriages here
is not, on the record, reasonably related to legitimate penological objectives.
The contention that the regulation serves security concerns by preventing “love
triangles” that may lead to violent inmate confrontations is without merit,
since inmate rivalries are likely to develop with or without a formal marriage
ceremony. Moreover, the regulation’s broad prohibition is not justified by the
security of fellow inmates and prison staff, who are not affected where the
inmate makes the private decision to marry a civilian. Rather, the regulation
represents an exaggerated response to the claimed security objectives, since
allowing marriages unless the warden finds a threat to security, order, or the
public safety [482 U.S. 78, 80]
represents an obvious, easy alternative that would accommodate
the right to marry while imposing a de minimis burden. Nor is the regulation
reasonably related to the articulated rehabilitation goal of fostering
self-reliance by female prisoners. In requiring refusal of permission to marry
to all inmates absent a compelling reason, the regulation sweeps much more
broadly than is necessary, in light of officials’ testimony that male inmates’
marriages had generally caused them no problems and that they had no objections
to prisoners marrying civilians. Pp. 96-99. 777 F.2d 1307, affirmed in part,
reversed in part, and remanded.
O’CONNOR, J., delivered the opinion of the Court, in which REHNQUIST, C. J.,
and WHITE, POWELL, and SCALIA, JJ., joined, and in Part III-B of which BRENNAN,
MARSHALL, BLACKMUN, and STEVENS, JJ., joined. STEVENS, J., filed an opinion
concurring in part and dissenting in part, in which BRENNAN, MARSHALL, and
BLACKMUN, JJ., joined, post, p. 100.
JUSTICE O’CONNOR delivered the opinion of the Court.
This case requires us to determine the constitutionality of regulations
promulgated by the Missouri Division of Corrections relating to inmate
marriages and inmate-to-inmate correspondence. The Court of Appeals for the
Eighth Circuit, applying a strict scrutiny analysis, concluded that the
regulations violate respondents’ constitutional rights. We hold that a lesser
standard of scrutiny is appropriate in determining the constitutionality of the
prison rules. Applying that standard, we uphold the validity of the
correspondence regulation, but we conclude that the marriage restriction cannot
be sustained.
Respondents brought this class action for injunctive relief and damages in
the United States District Court for the Western District of Missouri. The
regulations challenged in the complaint were in effect at all prisons within
the jurisdiction of the Missouri Division of Corrections. This litigation
focused, however, on practices at the Renz Correctional Institution (Renz),
located in Cedar City, Missouri. The Renz prison population includes both male
and female prisoners of varying security levels. Most of the female prisoners
at Renz are classified as medium or maximum security inmates, while most of the
male prisoners are classified as minimum security offenders. Renz is used on
occasion to provide protective custody for inmates from other prisons in the
Missouri system. The facility originally was built as a minimum security prison
farm, and it still has a minimum security perimeter without guard towers or
walls.
Two regulations are at issue here. The first of the challenged regulations
relates to correspondence between inmates at different institutions. It permits
such correspondence “with immediate family members who are inmates in other
correctional institutions,” and it permits correspondence between inmates “concerning
legal matters.” Other correspondence between inmates, however, is permitted
only [482 U.S. 78, 82] if
“the classification/treatment team of each inmate deems it in the best interest
of the parties involved.” App. 34. Trial testimony indicated that as a matter
of practice, the determination whether to permit inmates to correspond was
based on team members’ familiarity with the progress reports, conduct
violations, and psychological reports in the inmates’ files rather than on
individual review of each piece of mail. See 777 F.2d 1307, 1308 (CA8 1985). At
Renz, the District Court found that the rule “as practiced is that inmates may
not write non-family inmates.” 586 F. Supp. 589, 591 (WD Mo. 1984).
The challenged marriage regulation, which was promulgated while this
litigation was pending, permits an inmate to marry only with the permission of
the superintendent of the prison, and provides that such approval should be
given only “when there are compelling reasons to do so.” App. 47. The term “compelling”
is not defined, but prison officials testified at trial that generally only a
pregnancy or the birth of an illegitimate child would be considered a
compelling reason. See 586 F. Supp., at 592. Prior to the promulgation of this
rule, the applicable regulation did not obligate Missouri Division of
Corrections officials to assist an inmate who wanted to get married, but it
also did not specifically authorize the superintendent of an institution to
prohibit inmates from getting married. Ibid.
The District Court certified respondents as a class pursuant to Federal Rule
of Civil Procedure 23. The class certified by the District Court includes “persons
who either are or may be confined to the Renz Correctional Center and who
desire to correspond with inmates at other Missouri correctional facilities.”
It also encompasses a broader group of persons “who desire to . . . marry
inmates of Missouri correctional institutions and whose rights of . . .
marriage have been or will be violated by employees of the Missouri Division of
Corrections.” See App. 21-22. [482
U.S. 78, 83]
The District Court issued a memorandum opinion and order finding both the
correspondence and marriage regulations unconstitutional. The court, relying on
Procunier v. Martinez, 416
U.S. 396, 413 -414 (1974), applied a strict scrutiny standard. It held the
marriage regulation to be an unconstitutional infringement upon the fundamental
right to marry because it was far more restrictive than was either reasonable
or essential for the protection of the State’s interests in security and
rehabilitation. 586 F. Supp., at 594. The correspondence regulation also was
unnecessarily broad, the court concluded, because prison officials could
effectively cope with the security problems raised by inmate-to-inmate
correspondence through less restrictive means, such as scanning the mail of
potentially troublesome inmate. Id., at 596. The District Court also held that
the correspondence regulation had been applied in an arbitrary and capricious
manner.
The Court of Appeals for the Eighth Circuit affirmed. 777 F.2d 1307 (1985).
The Court of Appeals held that the District Court properly used strict scrutiny
in evaluating the constitutionality of the Missouri correspondence and marriage
regulations. Under Procunier v. Martinez, supra, the correspondence regulation
could be justified “only if it furthers an important or substantial
governmental interest unrelated to the suppression of expression, and the
limitation is no greater than necessary or essential to protect that interest.”
777 F.2d, at 1310. The correspondence regulation did not satisfy this standard
because it was not the least restrictive means of achieving the security goals
of the regulation. In the Court of Appeals’ view, prison officials could meet
the problem of inmate conspiracies by exercising their authority to open and
read all prisoner mail. Id., at 1315-1316. The Court of Appeals also concluded
that the marriage rule was not the least restrictive means of achieving the
asserted goals of rehabilitation and security. The goal of rehabilitation could
be met through alternatives such [482
U.S. 78, 84] as counseling, and violent “love triangles” were as
likely to occur without a formal marriage ceremony as with one. Ibid. Absent
evidence that the relationship was or would become abusive, the connection
between an inmate’s marriage and the subsequent commission of a crime was
simply too tenuous to justify denial of this constitutional right. Id., at
1315.
We granted certiorari, 476
U.S. 1139 (1986).
We begin, as did the courts below, with our decision in Procunier v.
Martinez, supra, which described the principles that necessarily frame our
analysis of prisoners’ constitutional claims. The first of these principles is
that federal courts must take cognizance of the valid constitutional claims of
prison inmates. Id., at 405. Prison walls do not form a barrier separating prison
inmates from the protections of the Constitution. Hence, for example, prisoners
retain the constitutional right to petition the government for the redress of
grievances, Johnson v. Avery, 393
U.S. 483 (1969); they are protected against invidious racial discrimination
by the Equal Protection Clause of the Fourteenth Amendment, Lee v. Washington, 390
U.S. 333 (1968); and they enjoy the protections of due process, Wolff v.
McDonnell, 418
U.S. 539 (1974); Haines v. Kerner, 404
U.S. 519 (1972). Because prisoners retain these rights, “[w]hen a prison
regulation or practice offends a fundamental constitutional guarantee, federal
courts will discharge their duty to protect constitutional rights.” Procunier
v. Martinez, 416
U.S., at 405 -406.
A second principle identified in Martinez, however, is the recognition that “courts
are ill equipped to deal with the increasingly urgent problems of prison
administration and reform.” Id., at 405. As the Martinez Court acknowledged, “the
problems of prisons in America are complex and intractable, and, more to the
point, they are not readily susceptible of resolution by decree.” Id., at
404-405. Running a prison [482
U.S. 78, 85] is an inordinately difficult undertaking that
requires expertise, planning, and the commitment of resources, all of which are
peculiarly within the province of the legislative and executive branches of
government. Prison administration is, moreover, a task that has been committed
to the responsibility of those branches, and separation of powers concerns
counsel a policy of judicial restraint. Where a state penal system is involved,
federal courts have, as we indicated in Martinez, additional reason to accord
deference to the appropriate prison authorities. See id., at 405.
Our task, then, as we stated in Martinez, is to formulate a standard of
review for prisoners’ constitutional claims that is responsive both to the “policy
of judicial restraint regarding prisoner complaints and [to] the need to
protect constitutional rights.” Id., at 406. As the Court of Appeals
acknowledged, Martinez did not itself resolve the question that it framed.
Martinez involved mail censorship regulations proscribing statements that “unduly
complain,” “magnify grievances,” or express “inflammatory political, racial,
religious or other views.” Id., at 415. In that case, the Court determined that
the proper standard of review for prison restrictions on correspondence between
prisoners and members of the general public could be decided without resolving
the “broad questions of `prisoners’ rights.’“ Id., at 408. The Martinez Court
based its ruling striking down the content-based regulation on the First
Amendment rights of those who are not prisoners, stating that “[w]hatever the
status of a prisoner’s claim to uncensored correspondence with an outsider, it
is plain that the latter’s interest is grounded in the First Amendment’s
guarantee of freedom of speech.” Id., at 408. Our holding therefore turned on
the fact that the challenged regulation caused a “consequential restriction on
the First and Fourteenth Amendment rights of those who are not prisoners.” Id.,
at 409 (emphasis added). We expressly reserved the question of the proper
standard of [482 U.S. 78, 86]
review to apply in cases “involving questions of `prisoners’
rights.’“ Ibid.
In four cases following Martinez, this Court has addressed such “questions
of `prisoners’ rights.’“ The first of these, Pell v. Procunier, 417
U.S. 817 (1974), decided the same Term as Martinez, involved a
constitutional challenge to a prison regulation prohibiting face-to-face media
interviews with individual inmates. The Court rejected the inmates’ First
Amendment challenge to the ban on media interviews, noting that judgments
regarding prison security “are peculiarly within the province and professional
expertise of corrections officials, and, in the absence of substantial evidence
in the record to indicate that the officials have exaggerated their response to
these considerations, courts should ordinarily defer to their expert judgment
in such matters.” 417
U.S., at 827 .
The next case to consider a claim of prisoners’ rights was Jones v. North
Carolina Prisoners’ Union, 433
U.S. 119 (1977). There the Court considered prison regulations that
prohibited meetings of a “prisoners’ labor union,” inmate solicitation of other
inmates to join the union, and bulk mailings concerning the union from outside
sources. Noting that the lower court in Jones had “got[ten] off on the wrong
foot . . . by not giving appropriate deference to the decisions of prison
administrators and appropriate recognition to the peculiar and restrictive
circumstances of penal confinement,” id., at 125, the Court determined that the
First and Fourteenth Amendment rights of prisoners were “barely implicated” by
the prohibition on bulk mailings, see id., at 130, and that the regulation was “reasonable”
under the circumstances. The prisoners’ constitutional challenge to the union
meeting and solicitation restrictions was also rejected, because “[t]he ban on
inmate solicitation and group meetings . . . was rationally related to the
reasonable, indeed to the central, objectives of prison administration.” Id.,
at 129. [482 U.S. 78, 87]
Bell v. Wolfish, 441
U.S. 520 (1979), concerned a First Amendment challenge to a Bureau of
Prisons rule restricting inmates’ receipt of hardback books unless mailed
directly from publishers, book clubs, or bookstores. The rule was upheld as a “rational
response” to a clear security problem. Id., at 550. Because there was “no
evidence” that officials had exaggerated their response to the security problem,
the Court held that “the considered judgment of these experts must control in
the absence of prohibitions far more sweeping than those involved here.” Id.,
at 551. And in Block v. Rutherford, 468
U.S. 576 (1984), a ban on contact visits was upheld on the ground that “responsible,
experienced administrators have determined, in their sound discretion, that
such visits will jeopardize the security of the facility,” and the regulation
was “reasonably related” to these security concerns. Id., at 589, 586.
In none of these four “prisoners’ rights” cases did the Court apply a
standard of heightened scrutiny, but instead inquired whether a prison regulation
that burdens fundamental rights is “reasonably related” to legitimate
penological objectives, or whether it represents an “exaggerated response” to
those concerns. The Court of Appeals in this case nevertheless concluded that
Martinez provided the closest analogy for determining the appropriate standard
of review for resolving respondents’ constitutional complaints. The Court of
Appeals distinguished this Court’s decisions in Pell, Jones, Bell, and Block as
variously involving “time, place, or manner” regulations, or regulations that
restrict “presumptively dangerous” inmate activities. See 777 F.2d, at
1310-1312. The Court of Appeals acknowledged that Martinez had expressly
reserved the question of the appropriate standard of review based on inmates’
constitutional claims, but it nonetheless believed that the Martinez standard
was the proper one to apply to respondents’ constitutional claims.
We disagree with the Court of Appeals that the reasoning in our cases
subsequent to Martinez can be so narrowly [482 U.S. 78, 88] cabined. In Pell, for example,
it was found “relevant” to the reasonableness of a restriction on face-to-face
visits between prisoners and news reporters that prisoners had other means of
communicating with members of the general public. See 417
U.S., at 823 -824. These alternative means of communication did not,
however, make the prison regulation a “time, place, or manner” restriction in
any ordinary sense of the term. As Pell acknowledged, the alternative methods
of personal communication still available to prisoners would have been “unimpressive”
if offered to justify a restriction on personal communication among members of
the general public. Id., at 825. Nevertheless, they were relevant in
determining the scope of the burden placed by the regulation on inmates’ First
Amendment rights. Pell thus simply teaches that it is appropriate to consider
the extent of this burden when “we [are] called upon to balance First Amendment
rights against [legitimate] governmental interests.” Id., at 824.
Nor, in our view, can the reasonableness standard adopted in Jones and Bell
be construed as applying only to “presumptively dangerous” inmate activities.
To begin with, the Court of Appeals did not indicate how it would identify such
“presumptively dangerous” conduct, other than to conclude that the group
meetings in Jones, and the receipt of hardback books in Bell, both fall into
that category. See 777 F.2d, at 1311-1312. The Court of Appeals found that
correspondence between inmates did not come within this grouping because the
court did “not think a letter presents the same sort of `obvious security
problem’ as does a hardback book.” Id., at 1312. It is not readily apparent,
however, why hardback books, which can be scanned for contraband by electronic
devices and fluoroscopes, see Bell v. Wolfish, supra, at 574 (MARSHALL, J.,
dissenting), are qualitatively different in this respect from inmate
correspondence, which can be written in codes not readily subject to detection;
or why coordinated inmate activity within the same prison is categorically
different [482 U.S. 78, 89]
from inmate activity coordinated by mail among different prison institutions.
The determination that an activity is “presumptively dangerous” appears simply
to be a conclusion about the reasonableness of the prison restriction in light
of the articulated security concerns. It therefore provides a tenuous basis for
creating a hierarchy of standards of review.
If Pell, Jones, and Bell have not already resolved the question posed in
Martinez, we resolve it now: when a prison regulation impinges on inmates’
constitutional rights, the regulation is valid if it is reasonably related to
legitimate penological interests. In our view, such a standard is necessary if “prison
administrators . . ., and not the courts, [are] to make the difficult judgments
concerning institutional operations.” Jones v. North Carolina Prisoners’ Union,
433
U.S., at 128 . Subjecting the day-to-day judgments of prison officials to
an inflexible strict scrutiny analysis would seriously hamper their ability to
anticipate security problems and to adopt innovative solutions to the
intractable problems of prison administration. The rule would also distort the
decisionmaking process, for every administrative judgment would be subject to
the possibility that some court somewhere would conclude that it had a less
restrictive way of solving the problem at hand. Courts inevitably would become
the primary arbiters of what constitutes the best solution to every
administrative problem, thereby “unnecessarily perpetuat[ing] the involvement
of the federal courts in affairs of prison administration.” Procunier v.
Martinez, 416
U.S., at 407 .
As our opinions in Pell, Bell, and Jones show, several factors are relevant
in determining the reasonableness of the regulation at issue. First, there must
be a “valid, rational connection” between the prison regulation and the
legitimate governmental interest put forward to justify it. Block v.
Rutherford, supra, at 586. Thus, a regulation cannot be sustained where the
logical connection between the regulation and the asserted goal is so remote as
to render the policy [482 U.S. 78,
90] arbitrary or irrational. Moreover, the governmental objective
must be a legitimate and neutral one. We have found it important to inquire
whether prison regulations restricting inmates’ First Amendment rights operated
in a neutral fashion, without regard to the content of the expression. See Pell
v. Procunier, 417
U.S., at 828 ; Bell v. Wolfish, 441
U.S., at 551 .
A second factor relevant in determining the reasonableness of a prison
restriction, as Pell shows, is whether there are alternative means of
exercising the right that remain open to prison inmates. Where “other avenues”
remain available for the exercise of the asserted right, see Jones v. North
Carolina Prisoners’ Union, supra, at 131, courts should be particularly
conscious of the “measure of judicial deference owed to corrections officials .
. . in gauging the validity of the regulation.” Pell v. Procunier, supra, at
827.
A third consideration is the impact accommodation of the asserted
constitutional right will have on guards and other inmates, and on the
allocation of prison resources generally. In the necessarily closed environment
of the correctional institution, few changes will have no ramifications on the
liberty of others or on the use of the prison’s limited resources for
preserving institutional order. When accommodation of an asserted right will
have a significant “ripple effect” on fellow inmates or on prison staff, courts
should be particularly deferential to the informed discretion of corrections
officials. Cf. Jones v. North Carolina Prisoners’ Union, supra, at 132-133.
Finally, the absence of ready alternatives is evidence of the reasonableness
of a prison regulation. See Block v. Rutherford, 468
U.S., at 587 . By the same token, the existence of obvious, easy
alternatives may be evidence that the regulation is not reasonable, but is an “exaggerated
response” to prison concerns. This is not a “least restrictive alternative”
test: prison officials do not have to set up and then shoot down every
conceivable alternative method of accommodating [482 U.S. 78, 91] the claimant’s constitutional
complaint. See ibid. But if an inmate claimant can point to an alternative that
fully accommodates the prisoner’s rights at de minimis cost to valid
penological interest, a court may consider that as evidence that the regulation
does not satisfy the reasonable relationship standard.
Applying our analysis to the Missouri rule barring inmate-to-inmate
correspondence, we conclude that the record clearly demonstrates that the
regulation was reasonably related to legitimate security interests. We find
that the marriage restriction, however, does not satisfy the reasonable
relationship standard, but rather constitutes an exaggerated response to
petitioners’ rehabilitation and security concerns.
According to the testimony at trial, the Missouri correspondence provision
was promulgated primarily for security reasons. Prison officials testified that
mail between institutions can be used to communicate escape plans and to
arrange assaults and other violent acts. 2 Tr. 76; 4 id., at 225-228. Witnesses
stated that the Missouri Division of Corrections had a growing problem with
prison gangs, and that restricting communications among gang members, both by
transferring gang members to different institutions and by restricting their
correspondence, was an important element in combating this problem. 2 id., at
75-77; 3 id., at 266-267; 4 id., at 226. Officials also testified that the use
of Renz as a facility to provide protective custody for certain inmates could
be compromised by permitting correspondence between inmates at Renz and inmates
at other correctional institutions. 3 id., at 264-265.
The prohibition on correspondence between institutions is logically
connected to these legitimate security concerns. Undoubtedly, communication
with other felons is a potential spur to criminal behavior: this sort of
contact frequently is [482 U.S.
78, 92] prohibited even after an inmate has been released on
parole. See, e. g., 28 CFR 2.40(a)(10) (1986) (federal parole conditioned on
nonassociation with known criminals, unless permission is granted by the parole
officer). In Missouri prisons, the danger of such coordinated criminal activity
is exacerbated by the presence of prison gangs. The Missouri policy of
separating and isolating gang members - a strategy that has been frequently
used to control gang activity, see G. Camp & C. Camp, U.S. Dept. of
Justice, Prison Gangs: Their Extent, Nature and Impact on Prisons 64-65 (1985)
- logically is furthered by the restriction on prisoner-to-prisoner
correspondence. Moreover, the correspondence regulation does not deprive
prisoners of all means of expression. Rather, it bars communication only with a
limited class of other people with whom prison officials have particular cause
to be concerned - inmates at other institutions within the Missouri prison
system.
We also think that the Court of Appeals’ analysis overlooks the impact of
respondents’ asserted right on other inmates and prison personnel. Prison
officials have stated that in their expert opinion, correspondence between
prison institutions facilitates the development of informal organizations that
threaten the core functions of prison administration, maintaining safety and
internal security. As a result, the correspondence rights asserted by
respondents, like the organizational activities at issue in Jones v. North
Carolina Prisoners’ Union, 433
U.S. 119 (1977), can be exercised only at the cost of significantly less
liberty and safety for everyone else, guards and other prisoners alike. Indeed,
the potential “ripple effect” is even broader here than in Jones, because
exercise of the right affects the inmates and staff of more than one
institution. Where exercise of a right requires this kind of tradeoff, we think
that the choice made by corrections officials - which is, after all, a judgment
“peculiarly within [their] province and professional expertise,” Pell v.
Procunier, [482 U.S. 78, 93]
417
U.S., at 827 - should not be lightly set aside by the courts.
Finally, there are no obvious, easy alternatives to the policy adopted by
petitioners. Other well-run prison systems, including the Federal Bureau of
Prisons, have concluded that substantially similar restrictions on inmate
correspondence were necessary to protect institutional order and security. See,
e. g., 28 CFR 540.17 (1986). As petitioners have shown, the only alternative
proffered by the claimant prisoners, the monitoring of inmate correspondence,
clearly would impose more than a de minimis cost on the pursuit of legitimate
corrections goals. Prison officials testified that it would be impossible to
read every piece of inmate-to-inmate correspondence, 3 Tr. 159, 4 id., at
42-43, and consequently there would be an appreciable risk of missing dangerous
messages. In any event, prisoners could easily write in jargon or codes to
prevent detection of their real messages. See Camp & Camp, supra, at 130
(noting “frequent” use of coded correspondence by gang members in federal
prison); see also Brief for State of Texas as Amicus Curiae 7-9. The risk of
missing dangerous communications, taken together with the sheer burden on staff
resources required to conduct item-by-item censorship, see 3 Tr. 176, supports
the judgment of prison officials that this alternative is not an adequate
alternative to restricting correspondence.
The prohibition on correspondence is reasonably related to valid corrections
goals. The rule is content neutral, it logically advances the goals of
institutional security and safety identified by Missouri prison officials, and
it is not an exaggerated response to those objectives. On that basis, we
conclude that the regulation does not unconstitutionally abridge the First
Amendment rights of prison inmates. * [482 U.S. 78, 94]
In support of the marriage regulation, petitioners first suggest that the
rule does not deprive prisoners of a constitutionally [482 U.S. 78, 95] protected right. They
concede that the decision to marry is a fundamental right under Zablocki v.
Redhail, 434
U.S. 374 (1978), and Loving v. Virginia, 388
U.S. 1 (1967), but they imply that a different rule should obtain “in . . .
a prison forum.” See Brief for Petitioners 38, n. 6. Petitioners then argue
that even if the regulation burdens inmates’ constitutional rights, the
restriction should be tested under a reasonableness standard. They urge that
the restriction is reasonably related to legitimate security and rehabilitation
concerns.
We disagree with petitioners that Zablocki does not apply to prison inmates.
It is settled that a prison inmate “retains those [constitutional] rights that
are not inconsistent with his status as a prisoner or with the legitimate
penological objectives of the corrections system.” Pell v. Procunier, supra, at
822. The right to marry, like many other rights, is subject to substantial
restrictions as a result of incarceration. Many important attributes of
marriage remain, however, after taking into account the limitations imposed by
prison life. First, inmate marriages, like others, are expressions of emotional
support and public commitment. These elements [482 U.S. 78, 96] are an important and significant
aspect of the marital relationship. In addition, many religions recognize
marriage as having spiritual significance; for some inmates and their spouses,
therefore, the commitment of marriage may be an exercise of religious faith as
well as an expression of personal dedication. Third, most inmates eventually
will be released by parole or commutation, and therefore most inmate marriages
are formed in the expectation that they ultimately will be fully consummated.
Finally, marital status often is a precondition to the receipt of government
benefits (e. g., Social Security benefits), property rights (e. g., tenancy by
the entirety, inheritance rights), and other, less tangible benefits (e. g.,
legitimation of children born out of wedlock). These incidents of marriage,
like the religious and personal aspects of the marriage commitment, are
unaffected by the fact of confinement or the pursuit of legitimate corrections
goals.
Taken together, we conclude that these remaining elements are sufficient to
form a constitutionally protected marital relationship in the prison context.
Our decision in Butler v. Wilson, 415
U.S. 953 (1974), summarily affirming Johnson v. Rockefeller, 365 F. Supp.
377 (SDNY 1973), is not to the contrary. That case involved a prohibition on
marriage only for inmates sentenced to life imprisonment; and, importantly,
denial of the right was part of the punishment for crime. See id., at 381-382
(Lasker, J., concurring in part and dissenting in part) (asserted governmental
interest of punishing crime sufficiently important to justify deprivation of
right); see generally Mandel v. Bradley, 432
U.S. 173, 176 (1977) (“Because a summary affirmance is an affirmance of the
judgment only, the rationale of the affirmance may not be gleaned solely from
the opinion below”).
The Missouri marriage regulation prohibits inmates from marrying unless the prison
superintendent has approved the marriage after finding that there are
compelling reasons for doing so. As noted previously, generally only pregnancy
or birth of a child is considered a “compelling reason” to approve [482 U.S. 78, 97] a
marriage. In determining whether this regulation impermissibly burdens the
right to marry, we note initially that the regulation prohibits marriages
between inmates and civilians, as well as marriages between inmates. See Brief
for Petitioners 40. Although not urged by respondents, this implication of the
interests of nonprisoners may support application of the Martinez standard,
because the regulation may entail a “consequential restriction on the
[constitutional] rights of those who are not prisoners.” See Procunier v.
Martinez, 416
U.S., at 409 . We need not reach this question, however, because even under
the reasonable relationship test, the marriage regulation does not withstand
scrutiny.
Petitioners have identified both security and rehabilitation concerns in
support of the marriage prohibition. The security concern emphasized by
petitioners is that “love triangles” might lead to violent confrontations
between inmates. See Brief for Petitioners 13, 36, 39. With respect to
rehabilitation, prison officials testified that female prisoners often were
subject to abuse at home or were overly dependent on male figures, and that
this dependence or abuse was connected to the crimes they had committed. 3 Tr.
154-155. The superintendent at Renz, petitioner William Turner, testified that
in his view, these women prisoners needed to concentrate on developing skills
of self-reliance, 1 id., at 80-81, and that the prohibition on marriage
furthered this rehabilitative goal. Petitioners emphasize that the prohibition
on marriage should be understood in light of Superintendent Turner’s experience
with several ill-advised marriage requests from female inmates. Brief for Petitioners
32-34.
We conclude that on this record, the Missouri prison regulation, as written,
is not reasonably related to these penological interests. No doubt legitimate
security concerns may require placing reasonable restrictions upon an inmate’s
right to marry, and may justify requiring approval of the superintendent. The
Missouri regulation, however, represents an [482 U.S. 78, 98] exaggerated response to such
security objectives. There are obvious, easy alternatives to the Missouri
regulation that accommodate the right to marry while imposing a de minimis
burden on the pursuit of security objectives. See, e. g., 28 CFR 551.10 (1986)
(marriage by inmates in federal prison generally permitted, but not if warden
finds that it presents a threat to security or order of institution, or to
public safety). We are aware of no place in the record where prison officials
testified that such ready alternatives would not fully satisfy their security
concerns. Moreover, with respect to the security concern emphasized in
petitioners’ brief - the creation of “love triangles” - petitioners have
pointed to nothing in the record suggesting that the marriage regulation was
viewed as preventing such entanglements. Common sense likewise suggests that
there is no logical connection between the marriage restriction and the
formation of love triangles: surely in prisons housing both male and female
prisoners, inmate rivalries are as likely to develop without a formal marriage
ceremony as with one. Finally, this is not an instance where the “ripple effect”
on the security of fellow inmates and prison staff justifies a broad
restriction on inmates’ rights - indeed, where the inmate wishes to marry a
civilian, the decision to marry (apart from the logistics of the wedding
ceremony) is a completely private one.
Nor, on this record, is the marriage restriction reasonably related to the
articulated rehabilitation goal. First, in requiring refusal of permission
absent a finding of a compelling reason to allow the marriage, the rule sweeps
much more broadly than can be explained by petitioners’ penological objectives.
Missouri prison officials testified that generally they had experienced no
problem with the marriage of male inmates, see, e. g., 2 Tr. 21-22, and the
District Court found that such marriages had routinely been allowed as a matter
of practice at Missouri correctional institutions prior to adoption of the
rule, 586 F. Supp., at 592. The proffered justification thus does not explain
the adoption of a rule banning [482
U.S. 78, 99] marriages by these inmates. Nor does it account for
the prohibition on inmate marriages to civilians. Missouri prison officials
testified that generally they had no objection to inmate-civilian marriages,
see, e. g., 4 Tr. 240-241, and Superintendent Turner testified that he usually
did not object to the marriage of either male or female prisoners to civilians,
2 id., at 141-142. The rehabilitation concern appears from the record to have
been centered almost exclusively on female inmates marrying other inmates or
exfelons; it does not account for the ban on inmate-civilian marriages.
Moreover, although not necessary to the disposition of this case, we note
that on this record the rehabilitative objective asserted to support the
regulation itself is suspect. Of the several female inmates whose marriage
requests were discussed by prison officials at trial, only one was refused on
the basis of fostering excessive dependency. The District Court found that the
Missouri prison system operated on the basis of excessive paternalism in that
the proposed marriages of all female inmates were scrutinized carefully even
before adoption of the current regulation - only one was approved at Renz in
the period from 1979-1983 - whereas the marriages of male inmates during the
same period were routinely approved. That kind of lopsided rehabilitation
concern cannot provide a justification for the broad Missouri marriage rule.
It is undisputed that Missouri prison officials may regulate the time and
circumstances under which the marriage ceremony itself takes place. See Brief
for Respondents 5. On this record, however, the almost complete ban on the
decision to marry is not reasonably related to legitimate penological
objectives. We conclude, therefore, that the Missouri marriage regulation is
facially invalid.
We uphold the facial validity of the correspondence regulation, but we
conclude that the marriage rule is constitutionally [482 U.S. 78, 100] infirm. We read
petitioners’ additional challenge to the District Court’s findings of fact to
be a claim that the District Court erred in holding that the correspondence
regulation had been applied by prison officials in an arbitrary and capricious
manner. Because the Court of Appeals did not address this question, we remand
the issue to the Court of Appeals for its consideration.
Accordingly, the judgment of the Court of Appeals striking down the Missouri
marriage regulation is affirmed; its judgment invalidating the correspondence
rule is reversed; and the case is remanded to the Court of Appeals for further
proceedings consistent with this opinion.
It is so ordered.
[Footnote * ]
Suggesting that there is little difference between the “unnecessarily sweeping”
standard applied by the District Court in reaching its judgment and the
reasonableness standard described in Part II, see post, at 105, JUSTICE STEVENS
complains that we have “ignore[d] the findings of fact that [482 U.S. 78, 94] were
made by the District Court,” post, at 102, n. 2, and have improperly “encroach[ed]
into the factfinding domain of the District Court.” Post, at 101.
The District Court’s inquiry as to whether the regulations were “needlessly
broad” is not just semantically different from the standard we have articulated
in Part II: it is the least restrictive alternative test of Procunier v.
Martinez, 416
U.S. 396 (1974). As Martinez states, in a passage quoted by the District
Court:
“[T]he limitation of First Amendment freedoms must be no greater than is necessary or essential to the protection of the particular governmental interest involved. Thus a restriction on inmate correspondence . . . will . . . be invalid if its sweep is unnecessarily broad.” Id., at 413-414 (emphasis added).
The District Court’s judgment that the correspondence
regulation was “unnecessarily sweeping,” 586 F. Supp. 589, 596 (WD Mo. 1984),
thus was a judgment based on application of an erroneous legal standard. The
District Court’s findings of fact 7 and 13 likewise are predicated on
application of the least restrictive means standard. Finding 7 is that the
correspondence rule was applied without a letter-by-letter determination of
harm, and without a showing that “there is no less restrictive alternative”
available; finding 13 reiterates that the correspondence rule operated as a
complete ban. See id., at 591-592. These findings are important only if
petitioners have to show that the correspondence regulation satisfies a least
restrictive alternative test: they are largely beside the point where the
inquiry is simply whether the regulation is reasonably related to a legitimate
governmental interest.
JUSTICE STEVENS’ charge of appellate factfinding likewise suffers from the
flawed premise that Part III-A answers the question JUSTICE STEVENS would pose,
namely, whether the correspondence regulation satisfies strict scrutiny. Thus,
our conclusion that there is a logical connection between security concerns
identified by petitioners and a ban on inmate-to-inmate correspondence, see
supra, at 91-92, becomes, in JUSTICE STEVENS’ hands, a searching examination of
the record to determine whether there was sufficient proof that inmate
correspondence had actually led to an escape plot, uprising, or gang violence
at Renz. See post, at 106-109. Likewise, our conclusion that monitoring inmate
correspondence “clearly would impose more than a de minimis cost on the pursuit
of legitimate corrections goals,” supra, at 93, is described as a factual “finding”
that it [482 U.S. 78, 95] would
be “an insurmountable task” to read all correspondence sent to or received by
the inmates at Renz. Post, at 110, 112. Nowhere, of course, do we make such a “finding,”
nor is it necessary to do so unless one is applying a least restrictive means
test.
Finally, JUSTICE STEVENS complains that Renz’ ban on inmate correspondence
cannot be reasonably related to legitimate corrections goals because it is more
restrictive than the rule at other Missouri institutions. As our previous
decisions make clear, however, the Constitution “does not mandate a `lowest
common denominator’ security standard, whereby a practice permitted at one
penal institution must be permitted at all institutions.” Bell v. Wolfish, 441
U.S. 520, 554 (1979). Renz raises different security concerns from other
Missouri institutions, both because it houses medium and maximum security
prisoners in a facility without walls or guard towers, and because it is used
to house inmates in protective custody. Moreover, the Renz rule is consistent
with the practice of other well-run institutions, including institutions in the
federal system. See Brief for United States as Amicus Curiae 22-24.
JUSTICE STEVENS, with whom JUSTICE BRENNAN, JUSTICE MARSHALL, and JUSTICE
BLACKMUN join, concurring in part and dissenting in part.
How a court describes its standard of review when a prison regulation
infringes fundamental constitutional rights often has far less consequence for
the inmates than the actual showing that the court demands of the State in
order to uphold the regulation. This case provides a prime example.
There would not appear to be much difference between the question whether a
prison regulation that burdens fundamental rights in the quest for security is “needlessly
broad” - the standard applied by the District Court and the Court of Appeals -
and this Court’s requirement that the regulation must be “reasonably related to
legitimate penological interests,” ante, at 89, and may not represent “an
`exaggerated response’ to those concerns.” Ante, at 87. But if the standard can
be satisfied by nothing more than a “logical connection” between the regulation
and any legitimate penological concern perceived by a cautious warden, see
ante, at 94, n. (emphasis in original), it is virtually meaningless.
Application of the standard would seem to permit disregard for inmates’
constitutional rights whenever the imagination of the [482 U.S. 78, 101] warden produces a
plausible security concern and a deferential trial court is able to discern a
logical connection between that concern and the challenged regulation. Indeed,
there is a logical connection between prison discipline and the use of
bullwhips on prisoners; and security is logically furthered by a total ban on
inmate communication, not only with other inmates but also with outsiders who
conceivably might be interested in arranging an attack within the prison or an
escape from it. Thus, I dissent from Part II of the Court’s opinion. 1
I am able to join Part III-B because the Court’s invalidation of the
marriage regulation does not rely on a rejection of a standard of review more
stringent than the one announced in Part II. See ante, at 97. The Court in Part
III-B concludes after careful examination that, even applying a “reasonableness”
standard, the marriage regulation must fail because the justifications asserted
on its behalf lack record support. Part III-A, however, is not only based on an
application of the Court’s newly minted standard, see ante, at 89, but also
represents the product of a plainly improper appellate encroachment into the
factfinding domain of the District Court. See Icicle Seafoods, Inc. v.
Worthington, 475
U.S. 709, 714 (1986). Indeed, a fundamental difference between the Court of
Appeals and this Court in this case - and the principal point of this dissent -
rests in the respective ways the two courts have examined and made use of the
trial record. In my opinion the Court of Appeals correctly held that the trial
court’s findings of fact adequately supported its judgment sustaining the
inmates’ challenge to the mail [482
U.S. 78, 102] regulation as it has been administered at the Renz
Correctional Center in Cedar City, Missouri. In contrast, this Court sifts the
trial testimony on its own 2
in order to uphold a general prohibition against correspondence between
unrelated inmates.
This is not a case in which it is particularly helpful to begin by
determining the “proper” standard of review, as if the result of that
preliminary activity would somehow lighten the Court’s duty to decide this
case. The precise issue before us is evident from respondents’ complaint, which
makes clear that they were not launching an exclusively facial attack against
the correspondence regulation. Respondents instead leveled their primary
challenge against the application of this regulation to mail addressed to or
sent by inmates at Renz:
“20. On information and belief,
correspondence between non-family members at different institutions within the
Missouri Division of Correction system is permitted at all institutions with
the exception of Renz. On information and belief, defendant Turner and other
employees of the Missouri Division of Corrections have a pattern and practice
of refusing to permit inmates of Renz to correspond with or receive letters
from inmates at other correctional institutions, a situation which appears to
be unique within the Missouri Division of Corrections.
“21. On information and belief, the
reason given for refusing such correspondence is that Superintendent Turner
feels that correspondence between inmates is not [482 U.S. 78, 103] in the best interest of any
inmate. In this manner defendant Turner has violated the constitutional right
of every inmate residing at Renz and any inmate who desires to correspond with
an inmate residing at Renz.” Amended Complaint, App. 11-12.
On their face, the regulations generally applicable to the Missouri Correctional System permit correspondence between unrelated inmates “if the classification/treatment team of each inmate deems it in the best interests of the parties involved.” 3 After a bench trial, however, the District Court found that there was a total ban on such correspondence at Renz:
“6. The provisions of the divisional correspondence regulation allowing the classification/treatment team of each inmate to prohibit inmate-to-inmate correspondence have not been followed at Renz. Theoretically the classification/treatment team uses psychological reports, conduct violations, and progress reports in deciding whether to permit correspondence. At Renz, however, the rule as practiced is that inmates may not write non-family inmates or receive mail from non-family inmates. The more restrictive practice is set forth in the Renz Inmate Orientation Booklet presented to each inmate upon arrival at Renz. The restrictive rule at Renz is commonly known throughout the Missouri Correctional System.
“7. The Renz rule against
inmate-to-inmate correspondence is enforced without a determination that the
security or order of Renz or the rehabilitation of the inmate would be harmed
by allowing the particular correspondence to proceed and without a
determination that there is no less restrictive alternative to resolve any
legitimate concerns of the Department of Corrections short of prohibiting all
correspondence. [482 U.S. 78, 104]
“8. Inmates at most institutions in the Missouri Correctional System are permitted to correspond with inmates in most other institutions. The greatest restriction on inmate correspondence is practiced at Renz.” 586 F. Supp. 589, 591 (WD Mo. 1984).
“13. Correspondence between inmates has been denied despite evidence that the correspondence was desired simply to maintain wholesome friendships.” Id., at 591-592.
These factual findings, which bear out respondents’ complaint, served as the basis for the District Court’s injunction:
“Even if some restriction on
inmate-to-inmate correspondence can be justified, the regulations and practices
at bar must fall. The prohibitions are unnecessarily sweeping. Correspondence
is a sufficiently protected right that it cannot be cut off simply because the
recipient is in another prison, and the inmates cannot demonstrate special
cause for the correspondence. . . .
. . . . .
“Defendants have failed to
demonstrate that the needs of Renz are sufficiently different to justify
greater censorship than is applied by other well-run institutions.” Id., at
596.
After reviewing the District Court’s findings and
conclusions, the Court of Appeals held:
“[W]ithout strong evidence that the
relationship in question is or will be abusive, the connection between
permitting the desired correspondence or marriage and the subsequent commission
of a crime caused thereby is simply too tenuous to justify denial of those
constitutionally protected rights. As to the security concerns, we think the
prison officials’ authority to open and read all prisoner mail is sufficient to
meet the problem of illegal conspiracies.” 777 F.2d 1307, 1315-1316 (CA8 1985)
(emphasis added). [482 U.S. 78,
105]
The Court of Appeals’ affirmance of the District Court thus
ultimately rests upon a conclusion with which I fully agree: absent a showing
that prison officials would be unable to anticipate and avoid any security
problems associated with the inmate-to-inmate mail that would result from
application of the correspondence rule as it is written and as enforced at
other Missouri prisons, the total ban at Renz found by the District Court
offends the First Amendment.
The ostensible breadth of the Court of Appeals’ opinion 4 furnishes no license for
this Court to reverse with another unnecessarily broad holding. Moreover, even
under the Court’s newly minted standard, the findings of the District Court
that were upheld by the Court of Appeals clearly dictate affirmance of the
judgment below.
Without explicitly disagreeing with any of the District Court’s findings of
fact, this Court rejects the trial judge’s conclusion that the total ban on
correspondence between inmates at Renz and unrelated inmates in other
correctional facilities was “unnecessarily sweeping” or, to use the language
the Court seems to prefer, was an “exaggerated response” to the security
problems predicted by petitioner’s expert witnesses. Instead, the Court bases
its holding upon its own highly selective use of factual evidence.
The reasons the Court advances in support of its conclusion include: (1)
speculation about possible “gang problems,” escapes, and secret codes, ante, at
91-93; (2) the fact that the correspondence regulation “does not deprive
prisoners of all means of expression,” ante, at 92; and (3) testimony
indicating [482 U.S. 78, 106]
“that it would be impossible to read every piece of
inmate-to-inmate correspondence,” ante, at 93. None of these reasons has a
sufficient basis in the record to support the Court’s holding on the mail
regulation.
Speculation about the possible adverse consequences of allowing inmates in
different institutions to correspond with one another is found in the testimony
of three witnesses: William Turner, the Superintendent of Renz Correctional
Center; Sally Halford, the Director of the Kansas Correctional Institution at
Lansing; and David Blackwell, the former Director of the Division of Adult
Institutions of the Missouri Department of Corrections.
Superintendent Turner was unable to offer proof that prohibiting
inmate-to-inmate correspondence prevented the formation or dissemination of
escape plots. He merely asserted that the mail regulation assisted him in his
duties to maintain security at Renz “[f]rom the standpoint that we don’t have
escapes, we don’t have the problems that are experienced in other institutions.”
2 Tr. 75. Nor did the Superintendent’s testimony establish that permitting such
correspondence would create a security risk; he could only surmise that the
mail policy would inhibit communications between institutions in the early
stages of an uprising. Id., at 76. The Superintendent’s testimony is entirely
consistent with the District Court’s conclusion that the correspondence
regulation was an exaggerated response to the potential gang problem at Renz. 5 [482 U.S. 78, 107]
Neither of the outside witnesses had any special knowledge of conditions at
Renz. Ms. Halford had reviewed the prison’s rules and regulations relevant to
this case, had discussed the case with Superintendent Turner, and had visited
Renz for “a couple of hours.” 3 id., at 146. Mr. Blackwell was charged with the
overall management of Missouri’s adult correctional facilities and did not make
daily decisions concerning the inmate correspondence permitted at Renz. Id., at
259-260. He was “not sure” if he was specifically familiar with the policy at
Renz that an inmate is allowed to correspond with inmates of other institutions
only if they are members of the inmate’s immediate family. 4 id., at 44.
Neither of them, and indeed, no other witness, even mentioned the
possibility of the use of secret codes by inmates. The Kansas witness testified
that Kansas followed a policy of “open correspondence. . . . An inmate can
write to whomever they please.” 3 id., at 158. She identified two problems that
might result from that policy. First, in the preceding year a male inmate had escaped
from a minimum security area and helped a female inmate to escape and remain at
large for over a week. The witness speculated that they must have used the
mails to plan their escape. The trial judge discounted this testimony because
there was no proof that this or any other escape had been discussed in
correspondence. Id., at 158-159. Second, the Kansas witness suggested that a
ban on inmate correspondence would frustrate the development of a “gang
problem.” Id., at 160. In view of her acknowledgment that no gang problem had
developed in Kansas despite its open correspondence rule, id., at [482 U.S. 78, 108] 158,
the trial judge presumably also attached little weight to this prediction.
Indeed, there is a certain irony in the fact that the Kansas expert witness was
unable to persuade her superiors in Kansas to prohibit inmate-to-inmate
correspondence, id., at 168, yet this Court apparently finds no reason to
discount her speculative testimony. 6
The Missouri witness, Mr. Blackwell, also testified that one method of
trying to discourage the organization of “gangs” of prisoners with ethnic or
religious similarities is “by restricting correspondence.” Id., at 267. He did
not testify, however, that a total ban on inmate-to-inmate correspondence was
an appropriate response to the potential gang problem. Indeed, he stated that
the State’s policy did not include a “carte blanche” denial of such
correspondence, 7 and
he did not even know that Renz was enforcing such a total ban. 8 His assertion that an
open correspondence [482 U.S. 78,
109] policy would pose security problems was backed only by
speculation:
“[A]: . . . I am sure that there
are some inmates at Renz who would write other inmates at other facilities in
an illegitimate fashion. I also feel certain that there is more of a probability
that they would be writing about things other than just sound positive letter
writing, given the nature of the offenders at Renz.
“Q: What percentage of the [mail]
inmate-to-inmate from Renz Correctional Center have you personally read?
“A: Very, very little.
“Q: So you are basically
speculating about what inmates might write about?
“A: Yes.” 4 id., at 82-83.
Quite clearly, Mr. Blackwell’s estimate of the problems
justifying some restrictions on inmate-to-inmate correspondence provides no
support for the Renz policy that he did not even know about and that did not
conform to the more liberal policy applicable to other institutions in which
more serious offenders are incarcerated. 9 As the District Court
concluded, petitioners “failed to demonstrate that the needs of Renz are
sufficiently different to justify greater censorship than is applied by other
well-run institutions.” 586 F. Supp., at 596. [482 U.S. 78, 110]
The Court also relies on the fact that the inmates at Renz were not totally
deprived of the opportunity to communicate with the outside world. This
observation is simply irrelevant to the question whether the restrictions that
were enforced were unnecessarily broad. Moreover, an evenhanded acceptance of
this sort of argument would require upholding the Renz marriage regulation -
which the Court quite properly invalidates - because that regulation also could
have been even more restrictive.
The Court’s final reason for concluding that the Renz prohibition on
inmate-to-inmate correspondence is reasonable is its belief that it would be “impossible”
to read all such correspondence sent or received by the inmates at Renz. No
such finding of impossibility was made by the District Court, nor would it be
supported by any of the findings that it did make. The record tells us nothing
about the total volume of inmate mail sent or received at Renz; much less does
it indicate how many letters are sent to, or received from, inmates at other
institutions. As the State itself observed at oral argument about the volume of
correspondence:
“The difficulty with our position in the case is, since we had never permitted [mail between inmates], we didn’t have an idea except to say that - you know, except that we had 8,000 inmates, and we figured that they would write.” Tr. of Oral Arg. 14.
The testimony the Court does cite to support its conclusion that reviewing inmate-to-inmate mail would be an insurmountable task was provided by Mr. Blackwell and Ms. Halford. Mr. Blackwell testified that “[t]here is no way we can read all the mail nor would we want to . . . it is impossible.” 4 Tr. 41-43. 10 Ms. Halford gave similar testimony, 11 [482 U.S. 78, 111] but again she was referring to “all incoming mail,” not to inmate-to-inmate correspondence and, of course, her testimony related to Kansas, not to the relatively small facility at Renz. 12 In short, the evidence in the record is plainly [482 U.S. 78, 112] insufficient to support the Court’s de novo finding of impossibility. 13 It does, however, adequately support this finding by the District Court that the Court ignores:
“14. The staff at Renz has been able to scan and control outgoing and incoming mail, including inmate-to-inmate correspondence.” 586 F. Supp., at 592.
Because the record contradicts the conclusion that the
administrative burden of screening all inmate-to-inmate mail would be
unbearable, an outright ban is intolerable. The blanket prohibition enforced at
Renz is not only an “excessive response” to any legitimate security concern; it
is inconsistent with a consensus of expert opinion - including Kansas
correctional authorities - that is far more reliable than the speculation to
which this Court accords deference. 14
The contrasts between the Court’s acceptance of the challenge to the
marriage regulation as overbroad and its rejection of the challenge to the
correspondence rule are striking [482
U.S. 78, 113] and puzzling. 15 The Court inexplicably
expresses different views about the security concerns common to prison
marriages and prison mail. In the marriage context expert speculation about the
security problems associated with “love triangles” is summarily rejected, while
in the mail context speculation about the potential “gang problem” and the
possible use of codes by prisoners receives virtually total deference. Moreover,
while the Court correctly dismisses as a defense to the marriage rule the
speculation that the inmate’s spouse, once released from incarceration, would
attempt to aid the inmate in escaping, 16 the Court grants
virtually total credence to similar speculation about escape plans concealed in
letters.
In addition, the Court disregards the same considerations it relies on to
invalidate the marriage regulation when it turns to the mail regulation. The
marriage rule is said to sweep too broadly because it is more restrictive than
the routine practices at other Missouri correctional institutions, but the mail
rule at Renz is not an “exaggerated response” even though it is more
restrictive than practices in the remainder of the State. The Court finds the
rehabilitative value of marriage apparent, but dismisses the value of
corresponding with a friend who is also an inmate for the reason that
communication with the outside world is not totally prohibited. The Court
relies on the District Court’s finding that the marriage regulation operated on
the basis of “excessive paternalism” [482
U.S. 78, 114] toward female inmates, ante, at 99, but rejects the
same court’s factual findings on the correspondence regulation. Unfathomably,
while rejecting the Superintendent’s concerns about love triangles as an
insufficient and invalid basis for the marriage regulation, the Court
apparently accepts the same concerns as a valid basis for the mail regulation. 17 [482 U.S. 78, 115]
In pointing out these inconsistencies, I do not suggest that the Court’s
treatment of the marriage regulation is flawed; as I stated, I concur fully in
that part of its opinion. I do suggest that consistent application of the Court’s
reasoning necessarily leads to a finding that the mail regulation applied at
Renz is unconstitutional. 18
To the extent that this Court affirms the judgment of the Court of Appeals,
I concur in its opinion. I respectfully dissent from the Court’s partial
reversal of that judgment on the basis of its own selective forays into the
record. When all [482 U.S. 78,
116] the language about deference and security is set to one
side, the Court’s erratic use of the record to affirm the Court of Appeals only
partially may rest on an unarticulated assumption that the marital state is
fundamentally different from the exchange of mail in the satisfaction, solace,
and support it affords to a confined inmate. Even if such a difference is
recognized in literature, history, or anthropology, the text of the
Constitution more clearly protects the right to communicate than the right to
marry. In this case, both of these rights should receive constitutional
recognition and protection.
[Footnote
1 ] The Court’s rather open-ended “reasonableness” standard makes it much
too easy to uphold restrictions on prisoners’ First Amendment rights on the
basis of administrative concerns and speculation about possible security risks
rather than on the basis of evidence that the restrictions are needed to
further an important governmental interest. Judge Kaufman’s opinion in Abdul
Wali v. Coughlin, 754 F.2d 1015, 1033 (CA2 1985), makes a more careful attempt
to strike a fair balance between legitimate penological concerns and the
well-settled proposition that inmates do not give up all constitutional rights
by virtue of incarceration.
[Footnote 2 ] The
Court cites portions of the trial transcript and the amicus curiae brief filed
by the State of Texas, ante, at 91, 93, but completely ignores the findings of
fact that were made by the District Court and that bind appellate courts unless
clearly erroneous. Fed. Rule Civ. Proc. 52(a). The Court does not and could not
deem these particular findings clearly erroneous.
[Footnote 3 ] 586 F.
Supp. 589, 591 (WD Mo. 1984).
[Footnote 4 ] The
Court of Appeals may have used unnecessarily sweeping language in its opinion:
“We conclude that the exchange of
inmate-to-inmate mail is not presumptively dangerous nor inherently
inconsistent with legitimate penological objectives. We therefore affirm the
district court’s application of the Martinez strict scrutiny standard and its
decision finding the Renz correspondence rule unconstitutional.” 777 F.2d, at
1313.
[Footnote 5 ]
Superintendent Turner had not experienced any problem with gang warfare at
Renz. 2 Tr. 117. He had not found any correspondence between gang members
coming into Renz. Id., at 118. He also conceded that it would be possible to
screen out correspondence that posed the danger of leading to gang warfare:
“Q: Is there any reason that you
could not read correspondence from other institutions to determine if these
people were writing about gang warfare or something like that?
“A: I think from the standpoint of
the dictates of the department and, of course, the dictates of the court, I
could if there was a problem. From the [482 U.S. 78, 107] standpoint of dealing with
these people individually or personally, no. It would be a problem.” Ibid.
“Q: Now, let’s limit it to people
who you suspect might be involved in gang warfare, for example. Do you have any
reason to say it would be impossible to read all the mail of those particular
people?
“A: Those that we know of that have
been identified, no, it wouldn’t be impossible.” Id., at 119.
[Footnote 6 ] There
is a further irony. While Missouri ostensibly does not have sufficient
resources to permit and screen inmate-to-inmate mail, Kansas apparently lacks
sufficient resources to ban it. Ms. Halford testified that open correspondence
was not abrogated in the Kansas correctional system despite security concerns
because her superiors felt that it was “too much of an effort to restrict it,
that it tied up staff to send out all forms to the various and sundry institutions.
So I think we’re all basically in agreement that even though it is a problem to
have open correspondence, the reason that we don’t do it is simply staff time.”
3 id., at 168.
[Footnote 7 ] “Q.
Those inmates who are allowed to write, you do not find it necessary to stop
their correspondence as a matter of course; isn’t that true?
“A. No, we don’t stop it as a
matter of course and we don’t authorize it as a matter of course. There is no
carte blanche approval or denial at any facility. It is done on a case by case
individual basis and would have to be.
“Q. Let me refer specifically to
inmate-to-inmate. Are you saying there is no carte blanche denial of
inmate-to-inmate or the inmates aren’t told that at Renz Correctional Center?
“A. The Division policy is not
carte blanche [to] deny inmate-to-inmate, or to approve it.” 4 id., at 43.
[Footnote 8 ] “Q.
You do know that is the rule at Renz that they cannot write to other
institutions unless the inmate is a relative?
“A. I am not certain that that is
the rule, no. [482 U.S. 78, 109]
“Q. Let me hand you Plaintiffs’
Exhibit B, excuse me, Defendants’ Exhibit B. I don’t have the plaintiffs’
number. This is in evidence. It is the inmate orientation manual, February
1983. I direct your attention to the paragraph that says correspondence with
inmates of other institutions is permitted with immediate family members only.
“Now, were you familiar with that
being the policy at Renz Correctional Center?
“A. I am not sure if I was
specifically or not.” Id., at 44.
[Footnote 9 ] At the
time of trial, the Renz Correctional Center contained both male and female
prisoners of varying security level classifications. Most of the female inmates
were medium and maximum security offenders, while most of the male inmates were
minimum security offenders. 777 F.2d 1307, 1308 (CA8 1985).
[Footnote 10 ] “Q.
The question was do you realize the plaintiffs in this case accept the rights
of the Division of Corrections to read all their mail if the Division wants to?
“A. There is no way we can read all
the mail nor would we want to.” 4 Tr. 41. [482 U.S. 78, 111]
“Q. Let me hand you Exhibit No. 3,
sir, the mail and visiting rule for the Department of Corrections, specifically
concerning inmate mail signed by you.
“I direct your attention to
paragraph 1(C), outgoing letters will not be sealed by the inmate. And further
down in the paragraph, all letters may be inspected in the mail room and
examined for contraband, escape plots, forgery, fraud, and other schemes.
“Now, tell me, sir, how do you
examine a letter for an escape plot without reading it?
“A. We do not read mail. This does not say mail will be read. The only time we read a letter is when we have reason to believe, for example, that an escape is being planned. [W]hen a letter is being planned, there is no way we want to or know to read all inmate mail. It is impossible.” Id., at 42-43.
There was no record indication of the amount of
correspondence between inmates that would occur if it were permitted. Mr.
Blackwell stated only that in his opinion, “if we do allow inmates to write
other inmates pretty much at will, the vast majority will be writing one
another, at least one other offender in another institution. I think it is
obvious what it will do to mail room load.” Id., at 108.
[Footnote 11 ] “[I]n
Kansas we have, our rules and regulations allow us to read all incoming mail.
Due to the volume of mail that is absolutely impossible to do.” 3 id., at 159.
[Footnote 12 ] The
average population at Renz in the 1983 fiscal year was 270. See American
Correctional Assn., Juvenile and Adult Correctional Departments, Institutions,
Agencies, and Paroling Authorities 214 (1984).
When Ms. Halford was asked why the prison officials did not read all of the
inmate mail, she gave this response:
“A. To begin with it’s very boring reading. Another thing, I think it’s a poor use of staff time. If I get more staff in, I would like to have them doing something more important than reading inmate mail. That seems to me to be kind of a waste of time.” Tr. 176.
Earl Englebrecht testified that at Renz he scanned the
contents of all approved incoming mail from other institutions, and that this
task and scanning some outgoing mail together took approximately one hour a
day. 5 id., at 97, 99. He could not indicate with any certainty the additional
screening burden that more frequent inmate-to-inmate correspondence [482 U.S. 78, 112] would
impose on him and on the mail room. Id., at 102. The testimony of these two
witnesses is hardly consistent with the Court’s assumption that it would be “impossible”
to read the portion of the correspondence that is addressed to, or received
from, inmates in other institutions.
[Footnote 13 ] The
Court’s speculation, ante, at 88, 93, about the ability of prisoners to use
codes is based on a suggestion in an amicus curiae brief, see Brief for State
of Texas as Amicus Curiae 7-9, and is totally unsupported by record evidence.
[Footnote 14 ] See
ABA Standards for Criminal Justice 23-6.1, Commentary, p. 23-76 (2d ed. 1980) (“[P]risoners
can write at any length they choose, using any language they desire, to
correspondents of their selection, including present or former prisoners, with
no more controls than those which govern the public at large”). The American
Correctional Association has set forth the “current standards deemed
appropriate by detention facility managers and recognized organizations
representing corrections.” ACA, Standards for Adult Local Detention Facilities
xiii (2d ed. 1981). Standard 2-5328 requires clear and convincing evidence to
justify “limitations for reasons of public safety or facility order and
security” on the volume, “length, language, content or source” of mail which an
inmate may send or receive. Id., at 88.
[Footnote 15 ] The
Court’s bifurcated treatment of the mail and marriage regulations leads to the
absurd result that an inmate at Renz may marry another inmate, but may not
carry on the courtship leading to the marriage by corresponding with him or her
beforehand because he or she would not then be an “immediate family member.”
[Footnote 16 ]
Explaining why the request of inmate Diana Finley to be married to inmate
William Quillam was denied, Superintendent Turner stated: “If he gets out, then
we have got some security problems. . . . The threat, if a man gets out of the
penitentiary and he is married to her and he wants his wife with him, there is
very little that we can do to stop an escape from that institution because we
don’t have the security, sophisticated security, like a maximum security
institution.” 1 Tr. 185-186. See also id., at 187.
[Footnote 17 ] One
of Superintendent Turner’s articulated reasons for preventing one female inmate
from corresponding with a male inmate closely tracks the “love triangle”
rationale advanced for the marriage regulation:
“Q: Let’s take Ms. Flowers. Do you
know of any reason why she should not be allowed to write to Mr. Barks?
“A: Yes.
“Q: Why?
“A: She has two other men. One she
wants to get married to, another man that she was involved with at Renz resides
with Mr. Barks.
“Q: Let me ask you this. You have
mentioned on two or three occasions that people want to get married to one man
or the other. Is it your understanding that the only possible relationship
between a woman and a man is one of intending to get married?
“A: Well, when they speak of love and want to marry two people, I think that one of them is going to be cut short.” Id., at 237-238.
The Superintendent later elaborated on redirect examination:
“Q: Now you have given an example
of a problem that in your opinion justifies restrictions on correspondence as
being, say two men who were corresponding with a particular woman. Would it
also be possible to call the two men in and have a chat with them in your
office and try to resolve that between them?
“A: I don’t see where that is
necessary in my position.” 2 id., at 116-117.
The paternalistic enforcement of the correspondence rule to “protect” female inmates prevents them from exchanging letters with more than one male inmate. Assuming a woman has received permission to correspond with a man:
“Q: Now, what if the female inmate
finds somebody new in the institution, and that person gets [pa]roled, can she
then write to the new fellow?
“A: Then we have two situations
then.
“Q: And, therefore, she cannot?
“A: I would say that would be a
positive [triggering security concerns] situation. It wouldn’t be a wholesome
situation, no.” Id., at 134-135.
“Q: And suppose she comes to you
and says, I don’t want to write this old fellow anymore, I want to write to the
new fellow. Is she then allowed to write to the new fellow? [482 U.S. 78, 115]
“A: Then we still have a problem.
“Q: Once an inmate makes a decision
to write to - once a female inmate makes a decision to write to another male
inmate, then she can’t write to anybody?
“A: You keep saying females. We
have the same situation with the male, too, that could exist.” Id., at 135.
David Blackwell testified along the same lines:
“If, for example, a male offender was believed to be in love with a female offender and another male offender wants to cause him some difficulty, he can start a rumor or confront the man with her seeing someone else or corresponding with someone else; and it’s caused a variety of security problems by way of love triangles and situations such as that.” 3 id., at 271 (emphasis added).
Donald Wyrick, Director of Adult Institutions, Missouri Department of Corrections, similarly testified on the security considerations raised by women writing men at other prisons:
“Well, many times love affairs
develop, then the inmate inside . . . becomes extremely worried about the
female inmate, he thinks she is messing around with somebody else, all those
kind of things. He becomes agitated, worried, and frustrated, this type thing.
In my professional opinion, that could cause him to do bad things. It might
even cause him to explode and hurt someone or attempt to escape.” 4 id., at
231-232.
[Footnote 18 ]
Having found a constitutional violation, the District Court has broad
discretion in fashioning an appropriate remedy. Cf. United States v. Paradise 480
U.S. 149, 155 -156, n. 4 (1987) (STEVENS, J., concurring in judgment). The
difficulties that a correspondence policy is likely to impose on prison
officials screening inmate-to-inmate mail bear on the shaping of an appropriate
remedy. It is improper, however, to rely on speculation about these
difficulties to obliterate effective judicial review of state actions that
abridge a prisoner’s constitutional right to send and receive mail. [482 U.S. 78, 117]