Part II
Constitutional Law of Corrections
Chapter 7 – First Amendment –
Inmate Mail
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Introduction: First Amendment states,
“Congress shall make no law . . .
abridging the freedom of speech”
First Amendment freedoms are not
absolute
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There are restrictions and limitations
Judicial decisions help determine to what
extent these liberties may be restricted
Chapter Outline
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Prison Mail: The Background
Procunier v. Martinez
Procunier v. Navarette
Turner v. Safley
Correspondence in Foreign Languages
Thornburgh v. Abbott
Bell v. Wolfish
Inmate Postage
Nude Photos
Prison Mail: The Background
Prison officials saw need for restrictions on
inmate mail
Concerns:
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Letters containing threats to security
Enclosures for use in illegal activities
Correspondence that discussed or planned
illegal activities
Inflammatory content
Pornographic content
Criticism of staff
Prison Mail: The Background:
cont’d
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The practice of restricting content of mail
seen by some as “censorship”
Within a prison setting, the volume of mail
makes a thorough review impractical
What is practical
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Search incoming mail for contraband
Identify inmates who pose security threats
(such as gang members, escape risks) and
pay closer attention to their mail
Prison Mail: The Background:
cont’d
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Main purpose of monitoring inmate mail
is deterrence
Primary concern - incoming mail
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Mail sent out of the institution ordinarily is
of less concern, as it poses no direct threat
to the institution’s internal security
Prison Mail: The Background:
cont’d
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Outgoing mail – while of lesser
importance, screening is appropriate
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To monitor such areas as security
breaches, plans for criminal activity,
particularly upsetting inmate problems
Prison Mail: The Background:
cont’d
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A more recent, special interest arises from
the confinement of certain types of
inmates – such as spies and terrorists –
those associated with national security
issues and acts of violence and terrorism
Measures have been enacted to prevent
disclosure of classified information and to
protect persons against the risk of death or
serious bodily injury
Procunier v. Martinez (1974)
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California prison regulations barred inmates
from writing letters that unduly complained or
magnified grievances
Regulations barred inmates sending or
receiving “inappropriate” letters
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Those that pertain to criminal activity or are
lewd, obscene, or defamatory; contain foreign
material; or are otherwise “inappropriate”
Inmates filed class-action lawsuit
Procunier v. Martinez: cont’d
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Court rejected these prison regulations
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Held censorship of inmate mail justified if
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The regulation in question furthers one or
more of the substantial governmental
interests of security, order, and
rehabilitation, and
The limitation of First Amendment freedoms
is no greater than “is necessary or essential
to the protection of the particular
governmental interest involved”
Procunier v. Martinez: cont’d
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Court found the California regulations to be
too broad and too vague
Court required procedural safeguards when
mail was rejected; these included
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Notification of inmate
Author of letter is given opportunity to protest
rejection
Protest reviewed by person other than one
who did initial disapproval
Procunier v. Navarette (1978)
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Inmate sued California officials claiming
interference with outgoing mail –
specifically, the failure to mail several
letters
Officials claimed qualified immunity
Procunier v. Navarette: cont’d
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Court held that in a civil rights action under
Section 1983, prison officials are protected
against liability (receive qualified immunity) if
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When the conduct complained of took place,
there was no established First Amendment
right of inmates
Court held that, at time of Navarette, there
was no clearly established constitutional right
protecting inmate’s correspondence
Procunier v. Navarette: cont’d
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If a case with these facts arose today,
a different outcome likely; qualified
immunity would not be immediately
available
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The courts would have to examine the
officials’ conduct and hold it up against the
established constitutional standards on
correspondence (Procunier and succeeding
cases)
Turner v. Safley (1987)
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2 Missouri regulations under review
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Correspondence between inmates
Inmate right to marry
Turner v. Safley: cont’d
Court recognized
 That running a prison is an “inordinately
difficult undertaking” that requires expertise,
planning, and the commitment of resources
 That the courts are not good places to deal
with the problems of prison administration
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Said “separation of powers concerns counsel a
policy of judicial restraint”
Turner v. Safley: cont’d
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Court held
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When prison regulation impinges on an
inmate’s constitutional rights,
That regulation is valid
If reasonably related to legitimate
penological interests
Turner v. Safley: cont’d
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Identified following four factors for
assessing “reasonableness”
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Must be a valid rational connection
between prison regulation and the
legitimate governmental interest put forth
to justify it
A court must look at whether there are
alternative means of exercising the right
that remain open to prison inmates
Turner v. Safley: cont’d
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The courts must look at the impact the
accommodation of the asserted
constitutional right will have on inmates,
guards, and general allocation of prison
resources
The absence of ready alternatives is
evidence of the reasonableness of a prison
regulation
Turner v. Safley: cont’d
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Inmate correspondence
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Missouri allowed correspondence with
immediate family in other institutions, and
Correspondence between inmates in
separate institutions about legal matters
Other correspondence between inmates
generally not allowed
Turner v. Safley: cont’d
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Four part “test” – 1. Is there a valid
rational connection between the
regulation and the legitimate
governmental interest put forth?
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Yes, inmate-to-inmate mail between
prisons could communicate escape plans or
arrange assaults, retribution, other
violence
Turner v. Safley: cont’d
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2. Are there alternative means of
exercising the right that remain open to
inmates?
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Regulation did not deprive inmates of all
means of expression – applied only to a
limited group who posed particular
concerns to prison officials
Turner v. Safley: cont’d
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3. What would be the impact of the
accommodation of the asserted
constitutional right on inmates, guards,
and the allocation of prison resources?
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To allow could result in less safety and
security for others, both inmates and staff
Turner v. Safley: cont’d
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4. Are there ready alternatives?
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Court found there was no obvious, easy
alternative to the adopted policy
Court held that “the prohibition on
correspondence is reasonably related to
valid correctional goals”
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State regulation found constitutionally valid
Turner v. Safley: cont’d
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Inmate marriage
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State regulation did not allow – prison
officials claimed marriage was not
constitutionally protected
Turner v. Safley: cont’d
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Court did not agree
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State regulation held to be an
exaggerated response to the security
concerns of prison officials
Regulation found not to be reasonably
related to legitimate penological
interests
Turner v. Safley: cont’d
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Court held that while the right to
marry could be subject to necessary
restrictions inherent in confinement,
the beneficial elements of marriage
“are sufficient to form a
constitutionally protected marital
relationship in the prison context”
Turner v. Safley: cont’d
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In the 2003 case, Toms v. Taft, appeals court
held prison had obligation to assist an inmate
in exercising his right to marry where a
refusal to assist frustrates that right
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Ohio law required both parties seeking a
marriage license to personally appear in the
probate court to make application
State refused; appeals court held such refusal
can amount to a prison regulation under
Turner
Correspondence in Foreign
Language
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Supreme Court has not yet addressed
Lower courts have held
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When translation service is available and
Correspondence has been allowed for
other languages
Prohibiting some mail in a different
language is not allowed
Thornburgh v. Abbott (1989)
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Concerns receipt of publications –
magazines, newspapers, books, and
clippings from those materials
Thornburgh v. Abbott: cont’d
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Federal prison regulation allowed
inmates to receive outside publications,
but allowed prison officials to reject if
found detrimental to security, good
order or discipline of the prison or if it
might facilitate criminal activity
Thornburgh v. Abbott: cont’d
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Could not reject on such grounds as
religious, philosophical, political, social,
or sexual content, or if the content was
unpopular or repugnant
Thornburgh v. Abbott: cont’d
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Examples of publications that could be
disallowed
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Depicted homosexuality, sado-masochism,
or bestiality, provided such materials found
to pose a security threat to the institution
Sexually explicit material involving children
could always be excluded
Inmates and some publishers
challenged
Thornburgh v. Abbott: cont’d
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Court held applicable standard was
Turner
Court ruled the regulations were
reasonably related to legitimate
penological interests – prison security
Court held there was no obvious
alternative that could achieve the same
result
Bell v. Wolfish (1979)
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Case primarily known for dealing with
jail conditions; also had a mail aspect
Mail aspect dealt with requiring inmates
to receive publications only from the
publisher
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Basis for rule – security concerns –
contraband is less likely to be secreted in
publications sent from the publisher
Bell v. Wolfish: cont’d
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Court found regulation to be
reasonable, noting
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Obvious security concern
There were other ways for inmates to
obtain reading materials (prison library
being one)
Regulation was content-neutral
Inmate Postage
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Appeals courts have held that prison
officials may limit (for non-legal mail)
the number of stamps given to an
indigent inmate
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May also limit the number of stamps that
an inmate may purchase or possess
Nude Photos
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Lower courts have upheld ban on nude
photos of wives and girlfriends
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Ban based on valid, rational concern about
maintaining prison order and security
Highly emotional, could lead to violent
altercations
Lower court noted – “one man’s
pornography may be another’s
keepsake”