Case Nos. 03-3229, 03-3230, and 03-3227
IN THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
PRISON LEGAL NEWS, INC.,
Plaintiff/Appellant,
vs.
CHARLES SIMMONS,
Defendant!Appellee.

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KRIS ZIMMERMAN,
Plaintiff/Appellant,
vs.
CHARLES SIMMONS et. aI,
Defendants/Appellee.

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JOSEPH E. JACKLOVICH, SR.
Plaintiff/Appellant,
vs.
CHARLES SIMMONS et. al,
Defendants/Appellee.

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Brief of Amicus Curiae American Civil Liberties Union of
Kansas and Western Missouri in Support of Reversal
On appeal from the United States District Court for the District of Kansas
The Honorable G. Thomas VanBebber
District Court Case Nos. 02-4054, 00-3370, and 01-3017
J. Patrick Sullivan
Shook, Hardy & Bacon L.L.P.
One Kansas City Place
1200 Main Street
Kansas City, Missouri 64105
Telephone: (816) 474-6550
Facsimile: (816) 421-5547
Attorneys for Amicus Curiae ACLU
of Kansas and Western Missouri
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TABLE OF CONTENTS

TABLE OF CONTENTS

i

TABLE·OF AUTHORITIES

ii

INTERESTS OF AMICUS CURIAE

1

PRELIMINARY STATEMENT

2

ARGUMENT

4

1.

The KDOC's Blanket Ban on Gift Subscriptions Violates the First
Amendment.
A.

The District Court Erred in Crediting the KDOC's Asserted
Security Justification
(1)
(2)

B.

The KDOC's Strong-Arming Justification is Without
Merit.

6
6
6

The KDOC's Tracking Justification is Without Merit.....7

The District Court Erred in Crediting the KDOC's
Rehabilitative Justification

8

2.

Prison Legal News has a Due Process Right to Receive Notice and an
Opportunity to Protest when its Publications are not Delivered to
KDOC Inmates
9

3.

The $30 Limit on Subscription Purchases violates the First
Amendment.

10

CONCLUSION

10

CERTIFICATE OF SERVICE

12

CERTIFICATE OF COMPLIANCE WITH RULE 32(a)(7)

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TABLE OF AUTHORITIES
CASES

Clement v. California Dept. of Corrections, 220 F. Supp. 2d 1098 (N.D. Cal.
2002)

4,5

Crofton v. Roe, 170 F.3d 957 (9th Cir. 1999)
Montcalm Publishing Corp. v. Beck, 80 F.3d 105 (4th Cir. 1996)
Morrison v. Hall, 261 F.3d 896 (9th Cir. 2001)
Prison Legal News v. Cook, 238 F.3d 1145 (9th Cir. 2001)

5, 6, 7
9
4,5
5, 10

Procunier v. Martinez, 416 U.S. 396 (1974)

5, 6, 9

Rice v. Kansas, 76 P.3d 1048 (Kan. Ct. App. 2003)

4, 6, 8

Thornburgh v. Abbott, 490 U.S. 401 (1989)

4, 10

Turner v. Safely, 482 U.S. 78 (1989)

.4

Wolffv. Mcdonnell, 418 U.S. 539 (1974)

.4

Zimmerman v. Simmons, 260 F. Supp. 2d 1077 (D. Kan. 2003)

9

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INTERESTS OF AMICUS CURIAE
The American Civil Liberties Union is a nationwide, nonprofit, nonpartisan
organization of more than 300,000 members dedicated to the principles of liberty
and equality embodied in the Constitution and this nation's civil rights laws. The
ACLU of Kansas and Western Missouri is one of its affiliates. The ACLU
established the National Prison Project to protect and promote the civil and
constitutional rights of prisoners. In its 30-year history, the National Prison Project
has successfully represented over 100,000 confined men, women, and children. It
has often participated as amicus curiae or as direct counsel in cases involving the
constitutional rights of prison inmates and persons, including publishers, who seek
to communicate in writing with prisoners.

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PRELIMINARY STATEMENT

Subscription publications are one of the few ways for prison inmates to
obtain information on topics of interest ranging from health, news, or religion, to
simply jokes or poems. But many publications are beyond most inmates' limited
financial resources. Thus the only way those inmates can obtain them is by gifts
from family members or friends. Because of the widely-recognized rehabilitative
benefits of subscription publications, federal prisons and state prisons around the
country allow inmates to receive gift subscriptions.
The Kansas Department of Corrections, however, has banned gift
subscriptions and, at the same time, placed stringent monetary limits on the amount
inmates can spend directly on publications. The KDOC also does not inform the
publisher if a subscription has not been delivered because of these policies. The
KDOC has asserted security and rehabilitative justifications for its out-of-step
treatment of gift subscriptions. It purportedly fears that allowing gift subscriptions
could lead to strong-arming-one inmate threatening another in order to receive a
gift subscription. The KDOC also apparently believes that the ban on gift
subscriptions provides an incentive for good behavior.
In addition to running contrary to other prison systems , the KDOC's policies
are arbitrary, irrational, and a violation of the First Amendment. The KDOC's
asserted security justification is totally undercut by its policy of allowing outsiders
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to deposit cash directly in inmates' accounts. Strong-arming is far more likely to
occur with cash than with a gift subscription. In any event, the KDOC could
simply require anyone purchasing a gift subscription for an inmate to complete a
special purchase order form identifying the publication, the inmate for whom the
publication was purchased, and the identity of the subscription purchaser. A similar
purchase order is already required when an inmate purchases a subscription
directly, and thus this alternative would impose little or no additional burden on
prison officials. And it fully answers any security concerns by allowing prison
officials to track the source of a gift subscription.
Further, the KDOC's rehabilitative justification hardly justifies a blanket ban
on gift subscriptions. A blanket ban is far too restrictive and does nothing either to
promote a change in behavior by the worst-behaved inmates or reward the bestbehaved inmates. A rational incentive-based system would allow gift subscriptions
for inmates who earn the privilege of receiving them instead of banning them for
all inmates.
Finally, the KDOC 's policy of not notifying a publisher when its publication
is withheld from an inmate is contrary to well-established law. At a minimum, the
publisher is entitled to notice and an opportunity to protest the KDOC's decision.

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The Kansas Court of Appeals recently struck down the DOC 's blanket ban
on gift subscriptions.' This Court should too.

ARGUMENT
"There is no iron curtain drawn between the Constitution and the prisons of
this country .,,2 Thus, although imprisonment requires a prisoner to forfeit certain
rights and privileges, prisoners enjoy basic constitutional guarantees, including the
right to free speech.'
The enforcement of inmates' First Amendment rights serves important
societal interests. Society has a strong interest in ensuring that inmates maintain
contact with their communities and families, both for the beneficial effect on
inmate morale and well-being while confmed, and for the value in promoting
inmates' reintegration into society upon release." As the Supreme Court observed:
Constructive, wholesome contact with the community is a valuable
therapeutic tool in the overall correctional process. . . . Correspondence
Rice v. Kansas, 76 P.3d 1048 (Kan. Ct. App.), review granted, No. 02-89759-AS,
2003 Kan. LEXIS 620 (Nov. 12,2003) Although the grant of review by the
Kansas Supreme Court technically renders Rice to be without precedential value,
amicus curiae submits that its reasoning is persuasive and should be followed by
this Court.
2

Wolffv. Mcdonnell, 418 U.S. 539, 555-56 (1974); see also Turner v. Safely, 482
U.S. 78, 84 (1989) ("prison walls do not form a barrier separating prison inmates
from the protections of the constitution").

3

Thornburgh v. Abbott, 490 U.S. 401, 410 n.9 (1989).

4

See, e.g., Morrison , 261 F.3d at 904 n.7 (citing Willoughby Mariano, Reading
Books Behind Bars Reading Programs For State Prison Inmates And Juvenile
Hall Wards Are Critical To Helping Offenders Develop Literacy And Avoid
Return To Crime, Experts Say, L.A. Times, Jan. 30, 2000, at b2); Clement v.
California Dep't of Corrections, 220 F. Supp. 2d 1098, 1110 (N.D. Cal. 2002)
("there are, in short, recognized rehabilitative benefits to permitting prisoners to
receive educational reading material and maintain contact with the world outside
the prison gates.").
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with members of an inmate's family, close friends, associates and
organizations is beneficial to the morale of all confined persons and may
form the basis for good adjustment in the institution and the community'
Recognizing prisoners' free speech rights under the First Amendment, courts
have regularly enforced prisoners' rights to receive information and
correspondence from the outside world. For example, courts have struck down
prison regulations• banning all mail sent by third or fourth class or bulk rate as applied to
for-profit subscriptions,"
• banning all standard rate mail as applied to nonprofit organization
mail," and
• banning regular mail containing Internet-generated materials."
And two decisions, one by the Ninth Circuit and one by the Kansas Court of
Appeals, have struck down prison regulations that banned all gift subscriptions."
Those courts found the categorical ban to be unjustified by the concerns asserted
by prison officials and therefore an impermissible abridgement of prisoner's First
Amendment rights. Indeed, federal and state prisons around the country allow

5

Procunier v. Martinez, 416 u.s. 396,412 (1974) (quoting Policy Statement
7300.1A of the Federal Bureau of Prisons and Policy Guidelines for the
Association of State Correctional Administrators), rev'd on other grounds,
Thornburgh v. Abbott, 490 u.S. 401 (1989).

6

Morrison v. Hall, 261 F.3d 896,904 (9th Cir. 2001).

7

Prison Legal News v. Cook, 238 F.3d 1145, 1151 (9th Cir. 2001).

8

Clement v. California Dept. ofCorrections, 220 F. Supp. 2d 1098, 1109-13 (N.D.

Cal. 2002).
9

Crofton v. Roe, 170 F.3d 957,960-61 (9th Cir. 1999); Rice, 76 P.3d at 1054.
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inmates to receive gift subscriptions.l" This Court should follow the two published
appellate decisions on this point and the prevailing practice at prisons around the
country and reverse the decision of the district court.

1.

The KDOC's Blanket Ban on Gift Subscriptions Violates the First
Amendment.

A.

The District Court Erred in Crediting the KDOC's Asserted
Security Justification.

(1)

The KDOC's Strong-Arming Justification is Without Merit.
In Rice v. Kansas." the Kansas Court of Appeals struck down the identical

regulation at issue here. The court agreed with the district court's rejection of the
strong-arming justification proffered by the prison officials, concluding that
strong-arming was just as likely, or indeed more likely, to occur when the subject
of it was cash, yet the prison officials allowed persons outside the prison to send
cash for deposit in inmate accounts. V The court found Crofton v. Roe 13 to be
persuasive on this point. In Crofton, the Ninth Circuit struck down a similar ban on
10

See 28 C.P.R. 540.70 (1996) ("[T]he Bureau of Prisons permits an inmate to
subscribe to or receive publications without prior approval , and has established
procedures to determine if an incoming publication is detrimental to the security,
discipline, or good order of the institution, or if it might facilitate criminal
activity.") ; 7 NYCRR § 712.1(a) (2003) ("inmates shall be allowed to subscribe to
and possess a wide range of printed matter such as books, magazines and
newspapers, usbject to the provisions of this directive, because these items may
prompt constructive development"); see also Procunier, 416 U.S. at 414 n.14
("While not necessarily controlling, the policies followed at other well-run
institutions would be relevant to a determination of the need for a particular type
of restriction.").

11

76 P.3d 1048 (Kan. Ct. App. 2003).

12

Id. at 1053.

13

170 P.3d 957, 960 (9th Cir. 1999).
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gift subscriptions and rejected the prison officials' strong-arming justification,
finding:
The state's argument weakened by its allowance of family and friends of
inmates to send money, a practice which also raises strong-arming
concerns. The ability of persons on the inmate's visiting list to send gift
packages and money, but not constitutional protected publications, [is] also
[troublingj."

The district court did not even address this portion of Crofton or how it
related to the KDOC's similar policy of allowing cash gifts to inmates. This Court
should follow the compelling rationale of Rice and Crofton and overturn the
district court's ruling.

(2)

The KDOC's Tracking Justification is Without Merit.
Rice also addressed the tracking justification accepted by the district court.

Its reasoning on this point is persuasive and should be followed by this Court. Rice
rejected the KDOC's argument that allowing access to gift subscriptions would
interfere with their interest in monitoring the source of funds and property directed
to inmates and the distribution or disbursement of funds and property by inmates:
We also do not accept respondents' argument that allowing access to gift
periodicals for inmates would necessarily interfere with a legitimate
government interest in monitoring the source of funds and property directed
to inmates and the disbursement or distribution of funds and property by
them. The record contains no evidence of any reason that respondents
cannot develop an alternate [special purchase order] to cover gift
periodicals; such a form could require the ordering friend or family member
of the inmate to state the cost of the periodical, the source and manner of

14

Id. at 960.
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payment, and any other data needed for the prison business office and
mailroom to perform their monitoring functions. 15

A special purchase order is already required for subscriptions purchased directly
from an inmate's account." As in Rice, the record here contains no evidence of any
reason that the prison officials could not develop a slightly modified spa to cover
gift periodicals."

B.

The District Court Erred in Crediting the KDOC's Rehabilitative
Justification.
The district court apparently credited the rehabilitative justification offered

by the KDOC, although it did not analyze this issue in any detail. To the extent that
it found a rational relationship between the ban on gift subscriptions and the
maintenance of an incentive system for good behavior, it was wrong. Rice again is
persuasive on this point:
If respondents wish to press the promise of access to gift periodicals into
the service of their security and rehabilitation goals, it would be rational to
permit such access under IMPP 11-101 but only as one of the rewards for
good behavior and attainment of a higher 'level.' It is not rational to
eliminate all access to all gift periodicals for all inmates, be they model
prisoners or habitual disciplinary rule violators. A blanket ban is too broad
a restriction on the First Amendment rights of the well behaved and fails to
restrict the ill behaved in any manner designed to promote a change in their

ways."

15

Rice, 76 P.3d at 1054.

16

February 20, 2001, KDOC Interdepartmental Memorandum [need reference to
record]
Id.

17
18

76 P.3d at 1054.
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A blanket ban on gift subscriptions is totally inconsistent with any rational
rehabilitative system, and any such justification should be rejected by this Court.

2.

Prison Legal News has a Due Process Right to Receive Notice and an
Opportunity to Protest when its Publications are not Delivered to
KDOC Inmates.
The law is clear. "[P]ublishers are entitled to notice and an opportunity to be

heard when their publications are disapproved for receipt by inmate subscribers.?"
Both the inmate and the publisher must be notified when a publication is rejected
and given a reasonable opportunity to protest that decision.r"
The district court sidestepped this Due Process requirement by concluding
that, since there was a blanket ban on gift subscriptions and on the receipt of
subscriptions by Level 1 inmates, the long-established law in this area somehow
did not apply." Amicus curiae is unaware of any court making the distinction made
by the district court here, and the district court cited no authority for its holding on
this point. To the contrary, a "publisher' s First Amendment right must not depend
on" receiving notice from the inmate.

22

Indeed, disapproval of a publication may

be unconstitutional whether done on a case-by-case basis or under a blanket policy.
In either instance, the only way a publisher such as PLN can challenge an
19

Montcalm Publishing Corp. v. Beck, 80 F.3d 105, 106 (4th Cir. 1996).

20

Procunier, 416 U.S. at 418-19 (affirming district court requirement that both
inmate and author of rejected letter be notified of the rejection and given a
reasonable opportunity to protest that decision).

21

Zimmerman v. Simmons, 260 F. Supp . 2d 1077, 1086 (D. Kan. 2003) .

22

Montcalm , 80 F.3d at 109.
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unconstitutional rejection is for it to receive notice. PLN has a "legitimate First
Amendment interest in access to prisoners'<' and is entitled to notice and an
opportunity to be heard if that access is denied.

3.

The $30 Limit on Subscription Purchases violates the First
Amendment.
Amicus curiae agrees with the arguments made in Appellants' Brief on this

point and adopts those arguments by reference.
CONCLUSION
The standard for this Court to apply in reviewing the KDOC's policies
policies "is not toothless.v'" The KDOC's blanket ban on gift subscriptions and its
failure to notify publishers when a subscription is not delivered are arbitrary,
irrational, and unconstitutional. The decision of the district court should be
reversed.
Respectfully submitted,

J. Patrick Sullivan
Shook, Hardy & Bacon L.L.P.
One Kansas City Place
1200 Main Street
Kansas City, Missouri 64105
Telephone: (816) 474-6550
Facsimile: (816) 421-5547

23

Prison Legal News v. Cook, 238 F.3d 1145, 1149 (9th Cir. 2001).

24

Thornburgh v. Abbott, 490 U.S. 401, 414 (1989).
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Attorneys for Amicus Curiae ACLU
of Kansas and Western Missouri

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CERTIFICATE OF SERVICE

I hereby certify that the appropriate number of copies were mailed, postage
prepaid, this _

day of December, 2003, to:

Patrick Fisher
Clerk of Court
United States Court of Appeals
for the Tenth Circuit
Byron White U.S. Courthouse
1823 Stout Street
Denver, Colorado 80257
Timothy G. Madden
Counsel to the Secretary
Kansas Department of Corrections
900 S.W. Jackson Street, 4th Floor
Topeka, Kansas 66612
Bruce Plenk
Max Kautsch
Law Office of Bruce Plenk
16 East 13th Street
Lawrence, Kansas 66044

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CERTIFICATE OF COMPLIANCE WITH RULE 32(A)(7)

Pursuant to Federal Rule of Appellate Procedure 32(a)(7)(C), I certify that
this brief complies with the type-volume limitation of Federal Rule of Appellate
Procedure 32(a)(7)(B) and Tenth Circuit Local Rule 32.1 because this Brief was
prepared with Word version _ and, pursuant to the word count of that software,
the Brief contains _

words. This Brief was prepared in Times New Roman 14-

point font.

J. Patrick Sullivan

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