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BOP Mail Rule Banning Internet Downloads and Soft Cover Publications Not Sent by Publisher Held Unconstitutional
by John E. Dannenberg
On October 26, 2006, in an unpublished order, the U.S. District Court (D. Colo.) held that 28 C.F.R. § 540.71(a)(2), which restricts Bureau of Prisons (BOP) prisoners from receiving soft cover publications unless they come directly from the publisher, a book club or a bookstore, satisfies no legitimate penological interest and therefore violated the prisoners? First Amendment rights.
Mark Jordan, a BOP prisoner at ADX Florence, was refused mail delivery containing a 120-page internet essay series entitled ?Justice Denied,? photocopies of two magazine articles and clippings from articles. None of these materials advanced prison gangs, escape, racism or hatred, or contained pornography. Jordan brought his civil rights claims in federal district court in November 2003. The case went to a one-day bench trial in July 2006.
The court made findings of fact that (1) in January, 2003, the BOP amended § 540.71 to include ?[a]t medium security, high security and administrative institutions, an inmate may receive soft-cover publications (for example, paperback books, newspaper clippings, magazines and other similar items) only from the publisher, from a book club, or from a bookstore;? (2) the regulation?s stated purpose was ?to reduce the amount of contraband introduced into Federal prisons;? (3) Jordan was refused the above-mentioned mail; (4) Jordan had fully exhausted his administrative remedies; (5) in July 2002, when originally proposing the amended § 540.71, BOP included in its definition of ?softcover materials,? ?clippings, items in paper folders, pamphlets, catalogs, brochures and other items of a similar nature;? and (6) testimony of Florence staffer Mary Sosa revealed that ADX had narrowed this definition sua sponte to exclude the now contested articles.
Nonetheless, former ADX Inmate Systems Manager John Lee testified that it was no more likely that contraband would surface in a one-page internet print-out or news clipping than in a one-page letter, nor would it take more time to search the former than the latter.
In January 2006, Florence?s Warden issued a memorandum of guidance ?due to unsettled judicial issues? [presumably the instant pending lawsuit] that read, ?Inmates will be permitted to receive incoming correspondence containing newspaper or magazine clippings from non-commercial sources? [subject to institutional security and mail volume concerns]. But no official change to § 540.71 was issued by the BOP.
After first determining that the suit was not rendered moot by the Warden?s adoption of this new internal policy, the court proceeded to analyze Jordan?s claims under the four-part test of Turner v. Safley, 482 U.S. 78, 89-90 (1987). Although the court readily found that internet publications were fully protected under the First Amendment, it observed that prisoners were still subject to a ?legitimate penological interest? restriction. Reviewing the first Turner factor, the court found there was simply no valid, rational connection to § 540.71?s source restrictions, other than as to quantity or content. The court found the second Turner factor unmet, in that no ready alternative to this source of information was proffered by defendants. (The court cited favorably to PLN?s recent case, Jacklovich v. Simmons, 392 F.3d 420 (10th Cir. 2004)) for the proposition that TV or radio access was not a substitute for reading newspapers and magazines.) Under Turner?s third factor, no evidence existed that these items would materially affect guards or the allocation of prison resources. Finally, the court found the fourth Turner factor was met (the existence of a ready alternative to the regulation) by the Warden?s own January 2006 memorandum.
Accordingly, the court held that § 540.71(a)(2) was overbroad and was not saved by Turner. It entered a judgment declaring 28 C.F.R. § 540.71(a)(2) to be unconstitutional as to Jordan?s issues and permanently enjoined the BOP from enforcing this restrictive regulation against him. See: Jordan v. Hood, U.S.D.C. (D. Colo.), Case No. 03-cv-02320-PSF-MJW.
On October 26, 2006, in an unpublished order, the U.S. District Court (D. Colo.) held that 28 C.F.R. § 540.71(a)(2), which restricts Bureau of Prisons (BOP) prisoners from receiving soft cover publications unless they come directly from the publisher, a book club or a bookstore, satisfies no legitimate penological interest and therefore violated the prisoners? First Amendment rights.
Mark Jordan, a BOP prisoner at ADX Florence, was refused mail delivery containing a 120-page internet essay series entitled ?Justice Denied,? photocopies of two magazine articles and clippings from articles. None of these materials advanced prison gangs, escape, racism or hatred, or contained pornography. Jordan brought his civil rights claims in federal district court in November 2003. The case went to a one-day bench trial in July 2006.
The court made findings of fact that (1) in January, 2003, the BOP amended § 540.71 to include ?[a]t medium security, high security and administrative institutions, an inmate may receive soft-cover publications (for example, paperback books, newspaper clippings, magazines and other similar items) only from the publisher, from a book club, or from a bookstore;? (2) the regulation?s stated purpose was ?to reduce the amount of contraband introduced into Federal prisons;? (3) Jordan was refused the above-mentioned mail; (4) Jordan had fully exhausted his administrative remedies; (5) in July 2002, when originally proposing the amended § 540.71, BOP included in its definition of ?softcover materials,? ?clippings, items in paper folders, pamphlets, catalogs, brochures and other items of a similar nature;? and (6) testimony of Florence staffer Mary Sosa revealed that ADX had narrowed this definition sua sponte to exclude the now contested articles.
Nonetheless, former ADX Inmate Systems Manager John Lee testified that it was no more likely that contraband would surface in a one-page internet print-out or news clipping than in a one-page letter, nor would it take more time to search the former than the latter.
In January 2006, Florence?s Warden issued a memorandum of guidance ?due to unsettled judicial issues? [presumably the instant pending lawsuit] that read, ?Inmates will be permitted to receive incoming correspondence containing newspaper or magazine clippings from non-commercial sources? [subject to institutional security and mail volume concerns]. But no official change to § 540.71 was issued by the BOP.
After first determining that the suit was not rendered moot by the Warden?s adoption of this new internal policy, the court proceeded to analyze Jordan?s claims under the four-part test of Turner v. Safley, 482 U.S. 78, 89-90 (1987). Although the court readily found that internet publications were fully protected under the First Amendment, it observed that prisoners were still subject to a ?legitimate penological interest? restriction. Reviewing the first Turner factor, the court found there was simply no valid, rational connection to § 540.71?s source restrictions, other than as to quantity or content. The court found the second Turner factor unmet, in that no ready alternative to this source of information was proffered by defendants. (The court cited favorably to PLN?s recent case, Jacklovich v. Simmons, 392 F.3d 420 (10th Cir. 2004)) for the proposition that TV or radio access was not a substitute for reading newspapers and magazines.) Under Turner?s third factor, no evidence existed that these items would materially affect guards or the allocation of prison resources. Finally, the court found the fourth Turner factor was met (the existence of a ready alternative to the regulation) by the Warden?s own January 2006 memorandum.
Accordingly, the court held that § 540.71(a)(2) was overbroad and was not saved by Turner. It entered a judgment declaring 28 C.F.R. § 540.71(a)(2) to be unconstitutional as to Jordan?s issues and permanently enjoined the BOP from enforcing this restrictive regulation against him. See: Jordan v. Hood, U.S.D.C. (D. Colo.), Case No. 03-cv-02320-PSF-MJW.
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Related legal case
Jordan v. Hood
| Year | 2006 |
|---|---|
| Cite | U.S.D.C. (D. Colo.), Case No. 03-cv-02320-PSF-MJW |
| Level | District Court |
| Conclusion | Bench Verdict |
| Injunction Status | Granted |