by John E. Dannenberg

The California Department of Corrections and Rehabilitation (CDCR) settled a lawsuit brought by Jesus Christ Prison Ministry (JCPM) that sought to overcome CDCR's rigid bar to mailing free materials to prisoners. The settlement was based on the intervening Ninth Circuit decision in Prison Legal News v. Lehman, 397 F.3d 692 (9th Cir. 2005) involving the Washington state Department of Corrections, which caused CDCR to revise its policies regarding non-subscription bulk mail and catalogs.

Ronald John was released from CDCR in 1997 after serving seven years.
Thereafter, he founded JCPM in Lucerne Valley, CA, and published a soft-cover book, Change Your Life Biblically. This book, intended for a prisoner audience, was mailed to prisoners at CDCR's Substance Abuse Treatment Facility (SATF), a state prison in Corcoran. But that was as far as the books got -- to the prison. Prisoners were denied their receipt because of CDCR's mail policy that prohibited bulk (third-class) mail from non-approved vendors. (Approved vendors included only major players such as Amazon.com and Barnes and Noble.) In tension by this policy were the prisoners' First Amendment rights to religious practice and CDCR's rights to maintain security. The Pacific Justice Institute took up John's cause in the names of SATF prisoners Daniel Leffel, Marvin Salinas and Daniel Marchy and filed suit in federal court in March 2005.

Shortly thereafter, the Ninth Circuit U.S. Court of Appeals decided Prison Legal News v. Lehman, wherein similar issues regarding non-subscription bulk mail restrictions were resolved favorably, resulting in CDCR amending its mail regulations. Unique to JCPM's complaint was that they sought to mail prisoners not only books, but CDs and audio tapes containing sermons and other Christian teachings. CDCR's policy only permitted such media to be donated to prison chaplains, who could then sign out the material to prisoner congregants. The complaint further alleged that regular use of such religious materials was wholly in keeping with CDCR's penological interests, namely in positive behavioral reformation. CDCR retched, noting that such media was contraband unless it came, properly packaged, from approved vendors. The state of affairs, then, was that CDCR prisoners were permitted to receive harsh "rap" CDs from approved vendors, but were not permitted First-Amendment-protected religious materials solely because of the purveyor. The plaintiffs sought declaratory and injunctive relief.

The district court found that CDCR's mail policy violated the prisoners' constitutional rights under 42 U.S.C. § 2000cc, et seq., the Religious Land Use and Institutionalized Persons Act (RLUIPA). Going to the heart of the matter, the court found that CDCR had not advanced any evidence to support a meaningful distinction between the terms "approved vendor" and "unapproved vendor," and held CDCR's alleged distinction to be "arbitrary." Therefore, the court held that the first factor of Turner v. Safley, 482 U.S. 78 (1987) had been met [failure to demonstrate a logical connection between a prison regulation and its asserted goal], and that no further Turner analysis was necessary. The court granted summary judgment in favor of the prisoner plaintiffs on the basis of their free exercise and free speech challenges to CDCR?s mail policy.

The court also granted plaintiffs' summary judgment motion as to their RLUIPA rights. It was undisputed that JCPM's materials were not alternatively available from any other vendor. Further, the restrictions banning JCPM's instructional media imposed a substantial burden on the plaintiffs' religious beliefs. Moreover, defendants could offer no legitimate governmental interest in promoting such restrictions. Accordingly, the court left to the parties the task of working out a settlement of a policy change that would accommodate the plaintiffs' rights.

In an April 2007 Settlement Agreement, the parties stipulated to a Temporary Operational Procedure for SATF, to be a pilot project at (only) SATF for the purpose of developing a workable final CDCR-wide policy. The essentials of the Procedure are that SATF prisoners desiring to receive materials from JCPM shall arrange with JCPM for their needs. Once per month, JCPM shall ship all such requests in bulk to SATF, addressed to "Religious Programs." Cassette tapes and CDs shall not be designated for one named prisoner unless only one copy was requested. The purpose is to protect against JCPM knowing precisely which copy of which tape/CD went to which prisoner -- a security issue. The designated chaplain shall be responsible for randomly reviewing tapes/CDs to verify valid religious content, within five days of receipt. Once this preliminary screening is completed, the package and prisoner manifest are forwarded to SATF's Investigative Services Unit (ISU) (a.k.a., the security squad} for "informational and investigative" purposes. The ISU shall review the media for any hidden files or recordings, also within five days, and forward approved material to Receiving and Release for issuance to the prisoners and inclusion on their property cards. All normal prison rules pertaining to total quantity of tapes and CDs in one's possession shall apply.

This case sets a new standard for receipt of religious programming materials that may apply in many other jurisdictions. The plaintiffs' Sacramento, CA attorneys, Brad W. Dacus and Kevin Snyder of Pacific Justice Institute, were awarded $16,400 in attorney fees and costs. See: Jesus Christ Christian Ministry v. CDCR, 456 F.Supp.2d 1188 (2006), U.S.D.C. Case No. CIV-S-05-0440 DAD, Order (September 27, 2006), Settlement Agreement (April 16, 2007) [including Attachment 1, [Temporary Operational Procedure]. The settlement is posted on PLN's website.

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