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Prison Legal News v. Cook, Ninth Circuit Opinion Reversing Dismissal, Oregon DOC Censorship 2001

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PRISON LEGAL NEWS; MARK WILSON; MICHAEL TUCKER; HUNG LE,
Plaintiffs-Appellants, v. DAVID S. COOK, Director of Oregon Department of
Corrections; DAVID SCHUMACHER, Rules/Compliance Manager of Oregon
Department of Corrections, Defendants-Appellees.
No. 99-36084
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
238 F.3d 1145; 2001 U.S. App. LEXIS 1729; 29 Media L. Rep. 1641; 2001 Cal.
Daily Op. Service 1121; 2001 Daily Journal DAR 1416
November 14, 2000, Argued and Submitted, Portland, Oregon
February 7, 2001, Filed

PRIOR HISTORY: [**1] Appeal from the United
States District Court for the District of Oregon. D.C. No.
CV-98-01344-MFM. Malcolm F. Marsh, District Judge,
Presiding.

of the Oregon Department of Corrections ("the
Department"). We have jurisdiction pursuant to 8 U.S.C.
§ 1291 and reverse and remand.

DISPOSITION: REVERSED AND REMANDED.

This case concerns the constitutionality of the
Department's policy of prohibiting the receipt of standard
rate mail, as applied to subscription non-profit [**2]
organization mail. The following facts are undisputed.

LexisNexis(R) Headnotes

COUNSEL: Samuel J. Stiltner, Seattle, Washington, for
the plaintiffs-appellants.
Christina M. Hutchins, Assistant Attorney General,
Salem, Oregon, for the defendants-appellees.
Joseph E. Bringman, Perkins Coie, Seattle, Washington,
for the amici.
JUDGES: Before: Robert R. Beezer, Pamela Ann
Rymer and Susan P. Graber, Circuit Judges. Opinion by
Judge Beezer.

I

Since 1988, the Department has prohibited the
receipt of bulk mail into Oregon prisons under the
rationales that bulk mail is voluminous and generally of
little value to prisoners; substantial staff is required to
sort, inspect and distribute bulk mail; bulk mail poses
security concerns; and bulk mail increases fire hazards.
The Department regulation at issue prohibits all
incoming mail except "express mail, priority mail, first
class mail or periodicals mail." Or. Admin. R. 291-1310025(8) (1998). n1 Oregon has the only prison system
[*1147]
in the country that refuses to deliver
subscription non-profit organization standard mail like
that at issue.

OPINIONBY: Robert R. Beezer
OPINION: [*1146]
BEEZER, Circuit Judge:
Prison Legal News ("Publisher"), publisher of a nonprofit newsletter, and prisoners Michael Tucker, Mark
Wilson and Hung Le ("Prisoners") appeal the district
court's grant of summary judgment on their 42 U.S.C. §
1983 claims in favor of defendant officials ("Officials")

n1 Effective July 1, 1996, the United States
Postal Service ("Postal Service") redefined its
categories of mail. Mail that was previously
designated as third or fourth class mail (bulk
mail) is now classified as Standard A mail and
Standard B mail, respectively. Standard A mail is
further subdivided into two classes: "non-profit
organization" mail and "regular/commercial"
mail. Second class mail is now referred to as

Page 2
238 F.3d 1145, *; 2001 U.S. App. LEXIS 1729, **;
29 Media L. Rep. 1641; 2001 Cal. Daily Op. Service 1121
"periodicals." In 1998, the Department amended
its mail regulations to reflect the new Postal
Service designations.

n3 It is not clear what the Postal Service does
with the returned bulk mail. A prison mail
inspector testified in his deposition that Postal
Service employees have told him, on different
occasions, that the mail is destroyed, donated to
non-profit organizations and given to charities.
The Postal Service gave permission to one of
Oregon's penal institutions to destroy standard
mail on site, so standard mail sent to that
institution gets destroyed there rather than
returned to the Postal Service.

[**3]
The record shows that Oregon penal institutions
process a substantial amount of mail. Prior to the
enactment of the ban on bulk mail, the state penitentiary
reported receiving 500 pieces of bulk mail daily. An
informal survey taken in 1994 revealed that the
penitentiary mailroom staff processed 5000 to 8000
pieces of first class mail daily. In July 1999, the
mailroom staff reported receiving 662 pieces of standard
mail in five days, including 172 pieces of non-profit
organization mail. The Snake River Correctional
Institution ("Snake River") reported that it receives, on
average, 7000 to 8000 pounds of incoming mail a month.
Snake River also reported that over a four-day period in
January of 1999, n2 it received 296 pounds of standard
mail and that, over a five-day period in the same month,
it received 348 pounds of standard mail. The state's
Correctional Institution ("Correctional Institution")
reported that over a five-day period in July of 1999, it
received 288 pieces of standard mail, 86 of which were
non-profit organization mail.

n2 Because the record shows that Oregon
penal institutions receive more mail than usual
during holiday months like December and
January, we view these numbers as slightly more
than average.
[**4]
Department regulations establish procedures for
processing incoming mail applicable at all of its penal
institutions. First, all incoming inmate mail is sorted into
two categories: express, priority, first class and
periodicals mail is kept for further processing. All other
mail, including standard mail, is returned to the Postal
Service. n3 A prisoner has no way of knowing that a
particular piece of standard mail addressed to the
prisoner was returned or destroyed. In general, the
regulation itself provides notice that standard mail will
not be delivered. After the mail is sorted, mailroom staff
reviews the envelopes of acceptable mail for proper
address and return address information. Next, mailroom
staff reviews the inmate addressee's housing history and
writes the inmate's housing assignment on the envelope.
If the inmate has been transferred to another institution,
the mail is sent to that institution at the Department's
expense. Incoming mail is then opened and inspected for
content and contraband.

[**5]
For each piece of mail that is opened and deemed
unauthorized, mailroom staff must write a Mail Violation
Notice for correspondence or a Publications Violation
Notice for publications. When correspondence is opened
and rejected, the mailroom staff member writes the
reason for the rejection on a Mail Violation Notice, puts
the notice in the envelope and returns the envelope to the
sender. The inmate receives a copy of the violation
notice and has 15 days to request administrative review
of any rejection based on written or pictorial content.
The non-inmate sender has 15 days to request review of
any rejection. If a publication is rejected, notification and
review procedures are the same, except that the inmate
and the publisher have 30 days to request administrative
review of a rejection.
If Department regulations were to allow standard
mail, the Department's mailroom [*1148] staff would
be required to give standard mail the same attention it
gives to first class and periodicals mail, detailed above.
Because non-profit organization standard mail is
labeled on its face, it is feasible to separate such mail
from other standard mail, although it is impossible
facially to distinguish between [**6]
non-profit
organization subscriptions and other non-profit
organization mail. In addition, although Oregon penal
institutions receive a significant amount of standard
mail, the amount of standard non-profit organization
mail coming in over a selected two-week period was
"next to nothing." Moreover, the record indicates that the
state penitentiary processed and delivered notices from
the Oregon Attorney General, Department of Justice
Support Enforcement Division, which were labeled and
mailed as "Bulk Mail" and were insufficiently addressed.
II
The record identifies the problems experienced by
Oregon state prisoners who desire to subscribe to
materials published by non-profit organizations and
mailed under special rates fixed by the Postal Service.
Publisher Prison Legal News conducts its activity
through a non-profit organization, which prepares and

Page 3
238 F.3d 1145, *; 2001 U.S. App. LEXIS 1729, **;
29 Media L. Rep. 1641; 2001 Cal. Daily Op. Service 1121
circulates newsletters addressing prison-related issues.
Publisher qualifies to use Standard A "non-profit
organization rates" to circulate its newsletter. These
postal rates are substantially lower than rates for express
mail, priority mail, first class mail or periodicals mail.
Publisher has approximately 2600 subscribers, including
[**7]
prisoners, non-prisoners, professionals and
institutions. Fifteen Oregon state prisoners subscribe to
Publisher's newsletter. Several Department employees
reviewed Publisher's newsletter and determined that the
content rendered it acceptable for admission; that is, the
newsletter is rejected strictly because of the Standard A
postage rate. A prisoner could receive a subscription to
Publisher's newsletter provided that the material was
posted using first class or periodicals mail rates.
Prisoners Mark Wilson, Michael Tucker and Hung
Le are inmates at the state penitentiary. Wilson is a paid
subscriber to Publisher's newsletter. Publisher formerly
sent its newsletter to Wilson affixing first class postage,
in compliance with Oregon prison regulations.
According to Publisher's circulation director, this
practice recently became too expensive. Consequently,
Publisher sends all of its newsletters via standard rate
mail. Because the Department prohibits standard mail,
Wilson has not received his subscription to the
newsletter since January of 1999.
Tucker also tried to subscribe to the newsletter but
was informed by the editor that Publisher could not
honor his request because of the Department's [**8]
prohibition against standard mail. In addition, Tucker's
subscription to a different newsletter was thwarted by
reason of postal expenses incurred to meet the
Department's mail regulations.
Le requested religious material from the
International Prison Ministry, a non-profit organization
that sends out solicited Bibles and other material using
standard rate mail. Le received a letter from the chaplain
explaining that the request could not be fulfilled because
Oregon prisons would not deliver standard mail to
prisoners. n4

n4 Prisoners make no specific argument
about Le's claim on appeal, and we assume that it
has been abandoned.
III
We review de novo an order granting summary
judgment. Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir.
2000) (en banc). Viewing the evidence in the light most
favorable to the non-moving party, we determine
whether there are any genuine issues of material fact and

whether the district court correctly applied the relevant
substantive law. See id.
[*1149] Publisher and Prisoners [**9] first argue
that the Department's regulation banning standard mail
impermissibly infringes on their First Amendment rights.
The Supreme Court makes clear that in the prison
context, an inmate retains those First Amendment rights
not "inconsistent with his status as a prisoner or with the
legitimate penological objectives of the corrections
system." Jones v. North Carolina Prisoners' Labor
Union, Inc., 433 U.S. 119, 129, 53 L. Ed. 2d 629, 97 S.
Ct. 2532 (1977) (quoting Pell v. Procunier, 417 U.S.
817, 822, 41 L. Ed. 2d 495, 94 S. Ct. 2800 (1974)).
Furthermore, publishers who wish to communicate with
inmates by sending requested subscriptions have a
"legitimate First Amendment interest in access to
prisoners." Thornburgh v. Abbott, 490 U.S. 401, 408,
104 L. Ed. 2d 459, 109 S. Ct. 1874 (1989). We are
required to afford considerable deference to the expertise
and decisionmaking of prison administrators. See id. at
407-08; Turner v. Safley, 482 U.S. 78, 85, 96 L. Ed. 2d
64, 107 S. Ct. 2254 (1987).
As a preliminary matter, we reject Officials'
argument that the regulation banning standard mail does
not implicate Publisher's [**10] and Prisoners' First
Amendment rights because it results only in the loss of
cost advantages. Officials point to the main effect of the
Department's policy, which is to require non-profit
organizations, entitled to use standard mail rates, to
forego a cost advantage and use first class mail to send
their newsletters to prisoners in Oregon institutions. See
Jones, 433 U.S. at 130-31 (holding that where other
avenues remain available for the receipt of materials by
inmates, the loss of "cost advantages does not
fundamentally implicate free speech values"); see also
Bell v. Wolfish, 441 U.S. 520, 60 L. Ed. 2d 447, 99 S. Ct.
1861 (1979) (relying on Jones). In this case, although we
agree that the Department regulation mainly affects
economic interests, it is also clear that the regulation
implicates both Publisher's and Prisoners' First
Amendment rights. The speech at issue is core protected
speech, not commercial speech or speech whose content
is objectionable on security or other grounds. Nor does
the receipt of such unobjectionable mail implicate
penological interests. Cf. Jones, 433 U.S. at 131-32
(noting that the speech at issue, the solicitation [**11] of
membership in prisoners' union, raised security concerns
because it was an "invitation to collectively engage in a
legitimately prohibited activity"). Finally, paying a
higher rate is not an alternative because the prisoner
cannot force a publisher who needs to use, and is entitled
to use, the standard rate to take additional costly steps to
mail his individual newsletter.

Page 4
238 F.3d 1145, *; 2001 U.S. App. LEXIS 1729, **;
29 Media L. Rep. 1641; 2001 Cal. Daily Op. Service 1121
In Turner the Supreme Court says: "when a prison
regulation impinges on inmates' constitutional rights, the
regulation is valid if it is reasonably related to legitimate
penological interests." 482 U.S. at 89. There are four
factors relevant to the Turner reasonableness inquiry: (1)
whether the regulation is rationally related to a legitimate
and neutral governmental objective; (2) whether there are
alternative avenues that remain open to the inmates to
exercise the right; (3) the impact that accommodating the
asserted right will have on other guards and prisoners,
and on the allocation of prison resources; and (4)
whether the existence of easy and obvious alternatives
indicates that the regulation is an exaggerated response
by prison officials. Id. at 89-90. The same analysis
applies [**12] to regulations affecting publishers' rights
to send materials to prisoners. See Thornburgh, 490 U.S.
at 413 (applying Turner to regulations affecting
incoming inmate mail regardless of the sender's identity).
The first element of the Turner test directs us to (1)
determine whether the Department's regulation is
legitimate and neutral; and (2) assess whether there is a
rational relationship between the governmental objective
and the regulation. We hold that tying the receipt of
subscription non-profit newsletters to postal service rate
classifications is not rationally [*1150] related to any
legitimate penological interest put forth by the
Department. n5

n5 Because we conclude that there is no
rational relationship, we do not address
Publisher's and Prisoners' argument that the
regulation is not neutral, which is supported by
the fact that the Department processed and
delivered notices to inmates from the Oregon
Attorney General that were insufficiently
addressed and mailed at the standard rate.
In Frost v. Symington, 197 F.3d 348 (9th Cir. 1999),
[**13] we clarified that the level of scrutiny to be
applied to the decisions of prison administrators depends
on the circumstances in each case:

When the inmate presents sufficient . . .
evidence that refutes a common-sense
connection between a legitimate objective
and a prison regulation, Walker [v.
Sumner, 917 F.2d 382 (9th Cir. 1990), ]
applies, and the state must present enough
counter-evidence to show that the
connection is not so remote as to render
the policy arbitrary or irrational. On the
other hand, when the inmate does not

present enough evidence to refute a
common-sense connection between a
prison regulation and the [asserted]
objective . . ., Mauro [v. Arpaio, 188 F.3d
1054 (9th Cir. 1999),] applies and,
presuming the governmental objective is
legitimate and neutral, Turner's first prong
is satisfied.

197 F.3d at 357 (internal quotation marks and citations
omitted). Frost thus commands that if Publisher and
Prisoners do not present sufficient evidence to refute a
common-sense connection between the Department
regulation and its stated objectives, "prison officials need
not prove that the banned material actually caused
problems in the [**14] past, or that the materials are
'likely' to cause problems in the future." Mauro, 188 F.3d
at 1060. The only question is whether prison
administrators reasonably could have thought the
regulation would advance legitimate penological
interests. See id; Casey v. Lewis, 4 F.3d 1516, 1521 (9th
Cir. 1993). If Publisher and Prisoners refute the
common-sense connection, however, the Department
must demonstrate that the relationship is not so "remote
as to render the policy arbitrary or irrational." Mauro,
188 F.3d at 1060 (quoting Turner, 482 U.S. at 89-90).
The first purported justification for the regulation is
that standard mail often contains contraband; banning all
standard mail reduces the time spent by mailroom staff
searching for contraband and the likelihood that
contraband will end up in the prison. The Department
has presented no evidence supporting a rational
distinction between the risk of contraband in subscription
non-profit organization standard mail and first class or
periodicals mail. See Crofton v. Roe, 170 F.3d 957, 960
(9th Cir. 1999).
Second, the Department and its Officials assert that
the ban on standard [**15] mail helps reduce fire
hazards by limiting the quantity of flammable material in
inmates' cells. Publisher and Prisoners respond that
Department regulations restricting the amount of
property inmates can possess already address this
concern. See Or. Admin. R. 291-117-0005. The fact that
Department property regulations already limit the
amount of material an inmate can possess and the fact
that inmates could conceivably receive bulk mail
materials if sent first class refute the common sense
connection between the refusal to deliver subscription
standard mail and the reduction of fire hazards. The
Department emphasizes that the accumulation of
flammable materials is such a concern that the prisons
conduct fire drills every 90 days. Publisher and Prisoners
are not asking that all standard mail be delivered,

Page 5
238 F.3d 1145, *; 2001 U.S. App. LEXIS 1729, **;
29 Media L. Rep. 1641; 2001 Cal. Daily Op. Service 1121
however; they are asking only that personal subscriptions
be delivered. It is irrational to believe that delivering the
small amount of subscription non-profit organization
standard mail that comes into Oregon prisons would
significantly contribute to paper accumulation and
increased fire hazards, as the total amount of mail
prisoners may store in their cells is currently limited by
[**16] property regulations. See Crofton, 170 F.3d at
960.
Third, the Department and its Officials state that the
regulation increases the efficiency [*1151] with which
random cell inspections can be conducted. They argue
that the accumulation of standard mail in a cell creates a
good environment for hiding contraband. The fewer
materials in the cell, the better a correctional officer can
conduct a search. The property regulations mentioned
above address this concern, however, and the quantity of
additional subscription mail, once processed, would be
minimal. The regulation is not rationally related to the
Department's interest in rendering efficient cell searches.
The final objective purportedly furthered by the
regulation is the enhancement of prison security. The
Department and its Officials assert that the ban on
standard mail allows mailroom staff to concentrate its
efforts on timely processing acceptable mail and
thoroughly inspecting such mail for content and
contraband. Publisher and Prisoners respond that
processing subscription non-profit organization standard
mail would not substantially deplete prison resources and
would not add significantly to the mailroom staff's
workload. [**17] We agree. The reality is that all
incoming mail must be sorted. The record shows that
distinguishing between non-profit organization standard
mail and regular/commercial standard mail is not unduly
cumbersome, particularly in light of the relatively
insignificant amount of incoming non-profit organization
standard mail received at the Department's several
facilities.
The Department counters that although mailroom
staff can separate standard mail from non-profit
organization standard mail, it cannot readily distinguish
subscription non-profit organization mail from
unsolicited non-profit organization mail. To make such a
distinction, the Department states that it would have to
(1) create an active list of all names of all prisoners who
subscribe to non-profit organization publications; (2)
make the list available to all Department facilities; (3)
provide personnel to update the list daily; (4) check all
non-profit organization mail against the master list to
ensure that it is subscription mail and that the
subscription is current; and (5) process all subscription
non-profit organization mail in the same manner as first
class and periodicals mail and afford prisoners and
publishers [**18] notice and review of rejections. We do

not believe that requiring the delivery of non-profit
organization standard mail will unduly burden the
Department. n6 The Department and its Officials ignore
the fact that at issue is the addition of 15 to 30 pieces of
mail to the 5000 to 8000 pieces of acceptable mail that
are processed at some Department institutions daily.
Furthermore, the fact that the Department was able to
process improperly addressed bulk mail sent by the
Oregon Attorney General's office suggests that the
Department exaggerates the administrative burden that
processing subscription non-profit mail would impose.
The Department's concern that limiting the ban would
encourage inmates to increase their subscriptions and
lead to an unmanageable influx of subscription nonprofit standard mail can be addressed by other
regulations. For example, current Department regulations
requiring proper address and addressee information and
restricting content would apply to the additional mail and
would help control volume. See Or. Admin. R. 291-1310025(1); Or. Admin. R. 291-131-0035.

n6 We note here that because "a personal
subscription of a particular publication more
nearly resembles personal correspondence than a
mass mailing," such subscriptions deserve more
attention than bulk mail. Miniken v. Walter, 978
F. Supp. 1356, 1362 (E.D. Wash. 1997).
[**19]
The rational relationship factor of the Turner
standard is a sine qua non. Walker v. Sumner, 917 F.2d
382, 385 (9th Cir. 1990). Because the Department and its
Officials have failed to show that the ban on standard
mail is rationally related to a legitimate penological
objective, we do not consider the other Turner factors.
Rather, we are required to reverse. n7 See id.

n7 At oral argument, the Department and its
Officials contended that a holding in this case
that the ban on standard mail is unconstitutional
as applied would pose problems for the
Department under Article I, Section 8, of the
Oregon Constitution. We do not address this
argument because the issue was not factually
developed before the district court and was not
presented to us in the briefs.
[*1152] IV
Publisher and Prisoners also argue that the district
court improperly determined that the Department's
Officials are entitled to qualified immunity. We disagree.

Page 6
238 F.3d 1145, *; 2001 U.S. App. LEXIS 1729, **;
29 Media L. Rep. 1641; 2001 Cal. Daily Op. Service 1121
We review de novo a district court's determination
regarding qualified immunity [**20] in a § 1983 action.
Newell v. Sauser, 79 F.3d 115, 117 (9th Cir. 1996). The
Officials are entitled to qualified immunity if their
conduct "does not violate clearly established statutory or
constitutional rights of which a reasonable person would
have known." Harlow v. Fitzgerald, 457 U.S. 800, 818,
73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982). We analyze
qualified immunity claims using a two-step inquiry; we
ask (1) whether the law governing the official's conduct
was clearly established at the time of the conduct; and, if
so, (2) whether under that law a reasonable official could
have believed the conduct was lawful. Robinson v.
Solano County, 218 F.3d 1030, 1034 (9th Cir. 2000).
Because the "contours" of Publisher's right to send
and Prisoners' right to receive subscription non-profit
organization standard mail were not "sufficiently clear
that a reasonable official would understand that what he
[was ] doing violated that right," Anderson v. Creighton,
483 U.S. 635, 640, 97 L. Ed. 2d 523, 107 S. Ct. 3034
(1987), the law in this case was not "clearly established."
A number of cases support this view. In Sheets v. Moore,
the Sixth [**21] Circuit upheld a regulation prohibiting
"free advertising material, fliers, and other bulk rate mail
except that received from a recognized religious
organization sent in care of the institutional chaplain." 97
F.3d 164, 165 n.1 (6th Cir. 1996). Language in that case,
however, distinguished between bulk rate mail and
personal subscriptions, without directly addressing
subscription bulk rate mail. See id. at 167. In Miniken v.
Walter, on the other hand, a district court struck down a
ban on bulk mail as applied to subscription non-profit
organization mail such as Publisher's newsletter. 978 F.
Supp. 1356 (E.D. Wash. 1997). This ruling was based, in
part, on the fact that publications like Publisher's
newsletter did not fall within the prison regulations' own
definition of "bulk mail." See id. at 1361. Moreover, two
Oregon district judges have upheld the Department
regulation at issue in unpublished decisions. See Hunter
v. Baldwin, Civ. No. 93-1579 (Or. 1995), aff'd on other
grounds, 78 F.3d 593 (9th Cir. 1996) (table decision)
(upholding former Or. Admin. R. 291-131-0025(8));
Morrison v. Hall, Civ. No. 93-6383-HO (Or. [**22]
1998). Although unpublished decisions carry no
precedential weight, Department Officials may have

relied on these decisions to inform their views on
whether the regulation was valid and whether enforcing
it would be lawful. n8

n8 Although the individually named
Officials in the instant case were not parties to the
prior cases, the Department had notice of the
unpublished dispositions.
V
Last, Publisher and Prisoners argue that the
Department's failure to provide notice and administrative
review of standard mail rejections deprives inmates and
publishers of due process safeguards required by
Procunier v. Martinez, 416 U.S. 396, 417, 40 L. Ed. 2d
224, 94 S. Ct. 1800 (1974) (holding that the "decision to
censor or withhold delivery of a particular letter must be
accompanied by minimum procedural safeguards"),
overruled on other grounds by Thornburgh, 490 U.S. at
413-14. Due process guarantees apply only when a
constitutionally protected liberty or property interest is at
stake. Board of Regents v. Roth, 408 U.S. 564, 569, 33
L. Ed. 2d 548, 92 S. Ct. 2701 (1972). [**23]
Because we decide that Publisher and Prisoners have
a constitutionally protected right to receive subscription
non-profit organization standard mail, it follows that
[*1153] such mail must be afforded the same procedural
protections as first class and periodicals mail under
Department regulations.
VI
We hold that the Department's ban on standard rate
mail is
unconstitutional as applied to subscription non-profit
organization mail. We reverse the summary judgment in
favor of Officials and remand for further proceedings
consistent with this opinion. We grant Publisher's and
Prisoners' request for reasonable attorney's fees, to be
fixed on remand to the district court. See 42 U.S.C. §
1988.
REVERSED AND REMANDED.



 

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