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Kansas Supreme Court Upholds Gift Subscription Ban

The Kansas Supreme Court ruled that the Kansas Department of Corrections' (KDOC) rule IMPP 11-101, which prohibits prisoners from receiving gift subscriptions to magazines and newspapers, does not violate the prisoners' constitutional rights under the First Amendment.

Reversing the Kansas Court of Appeals' decision contra in Rice v. Kansas, 76 P.3d 1048 ( Kan. App. 2003) [which had reversed the District Court's ruling below that upheld the ban], the Supreme Court applied the familiar four-part test of Turner v. Safley, 482 U.S. 78 (1987) to determine that KDOC had a legitimate penological interest in banning gift subscriptions and that the complaining prisoners, while inconvenienced and constrained in this regard, were not being denied access to the media.

But as reported extensively earlier (see: PLN, April 2004, p.6), at the same time the Kansas state appellate court disapproved the ban, the United States District Court in an independent action (Zimmerman v. Simmons, 260 F.Supp.2d 1077 (D. Kans. 2003)) upheld the ban. Since the latter case focused on a ban of Prison Legal News, PLN took an appeal (sub. nom. PLN v. Simmons) to the Tenth Circuit U.S. Court of Appeals. That court heard oral arguments on October 6, 2004. On December 22, 2004, the Tenth Circuit reversed Zimmerman and remanded that case for trial finding the Kansas supreme court's decision in this case was not dispositive. PLN will report the Tenth circuit decision in next month's issue in detail.

KDOC's premise is that it wants to reward good behavior. To that end, IMPP 11-101 permits the best-behaved prisoners to order subscriptions from their prison trust accounts in an amount not to exceed $30 per month (some exceptions may be applied for on a quarterly basis). If prisoners may instead have unlimited subscriptions gifted to them from the outside, i.e., regardless of their behavior record, KDOC argues that their behavioral modification efforts will be thwarted.

Importantly, the ban on gift subscriptions does not limit media content it only invokes a monetary cap. The two biggest concerns of KDOC were (1) that one prisoner could "pressure" another to have gift subscriptions sent in [one such example is on the record] and (2) that prisoners who owe fines, child support, legal mail costs, etc. could avoid having incoming funds diverted to those lawful obligations. Even an indigent prisoner may still sign up for the prison library to read magazines, KDOC argued, and thus have media access consistent with the First Amendment.

In evaluating Turner's "rational relationship to a legitimate and content neutral governmental interest," the court was persuaded that KDOC's mission to modify prisoners' behavior was such a legitimate interest flatly disagreeing with the Court of Appeals holding that "it is not rational to eliminate all access to all gift periodicals for all inmates, be they model prisoners or habitual disciplinary rules violators."

The Kansas Supreme Court approved KDOC's graduated system of behavioral rewards, giving deference to prison administrators' "expertise" in managing their task. It was not persuaded by Crofton v. Roe, 170 F.3d 957 (9th Cir. 1999) [Washington state ban on gift subscriptions of PLN violated First Amendment, under Turner analysis] because in that case, the state failed to establish a sufficient factual record to buttress its position. Instead, the Kansas Supreme Court followed the then recently decided Zimmerman federal ruling that IMPP 11-101 was constitutionally content-neutral and therefore acceptable.

Finally, the Kansas Supreme Court held that KDOC's policy had reasonable built-in alternatives to gifted subscriptions, with adequate provisions to petition the warden for exceptions.

The bottom line was that obedient KDOC prisoners may order a limited dollar amount of subscriptions and publications of their own choice consistent with First Amendment protections and that KDOC's behavior-incentive program was rationally related to a legitimate governmental interest. See: Rice v. Kansas, 278 Kan. 309; 95 P.3d 994 (Kansas 2004). [Editor's Note: As this issue of PLN goes to press, the Tenth circuit has held publishers are entitled to due process notice when their publications are censored and the Kansas DOC's security claims for the ban on gift subscriptions requires a trial to resolve. That case was brought by PLN and is reported as Jaclovich v. Simmons, Tenth Circuit case Nos. 03-3227, 03-3229, 03-3230. We will report the details in next month's PLN.]

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