Skip navigation
× You have 2 more free articles available this month. Subscribe today.

Mail Restrictions Examined Under Turner Standard

The U.S. Supreme Court held that prison regulations allowing the rejection
of certain subscription publications must be examined under the standards
set forth in Turner v. Safely. This decision further reaffirms the
procedural due process protections of Procunier v. Martinez, 416 U.S. 396,
94 S.Ct. 1800, 40 L.Ed.2d 224. The suit was brought by a class of federal
prisoners and various publishers against the Federal Bureau of Prisons
alleging violation of their First Amendment rights, both in general and as
related to 46 specifically banned publications. A U.S. district court
ruled that the prisoners' constitutional rights were violated under the
standard held in Procunier which says that the censorship must
be "generally necessary" to the legitimate interests of the prison.

The court of appeals for the District of Columbia, also using the Martinez
standard, remanded the case to the district court for determining the
constitutional validity of each of the 46 specific exclusions, 824 F.2d
1166.

The U. S. Supreme Court held: 1) The less stringent standard of
Turner v. Safely, 482 U.S. 78, 89, 107 S.Ct. 2254, 2262, 96 L.Ed.2d 64,
should have been used rather than the Martinez standard. The Turner
standard requires that prison mailroom regulations be "reasonably related
to legitimate penological interests." Also to be examined is "whether
there are alternative means of exercising the right that remain open to
prison inmates," and how, if accommodated, the constitutional right at
issue will affect others, specifically prisoners and guards. The Court
further asserted that "the existence of obvious, easy alternatives may be
evidence that the regulation is not reasonable, but is an 'exaggerated
response' to prison concerns...." 2) The regulations in question are valid
when viewed under the Turner standard. 3) The case should be remanded in
order to determine the constitutional validity of each of the 46 specific
exclusions in which there remained a live controversy. (It should be noted
that although Thornburgh applies to incoming mail, Procunier, which was
overruled in part, still applies to outgoing mail.) See index for other
cites in this case. See: Thornburgh v. Abbot, 490 U.S. 401, 109 S.Ct.
1874, 1.04 L.Ed.2d 459 (1989).

As a digital subscriber to Prison Legal News, you can access full text and downloads for this and other premium content.

Subscribe today

Already a subscriber? Login

Related legal case

Thornburgh v. Abbott

THORNBURGH v. ABBOTT ET AL., 109 S. Ct. 1874, 490 U.S. 401 (U.S. 05/15/1989)

[1] SUPREME COURT OF THE UNITED STATES

[2] No. 87-1344

[3] 109 S. Ct. 1874, 490 U.S. 401, 104 L. Ed. 2d 459, 1989

[4] Decided: May 15, 1989.

[5] THORNBURGH, ATTORNEY GENERAL OF THE UNITED STATES, ET AL
v.
ABBOTT ET AL.

[6] CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT.

[7] Deputy Solicitor General Bryson argued the cause for petitioners. With him on the briefs were Solicitor General Fried, Acting Assistant Attorney General Dennis, Robert H. Klonoff, and Andrew Levchuk.

[8] Steven Ney argued the cause for respondents. With him on the brief were Edward I. Koren, Alvin J. Bronstein, and Steven R. Shapiro.*fn*

[9] Blackmun, J., delivered the opinion of the Court, in which Rehnquist, C. J., and White, O'Connor, Scalia, and Kennedy, JJ., joined. Stevens, J., filed an opinion concurring in part and dissenting in part, in which Brennan and Marshall, JJ., joined, post, p. 420.

[10] Author: Blackmun

[ 490 U.S. Page 403]

[11] JUSTICE BLACKMUN delivered the opinion of the Court.

[12] I

[13] Regulations promulgated by the Federal Bureau of Prisons broadly permit federal prisoners to receive publications from the "outside," but authorize prison officials to reject incoming publications found to be detrimental to institutional security.*fn1 For 15 years, respondents, a class of inmates and certain publishers, have claimed that these regulations violate their First Amendment rights under the standard of review enunciated in Procunier v. Martinez,416 U.S. 396 (1974). *fn2 They mount a facial challenge to the regulations as well as a challenge to the regulations as applied to 46 specific publications excluded by the Bureau.

[14] After a 10-day bench trial, the District Court refrained from adopting the Martinez standard. Instead, it favored an approach more deferential to the judgment of prison authorities and upheld the regulations without addressing the propriety of the 46 specific exclusions. App. to Pet. for Cert. 26a, 43a-47a. The Court of Appeals, on the other hand, utilized the Martinez standard, found the regulations wanting,

[ 490 U.S. Page 404]

and remanded the case to the District Court for an individualized determination of the constitutionality of the 46 exclusions. Abbott v. Meese, 263 U.S. App. D.C. 186,824 F.2d 1166 (1987).

[15] Petitioners, officials of the Department of Justice and the Bureau of Prisons, sought certiorari. We granted the writ in order to determine the appropriate standard of review. Meese v. Abbott,485 U.S. 1020 (1988).

[16] We now hold that the District Court correctly anticipated that the proper inquiry in this case is whether the regulations are "reasonably related to legitimate penological interests," Turner v. Safley,482 U.S. 78, 89 (1987), and we conclude that under this standard the regulations are facially valid. We therefore disagree with the Court of Appeals on the issue of facial validity, but we agree with that court's remand of the case to the District Court for a determination of the validity of the regulations as applied to each of the 46 publications.

[17] II

[18] We are concerned primarily with the regulations set forth at 28 CFR §§ 540.70 and 540.71 (1988), first promulgated in 1979.*fn3 These generally permit an inmate to subscribe to, or to receive, a publication without prior approval,*fn4 but authorize the warden to reject a publication in certain circumstances. The warden may reject it "only if it is determined detrimental to the security, good order, or discipline of the institution or if it might facilitate criminal activity."

[ 490 U.S. Page 405]

§ 540.71(b). The warden, however, may not reject a publication "solely because its content is religious, philosophical, political, social or sexual, or because its content is unpopular or repugnant." Ibid. The regulations contain a nonexhaustive list of criteria which may support rejection of a publication.*fn5 The warden is prohibited from establishing an excluded list of publications: each issue of a subscription publication is to be reviewed separately. § 540.71(c). The regulatory criteria for rejecting publications have been supplemented by Program Statement No. 5266.5, which provides further guidance on the subject of sexually explicit material.*fn6

[ 490 U.S. Page 406]

The regulations provide procedural safeguards for both the recipient and the sender. The warden may designate staff to screen and, where appropriate, to approve incoming publications, but only the warden may reject a publication. § 540.70(b). The warden must advise the inmate promptly in writing of the reasons for the rejection, § 540.71(d), and must provide the publisher or sender with a copy of the rejection letter, § 540.71(e). The notice must refer to "the specific article(s) or material(s) considered objectionable." § 540.71(d). The publisher or sender may obtain an independent review of the warden's rejection decision by a timely writing to the Regional Director of the Bureau. § 540.71(e). An inmate may appeal through the Bureau's Administrative Remedy Procedure. See §§ 542.10 to 542.16.*fn7 The warden is instructed to permit the inmate to review the rejected material for the purpose of filing an appeal "unless such review may provide the inmate with information of a nature which is deemed to pose a threat or detriment to the security, good order or discipline of the institution or to encourage or instruct in criminal activity." § 540.71(d).*fn8

[ 490 U.S. Page 407]

III

[19] There is little doubt that the kind of censorship just described would raise grave First Amendment concerns outside the prison context. It is equally certain that "[p]rison walls do not form a barrier separating prison inmates from the protections of the Constitution," Turner v. Safley,482 U.S., at 84, nor do they bar free citizens from exercising their own constitutional rights by reaching out to those on the "inside," id., at 94-99; Bell v. Wolfish,441 U.S. 520 (1979); Jones v. North Carolina Prisoners' Labor Union, Inc., 433 U.S. 119 (1977); Pell v. Procunier, 417 U.S. 817 (1974). We have recognized, however, that these rights must be exercised with due regard for the "inordinately difficult undertaking" that is modern prison administration. Turner v. Safley,482 U.S., at 85.

[20] In particular, we have been sensitive to the delicate balance that prison administrators must strike between the order and security of the internal prison environment and the legitimate demands of those on the "outside" who seek to enter that environment, in person or through the written word. Many categories of noninmates seek access to prisons. Access is essential to lawyers and legal assistants representing prisoner clients, see Procunier v. Martinez,416 U.S. 396 (1974), to journalists seeking information about prison conditions, see Pell v. Procunier, supra, and to families and friends of prisoners who seek to sustain relationships with them, see Procunier v. Martinez, supra. All these claims to prison access undoubtedly are legitimate; yet prison officials may well conclude that certain proposed interactions, though seemingly innocuous to laymen, have potentially significant implications for the order and security of the prison. Acknowledging the expertise of these officials and that the judiciary is "ill equipped" to deal with the difficult

[ 490 U.S. Page 408]

and delicate problems of prison management, this Court has afforded considerable deference to the determinations of prison administrators who, in the interest of security, regulate the relations between prisoners and the outside world. Id., at 404-405.

[21] In this case, there is no question that publishers who wish to communicate with those who, through subscription, willingly seek their point of view have a legitimate First Amendment interest in access to prisoners. The question here, as it has been in our previous First Amendment cases in this area, is what standard of review this Court should apply to prison regulations limiting that access.

[22] Martinez was our first significant decision regarding First Amendment rights in the prison context. There, the Court struck down California regulations concerning personal correspondence between inmates and noninmates, regulations that provided for censorship of letters that "unduly complain," "magnify grievances," or "expres[s] inflammatory political, racial, religious or other views or beliefs." Id., at 399. We reviewed these regulations under the following standard:

[23] "First, the regulation or practice in question must further an important or substantial governmental interest unrelated to the suppression of expression. Prison officials . . . must show that a regulation authorizing mail censorship furthers one or more of the substantial governmental interests of security, order, and rehabilitation. Second, the limitation of First Amendment freedoms must be no greater than is necessary or essential to the protection of the particular governmental interest involved. Thus a restriction on inmate correspondence that furthers an important or substantial interest of penal administration will nevertheless be invalid if its sweep is unnecessarily broad." Id., at 413-414.

[ 490 U.S. Page 409]

It is clear from this language, however, that we did not deprive prison officials of the degree of discretion necessary to vindicate "the particular governmental interest involved." Accordingly, we said:

[24] "Some latitude in anticipating the probable consequences of allowing certain speech in a prison environment is essential to the proper discharge of an administrator's duty. But any regulation or practice that restricts inmate correspondence must be generally necessary to protect one or more . . . legitimate governmental interests." Id., at 414.

[25] The Court's subsequent decisions regarding First Amendment rights in the prison context, however, laid down a different standard of review from that articulated in Martinez. As recently explained in Turner, these later decisions, which we characterized as involving "prisoners' rights," adopted a standard of review that focuses on the reasonableness of prison regulations: the relevant inquiry is whether the actions of prison officials were "reasonably related to legitimate penological interests."482 U.S., at 89. The Court ruled that "such a standard is necessary if 'prison administrators . . ., and not the courts, [are] to make the difficult judgments concerning institutional operations.'" Ibid., quoting Jones v. North Carolina Prisoners' Labor Union, Inc.,433 U.S., at 128. The Court set forth in Turner the development of this reasonableness standard in the respective decisions in Pell and Jones and in Block v. Rutherford,468 U.S. 576 (1984), and we need not repeat that discussion here.

[26] The Court's decision to apply a reasonableness standard in these cases rather than Martinez' less deferential approach stemmed from its concern that language in Martinez might be too readily understood as establishing a standard of "strict" or "heightened" scrutiny, and that such a strict

[ 490 U.S. Page 410]

standard simply was not appropriate for consideration of regulations that are centrally concerned with the maintenance of order and security within prisons.*fn9 See Turner v. Safley, 482 U.S., at 81, 87, 89. Specifically, the Court declined to apply the Martinez standard in "prisoners' rights" cases because, as was noted in Turner, Martinez could be (and had been) read to require a strict "least restrictive alternative" analysis, without sufficient sensitivity to the need for discretion in meeting legitimate prison needs.482 U.S., at 89-90. The Court expressed concern that "every administrative judgment would be subject to the possibility that some court somewhere would conclude that it had a less restrictive way

[ 490 U.S. Page 411]

of solving the problem at hand," id., at 89, and rejected the costs of a "least restrictive alternative" rule as too high. Id., at 90. See also O'Lone v. Estate of Shabazz,482 U.S. 342, 350 (1987) (refusing to apply a least restrictive alternative standard for regulation of prisoner work rules having an impact on religious observance).

[27] We do not believe that Martinez should, or need, be read as subjecting the decisions of prison officials to a strict "least restrictive means" test. As noted, Martinez required no more than that a challenged regulation be "generally necessary" to a legitimate governmental interest.416 U.S., at 414. Certainly, Martinez required a close fit between the challenged regulation and the interest it purported to serve. But a careful reading of Martinez suggests that our rejection of the regulation at issue resulted not from a least restrictive means requirement, but from our recognition that the regulated activity centrally at issue in that case -- outgoing personal correspondence from prisoners -- did not, by its very nature, pose a serious threat to prison order and security.*fn10 We pointed out in Martinez that outgoing correspondence that magnifies grievances or contains inflammatory racial views cannot reasonably be expected to present a danger to

[ 490 U.S. Page 412]

the community inside the prison. Id., at 416. In addition, the implications for security are far more predictable. Dangerous outgoing correspondence is more likely to fall within readily identifiable categories: examples noted in Martinez include escape plans, plans relating to ongoing criminal activity, and threats of blackmail or extortion. Id., at 412-413. Although we were careful in Martinez not to limit unduly the discretion of prison officials to reject even outgoing letters, we concluded that the regulations at issue were broader than "generally necessary" to protect the interests at stake. Id., at 414.*fn11

[28] In light of these considerations, it is understandable that the Court in Martinez concluded that the regulations there at issue swept too broadly. Where, as in Martinez, the nature of the asserted governmental interest is such as to require a lesser degree of case-by-case discretion, a closer fit between the regulation and the purpose it serves may safely be required. Categorically different considerations -- considerations far more typical of the problems of prison administration -- apply to the case presently before this Court.

[29] We deal here with incoming publications, material requested by an individual inmate but targeted to a general audience. Once in the prison, material of this kind reasonably may be expected to circulate among prisoners, with the concomitant potential for coordinated disruptive conduct. Furthermore, prisoners may observe particular material in the possession of a fellow prisoner, draw inferences about their fellow's beliefs, sexual orientation, or gang affiliations from that material, and cause disorder by acting accordingly.

[ 490 U.S. Page 413]

See App. 22-23, 52, 59, 88; see generally Prisoners and the Law 3-14 (I. Robbins ed. 1988) (noting that possession of homosexually explicit material may identify the possessor as homosexual and target him for assault). As the Deputy Solicitor General noted at oral argument: "The problem is not . . . in the individual reading the materials in most cases. The problem is in the material getting into the prison." Tr. of Oral Arg. 10. See also id., at 26; App. 10. In the volatile prison environment, it is essential that prison officials be given broad discretion to prevent such disorder.

[30] In Turner , we dealt with incoming personal correspondence from prisoners; the impact of the correspondence on the internal environment of the prison was of great concern. There, we recognized that Martinez was too readily understood as failing to afford prison officials sufficient discretion to protect prison security. In light of these same concerns, we now hold that regulations affecting the sending of a "publication" (see the regulations' specific definition of this word, n. 4, supra) to a prisoner must be analyzed under the Turner reasonableness standard. Such regulations are "valid if [they are] reasonably related to legitimate penological interests." Turner,482 U.S., at 89.