By David L. Hudson Jr.
First Amendment scholar
When one thinks of famous litigants or important First Amendment decisions, the name Leonard Safley and the case Turner v. Safley do not immediately spring to mind. That's because Leonard Safley was a Missouri inmate and Turner v. Safley involved the rights of prisoners ? not a topic popular with most of the public or the institutional press.
However, Safley's tale provides moments of high drama and led to a seminal U.S. Supreme Court decision that still governs as the leading standard for evaluating prisoner free-expression claims.
The story began in the early 1980s at Renz Correctional Institution in Cedar City, Mo. The institution was known as a "complex prison," meaning it housed both male and female inmates. Most of the male inmates were classified as minimum security, while most of the female inmates were classified as medium or maximum security.
Safley was a nonviolent inmate whose criminal record ? according to his attorney Floyd Finch ? "consisted of bad check offenses." Safley became involved with female inmate P.J. Watson, who Finch recalls was serving time for second-degree murder. The two became friends, and eventually the relationship became romantic. After a noisy lovers' quarrel, Safley was transferred to another prison. Prison policy provided that when a male and female inmate entered into a close or physical relationship one of the two inmates would be transferred.
After his transfer, Safley desperately tried to send Watson numerous letters. At some point, Safley and Watson indicated that they wanted to marry each other. However, prison superintendent Bill Turner had instituted policies that made both corresponding and marrying quite difficult. Renz had a rule that in practice prohibited inmates from sending mail to inmates at other institutions unless the inmates were related or the matter concerned legal materials. The prison also had a policy that discouraged inmate marriages.
Safley's letters were rejected and not given to Watson because prison officials determined they were not in her best interest. Safley later filed suit, challenging the marriage and mail restrictions. Floyd Finch became Safley's attorney.
A lawsuit and a courtroom marriage
"(U.S. District) Judge Howard Sachs appointed me to represent Leonard Safley," Finch recalled. "Later I also represented Safley's girlfriend. They wanted to marry and to correspond." After the suit, the prison adopted a new policy on inmate-to-inmate marriage, providing that the burden was on the inmate to show prison officials a compelling reason why they should permit the inmate to marry. The net effect of the policy was a virtual ban on inmate marriages.
Finch amended the suit to make it a class-action case brought on behalf of Safley and similarly situated inmates. At an initial hearing, Finch brought Safley and Watson to court with a minister.
"At the [temporary restraining order] hearing, Judge Sachs asked if there was any way to resolve this controversy," Finch said. "I asked the judge if we could use his courtroom to perform a marriage ceremony. I told the judge that my client had a ring and a minister to perform the ceremony. The state was outraged and thought this was a really bad idea. Utlimately, Judge Sachs ruled that because both the bride and groom were in federal custody (before a federal court), and the state had offered no compelling reason that they should not be married, he would allow the use of his courtroom for the ceremony."
Finch recalled that much of the courtroom staff attended the wedding. "I gave away the bride and served as Safley's best man," Finch said.
The case later went to a detailed hearing on the constitutionality of the prison policies. Henry Herschel, an assistant attorney general for the state of Missouri, argued the case for Bill Turner and the other defendants.
"The lead counsel in the case had died two days before the district court hearing," Herschel said. "I had to try the case by myself in the district court in, large part, cold. Since I was second counsel on the case, I was ready (mainly) to do direct examination of expert witnesses, (not to argue the entire case)."
District court ruling
Judge Sachs later issued a detailed memorandum opinion and order in May 1984. Sachs noted that often prison officials denied female inmates' right to marry because Turner decided it was not in their best interests. "Marriage and the decision to enter into a marital relationship involve fundamental human rights," Sachs wrote. "The Missouri Division of Corrections' inmate marriage rule unconstitutionally infringes upon plaintiffs' right to marriage because it is far more restrictive than is either reasonable or essential for the protection of any state security interest or any other legitimate interest, such as rehabilitation of inmates."
The challenge to the marriage restriction centered upon an alleged violation of the inmates' due-process rights. The correspondence ban directly implicated the inmates' First Amendment rights. Judge Sachs also ruled this provision unconstitutional. He noted the heightened scrutiny standard from the U.S. Supreme Court's 1974 decision in Procunier v. Martinez, which held that a prison regulation must further a substantial government interest and be no greater than necessary or essential to protect the state interest. The case involved a California Department of Regulation rule restricting inmate mail that "magnif[ies] grievances" or expresses "inflammatory political, racial, religious or other views or beliefs."
Sachs noted that it was debatable whether Martinez applied to inmate-to-inmate correspondence since that case concerned outgoing inmate mail and thus also involved the First Amendment rights of non-inmates. Sachs found that "even if some restriction on inmate-to-inmate correspondence can be justified, the regulations and practices at bar must fall," noting that "communication, like marriage, is one of the basic human rights."
Appeals court ruling
The state appealed to the 8th U.S. Circuit Court of Appeals. Herschel decided to focus on challenging the legal standard. "I lost badly in the lower court on the facts, but I decided on appeal to emphasize the legal arguments surrounding the standard of review." Herschel asked the court to apply a reasonableness, or rational-basis, standard rather than the heightened scrutiny applied in the Martinez decision. "With great advice from Michael Boicourt, who was chief counsel of our litigation division, I thought it best to use the tactic to emphasize the standard of review and go for a very prison-official-friendly standard."
A three-judge panel of the 8th Circuit also ruled in favor of Safley in its November 1985 ruling in Safley v. Turner. The appeals court affirmed Judge Sachs' in striking down both the mail and marriage restrictions. The 8th Circuit applied Martinez, terming the standard of review in that case as "strict scrutiny" ? the highest form of judicial review.
"We conclude that the exchange of inmate-to-inmate mail is not presumptively dangerous nor inherently inconsistent with legitimate penological objectives," the panel wrote. "We therefore affirm the district court's application of the Martinez strict scrutiny standard and its decision finding the Renz correspondence rule unconstitutional."
The 8th Circuit also rejected the marriage ban, noting that "an inmate's decision to marry is a fundamental right protected by the Constitution."
The U.S. Supreme Court
Undeterred by two consecutive defeats in the lower federal courts, Herschel petitioned the U.S. Supreme Court for review. "After the 8th Circuit opinion, I thought we had a shot at obtaining cert from the U.S. Supreme Court." He proved correct, as the Supreme Court indeed granted review.
The Court heard oral arguments on Jan. 13, 1987. Much of the arguments centered on the proper standard of review for resolving constitutional claims by inmates. "During oral argument, it was clear that Justices (Antonin) Scalia and (Sandra Day) O'Connor were very interested in the standard of review issue," Herschel said.
The Court issued its decision on June 1, 1987, in Turner v. Safley. The Court unanimously struck down the marriage restriction but upheld the inmate-to-inmate correspondence restriction by a 5-4 vote.
Perhaps most significantly, the Court narrowly adopted a standard of review for prisoner constitutional claims that was very deferential to prison officials. "When a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests," Justice O'Connor wrote in her majority opinion. "Subjecting the day-to-day judgments of prison officials to an inflexible strict scrutiny analysis would seriously hamper their ability to anticipate security problems and to adopt innovative solutions to the intractable problems of prison administration."
According to O'Connor, there were "several factors" relevant in determining whether a prison regulation met this reasonableness standard:
* Whether there is a "valid, rational connection" between the prison regulation and the legitimate governmental interest put forward to justify it. The court noted that the "governmental objective must be a legitimate and neutral one."
* Whether there are alternative means of exercising the right that remain open to prison inmates.
* Whether accommodating prisoners' constitutional rights will infringe on the rights of guards or other inmates and on the allocation of prison resources generally.
* Whether there are alternative methods of accommodating prisoners' rights at a de minimis cost to valid penological interests. The existence of easy alternatives can show that the regulation was an "exaggerated response" to prison concerns.
Applying this deferential standard, the majority upheld the mail regulations but struck down the marriage restriction. The Court determined that the regulation of inmate mail furthered the prisons' legitimate security concerns in preventing the communication of escape plans and the communication of prison gang members. "Undoubtedly communication with other felons is a potential spur to criminal behavior," the Court wrote.
"We had a wonderful amicus brief from the state of Texas that emphasized how inmate gang members communicated through the mail system," Herschel said.
The Court also noted that the mail regulation was "content neutral" and that it "logically advance[d] the goals of institutional security and safety identified by Missouri prison officials."
The Court reached a different conclusion, however, with respect to the marriage regulation. Noting that marriage is a fundamental right, the Court determined that there were "obvious, easy alternatives" to the marriage ban, including an alternative used in federal prisons. There, inmates were allowed to marry unless the warden determined it presented a security threat.
Justice John Paul Stevens ? joined by Justices William Brennan, Harry Blackmun and Thurgood Marshall ? dissented on the mail-correspondence issue. "Superintendent Turner was unable to offer proof that prohibiting inmate-to-inmate correspondence prevented the formation or dissemination of escape plots," Stevens wrote. He concluded that an "outright ban is intolerable."
"I was not really surprised at the outcome on the marriage or the mail-correspondence issues," Finch said. "There were no amicus briefs filed in support of the state on the marriage ban."
Significance of Turner v. Safley
The case is important because it set the standard of review for prisoner constitutional claims, particularly freedom-of-expression claims. "The case was significant because it changed the standard of review and made it possible for prison officials to make decisions on how to preserve the safety of the prison and prisoners," Herschel said. "I think the U.S. Supreme Court got it right all the way around on both the marriage and mail-correspondence issues."
First Amendment expert Robert M. O'Neil, founder of the Thomas Jefferson Center for the Protection of Free Expression, said the decision was significant because it resulted in a "significantly diminished standard of review."
"We have always been aware of various ways in which the civil rights and liberties of incarcerated persons were diminished. This decision diminished the standard even more than many of us expected," he said.
Kevin O'Neill, a professor at Cleveland-Marshall College of Law who has written about prisoner First Amendment rights, said the decision had been broadly applied by the lower courts in favor of prison officials. "There is no question that the lower courts have been extremely deferential in applying Turner v. Safley," he said. "They show a general reluctance to second-guess the decisions of prison administrators."
"I think the standard from the case actually liberates prisoners in the sense that it allows prison officials to run their prisons while caring for the safety of the inmates," Herschel said. "Prison officials can successfully run their prisons, and the prisoners end up safer."
However, Finch ? a well-respected attorney who also argued the antitrust case Kansas v. Utilicorp United (1990) before the U.S. Supreme Court ? says prison officials, even if they operate under a deferential standard which gives them leeway, would be well served to treat inmates better. "If prison officials treated prisoners with more respect, I think they would have less discipline problems. Too often inmates are treated like dirt. They should be treated in a more humane fashion."
Even though the decision established a standard favorable to prison officials, O'Connor did reiterate that inmates do not lose all the protections of the Constitution simply because they are incarcerated. In the 18th, 19th and much of the 20th centuries, inmates were considered what one court called "slaves of the state." O'Connor wrote in oft-cited language: "Prison walls do not form a barrier separating the inmate from the protections of the Constitution."
Beyond the case
The story of Turner v. Safley involved more than a seminal case and a legal standard. It involved a real human being. Unfortunately, Leonard Safley's marriage to P.J. Watson did not last.
Apparently, though, Safley turned his life around upon release.
Years after the Supreme Court's decision, Herschel was staying in a hotel in Kansas City, Mo. As he was riding up the elevator, he did a double-take in amazement. "I looked up and noted the inspection form. It was signed by Leonard Safley. Apparently, he turned his life around and went straight."
Whether Safley is still living and, if so, his current whereabouts could not be confirmed.
Originally posted on the First Amendment Center website (www.firstamendmentcenter.org); reposted with permission of the author.
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