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Ruling Against Expression is No Music to Prisoners’ Ears

??by David L. Hudson, Jr.?

“Prison walls do not form a barrier separating the inmate from the protections of the Constitution.” So wrote Justice Sandra Day O’Connor in the 1987 decision Turner v. Safley. But the statement has often proved an empty incantation in courts across the country, as prisoners’ First Amendment rights tend to receive short shrift from the Supreme Court on down to lower federal courts. Even in Turner v. Safley, the Court created a very deferential reasonableness standard that favors prison officials in cases involving expression by prisoners.

A stark example of this broad deference can be seen in a July 2008 federal appeals court decision in Pennsylvania that rejected the First Amendment claims of a Pennsylvania prisoner who challenged the elimination of an important part of a prison music program.

A three-judge panel of the 3rd U.S. Circuit Court of Appeals unanimously ruled in Young v. Beard that state prison officials did not violate the First Amendment when they eliminated prisoner recreational bands. Even though the program had existed for decades, the appeals court deferred to prison officials’ claims of possible security problems.

In a brief filed on behalf of prisoner Richard Glenn Young, his lawyers wrote that “prison administrators cannot entirely escape the constitutional bounds upon their authority by simply chanting a ‘security’ incantation in hopes of magically warding off all prisoner § 1983 claims” (the federal statute through which civil rights claims are filed). However, that is what prison administrators did in this case – and they were upheld by the 3rd Circuit.

For many years the Pennsylvania Correction Institute at Graterford had allowed prisoners to play in independent prisoner bands. Such bands played many genres of music, including Latina/salsa music, gospel, classic rock, hard rock/heavy metal, hip-hop and R&B. Young, who is serving a life sentence for murder at Graterford, played in two bands – a heavy-metal band called Dark Mischief and a rock band, Runnin’ with Scissors.

In 2002, the cable channel VH-1 began a documentary series, Music Behind Bars, which examined prison music groups. A major point of the program was to show how music provided therapeutic value in correctional institutions. Pennsylvania Department of Corrections Secretary Jeffrey Beard (the same Beard in the 2006 Supreme Court decision Beard v. Banks [548 U.S. 521], which upheld a draconian restriction on certain prisoners’ access to reading materials) approved VH-1’s request to film prisoner bands at Graterford. VH-1 filmed several bands, including Dark Mischief, in June 2002.

After promotions kicked in for Music Behind Bars, opposition mounted. Some were outraged that prisoners convicted of violent offenses were allowed to participate in recreational bands. Among those outraged was Fox commentator Bill O’Reilly, who “bloviated,” as he says, against the idea on his television program, The O’Reilly Factor, for several days in October 2002.

On Oct. 17, 2002, then-Pennsylvania Gov. Mark Schweiker appeared on The O’Reilly Factor and said: “We don’t want it to happen again, and today we’re making sure that in all of our prisons no more music programs or opportunities of this kind again will be afforded to murderers.”

To a certain extent the reaction was understandable, in that family members of murder victims did not want to see the prisoners who killed their loved ones play music on television. But shielding the families was not the stated justification for eliminating prison bands: Security and scarce resources were the reasons given by the state during the litigation. If security and scarce resources were the real concerns, a reasonable observer might ask, how did the program operate with apparent effectiveness for decades?

On Oct. 18 – the day Music Behind Bars aired – Gov. Schweiker ordered Beard to end the independent band program at Graterford. A week later, Beard formed a committee of prison officials to study the music programs throughout the Pennsylvania prisons. The committee recommended continuing the programs, including independent prison bands.
The committee said the bands actually enhanced security by giving prisoners a positive outlet, although some officials said there was improper supervision of prisoners playing during music time, when as many as 10 bands and 60 prisoners might be practicing at once.

But Beard overruled the committee and implemented a new music policy in December 2003 that eliminated the band program. The only bands allowed to perform now are some that play music for religious services and an occasional talent show.

Young sued in federal court, contending that cutting out the band program violated prisoners’ free-expression rights. He also said the policy violated the establishment clause because the policy favored religious music but disfavored all other types.

A district court ruled for the prison officials in January 2007. Young appealed to the 3rd Circuit, which affirmed that ruling in its July 8 unpublished opinion in Young v. Beard, 284 Fed.Appx. 958 (3rd Cir. 2008). Addressing the free-expression claim, the appeals court applied the deferential standard from Turner v. Safley. This standard sets forth several tests to determine reasonableness:

* Whether there is a “valid, rational connection” between the prison regulation and the legitimate government interest put forward to justify it. The Supreme Court noted that the “governmental objective must be a legitimate and neutral one.”

* Whether alternative means of exercising the right remain available 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 minimal cost to valid penological interests. The existence of easy alternatives can show that the regulation was an “exaggerated response” to prison concerns.

The 3rd Circuit decided that the elimination of the independent bands was reasonable. “Here, the record establishes that there is a rational connection between the elimination of the prior independent band program and institutional security because the poor supervision of the program itself created an unsafe inmate environment.”

However, the committee formed to study the program did not call for its abolition. Surely if security concerns were that serious, the committee would have said so. The 3rd Circuit mentioned that the committee recommended continuing the program in some form but noted: “Secretary Beard testified that based on what he learned during the committee’s investigation and by talking to the deputies and the superintendent, he concluded that the independent band program was not properly administered or supervised and undermined prison security.”

The appeals court also brushed aside Young’s claims that there were several less speech-restrictive alternatives to the elimination of all recreational bands. Prison officials could have allowed prisoners to rotate into the rehearsal area group-by-group. They could have hired part-time officials to help monitor rehearsals.

The 3rd Circuit panel wrote that “inmates can still take music classes, be part of an institutional band, perform at the talent show and at special events, and play music individually in their cells.” That is a far cry from being able to rehearse with fellow band members.

“The prison officials had an exaggerated response to the music program,” said Philadelphia-based attorney Jennings Durand, who represented Young. “It had been a great program for decades. … An obvious option was to have the different bands rotate in and out (of secure rehearsal areas). I don’t see an explanation in the opinion about why it is OK to go from 10 bands to zero.”

By phone, Durand pointed out that the court failed to defer to the prison officials who were closer to and had the greater understanding of the program. “If a prison official’s decision is just a conclusory assertion, then the courts should not afford deference to the decision,” Durand said. “The irony here is that there were some prison officials who had information and judgment that should have been given deference: for example, the superintendent at Graterford who oversaw the prison’s long-time music instructor testified that he would not have ended the band program, which he saw as a security benefit to the prison, had it not been for the VH-1 controversy and the secretary’s resulting order to shut down the bands.”

The net result of the shutdown and the ruling may be an angrier prisoner population – prisoners with less chance to express themselves in a positive fashion. The other result is a loss for the First Amendment. “The band program tapped into the basic human impulse to express oneself – an endeavor that is so fundamental that it is protected by the First Amendment,” Durand said. “That fundamental right should never be abridged simply because the people expressing themselves are politically unpopular with a broad segment of our society.”

Durand is undoubtedly right that most people simply don’t care about prisoners and view with skepticism any prisoner claims of constitutional violations. Most believe that prisoners forfeited their constitutional rights when they committed their crimes. But that is not – or least should not be – the case. Prisoners still possess some level of constitutional rights.

As Justice Thurgood Marshall eloquently expressed it in his concurrence in Procunier v. Martinez (1974): “When the prison gates slam behind an inmate, he does not lose his human quality; his mind does not become closed to ideas; his intellect does not cease to feed on a free and open interchange of opinions; his yearning for self-respect does not end; nor is his quest for self-realization concluded. If anything, the needs for identity and self-respect are more compelling in the dehumanizing prison environment.”

David L. Hudson, Jr. is a First Amendment scholar. This article was originally published by the First Amendment Center in July 2008, and is reprinted with permission from the author.

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