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Eleventh Circuit Upholds Florida DOC’s Ban on Pen Pal Solicitations

by David M. Reutter

The Florida Department of Corrections (FDOC) may ban all pen pal solicitations between pen pal services and Florida prisoners, the Eleventh Circuit Court of Appeals held on December 22, 2011. The appellate decision affirms a federal district court’s January 2011 summary judgment order that found the FDOC’s Pen Pal Solicitation Rule, F.A.C. Chapter 33-210.101(9), does not violate the First or Fourteenth Amendments. [See: PLN, Oct. 2011, p.11].

The challenge to the FDOC’s pen pal rule was brought by Joy Perry, who operates Freedom through Christ Prison Ministry and Prison Pen Pals, and by (WAP). Each service solicits pen pals for prisoners and non-prisoners by providing them with a list of pen pals or placing pen pal ads online. WAP charges a fee to put prisoners’ ads for pen pals on its website; it also provides other services for prisoners, such as access to educational programs, an online résumé posting service and a program that grants scholarships to prisoners’ children or victims of crimes. Perry does not charge any fees for her pen pal services.

The FDOC said it enacted its ban on pen pal solicitation to prevent prisoners from using pen pal services to defraud people. “Although the FDOC does not cite any specific instances of fraud within Florida, the district court found the testimony of a former FDOC employee and anecdotal evidence from newspaper reports throughout the country persuasive evidence of this fraudulent activity,” the Eleventh Circuit wrote.

That finding proved to be dispositive, as the court applied a “rational basis review.” The Court of Appeals acknowledged that ordinarily outgoing prison mail is reviewed under the higher standard set forth in Procunier v. Martinez, 416 U.S. 396 (1974). But James Upchurch, Chief of Security Operations for the FDOC, had submitted an affidavit that stated “outgoing correspondence poses a direct threat to internal prison security because pen pals might give money to prisoners who will then use it to bribe officials and order hits on other inmates”; thus, the four-prong test of Turner v. Safely, 482 U.S. 78 (1987) applied rather than Martinez.

The Eleventh Circuit found that requiring prisoners to obtain “pen pals through personal associates and not pen pal companies” was rationally related to the legitimate penological interests of protecting the public from fraud and ensuring internal prison security. An alternative for WAP was to advertise its non-pen pal services to prisoners. As for prisoners, they could still correspond with pen pals and use services that provide “one-to-one matching” rather than blanket solicitations or ads for pen pals.

Allowing mail from pen pal services, the appellate court held, would cause a significant increase in the “roughly 50,000 pieces of mail” the FDOC receives daily, requiring it to reassign guards to review the increased volume of corre-spondence and to “shift inspectors to investigate possible pen pal scams.” Finally, the Court of Appeals found the FDOC’s pen pal solicitation ban was not an exaggerated response by prison officials.

After deciding there was no First Amendment violation, the Eleventh Circuit held the plaintiffs had received all the process they were due to challenge the denial of their pen pal advertisements. The district court’s summary judgment order was therefore affirmed. See: Perry v. Secretary, Florida Department of Corrections, 664 F.3d 1359 (11th Cir. 2011).

Another federal appellate court – the Seventh Circuit – has upheld a similar ban on prisoners’ pen pal ads, in Indi-ana’s prison system. [See: PLN, May 2012, p.24].

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Related legal case

Perry v. Secretary, Florida Department of Corrections