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Seventh Circuit Upholds Indiana DOC’s Ban on Pen-Pal Ads

by David M. Reutter

On September 16, 2010, an Indiana U.S. District Court held that a prison regulation prohibiting prisoners from advertising for pen-pals and receiving materials from services that advertise for or provide pen-pals did not violate the First Amendment. The district court’s order was affirmed by the Seventh Circuit in July 2011.

The rulings came in a class-action suit filed on behalf of all state prisoners in the Indiana Department of Corrections (IDOC) who were subject to IDOC Administrative Policy and Procedure No. 02-01-103, which became effective July 1, 2006. Before then Indiana prisoners were allowed to advertise for pen-pals. [See: PLN, June 2009, p.9].

The policy banning pen-pal ads was enacted following an investigation by prison inspector Todd Tappy. The Commissioner of the IDOC ordered the inquiry after he had a conversation with an elderly man who allegedly was defrauded by prisoners.

Tappy found 350 IDOC prisoners listed on Internet pen-pal advertising sites.
Conversations with people who had responded to the ads and corresponded with Indiana prisoners indicated that some felt deceived about sending money to prisoners after being lied to about their sentence lengths and offenses. Most of the evidence of fraud was anecdotal.

Following his investigation, Tappy suggested a cap on the amount of funds allowed in prisoner accounts, a rule limiting the source of money deposited in prisoner accounts to family members and other authorized persons, and a prohibi-tion on “soliciting or commercially advertising for money, goods, or services, including advertising for pen-pals.” The IDOC rejected the first recommended policy change but implemented the other two.

Each of the parties in the class-action suit filed a motion for summary judgment, and in determining the constitutionality of the regulation the district court applied the four-prong test established in Turner v. Safley, 482 U.S. 78 (1987).

The prisoner class members conceded that “Preventing fraud is a legitimate governmental objective. And, on its face, a pen pal prohibition appears to be rationally related to this legitimate goal.” Notwithstanding that admission, the class members tried to undermine the relationship between the challenged rule and the governmental interest by showing that “little-to-no fraud has occurred as a result of pen pal advertising.”

However, they were unable to cite any authority suggesting that prison officials must wait until a critical mass of people have been harmed before instituting a policy to prevent that harm. “To the contrary, Singer [v. Raemish, 593 F.3d 529 (7th Cir. 2010)] teaches that prison officials can act as soon as they perceive a threat to penological interest,” the district court wrote.

The court then found that soliciting pen-pals or receiving information from commercial entities that facilitate pen-pal relationships “could lead to ... behavior among inmates that would undermine” the penological interest of preventing fraud against the public – an interest that both parties agreed was legitimate.

The district court held that prisoners had “alternative means of expression,” as they “are allowed to have unlimited pen pals and to receive unlimited quantity of mail from each one. Moreover, various groups regularly visit prisons, and prisoners may acquire pen pals from those groups, along with pen pals from churches in the community or pen pals in-troduced through mutual friends. They can even acquire pen pals from other pen pals,” the court stated. It also found that communication with the outside world can be achieved by receiving newspapers and magazines from publishers.

Voiding the regulation, the district court said, would impact prison resources by creating more incoming mail to be reviewed. Finally, the court found the regulation was not an exaggerated response to purported security concerns. As such, summary judgment was granted to the defendant prison officials. See: Woods v. Commissioner of the Indiana Department of Corrections, U.S.D.C. (S.D. Ind.), Case No. 1:08-cv-01718-JMS-TAB. The class members appealed.

On July 19, 2011, the Seventh Circuit Court of Appeals affirmed the summary judgment ruling and upheld the IDOC’s prohibition against prisoners advertising for pen-pals on websites or receiving materials from pen-pal services. The Court of Appeals conducted a de novo review of the class members’ First Amendment challenge under the Turner standard.

The appellate court determined the first prong of Turner was in favor of the IDOC, as the prisoners argued only that the challenged policy was gratuitous and unnecessary.
However, the prong requires a showing that the justification for the rule is “so remote as to render the policy arbitrary or irrational.”

As for the second prong, prisoners have alternative means of obtaining pen-pals and the amount of mail they can send and receive is nearly unlimited, the Court of Appeals found. This also favored the IDOC.

The Seventh Circuit rejected the district court’s holding on the third prong of the Turner analysis, finding it was tenuous at best to say an increase in Internet usage will cause increased use of pen-pal sites, thus resulting in an escalation of prisoner mail.

“More relevant to our inquiry is whether lifting the ban would re-open a channel of communication that creates a large potential for fraud to occur,” the appellate court wrote. “We believe that it would.” When prison officials believe an unchecked activity will lead to fraud, “we hold that banning that activity does not violate inmates’ First Amendment rights.”

With respect to the fourth Turner prong, although limiting the source from which prisoners can receive funds is a ready alternative, “it can hardly be said to eradicate” potential fraud. “In our view, no single regulation can serve as a catchall for eliminating the potential for fraud,” the Court of Appeals stated, noting that the circuit precedent was to defer “to matters of professional judgment by prison officials.”

Finding that the Turner analysis favored the IDOC’s ban on pen-pal ads as being constitutionally valid, the district court’s summary judgment order was affirmed. See: Woods v. Commissioner of the Indiana Department of Corrections, 652 F.3d 745 (7th Cir. 2011).

Related legal cases

Woods v. Commissioner of the Indiana Department of Corrections

Woods v. Commissioner of the Indiana Department of Corrections


 

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