Ensign Amendment Upheld; BOP’s Failure to Retain Rejected Publications During Period of Administrative Review Violates Due Process
Mark Jordan, a federal prisoner at United States Penitentiary – Administrative Maximum (ADX) in Florence, Colorado, sued the BOP, alleging that the Ensign Amendment, 28 U.S.C. § 530C(b)(6), and its implementing regulation, 28 C.F.R. § 540.72(a), violated the First and Fifth Amendments facially and as applied to him.
The Ensign Amendment prohibits the distribution of “commercially published information or material that is sexually explicit or features nudity” to federal prisoners. Implementing regulations exempt materials containing nudity “illustrative of medical, educational, or anthropological content” from the ban.
Jordan alleged that the ban violated the First Amendment because it was not reasonably related to a legitimate penological interest, restricted mail based solely on sexual content, represented an exaggerated response to any asserted interest, swept more broadly than necessary, and was not based on individualized determinations. The Court rejected each of these contentions following a two-day bench trial.
The Ensign Amendment and its implementing regulation “is reasonably related to the legitimate penological interests of rehabilitation of [prisoners] and security of the institution as a whole,” the Court held. Further, the ban is content-neutral and applied based on the facts of each case. Separately, Jordan alleged that the BOP’s practice of returning publications rejected under the Ensign Amendment to their sender prior to the process of administrative review violated the Fifth Amendment. The Court agreed. Failure to retain the publication “denies meaningful review on appeal [and] denies due process,” the Court held. See: Jordan v. Sosa, U.S.D.C. (D. Co.), Case No. 05-CV-01283-EWN-PAC.
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Jordan v. Sosa
|Cite||U.S.D.C. (D. Co.), Case No. 05-CV-01283-EWN-PAC|