Constitutionality of Prison Postcard-Only Mail Policies

Issues and Brief Answer

The state Department of Corrections (DOC) has requested a legal opinion of its postcard-only mail policy covering all incoming and outgoing letters and packages. The DOC is facing several lawsuits alleging the restrictive mail policy violates the constitutional rights of inmates as well as those of external parties wishing to communicate with inmates through the mail. The following opinion represents a review of applicable case law and an assessment of whether the mail policy could withstand constitutional challenges.

The lawsuits filed against the DOC for implementing a postcard-only mail policy allege violations of free speech protected by the First Amendment, privacy violations under the Fourth Amendment, and procedural due process rights under the Fourteenth Amendment of the U.S. Constitution.

Based on considerable U.S. Supreme Court jurisprudence, the only issues with possible standing are free speech and procedural due process rights. The Court has long recognized the right of correctional institutions to limit the constitutional rights of inmates for security and safety reasons, including the right to conduct searches of personal belongings. However, there are limits to the extent to which correctional authorities can impose restrictions on speech and due process rights of prisoners. Based on Supreme Court and lower court jurisprudence, it seems unlikely that a postcard-only mail policy would survive First and Fourteenth Amendment challenges in court. Even if the mail policy were significantly revised to address procedural due process concerns, it seems unlikely, given the facts presented, that the policy would survive a First Amendment challenge.

Statement of Facts

The state DOC has come under fire for implementing a postcard-only, incoming and outgoing mail policy for its prison system. The criticism appears to come from most concerned parties, including inmates, inmate advocacy groups, legislators, and major newspapers. This criticism also has legal teeth, in the form of several civil suits alleging violation of inmates' First, Fourth, and Fourteenth Amendment procedural due process rights.

The DOC has argued that the postcard-only policy was necessary because of a dramatic increase in the amount of contraband being confiscated from inmate mail and significant cuts to the staffing budget — conditions that threaten prison security and the safety of inmates and staff. The postcard-only mail policy is intended to free up staff for other essential duties, including ensuring prison security and safety.

What is not addressed is the nature of the increased contraband. This is an important detail because most seized contraband — such as food and pornography — does not represent a threat to prison security (Madison.com, 2009). Also not mentioned is whether the postcard-only mail policy applies to legal and official correspondence.

First Amendment Free Speech Analysis

There is considerable U.S. Supreme Court jurisprudence concerning the constitutional rights of prisoners. The Court found in Procunier v. Martinez (1974) that unless a prisoner's exercise of constitutional rights can be shown to impinge upon prison security, order, discipline, or prisoner rehabilitation, those rights cannot be violated (Justia.com, n.d.). However, in that ruling the Court focused on the right of outside parties to communicate with inmates through the mail. In light of the Martinez decision, an incoming mail restriction would be considered unconstitutional if it did not serve a legitimate penological interest such as prison security.

The Martinez ruling was refined by the Court in the decades that followed. In Turner v. Safley (1987), the Court limited the scope of the Martinez decision to a prisoner's First Amendment rights (Justia.com, n.d.). The Court also established the current standards for determining the reasonableness of a regulation that restricts an inmate's ability to communicate with the outside world, and vice versa. A reasonable regulation must be based on a legitimate, content-neutral objective, and inmates must have access to alternative means of communicating with the outside world. An example of a legitimate, content-neutral penological interest would be prison security and the safety of prison staff and inmates. An example of an alternative method of communication would be access to phones and face-to-face visits. A valid test of a regulation's reasonableness is that no other alternative could be found that would lessen restrictions on prisoners' rights while not impinging on prison safety or security. In addition, under Safley, inmate-to-inmate communications are not protected, based on the jurisprudence established in Jones v. North Carolina Prisoners' Union (1977).

To put the Supreme Court's inmate First Amendment jurisprudence in simpler terms: the outside world cannot be prevented from communicating with inmates using some form of correspondence. This was made clear in Pell v. Procunier (1974), which held that it does not matter how the outside world communicates with inmates, as long as communication is possible (Justia.com, n.d.).

The DOC's argument that the combined effect of staffing shortages and the increased amount of contraband being seized from letters and packages creates a security and safety risk is defensible on its face — but will this policy survive the Turner reasonableness test? The goal of the restriction is content-neutral and therefore meets the first test of reasonableness. The facts provided do not suggest that visitation or phone privileges have been restricted, but neither do they confirm that these forms of communication are sufficient to meet both the free speech and procedural due process rights of prisoners and their civilian contacts. If they are sufficient, then the restrictive mail policy would probably survive a challenge before the U.S. Supreme Court. If they are not sufficient, then it is unlikely that the mail restrictions could survive a lower court hearing, let alone have their merits argued before the Supreme Court.

Conclusion and Recommendation

If Judge Simon's analysis of a postcard-only mail policy at a county jail represents a reasonable application of First and Fourteenth Amendment concerns, then the DOC's mail policy would also likely fail to survive constitutional challenges in court. The mail policy would probably fail all four tests of reasonableness under Turner, unless it can be shown that the increased contraband represents a significant threat to prison security and safety which cannot be addressed in any other manner. Given that prisoners must have access to the outside world, and vice versa, it would also have to be demonstrated that visitation and phone privileges are sufficient to meet inmate speech and procedural due process rights. From Judge Simon's perspective, this cannot be accomplished. With respect to correctional authorities' right to screen for potentially disruptive content, the facts provided about the DOC mail policy do not suggest that any of the concerned parties are contesting this need.

There is a possibility that the scale of the mail handling task in a larger institution could represent a significant burden on prison staffing. The facts provided suggest that the prison is understaffed by 400 correctional officers — a substantial burden on personnel responsible for ensuring the safety of inmates and staff and preventing escapes. Whether the courts would agree that a personnel shortage should be remedied at the expense of inmate First Amendment rights is not clear from existing case law, although Judge Simon hints that the current mail policy and prison guard shortage together create conditions inconsistent with the legitimate penological interest of inmate rehabilitation. If Judge Simon's perspective is adopted, then absent a dramatic increase in mail volume or a volume significantly greater than that of comparable prisons, it seems unlikely that a postcard-only mail policy could be justified by staffing shortages alone. If it could, then prison officials could simply cut inmate services progressively to save costs. At some point the rehabilitative potential is lost under such cost-cutting measures, and it seems unlikely that federal courts would endorse such extreme approaches.

Based on the above analysis, the postcard-only mail policy should be terminated or significantly revised to meet the speech and procedural due process rights of inmates. Possible revisions include creating an exception for legal and official correspondence and implementing a formal notification system for both inmates and external parties when mail is rejected or withheld. Even with these recommended revisions in place, the challenges posed by the reasonableness tests under Turner may still be insurmountable for any postcard-only mail policy in a correctional setting.

References

Justia.com. (n.d.). U.S. law: Government as administrator of prisons. Retrieved 29 Oct. 2012 from http://law.justia.com/constitution/us/amendment-01/34-government-as-administrator-of-prisons.html.

Madison.com. (2009, February 15). Prison contraband: A sampling of what gets collected. Retrieved 29 Oct. 2012 from http://host.madison.com/news/article_61400447-7e08-5a9b-a132-6e1d21377518.html.

Prison Legal News v. Columbia County et al., Case 3:12-cv-00071-SI (D. Or. 2012). Retrieved 29 Oct. 2012 from http://docs.justia.com/cases/federal/district-courts/oregon/ordce/3:2012cv00071/105732/64/.