What started with 40 inmates in Pennsylvania's Long Term Segregation Unit (LTSU) is now a Supreme Court case that could impact corrections agencies nationwide.

The question posed before the Supreme Court last week is a tremendous one: Do states have the right to deny inmates access to newspapers and magazines as an incentive for better behavior?

“We're talking about the most difficult inmates in the prison system,” says Louis Rovelli, Pennsylvania's Executive Deputy Attorney General. “We're talking about 40 inmates. That's .1 percent of the inmate population in Pennsylvania. They have few privileges left to lose – and denying newspapers, magazines and photographs is a final attempt to get them to turn around.”

Located in Fayette County, the LTSU is reserved for what many term “the worst of the worst” inmates; those who have assaulted officers, attempted escapes or participated in criminal activity during incarceration. Since its opening in 2000, LTSU officials have upheld tight restrictions on reading materials for these inmates, but when a corrections officer confiscated LTSU inmate Ronald Banks' copy of The Christian Science Monitor in 2001, Banks filed a class-action lawsuit. Banks alleged that his First Amendment rights were violated. The case of Banks v. Beard 04-1739 made it through several rounds of appeals and petitions in a Philadelphia Third Circuit Court before landing in front of the Supreme Court.

“This case is about more than just 40 inmates,” says Jeff Monks, a lawyer with the National Prison Project of the American Civil Liberties Union who worked on a Supreme Court brief on behalf of Banks. “You have to look at the rationale of this sort of behavior incentive. If these inmates are the worst of the worst, why would taking away this one thing suddenly make them turn around?”

Monk says the LTSU's actions mean these recalcitrant inmates simply have no rights at all – which can lead to even more dangerous situations between inmates and officers.

As eight Supreme Court Justices (Justice John G. Roberts has abstained from the case due to sitting on previous appeals in Banks v. Beard in Philadelphia) gear up to release a ruling on the case before the close of July's session, corrections officials and administrators will keep a watchful eye on its outcome, which will ultimately set the standard for these inmates.

The First Amendment Behind Bars

At the very center of Banks v. Beard, two major issues exist for both the prosecution and the defense. The first refers to the First Amendment and how it protects inmates. The second relates to a 1987 Supreme Court ruling in the case of Turner v. Safley.

The First Amendment states that American citizens have the right to read  magazines and newspapers of their choosing. PA lawyers say the First Amendment protects most inmates, but not all – especially not the recalcitrant population.

“This is a First Amendment issue only in the sense that we, as free citizens, unquestionably have the right to read newspapers and magazines of our choosing. The question is: Do prisoners have the same right? They may have the same right to that if they are in the general population. But if they are in the LTSU, which means they've behaved poorly, those rights come up against the legitimate general interests of the prison system,” says Rovelli.

Banks' lawyers say everyone has First Amendment rights, regardless of their position in society and that Bank's was violated when he was denied access to a newspaper of his choice.

“The Supreme Court has been saying for the last 30 years that inmates retain First Amendment rights,” says Monks. “But with this case, it concerns us because the deterrence rationale is potentially boundless. They could come back and say that inmates no longer have the right to get married unless they are well behaved. You could have a rule for recalcitrant prisoners that says they can no longer complain about prison conditions.”

Rovelli disagrees.

“We don't think this case has any risk of snowballing into more regulations for the general population of inmates,” says Rovelli. “This is about the most difficult inmates in the prison system.”

The Turner Effect

The second major issue in Banks v. Beard involves the 1987 Supreme Court ruling in the case of Turner v. Safley, which established that courts should defer to the reasonable judgments of prison officials on the difficult and sensitive matters of prison administration, and that a prison regulation is valid as long as it is reasonably related to improving inmate behavior.

Now, Pennsylvania must prove that revoking newspapers and magazines has made a difference in its inmates' behavior. According to Rovelli, the state has the numbers to back up the practice.

“In the six years since it was opened, 98 inmates have been sent to the unit and 51 of them have graduated to programs with more opportunities for self-improvement. 19 of them have returned to the general population and two are now out on parole. That is not to say these results are only from restricting newspaper and magazine access – but that is part of a whole program that turns these inmates around,” says Rovelli.

Banks' lawyers say those numbers are just not enough to justify the punishment.

“If the court accepts this behavior modification theory without asking the state to show that it is truly effective, you could really target anything you wanted to,” says Monks. “What's next, really?”

Setting the Record Straight

In their closing arguments last week, both sides tried to impress upon the Court the impact this ruling could have on corrections and on the inmates it tries to rehabilitate.

According to Rovelli, many prison systems deny access to certain privileges such as television and radio in order to promote good behavior and rehabilitation.

“This is about more than just the First Amendment – it's also about the legitimate objectives of the prison system. Most of these inmates will get out, so we want our prison system to be successful and effective,” says Rovelli.

But for Monks, the case of Banks v. Beard is about more than taking away newspapers and magazines.

“Taking away television is one thing – but taking away newspapers and magazines takes away any ability to learn about the world around them. You're talking about forcing ignorance on a group of people. That's disturbing,” says Monks.

The Supreme Court is set to rule on the case of Banks v. Beard before the close of the July session. The Corrections Connection will follow-up with a second article once a ruling has been released.