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| First Amendment Violation?: Prison Limits Inmates’ Ability to Solicit Pen-Pals? |
| By verdict.justia.com - Julie Hilden |
| Published: 01/09/2012 |
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Florida -- Last year, on December 22, a three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit affirmed a federal district court’s grant of summary judgment in a case involving prisoners’ First Amendment and due process rights. In this column, I’ll argue that the court made the wrong call. The First Amendment standard for rules that apply to prisoners is lower than the standard for rules that apply to others: It requires only that a challenged policy must bear a rational relationship to a legitimate penological interest. Yet there was a strong argument, here, that the Florida Department of Corrections (FDOC) policy at issue failed to meet even that low bar. The Plaintiff, the Services, and the Rule at Issue The rule at issue was the FDOC’s Pen Pal Solicitation Rule—which prohibits inmates from placing advertisements for pen-pals. The plaintiff in the case was Joy Perry, who operates two pen-pal services, Freedom in Christ Prison Ministry and Prison Pen Pals, and the website WriteAPrisoner.com (“WAP”). (WAP also, laudably, provides inmates with educational materials and an online resume-posting service, and offers scholarships to the children of inmates and of crime victims.) The two pen-pal services connect prisoners with those who would like to correspond with them, by sending out lists of prisoners to interested persons on the outside, and vice-versa. Their services are provided free of charge. WAP charges $40 per year to inmates who seek to post advertisements for pen-pals on its website. But now, under the Pen Pal Solicitation Rule, Florida inmates cannot avail themselves of these services. The Claimed Reasons for the Pen Pal Solicitation Rule Strikingly, FDOC did not cite a single case of a Florida prisoner’s pen-pal solicitation going wrong, or doing harm, in any way. It cited concerns about fraud, but apparently could not cite a single case of pen-pal-related inmate fraud that had occurred in Florida. Instead, FDOC relied upon a former FDOC employee’s testimony, and upon what the court called “anecdotal evidence from newspaper reports around the country.” In practically any other legal context, this paltry showing would not be enough. Only the low bar that the “rational relationship” test, cited above, sets could possibly have led to FDOC’s win on the First Amendment issue. There was also a due process issue raised here: After the policy was put in place, all Perry’s organizations’ correspondence to inmates was returned to sender – whether or not it constituted pen-pal solicitation. Thus, those organizations’ other good works were impeded. Meanwhile, another organization, Christian Pen Pals, was allowed to offer FDOC prisoners one-to-one pen-pal matching, on the dubious ground that that did not count as a kind of pen-pal solicitation. The claim was that one-to-one matching, as opposed to the circulation of a list containing a number of persons’ contact information, decreases the risk of fraud. Here, too, however, it seems that FDOC did not cite any actual fraud that had occurred. And here, too, in any other legal context, that lack of evidence would have crippled FDOC’s argument. Read More. |
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Sad that we live in a world where you don’t even need evidence to crush inmates’ rights any longer. Just a nod from one official to the next is all it takes. Not very American.