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Prisoners' side struggles in reading-material case

By Tony Mauro
First Amendment Center legal correspondent
03.28.06

WASHINGTON — The newspaper industry may be in some trouble nationwide. But inside prisons, newspapers are such a prized commodity that inmates have gone all the way to Supreme Court to press their First Amendment right to receive them.

Justices yesterday heard arguments in Beard v. Banks, a class-action suit brought by what the State of Pennsylvania describes as the “worst of the worst” inmates in its state prisons against a disciplinary policy that deprives them of all publications except religious and legal newspapers in their cells.

But from the tenor of the arguments, inmates would be wise not to start their New York Times subscriptions just yet.

The lawyer for the inmates struggled, without apparent success, to overcome the state’s two justifications for the policy: security and behavior modification.

A tightly rolled newspaper, argued Deputy Pennsylvania Attorney General Louis Rovelli, can be as effective a weapon as a nightstick. And depriving inmates of something they really want, he argued, gives inmates an incentive to end the bad behavior that got them into the long-term segregation unit in the first place. “The goal,” said Rovelli, “is to turn these inmates around.”

Those arguments did not persuade a majority of a panel of the 3rd U.S. Circuit Court of Appeals, though then-judge Samuel Alito Jr. dissented. Because he had ruled on the case, now-Justice Alito did not participate in the arguments yesterday.

But inmates’ lawyer Jere Krakoff stumbled as he tried to convince the justices that the policy should be struck down in spite of the Court’s 1987 Turner v. Safley precedent, which gives prison officials substantial deference in devising regulations that impinge on inmates’ rights.

Krakoff, a Pittsburgh lawyer, argued there was no rational distinction between the security problem posed by religious publications, which are allowed, and by secular publications, which under the Pennsylvania policy are not.

“The Jewish Forward can burn as quickly as The New York Times,” he said. But that argument seemed to backfire, since a logical answer to his point might be to ban religious publications, too.

Krakoff also seemed to lose ground when he argued that prisoners in the segregated unit are deprived of so much that the state should accommodate their desire for newspapers. Justice David Souter asked if that amounted to an Eighth Amendment argument — that taking away newspapers was “cruel and unusual punishment.” Krakoff said no. An incredulous Justice Stephen Breyer asked, “Your argument is that they are so bad, you might as well give them everything they want?”

Flustered by his inability to get his points across, Krakoff said, “My brief may be more coherent than I am today.” At another point, seeing he had made no headway, Krakoff tried to end his argument prematurely — but justices did not let him, persisting with questions.

That gave Krakoff a chance to give perhaps his best line, arguing that depriving inmates of news about the outside world would hamper them when they eventually return to society. “They can read about an ancient war [in the Bible], but not the war in Iraq.”

The Court could rule in the case anytime before the term ends in late June.


Related

High court to decide if prisons can bar inmate access to news

Justices agree to take case from 3rd Circuit in which Supreme Court nominee dissented. 11.14.05

Justices hear case involving prisoners' reading material
Alito sits out Beard v. Banks because he took part in 3rd Circuit case concerning denial of publications to help control unruly inmates. 03.27.06

N.D. high court: Prison can take away inmate's magazines
State justices find penitentiary rules on exchanging publications, displaying symbols are reasonable. 04.20.06

Prisons can restrict inmates' reading matter
Justices vote 6-2 in Beard v. Banks that state policy doesn't violate free speech of troublesome inmates.
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