Vol. 10, No. 31	Covering Cases Published in the Advance Sheets through August 4, 2003

Highlights of this Issue:

The Distant Rumblings of the Thought Control Police

• The Doe case from the Seventh Circuit addressed a provocative question (and one which appears to have a growing significance): may a city constitutionally punish a sex offender by banishing him from public parks and recreation facilities simply based on its discovery of that person’s immoral thoughts? A majority of the panel concluded that the answer in this case was no - such a punishment would “impermissibly infringe upon ‘the sphere of intellect and spirit which it is the purpose of the First Amendment . . . to reserve from all official control’.” What makes that ruling even more interesting is that, almost as soon as the decision was published, it was vacated and remanded for an en banc rehearing.

The Meaning of "Reasonably Related to Legitimate Penological Interests"

• Both the Prison Legal News case from the W.D.Wash. and the Zimmerman case from the D.Kan. address the recent surge of highly creative prison regulations designed to ban the distribution of Prison Legal News in American prisons and jails - which they attempt to accomplish without openly confronting the First Amendment. These two cases reflect the predictably wide gulf that can exist when rigid ideology triumphs over practical reality - which can occur when a court focuses only on an isolated and theoretical analysis of the meaning of the governing standard - “reasonably related to legitimate penological interests” - without also considering the concrete, practical consequences of those regulations on the lives of the incarcerated millions and without even pretending to question the validity of the assertions made by prison officials in support of the adoption of those regulations.

Conviction Vacated Because Evidence Proved Preparation - But Not Attempt - To Commit a Crime

• In Williams, Judge Bowen of the S.D.Ga. wrecked one of the most elaborate Government sting operations that we have seen in a long while. Anxious to ensnare a Georgia county sheriff in a plan to rob a fictional Columbian drug dealer (who was actually a DEA agent), the Government recruited a willing stooge to wear a wire and record some 22 meetings with the sheriff while they discussed the proposed robbery. Unfortunately, many of the tapes were unintelligible; and the stooge and the sheriff never got beyond talking about a possible crime involving only a “vaguely identified target.” The Court held that evidence failed to show that the stooge and the sheriff had even arrived at a plan about how to steal the alleged drugs. Thus, while there was evidence of preparations to commit a crime, that evidence was not sufficient to prove the crime of attempt since there was no evidence of any substantial step towards the commission of the crime.

Suppression Motion Granted After Court Blasts 41-Page Boilerplate Warrant Application

• In Sartin, Judge Panner of the D.Or. reamed the police and the prosecutor for attempting to justify the search of the real target’s girlfriend’s apartment by using a 41-page, single-spaced boilerplate warrant application that was long on statements about “my training and experience” but woefully short on truthful, non-pretextual facts from which a judge could find probable cause.

Doe v. City of Lafayette, Indiana, 334 F.3d 606 (7th Cir. 2003) (Judge Williams)

Although this decision was vacated and remanded for a rehearing shortly after it was published in the advance sheets, it is noteworthy for a couple of reasons. First, the opening paragraph accurately describes some of the increasingly oppressive restrictions that are often imposed, without much thought, on sex offenders. The Court explained:

“John Doe [a convicted sex offender] was banned for life from all park property in the City of Lafayette, Indiana -- including a golf course, sports stadium, and city pools. The City did not provide notice or a hearing before instituting the ban, nor did it allow Doe to appeal its decision. Doe filed suit against the City, arguing that the ban violates his First Amendment right to freedom of thought and a fundamental right under the Fourteenth Amendment to loiter in public parks. The district court [Judge Sharp of the N.D.Ind.] granted summary judgment in favor of the City. We reverse, finding the ban violates the First Amendment.” (Id., at 607) (Emphasis added).

Doe’s criminal history includes convictions for child molestation, voyeurism, exhibitionism, and window peeping - although his last conviction was in 1991, more than ten years prior to the current lawsuit. As a result of that background, the Court noted that Doe “has been in active psychological treatment since 1986, and voluntarily attends a self-help group for sex offenders.” (Id., at 607).

One evening, while driving home from work, Doe “began to have sexual thoughts about children.” He drove to a park to watch some children playing baseball. After watching them for 15-30 minutes, he left “without have any contact” with them. Because he was upset with himself, he reported the incident to his psychologist and to his self-help group.

What precipitated the City’s order banning Doe from all city parks was an anonymous tip made to Doe’s former probation officer - even though at the time of the incident Doe was no longer on probation and even though no crime had been committed or was even charged. The probation officer in turn contacted the local police; and that led to the order banning Doe from all City parks.

When Doe challenged the lifetime ban on the use of the City’s parks and recreational facilities, the Court asked an interesting question: “May a city constitutionally ban one of its citizens from public property based on its discovery of that individual's immoral thoughts?” That question then set off a lively and interesting philosophical debate among the judges.

The majority concluded that the City had no right to impose such punishment on Doe based on his temporary immoral thoughts - since such a punishment would “impermissibly infringe upon ‘the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control’.” (Id., at 609, citing West Virginia State Bd. Of Educ. v. Barnette, 319 U.S. 624, 642 (1943)).

The majority also cited Stanley v. Georgia, 394 U.S. 557 (1969), for the “quintessential principle” that the Government’s power does not extend to control of a person’s thoughts. The Stanley court stated: “A State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch. Our whole constitutional heritage rebels at the thought of giving government the power to control men's minds.” (Stanley, id., at 565).

The majority emphasized that its conclusion was further reinforced “by a fundamental understanding of the bounds of punishable action. The maxim that cogitationis poenam nemo patitur (no one is punishable solely for his thoughts) is a cornerstone of the American common law system of criminal justice that has shaped many of the constitutional boundaries of criminal law. Perhaps the Victorian legal scholar James Fitzjames Stephen best explained this basic limit on government power: ‘If it were not so restricted it would be utterly intolerable; all mankind would be criminals, and most of their lives would be passed trying and punishing each other for offenses which could never be proved.’ 1 James Fitzjames Stephen, A History of the Criminal Law of England 78 (1883).” (Id., at 611).

Judge Ripple dissented, arguing that the First Amendment did not apply to this case. Rather, he argued, the City had adopted “a reasonable proscription designed to protect a vulnerable part of the population, its children, against the danger of a relapse by Mr. Doe.” (Id., at 614).

He then continued that even if he “could accept that First Amendment concerns are somehow at stake” in this case, Doe’s claim “would still fail because it implicates at least two areas that the Supreme Court has declared to be unprotected by the First Amendment’s free speech guarantee” - namely “lewd and obscene” speech and “fighting words.” (Id., at 617).

Applying those two exceptions to the facts of this case, Judge Ripple concluded that “Mr. Doe’s urges, if considered expression, also would constitute obscenity, and not be deserving of Constitutional protection.” (Id., at 618) (Emphasis in original). Similarly, Judge Ripple concluded that “assuming arguendo the applicability of the First Amendment, Mr. Doe’s urges were, in a very real sense, ‘directed to inciting or producing imminent lawless action and [were] likely to incite or produce such action. . . . Mr. Doe was, in essence, inciting himself to unlawful action.” (Id., at 617).

Clearly the debate on this issue is not finished. As noted above, on August 8, 2003, the panel’s decision was vacated when a majority of the judges from the Seventh Circuit agreed to rehear this case en banc.

Prison Legal News v. Lehman, No. C01-1911L (W.D.Wash. 06/17/2003) (Judge Lasnik)
Zimmerman v. Simmons, 260 F.Supp.2d 1077 (D.Kan. 2003) (Judge VanBebber)

In Turner v. Safley, 482 U.S. 78, 89 (1987), the Supreme Court held that the validity of prison regulations is governed by a determination of whether or not the challenged regulation is “reasonably related to legitimate penological interests.” That vague and subjective standard has spawned disputes from the day that Turner was decided. In fact, in his dissent in Turner, Justice Stevens observed: "The Court's rather open-ended 'reasonableness' standard makes it much too easy to uphold restrictions on prisoners' First Amendment rights on the basis of administrative concerns and speculation about possible security risks rather than on the basis of evidence that the restrictions are needed to further an important governmental interest." (Turner, id., at 101).

These two cases present dramatically different views of what constitutes a reasonable restriction on the circulation and distribution of Prison Legal News (PLN), the monthly newsletter published by Paul Wright, a soon-to-be-released Washington State inmate. For years, PLN has covered the legal scene relating to prisoners’ rights, prison conditions and prison-related news; and, in many of the information-starved prisons and jails, where decent law libraries are little more than a figment of the imagination, PLN often constitutes the only decent resource that inmates have to keep abreast of the laws and the cases dealing with prisoners’ rights.

That fact has not escaped prison officials - and it bothers them. In addition, because PLN is often brutally frank and because it often opens far too many eyes about some of the common happenings in our prisons and jails, PLN has become a hated and feared enemy of many prison officials. That has led to a dramatic surge of new measures designed to stop the distribution of PLN in prisons and jails all across the country.

Of course, an outright ban on PLN would be too obvious and it would clearly violate the First Amendment. So prison officials have started enacting a whole new breed of creative prison regulations - some of which are both devious and patently disingenuous. For example, Paul Wright has told us about a new ban that recently been implemented at the BOP’s high security supermax in ADX Florence, CO. Officials at that prison have banned any publications that mention prisoners or prisons by name, on the cockamamie theory that such a publication thereby becomes a form of prohibited “inmate correspondence.”

Sadly, many of that new breed of regulations have a good chance of surviving, in large part because the courts have openly signaled their retreat from cases that have anything to so with the administration of prison affairs. Nevertheless, PLN fights on - and in both of these cases it challenged some of the new “prison mail regulations” that are coming into vogue.

Prison Legal News case: In this case, Washington State Department of Corrections (WADOC) officials enacted two new inmate mail restrictions which PLN challenged. One regulation prohibits inmates from receiving “bulk mail” unless that bulk mail is a subscription publication; and the other prohibits inmates from receiving catalogs by mail, whether sent by first class, second class, or at a “bulk mail” rate. In both cases, inmates do not receive any notice that mail addressed to them has been rejected for delivery. Those regulations were used to impede the circulation of PLN in the 15 prisons run by the WADOC.

PLN filed a lawsuit challenging those mail restrictions, and this decision relates to its motion for a summary judgment. The WADOC raised a host of arguments in support of its contention that the regulations were valid, and it argued that they met the Turner test of being “reasonably related to a legitimate penological interest.”

Judge Lasnik strongly disagreed, and he ultimately enjoined WADOC from implementing the new mail restrictions. What was particularly noteworthy about his decision was Judge Lasnik’s unwillingness to equate deference with blind acceptance of everything that prison officials said - automatically and without any questioning. Thus, he adopted the approach that “when a plaintiff [PLN] presents evidence to refute a ‘common-sense connection’ between a legitimate objective and a prison policy, the defendant [WADOC] ‘must present enough counter-evidence to show that the connection is not so remote as to render the policy arbitrary or irrational’.”

Using that “common sense” standard, Judge Lasnik then proceeded to reject the WADOC’s assertions that the new regulations were valid simply because they were stated to be related to such goals as reducing prison contraband, reducing fire hazards, increasing “cell search efficiency,” and dedicating scarce supervisory resources to other more critical tasks. Essentially, he concluded that WADOC had done little more than asserting that the new regulations had a reasonable relationship to legitimate penological interests - and those assertions were not enough.

Zimmerman case: Judge VanBebber saw things quite differently in these two consolidated cases. Here, plaintiffs Kris Zimmerman, an inmate at the Kansas Department of Corrections (KDOC), and PLN challenged the constitutionality of a number of recently enacted KDOC regulations which dramatically impacted the circulation of PLN within the Kansas prison system. One regulation required an inmate to personally purchase publications only through his or her own correctional facility banking account. As the Court explained: “In essence, this limitation prevents an inmate from receiving gift subscriptions or publications purchased by third parties or free subscriptions or publications.” (Id., at 1081). In addition, some inmates were prohibited from making any purchases, except for religious texts, while others were limited to $ 30 per month, excluding religious texts.

Once again, the outcome of this case came down to an evaluation of the Turner test - namely whether the new prison regulations were “reasonably related to legitimate penological interests.” (Turner, 482 U.S. at 89).
Adopting a dramatically different approach about what Turner requires than that followed by Judge Lasnik did in the preceding case, Judge VanBebber concluded that the new KDOC regulations passed constitutional muster. First he emphasized both that “by virtue of their convictions, inmates must expect significant restrictions, inherent in prison life, on rights and privileges free citizens take for granted” and that prison officials are entitled to receive a high degree of deference for the decisions they make because of the “inordinately difficult undertaking that is modern prison administration.” (Id., at 1082) (Internal citations omitted).

That starting point led him to a far less critical analysis of the KDOC’s asserted justifications for the new regulations than Judge Lasnik had followed. Emblematic of Judge VanBebber’s more cursory approach was his statement that: “After careful review of the record, the court concludes that [the challenged] policies are rationally related to the legitimate governmental interests outlined by [the KDOC}. They promote the internal security of the prisons, help to deter inmates from committing future crimes or rules violations, and aid in inmate rehabilitation. They are content-neutral, and the logical connection between the restrictions and the governmental interests is not so remote as to render the regulation and policies arbitrary or irrational.” (Id., at 1083) (Emphasis added).

For the record, Judge VanBebber never did explain - and we find it a bit difficult to perceive - what correlation he saw between banning PLN from the Kansas prisons and deterring inmates from committing future crimes. Nevertheless, Judge VanBebber granted the KDOC a summary judgment in both cases, and decreed that “the cases are closed.” (Id., at 1086).

Felon in Possession: U.S. v. Gayle, No. 02-1095 (2nd Cir. 08/27/03) - A conviction for possession of a gun by a felon based on a Canadian conviction was vacated when the Second Circuit held that, because the statutory language was ambiguous, foreign convictions cannot constitute predicate offenses under 18 U.S.C. § 922(g)(1).

Guidelines: U.S. v. Mayle, 334 F.3d 552 (6th Cir. 2003) - Here the Court upheld a 23-level upward departure and resulting 30 year increase in the sentence of a defendant convicted of forgery and cashing a victim’s social security checks and which called for a Guidelines sentencing range of 15 to 21 months, based on the district court’s finding (by a preponderance of the evidence) that the defendant’s relevant conduct included three murders. The Court concluded: “Given the fact that the defendant’s relevant offense conduct and uncharged criminal history involve the most serious criminal behavior, we cannot say that the ultimate sentence was unreasonable.”; U.S. v. Torres-Aquino, 334 F.3d 939 (10th Cir. 2003) - Here the Court held that Guideline Amendment 632, which eliminated the 16-level increase in offense level previously mandated for illegal reentry defendants with aggravated felony convictions, and substituted a new range of increases from 8 to 16 levels based on the seriousness of the prior aggravated felony, could not be applied retroactively to a defendant who was sentenced under the earlier law; U.S. v. Warren, No. 02-3110 (3rd Cir. 08/07/2003) - As a matter of first impression for the Third Circuit, the Court held that a defendant may not invoke the Fifth Amendment and refuse to provide the government with additional information pursuant to 18 U.S.C. § 3553(f)(5) and U.S.S.G. § 5C1.2 and still qualify to receive the benefits of a “safety valve” sentence reduction.

Prison Litigation Reform Act: Lewis v. Gagne, No. 1:02-CV-129 (N.D.N.Y. 09/20/03) - In a case of first impression in the Second Circuit, the Court ruled that juvenile delinquents being held by the State are covered by the provisions of the Prison Litigation Reform Act (42 U.S.C. § 1997e), and thus they must exhaust all administrative remedies before they will be allowed to seek relief from the courts in suits challenging their treatment in a state facility.

Privilege: U.S. v. Chase, No. 01-30200 (9th Cir. 08/22/03) (en banc) - Here a divided en banc court held that, even though the threats that the defendant communicated to his psychiatrist arguably constituted a crime, the psychotherapist-patient privilege precluded his psychiatrist from testifying about what he told her during his therapeutic sessions. In so ruling, the Court specifically declined to read a "dangerous-patient" exception to the testimonial privilege, where none had been provided for by statute.

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