19-b-1 Federal Constitutional Protections

• Library: A Jailhouse Lawyer's Manual (2020 Edition)

19-B-1. Federal Constitutional Protections

The First Amendment to the U.S. Constitution creates a minimum level of protection of your right to communicate with the outside world. No government body may pass laws or regulations falling below this level of protection. Some states may also provide more protection through state constitutions and statutes. The following is a discussion of the U.S. Constitution's minimum guarantees of your right to communicate. While reading the information below, it is important to keep in mind that courts distinguish between incoming and outgoing mail. Restrictions on incoming mail are greater than on outgoing mail because incoming mail can pose a greater security threat.

Originally, in Procunier v. Martinez, ⁵ the U.S. Supreme Court held that arbitrary censorship of both incoming and outgoing general prison correspondence (regulations preventing you from sending or receiving all or part of your mail) violates the First Amendment right to free speech of both prisoners and their correspondents.⁶ The Court held that censorship of prison mail was allowed only to further certain substantial government interests such as prison order, security, and rehabilitation. ⁷ The Court also held that when some censorship was justified, the censorship could not be greater than necessary to serve valid government interests.⁸ This case applied to both incoming and outgoing mail.

But with the case Thornburgh v. Abbott, ⁹ the Supreme Court partially overruled Martinez by specifying that the Martinez standard applies only to outgoing correspondence-correspondence sent by a prisoner to someone outside the prison. For incoming correspondence (correspondence received by a prisoner from the outside), a different standard applies. This standard comes from Turner v. Safley,¹⁰ and states that restrictions on incoming mail are valid if they are "reasonably related to legitimate penological interests." ¹¹ A penological interest is an interest of the prison system related to the management of prisoners, such as maintaining security or rehabilitation. Four factors must be considered in determining whether a limitation on your incoming mail meets this standard:

(1) the rational connection between the mail restriction and the prison's penological interest,

(2) alternatives available to prisoners to exercise their rights,

(3) the burden of accommodating rights, and

(4) the lack of alternatives available to prisons in satisfying their interests.¹²

The reason the Abbott Court gave for treating incoming and outgoing mail differently was that mail containing contraband that comes into the prison is more of a security threat than mail that leaves the prison.¹³

Although the Turner standard may appear to be similar to the Martinez standard, there is a significant difference between the two. To satisfy the Turner standard (for incoming correspondence), prison officials must simply show the regulation could potentially achieve a legitimate goal. To meet the Martinez standard (for outgoing correspondence), officials must demonstrate that the restriction actually achieves an important goal. There are two main differences between the two standards:

(1) the purposes that restrictions on outgoing mail are meant to serve must be important and not just legitimate, and

(2) restrictions on outgoing mail must be shown to be more effective than restrictions on incoming mail need to be. As a result, it is easier to convince a judge that restrictions on outgoing mail are unconstitutional than it is to show restrictions on incoming mail are unconstitutional. The standards for incoming and outgoing correspondence are explained further below with the help of examples to indicate how courts have interpreted them.

(a) Outgoing Correspondence

Restrictions on outgoing, non-legal mail must further an important governmental objective, and the restriction must be no greater than necessary.¹⁴ Courts have generally upheld four important types of regulations on outgoing mail under this standard:

(1) regulations banning letter kiting (including mail to a third party in your letter to someone else), ¹⁵

(2) setting postage limits, ¹⁶

(3) banning inmate-to-inmate correspondence, ¹⁷ and

(4) requiring approved correspondence lists. ¹⁸

Under New York State regulations, when the prison authorities have a reason to suspect that a prisoner is kiting mail, they may open a prisoner's outgoing mail.¹⁹ Kiting is when you send a message to one person, and inside that letter, include another message that will be sent to someone else. The authorities must have proof that the officials reasonably believed the prisoner was kiting mail. ²⁰ Receiving incoming kited mail is also prohibited, though it is permissible for someone to send you the writing of a child within an adult's correspondence.²¹

Courts have also held that prison authorities are permitted to restrict the amount of postage you can spend on outgoing mail. ²² Similarly, courts have generally allowed prison policies that restrict receiving postage in the mail and providing free postage.²³ These restrictions relate to the legitimate interest of security because postage stamps can be used as currency (and thus lead to increased theft and unregulated transactions) and because drugs can be smuggled on stamps.²⁴

Many prisons completely ban inmate-to-inmate correspondence, and these restrictions have generally been upheld as reasonably relating to prison security.²⁵ As inmate-to-inmate correspondence involves both outgoing and incoming correspondence, it presents a slightly different case from purely outgoing mail. But, because only the rights of prisoners and not those of the general public are involved, the courts are generally not as concerned about the restriction of rights. Inmate-to-inmate correspondence was at issue in Turner v. Safley, in which the Supreme Court announced the reasonable relation standard that is applied in all incoming correspondence cases and even in many outgoing correspondence cases.²⁶ In addition, courts have also found restrictions barring correspondence between current and former inmates to be constitutional because they are rationally related to security interests such as preventing escapes and violent acts. ²⁷

Whether "approved correspondence lists" for outgoing non-legal mail are constitutional is unclear. In Milburn v. McNiff, ²⁸ a New York court found unconstitutional a policy requiring prisoners who wanted to communicate with people not on their "approved correspondence lists" to submit a "request to correspond form" to the addressee. On the other hand, various federal district courts have found this kind of regulation to be "a reasonable method of maintaining prison security without undue...