Looking the Other Way: Porn, "Playhouse" Prisons, and the Culture of Judicial Deference

• Author: Adam K. Spease
• Position: J.D. Candidate, The University of Iowa College of Law
• Pages: 07

Adam K. Spease: J.D. Candidate, The University of Iowa College of Law, 2006; A.B., University of Chicago, 2002. I would like to thank my grandmother, Claudie Mae Smith, for her continuous nurturing and support of my academic career. I would also like to thank Linde Brady and Jeremiah Nelson for always being there to listen, understand, and laugh along with me. Finally, many thanks to the members of Volumes 90 and 91 of the Iowa Law Review. Any mistakes are my own. Page 1119

I Introduction

In 1996, Congress passed the "Ensign Amendment" to forbid the use of Federal Prison System funds for the distribution of "commercially published information or material that is sexually explicit or features nudity" to prisoners.¹ The Bureau of Prisons later adopted regulations that narrowed the scope of materials that cannot be distributed under the Amendment.²Representative John Ensign of Nevada offered the Amendment in the hopes of ending "[f]ederal inmates' access to pornographic material."³

The previous rule regulating sexually explicit material in prisons only allowed prison officials to prohibit inmate access to "sexually explicit material which by its nature or content poses a threat to the security, good order, or discipline of the institution, or facilitates criminal activity."⁴ The new rules promulgated under the Ensign Amendment broaden prison officials' discretion to prohibit publications by no longer requiring that the publication threaten security, order, or discipline.⁵ Prisoners have challenged the Ensign Amendment as a violation of their First Amendment freedom of speech rights, most notably in the cases of Amatel v. Reno⁶ and Ramirez v. Pugh.⁷ The two circuit courts that have heard these claims have Page 1120 issued conflicting rulings, creating a circuit split with respect to whether the Ensign Amendment infringes on prisoners' freedom of speech.⁸

This Note discusses the analytical framework for prisoners' claims of infringement of constitutional rights as set forth by the Supreme Court in Turner v. Safley.⁹ It then proceeds to examine the conflicting holdings of the Amatel and Ramirez courts on the question of the appropriate level of judicial deference under Turner when analyzing such claims.¹⁰ This Note argues that the pervasive principle of judicial deference present in the Amatel court's opinion is problematic in its resistance to developing a factual record in cases where the academic literature addressing a contested issue is split. It further argues that the Ramirez court's insistence on an examination of a factual record more closely fits the court's proper role as fact-finder. Finally, this Note concludes that the United States Supreme Court should seize the opportunity of this circuit split to resolve the question of the proper standard of review under Turner.

II Background

A History Of Prisoners' Rights Litigation In The United States

The early American view on prisoners' rights was that prisoners retained no rights when incarcerated.¹¹ A change came in the early twentieth century when courts began to apply a "hands-off doctrine" based on the idea that, though prisoners retained rights while incarcerated, it was not within the province of the court to enforce those rights.¹² The most recent paradigmatic shift in prisoners' rights litigation began during the Civil Rights movement of the 1960s and resulted in the development of a judicial approach recognizing the ability of courts to address prisoners' claims.¹³However, courts have not uniformly applied this new approach in all areas, Page 1121 resulting in the continued application of the "hands-off doctrine" in various areas of prisoners' rights litigation.¹⁴ In fact, "[t]he Supreme Court has repeatedly asserted that deference is owed to prison officials," a stance that "result[s] in frequent curtailment of prisoners' rights."¹⁵

B Analysis Of Prisoners' Claims Of Infringement Of Constitutional Rights Under Turner v. Safley

In 1987, the Supreme Court decided Turner v. Safley, establishing a framework for addressing prisoners' claims of constitutional rights violations.¹⁶ The Court began by noting that "[p]rison walls do not form a barrier separating prison inmates from the protections of the Constitution."¹⁷ However, the Court also noted the competing interest of the legislative and executive branches in maintaining efficiency and order in prisons and the resulting need for judicial restraint with respect to prisoners' claims of constitutional rights violations.¹⁸ After reviewing the history of cases addressing such claims, the Court stated that "when a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests."¹⁹ The Court then put forth several reasons for the use of this test, including: giving deference to prison officials who are better equipped to make decisions regarding the efficient operation of a prison; avoiding hampering the efforts of such officials to create innovative solutions to problems; and avoiding distorting prison officials' decisionmaking process.²⁰ All of these reasons demonstrate the goal of the test, namely, allowing prison officials greater flexibility in the operation of prisons than closer scrutiny would allow.²¹ The Turner test thus establishes two competing principles: the need for a judicial search for a reasonable relation between a regulation and the penological interest it allegedly serves, and judicial deference to the decisions of prison officials.²²

The Court also named four factors that lower courts should consider when determining if a regulation that allegedly infringes on a prisoner's constitutional rights is "reasonably related to legitimate penological interests."²³ First, a "'valid, rational connection'" must exist between the Page 1122 regulation and the governmental interest it serves.²⁴ Further, as part of this "'valid, rational connection'" inquiry, the governmental interest advanced as a justification must be both "legitimate and neutral."²⁵ Second, courts must inquire whether there are other ways for the prisoner to exercise the constitutional right in question.²⁶ Third, courts must consider the impact that accommodating a prisoner's right has on other inmates, guards, and prison resources.²⁷ Finally, courts must look to the availability of alternative means of accommodating the constitutional right.²⁸ The Turner Court applied these four factors to find a prison regulation forbidding correspondence between inmates valid and a regulation forbidding inmate marriages without consent by the warden invalid.²⁹ Page 1123

The first factor, whether a "'valid, rational connection'" exists between the regulation and the governmental interest it serves, is currently the subject of a circuit split. The D.C. Circuit and the Third Circuit have adopted competing interpretations of the appropriate level of judicial inspection in analyzing this factor. As will be demonstrated, this split is indicative of the more significant issue of the role each court sees itself fulfilling in the adjudicatory process. As the Amatel court noted, this "first factor looms especially large. Its rationality inquiry tends to encompass the remaining factors . . . ."³⁰ Thus, the first factor is also the focus of this Note.

C History Of The Ensign Amendment

The House of Representatives debated the Ensign Amendment on July 24, 1996.³¹ The Amendment was proposed shortly after Congress passed the Prison Litigation Reform Act ("PLRA"),³² which was a response to recent advances in prisoners' rights litigation.³³ The passage of the PLRA highlighted congressional concerns that advances in prisoners' rights had led to judicial violation of the principle of separation of powers and an increase in prisoner lawsuits.³⁴ Thus, the PLRA was tailored to "curtail prisoner lawsuits and return more power and responsibility to the states for prison management."³⁵ The PLRA accomplished these goals by making it more difficult both for prisoners and their attorneys to obtain judicial relief, and also for the federal courts to provide such relief.³⁶

It was in this environment of congressional hostility...