"Onan's transgression": the continuing legal battle over prisoners' procreation rights.

• Author: Breault, Adam M.

1. INTRODUCTION: THE LANDSCAPE IN WHICH GERBER V. HICKMAN WAS CONCEIVED

   Emerging from the shadows of a federal prison, William Gerber challenged a California corrections policy that prevented him from artificially inseminating his wife while incarcerated. On September 5, 2001, the United States Court of Appeals for the Ninth Circuit dramatically deviated from current prisoners' rights jurisprudence by ruling in favor of Gerber--holding that California's corrections policy that banned artificial insemination was not "reasonably related to legitimate penological interests." (1) Eight months later, however, the circuit court vacated its earlier decision, reheard Gerber's case en banc, and held that the right to procreate was "fundamentally inconsistent with incarceration," thereby precluding Gerber from artificially inseminating his wife. (2)

   Gerber's victory in early September of 2001, albeit short-lived, was the result of a shift in the judicial pendulum that has begun to sway back in favor of prisoners' rights. Inmates did not always enjoy the freedoms and protections to which they are now entitled. It is only during the last half-century that courts have taken an active role in ensuring that certain rights endure behind prison walls. Through many years of creating, questioning, refining, and reformulating standards of review for prisoners' rights, the United States Supreme Court, other federal courts, and state courts, have attempted to establish a uniform methodology for scrutinizing inmate challenges to prison policies.

   During the 1980s and 1990s, conservativism surged through the courts, resulting in judicial and legislative contraction of prisoners' rights to a degree not seen since before the 1971 Attica riots. (3) In contrast, the Ninth Circuit's first decision in Gerber v. Hickman (Gerber I) reasserted a return to the more liberal (4) prisoners' rights jurisprudence of the 1960s and 1970s. (5) The Ninth Circuit's en banc decision in Gerber v. Hickman (Gerber II), reversing Gerber I, is the latest example of the federal judiciary's late twentieth-century conservatism. This conservatism continues to propagate the dominant notion that prisoners shed many of their rights at the prison gate. (6)

   This Note reviews the subject of prisoners' rights and pays specific attention to the right to procreation through artificial insemination. Part II recounts the various ways courts have approached prisoners' rights throughout the last century and focuses, in particular, on the federal judiciary's attempt to create a uniform standard of review for prisoners' rights cases. Part III discusses other types of inmate claims and their relationship to the procreation argument.

   The Supreme Court's establishment of a uniform standard of review for prisoners' rights cases is examined in Part IV. Part V recounts the Eighth Circuit's 1990 decision, Goodwin v. Turner (7) (Goodwin II), which stood as the most important inmate procreation case following the Supreme Court's establishment of a uniform standard for reviewing prisoners' rights matters. Part V summarizes the criticism that followed the Eighth Circuit's reasoning in Goodwin II. Part VI reviews Gerber I, which echoed much of the criticism that Goodwin H attracted. Part VII summarizes the Ninth Circuit's recent reversal of Gerber I and compares and contrasts the two Gerber decisions. In addition, this Note argues that the dissenting judges in Gerber H presented a stronger and more practical analysis than the majority's opinion, which hinged its argument on retributive ideology. Finally, Part VIII measures the likelihood of Gerber's case reaching the Supreme Court and pontificates what the Ninth Circuit's most recent decision may mean for the future of prisoners' rights litigation.

2. BACKGROUND OF PRISONERS' RIGHTS LAW

   Throughout this country's history, courts have responded in different ways to prisoners' claims of unconstitutional practices by prison officials. Historically, courts categorically refrained from hearing prisoners' complaints. (8) This is true in part because they regarded prisoners as "`slave[s] of the State'" who forfeited all personal rights upon conviction. (9) Abstention from even considering the existence of inmates' rights is generally accepted as the hands off doctrine. (10) The underlying premise of this doctrine was that "`courts [were] without power to supervise prison administration or to interfere with the ordinary prison rules or regulations.'" (11) This concept has evolved as the Supreme Court acknowledged that "[l]awful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system. (12) In essence, this view provided that inmates retained their rights, except for those rights that the law necessarily must take away due to the nature and purposes of incarceration. (13)

   During the 1960s and 1970s, an increasingly liberal Supreme Court imposed greater restrictions on police and prosecutorial conduct. (14) These restrictions resulted in the increase of criminal suspects' pre-trial rights and coincided with a general wave of civil rights reform. (15) These developments brought about the gradual erosion of the hands-off doctrine.

   The 1971-1972 Supreme Court term marked a significant turning point in prisoners' rights jurisprudence. During that term, it was determined that courts indeed had the jurisdiction to review complaints that were brought by inmates regarding prison conditions and practices. (16) Despite the wide discretion afforded prison administrations, the Court maintained that the district courts should hear inmates' claims of abuse instead of dismissing them for failure to state a claim upon which relief could be granted. (17)

   Having first determined that prisoners' rights claims were matters properly brought before the courts, the Supreme Court sought to establish a uniform standard of review. (18) Instead of devising one standard, however, the Court created two different tests--the applicability of which depended on whether the regulation in question implicated the rights of prisoners alone or impacted prisoners and non-prisoners alike. (19)

   In Procunier v. Martinez, the Court considered the constitutionality of several California corrections regulations that provided for the censorship of inmates' personal correspondence, including communications with family members and legal representatives. (20) The Court recognized that the censorship of inmates' correspondence necessarily implicated the First and Fourteenth Amendment rights of all citizens because the interests of prisoners and non-prisoners--the senders and the recipients of correspondence are "inextricably meshed." (21) Censorship of a prisoners' correspondence implicated free citizens' First and Fourteenth Amendment liberties. Therefore, the Court reasoned that its review must not depend solely upon the legal status of prisoners; rather, the analysis must include the "incidental restrictions on [free citizens'] First Amendment liberties imposed in furtherance of legitimate governmental activities." (22)

   In discussing the conflicting interests between First Amendment liberties and the nature of incarceration, the Supreme Court acknowledged that maintaining order and security in prisons undoubtedly constituted a legitimate governmental objective--the furtherance of which "justifies the imposition of certain restraints on inmate correspondence." (23) To this end, the majority stated that censorship was justified when it fulfilled two requirements--the regulation had to further an important government interest, and the regulation had to be sufficiently narrow. (24)

   Under the first prong, the Court held that prison officials were not justified in creating blanket censorship. (25) At the very least, a state must demonstrate that such restrictions serve either a "security, order, [or] rehabilitation" interest--all of which have been held to be legitimate governmental objectives. (26)

   The second requirement that prison officials must meet is that the limitation must be narrowly tailored. (27) The prisoners' First Amendment liberties can only be limited to the extent "necessary or essential to the protection of the particular governmental interest involved." (28) The Court's standard does not require demonstrating the burden of proving that adverse consequences would flow from the absence of censorship. (29) Rather, the regulation must further a legitimate governmental interest. (30) Nevertheless, if a regulation is overly broad in that it unnecessarily infringes upon the right of free speech rights, it will be struck down despite its value in furthering legitimate penological interests. (31)

   The Court in Martinez found that the regulations were unnecessary to further a substantial interest and that prison officials abridged prisoners' First Amendment liberties. Specifically, the Court found that the Department of Corrections failed to provide adequate procedural safeguards. (32)

   That same year, the Court in Pell v. Procunier ruled that a prisoner's free speech rights were not violated by a regulation that prohibited media interviews. (33) In Pell, inmates at the San Quentin State Penitentiary alleged that a regulation of the California Department of Corrections (CDC), which prevented face-to-face interviews with members of the press, violated their First and Fourteenth Amendment rights of free speech. (34) Writing for the majority, Justice Stewart acknowledged that "a prison inmate retains those First Amendment rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system." (35) Nevertheless, the Court found that alternative means of communication existed (36) and that the purpose of media restrictions served the legitimate government interest of institutional security. (37) In holding the...