Last week, the Seventh Circuit rejected a First Amendment challenge to rules adopted by the Indiana Department of Corrections that prohibit inmates from advertising for pen-pals or receiving materials from websites and publications that allow persons to advertise for pen-pals. IDOC adopted the rules after receiving a report that inmates had defrauded an elderly man, although a subsequent investigation of 350 inmates who solicited pen-pals through websites did not uncover any firm evidence of systematic fraud. Nonetheless, the district court in Woods v. Commissioner of the Indiana Dept. of Corrections (No. 10-3339) granted summary judgment to IDOC, and the Seventh Circuit affirmed.
The Seventh Circuit’s analysis followed the familiar four-factor test established by Turner v. Safley, 482 U.S. 78 (1987), for First-Amendment challenges to prison regulations. Going back to Turner itself, courts’ efforts to apply the four-factor test normally strike me as a little forced, and Woods is no exception.
The first two factors usually cut in favor of the state. Having decided that way and built some momentum in the state’s favor, it often seems to me that courts just go along with the state on the second two factors without much effort. I suppose that approach at least saves courts from having to figure out what to do when the factors are split 2-2 or 3-1. In any event, the whole exercise strikes me as little more than a half-hearted gesture in the direction of analytical rigor, providing a veneer of legal objectivity for a decision that is really a policy judgment.
In Woods, the pen-pal rules were fine under the first two factors because (1) they had a rational connection to the prevention of fraud, and (2) under the rules, the inmates still had other means of finding people with whom to correspond outside prison.
The third factor, the court wrote, “requires us to examine the impact that voiding the regulation would have on prison staff, other inmates, and the allocation of prison resources.” (8) The court decided this in favor of the state, too, because “lifting the ban would re-open a channel of communication that creates a large potential for fraud to occur.” It is not clear what “large potential” means here, or how large a potential risk would have to be in order for it to satisfy the third factor. Undoubtedly, there is a potential for abuse if inmates are freely permitted to seek out pen-pals, but the same could be said whenever a new channel of any sort is opened for inmates to communicate with the outside world. If the rights that the Turner test is intended to safeguard mean anything, the identification of some risk cannot be enough. Yet, it does not appear that the Woods court actually thinks that much, if anything, more is required. Consider the breadth of this language: “When prison officials are rational in their belief that, if left unchecked, an activity will lead to fraud, we hold that banning the activity does not violate inmates’ First Amendment rights.” (9) Read for all its worth, this “holding” might justify the complete isolation of all inmates at all times, including from family and friends (who can be, and surely on occasion are, used as instruments of fraud).
Finally, the “last of the Turner factors asks whether an alternative to the challenged regulation would fully accommodate the inmates’ First Amendment rights at a de minimus cost to legitimate penological interests.” (9) The inmate-plaintiffs argued that IDOC had already adopted a rule that adequately addressed fraud concerns:
[I]n addition to banning inmates from advertising for pen-pals, the IDOC also placed limits on who can put funds into inmate trust accounts. The plaintiffs argue that since IDOC inmates may now only receive funds from non-family members who are enumerated on the inmates’ visiting lists, the fraud concern has been addressed and the pen-pal prohibition is gratuitous. (10)
Again, the court turned aside the argument using the troubling any-risk-is-too-great tack:
Certainly the restriction placed on the deposits helps prevent fraud, but it can hardly be said to eradicate it. . . . In our view, no single regulation can serve as a catchall for eliminating the potential for fraud. (10)
If the standard really is risk-eradication, what regulation will not pass muster?