Beard v. Banks - Oral Argument

Argument of Louis J. Rovelli

Chief Justice Roberts: We'll hear argument next in Beard v. Banks.

Mr. Rovelli.

Mr. Rovelli: Mr. Chief Justice, and may it please the Court--

The policy challenged in this case applies to a small class of dangerous, disruptive inmates, all confined at level 2 of the Long Term Segregation Unit, which is the most restrictive custody in the Pennsylvania prison system.

These central facts inform every aspect of the Turner analysis which governs the outcome of this case.

The denial of periodicals and photographs, with the opportunity to earn them back by improved behavior, is logically connected both to rehabilitation and security.

Level 2 inmates have a... have failed every attempt at rehabilitation.

Yet, nearly all of them will be released from prison.

The goal at level 2 is to turn these inmates around, to improve their behavior enough that they can be advanced safely to programs with more opportunities for self improvement.

Until that happens--

Justice Stevens: Mr. Rovelli, I... I forget.

How big a class of... of prisoners are we talking about?

Mr. Rovelli: --Less than 40.

Justice Stevens: Less than 40?

And does the record tell us how long they have been in level 2?

Mr. Rovelli: Well, the duration of... of confinement at level 2 varies widely from one inmate to another because it is affected by their improvement.

Justice Stevens: But is there any average or any... is there... does the record tell us how... how long most of them have been there?

Mr. Rovelli: The record does not tell us how long most of them have been there.

At the time of the case in the trial court, which was 2002, 25 percent of them had been promoted to level 1 or had been released from the Long Term Segregation Unit altogether.

Justice Stevens: Does that mean that 75 percent had not?

Mr. Rovelli: At that time, yes.

Justice Stevens: And how long... do we know what the average period of incarceration in level 2 is?

Is it a matter of weeks, or is it a matter of years?

Mr. Rovelli: Well, realistically it's in between.

Again, the... the unit had only been in operation for 2 years at time that the record was made.

So there's very little--

Justice Stevens: I'm trying to understand whether typically they're there for a long period of time on the one hand, or are they there sort of on probation and are periodically reviewed and moved into another system?

Mr. Rovelli: --They're... they're moved when their behavior improves.

The average over a long period of time has been in the range of a year or so.

Justice Stevens: I see.

Justice Kennedy: Were there any prisoners, since the inception to your program, that have been in there for the whole 2 years?

Mr. Rovelli: Through today?

I'm sorry.

Oh, from the time of its inception?

Justice Kennedy: Yes.

Mr. Rovelli: Until the 2-year point.

Yes, there were.

I don't know exactly how many there were, but there definitely were.

Justice Kennedy: Are... do... is... is Pennsylvania alone or nearly alone in imposing this rule, or is this typical of the restraints imposed in... in this maximum restrictive confinement?

Mr. Rovelli: There's a wide variation of privilege grants and withdrawals even at the highest levels of security.

The ACLU's amicus brief points to three other States that... that have the same program as Pennsylvania, and frankly, I'm not even sure as to those, that it's identical.

But the Court has recognized that... that these sorts of variations, particularly when we're talking about high security prisoners, are precisely what Turner contemplates.

Justice Kennedy: Is this one of the most severe restrictions in the Nation with respect to reading material and photographs?

Mr. Rovelli: I'm sure that it is.

Justice Ginsburg: What is the reason that... that the State or the regulations allow paperbacks from the library and not current events?

I'm just... that... the rationality of... of that line escapes me.

Mr. Rovelli: Well, there's... there is certainly a security component to it.

Paperback books, small, compact, much more difficult to use as weapons, and the experience of the prison staff that operate this high security unit is that newspapers and magazines are... have been a... a frequent source of mischief.

Justice Scalia: Can we explain that?

How does one use a newspaper as a weapon?

I mean, you know, maybe disciplining a dog or something.

[Laughter]

Mr. Rovelli: Actually inmates, particularly the worst of the worst, are quite clever at using newspapers.

A newspaper rolled tightly with toothpaste used as an adhesive can be compacted into very nearly the equivalent of a nightstick.

Justice Ginsburg: But you--

Chief Justice Roberts: But a paperback version of War and Peace is less dangerous?

It seems a--

Mr. Rovelli: The experience of prison officials is that, yes, it is, and... and actually it's very common in prison systems to distinguish, for example, between hardback books and paperbacks.

Yes, it's... these are difficult lines to draw, and that's where the professional expertise of the people who deal with the problems every day comes into play.

Justice Ginsburg: --But if the concern is the safety concern, then you would have an equal concern with the Jewish Daily Forward, which is a newspaper format, or... and I don't know what the Watchtower comes out in these days.

Mr. Rovelli: Yes.

Well, Justice Ginsburg, the... the experience of prison administrators is that prisoners are less likely to use religious and legal materials for mischief, and as to paperbacks as well, they do supply an alternative means of receiving information from outside the prison.

But again, if I... if I allude frequently to the experience of prison administrators, it's... it's because that's what these... this policy is guided by.

Newspapers and magazines have a high value to inmates.

Chief Justice Roberts: --Well, that's why I thought your answer would have focused on that rather than the security concerns, is that you take away what it is they want the most because that's most likely to result in them conforming their behavior so they can get it back.

Mr. Rovelli: Yes, and that is... is the primary purpose of the policy overall, and--

Justice Breyer: So why... let's see.

They go to the prison library what?

Once every couple of weeks or what?

Once a week?

Mr. Rovelli: --Actually--

Justice Breyer: One... one visit per month.

And... and how often do they go to the prison library?

Mr. Rovelli: --Inmates at level 2 are not permitted to go to the prison library.

Justice Breyer: It's ordered.

Mr. Rovelli: They can order books from the library.

They are allowed to visit the... the mini law library that's proximate to the unit.

Justice Breyer: Yes, what it says... that's what... it says, to review legal materials, one at a time may be let out of his cell and is escorted to a mini law library in hand.

All right.

Why couldn't you have a... if he wants to see the newspaper in that mini law library, why couldn't there be a copy there, only the parts that are consistent with the censorship policy, just like a news of the day.

Mr. Rovelli: Having--

Justice Breyer: Is there a security reason or is--

Mr. Rovelli: --There's definitely a security reason.

Justice Breyer: --Is there a security reason when he's there in leg irons looking at the books, the law books, in the mini law library?

Mr. Rovelli: Allowing the... the inmate to request to go to the mini law library for an additional purpose or for a separate purpose to read periodicals puts increased demand on going there, and moving these inmates is a... a very demanding operation.

It requires two officers and physical restraints and going through layers of security.

So it puts increased demands on prison resources.

Justice Ginsburg: What does the... what does the inmate have to show in order to go to the law library?

That is, suppose the inmate's position is I want to go there and I want to read Law Week and Legal Times and other... I want to see what's new, what's breaking in the law so that maybe I'll have something I can put in a petition, and that's why I want to go every... every chance I get to the law library.

Could such an inmate go to the library?

Mr. Rovelli: Yes.

The inmate may go to the law library subject to the limitation of one inmate at a time, subject to the sign up list.

The inmate may get--

Justice Ginsburg: Well, that would mean that the inmate could go and look at the legal newspapers, but not... not the Christian Science Monitor.

Mr. Rovelli: --The Christian Science Monitor is not available to him in the... in the mini law library, and... and actually, if he wanted to subscribe, he could receive a... a legal periodical in his cell.

Justice Ginsburg: So he could get Law Week, Legal Times, and--

Mr. Rovelli: Subject--

Justice Ginsburg: --the National Law Journal.

All of those he could get.

Mr. Rovelli: --Subject to the content restriction of religious and legal materials that would fit in one property box, he may.

Justice Souter: Now, on... on your theory of... of behavior modification, would it, nonetheless, be... be open to the State to say, no, you may not receive any more legal materials and you may not go to the library to look at them?

Because that's something you very much want to do.

And in order to do that, you've got to shape up and... and get moved down to a lesser level of security.

Would that... I'm not saying that the State is... is about to do that, but on your theory, could the State do that?

Mr. Rovelli: Yes.

Yes, Justice Souter, the State could, as long as the overall Turner analysis is observed.

And, in particular, I think that would implicate the availability... the availability of alternative means of exercising the asserted right to receive information from outside the prison.

Justice Souter: Well, what would... I mean, you know, one of the arguments made on the other side is that if you accept the behavior modification theory as an adequate justification, the Turner categories essentially become incoherent.

What, for example, would be the alternative means in this case if the State said, we realize that the people in... in... at level 2 want to see legal materials very, very much because that is a source of hope for them, and we want them to have that source of hope only if they shape up and... and get down to a reduced level of security, so we're going to stop it, period?

What would be the alternatives within the... the Turner analysis?

Mr. Rovelli: The inmate would still have unlimited access to counsel visits and can still visit the mini law library and do his own legal research, even if he's not allowed to subscribe to or... or keep legal materials, legal periodicals in his own cell.

Justice Souter: What if the... what if the inmate said, look, the... the lawyers who come to see us are... are great guys, but they're... they're overworked.

They don't have time to be thinking about novel legal theories, which we would dream up perhaps if we could get to Legal Times and these periodicals?

So it's... it's not an alternative.

Mr. Rovelli: Ultimately any prisoner is... is free to challenge the adequacy of his ability to access the courts in a... in an as applied challenge to his own conditions.

Justice Souter: So you're... you're saying there... there's a separate value here, and that is the value of access to courts.

And... and that limits what can be done for purposes of behavior modification.

Mr. Rovelli: Definitely.

Justice Souter: All right.

What about the marriage example?

The... the Court has said, yes, you couldn't... the... the State can't prevent the inmate from... from getting married.

I don't see where the separate source of... of value is that would... that... that would affect that analysis.

No right of access to court.

The associational rights can be abridged and so on.

Why, on your analysis, wouldn't... wouldn't the proper disposition of the earlier case have been to say, yes, the State can preclude marriage too because that's something they very much want and... and the State can preclude that unless they shape up and... and get down to a... a lesser level of security?

Mr. Rovelli: Well, the marriage ban, Justice Souter, of course, is subject to Turner analysis as well, and I think that where Turner might bring up short a ban on marriage for these high security inmates is in the... the logical connection to the rehabilitative purpose in that there being so few inmates and marriage is going to be such an infrequent occasion, it's hard to see the marriage ban as influencing level 2 inmates generally to improve their behavior.

Justice Souter: So you're saying there just is not a logical connection there within--

Mr. Rovelli: Yes.

Justice Souter: --the meaning of the... of the case?

Mr. Rovelli: That... yes.

Justice Souter: But there would be a logical connection for those who want to get married.

Mr. Rovelli: That... that implicates--

Justice Souter: You're... you're saying it might not makes sense as a systemic policy--

Mr. Rovelli: --Yes.

Justice Souter: --because it isn't a big enough problem.

But for... we're not talking about a whole system here.

We're talking about 40 people or less, and if some of those 40 people want to get married, why doesn't it make perfect sense to say no marriage?

Mr. Rovelli: Well, you could say that about all... probably a range of things if you went so far as to query each inmate as to what it is that they value most or what it is they're most interested in doing--

Justice Souter: You can, and on... on your analysis, why isn't that sufficient?

Mr. Rovelli: --It would be an interesting program and I would defend it that you could query inmates on what is most valuable and then deprive them of it subject to--

Justice Souter: Okay, but how do we get around the marriage case then?

Mr. Rovelli: --Well, I... I don't think we need to get around the marriage case in the sense that, particularly as to high security inmates, prison officials have very wide discretion to fashion policies that serve the goals.

And... and to do it--

Justice Souter: So as to these, the... the marriage could be banned, in effect, you're saying.

Mr. Rovelli: --It could be banned, but I do think that it would be subject to a... a pointed challenge on the logical connection, but in theory, it's... it is one of the instruments... a privilege that could be withdrawn for behavior modification purposes.

This case is... is exceedingly similar to Overton where the Court directly observed that withdrawing visitation privileges is a proper and even necessary technique to... to improve the behavior especially of high security prisoners who have few privileges left... left to lose, which is precisely the same situation that we're presented with in this case.

Turner too... I'm sorry.

Overton as well is instructive on the subject of adequate alternatives.

Justice Ginsburg: But I thought there, there was a genuine security concern, which I think you pretty much said doesn't exist here when you consider what they can have in... in the cell.

Mr. Rovelli: I think that... that in both Overton and this case, there were both behavior modification and security concerns.

And I'm not even sure that their weight... they're weighted as between the two altogether different between the two cases.

Actually all of the discussion in Overton was in the context of behavior modification, which is related both to security and to rehabilitation.

But the... the tenor of the discussion was actually, I would say, more directed to rehabilitation.

The Court recognized in Overton, as adequate alternative means of exercising the right, letters and phone calls.

The inmates in this case have the opportunity of unlimited correspondence, family, chaplain, and counsel visits, and as... as we've talked about, books from the prison library.

Quickly addressing the last two Turner factors, accommodating the asserted right would altogether defeat the goals of the policy.

It would have, as I alluded to when I did speak of security, a significant impact on guards and prison resources, and there are no ready alternatives.

If I could reserve the balance of my time.

Argument of Jonathan L. Marcus

Chief Justice Roberts: Thank you, Mr. Rovelli.

Mr. Marcus.

Mr. Marcus: Thank you.

Mr. Chief Justice, and may it please the Court--

Pennsylvania's policy of prohibiting its most dangerous and recalcitrant prisoners from possessing newspapers, magazines, and photos as an incentive to improve their behavior does not violate their First Amendment rights.

Chief Justice Roberts: Where do you draw the line?

I take it somewhere... you couldn't deprive them of food, if that would get them to... to conform.

Justice Souter was asking about marriage.

I mean, how do we tell when... when you can deprive someone of something they... to modify their behavior and when it goes too far?

Mr. Marcus: Yes, Mr. Chief Justice.

This... I mean, this Court has already said that with respect to Eighth Amendment rights, the Turner analysis does not apply.

So with respect to basic... basic necessities, health care, food, and water, the... the Turner analysis doesn't apply, and so you could not sort of create an incentive program to take away Eighth Amendment rights.

And under... with respect to the rights that can be... that can be limited in order to serve legitimate penological interests, we think that... that the Turner approach would give a lot of deference to and a lot of flexibility to States to... to use incentive programs--

Justice Souter: But don't we... don't we have the same problem if we're... if we're dealing with First Amendment interests that we do when we're dealing with Eighth Amendment interests?

In other words, if... if we don't say, well, they get outside of Turner analysis because they require... by virtue of being enumerated rights, they require an analysis specific to them, is the abridgement of the right carried so far that it is unreasonable?

If we don't say that, then I don't see, as your friends on the other side have argued, I don't see where the logical stopping point is if we accept the... the behavior modification theory.

Mr. Marcus: --Well, I... I think... I mean, I think there is... I don't think it's a boundless theory.

I think you have to keep in mind that this program in Pennsylvania was... it's implemented as a last resort.

I mean, the prisoners that this regulation applies to are a narrow class of 40 prisoners who have been the most violent and most disruptive--

Justice Souter: Oh, oh, I... I realize that.

I mean, they're... they're making an in extremis kind of argument.

I understand that.

But if... if we accept an in extremis kind of argument on the theory of behavior modification, then I don't see why that argument does not, for example, cover the marriage case, and maybe... maybe it should.

I don't know why that argument would not allow for a total deprivation of all communication outside of, let's say, access to counsel.

And... and so it seems to me that whether we admit it or not, what's going on here, whether we call it Turner analysis or not, is we're making some kind of a judgment as to whether they're carrying the deprivation for behavior modification purposes in these extreme cases too far.

Mr. Marcus: --But--

Justice Souter: And if that's what... I'll... I'll be quiet in a second.

[Laughter]

If that's... if that's what we're doing, aren't we just as much outside the Turner analysis when we're talking about the First Amendment or associational rights under the First Amendment as we are when we're talking about the Eighth Amendment?

And shouldn't we say so?

Mr. Marcus: --I... I don't think so, Justice Souter.

I think there's still room under the Turner analysis to apply the exaggerated response test, and that's one of the things the Turner analysis does when you go through the four factors, as... as the Government did and the State has done in its brief, that there could be a situation where you would find that there's been an exaggerated response and that their withdrawal of the First Amendment right is actually an exaggerated response.

For example, maybe if... if there was just one minor disciplinary violation for, let's say, using obscene language, and then every... all First Amendment rights to communication were... were pulled out at that point for the remainder of the time--

Justice Souter: So... so but at some point, there's sort of a reasonableness limit then you're saying.

Mr. Marcus: --There is a reasonableness limit, and we've... we've--

Justice Scalia: Do... do you concede that just because a right is enumerated, it means it cannot be entirely taken away in prison?

Mr. Marcus: --No.

This Court--

Justice Scalia: I mean, like, you know, try the right to bear arms.

[Laughter]

Mr. Marcus: --That's right.

No.

I mean... no.

This Court has drawn... has drawn that distinction.

The distinction this Court has drawn is that... that most rights can be limited or even totally prohibited within prison, consistent with... with legitimate penological objectives, deterrence and rehabilitation.

The exceptions this Court has identified are for the Eighth Amendment and also for access... you know, access to the courts, that you could... that... because that also implicates the integrity of the criminal justice system.

Justice Ginsburg: Apart from those two, access to the courts and cruel and unusual punishment, then anything goes for this set of incorrigible prisoners?

They can take away... the First Amendment, in other words, is out the window.

They have no First Amendment rights that the State needs to respect.

Is that--

Mr. Marcus: Well, I think it would be... Justice Ginsburg, I think it would be a rare case where an incentive program like this could be struck down as a... you know, as a facial matter, as... as this challenge is.

I think it would be a rare case.

But I think you do... you do still go through all the... all four factors, and you would look at the fourth factor and see that, in fact, Pennsylvania does give prisoners the opportunity to regain those privileges if they behave well.

As the State pointed out, at the time the record was made in this case--

Justice Ginsburg: --But... but for this... for this group, while they're in that situation, essentially there's no First Amendment rights.

I think that's what your... your argument.

They can regain them, but that's the purpose of the behavioral modification program.

But the... the only thing that these prisoners get is the Eighth Amendment.

Mr. Marcus: --Well, we do think that... that the State can go... can go quite far with respect to restricting First Amendment rights, but this Court still... I mean, under prong two, this Court does look to alternative means to exercise the right.

And here, 99.9 percent of the prisoners in Pennsylvania, do get to possess newspapers, magazines, and photos.

The LTSU prisoners who graduate get to, and on top of that, while they're in the LTSU, the prisoners get to possess two books.

They--

Justice Stevens: Mr. Marcus, I was kind of interested in your calling this an incentive program.

Is there any... there are no intermediate stages.

It's an all or nothing incentive, isn't it?

Mr. Marcus: --Oh, not at all.

There are many... there are many intermediate stages.

There are restricted housing units and then there are SMU's and... and special management units, and... and--

Justice Stevens: No, I mean, with respect to the prisoners in this population.

Mr. Marcus: --There are incentive programs within each of those restricted units, and... and the prisoners that end up at the LTSU... the vast majority of them have already been through the SMU program and haven't made it and have failed that program.

So they've tried numerous other incentives before getting to this point.

Justice Stevens: Well, I didn't understand that the... the prisoners in this particular part of the prison had any intermediate incentive.

They either get out after a year or 2 or they don't.

Isn't that right?

I mean, they either get to a different classification.

Mr. Marcus: Right, and that depends on their behavior.

Justice Stevens: There's no scoring.

You've got 25 points now, so you're pretty close to your goal or anything like... it's not--

Mr. Marcus: Well--

Justice Stevens: --not like most incentive programs I've heard about.

Mr. Marcus: --Justice Stevens, they get a review after 90 days and then every 30 days thereafter.

There's nothing in the record to suggest those reviews are an empty gesture.

Justice Stevens: And... and does the review correlate it in any way with these particular deprivations?

I mean, what is the review... how does the review correlate with their inability to get reading materials?

Mr. Marcus: Well, the... the review correlates with their behavior, and to the extent they show a positive adjustment in their behavior, their... they graduate from level 2 to level 1 where they do have access to newspapers and magazines and then they can graduate all the way out.

And my understanding is a number of prisoners have done that within 1 year.

And with respect to someone who never gets out, that person might have an as applied challenge if that person could show that his behavior--

Justice Stevens: Is there any evidence at all that the amount of reading that they do has any correlation to their opportunity for getting better assignments?

Mr. Marcus: --While they're in the LTSU?

Justice Stevens: Yes.

That there's any correlation whatsoever between how much these people... these prisoners read and when they get into the next level of the prison.

Mr. Marcus: No, I don't think any such study is done.

But again, the court of appeals was wrong to require the State to offer evidence.

I mean, this Court has emphasized in Turner that the connection between the regulation and the goals need merely be logical.

Justice Stevens: So the legal issues would be precisely the same if the State denied totally any reading material to the prisoners.

We have the same issue.

Mr. Marcus: Well, it would be a more difficult case to defend under the second--

Justice Stevens: Why would it be more difficult?

Mr. Marcus: --under the second prong of Turner because under the second prong of Turner, you look to alternative means.

We might still come in here and defend that program, but here they do provide alternative means to read and to see loved ones through visitation and through correspondence and to have two... they have two books in their cell so they can continue reading.

So there... that... that does factor into the balance, and we think it... it's very clear that Pennsylvania's program is reasonable, and it would just be a more difficult case if they totally prohibited--

Justice Stevens: I understood your argument to, in effect, contend that the behavior modification rationale will justify the program no matter what the balancing process is.

Mr. Marcus: --No, that's... that's not our position.

We think there is a balancing under Turner, and you do... you do look at all four factors of the test.

And we think that Pennsylvania's just clearly satisfies that test.

And if you applied this across the board to the general population, it wouldn't.

It wouldn't pass the test.

But... but these are the... these are the worst of the worst and they've gone through many other... Pennsylvania has gone through countless other measures to try to improve these inmates' behavior, and so I think it's wrong to conclude, as the court of appeals did, that this was an exaggerated response.

Thank you.

Argument of Jere Krakoff

Chief Justice Roberts: Thank you, Mr. Marcus.

Mr. Krakoff: Mr. Chief Justice--

Chief Justice Roberts: Mr. Krakoff.

Mr. Krakoff: --may it please the Court--

I'd like an opportunity to respond to several of the points that were made by my colleague.

First, I find it interesting that and also of some relevance in this case that the decision to deny access to secular newspapers and magazines that this policy of withdrawing access to these materials is not a policy of the Federal Bureau of Prisons with respect to its most maximum security inmates, those who are housed in the control units.

I also think it's important to note that while there's a 90-day minimum period that these inmates have to remain in the Long Term Segregation Unit on level 2 status where this... when this policy applies, the policy also says that as long as an inmate is serving a disciplinary sentence within the prison, that he's not eligible for promotion to level 1.

And the testimony from the department's designated witness, Deputy... Superintendent Dickson, acknowledged that most of the inmates in the unit are, indeed, serving disciplinary time.

Justice Kennedy: Well... well, it seems to me that that's an as applied challenge.

If... if a particular inmate... the terms of... the conditions of confinement are particularly harsh and he... he or she has an unrealistic opportunity to get to a less restrictive confinement, then... then he can bring a suit.

Mr. Krakoff: I was... I was simply trying to point out... the... the Court had asked how long are inmates generally in the Long Term Segregation Unit, and... and the point that I made is that it's not unusual for inmates to remain on level 2 for periods in excess of 1 year.

Chief Justice Roberts: Mr. Krakoff, what... I take it you wouldn't have any objection to terminating of television rights, for example.

If prisoners have the right to watch television, they misbehave, the penalty is no television.

Is that all right?

Mr. Krakoff: That is correct.

Our position is that the choice of what vehicle the institution wants to permit through which inmates can gain access to what is occurring outside of the prison walls in political and other public matters, that's the institution's choice.

And the reason these inmates sued for access to newspapers and magazines is because the representative plaintiff, Mr. Banks, was allowed to receive his Christian Science Monitor magazine because it was religious in nature, but was denied the opportunity to receive his Christian Science Monitor newspaper under... under this policy.

There's another very important--

Chief Justice Roberts: What other alternatives would you have the prison administrators rely on?

You have an incorrigible prisoner who's misbehaving.

He won't behave.

They go through every... he gets up to level... level 2.

What... what should they have done instead?

Mr. Krakoff: --Okay.

Bottom line under my reading of Turner and Safley is that there has to be first that logical connection under the first prong.

That's not a... an imperative--

Chief Justice Roberts: I'm sorry.

What should they have done instead?

Let's say he gets out of the prison 1 hour every other day.

Should they have taken that hour out?

I mean, not out of the prison.

Out of his cell.

Should they have taken that hour away, or what... what other options do they have?

Mr. Krakoff: --Well, what their... their argument is essentially that this policy was basically a decision by default, not a decision that was reasoned by prison administrators.

They... they essentially said virtually everything has been taken away from these prisoners.

Chief Justice Roberts: Right, and I want you to tell me--

Mr. Krakoff: And we have nothing left to take away.

Chief Justice Roberts: --I would like you to tell me what else they should have done.

Why is that wrong?

Mr. Krakoff: It's wrong because there is no logical connection to taking something away under the facts of this case when taking away an entire litany of... or a very broad spectrum of things which... in the special management units, where these inmates came from, they had had magazines taken away on their first phase in the special management units.

They had been offered the incentive of earning access to magazines, of earning access to weekly visits with family members, of earning access to telephone calls, in fact, of earning access for release from their cells the 23 hours a day to engage in... in small group activities with other inmates.

And most spectacular was they had the opportunity, while in the special management unit, to earn a 3 to 6-month probationary period in a general population cell block.

Chief Justice Roberts: And none of that worked.

Right?

Mr. Krakoff: Absolutely.

And my point is if... if that didn't work, including magazines, which is the equivalent of... essentially of... of newspapers, they had no logical or--

Chief Justice Roberts: So your answer to my question is there's nothing else they could have done, but they shouldn't have done this because this wasn't going to work either.

Mr. Krakoff: --My answer is that you can't deprive an inmate of his constitutional right of free speech--

Justice Souter: No, but consistent--

Mr. Krakoff: --unless there's reason to do so.

Justice Souter: --Consistently with your answer, it seems to me, you have to say they should give the TV back, they should give the magazines back because none of those worked either.

And those are First Amendment deprivations to some degree.

Mr. Krakoff: What they've done here is they've removed all of the vehicles to--

Justice Souter: No.

But I mean, what's... what's your answer to my question?

It seems to me that your point to the Chief Justice was the courts have to review the efficacy of these moves.

Mr. Krakoff: --That's right.

Justice Souter: And if... if there is no efficacy and there is an infringement of what, at least for people on the outside, would be a protected right, then they have no justification for taking those rights away.

And if that's going to be the analysis, then on... on the argument you just gave, they've got to give the TV rights back, they've got to give the magazine rights back, and so on.

Isn't that correct?

Mr. Krakoff: May I answer it this way?

I know I'm supposed to say yes or no and then--

[Laughter]

--to give an explanation.

Justice Souter: I sure would like that, but--

[Laughter]

Mr. Krakoff: I'll say no.

My instinct is no, and I would also say the--

Justice Souter: But then why?

Why?

Mr. Krakoff: --I've been reading Turner v. Safley and then more recently Overton because this is basic in my practice to represent prisoners.

And my reading of Overton is that you can't have a policy.

The prison officials cannot have a policy unless there is reason to believe that the policy is going to advance a legitimate penological interest.

Justice Souter: Right.

And in... in your argument, in your answer to the Chief Justice, you were pointing out a situation in which taking away the TV didn't work, taking away the magazines didn't work.

Mr. Krakoff: I think--

Justice Souter: Why then do they not, on your theory, have to give TV and magazines back?

Mr. Krakoff: --I... I think that an institution can always make judgments about how extensive they want to allow inmates to--

Justice Souter: All right.

Then where does your efficacy criterion go?

You're saying they may make judgments, and apparently they may... may make judgments and maintain them even if those judgments do not, in fact, advance their interests.

Here, you're saying they... it's not going to advance their interests, so they can't do it.

In these cases, you're saying they don't advance their interests, but they can as a matter of judgment.

And I don't know how to draw that line.

Mr. Krakoff: --No.

I'm... I'm not saying they can't as a matter of judgment.

I... I'm suggesting that they can select among options... we're specifically speaking about access to information outside the prison walls.

And what I'm suggesting is that they can't eliminate every suitable way by which inmates can gain.

And I think the word is of sufficient utility... was the... was the language that was used in Overton.

And I'm saying the bottom line is they can't eliminate all means by which inmates can access information.

Justice Kennedy: But... but... the whole rationale of your case... if I were you writing your brief, I would have this problem.

This really matters to the inmates, but that's exactly the State's point.

That's the reason it's taken away.

It really means something.

And I... I just... I just don't know what to do with that conundrum.

Mr. Krakoff: I've had other--

Justice Kennedy: And... and it seems to me it's the heart of your case and that it surfaces here in the answers you've attempted to give.

Mr. Krakoff: --Obviously, this... this did matter enough to the prisoners to commence a lawsuit.

I don't think that the standard by which a court... this Court or any other Federal court should determine whether or not there's a logical connection or a reasonable connection is whether or not inmates choose to file suit.

That's establishing a litmus test--

Justice Kennedy: Well, but the whole basis of the suit is that it matters to the prisoner, and that's exactly why it's been taken away because there's nothing else left that we can do with these prisoners.

Mr. Krakoff: --But I see a distinction.

There are lots of things that matters to prisoners and lots of things that matter to us in the free world that aren't going to change our behavior.

There... there are some things that are important to us--

Justice Scalia: What about changing other people's behavior?

Your... your assertion that it does no good is based upon the fact that it has not altered the behavior of these people who are in the unit.

But what about other people who don't want to get thrown in the unit?

I mean, don't you have to look at the deterrent effect?

And... and is it easy for you to say that the... that... that the in terrorem effect of being deprived of... of literature, television, or whatever has not induced other people to shape up?

Mr. Krakoff: --They made the argument that this is part of an overarching deterrent program.

Justice Scalia: Well, I think it is.

Mr. Krakoff: Well, but if you look... Justice Scalia, if... if one looks at the record carefully, you see that this policy which, by the way, applies to 40 inmates in one particular institution in a... in a prison system that has 23 adult institutions for men, that this policy is essentially a classified policy.

The policy itself says this is not to be a matter of public dissemination and is only to be given to personnel on an as needed basis.

The inmates who receive the inmate manual in the Long Term Segregation Unit have to sign for it.

They receive a number, and every manual has to be returned.

Apart from the prison grapevine, which all of us know there is a prison grapevine, I submit that it's... it's not great enough to tell inmates throughout the system that, in fact, if you get into the Long Term Segregation Unit, this very small unit, that you may lose newspapers and magazines.

I don't think it is known, and I think in order to deter, a policy has to be publicized, as it was in Overton.

Michigan made it very clear to the prisoners, that if they got involved into drug violations, that their visits for 2 years would be suspended.

And if I may--

Justice Ginsburg: So let's say if... if the flaw is it doesn't deter other people because they don't know about it, then if they... if they broadcast it all over so everyone knows about it, then it's okay?

Mr. Krakoff: --Well, I say that in order to make a deterrence argument, at least an argument that makes sense to me, that in order to deter somebody from doing something, they have to know about that policy and they have to know what the consequences are.

If there were a secret policy in the State of Indiana that they, you know, will execute persons committing first degree murder, any argument that that's going to... that the death penalty is going to act as a deterrent I think--

Justice Breyer: But is there other... are there other bases?

Because so far your argument is they're so bad that you might as well give them whatever they want because it won't matter.

[Laughter]

Now, I'm parodying it, but you understand why I don't think it's your strongest for the reasons said.

But are there others which might be a little... you had other arguments--

Mr. Krakoff: --Yes, and... and I... I do want to say... and I don't know how to say it more... more clearly... I understand it, but I'm obviously not framing this in a way that is getting my point across.

I'm not suggesting that because people... these are the most incorrigible, recalcitrant inmates in the entire 38,000 inmate prison system, that that means that they can get anything that they want.

I'm suggesting that when you take away a very significant right... and that is the ability to learn what is happening beyond the prison walls... there has to be a reasonable basis for doing so.

Now, if I've been reading Turner and O'Lone and Overton incorrectly, then I'm doing a disservice to my clients.

Justice Breyer: --No, no.

It has nothing to do with the law.

I understand your argument.

Your argument that you have made is, at the very least, you can't say that this deterrent effect is that big a deal.

I mean, now, there were other reasons justifying it.

They said, for example, if one--

Mr. Krakoff: Security.

Justice Breyer: --Yes, and they made a big case in this.

It's on 188 in the appendix.

Mr. Krakoff: Exactly.

Justice Breyer: And they made a major point.

They said that with the newspapers, they set fires, they throw feces.

They use them as a spear, and then when asked, why couldn't you do the same with library books, or couldn't you do the same with paperbacks, they said, yes, it's possible, but it's less likely because of the size of the document.

And we don't have to forbid everything.

We just forbid the things that we think are particularly likely.

Now, what about that?

Mr. Krakoff: Well, my... my... I suppose my most straightforward answer would be that the Jewish Forward can burn as quickly as the New York Times, that the Christian Science Monitor--

Chief Justice Roberts: Well, then now you're giving... now you're making their situation worse because they tried to make your client's situation better.

I mean, yes, they could... maybe they could prohibit religious journals as well, but they... for various reasons, they decided not to do that.

Maybe they could have eliminated legal materials as well, but again, they decided not to do it.

They take a more circumscribed approach.

So I'm not sure it's a very effective response to say, well, they let religious materials in and that can be used as well.

Mr. Krakoff: --I think it's a realistic... with all due respect, I think it's a realistic response.

I'm not faulting them.

I applaud them for doing what was a reasonable thing.

Justice Ginsburg: I thought you were using that to say that the security concern doesn't hold up because of the papers that they're allowed to have in their cells can be used similarly for fires, similarly to do other bad things.

Mr. Krakoff: Right.

Justice Ginsburg: So I thought that's why you were using that, just to say that the... the security concern is dubious because the materials that they are allowed to have in their cells can... could achieve exactly the same end.

Mr. Krakoff: Well, there are other things, Justice Ginsburg, that are routinely permitted in... in the cells and, in fact, that probably have to be in the cells that can be used.

They're given... they're giving... given writing paper, and the testimony of Deputy Dickson was that they... they fling feces with writing paper and they fling feces quite a ways--

Justice Scalia: Do you know what kind of a fire you can make with the Sunday New York Times?

[Laughter]

Are you going to... are you going to compare that to writing paper and... and to... to the Jewish Advocate or whatever it is?

I mean--

Mr. Krakoff: --Well--

Justice Scalia: --it seems to me a perfectly reasonable line.

Mr. Krakoff: --The... but it's not only... it's not only writing paper.

It's... and they have to have blankets.

The blankets are flammable.

Their clothing is flammable.

The bed sheets are flammable.

Chief Justice Roberts: So if visitors... if there's a security issue with visitors to the prisoner, you're saying you can't prohibit visitors because if you allow the lawyers to come in, because they're visitors too?

Mr. Krakoff: No, I think that would be a specious argument.

Chief Justice Roberts: Well, but it wouldn't undermine the security rationale just because you have some exceptions where there are other countervailing interests that might outweigh the security concern.

Mr. Krakoff: But if, in fact, their suggestion is that... if their suggestion is that the inmates are less likely to burn a Bible, for example, and assuming they're... they're Christians rather than somebody else who has the Bible, they're less likely to burn a... the Bible or some book of scriptures, that makes sense.

But when you suggest that they're less likely to burn a legal newspaper or a religious newspaper, that doesn't make sense.

And I'm suggesting this isn't a question of equities that if they're nice enough to permit these prisoners to read religious based or legal based newspapers and magazines, that forecloses the inmates from saying... does that make a lot of sense?

I don't... I don't think so.

Justice Stevens: May I ask you--

Justice Breyer: All right.

What is it that I should read then in respect to what's actually bothering me?

In Turner v. Safley--

Mr. Krakoff: Right.

Justice Breyer: --the Court says we resolve, when a prison regulation impinges on an inmate's constitutional rights, which is does here, the regulation is valid if it is reasonably related to legitimate penological interests.

That standard is necessary if prison administrators and not the courts are to make the difficult judgments concerning institutional operations.

And that's where I think it's difficult to balance this case.

If we were to decide for you, are we going too far in interfering on what the prison administrators should be doing, or have they gone too far?

Now, if I'm supposed to look at this record and try and make up my mind, which I think is about that question, what do you want me to look at?

Mr. Krakoff: I want you to read the entire brief--

Justice Breyer: Well, I'll read the briefs.

I have no problem with the briefs--

Mr. Krakoff: --No.

I... I suggest that our... my brief might be more coherent than I today.

[Laughter]

And I think we make out a strong case... that we make out a strong case for why the policy in question is not reasonably related to a legitimate penological interest.

I would suggest, looking at another aspect, Justice Breyer, that there was some comment about the adequacies of the... the alternatives, the other avenues, and that's an important consideration under the second prong of... of Turner.

And I think it's... it's strange to suggest that the prison chaplain who visits level 2 inmates for religious purposes and that attorneys, assuming that an inmate has an attorney, generally are going to come discuss either a section 1983 action or a criminal case, and that relatives once a month for an hour are going to discuss current events, and that they're going to act as kind of a quasi wire service by--

Justice Stevens: --May I ask you this question?

Mr. Krakoff: --Yes.

Justice Stevens: You said that the prison grapevine really doesn't tell the prisoners about this particular lack of access to public materials.

Does the prison grapevine let them know that they're going to be in the cell for 23 hours a day and only be out 1 hour a day?

Mr. Krakoff: They're actually, Your Honor--

Justice Stevens: If that is generally known, it would seem to me that that itself would be sufficient incentive to try and avoid this program, whether or not you're going to be able to read the Christian Science Monitor or the New York Times.

It seems to me that the... the... what we're fighting about is trivial compared to the very obvious deterrent value of 23 hours in the same cell 7 days a week, 30 days a month, 365 days a year.

I don't think I'd care about this other stuff.

Mr. Krakoff: --I agree with that point, obviously.

But every inmate in disciplinary confinement stays in what is referred to as... as the restricted housing unit, and they all know--

Justice Scalia: Of course, I could say the same thing about going to jail, I mean, at all.

Mr. Krakoff: --Well--

Justice Scalia: You know, I could say whether I'm there 23 hours or all or not--

Mr. Krakoff: --Yes.

Justice Scalia: --it's enough of an incentive that I... that I don't want to go to jail.

There's... there's incentives and there's incentives.

Mr. Krakoff: Yes, but I suggest that... that living in a cage and exercising in a case in... in seclusion, that's... that's a prison within a prison.

And those things deter normal people, people who--

Chief Justice Roberts: And once you're in that situation already, as these prisoners are, and they're still not conforming their behavior to the prison rules, you have a limited number of options for trying to get them to do that, and your response to my first line of questioning was that there's nothing else you can think of that they could do.

Mr. Krakoff: --At some point, the options expire.

They have taken so much away from these prisoners.

Is that going to then justify?

Say, well, we've taken everything else and this is what we have left.

Is that the kind of situation where deference is supposed to be high because they're making... I don't see that as a real choice.

They're doing what they have available.

Chief Justice Roberts: So your response is they should just grin and bear it.

They--

Mr. Krakoff: My... my response is that they have taken so much away from these inmates who are the most incorrigible, recalcitrant inmates in the system.

And they say in their... in their policy that these inmates are either unwilling or incapable of charging their... changing their behavior.

I submit that some of these men probably are, and I think it's also interesting that they--

Justice Souter: I... may I interrupt you--

Mr. Krakoff: --Yes.

Justice Souter: --with this question?

Aren't you really saying that when the deprivations get beyond some point, some serious point, the issue is not properly analyzed under Turner and Safley, can they do one thing more?

The issue really becomes one of cruel and unusual punishment.

Is the totality that they have taken away so great that it is cruel to maintain these people under these circumstances?

Is that the argument you're really making?

Mr. Krakoff: It isn't.

That's... that's an option if one reaches the point where it truly is cruel and unusual.

We didn't file an Eighth Amendment challenge here based upon the facts that I knew.

Justice Souter: Oh, I know that wasn't... that wasn't the claim that you made, but isn't that the argument that you're making?

Mr. Krakoff: No.

And... and I think that... I know in Overton there was a dissent by Justices Thomas and Scalia that essentially said that that's what you have.

You... you have an Eighth Amendment argument if a policy rises to that level, but if a policy doesn't constitute cruel and unusual punishment, then you're out of luck.

And that kind of swallows up the First Amendment in my view and the other... and other amendments as well.

Now, what I'm suggesting is not that they've reached the point of cruel and unusual punishment.

I'm suggesting that there comes a time when you take away so many things from these prisoners, that you basically... yes, you may have to give up and you may have to keep them in segregation.

And they do keep men in segregation... other forms... for 10, 15... I represented a man who had been in segregation for 30 years.

So it's not as though that's unusual.

They do give up on people in... in the Pennsylvania prison system all of the time.

That would not be unusual.

I suggest that if we reach the point where the law says that if you run out of options, you can do anything that you want as long as it doesn't rise to cruel and unusual punishment, that we may as well forget about--

Justice Kennedy: But... but the State's position is that it wants to avoid that ultimate deterrent.

It... it wants to take away privileges for a while to see if he can conform.

You're depriving the State of the... of the option to avoid the most extreme circumstances of forgetting about him altogether forever.

Mr. Krakoff: --Well, I... I--

Justice Kennedy: And it seems to me that... that your... your argument is... is at cross ends with its own purpose.

Mr. Krakoff: --Well, it... unless there are other questions, I think I've reached--

Justice Stevens: Just let me just ask one... one thing I am curious about.

The argument... it seems to me that there's kind of a flow of these.

Some of them get out of this system and some stay a long time.

What does the record tell us about how often, if they conform to the regular rules without any violation for 40 days or a year, do they... do they get out of this... this situation?

Mr. Krakoff: --The... the rules themselves say kind of in a preamble that... that confinement is for a minimum of 90 days, but that often it's... it's longer than that--

Justice Stevens: I'm not posing what the rules say.

Does the record tell us whether... you know, whether the system is just something we're talking about or whether it really has an effect on people's moving from this classification to another classification.

Mr. Krakoff: --Well, there were... there were 10 inmates in the first 2 and half years of the operation, according to Deputy Dickson, who had moved out of... out of the unit.

The record is silent as to whether any of these inmates ordered subscriptions for newspapers or magazines.

So we don't know whether that even arguably was a factor.

I think that the... that the State has acknowledged that there might be many reasons why inmates might leave the Long Term Segregation Unit that could be unrelated to the... the, quote, incentive of newspapers and magazines.

So we don't know whether any of them have left because they've simply gotten tired of being in segregation for 2 and a half additional years, after flunking out of the special management units, or whether there were other... other factors.

Two... what... what is concerning is that two inmates left straight from the unit to the streets because their sentences expired.

And so they were essentially people who... you know, they... they could read about the... an ancient war in the Bible, but they couldn't read about Iraq.

So they were going to have... I don't know if that's a healthy situation.

That's not from a constitutional perspective,--

Justice Ginsburg: What... this--

Mr. Krakoff: --but from a practical perspective.

Justice Ginsburg: --What other than the periodical, newspaper access differentiates this custody from the next higher--

Mr. Krakoff: Special management unit?

Justice Ginsburg: --Yes.

Mr. Krakoff: Well, all... the various incentives... there's no possibility of earning access to radios or televisions in the Long Term Segregation Unit.

The most there can be would be twice a... twice a month visits if they're promoted to level 1, as opposed to four time a month visits if they succeed in the special management unit.

There's no opportunity for out of cell group activities while in the Long Term Segregation Unit.

They lose that as an... that's not an incentive.

That is an incentive in the special management unit.

There's no probationary period where they can be released to a general population cell block which, as the Court knows, a general population cell block is... offers many opportunities that segregated cell blocks don't.

And that's not available.

Chief Justice Roberts: --Thank you, counsel.

Mr. Krakoff: Thank you.

Rebuttal of Louis J. Rovelli

Chief Justice Roberts: Mr. Rovelli, you have 2 minutes remaining.

Mr. Rovelli: Very briefly, if... if I might turn myself to just the very first point that Mr. Krakoff made about inmates being compelled to stay in the Long Term Segregation Unit until they complete their disciplinary custody.

I would draw your attention to pages 40 and 41 of the joint appendix, which show that... that the unit manager has the authority to set aside disciplinary custody, and an inmate who graduates the Long Term Segregation Unit gets all of their disciplinary custody set aside completely.

So in a sense, the... the disciplinary custody aspect is another incentive.

Justice Scalia: Mr. Rovelli, do the other prisoners know about this?

I'd like you to respond to the... to the assertion that nobody knows about this anyway, so it doesn't deter anybody.

Mr. Rovelli: The principal means by which other prisoners would know about it is the very effective prison grapevine, although it does appear in the... in a chart that's appended to the handbook for the special management unit, and 75 percent of the inmates who wind up at level 2 come from the special management unit.

The other thing I would point out about the effectiveness of this program, as opposed to the give up on them proposition, is that even at... even in 2002, when the program was only 2 years old, 25 percent of the inmates who had been sent there had graduated.

The statistics on that are at pages 7 and 8 of our reply brief.

Finally, if... if the Court were to affirm the court of appeals, then this case has to be sent back to trial and the burden is put on the prison system to demonstrate empirically that this regulation can achieve its goals.

In a sense, I've just demonstrated that it has achieved its goals, but much more importantly, the effect of that would be to totally undermine, if not void, Turner and Overton.

Chief Justice Roberts: Thank you, counsel.

The case is submitted.