7th Circuit: Inmates don’t have right to advertise for pen pals

Friday, July 22, 2011

Indiana prisoners don’t have a First Amendment right to advertise for pen pals, a federal appeals court ruled earlier this month. The 7th U.S. Circuit Court of Appeals says the prohibition serves the state prison system’s legitimate interest in curbing fraud caused by inmates.

In November 2005, an investigator with the Indiana Department of Corrections examined pen-pal correspondence to see if there was any connection with inmate fraud. The investigator, Todd Tappy, reviewed many pen-pal websites and discovered that 350 IDOC inmates had advertised for pen pals. Tappy determined that many inmates misrepresented themselves on the sites, and he was concerned that they were using them to defraud people.

Tappy tried to discover the source of the funds deposited into inmate trust accounts to see how much came from pen-pal sites. He was not able to uncover solid evidence of financial fraud, but did collect some anecdotal evidence.

Tappy recommended that the Department of Corrections limit the source of inmate trust account funds to family members of inmates and other authorized individuals. He also recommended that the department prohibit inmates from soliciting money and from soliciting for pen pals. The department adopted the recommendations.

In 2008, two inmates, Dana Woods and Ernest Tope, filed a class action lawsuit in federal court, arguing that the ban on pen-pal advertising and from receiving materials from pen-pal websites and publications violated the First Amendment. In 2010, a federal judge granted summary judgment to the prison officials.

The inmates appealed to the 7th Circuit, which also ruled against them in the July 19 opinion Woods v. Commissioner of the Indiana Department of Corrections. The unanimous three-judge panel applied the U.S. Supreme Court standard for prisoner constitutional claims from Turner v. Safley (1987), which asks whether a prison policy is reasonably related to legitimate penological concerns. Indiana prison officials say that the ban on inmate use of pen-pal sites furthered the interest in preventing fraud by inmates.

“A prohibition on advertising for pen-pals relates fairly directly to the goal of preventing fraud since it cuts off the inmates’ access to potential victims,” Judge William J. Bauer wrote for the 7th Circuit panel.

Another aspect of the Turner analysis is determining whether a prison policy completely bans inmate expression or whether the inmates retain some outlet for expressing themselves. The 7th Circuit panel determined that inmates “can still send and receive nearly unlimited correspondence” and “obtain pen-pals through various groups that visit the prison.”

The panel also reasoned that “the Internet is a breeding ground for mischief of the sort the IDOC Commissioner feared.”

The prisoners argued that there was a less speech-restrictive alternative to the pen-pal ban, saying prison officials could have limited the source of inmate trust accounts. The appeals court was not convinced, writing: “Certainly the restriction placed on the deposits helps prevent fraud, but it can hardly be said to eradicate it.”

The panel concluded: “Using pen-pal websites to engage in fraud is antithetical to the rehabilitative goals of confinement.”