Blog: D&D is DOA in prison ruling

Monday, February 1, 2010

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Inmates supposedly still have some First Amendment rights even in their incarcerated state. You wouldn’t know it, though, from reading the 7th U.S. Circuit Court of Appeals decision Jan. 25 in Singer v. Raemisch, in which the court upheld a complete ban on role-playing games, including Dungeons & Dragons.

Wisconsin inmate Kevin T. Singer challenged the ban on First Amendment grounds. Although he presented a good case, he still lost given the state of First Amendment jurisprudence for prisoners.

The 7th Circuit applied the U.S. Supreme Court’s prison-friendly standard of Turner v. Safley, which says prison officials need only show a reasonable basis for their decision to limit an expressive freedom. A restriction must be “reasonably related to a legitimate penological interest,” as the Turner opinion says. The language of many court opinions since that 1987 ruling shows near-total deference to prison officials.

Consider that in the 7th Circuit case, Singer played D & D with other inmates without incident for several years. Then a prison official got an anonymous tip that Singer and others were forming a “D & D gang.” The prison banned the game. Singer mounted an effective legal attack, compiling 15 affidavits from people saying that D&D was rehabilitative, not a threat, no gangs were being formed. Even the 7th Circuit referred to Singer's collection as “an impressive trove of affidavit testimony.” Prison officials countered with one affidavit from a prison official with gang expertise.

In the world of prison litigation, the word of one prison official apparently carries far greater weight than the word of 15 people, particularly when several of them are inmates.

Even under the deferential Turner v. Safley standard, Singer’s case should have survived attack. That’s because one of the elements of the Turner test is that the prison officials’ reaction to a perceived safety threat should not be an “exaggerated response.”

If ever there was an “exaggerated response,” this was it, considering Singer had played the game for years without incident and the prison already had in place policies against gang-related activity and paraphernalia.

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