Inmate presents compelling claim for high court review

Friday, August 17, 2007

Editor’s note: On Oct. 1, the Supreme Court refused to hear the case.

“Prison walls do not form a barrier separating prison inmates from the protections of the Constitution.” Twenty years ago Justice Sandra Day O’Connor wrote those words for the majority of the U.S. Supreme Court in Turner v. Safley (1987). However, the decision established a very low standard for prison officials to meet when faced with First Amendment challenges filed by inmates. Under the Safley standard, prison officials do not violate the Constitution as long as their regulations are reasonably related to legitimate penological concerns, such as safety and rehabilitation. The Safley standard is known in legal terms as a rational-basis standard — generally the lowest form of judicial review in constitutional law.

Since Safley, the U.S. Supreme Court has rejected a variety of prisoner First Amendment claims. In Shaw v. Murphy (2001), the Court rejected an inmate’s claim of a First Amendment right to assist another inmate with legal matters. In Overton v. Bazzetta (2003), the Court rejected inmates’ challenges on free-association grounds to onerous restrictions on who could see inmates during visiting hours. Most recently in Beard v. Banks (2006), the Court upheld severe limits on reading material for inmates in a long-term segregation unit. The Court reasoned that the prison officials had a rational reason to limit inmates’ reading materials as a form of behavior modification.

Such a legal landscape does not appear promising for inmates seeking relief from limits on First Amendment freedoms behind bars. Even more daunting is that it is quite rare for any litigant, much less an inmate, to have his or her case heard by the Supreme Court. Such prospects appear even more dim in the early years of the Roberts Court, which has taken even fewer cases than the Rehnquist Court so far.

However, Wisconsin inmate Joseph D. Koutnik presents a compelling First Amendment case for Supreme Court review. Koutnik attempted to send a letter to Northern Sun Merchandising, a retail catalog of T-shirts, slogans, posters and other items emblazoned with political messages. For instance, Northern Sun featured a T-shirt picturing the infamous Rodney King beating with the slogan “COPS AT WORK.”

Koutnik’s letter contained his drawings with slogans referring to corruption in the prison system. For example, one drawing featured a flag with the slogans “Department of Corruptions” and “American Gulags.” Another featured a swastika with the slogans “The Department of Corruptions” and “Keeping Kids in Kages.”

A corrections officer reviewing Koutnik’s letter saw the swastika with the words “Keeping Kids in Kages” and thought it referenced the KKK. The officer determined that Koutnik’s letter violated a prison policy prohibiting inmates from possessing any “gang literature, creed, symbols, or symbolisms.” The officer destroyed Koutnik’s letter.

Koutnik unsuccessfully sought relief through administrative channels and then filed a federal lawsuit. A federal district court ruled against Koutnik even though finding that he was not “affiliated in any way with the Ku Klux Klan.” The district court reasoned that officials have a rational reason to suppress all gang-related materials. Koutnik also lost before the 7th U.S. Circuit Court of Appeals.

With the legal assistance of high-powered Washington, D.C., law firm Jenner & Block, Koutnik appealed to the U.S. Supreme Court. His case (Koutnik v. Brown, 06-1771) presents a compelling case for review because the lower courts are in disarray over what legal standard to apply to outgoing prisoner mail.

Mail that comes into a prison is generally reviewed under the deferential Safley standard. Prison officials have a strong hand in ensuring that contraband or other harmful material does not enter prisons. However, in 1974, the U.S. Supreme Court years before applied a higher standard of review to prison policies affecting outgoing prisoner mail in Procunier v. Martinez. “In the case of direct personal correspondence between inmates and those who have a particularized interest in communicating with them, mail censorship implicates more than the right of prisoners,” the Court wrote in Martinez, meaning that outside recipients — such as Northern Sun — have an independent First Amendment interest in receiving information. The Court applied intermediate scrutiny, which requires courts to scrutinize prisoner policies more closely than under a rational-basis standard.

Some lower courts apply the Safley standard, others apply the standard from Martinez, and still others apply a modified standard somewhere in between, following a later case that partially overruled Martinez, Thornburgh v. Abbott (1989).

More important, Koutnik’s case presents a case of blatant censorship, depriving an inmate of the right to convey political speech to the outside world.

Barry Levenstam, Koutnik’s lead attorney, said: “Our right to know about conditions inside our nation’s prisons is inextricably tied to the right of prisoners to correspond candidly with the outside world. This case should be reviewed because giving prison officials editorial control over the content of prisoners’ outgoing correspondence serves no correctional purpose but is a license to censor disfavored viewpoints.”

Such censorship also deprives inmates of an outlet for expression and a chance at rehabilitating themselves. As Thurgood Marshall wrote in his concurring opinion in Martinez years ago: “The First Amendment serves not only the needs of the polity but also those of the human spirit — a spirit that demands self-expression. Such expression is an integral part of the development of ideas and a sense of identity. To suppress expression is to reject the basic human desire for recognition and affront the individual’s worth and dignity.”

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