Procunier v. Martinez Brief for Appellees

This item is featured in:

William Turner Oral History

    IN THE
SUPREME COURT OF THE UNITE

OCTOBER TERM, 1973

No. 72-1465

OST rt, U. S.
E D

OCT 12  1973

RAYMOND K. PROCUNIER, DIRH d f R0DAX- JR«CLERK
CALIFORNIA DEPARTMENT OF 

CORRECTIONS, e ta l,

v.

ROBERT MARTINEZ and 
WAYNE EARLEY, e ta l,

Appellants,

Appellees.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF CALIFORNIA

BRIEF FOR APPELLEES

WILLIAM BENNETT TURNER 
LOWELL JOHNSTON 
JULIAN FOWLES 

12 Geary Street
San Francisco, California 94108

ALICE DANIEL
University of California 
Hastings College of the Law 
198 McAllister Street 
San Francisco, California 94102

MARIO OBLEDO 
SANFORD JAY ROSEN

Mexican American Legal Defense 
and Educational Fund, Inc. 

145 Ninth Street 
San Francisco, California 94102

ANTHONY G. AMSTERDAM
Stanford Law School 
Stanford, California 94305

JACK GREENBERG 
JAMES M. NABRIT, III 
STANLEY A. BASS 

10 Columbus Circle 
New York, New York 10019

Attorneys for Appellees

Washington, D C. • C LB  P U B L IS H E R S . INC. • (2021 393 0625



(it

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED........................................................... ' 1

STATEMENT OF THE CASE ...................................................  2

A. Further Proceedings in the Court Below ................  2

B. Statement of F a c t s ......................................................  2

1. Mail Censorship..............................* .....................  2

2. Law Student and Paraprofessional
Investigators for Attorneys ................................. 7

SUMMARY OF ARGUMENT........................................................  10

ARGUMENT:

I. THE DISTRICT COURT DID NOT ERR IN 
D E C L IN IN G  TO ABSTAIN FROM 
DECIDING ONE OF THE TWO FEDERAL 
CONSTITUTIONAL QUESTIONS PRE­
SENTED, AND ABSTENTION SHOULD 
NOT BE ORDERED NOW ................................................  14

A. The District Court Was Not Required
Initially To Abstain ...................................................  14

1. Abstention is not required simply
because regulations are challenged and 
invalidated, in part, on the ground of 
vagueness ..............................................................  15

2. Penal Code §2600(4) is not fairly 
subject to a construction that would 
avoid or modify the constitutional
question .................................................................  18

3. There is no clearly available com­
parable state remedy ...........................................  21

B. Abstention Should Not Be Ordered Now .............. 22



( i i )

II. THE DISTRICT COURT PROPERLY IN­
VALIDATED APPELLANTS’ FORMER 
MAIL CENSORSHIP REGULATIONS, AND 
THE NEW REGULATIONS APPROVED BY 
THE COURT BELOW FULLY PROTECT 
EVERY LEGITIMATE INTEREST OF AP­
PELLANTS ......................................................................... 23

III. THE DISTRICT COURT PROPERLY IN­
VALIDATED APPELLANTS’ FORMER AB­
SOLUTE PROHIBITION AGAINST USE BY 
ATTORNEYS OF LAW STUDENT OR 
PARALEGAL INVESTIGATORS TO IN­
TERVIEW PRISONERS ON THEIR BE­
HALF, AND THE NEW REGULATION 
APPROVED BY THE COURT BELOW 
FULLY PROTECTS EVERY LEGITIMATE
INTEREST OF APPELLANTS ...................................... 44

CONCLUSION .................................................................................  57

TABLE OF AUTHORITIES

Cases:

Adams v. Carlson, ___ F.2d___ , 13 Cr. L. Rptr.
2532 (7th Cir. Aug. 23, 1973) ................................................  47

Adams v. Carlson, 352 F.Supp 882 (E.D. 111. 1973) . . 25, 30,41

Argersinger v. Hamlin, 407 U.S. 25 (1972) ................................. 52

Arif v. McGrath, No. 71-V-1388 (E.D. N.Y. Dec. 9,
1 9 7 1 )  .............................................................................................. 55

Bachellar v. Maryland, 397 U.S. 564(1970) ..............................  33

Baggett v. Bullitt, 377 U.S. 360 (1 9 6 4 ) ................................... passim

Barnett v. Rodgers, 410 F.2d 995 (D.C. Cir. 1 9 6 9 ) .............. 26, 40

Blount v. Rizzi, 400 U.S. 4 1 0 ( 1 9 7 1 ) ...............................  2 5 ,2 8 ,3 8

Boddie v. Connecticut, 401 U.S. 371 ( 1 9 7 1 ) ........................  47, 48

Brandenburg v. Ohio, 395 U.S. 444 ( 1 9 6 9 ) ....................  2 8 ,3 2 ,3 9

Brenneman v. Madigan, 343 F.Supp. 128 (N.D. Cal.
1 9 7 2 )  ...........................................................................................  32



Broadrick v. Oklahoma, ___ U .S .____ , 41 U.S.L.W.
5111 (1973) ................................................................. 17 ,2 8 ,3 5

Brown v. Chote, 411 U.S. 452 (1973) ........................................  14

Brown v. Peyton, 437 F.2d 1228 (4th Cir. 1 9 7 1 ) ...................... 41

Burnham v. Oswald, 342 F.Supp. 880 (W.D. N.Y.
1 9 7 1 ) ............................................................................................ 38

Carothers v. Follette, 314 F.Supp. 1014 (S.D. N.Y.
1 9 7 0 )  ................................................................ 2 0 ,2 6 ,3 0 ,3 2 ,4 0

Gutchette v. Procunier, 328 F.Supp. 767 (N.D. Cal.
1 9 7 1 )  ................................................................................  5 ,2 0 ,2 5

Coleman v. Peyton, 362 F.2d 905 (4th Cir.) cert.
denied, 385 U.S. 905(1966)   50

Connally v. General Construction Co., 269 U.S. 385
(1926) .........................................................................................  37

Cooper v. Pate, 378 U.S. 546 ( 1 9 6 4 ) ...................................... 21 ,26

Cox v. Louisiana, 379 U.S. 536 (1 9 6 5 ) ......................................... 35

Cross v. Powers, 328 F.Supp. 899 (W.D. Wis. 1971) ...........  47, 55

Cruz v. Beto, 405 U.S. 319 (1 9 7 2 ) ................................................. 26

Damico v. California, 389 U.S. 416 ( 1 9 6 7 ) ................................. 21

Dombrowski v. Pfister, 380 U.S. 479 ( 1 9 6 5 ) ..............................  15

Douglas v. California, 372 U.S. 353 ( 1 9 6 3 ) ................................. 48

Fortune Society v. McGinnis, 319 F.Supp. 901 (S.D.
N.Y. 1970) ............................................................................  26 ,3 0

Freedman v. Maryland, 380 U.S. 51 (1 9 6 5 ) ................................. 38

Gates v. Collier, 349 F.Supp. 881 (N.D. Miss. 1 9 7 2 ) ................  43

Gilmore v. Lynch, 319 F.Supp. 105 (N.D. Cal. 1970), 
affd  sub nom. Younger v. Gilmore, 404 U.S. 15
(1971) ....................................................................... 2 5 ,4 8 ,4 9 ,5 2

Goldberg v. Kelly, 397 U.S. 254 ( 1 9 7 0 ) ................................. 25, 37

Goodwin v. Oswald, 462 F.2d 1237 (2d Cir. 1 9 7 2 ) .............. 32, 40

(Hi )



Graham v. Richardson, 403 U.S. 365 ( 1 9 7 1 ) ................ ..  25

Gray v. Creamer, 465 F.2d 179 (3d Cir. 1 9 7 2 ) ...................... 25, 26

Grayned v. City of Rockford, 408 U.S. 104 (1 9 7 2 ) ..............passim

Griffin v. Illinois, 351 U.S. 12 (1 9 5 6 ) ...........................................  48

Guajardo v. McAdams, 349 F.Supp. 211 (S.D. Tex.
1 9 7 2 ) ..............................................................................  3 2 ,3 8 ,4 2

Haines v. Kemer, 404 U.S. 519(1972) ......................................  20

Harman v. Forssenius, 380 U.S. 528 (1 9 6 5 ) ................................. 19

Healy v. James, 408 U.S. 169 ( 1 9 7 2 ) ..............................  27, 39, 40

Hillery v. Procunier,____F.Supp.____ , No. C-71
2150 S.W. (N.D. Cal. Aug. 16, 1973) .............................. 26, 40

Hooks v. Wainwright, 352 F.Supp. 163 (M.D. Fla.
1 9 7 2 ) ............................................................................................ 52

Houghton v. Shafer, 392 U.S. 639 (1968) ................................. 20

Ex parte Hull, 312 U.S. 546(1941)   47

Jackson v. Godwin, 400 F.2d 529 (5th Cir. 1968) .............. 26, 40

Johnson v. Avery, 393 U.S. 483 (1969) ................................... passim

Jones v. Metzger, 456 F.2d 854 (6th Cir. 1 9 7 2 ) ........................  20

Jones v. United States, 357 U.S. 493 ( 1 9 5 8 ) ..............................  14

In re Jordan, 7 Cal.3d 930, 500 P.2d 873 ( 1 9 7 2 ) ------  1 8 ,2 2 ,5 0

Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 (1 9 5 2 ) ................  36

Kaufman v. United States, 394 U.S. 217 (1 9 6 9 ) ......................... 47

Keyishian v. Board of Regents, 385 U.S. 589 (1 9 6 7 ) ............ passim

Laaman v. Hancock, 351 F.Supp. 1265 (D. N.H. 1 9 7 2 ) ...........  38

Lake Carriers’ Association v. MacMullan, 406 U.S.
498(1972) .................................................................................  19

Lamar v. Kern, 349 F.Supp. 222 (S.D. Tex. 1 9 7 2 ) ...................  42

Lamont v. Postmaster General, 381 U.S. 301 (1 9 6 5 ) ................  25

Landman v. Peyton, 370 F.2d 135 (4th Cir. 1 9 6 6 ) ...................  35

( iv)



Landman v. Royster, 333 F.Supp. 621 (E.D. Va. 1971) 25, 37, 47 

Lanzetta v. New Jersey, 306 U.S. 451 (1939) ...........................  37

Law Students Civil Rights Research Council v.
Wadmond, 401 U.S. 154(1971) ...........................................  17

LeVier v. Woodson, 443 F.2d 360 (10th Cir. 1971) ................  50

Lewis v. Kugler, 446 F.2d 1343 (3rd Cir. 1 9 7 1 ) ........................  20

Undsey v. Normet, 405 U.S. 5 6 (1 9 7 3 )........................................  19

Longv. Parker, 390 F.2d 816 (3d Cir. 1 9 6 8 ) .............................. 32

McDonnell v. Wolff, ___  F .2 d ___ , No. 72-1331
(8th Cir. Aug. 2, 1973) .........................................40, 47, 50, 55

McNeese v. Board of Education, 373 U.S. 668 (1963) ...........  21

Marsh v. Moore, 325 F.Supp. 392 (D. Mass. 1 9 7 1 ) ................... 50

Mead v. Parker, 464 F.2d 1108 (9th Cir. 1972) ........................  55

Milwaukee Social Democratic Publishing Co. v.
Burleson, 255 U.S. 407 (1921) ..............................................  25

Monroe v. Pape, 365 U.S. 167(1961) ......................................... 21

Mooney v. Holohan, 294 U.S. 703 (1 9 3 5 ) ...................................  47

Moore v. Ciccone, 459 F.2d 574 (8th Cir. 1972) ...................... 50

Morales v. Turman, 326 F.Supp. 677 (E.D. Tex. 1 9 7 1 ) ...........  50

Morris v. Affleck, No. 4192 (D. R.I. April 20, 1972) .............. 30

Morrissey v. Brewer, 408 U.S. 471 (1 9 7 2 ) .............................. 25, 37

NAACP v. Alabama ex rel. Flowers, 377 U.S. 288
(1964) ....................................................................................  28 ,37

NAACPv. Button, 371 U.S. 4 1 5 ( 1 9 6 3 ) ......................... 2 8 ,3 4 ,3 6

Neal v. State o f Georgia, 469 F.2d 446 (5th Cir.
1 9 7 2 ) ............................................................................................  25

Near v. Minnesota, 283 U.S. 697 ( 1 9 3 1 ) ................................. 29, 30

New York Times v. Sullivan, 376 U.S. 254 (1964) ...................  29

Nolan v. Fitzpatrick, 451 F.2d 545 (1st Cir. 1971) .2 5 ,  26, 30, 32

( V)



Nolan v. Scafati, 430 F.2d 548 (1st Cir. 1 9 7 0 ) ...................... 47, 50

Novak v. Beto, 453 F.2d 661 (5th Cir. 1 9 7 1 )........................  52, 55

O’Malley v. Brierley, 477 F.2d 785 (3rd Cir. 1 9 7 3 ) .............. 26 ,40

Organization for a Better Austin v. Keefe, 402 U.S.
415(1971) .................................................................................  38

Palmigiano v. Travisono, 317 F.Supp. 776 (D. R.I.
1 9 7 0 ) .......................................... 2 5 ,2 6 ,3 0 ,3 2 ,4 3

Papachristou v. City o f Jacksonville, 405 U.S. 156
(1972)    36 ,37

Pickering v. Board of Education, 391 U.S. 353 (1968) . . . .  29, 39

Pierce v. LaVallee, 293 F.2d 233 (2d Cir. 1 9 6 1 ) ........................  20

Police Department of Chicago v. Mosley, 408 U.S. 92
(1972) ............................................................................ 3 3 ,3 7 ,4 0

Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827
(1973) .................................................................................... 20,21

Price v. Johnston, 334 U.S. 266 (1948) ......................................  26

Remmers v. Brewer, 475 F.2d 52 (8th Cir. 1 9 7 3 ) ...................... 26

Reetz v. Bozanich, 397 U.S. 82 (1 9 7 0 ) ......................................... 19

Rivers v. Royster, 360 F.2d 592 (4th Cir. 1 9 6 6 ) ........................  20

Rowland v. Sigler, 327 F.Supp. 821 (D. Neb. 1971), 
a ff  d sub nom. Rowland v. Jones, 452 F.2d 1005 
(8th Cir. 1971)   26 ,40

Shelton v. Tucker, 364 U.S. 479 ( 1 9 6 0 ) ................................. 37, 40

Shelton v. Union County Board of Commissioners,
___ F.2d___ , No. 71-151 (7th Cir. 1973) .......................... 20

Shuttlesworth v. Birmingham, 394 U.S. 147 (1969) ................. 35

Smith v. California, 361 U.$. 147 (1959) ...................................  34

Smith v. Robbins, 454 F.2d 696 (1st Cir. 1 9 7 2 ) ........................ 50
Sostre v. McGinnis, 442 F.2d 178 (2d Cir. 1971), 

cert, denied sub nom. Sostre v. Oswald, 404 U.S.
1049 (1971)

(v i )

30, 32, 33



Sostre v. Otis, 330 F.Supp. 941 (S.D. N.Y. 1 9 7 1 ) ...................... 38

Speiser v. Randall, 357 U.S. 513 ( 1 9 5 8 ) ........................  2 8 ,3 4 ,3 8

Stapleton v. Mitchell, 60 F.Supp. 51 (D. Kan. 1 9 4 5 )................  21

Stevenson v. Mancusi, 325 F.Supp. 1028 (W.D. N.Y.
1 9 7 1 )  ........................................................................................... 53

Tacon v. Arizona, 410 U.S. 351 (1973) ......................................  14

State ex rel. Thomas v. State of Wisconsin 55 Wis.2d
343, 198 N.W.2d 675 (1972) .............................. 25, 26, 30, 40

Thornhill v. Alabama, 310 U.S. 88 (1 9 4 0 ) .............................. 28, 36

Tinker v. Des Moines School District, 393 U.S. 503
(1969) ............................................................................ 2 7 ,3 9 ,4 0

In re Tucker, 5 Cal.3d 171 (1971) .............................................. 52

United Mine Workers v. Illinois State Bar Association,
389 U.S. 217(1967) ................................................................. 56

United States v. Kras, 409 U.S. 434 (1973) .............................. 47

United States v. Livingston, 179 F.Supp. 9 affd, 364
U.S. 281 ( 1 9 6 0 ) .........................................................................  19

United States v. O’Brien, 391 U.S. 367 (1968) ........................  40

United States v. Robel, 389 U.S. 258 (1967) .............. 28, 37 ,40

United States v. Savage, __  F .2d ___ , No. 72-3145
(9th Cir. Aug. 8, 1 9 7 3 ) ..............................................................  40

United States Civil Service Commission v. National
Association of Letter Carriers, ___ U .S .____ , 41
U.S.L.W. 5 1 2 2 ( 1 9 7 3 ) ..............................................................  35

Van Erman v. Schmidt, 343 F.Supp. 337 (W.D. Wis.
1 9 7 2 )  ...........................................................................................  55

Wainwright v. Coonts, 409 F.2d 1337 (5th Cir. 1 9 6 9 ) .............. 55

Wilwording v. Swenson, 404 U.S. 249 (1971) .............................  20

Worley v. Bounds, 355 F.Supp. 115 (W.D. N.C. 1 9 7 3 )------  30, 41

Wright v. McMann, 387 F.2d 519 (2d Cir. 1967) ...................... 20

Yarish v. Nelson, 27 Cal. App.3d 893, 104 Cal. Rptr.
205 (1972) 18



Younger v. Gilmore, 404 U.S. 15(1971) 

Zwickler v. Koota, 389 U.S. 241 (1967)

4 8 ,4 9 ,5 2  

. . . 15,19

Statutes, Rules and Regulations:

42U.S.C. §1983 ..............................................................................  20

California Department o f Corrections, Director’s Rule
1205(d) ....................................................................................3 ,31

California Department of Corrections, Director’s Rule
1205(f) ......................................................................................  6

California Department o f Corrections, Director’s Rule
1201  3 ,4

California Department of Corrections, Director’s Rule
D2401 .........................................................................................  5

California Department of Corrections, Director’s Rule
2402(8) ...................................................................................... 3> 4

California Department of Corrections, Mail and Visit­
ing Manual §MV-IV-02 ............................................................ 7

California Evidence Code §952 ......................................................  46
California Penal Code §2600 ...........................................  18, 19, 21

California State Bar Board of Governors, Rules for
Practical Training of Law Students, Rule VII.C ................. 54

Fed. R. Civ. P. Rule 23 ...................................................................  22

Michigan Department o f Corrections, Department
Directive CC-10 (October 17, 1 9 7 2 ) ......................................  37

Pennsylvania Bureau o f Corrections, Administrative
Directive No. 3 (effective Dec. 15, 1970) ........................... 37

Washington Office of Adult Corrections, Memoran­
dum No. 70-5 (Nov. 6, 1970) ............................................  37

Other Authorities:

American Bar Association, Code of Professional 
Responsibility, Canon 3, Ethical Consideration 
3-6  51 ,54



( i x )

Bergesen, California Prisoners: Rights Without
Remedies, 25 Stan. L. Rev. 1 (1973) ................ ..................  22

Brickman, Expansion of the Lawyering Process 
Through a New Delivery System: The Emergence 
and State o f Legal Paraprofessionalism, 71 Col. L.
Rev. 1153 ( 1 9 7 1 ) ......................................................................  52

California Board o f Corrections, California Cor­
rectional System Study: Institutions (July, 1 9 7 1 )..............42

Center for Criminal Justice, Boston University School 
of Law, Model Rules and Regulations on 
Prisoners’ Rights and Responsibilities ( 1 9 7 3 ) ...................... 43

Jacob and Sharma, Justice After Trial: Prisoners’
Need for Legal Services in the Criminal- 
Correctional Process, 18 Kan. L. Rev. 493 (1 9 7 0 ) .............. 53

Larson, Legal Paraprofessionals: Cultivation of a New
Field, 59 A.B.A.J. 631 (1973) ..............................................  55

National Advisory Commission on Criminal Justice
Standards and Goals, Standards 2.15, 2 . 1 7 ........................... 43

Note, Prison Mail Censorship and the First Amend­
ment, 81 Yale L. J. 87 ( 1 9 7 1 ) ..............................25, 37, 38, 42

Note, The Right of Expression in Prison, 40 S. Cal. L.
Rev. 407 ( 1 9 6 7 ) .........................................................................  42

Singer, Censorship of Prisoners’ Mail and the Con­
stitution, 56 A.B.A.J. 1051 (1970) ..............................  25 ,42

State Bar of California, Reports (July, 1973) ...........................  46

State Bar of California, Reports (February, 1970) .............. 9, 54

Stern, Prison Mail Censorship: A Non-Constitutional
Analysis, 23 Hastings L. J. 995 (1972) ........................  25, 42

CONTENTS OF APPENDIX

Pertinent Excerpts from the Standards o f the 
National Advisory Commission on Criminal 
Justice Standards and Goals ...................................



IN THE

SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1973

No. 72-1465

RAYMOND K. PROCUNIER, DIRECTOR, 
CALIFORNIA DEPARTMENT OF 

CORRECTIONS, etal.,
Appellants,

v.

ROBERT MARTINEZ and 
WAYNE EARLEY, e ta l,

Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE NORTHERN DISTRICT OF CALIFORNIA

BRIEF FOR APPELLEES

QUESTIONS PRESENTED

1. Whether the district court should have abstained 
from deciding one of the two federal constitutional 
questions presented and required appellees to institute 
proceedings in state court, and whether abstention should 
be ordered in the present posture of the case.

2. Whether the district court properly invalidated the 
mail censorship regulations involved in this case, and



2

whether the new regulations approved by the court’s final 
order fully protect every legitimate interest of appellants.

3. Whether the district court properly invalidated 
appellants’ absolute prohibition against use by attorneys 
of law student or paraprofessional investigators to inter­
view prisoners on their behalf, and whether the new 
regulation approved by the court’s final order, authoriz­
ing the use of investigators certified by the State Bar, 
fully protects every legitimate interest of appellants.

STATEMENT OF THE CASE 
A. Further Proceedings in the Court Below

Following the decision from which this appeal was 
taken, the district court received proposed regulations 
from appellants and further evidence presented by 
appellees (A. 98-134). On July 20, 1973, the court gave 
final approval to the revised regulations submitted by 
appellants. Such regulations are set forth in the Supple­
ment to Appendix at pp. 194-203. We submit that the 
final regulations, approved over appellees’ objections 
(Supp. A. pp. 204-210), fully protect every legitimate 
interest of appellants.

B. Statement of Facts

Conspicuously missing from appellants’ Statement is 
any mention of the factual record and evidence on which 
the decision of the district court was soundly premised. 
Accordingly, we here state the pertinent facts.

1. Mail censorship

The California mail censorship rules are expressly 
based on the premise that mail is a “privilege”, not a



3

“right”, which may be granted or withheld in the 
discretion of prison officials (A. 48, 64).

Prisoners confined in California institutions who desire 
to communicate by mail are required to submit letters 
to prison officials who censor them to determine whether 
they conform to certain rules (A. 19,28—Admission 1). 
The rules involved here are the following:

Director’s Rule 2402(8) prohibits prisoners from writ­
ing letters that are, inter alia, “defamatory . . .  or are 
otherwise inappropriate” (A. 19,28; Exhibit C to Appel­
lants’ Brief);

Director’s Rule 1201 forbids prisoners from writing 
letters in which, inter alia, they “unduly complain” or 
“magnify grievances” (Id .); and

Director’s Rule 1205(d) defines “contraband” to include 
“any writings . . . expressing inflammatory political, ra­
cial, religious, or other views or beliefs when not in the 
immediate possession of the originator . . . ” Letters may 
constitute contraband writings within this rule (A. 19, 
28-Admission 1).

Outgoing letters submitted for mailing by prisoners 
and incoming letters addressed to prisoners may be read 
by mailroom staff and by other employees of the prison 
(A. 19,29-Admission 2; A. 48-50). No criteria or stand­
ards, other than those contained in the rules set forth 
above, are furnished to the mailroom staff to guide them 
in deciding whether a particular letter violates any prison 
rule or policy (A. 19-20-Admission 2).

Letters found objectionable by the mailroom staff may 
be rejected for a variety of reasons. For example, at 
Folsom Prison the checklist used by staff to reject letters 
authorizes rejection for, inter alia, “criticizing policy, 
rules or officials” and “mentioning inmates by name or 
number or relating gossip or incidents” ; and staff may 
also reject letters for reasons they deem appropriate



4

(A. 78-79, 50-51, 72-73). The checklist used at San 
Quentin also authorizes rejection of letters for a number 
of reasons, including “not proper correspondence” and 
“prison gossip” (A. 67, 51). The checklist used at the 
institution at Vacaville specifies a number of other 
reasons for rejecting correspondence, including “offensive 
language” (A. 52; exhibit 4 to Procunier dep.; Supp. 
A. 190). Appellant Procunier testified that rejecting 
letters for these reasons is permissible under the Direc­
tor’s Rules set forth above (A. 50-52).

Given the absence of standards for guiding mailroom 
staff, and the broad and vague reasons deemed permiss­
ible for rejecting letters, it is not surprising that prison 
officers frequently reject letters that criticize them or 
express opinions they disagree with. Thus, the mailroom 
sergeant at Folsom Prison will reject letters as “defa­
matory” (within the meaning of Director’s Rule 
2402(8)), if they are

“belittling staff or our judicial system or anything 
connected with the Department of Corrections” 
(A. 75).

Letters will be prohibited for “magnifying grievances” 
(within the meaning of Director’s Rule 1201), if they are 
“belittling the staff because of their incompetency” 
(A. 75). Another official has rejected numerous letters on 
the ground that they contain “disrespectful comments,” 
or “misrepresenting of facts,” or “derogatory remarks,” 
or material that is “discriminatory or derogatory toward 
any individuals or races,” or “referring to the different 
employees at the institution and making allegations and 
stating mistruths and so forth,” or “erroneous informa­
tion,” or what the official thinks is “misinformation” 
about the prison or “prison gossip” (A. 91,92,81-86, and



5

exhibits 1-8 to Morphis dep.).1 The same criteria govern 
censorship of both outgoing and incoming letters (A. 86).

When a prison employee2 decides that a letter con­
stitutes improper correspondence, he is authorized to 
take the following actions, alone or in combination:

(a) refuse to mail the letter and return it to the 
prisoner;

(b) submit a disciplinary report which may lead to 
suspension of the prisoner’s mail privileges as 
specifically authorized by Director’s Rule 
D2401 or to more severe disciplinary punish­
ment up to and including confinement in 
segregation;3

(c) photocopy the letter and place it or a summary 
of its contents in the prisoner’s permanent file 
(A. 20,29-Admission 5; A. 59-61 ).4

1 The letters rejected are in evidence and are innocuous by any 
standard. They are mostly letters to mothers, fathers or other 
relatives complaining of treatment the prisoners have allegedly 
received. The official rejected a letter as stating “misinformation” 
even though he knew that the statements he objected to were 
direct quotations from a published newspaper article, explaining 
the prisoner’s reasons for withholding his consent to an “aversion 
therapy” program (A. 85 and exhibits 4 and 5 to Morphis dep.).

2Censorship is done by guards assigned to mailroom duty, their 
civilian helpers, members of the night watch or the officer in 
charge of a lock-up unit (A. 29, 59, 73-74, 81).

3See A. 77; Supp. A. 170; A. 24, 45—Admission 24; Supp. A. 
172; A. 24-25, 43-Admission 28. The severity of disciplinary 
punishments in California prisons is comprehensively described in 
Gutchette v. Procunier, 328 F.Supp. 767 (N.D. Cal. 1971).

4Placed in plaintiff Martinez’s file, for unexplained reasons, 
were copies of letters to a relative and to a federal judge (A. 59-60; 
exhibits 5 and 6 to Procunier dep.).



6

Letters may be placed in a prisoner’s file even if they do 
not violate any rule, if mailroom staff believe that the 
letters “reveal an inappropriate attitude toward prison 
staff or society or express radical political views” 
(A. 21,29-Admission 7). Letters placed in a prisoner’s 
file are referred to and consulted by prison classification 
committees which determine the prisoner’s housing and 
work assignments (A. 21,29—Admission 8). Such letters 
are also available to the California Adult Authority which 
decides whether and when to grant parole (A. 21, 
29—Admission 9; A. 60).s

There is no effective procedure by which a prisoner 
may challenge a guard’s censorship decision. Although 
appellants say that the prisoner can “appeal” (A. 20, 
29-Admission 6), there is no Director’s Rule establishing 
any such procedure; prisoners are not informed of the 
possibility of appeal; there is no hearing of any kind and 
there is no provision for review by anyone other than the 
censor.5 6 Regarding incoming letters rejected by staff, 
there is not even a provision for notice to the prisoner 
that the letter had been received at the prison and 
rejected.

Despite the obvious deficiencies and invitations for 
abuse contained in their rules, appellants offered no 
evidence whatever, not even their opinion, to show that

5 Indeed, Director’s Rule 1205(f) specifically authorizes the 
retention of “contraband” writings, which may include letters, for 
referral to the Adult Authority (A. 21, 30—Admission 10; Supp. A. 
172; A. 24-25, 43—Admission 28).

6 Three different officials described three completely different 
and inconsistent procedures to use in seeking review of a mail 
decision (A. 58-59, 76, 87), but one candidly admitted that there is 
“no established policy” (Miranda dep. p. 24). Appellants keep no 
records regarding rejected letters (A. 34-35).



7

there is a legitimate need for such rules, that danger to 
prison security might result without them or that the 
rules were reasonable or necessary to promote the orderly 
functioning of the prisons. The court below expressly 
found that the rules were not “reasonable and neces­
sary” , were “without any apparent justification” or any 
“conceivable justification on the grounds of prison 
security” and “would not appear necessary to further any 
of these functions [of prisons in America].” 354 F.Supp. 
at 1096 (emphasis by the court).

In response to the decision of the district court, 
appellants developed and submitted new censorship rules. 
The rules proposed by appellants and given final approval 
by the district court (Supp. A. 211-212) continue to 
regulate the content of prisoner mail, but with consider­
ably more specificity. The approved rules also include a 
simple procedure for administrative appeals of lower- 
level censorship decisions (Supp. A. 197-198). Appellants 
have suggested no reasons, either here or in the district 
court, why the court-approved regulations do not protect 
every legitimate state interest.

2. Law student and paraprofessional 
investigators for attorneys

The Mail and Visiting Manual Section MV-IV-02, 
promulgated by appellant Procunier, authorizes personal 
interviews of prisoners by their attorneys of record or the 
designated representative of the attorney of record 
(A. 22,30-Admission 17). However, the designated rep­
resentative of an attorney must be either a member of the 
California Bar or an investigator licensed by the State of 
California (Id.). Interviews by law students or parapro­
fessional assistants to attorneys are prohibited (Id.).

This rule bars interviews regardless of the qualifica­
tions or identity of the student or assistant, the attorney



8

or the prisoner to be interviewed, and regardless of the 
type of case, the need to use an investigator or any other 
possibly relevant factor. Thus, in this very case, counsel 
for appellees, who was requested by the district court to 
investigate and to consider undertaking an uncom­
pensated appointment in this case, requested permission 
to have a supervised law student interview plaintiff 
Martinez for the purpose of investigating and preparing 
the case (Supp. A. 184-186, 177-182). Permission was 
denied by prison officials solely on the ground that no 
such interviews are permitted under their rule {Id. ).

Appellants’ rule prohibiting interviews by law students 
and other supervised paraprofessionals works a substantial 
inconvenience to attorneys representing prisoners or 
considering whether to represent prisoners (Supp. A. 
184-188). Because of the remoteness of most California 
institutions, personal visits by attorneys are necessarily 
rare and very inconvenient {Id.). Indeed, such visits are so 
time-consuming and inconvenient that, as the court 
below found, attorneys are generally reluctant to make 
such visits, and this may mean that they decide not to 
provide any representation. 354 F.Supp. at 1098. This is 
especially true where the prisoners are indigent, as most 
are, and cannot pay for the attorney’s expenses or time 
in making personal visits. Of course, indigent prisoners 
are financially unable not only to retain paid counsel but 
also to hire licensed investigators, the only paraprofes­
sionals appellants permit to interview prisoners. There is a 
growing number of highly qualified and academically 
trained legal paraprofessionals who are completely barred 
by appellants’ rule from acting as investigators for lawyers 
representing prisoners (A. 127-130).

Although appellants prohibit law students assisting 
attorneys from interviewing prisoners, they permit a large 
number of law students in their institutions on a regular 
basis. There are law student programs at most if not all 
California prisons (A. 61, 113-115, 116). Law students,



9

with only the minimal supervision of a faculty member, 
are permitted to interview prisoners and assist them on 
legal matters (Id.; Supp. A. 188; A. 35-39). The prison 
officials make no inquiry into the qualifications of law 
students in these programs, and make no security check 
on them (Id.; A. 62).

In response to the decision of the court below, 
appellants developed and submitted a new investigator 
rule. Under the new rule proposed by appellants and 
approved by the court below, law students and legal 
paraprofessionals certified by the State Bar of California 
may serve as investigators for attorneys (Supp. A. 198- 
200). Appellants’ Brief, filed well after the final order of 
the district court, inexplicably asserts that the class of 
authorized investigators is much broader (pp. 24-27). 
This is just untrue. Indeed, since at present there is no 
procedure for State Bar certification of paraprofes­
sionals,7 the only addition to the former rule consists of 
State Bar certified law students. Even these students are 
subject to far more stringent precautions than those 
applicable to non-certified law student programs already 
authorized by appellants (compare Supp. A. 198-200 
with A. 113-114). Appellants have not suggested, either 
here or in the district court, any reason why allowing 
lawyers to utilize the services of State Bar certified law 
students would interfere with any legitimate state inter­
est.

7As pointed out in n. 35, infra, the State Bar has strongly 
recommended legislation authorizing certification, to utilize the 
services that can be provided by qualified paralegal personnel. But 
since there is no such procedure presently in effect, appellants’ new 

rule will not immediately result in any use of paraprofessional 
investigators Under the State Bar’s existing Rules Governing the 
Practical Training of Law Students, certified students are permitted 
to perform a wide range of functions in the investigation, 
preparation and presentation of legal matters under the supervision 
of attorneys. See State Bar of California Reports (Feb. 1970).



10

SUMMARY OF ARGUMENT
I.

The district court did not err in declining to abstain 
from deciding one of the two federal constitutional 
questions presented-the constitutionality of the mail 
censorship regulations. Neither of the arguments that 
appellants now urge for abstention was presented to the 
court below. In these circumstances, appellants cannot 
now claim that the district court abused its equitable 
discretion by proceeding to decide the constitutional 
question presented.

Moreover, abstention is not required simply because 
the regulations were invalidated, in part, on the ground of 
vagueness. This Court has repeatedly held that abstention 
is not proper in such circumstances. Here, there is no 
unsettled issue of state law whose resolution could 
eliminate the federal question. Nor have appellants 
suggested any construction of the regulations that could 
conceivably cure their vagueness. And, in any event, the 
challenge here is not limited to vagueness. Further, there 
is no state statute that is fairly subject to a construction 
that would avoid or modify the constitutional question.

Finally, there is no clearly available and adequate state 
remedy in California that could have justified the federal 
court’s abstaining and thus forcing appellees to repair to 
the state courts. California habeas corpus is the only state 
prisoner remedy, and it would not be effective to protect 
the rights involved here. Requiring appellees to institute 
state proceedings would only have caused delay, expense 
and frustration, and the federal constitutional question 
would not have been eliminated.

Even if abstention might have been appropriate as an 
initial matter in the district court-assuming the proper



11

grounds had been timely raised by appellants-abstention 
should not be ordered in the present posture of the case. 
Everything the abstention doctrine is designed to post­
pone—premature federal proceedings involving state 
officials-has already occurred here without specific 
objection by appellants. And since appellants have not 
contended that the new regulations submitted by them 
and given final approval by the court below fail to 
protect any of their legitimate interests, it would make 
no sense to order the district court to abstain now.

II.

The district court properly invalidated appellants’ 
former mail censorship regulations. There is no conten­
tion in this case that prison officials may not inspect and 
read prisoner mail. The issue concerning the constitu­
tionality of regulations under which guards censor and 
punish prisoners for the content of their letters-the 
words they use—was properly resolved by the court 
below. The only provisions invalidated prohibited pris­
oners from writing letters in which they “unduly com­
plain,” or “magnify grievances” or express certain “views 
or beliefs” or which are deemed “defamatory” or 
“otherwise inappropriate.” These provisions are not 
needed to serve any legitimate penal interest. Recognizing 
that prisoners’ First Amendment rights may be curtailed 
because of their restrictive environment, and keeping in 
mind legitimate penal interests, the rules here are 
nevertheless invalid because (1) they are overbroad in that 
they prohibit lawful and protected expression; (2) they 
are unduly vague, with the result that standardless and 
discriminatory enforcement is encouraged; (3) they fail 
to give fair notice of conduct that may be severely 
punished; and (4) thay lack procedural safeguards against



12

suppression of protected speech through error or arbitrar­
iness. A principal use of the rules has been to suppress 
criticism of prison guards and their policies, regardless of 
whether such criticism is valid.

The record is barren of any justification for the rules in 
question, and the district court properly found, on the 
evidence presented, that no legitimate penal considera­
tion supported them. Furthermore, responsible correc­
tional authorities throughout the nation now reject mail 
censorship of the kind involved here as unsound correc­
tional practice. The authorities find such censorship 
unnecessary and counterproductive. The only real contro­
versy among the authorities today is whether prisoner 
mail should be read at all, not what contents should be 
censored or punished, and that is not an issue that the 
Court must now resolve.

Finally, showing more than ample deference to appel­
lants, the district court gave final approval to new 
regulations developed and submitted by appellants. These 
regulations fully protect every legitimate state interest.

III.

The district court properly invalidated appellants’ 
former absolute prohibition against use by attorneys of 
law student or paralegal investigators to interview pri­
soners. Appellants voluntarily began permitting State Bar 
certified law students to perform this function. The only 
requirement added by the district court was to include 
State Bar certified paralegal assistants; but since there is 
presently no such paralegal certification, appellants have 
not yet been required to do anything they are not already 
doing voluntarily.

The decisions of this Court have firmly established the 
principle that prisoners have a due process right of



13

effective access to the courts for the purpose of setting 
aside invalid convictions or remedying invasions of their 
constitutional rights while incarcerated. But appellants’ 
former rule barred all law student and paralegal assistants 
to attorneys regardless of their qualifications and regard­
less of the need to use them in order to provide legal 
assistance to indigent prisoners. This results in denial of 
effective access to the courts for such prisoners. The 
California Bar and the American Bar Association have 
strongly recommended the use of law students and 
paralegals to assist in providing legal services to those 
otherwise unable to obtain them. If use of such persons is 
merely desirable as a general matter, it is absolutely 
essential if indigent prison inmates are to receive vital 
assistance in obtaining access to the judicial process.

Appellants here were unable to show any counter­
vailing state interest to justify their rule impeding 
indigent prisoners’ due process right of effective access to 
the judicial process. Yet the burden of justifying the 
exclusion of trained and supervised assistants to lawyers 
should be greater than the burden of justifying restric­
tions on “jailhouse lawyers,” which this Court struck 
down in Johnson v. Avery, 393 U.S. 483 (1969). Here, 
the district court gave more than adequate deference to 
any legitimate interest of appellants. The new regulation 
developed and submitted by appellants, which was given 
final approval by the court below, fully protects every 
legitimate state interest.



14

ARGUMENT
I. THE DISTRICT COURT DID NOT ERR IN DECLIN­

ING TO ABSTAIN FROM DECIDING ONE OF THE 
TWO FEDERAL CONSTITUTIONAL QUESTIONS 
PRESENTED, AND ABSTENTION SHOULD NOT BE 
ORDERED NOW.

Appellants contend that the district court should have 
abstained from deciding one of the two federal constitu­
tional questions—the constitutionality of the mail censor­
ship regulations (Appellants’ Brief, p. 5). Appellants do 
not suggest that the court should have abstained from 
deciding the other half of the case, dealing with denial of 
access to investigators for attorneys. Appellants argue 
that the court should have required appellees to repair to 
the state courts to institute proceedings on the first issue 
because (1) the mail regulations were challenged, in part, 
on the ground of vagueness, and (2) a construction of 
California Penal Code §2600(4) might have avoided or 
modified the federal constitutional question. Neither of 
these contentions was presented to the court below. We 
submit that the court below was not required initially to 
abstain and that, in any event, abstention should not be 
ordered now.

A. The District Court Was Not Required 
Initially To Abstain.

As noted above, neither of the specific arguments now 
urged for abstention was made in the district court. 
Appellants’ failure to raise these points below ought to 
bar them from belatedly claiming that the court should 
have abstained. Cf. Brown v. Chote, 411 U.S. 452 (1973); 
Tacon v. Arizona, 410 U.S. 351 (1973); Jones v. United 
States, 357 U.S. 493, 499-500 (1958), indicating that



15

such tactics are not favored by this Court. Since 
abstention “involves a discretionary exercise of a [fed­
eral] court’s equity powers,” Baggett v. Bullitt, 377 U.S. 
360, 375 (1964), and since appellants did not ask the 
court below to exercise its discretion on the grounds now 
urged,8 they cannot now claim that the court abused its 
equitable discretion by proceeding to decide the federal 
constitutional question presented.

Even if appellants did not waive their abstention 
arguments by failing to present them seasonably below, 
the new arguments are without merit and inconsistent 
with recent precedents in this Court.

1. Abstention is not required simply because 
regulations are challenged and invalidated, in 
part, on the ground o f  vagueness.

Appellants leap from the fact that the mail regulations 
were found to be defective because they are, inter alia, 
unconstitutionally vague, to the conclusion that the 
district court was required to abstain until the regulations 
had been authoritatively construed by a state court. This 
simplistic assertion directly conflicts with this Court’s 
decisions in Baggett v. Bullitt, 377 U.S. 360 (1964); 
Keyishian v. Board o f Regents, 385 U.S. 589, 601, n.9 
(1967); Dombrowski v. Pfister, 380 U.S. 479, 489-490 
(1965); and Zwickler v. Koota, 389 U.S. 241, 252

8 In the district court appellants did make one very short and 
half-hearted statement that the court should abstain. But the 
statement was no more than a generality in the course of argument 
on the merits that plaintiffs had not stated a claim. (See 
defendants’ Memorandum of Points and Authorities in Support of 
Motion to Dismiss, p. 10 (dated Sept. 8, 1972).) Neither of the 
specific grounds for abstention urged here was ever presented to 
the court.



16

(1967). In all these cases the Court held that abstention 
was inappropriate even though the state provisions were 
challenged and struck down as impermissibly vague or 
overbroad. As Mr. Justice White carefully explained in 
Baggett v. Bullitt, supra, a case involving provisions held 
“unduly vague, uncertain and broad” (377 U.S. at 366), 
the “abstention doctrine is not an automatic rule applied 
whenever a federal court is faced with a doubtful issue of 
state law . .  .” Id. at 375. Abstention may be appropriate 
when “the unsettled issue of state law principally 
concern [s] the applicability of the challenged statute to a 
certain person or a defined course o f conduct, whose 
resolution in a particular manner would eliminate the 
constitutional issue and terminate the litigation” (Id. at
376- 377) (emphasis added). But when the uncertain issue 
is not a “choice between one or several meanings of a 
state statute” but among an “indefinite” number of 
interpretations, and the question is not coverage of 
“certain definable activities” but rather the complaint is 
that those affected “cannot understand” the provisions, 
“cannot define the range of activities in which they might 
engage in the future, and do not want to forswear doing 
all that is literally or arguably within the purview of the 

.vague terms” , abstention should not be ordered. Id. at
377- 78. Here, as in Baggett, “in light of the vagueness 
challenge,” it is highly unlikely that any State interpreta­
tion would avoid or significantly alter the constitutional 
issue and, with the delay inherent in repairing to the state 
courts for perhaps repeated interpretations of the vague 
regulations, abstention would be “a result quite costly 
where the vagueness. . .  may inhibit the exercise of First 
Amendment freedoms.” Id. at 379.

In the case at bar there is no unsettled issue' con­
cerning the applicability of the regulations to appel­
lees or to their communications by mail, “whose resolu­



17

tion in a particular manner would eliminate the constitu­
tional issue . . Here, as in Baggett, the choice is among 
an “indefinite” number of interpretations and the 
challenge is that the persons affected “cannot under­
stand” what is prohibited by the regulations and “cannot 
define the range” of expression which may be “literally 
or arguably within the purview of the vague terms.” Thus, 
for example, the prisoners cannot know what will be 
prohibited as “unduly complaining” or “magnifying 
grievances,” or “otherwise inappropriate.”

Appellants have suggested no possible construction of 
the regulations that would cure their vagueness. Indeed, 
appellant Procunier’s testimony (A. 50-52), approving 
completely open-ended interpretations of the rules, ac­
tually compounds their vagueness. Since he is the State 
official charged with both promulgating and enforcing the 
rules and “entrusted with the definitive interpretation of 
the language of the Rule,” there is no reason not to 
accept his constuction of the meaning. See Law Students 
Civil Rights Research Council v. Wadmond, 401 U.S. 154, 
161 (1971). As the Court said in Broadrick v. Oklahoma,
___ U .S.____, 41 U.S.L.W. 5111, 5116 (1973), “ Surely
a court cannot be expected to ignore these authoritative 
pronouncements in determining the breadth” of the 
rules. There is no doubt that the district court in this case 
correctly interpreted the rules and their intent as confer­
ring completely unchecked censorship power.

Furthermore, the challenge here is not limited to 
vagueness. The court below also held that the regulations 
were overbroad because they actually outlawed protected 
speech (e.g., criticism of correctional policies), and that 
they lacked essential procedural safeguards against denial 
of valid expression through error or arbitrariness. 354 
F.Supp. at 1097. Appellants have suggested no construc­
tion of the regulations that could conceivably have 
eliminated these defects.



18

2. Penal Code §2600(4) is not fairly subject to a 
construction that would avoid or modify the 
constitutional question.

Appellants’ contention that some construction of 
California Penal Code §2600(4) by a state court might 
have avoided or modified the federal constitutional 
question is frivolous. Appellants have not suggested any 
such construction. The statute cannot conceivably be 
interpreted to govern the issues in this case, and no one, 
least of all the California Attorney General, has ever 
before had the temerity to say that it might provide a 
remedy for prisoners in a case like this one. By its own 
terms, §2600(4) deals only with the receipt by prisoners 
of “newspapers, periodicals, and books” , and a provision 
authorizes officials to exclude “publications or writings 
and mail containing information concerning where, how, 
or from whom such matter may be obtained 
(emphasis added). In short, the only mail covered by the 
statute concerns solicitations for obscene publications or 
writings; no provision purports to regulate general corres­
pondence.9

9 In contrast, subsection (2) o f §2600 expressly provides for 
confidential attorney mail. While this issue was raised as a 
constitutional matter in the prisoners’ complaint, we recognized 
that the statute could be construed to govern this issue and 
accordingly advised the district court that it should abstain until 
the California Supreme Court decided a case then pending before it 
(Memorandum filed July 6, 1972, p. 14). In fact, the California 
court did decide that this provision of §2600 means what it says. 
See In re Jordan, 1 Cal.3d 930, 500 P.2d 873 (1972).

As to general correspondence, the only remotely relevant 
California state court decision assumes that prison officials have 
unrestricted censorship powers. See Yarish v. Nelson, 27 Cal. 
App.3d 893, 898, 104 Cal. Rptr. 205 (1972).



19

That §2600(4) was never intended to deal with general 
mail censorship is made clear by recent legislative history. 
In 1972, a bill was introduced specifically to amend 
§2600 to grant limited freedom from mail censorship 
(Senate Bill 1419). The bill passed the Legislature but 
was vetoed by Governor Reagan. The bill would have 
added an entirely new subsection to §2600, granting 
prisoners a right to correspond essentially without limita­
tion and subject to inspection only to search for 
contraband or to prevent commission of a crime.1 0

Until now, no one has ever suggested that § 2600(4) 
had anything whatever to do with general mail censor­
ship, and it is absurd to assert that the statute could 
dispose of the issues in this case. It is well settled that 
because of the duplication of effort and expense and 
attendant delay, abstention is appropriate only in nar­
rowly limited special circumstances where a state statute 
might reasonably be construed to avoid or modify the 
federal constitutional question. See Lindsey v. Normet, 
405 U.S. 56, 62, n.5 (1972); Lake Carriers’ Association v. 
MacMullan, 406 U.S. 498, 510-11 (1972). Such a 
construction must be a reasonably possible one, not a 
strained and fanciful one. “ [I] f a state statute is not 
fairly subject to an interpretation which will avoid or 
modify the federal constitutional question, it is the duty 
of a federal court to decide the federal question when 
presented to it.” Zwickler v. Koota, 389 U.S. 241, 251 
(1967), quoting from United States v. Livingston, 179 
F.Supp. 9, 12-13, affd , 364 U.S. 281; see also Harman v. 
Forssenius, 380 U.S. 528, 534-535 (1965); compare 
Reetz v. Bozanich, 397 U.S. 82, 86-87 (1970) (case could 10

10 The bill was attached as an Appendix to our Motion to 
Affirm or Dismiss previously filed in this Court.



20

clearly be decided on applicable and specific state 
constitutional provisions).

It makes no difference that this case involves a state 
correctional agency as opposed to some other state 
agency. The courts have uniformly found no basis for 
abstaining solely because the defendants were state prison 
officials.11 Appellants’ reliance on Preiser v. Rodriguez, 
411 U.S. 475, 93 S.Ct. 1827 (1973), is misplaced. That 
case had nothing to do with abstention. The Court in 
Rodriguez was faced with reconciling two federal sta­
tutes, the federal habeas statute, which required exhaus­
tion of state remedies, and 42 U.S.C. §1983, which did 
not. The Court held that if a prisoner is challenging “ the 
very fact or duration of confinement” and is seeking 
“immediate or more speedy release,” habeas corpus is the 
exclusive remedy. The Court distinguished prior prisoner 
cases that did not require resort to state courts, Wilword- 
ing v. Swenson, 404 U.S. 249 (1972), Haines v. Kerner, 
404 U.S. 519 (1972), Houghton v. Shafer, 392 U.S. 639

11 See, e.g., Shelton v. Union County Board o f Commissioners,
___  F .2 d ___ , No. 71-151 (7th Cir. Aug. 7, 1973); Jones v.
Metzger, 456 F.2d 854 (6th Cir. 1972); Lewis v. Kugler, 446 F.2d 
1343 (3d Cir. 1971); Wright v. McMann, 387 F.2d 519, 524-525 
(2d Cir. 1967); Rivers v. Royster, 360 F.2d 592 (4th Cir. 1966); 
Pierce v. LaVallee, 293 F.2d 233, 235-236 (2d Cir. 1961) (cited 
with approval in Cooper v. Pate, 378 U.S. 546 (1964); Clutchette 
v. Procunier, 328 F.Supp. 767 (N.D. Cal. 1971); Carothers v. 
Follette, 314 F.Supp. 1014 (S.D. N.Y. 1970). Judge Kaufman 
remarked in Wright v. McMann, supra, that “cases involving vital 
questions of civil rights are the least likely candidates for 
abstention.” 387 F.2d at 525. And Judge Mansfield in Carothers v. 
Follette, supra, pointed out that since, as here, the only basis for 
deciding the case was on federal constitutional grounds, “To 
abstain, therefore, would merely be to postpone the inevitable.” 
314 F.Supp. at 1019.



21

(1968), and Cooper v. Pate, 378 U.S. 546 (1964), on the 
ground that (as in the present case) “none of the state 
prisoners in those cases was challenging the fact or 
duration of his physical confinement itself, and none was 
seeking immediate or more speedy release from that 
confinement—the heart of habeas corpus.” 93 S.Ct. at 
1840. The Court also recognized that there are many civil 
rights cases in which the states have strong interests, yet 
initial resort to state courts is not required because no 
specific federal statute, like the habeas statute, requires 
going first to the state courts. 93 S.Ct. at 1838, n.10. See 
McNeese v. Board o f  Education, 373 U.S. 668 (1963) 
(school segregation);12 Damico v. California, 389 U.S. 
416 (1967) (welfare problems); Monroe v. Pape, 365 U.S. 
167 (1961) (police practices).

3. There is no clearly available 
comparable state remedy

Finally, appellants recognize that “the availability of a 
readily accessible and meaningful state remedy is a 
prerequisite to the application of the doctrine of absten­
tion” (Appellants’ Brief, p. 7, n.2). They assert that 
California provides such a remedy but, in fact, the 
availability of an adequate remedy is not at all clear. The 
state has a “civil death” statute (Penal Code § 2600) that 
apparently disables prisoners from maintaining actions,

12In McNeese, 373 U.S. at 674, the Court quoted with approval 
from Stapleton v. Mitchell, 60 F.Supp. 51, 55 (D. Kan. 1945):

“We yet like to believe that wherever the Federal courts sit, 
human rights under the Federal Constitution are always a 
proper subject for adjudication, and that we have not the 
right to decline the exercise of that jurisdiction simply 
because the rights asserted may be adjudicated in some other 
forum.”



22

like the present one, for injunctive relief. The only 
recognized remedy for California prisoners is habeas 
corpus. While habeas can be used to strike down plainly 
invalid regulations, see In re Jordan, 7 Cal.3d 930, 500 
P.2d 873 (1972), appellants have cited no authority 
indicating that the kind of injunctive relief granted by the 
district court here—requiring the submission of new 
regulations that protect the interests of all parties-would 
be available in California habeas. Further, there are real 
doubts as to the practical efficacity of the habeas remedy 
in California. See generally Bergesen, California Prisoners: 
Rights Without Remedies, 25 Stan. L. Rev. 1 (1973).13 In 
short, remitting appellees to the state courts would have 
caused delay, expense and the probable frustration of 
finding that no comparable remedy was available-all 
with no likelihood that the vague regulations could be 
authoritatively construed to eliminate the constitutional 
questions.

B. Abstention Should Not Be Ordered Now
Even if abstention would have been appropriate as an 

initial matter in the district court, assuming the proper

13 As one example, there is no clear or adequate provision for 
pretrial discovery in California habeas, and in fact discovery of the 
most relevant matters has been denied by the California courts. See 
Bergesen, supra, at 21-22, n. 159; 27-28. But in the present case 
appellees could not have proved their case without the discovery 
authorized by the Federal Rules o f Civil Procedure. As another 
example, there is no provision for maintaining a class action in 
California habeas, but this case was properly brought to obtain 
class relief under Rule 23 of the Federal Rules. Finally, there has 
apparently never been a reported case in which a prisoner has 
prevailed when the facts were in dispute, for the California courts 
use procedures that virtually guarantee finding the facts against the 
prisoner. See generally Bergesen, supra.



23

grounds had been timely raised by appellants, it would be 
pointless to order the court below to “stay its hand” 
now. As all this Court’s abstention cases indicate, the 
purpose of the doctrine is to avoid the needless confron­
tation of the state and federal systems. The doctrine is 
designed to avoid premature federal proceedings-with 
pleadings, responses by state officials, discovery, hearings 
on the merits and federal court orders running against 
state officials. But all this has already happened in the 
present case. Everything that abstention is designed to 
postpone has already occurred here-and it occurred 
without appellants’ having urged the grounds for absten­
tion they do in this Court. Moreover, appellants have not 
complained, either in the district court or in this Court, 
that any of the new regulations submitted by appellants 
and approved by the court below do not protect any of 
their legitimate interests. In these circumstances, when it 
is impossible to undo everything that has been done 
without appellants’ objection, it would make no sense to 
order abstention now.

n.
THE DISTRICT COURT PROPERLY INVALIDATED 
APPELLANTS’ FORMER MAIL CENSORSHIP 
REGULATIONS, AND THE NEW REGULATIONS 
APPROVED BY THE COURT BELOW FULLY 
PROTECT EVERY LEGITIMATE INTEREST OF 
APPELLANTS.

There is no contention in this case that prison officials 
may not inspect and read prisoner mail; that is not an 
issue the Court must here resolve. Nor is there any 
contention that officials may not censor the content of 
mail to protect prison security. The question is whether 
there are any limits to their censorship power. The issue



24

concerns the constitutionality of regulations under which 
prison guards censor and punish prisoners for the content 
of their communications—the words they use. As will be 
seen, infra, however, the only real controversy in correc­
tions today is whether officials should inspect and read 
mail at all, not what contents should be regulated.

In order to understand precisely what is at issue on 
this appeal, it is necessary to compare the regulations 
invalidated by the court below with the regulations 
given final approval by the court on July 20, 1973 
(Supp. A. 194-203). The difference between the 
former rules and the approved rules constitutes what the 
court below decided. Comparison of the rules shows that 
the net effect of the proceedings below was to invalidate 
the former rules prohibiting prisoners from writing letters 
in which they “unduly complain,” or “magnify griev­
ances” or express “inflammatory political, racial, reli­
gious or other views or beliefs,” or which are “defama­
tory” or “are otherwise inappropriate.” Except for these 
provisions, the substance of the former rules survived 
scrutiny and is contained in the rules given final approval 
by the court below. Therefore, the question for review 
here is whether the court below properly invalidated 
these provisions.14

14 Appellants’ Brief (pp. 21-22) makes a number of misleading 
references to regulations that are not at issue here. Thus, the rules 
prohibiting letters concerning “criminal activity,” or “obscene 
letters,” were neither challenged by appellees nor struck down by 
the court below. The same is true of the ban on “foreign matter” 
and “display or circulation” of “contraband” when “used to 
subvert prison discipline.” Further, the prohibitions of “escape 
plans” or plans for producing “explosives,” or “behavior which 
might lead to violence” were neither attacked by appellees nor 
invalidated by the district court.



25

The premise of these provisions was that communica­
tion by mail is a “privilege,” not a “right,” which may be 
granted or withheld in the discretion of prison officials 
(A. 48,64). We believe this is a faulty premise, for it is 
clear that the right to communicate by mail is not only 
guaranteed by the First Amendment, see Blount v. Rizzi, 
400 U.S. 410, 416 (1971); Lamont v. Postmaster 
General, 381 U.S. 301, 305 (1965),15 but is not lost 
simply by virtue of imprisonment.16 In any event, the 
“right-privilege” distinction has been definitively rejected 
as an analytic tool in deciding questions of important 
freedoms.17

15 The unanimous decisions in Blount and Lamont both quoted 
with approval Mr. Justice Holmes’ view that “the use of the mails is 
almost as much a part o f free speech as the right to use our 
tongues.” Milwaukee Social Democratic Publishing Co. v. Burleson, 
255 U.S. 407, 437 (1921). See also the opinion of Mr. Justice 
Brandeis, rejecting the view that use o f the mails is merely a 
privilege and not a right. 255 U.S. at 427.

16 See, e.g., Gray v. Creamer, 465 F.2d 179, 186 (3d Cir. 1972); 
Nolan v. Fitzpatrick, 451 F.2d 545 (1st Cir. 1971); Adams v. 
Carlson, 352 F.Supp. 882, 896 (E.D. 111. 1973); Palmigiano v. 
Travisono, 314 F.Supp. 776 (D. R.I. 1970); Carothers v. Follette, 
314 F.Supp. 1014, 1023 (S.D. N.Y. 1970); State ex rel. Thomasv. 
State of Wisconsin, 55 Wis.2d 343, 198 N.W.2d 675 (1972); cf 
Neal v. State o f Georgia, 469 F.2d 446, 450 (5th Cir. 1972); see 
generally Note, Prison Mail Censorship and the First Amendment, 
81 Yale L. J. 87 (1971); Stern, Prison Mail Censorship: A 
Non-Constitutional Analysis, 23 Hastings L. J. 995 (1972); Singer, 
Censorship o f Prisoners’ Mail and the Constitution, 56 A.B.A. J. 
1051 (1970). Indeed, even appellants profess to recognize the 
value, from a corrections viewpoint, of relatively free prisoner mail 
(A. 65—Policy Regarding Mail; Appellants’ Brief, p. 23, n. 7).

17 See, e.g., Morrissey v. Brewer, 408 U.S. 471,481-482 (1972); 
Graham v. Richardson, 403 U.S. 365, 374 (1971); Goldberg v. 
Kelly, 397 U.S. 254, 262 (1970); Landman v. Royster, 333 
F.Supp. 621, 644-645 (E.D. Va. 1971); Clutchette v. Procunier, 
328 F.Supp. 767, 779 (N.D. Cal. 1971); Gilmore v. Lynch, 319 
F.Supp. 105, 108 (N.D. Cal. 1970), affd sub nom. Younger v. 
Gilmore, 404 U.S. 15 (1971).



26

Appellants concede, as they must, that “a prisoner 
does not shed all his First Amendment rights at the 
prison gates” (Appellants’ Brief, p. 15).18 But instead of 
explaining the extent to which prisoners’ First Amend­
ment rights must be curtailed because of legitimate penal 
interests, appellants simply cite the famous dictum from 
Price v. Johnston, 334 U.S. 266, 285 (1948): “ Lawful 
incarceration brings about the necessary withdrawal or 
limitation of many privileges and rights, a retraction 
justified by the considerations underlying our penal 
system.” 19 This begs the question, which is what with­
drawals or limitations are “necessary” because of what 
penal “considerations.” Similarly, the “ test” proposed by 
appellants-whether the regulation “lacks support in any 
rational and constitutionally acceptable concept of a

18 See Cruz v. Beto, 405 U.S. 319 (1972); Cooper v. Pate, 378 
U.S. 546 (1964); O’Malley v. Brierley, A ll F.2d 785 (3d Cir.
1973); Remmers v. Brewer, 475 F.2d 52, 54 (8th Cir. 1973); Gray 
v. Creamer, 465 F.2d 179, 186 (3d Cir. 1972); Nolan v. 
Fitzpatrick, 451 F.2d 545 (1st Cir. 1971); Barnett v. Rodgers, 410 
F.2d 995, 1000 (D.C. Cir. 1969); Jackson v. Godwin, 400 F.2d 
529, 541 (5th Cir. 1968); Rowland v. Sigler, 327 F.Supp. 821 (D. 
Neb. 1971), aff’d 452 F.2d 1005 (8th Cir. 1971); Fortune Society 
v. McGinnis, 319 F.Supp. 901 (S.D. N.Y. 1970); Palmigiano v. 
Travisono, 317 F.Supp. 776 (D. R.I. 1970); Carothers v. Follette, 
314 F.Supp. 1014, 1023 (S.D. N.Y. 1970); Hillery v. Procunier,
___  F.Supp.___ , No. C-71 2150 SW (N.D. Cal. Aug. 16, 1973)
(3-judge court); State ex rel. Thomas v. State of Wisconsin, 55 
Wis.2d 343, 198 N.W.2d 675 (1972).

19Price had absolutely nothing to do with the rights of 
prisoners vis-a-vis prison officials. The case actually held that a 
federal court o f appeals has power to order a prisoner brought 
before the court to argue his own appeal. 334 U.S. at 278, 284. 
The decision sheds no light on the appropriate standards o f judicial 
review of prison regulations.



27

prison system”—also begs the question of what is 
“constitutionally acceptable.”

The district court assumed that prisoners’ First 
Amendment rights exist only to the extent that their 
exercise is consistent with legitimate penal interests. But 
the record here shows that the censorship rules were not 
in fact needed to serve any legitimate interest. The court 
below found that they are not “reasonable and neces­
sary” to serve any such interest, that they are “without 
any apparent justification” or any “conceivable justifica­
tion on the grounds of prison security” and that they 
“would not appear necessary to further any of these 
functions [of prisons in America].” 354 F.Supp. at 1096 
(emphasis by the court).

We recognize that First Amendment rights may have 
legitimate limits in the prison context. As Mr. Justice 
Powell has explained, “First Amendment rights must 
always be applied ‘in light of the special characteristics of 
the . .  . environment’ in the particular case.” Healy v. 
James, 408 U.S. 169, 180 (1972); see also Tinker v. Des 
Moines School District, 393 U.S. 503, 506 (1969). 
Keeping the prison environment in mind, and giving due 
deference to legitimate penal interests, we submit that 
the mail censorship provisions involved here are invalid 
under familiar principles: (1) they are overbroad in that 
they prohibit lawful and protected expression; (2) they 
are unduly vague, with the result that standardless and 
selective enforcement against unpopular causes and pris­
oners is encouraged; (3) they fail to give fair notice of 
punishable conduct; and (4) they lack essential procedur­
al safeguards against denial of First Amendment rights 
through error or arbitrariness.



28

1. Overbreadth and Prohibition 
o f  Lawful Expression

The rules invalidated by the district court are not 
“narrowly drawn” regulations representing “a considered 
legislative judgment” that particular expression “has to 
give way to other compelling needs of society.” See
Broadrick v. Oklahoma, ____U.S. ____, 41 U.S.L.W.
51 11, 51 14 (1973). The rules do not provide the 
necessary “sensitive tools” to carry out the “separation 
of legitimate from illegitimate speech.” See Blount v. 
Rizzi, 400 U.S. 410, 417 (1971); Speiser v. Randall, 357 
U.S. 513, 525 (1958). They disregard the established 
principle that “government may regulate in the [First 
Amendment] area only with narrow specificity” and that 
“precision of regulation must be the touchstone in an 
area so closely touching our most precious freedoms.” 
See NAACP v. Button, 371 U.S. 415, 433, 438 (1963); 
Keyishian v. Board o f  Regents, 385 U.S. 589, 603-604 
(1967); United States v. Robel, 389 U.S. 259, 265 
(1967); see generally Grayned v. City o f  Rockford, 408 
U.S. 104 (1972) (summary of overbreadth principles and 
precedents of this Court). They are “overbroad” in that 
they “sweep unnecessarily broadly and thereby invade 
the area of protected freedoms.” See NAACP v. Alabama 
ex rel. Flowers, 377 U.S. 288, 307 (1964) (Harlan, J.); see 
also Brandenburg v. Ohio, 395 U.S. 444, 448 (1969); 
Thornhill v. Alabama, 310 U.S. 88, 97 (1940); Grayned 
v. City o f  Rockford, supra, 408 U.S. at 114 (“in its reach 
it prohibits constitutionally protected conduct” ); United 
States v. Robel, supra, 389 U.S. at 266.

In short, the rules do not narrowly proscribe only 
expression that falls outside the ambit of the First 
Amendment. They prohibit a broad range of expression 
that is clearly entitled to First Amendment protection.



29

We are not dealing here with obscenity or libel or 
“ fighting words.” We are dealing with thoughts expressed 
in prisoner mail to relatives or friends-mainly outgoing 
letters, not matters circulated within the walls—that the 
prison censor disapproves as “unduly complaining,” 
“magnifying grievances” or “otherwise inappropriate.”

As one example of the overbroad sweep of these 
provisions, a principal use of the rules has been to 
suppress criticism of prison guards and their policies 
(regardless of whether such criticism is valid). At Folsom 
Prison officials bluntly announce that letters “criticizing 
policy, rules or officials” violate the rules, and appellant 
Procunier testified that rejecting letters for this reason is 
authorized by the rules (A. 50-52). Letters are rejected 
for “belittling” staff or “the judicial system” or, indeed, 
“anything connected with the Department of Correc­
tions” (A. 75). Further, letters “magnify grievances” 
within the meaning of the rule if they are “belittling the 
staff because of their incompetency” (Id.). Letters may 
also be rejected for containing “misinformation” or 
“prison gossip,” for being “derogatory to any individ­
u a ls”  or “ militant” or merely “inappropriate” 
(A. 91,92,81-86 and exhibits 1-8 to Morphis dep.). What 
the censoring guards consider “prison gossip” or “in­
appropriate” could well be a prisoner’s complaint of 
mistreatment or his fears thereof. As the court below 
found, the rules can be and are used to suppress prisoner 
grievances, and this obviously conflicts with the First 
Amendment rights of expression and to petition for 
redress of grievances.

This Court has frequently recognized that the First 
Amendment protects criticism of public officials, even 
when untrue. See, e.g., New York Times v. Sullivan, 316 
U.S. 254 (1964); Pickering v. Board o f  Education, 391 
U.S. 353, 570 (1968); Near v. Minnesota, 283 U.S. 697,



30

710 (1931 ).20 Here, the rules prohibit such criticism 
regardless of its truth. This has unfortunately been 
common in prison mail censorship, but now the lower 
courts have resoundingly condemned the suppression of 
prisoners’ complaints about official conduct or policies. 
See Nolan v. Fitzpatrick, 451 F.2d 545 (1st Cir. 1971); 
Sostre v. McGinnis, 442 F.2d 178, 201 (2d Cir. 1971); 
Worley v. Bounds, 355 F.Supp. 115 (W.D. N.C. 1973); 
Adams v. Carlson, 352 F.Supp. 882, 896 (E.D. 111. 1973); 
Fortune Society v. McGinnis, 319 F.Supp. 901 (S.D. 
N.Y. 1970);21 Palmigiano v. Travisono, 317 F.Supp. 776, 
788 (D. R.I. 1970);22 Carothers v. Follette, 314 F.Supp. 
1014 (S.D. N.Y. 1970); State ex rel. Thomas v. State o f  
Wisconsin, 55 Wis.2d 343, 198 N.W.2d 675 (1972) 
(holding that “letters critical of prison administration

20 In Near the Court struck down a statute authorizing 
injunctions against publishing a “defamatory” newspaper, pointing 
out that the “previous restraint” was imposed even without proof 
of the falsity o f charges “against public officers of corruption, 
malfeasance in office, or serious neglect of duty.” 283 U.S. at 710. 
The rules in the instant case similarly prohibit the writing of 
“defamatory” letters criticizing public officials, regardless of the 
truth of the criticism.

21 In Fortune Society the court said:
“Censorship is utterly foreign to our way o f life; it smacks of 

dictatorship. Correctional and prison authorities, no less than 
the courts, are not above criticism, and certainly they possess 
no power of censorship simply because they have the power 
of prison discipline.” 319 F.Supp. at 905.
22 In Palmigiano the court enjoined even reading prisoner mail 

because the censorship power was wrongfully being used “to 
suppress any criticism of the institution or institutional officials.” 
While Palmigiano involved prisoners awaiting trial, the officials 
subsequently entered into a consent decree enjoining all censorship 
of mail for all prisoners. See Morris v. Affleck, No. 4192 (D. R.I. 
April 20, 1972).



31

cannot be forbidden because they cause embarrassment 
or inconvenience to prison authorities” ). Thus, the rules 
prohibiting letters that “unduly complain,” “magnify 
grievances” or that are “defamatory,” to the extent they 
are not unconstitutionally vague (see section 2, infra), are 
overbroad and ban lawful expression.

Another example of overbreadth is the prohibition of 
“inflammatory political, racial, religious, or other be­
liefs.”23 It must be remembered that no limiting stand­
ards are given to mailroom staff to guide them in deciding 
whether a letter violates any particular rule. This rule 
thus bans any “view or belief’ that the censor considers, 
in his unguided discretion, to be “inflammatory.” It must 
also be remembered that we are not dealing with public 
demonstrations or speeches or communications to be 
circulated within the prison walls; we are dealing with 
letters from prisoners to relatives and friends outside the 
prison. We are unable to understand how such letters 
could reasonably be called “inflammatory” -except to 
the censoring guard who finds the views or beliefs 
distasteful. Even expression that might legitimately be 
suppressed inside the walls cannot be censored from

23 This is interpreted to ban “derogatory remarks,” “offensive 
language,” material that is “discriminatory or derogatory toward 
any individuals or races,” etc. Letters may also be placed in a 
prisoner’s file if they “reveal an inappropriate attitude toward 
prison staff or society or express radical political views” (A. 21, 
2 9 - Admission 7).

The prohibition o f “inflammatory . . .  views or beliefs” is 
contained in the general definition of “contraband” and covers 
letters “when not in the immediate possession o f the originator” 
(see Rule 1205(d) in Exhibit C to Appellants’ Brief, and A. 19, 
28-Admission 1). This apparently covers not only all incoming 
mail but also all outgoing prisoners’ letters when put in the mail 
box.



32

outgoing letters because it obviously would not cause 
disruption within the prison. By definition, outgoing 
expression of “views or beliefs” is not “directed to 
inciting or producing imminent lawless action” and is not 
“likely to produce such action.” Cf. Brandenburg v. 
Ohio, 395 U.S. 444, 447 (1969). Any regulation that fails 
to distinguish between abstract advocacy of unpopular 
ideas and incitement to action is invalid as overbroad 
because “it sweeps within its condemnation speech which 
our Constitution has immunized from governmental 
control.” Id. at 448. Lower courts have applied essen­
tially the same principle in prisoner mail cases and have 
held that officials cannot impose punishment for the 
contents of letters unless they can show a real danger to 
prison security.24 In Sostre v. McGinnis, 442 F.2d 178, 
202 (2d Cir. 1971), cert, denied sub nom. Sostre v. 
Oswald, 404 U.S. 1049 (1971), the court held that a 
prisoner could not be punished because of his own 
writings even though the warden (not just a mailroom 
guard) considered the views “inflammatory,” “racist” 
and insulting. The Sostre court, en banc, said that 
sanctioning punishment “would permit prison authorities 
to manipulate and crush thoughts under the guise of 
regulation. The intimidating threat of future similar 
punishment would chill a wide range of prisoner expres­
sion, not limited to that expression which [the warden]

24 See Guajardo v. McAdams, 349 F.Supp. 211 (S.D. Tex. 
1972), en banc hearing ordered, 476 F.2d 1285 (5th Cir. 1973); 
Palmigiano v. Travisono, 317 F.Supp. 776 (D. R.I. 1970); 
Carothers v. Follette, 314 F.Supp. 1014, 1025 (S.D. N.Y. 1970); 
cf. Goodwin v. Oswald, 462 F.2d 1237, 1244 (2d Cir. 1972); 
Nolan v. Fitzpatrick, 451 F.2d 545 (1st Cir. 1971); Long v. Parker, 
390 F.2d 816, 822 (3d Cir. 1968); Brenneman v. Madigan, 343 
F.Supp. 128, 141-142 (N.D. Cal. 1972).



33

might in fact deem dangerous enough to discipline.” 442 
F.2d at 202.

In short, the rules involved here, conferring an un­
checked censorship power,2S prohibit a wide range of 
expression that the state has no right to prohibit. But 
that is only one of their defects.

2. Vagueness

The rules not only, by their own terms, sweep lawful 
expression within their prohibition; they also suffer from 
the other vices of overly vague speech regulation. Thus, 
they discourage legitimate expression because prisoners 
who wish to obey the rules cannot know what is 
permitted as opposed to what may be punished. When 
does a complaint become “unduly complaining”? At 
what point does stating a grievance become “magnifying 
grievances”? Will criticism of the prison cook and the 
food he prepares be considered “defamatory” as “belit­
tling the staff because of their incompetency”? To which 
mailroom guard will a “political. . .  or other view or 
belief’ seem “inflammatory”? How can anyone possibly 
know what will be considered “otherwise inappropriate”?

These rules are “unduly vague, uncertain and broad” 
because, inter alia, they provide no “ascertainable stand­
ard of conduct.” Baggett v. Bullitt, 377 U.S. 360, 366, 
372 (1964). “Standards of permissible statutory vague­

25 In the Court’s recent and unanimous decision in Police 
Department o f Chicago v. Mosley, 408 U.S. 92 (1972), the Court 
remarked that

“above all else, the First Amendment means that government 
has no power to restrict expression because of its message, its 
ideas, its subject matter, or its content.. . .  The essence of 
this forbidden censorship is content control.” 408 U.S. at 95,
96.

See also Bachellar v. Maryland, 397 U.S. 564, 567 (1970), and 
authorities cited.



34

ness are strict in the area of free expression.” NAACP v. 
Button, 371 U.S. 415, 432 (1963); Smith v. California, 
361 U.S. 147, 151 (1959). The Court recently explained 
the basic principles in Grayned v. City o f  Rockford, 408 
U.S. 104 (1972):

“First, because we assume that man is free to steer 
between lawful and unlawful conduct, we insist that 
laws give the person of ordinary intelligence a 
reasonable opportunity to know what is prohibited, 
so that he may act accordingly. Vague laws may trap 
the innocent by not providing fair warning [cita­
tions omitted; see section 3, infra]. Second, if 
arbitrary and discriminatory enforcement is to be 
prevented, laws must provide explicit standards for 
those who apply them [citations omitted]. A vague 
law impermissibly delegates basic policy matters to 
policemen, judges, and juries for resolution on an ad 
hoc and subjective basis, with the attendant dangers 
of arbitrary and discriminatory application [cita­
tions om itted]. Third, but related, where a vague 
statute ‘abut[s] upon sensitive areas of basic First 
Amendment freedoms’ [citation omitted], it ‘oper­
ates to inhibit the exercise of [those] freedoms’ 
[citation omitted]. Uncertain meanings inevitably 
lead citizens to ‘steer far wider of the unlawful 
zone . . . than if the boundaries of the forbidden 
areas were clearly marked.’ [citations om itted].” 
408 U.S. at 108-109.
In the present case both the terms of the rules and the 

means of enforcing them are so imprecise and uncertain 
that prisoners who do not wish to risk guessing at what 
will be prohibited are deterred from expressing their true 
views. “When one must guess at what conduct or 
utterance” will be punished, “one will ‘steer far wider of 
the unlawful zone . . .’ ” Keyishian v. Board o f  Regents, 
385 U.S. 589, 604 (1967), quoting from Speiser v.



35

Randall, 357 U.S. 513, 526 (1958); see also Groyned v. 
City o f  Rockford, supra, 408 U.S. at 109; Baggett v. 
Bullitt, 377 U.S. 360, 367 (1964) (“men of common 
intelligence must necessarily guess at its meaning and 
differ as to its application”).

A further danger in the vagueness of the rules is that 
they “grant such standardless discretion to public offi­
cials that they are free to censor ideas and enforce their 
own personal preferences.” Groyned v. City o f  Rockford, 
supra, 408 U.S. at 113, n. 22; see also Shuttlesworth v. 
Birmingham, 394 U.S. 147, 150-151 (1969) (requiring 
“narrow, objective, and definite standards to guide the 
licensing authority” ); Cox v. Louisiana, 379 U.S. 536, 
557-558 (1965). Here, the rules delegate “standardless 
discretionary power to local functionaries, resulting in 
virtually unreviewable prior restraints on First Amend­
ment rights.” Cf Broadrick v. Oklahoma, ___ U.S. ___ ,
41 U.S.L.W. 5111, 51 15 (1973).26 It must also be 
remembered that unlike the cases cited above, the 
“functionaries” here are not judges, juries or elected 
public officials; here the arbiter of First Amendment 
expression is the prison mailroom guard, perhaps not the 
safest repository of absolute power.27

26 Unlike the situation in Broadrick and United States Civil
Service Commission v. National Association o f Letter Carriers, _
U .S .___ , 41 U.S.L.W. 5122, 5130 (1973), where more specific
administrative regulations narrowed the scope of arguably vague 
statutes, in the present case there are no narrowing standards at all 
and, indeed, appellant Procunier’s testimony (A. 50-52) approving 
open-ended interpretations of the rules actually expands and 
compounds their vagueness.

27 “Acton’s classic proverb about the corrupting influence of 
absolute power is true o f prison guards no less than o f other men.” 
Landman v. Peyton, 370 F.2d 135, 140(4thCir. 1966) (Sobeloff, 
J.).



36

A related consideration is that the vagueness of the 
rules “lends itself to selective enforcement against unpop­
ular causes.” NAACP v. Button , 371 U.S. 415 435 
(1963); see also Grayned v. City o f  Rockford, supra, 408 
U.S. at 108-109. The rules furnish prison censors with “a 
convenient tool for ‘harsh and discriminatory enforce­
ment . . . against particular groups deemed to merit their 
displeasure.’ ” Papachristou v. City o f  Jacksonville, 405 
U.S. 156, 170 (1972); Thornhill v. Alabama, 310 
U.S. 88, 97-98 (1940). Since the censor is “adrift upon a 
boundless sea” in approving various views, there is an 
“inevitable tendency to ban the expression of unpopular 
sentiments.” See Joseph Burstyn, Inc. v. Wilson, 343 U.S. 
495, 504-505 (1952). Indeed, as the record here shows, 
the censoring guards have used the broad rules against 
what must be, for them, the most unpopular cause of 
all—prison reform. Thus, the rules against letters that 
“unduly complain” or “magnify grievances” or are 
“defamatory” or “otherwise inappropriate” have been 
used principally to suppress criticism of officials and 
prison policy. The vagueness of the rules makes it a 
practical impossibility to enforce them evenhandedly, 
“resulting in virtually unreviewable prior restraints on 
First Amendment rights.” Cf Broadrick v. Oklahoma, 
supra, 41 U.S.L.W. at 5115.

3. No Fair Notice o f Punishable Conduct

Violation of the mail rules can result in a disciplinary 
report and severe disciplinary punishment up to and 
including confinement in segregation.28 But they author­

28 Appellants complain in their Brief (pp. 22-23) of the district 
court’s failure to distinguish the consequences o f violation of the 
rules, stating that “considerations which might justify rejection of 
a letter might well not justify the taking of disciplinary action.” It



37

ize punishment without giving fair notice of what is 
prohibited, and this violates due process of law. See 
Grayned v. City o f  Rockford, supra, 408 U.S. at 108-109; 
Papachristou v. City o f  Jacksonville, supra; Baggett v. 
Bullitt, supra, 377 U.S. at 367; Lanzetta v. New Jersey, 
306 U.S. 451, 453 (1939); Connally v. General Const. 
Co., 269 U.S. 385, 391 (1926)\ Landman v. Royster, 333 
F.Supp. 621, 654-656 (E.D. Va. 1971).29 There is no 
possible way for a prisoner to know when a guard may 
consider his letter to “unduly complain,” or as too 
critical or as “otherwise inappropriate,” etc. Forcing 
prisoners to “guess at the meaning” of these vague rules, 
on pain of severe disciplinary punishment, cannot be 
squared with due process. See Landman v. Royster, 
supra; cf. Keyishian v. Board o f Regents, supra, 385 U.S. 
at 604; Baggett v. Bullitt, supra.

is true that the availability of “less drastic means” to serve a state 
interest may indicate the invalidity of a regulation, Shelton v. 
Tucker, 364 U.S. 479, 488 (1960); see also Police Department of 
Chicago v. Mosley, 408 U.S. 92, 101, n. 8 (1972); United States v. 
Robel, 389 U.S. 258, 268 (1967); Keyishian v. Board of Regents, 
385 U.S. 589, 602 (1967); NAACP v. Alabama ex rel Flowers, 377 
U.S. 288, 307-308 (1964), and this principle has obvious applica­
tion to prison censorship rules, Note, Prison Mail Censorship and 
the First Amendment, 81 Yale L.J. 87, 94-105 (1971). But it is not 
for the district court to specify what consequences should attend 
what violations of appellants’ rules. The rules indiscriminately 
authorize punishment, or lesser consequences, for any violation, at 
the option o f the censoring guard. The rules’ failure to curb this 
absolute discretion is what the district court found invalid. In any 
event, the rules given final approval by the court do distinguish 
among consequences and thus eliminate appellants’ objection 
(Supp. A. 198, 202-203).

29 As cases like Baggett and Landman indicate, it makes no 
difference for due process purposes that the punishment is 
administrative and not criminal. Cf. Morrissey v. Brewer, 408 U.S. 
471 (1972); Goldberg v. Kelly, 397 U.S. 254 (1970).



38

4. Absence o f  Procedural Safeguards

Appellants’ mail censorship rules are a classic example 
of a “prior restraint” on expression. This Court has 
declared that any system of prior restraint is presump­
tively invalid and bears a “heavy burden” of justification. 
Organization for a Better Austin v. Keefe, 402 U.S. 415, 
419 (1971); see also Healy v. James, 408 U.S. 169, 184 
(1972). Nor is there any reason why principles disfavor­
ing prior restraints should not be applied to prison mail 
censorship. See generally Note, Prison Mail Censorship 
and the First Amendment, 81 Yale L.J. 87, 105-111 
(1971). Even if prisoners’ freedom of written expression 
may be limited by rejecting letters under narrowly drawn 
rules, censorship procedures are invalid “unless they 
include built-in safeguards against curtailment of consti­
tutionally protected expression . . .” Blount v. Rizzi, 400 
U.S. 410, 416 (1971); c f Freedman v. Maryland, 380 
U.S. 51 (1965); Speiser v. Randall, 357 U.S. 513, 521 
(1958). In the prison context it would not be necessary 
to have judicial review, with the burden of proof on the 
censor; but some elementary safeguards against adminis­
trative error or arbitrariness are clearly required. Very 
simple procedures were prescribed by the court below, 
354 F.Supp. at 1097, and by other courts in similar cases. 
See Guajardo v. McAdams, 349 F.Supp. 211 (S.D. Tex.
1972) , hearing en banc ordered, 476 F.2d 1285 (5th Cir.
1973) ; Sostre v. Otis, 330 F.Supp. 941, 944-946 (S.D. 
N.Y. 1971); c f  Laaman v. Hancock, 351 F.Supp. 1265 
(D. N.H. 1972); Burnham v. Oswald, 342 F.Supp. 880 
(W.D. N.Y. 1971). In response to the decision below, 
appellants proposed new rules providing for notice of 
disapproved letters and an administrative review (Supp. 
A. 197-198). These were approved as satisfying the 
district court (Supp. A. 211-212), and appellants have



39

not complained either below or in this Court that the 
new rules leave any of their legitimate interests unpro­
tected.

*  *  *

In short, the rules involved in this case violate all the 
applicable principles for permissible regulation of expres­
sion. In any other context they would be swiftly 
condemned. The question, then, is whether the district 
court erred in condemning them in the present case. We 
submit that appellants have failed utterly to suggest any 
valid reason why such gross departures from settled 
principles should be permitted here. We further submit 
that the regulations given final approval by the court 
below fully protect every legitimate interest of appel­
lants—and appellants have not asserted the contrary.

Again keeping in mind that First Amendment princi­
ples are applied “in light of the special characteristics of 
the . .  . environment,” Healy v. James, 408 U.S. 169, 180 
(1972); Tinker v. Des Moines School District, 393 U.S. 
503, 506 (1969), we submit that the general principles 
are sufficiently flexible to deal with administrative rules 
of correctional agencies, just as they are with all other 
governmental agencies. Of course, the results in particular 
cases will often be different because in many prisoner 
cases the officials will be able to justify certain restric­
tions by showing that “engaging in the forbidden conduct 
would ‘materially and substantially interfere with the 
requirements of appropriate discipline in the operation’ ” 
of the prison. Cf Healy, supra; Tinker, supra, 393 U.S. at 
509. But such a showing must be “factually supported by 
the record.” Cf. Healy, supra, 408 U.S. at 188; Branden­
burg v. Ohio, 395 U.S. 444, 447 (1969); Pickering v. 
Board o f Education, 391 U.S. 353, 570-573 (1968). 
Justification for extraordinary restrictions on the rights 
of individuals cannot be presumed. There must be 
evidence of likely interference with a legitimate correc­



40

tional interest.30 And there must be a showing that “the 
incidental restriction on alleged First Amendment free­
doms is no greater than is essential to the furtherance of 
that interest.” Cf. Healy, supra, 408 U.S. at 189-190, 
n. 20; Grayned v. City o f  Rockford, 408 U.S. 104, 
116-117 (1972) (“the regulation must be narrowly 
tailored to further the State’s legitimate interest” ); Police 
Department o f  Chicago v. Mosley, 408 U.S. 92, 101, n. 8 
(1972).31

Does the record in the present case support the 
substantial inroads on these principles claimed by appel­
lants as “within the discretion of prison administrators”?

30 “In our system, undifferentiated fear or apprehension of 
disturbance is not enough to overcome the right to freedom of 
expression.” Tinker, supra, 393 U.S. at 508. In United States v.
Savage, ___ F .2d ___, No. 72-3145 (9th Cir. Aug. 8, 1973), the
Ninth Circuit, relying on the district court decision in this case, 
held that interception of a prisoner letter was unconstitutional 
“absent a showing of some justifiable purpose of imprisonment or 
prison security.”

31 See also United States v. O’Brien, 391 U.S. 367, 377 (1968); 
United States v. Robel, 389 U.S. 258, 268 (1967); Keyishian v. 
Board of Regents, 385 U.S. 589, 602, 609 (1967); Shelton v. 
Tucker, 364 U.S. 479, 488 (1960). Specifically applying this 
principle in prisoners’ rights cases, see O’Malley v. Brierley, A ll
F.2d 785, 796 (3d Cir. 1973); McDonnell v. Wolff, ___ F .2d ____,
No. 72-1331 (8th Cir. Aug. 2, 1973); Goodwin v. Oswald, 462 
F.2d 1237, 1244 (2d Cir. 1972); Barnett v. Rodgers, 410 F.2d 995, 
1000 (D.C. Cir. 1969); Jackson v. Godwin, 400 F.2d 529, 541 (5th 
Cir. 1968); Rowland v. Sigler, 327 F.Supp. 821 (D. Neb. 1971),
aff’d 452 F.2d 1005 (8th Cir. 1971); Hillery v. Procunier, ___
F.Supp.___ , No. C-71 2150 SW (N.D. Cal. Aug. 16, 1973)
(3-judge court); State ex rel. Thomas v. State o f Wisconsin, 55 
Wis.2d 343, 198 N.W.2d 675 (1972).

As the court explains in Hillery v. Procunier, supra, the analysis 
of Judge Mansfield in Carothers v. Follette, 314 F.Supp. 1014, 
1024 (S.D. N.Y. 1970), is consistent with the above analysis: 
“That is, not only must the state show a compelling interest in 
limiting the prisoners’ rights, but the method it chooses to effect 
the limitation must be related—‘reasonably and necessarily’- t o  the 
end sought.” (slip op. at 11; emphasis by the Court).



41

In this case appellants presented no evidence, not even 
their own opinions, to show any legitimate justification 
for the rules in question. Assuming that they had some 
legitimate interest, they did not show that less restrictive 
means would be ineffective to protect it. On this record, 
there is “no plausible basis” for their action. Carothers v. 
Follette, 314 F.Supp. 1014, 1024 (S.D. N.Y. 1970); 
accord Worley v. Bounds, 355 F.Supp. 115 (W.D. N.C. 
1973); Adams v. Carlson, 352 F.Supp. 882, 896 (E.D. 111. 
1973).32 The findings of the court below are unassailable: 
that the rules are not “reasonable and necessary,” are 
“without any apparent justification” or any “conceivable 
justification on the grounds of prison security” and 
“would not appear necessary to further any of these 
functions [of prisons in America].” 354 F.Supp. at 1096 
(emphasis by the court).

The record is barren of any justification for appellants’ 
rules. Even if we look elsewhere for empirical justifica­
tion for appellants’ censorship rules, we can find none. 
All the secondary material is to the contrary. Thus, it is 
generally recognized that the sole purpose served by 
prison mail censorship is to protect the security of the 
institution by preventing the introduction of contraband 
(drugs, weapons, cash, etc.) and the formation of escape 
or criminal plans. See generally, California Board of

32 The need for prison officials to introduce evidence of 
justification, rather than rely on courts to speculate, was well 
explained by the Fourth Circuit:

“ [p] rison officials are not judges. They are not charged by law 
and constitutional mandate with the responsibility for 
interpreting and applying constitutional provisions, and they 
are not always disinterested persons in the resolution of 
prison problems. We do not denigrate their views but we 
cannot be absolutely bound by them.” Brown v. Peyton, 437 
F.2d 1228, 1232 (4th Cir. 1971).



42

Corrections, California Correctional System Study: Insti­
tutions, 40 (July, 1971) (the “Keldgord Report” )- The 
comprehensive Keldgord Report sharply criticized appel­
lants’ mail censorship policy on practical grounds, stating 
that “it is senseless to do pointless things.” The Report 
pointed out that it might make sense to inspect incoming 
mail for contraband, “but the practice of reading every­
thing that goes in and out is unnecessary and wasteful, 
and fosters inmate resentment.” Id. Indeed, as to 
“rehabilitating” prisoners, it is as likely that mail censor­
ship impedes rehabilitation as that it furthers it. See 
Note, Prison Mail Censorship and the First Am endm ent, 
81 Yale L.J. 87, 103 (1971), and authorities cited 
therein; see also Note, The Right o f Expression in Prison, 
40 S. Cal. L. Rev. 407 (1967); Singer, Censorship o f  
Prisoner Mail and the Constitution, 56 A.B.A.J. 1051 
(1970); Stem, Prison Mail Censorship: A Non-
Constitutional Analysis, 23 Hastings L.J. 995 (1972). In 
short, all the commentators urge that there be no 
censorship of content at all. The decision below, which 
continues to authorize censorship, begins to appear quite 
conservative.

A growing number of decisions have found, on the 
evidence in those cases, that the prison officials have no 
legitimate interest in censoring outgoing mail and have 
enjoined such censorship. In Guajardo v. McAdams, 349 
F.Supp. 211 (S.D. Tex. 1972), hearing en banc ordered, 
476 F.2d 1285 (5th Cir. 1973), the court found that 
“total censorship serves no rational deterrent, rehabilita­
tive of prison security purposes.” The court therefore 
enjoined all censorship of outgoing mail; incoming letters 
could be rejected only if they contained specific enumer­
ated contents (e.g. escape plots, codes, contraband, etc.) 
and if the prisoner was afforded a fair opportunity to 
protest any rejection. Accord, Lamar v. Kern, 349



43

F.Supp. 222 (S.D. Tex. 1972); Gates v. Collier, 349 
F.Supp. 881, 898-899 (N.D. Miss. 1972); Palmigiano v. 
Travisono, 317 F.Supp. 776 (D. R.I. 1970).33

Aside from judicial inquiries, responsible correctional 
authorities themselves have recently examined prison 
mail censorship practices and have found them quite 
unnecessary and even counterproductive. The prestigious 
National Advisory Commission on Criminal Justice 
Standards and Goals, which is composed of the country’s 
outstanding authorities in the field and was formed to 
advise the federal Law Enforcement Assistance Adminis­
tration on standards in making its grants, promulgated its 
Standards in January, 1973. Standard 2.15, on Free 
Expression and Association, unequivocally rejects the 
views advanced by appellants’ lawyers as unsound correc­
tional practice. Specifically on mail censorship, Standard 
2.17 flatly provides that “neither incoming nor outgoing 
mail should be read or censored.” For the convenience of 
the Court, we have reproduced the pertinent excerpts 
from the Standards and their commentary in the Appen­
dix to this brief, infra.

In addition, the Center for Criminal Justice of the 
Boston University School of Law has recently developed 
and published the Model Rules and Regulations on 
Prisoners’ Rights and Responsibilities (1973). Rules IC-1 
and IC-2 provide for unread and uncensored correspond­
ence, absent exceptional circumstances. That the Model

33 In addition, many states have voluntarily abandoned all 
censorship. See, e.g., Michigan Department o f Corrections, Depart­
mental Directive CC-10 (Oct. 17, 1972) (reported at 2 Prison Law 
Rptr. 177), stating that prisoners are “permitted to send uncen­
sored sealed letters to any person or organization.” See also 
Washington Office of Adult Corrections, Memorandum No. 70-5 
(Nov. 6, 1970); Pennsylvania Bureau of Correction, Administrative 
Directive No. 3 (effective Dec. 15, 1970).



44

Rules do not represent just an idealist’s notion of 
prisoners’ rights is illustrated by the Foreward; the 
Commissioner of Corrections of Massachusetts states that 
the Rules are “a long overdue instrument for the 
development of sound correctional policy,” provide “a 
viable blueprint from which a sound correctional manage­
ment system can be constructed,” and are “an invaluable 
tool” for correctional administrators striving to build 
“systems that operate fairly, thoroughly, and effec­
tively.”

In other words, the only real controversy in correc­
tions today concerns whether mail should be read at all, 
not what contents should be censored or punished. That 
is not an issue the Court must now resolve, but it surely 
indicates that appellants have failed to show any persua­
sive reasons for the overbroad, vague and restrictive rules 
involved in this case. Appellants have not identified any 
provision of the rules finally approved by the district 
court on July 20, 1973 (Supp. A. 194-203), that they 
claim does not adequately protect legitimate state inter­
ests. We submit that their interests are more than 
adequately protected by the approved rules; and the 
judgment below should be affirmed.

in.
THE DISTRICT COURT PROPERLY INVALIDATED 
APPELLANTS’ FORMER ABSOLUTE PROHIBITION 
AG AINST USE BY ATTORNEYS OF LAW 
STUDENT OR PARALEGAL INVESTIGATORS TO 
INTERVIEW PRISONERS ON THEIR BEHALF, AND 
THE NEW REGULATION APPROVED BY THE 
COURT BELOW FULLY PROTECTS EVERY LEGIT­
IMATE INTEREST OF APPELLANTS

Once again, in order to understand what is at stake on 
this appeal, it is necessary to compare the former rule



45

invalidated by the district court with the rule given final 
approval on July 20, 1973.34 Only then can it be seen 
exactly what the court decided and what appellants have 
actually been ordered to do. The former rule authorized 
attorneys representing prisoners to use investigators for 
interviewing prisoners, but limited the class to state- 
licensed investigators and members of the State Bar-and 
no others. Thus, an attorney could not even send a 
student or assistant as a messenger to have papers signed. 
As appellants state (Brief, p. 24), after the decision below 
but before the final order, they voluntarily opened the 
class to include law students certified under the rules of 
the State Bar. This is reflected in the final order (Supp. 
A. 198). The only other addition to the class of the 
former rule consists of “legal paraprofessionals certified 
by the State Bar or other equivalent legal professional 
body and sponsored by the attorney of record” (Id.). At 
the present time there is no paraprofessional certification 
procedure by the State Bar or, so far as we are aware, by 
any other legal professional body in California.35

34 Appellants’ Brief seriously misrepresents the record and 
distorts the issue presented. Although their Brief was filed about a 
month after the district court’s final order of July 20, 1973 (Supp. 
A. 211-212), appellants fail to mention the provisions of that order 
and make a number of misleading and erroneous assertions about 
what the court below ordered. Thus, appellants state (p. 24-25) 
that they were ordered to include all full-time legal assistants 
among the class of attorneys’ investigators authorized to interview 
prisoners. In their statement of the Question Presented (p. 2), they 
claim the class includes “full time lay employees” o f attorneys. 
They further state (p. 26-27) that “all law students” and “other 
paraprofessionals” must be accorded all “attorney’s privileges.” 
These assertions are untrue.

35 In July 1973, the California State Bar issued a report 
recommending the adoption of a comprehensive new statute, to be 
entitled the “Certified Attorney Assistant Act”, which would set



46

Accordingly, appellants are not now required to admit 
any paraprofessionals as investigators. The only law 
students they must admit are those receiving State Bar 
certification, and appellants took this step voluntarily 
and not by court order. Finally, it is misleading for 
appellants to emphasize that they were ordered to permit 
“confidential” communications by “non-attorneys” , 
because the issue tried below was whether appellants may 
arbitrarily bar all law students and paralegal persons from 
acting on behalf of attorneys, not whether all such 
communications must be confidential.36 In summary, the 
relief actually ordered by the district court is very narrow 
and should, under the precedents in this Court and on the 
record here, be affirmed.

The constitutional prohibition against depriving a 
person of liberty without due process of law has, as a 
necessary corollary, the requirement that prisoners be

up standards for certifying legal assistants. State Bar o f California, 
Reports (July, 1973). The recommendation was based on detailed 
investigation and a finding that “Increased use by lawyers of the 
services of legal assistants will be necessary in order for members of 
the State Bar to continue to furnish quality legal services to the 
public at reasonable cost.” Id. at 2. Directly applicable to the 
present case was the Bar’s finding that “As lawyers become more 
efficient and extend their abilities through the use o f well-trained 
Certified Attorney Assistants, additional thousands of persons will 
receive quality legal services in situations where they otherwise 
would not have received legal assistance at all” Id. at 4. (emphasis 
added)

36 We assume that the attorney-client privilege o f California 
Evidence Code §952 would cover communications between 
prisoners and attorneys’ investigators. But appellants’ rule finally 
approved by the court below omitted, over appellees’ objection, 
the word “confidential”, thus creating a possible ambiguity as to 
appellants’ understanding of what they have been ordered to do 
(see Supp. A. 209).



47

afforded access to the courts to set aside convictions 
obtained in violation of their federal constitutional rights 
or to remedy invasions of their constitutional rights while 
incarcerated.37 It has long been clear that this paramount 
right of prisoner access to the courts to present their 
constitutional claims invalidates prison regulations which 
effectively impair that right. Ex parte Hull, 312 U.S. 546 
(1941). Not only may state officials not obstruct access 
to the courts, but “due process requires, at a minimum, 
that absent a countervailing state interest o f  overriding 
significance, persons forced to settle their claims of right 
and duty through the judicial process must be given a 
meaningful opportunity to be heard.” Boddie v. Con­
necticut, 401 U.S. 371, 377 (1971) (emphasis added). 
The Court in Boddie, relying on precedents established in 
the criminal defense context, reasoned that where the 
“judicial proceeding becomes the only effective means of 
resolving the dispute at hand . . .  denial of a defendant’s 
full access to that process raises grave problems for its 
legitimacy.”38

In Johnson v. Avery, 393 U.S. 483 (1969), the Court 
recognized that effective access to the courts for many

37 See, e.g., Kaufman v. United States, 394 U.S. 217, 226 
(1969); Johnson v. Avery, 393 U.S. 483 (1969); Mooney v. 
Holohan, 294 U.S. 703, 713 (1935); see also McDonnell v. Wolff,
___  F.2d ___ , No. 72-1331 (8th Cir. Aug. 2, 1973); Nolan v.
Scafati, 430 F.2d 548, 551 (1st Cir. 1970); Landman v. Royster, 
333 F.Supp. 621, 656 (E.D. Va. 1971); Cross v. Powers, 328 
F.Supp. 899, 901 (W.D. Wis. 1971). The Seventh Circuit’s recent
decision in Adams v. Carlson,___ F .2d ___, 13 Cr. L. Rptr. 2532
(7th Cir. Aug. 23, 1973), contains a useful analysis of restrictions 
on prisoner access to the courts.

38 United States v. Kras, 409 U.S. 434 (1973), does not limit 
the application of Boddie to this case, for here, like Boddie and 
unlike Kras, a “judicial proceeding” is “the only effective means” 
o f challenging a prisoner’s conviction or sentence or the constitu­
tionality of his treatment while in prison.



48

prisoners is meaningless unless some form of legal 
assistance is provided. The Court emphasized that “ for 
the indigent as well as for the affluent prisoner, post­
conviction proceedings must be more than a formality.” 
393 U.S. at 486. The Court held that unless “the state 
provides some reasonable alternative to assist inmates in 
the preparation of petitions for post-conviction relief’ it 
may not bar inmates from furnishing assistance to other 
inmates. Mr. Justice White, dissenting, would not have 
struck down the anti-prisoner assistance regulation but 
would have ruled in a proper case that “the state must 
provide access to the courts by insuring that those who 
cannot help themselves have reasonably adequate assist­
ance in preparing their post-conviction papers.” 393 U.S. 
at 502. Indeed, Mr. Justice White’s opinion in Johnson 
states what is basically at stake in the instant case:

“The illiterate or poorly educated and inexperienced 
indigent cannot adequately help himself and . . . un­
less he secures aid from some other source he is 
effectively denied the opportunity to present to the 
courts what may be valid claims for post-conviction 
relief.” 393 U.S. at 498.
In Younger v. Gilmore, 404 U.S. 15 (1971), this Court 

affirmed a decision requiring California prisons to provide 
law libraries or other means of meeting the legal needs of 
prisoners. Gilmore v. Lynch, 319 F.Supp. 105 (N.D. Cal. 
1970). If state officials are required to take affirmative 
action or adopt expensive programs to provide adequate 
legal resources, as in Gilmore, it follows, a fortiori, that 
they may not maintain regulations that arbitrarily pre­
clude the use of available legal assistance in the 
representation of prisoners.

This Court’s decisions in Gilmore, Boddie and John­
son, and the earlier decisions in Griffin v. Illinois, 351 
U.S. 12 (1956), and Douglas v. California, 372 U.S. 353



49

(1963), teach that the states cannot deny to indigents the 
necessary means for obtaining a fair hearing of their 
possibly valid constitutional claims. The Court’s decisions 
have recognized practical reality not merely by striking 
down absolute barriers to the courts but by declaring that 
effective access to the judicial process is required when 
fundamental interests like liberty are at stake. For 
example, in Douglas, as here, the prisoner was not totally 
barred from filing his appeal; and in Johnson, as here, he 
was not totally barred from filing his writ. But in both 
cases, as here, the state practice prevented effective use of 
the judicial process. In Gilmore, the State was required to 
take affirmative action to assure access to the courts. 
Jailhouse lawyers were permitted by Johnson because of 
the function they serve-as tools enabling prisoners to 
bring their claims before the courts. Mr. Justice White 
noted in Johnson that “unless the help the indigent gets 
from other inmates is reasonably adequate for the task, 
he will be as surely and effectively barred from the courts 
as if he were accorded no help at all.” 393 U.S. at 499. 
As foreseen, the district court in the present case found 
that other tools are needed as well. Just as the paramount 
interest in making the courts fully available for the 
resolution of constitutional claims compelled the results 
in Johnson and Gilmore, it requires affirmance of the 
decision in the present case. Post-conviction remedies 
theoretically available to all in California are not in fact 
available if the State denies indigents available legal 
assistance to use them. Because the State denies the 
prisoner both his livelihood (e.g., to hire a lawyer or a 
private investigator) and his liberty (e.g., to consult a 
public defender or an OEO legal services attorney and 
their paralegal assistants), the State has erected very 
effective barriers to the judicial process—unless the State 
permits available alternative sources of legal help.



50

Access to the courts necessarily involves the right to 
seek and receive assistance from attorneys. The courts 
have consistently invalidated action by prison officials 
that impeded communication and consultation either by 
mail or in person.39

While appellants argue that their rule in this case, 
completely forbidding the use of law students or para­
legals for interviewing, does not impair access to the 
courts,40 the uncontested evidence on which the court 
below based its findings of fact was that the rule, in 
conjunction with the remoteness of most California 
prisons, “makes personal visits to inmate-clients so time 
consuming and inconvenient that attorneys are reluctant 
to make such visits.” 354 F.Supp. at 1098. Preparation of 
this case was itself hindered and delayed because appel­
lants refused to permit counsel for appellees to use 
supervised law students to interview their clients (Supp. 
A. 186). The court below concluded that the rule 
arbitrarily denied necessary legal assistance to indigent 
prisoners.

39 See, e.g., McDonnell v. Wolff,___  F .2 d ___ , No. 72-1331
(8th Cir. Aug. 2, 1973), affg 342 F.Supp. 616 (D. Neb. 1972); 
LeVier v. Woodson, 443 F.2d 360 (10th Cir. 1971); Nolan v. 
Scafati, 430 F.2d 548 (1st Cir. 1970); Coleman v. Peyton, 362 
F.2d 905, 907 (4th Cir.), cert, denied, 385 U.S. 905 (1966); cf 
Moore v. Ciccone, 459 F.2d 574 (8th Cir. 1972); Smith v. Robbins, 
454 F.2d 696 (1st Cir. 1972); Morales v. Turman, 326 F.Supp. 677 
(E.D. Tex. 1971); Marsh v. Moore, 325 F.Supp. 392, 395 (D. Mass. 
1971); In re Jordan, 1 Cal.3d 930 (1972). In Adams v. Carlson,
___ F .2 d ___, 13 Cr. L. Rptr. 2532 (7th Cir. Aug. 23, 1973), a
case quite analogous to the present one, the Seventh Circuit 
recently struck down a prison restriction requiring attorneys to 
interview their clients through a screen, reasoning that the 
restriction unjustifiably interfered with the ease o f personal 
interviewing.

40 Appellants’ contention that there is no right to appointed 
counsel in post-conviction matters completely misses the point. 
Indeed, as the Court recognized in Johnson v. Avery, 393 U.S. 483, 
489, 490 (1969), the fact that state-provided attorneys are not 
generally available in these matters increases the need for law 
student, paralegal and other voluntary assistance.



51

As the record shows and as is obvious, attorneys 
simply cannot agree to represent very many prisoners, 
with little or no compensation, if they must take full 
days to journey to remote California prisons personally 
to interview clients or prospective clients. Denying the 
right to use law students or paralegal interviewers means, 
in many cases, the difference between the prisoner having 
counsel and not having counsel. “ [T]he inmate’s ability 
to present his case to the court necessarily suffers 
substantially from the absence of professional repre­
sentation.” 354 F.Supp. at 1098.

In attempting to give a prisoner effective represen­
tation, or in seeking the information required to advise 
him intelligently, an attorney may need the services or 
assistance of others. In recent years lawyers have come to 
rely more and more on the aid of paraprofessionals whom 
they have trained and who, working under their super­
vision, are a vital part of the legal team.

The use of paraprofessionals has received little atten­
tion from the courts, but has been encouraged by many 
professional organizations, including the American Bar 
Association. The new Code of Professional Responsibility 
adopted by the ABA specifically permits a lawyer to 
delegate tasks to lay persons:

“A lawyer often delegates tasks to clerks, sec­
retaries, and other lay persons. Such delegation is 
proper if the lawyer maintains a direct relationship 
with his client, supervises the delegated work and 
has complete professional responsibility for the 
work product. This delegation enables a lawyer to 
render legal services more economically and effi­
ciently.” Canon 3, Ethical Consideration 3-6.

In a speech before the National Conference on the 
Judiciary at Williamsburg in 1971, President Nixon said 
that “We should open our eyes-as the medical profession



52

is doing—to the use of para professionals in the law.” 
N.Y.L.J., March 12, 1971, p. 4. See also Brickman, 
Expansion o f  the Lawyering Process Through A New 
Delivery System: The Emergence and State o f  Legal 
Paraprofessionalism, 71 Col. L. Rev. 1153 (1971).

If the use of paraprofessionals is merely desirable as a 
general matter, it is absolutely essential if prison inmates 
are to receive vital assistance in obtaining access to the 
courts. Most prisoners are indigent, and lack the funds 
needed to retain a lawyer or even to pay for a single 
interview. They are dependent on the assistance of 
attorneys and organizations willing and able to represent 
them without fee. The supply of attorneys able to serve 
in this capacity is obviously limited. See Johnson v. 
Avery, supra, 393 U.S. at 494; c f  In re Tucker, 5 Cal.3d 
171, 183 (1971). Courts and commentators have recog­
nized that providing indigent prisoners with essential legal 
services is a burdensome problem to the Bar, and have 
concurred in recommending the utilization of laymen and 
law students to help fill the gap. See, e.g., Johnson v. 
Avery, supra, 393 U.S. at 489, 498;41 Argersinger v. 
Hamlin, 407 U.S. 25, 40 (1972);42 Novak v. Beto, 453 
F.2d 661, 664 (5th Cir. 1971) (encouraging any source of 
legal assistance to prisoners, “whether it be licensed or 
unlicensed to practice law”); Hooks v. Wainwright, 352 
F.Supp. 163 (M.D. Fla. 1972); Gilmore v. Lynch, 319 
F.Supp. 105, 110 (N.D. Cal. 1970), a ff’d sub nom. 
Younger v. Gilmore, 404 U.S. 15 (1971); Jacob &

41 “The cooperation and help of laymen, as well as of lawyers, is 
necessary if the right o f ‘ [r] easonable access to the courts’ is to be 
available to the indigents among us.” (Douglas, J., concurring).

42 “Law students as well as practicing attorneys may provide an 
important source of legal representation for the indigent” 
(Brennan, J., concurring).



53

Sharma, Justice After Trial: Prisoners’ Need for Legal 
Services in the Criminal-Correctional Process, 18 Kan. L. 
Rev. 493 (1970).

Using law students and paralegal persons in counseling 
prisoners saves attorneys the considerable time that is 
required by personal visits to distant institutions and in 
waiting even at nearby prisons (Supp. A. 184-186). 
Following an attorney’s detailed instructions, a para- 
professional assistant can obtain essential facts from the 
prisoner, and transmit the attorney’s advice or recom­
mendations to him.43 Communication by mail is no 
substitute for personal communication, where careful 
questioning can elicit the essential relevant facts that few 
prisoners are able to present on their own.44 Obtaining 
the same complete details by mail is often impossible, or 
requires a prolonged exchange of queries and responses. 
Nor does the mail permit the assessment of credibility, an 
essential element in any decision whether to render 
voluntary assistance.

The American Bar Association recognizes the value of 
using law student services for these purposes, stating that 
the lawyer

43 Appellants’ rule permits visits by state-licensed investigators, 
but their services are o f course unavailable to indigent inmates who 
cannot pay their fees. Moreover, their aid is less valuable in this 
context than that of the paraprofessional who works closely with 
the attorney, and whose training is directed toward awareness of 
specific legal issues.

44“ [T]he most important part o f a legal assistance plan is not 
the law books or library, or the availability of decisions, but the 
opportunity to consult with an attorney, or at least a person o f  
good common sense and experience who can, in a straightforward 
and complete manner, set forth the inmate’s claim in under­
standable fashion.” Stevenson v. Mancusi, 325 F.Supp. 1028,1032  
(W.D.N.Y. 1971).



54

. . may avail himself of the assistance of the law 
student in many of the fields of the lawyer’s work, 
such as examination of case law finding and inter­
viewing witnesses,. . . delivering papers, conveying 
important messages, and other similar matters.” 
Canon 3, Ethical Consideration 3-6, footnote 3.

The Rules for Practical Training o f  Law Students 
promulgated by the California State Bar Board of 
Governors45 authorize supervised law students to engage 
in a wide range of activities including

“Conducting investigations and interviewing clients 
and witnesses for the purpose of ascertaining facts 
and informing the supervising lawyer thereof.” Rule 
VII.C.

But none of these activities was permitted by appellants.
There is no dispute as to the need to utilize law 

students to assist California prisoners. Indeed, many law 
school programs authorized by appellants send sub­
stantial numbers of students into the prisons (A. 61-62). 
The students in such programs, however, are not closely 
supervised by attorneys and could not meet the standards 
of State Bar certification of law students (A. 113-114; 
A. 35-36; A. 62; Supp. A. 188). Nor do appellants make 
any inquiry into the students’ qualifications or subject 
them to any security clearance (A. 62). This shows the 
arbitrariness of appellants’ rule involved here, which 
allows interviews by essentially unsupervised students in 
school programs while flatly prohibiting interviews by 
law student assistants closely supervised by attorneys. 
The rule also arbitrarily discriminates against law students 
supervised by attorneys with organizations like the 
NAACP Legal Defense Fund or the American Civil

45 State Bar of California Reports (Feb. 1970).



5 5

Liberties Union, since such organizations often deal with 
problems outside the scope of the school programs—e.g., 
problems of prison reform such as the instant case.

Appellants’ rule prohibiting interviews by paralegal 
assistants, especially law students, thus excludes a signif­
icant source of legal assistance to prisoners. As the 
California Bar found, n. 35, supra, and as the record here 
shows (A. 126-130), there is a growing supply of highly 
trained and academically qualified paralegal personnel. 
See also Larson, Legal Paraprofessionals: Cultivation o f a 
New Field, 59 A.B.A.J. 631 (1973) (Minnesota program). 
But these persons are completely barred by appellants’ 
rule. In view of the unmet need for legal assistance, the 
rule is an invalid infringement on the fundamental right 
of access to the courts. See Younger v. Gilmore, 404 U.S. 
15 (1971); Johnson v. Avery, 393 U.S. 483 (1969)\Mead 
v. Parker, 464 F.2d 1108, 1110 (9th Cir. 1972). In 
Johnson v. Avery, supra, this Court acknowledged a 
danger to prison discipline presented by “jailhouse 
lawyers” but nevertheless held invalid a regulation barring 
them from assisting other prisoners seeking access to the 
courts. 393 U.S. at 488. Surely the burden of justifying a 
prohibition against consulting trained and supervised 
assistants to lawyers should be at least as great as the 
burden of justifying a bar against consulting an untutored 
“jailhouse lawyer.”46

46 The courts have uniformly held that the burden o f justifying 
a rule impairing access to the courts rests on the prison officials,
not the prisoners. See, e.g., McDonnell v. W olff,___  F .2 d ___ ,
No. 72-1331 (8th Cir. Aug. 2, 1973); Novak v. Beto, 453 F.2d 661, 
664 (5th Cir. 1971); Wainwright v. Coonts, 409 F.2d 1337, 1338 
(5th Cir. 1969); Van Erman v. Schmidt, 343 F.Supp. 337, 379 
(W.D. Wis. 1972); Cross v. Powers, 328 F.Supp. 899, 904 (W.D. 
Wis. 1971).



56

The district court gave more than adequate deference 
to any legitimate interest of appellants. It accepted 
without scrutiny the offhand opinion of appellant Pro- 
cunier (A. 63-64), that uncontrolled use of investigators 
created security problems by letting in “some people we 
chose not to have in our institutions” . There was no 
proof of involvement of unlicensed investigators in any 
incidents (A. 63; A. 35-36—answer to interrogatory 7), 
and no showing of even a “very distant possibility of 
harm” arising from their admission to prisons. Cf. United 
Mine Workers v. Illinois State Bar Association, 389 U.S. 
217, 223 (1967). Certainly there was nothing to indicate 
that use of closely supervised and Bar-certified students 
or paraprofessionals would interfere with any legitimate 
interest of appellants. The final order of the district court 
imposes stringent safeguards on the use of paralegals 
(Supp. A. 198-200). The relief ordered by the Court 
below was the most restrained possible, and appellants 
have offered no reason for overturning it.

In the only other case squarely in point, A rif v. McGrath, No. 
71-C-1388 (E.D. N.Y. Dec. 9, 1971), die court held that the New 
York City Department of Corrections had impaired the prisoners’ 
right to counsel by refusing to allow them to consult with their 
attorney’s non-admitted assistants. The court found that consulta­
tion with lay assistants was necessary to implement “the right of 
parties in the federal courts to conduct their case ‘personally or by 
counsel’. 28 U.S.C. Section 1654.” (slip opinion pp. 21-22). It 
ordered the defendants to “permit visits to the plaintiffs by law 
students, law school graduates or investigators authorized in 
writing by their attorneys” and directed them not to “monitor or 
eavesdrop on such visits.” (slip op. p. 23).



57

CONCLUSION

For the reasons stated, the judgment of the district 
court should be affirmed.

Respectfully submitted,

WILLIAM BENNETT TURNER 
LOWELL JOHNSTON 
JULIAN FOWLES 

12 Geary Street
San Francisco, California 94108

ALICE DANIEL
University of California 
Hastings College of the Law 
198 McAllister Street 
San Francisco, California 94102

MARIO OBLEDO 
SANFORD JAY ROSEN

Mexican American Legal Defense 
and Educational Fund, Inc. 

145 Ninth Street 
San Francisco, California 94102

ANTHONY G. AMSTERDAM 
Stanford Law School 
Stanford, California 94305

JACK GREENBERG 
JAMES M. NABRIT, III 
STANLEY A. BASS 

10 Columbus Circle 
New York, New York 10019

Attorneys for Appellees



la

APPENDIX

Pertinent Excerpts from the Standards o f the 
National Advisory Commission on Criminal 

Justice Standards and Goals 
(Jan. 1973)

STANDARD 2.15
FREE EXPRESSION AND ASSOCIATION

Each correctional agency should immediately develop 
policies and procedures to assure that individual 
offenders are able to exercise their constitutional right of 
free expression and association to the same extent and 
subject to the same limitations as the public-at-large. 
Regulations limiting an offender’s right of expression and 
association should be justified by a compelling state 
interest requiring such limitation. Where such justifica­
tion exists, the agency should adopt regulations which 
effectuate the state interest with as little interference 
with an offender’s rights as possible.

* * * * *

Justification for limiting an offender’s right of expres­
sion or association would include regulations necessary to 
maintain order, or to protect other offenders, correc­
tional staff, or other persons from violence, or the clear 
threat of violence. The existence of a justification for 
limiting an offender’s rights should be determined in light 
of all the circumstances including the nature of the 
correctional program or institution to which he is 
assigned.

Ordinarily, the following factors would not constitute 
sufficient justification for an interference with an 
offender’s rights unless present in a situation which 
constituted a clear threat to personal or institutional 
security.



2a

1. Protection of the correctional agency or its staff 
from criticism, whether or not justified.

2. Protection of other offenders from unpopular ideas.
3. Protection of offenders from views correctional 

officials deem not conducive to rehabilitation or other 
correctional treatment.

4. Administrative inconvenience.
5. Administrative cost except where unreasonable and 

disproportionate to that expended on other offenders for 
similar purposes.

Correctional authorities should encourage and facili­
tate the exercise of the right of expression and associa­
tion by providing appropriate opportunities and facilities.
[Commentary omitted]

STANDARD 2.17 
ACCESS TO THE PUBLIC

Each correctional agency should immediately develop 
and implement policies and procedures to fulfill the right 
of offenders to communicate with the public. Correc­
tional regulations limiting such communication should be 
consistent with Standard 2.15. Questions of rights of 
access to the public arise primarily in the context of 
regulations affecting mail, personal visitation, and the 
communications media.

Mail. Offenders should have the right to communicate 
or correspond with persons or organizations and to send 
and receive letters, packages, books, periodicals, and any 
other material that can be lawfully mailed. The following 
additional guidelines should apply:

1. Correctional authorities should not limit the 
volume of mail to or from a person under supervision.

2. Correctional authorities should have the right to 
inspect incoming and outgoing mail, but neither incoming



3 a

nor outgoing mail should be read or censored. Cash, 
checks, or money orders should be removed from 
incoming mail and credited to offenders’ accounts. If 
contraband is discovered in either incoming or outgoing 
mail, it may be removed. Only illegal items and items 
which threaten the security of the institution should be 
considered contraband.

3. Offenders should receive a reasonable postage 
allowance to maintain community ties, (emphasis added) 

* * * * *
Commentary

* * * * *

Mail. In censoring and regulating mail, correctional 
authorities have not limited themselves to keeping out 
harmful or potentially dangerous objects or substances. 
The censorship of mail all too often has been utilized to 
exclude ideas deemed by the censor to be threatening or 
harmful to offender or critical of the correctional agency. 
These efforts result in the diversion of manpower from 
other tasks and, to avoid excessive manpower drains, 
limitations on the volume of correspondence permitted. 
Censorship and limitations on correspondence directly 
generate inmate hostilities and serve to make correctional 
progress more difficult.

Courts began to look critically at this process when it 
came to their attention that correctional authorities were 
limiting access to courts. Instances of failure to mail 
complaints, invasion of privileged attorney-client com­
munications, and reprisals against inmates for attempting 
to send out information about deficient conditions were 
documented. Limitations on access to religious material 
also were discovered and criticized.

Contraband must be excluded from correctional 
institutions to preserve their security and good order by



4 a

limiting the development of inmate power groups that 
often results from acquisition of contraband. The 
standard authorizes the correctional administrator to 
inspect incoming and outgoing mail for contraband but 
not to read or censor the contents.

Correctional authorities have a duty to insure that 
offenders are able to correspond with members of the 
public. A reasonable postage allowance should be pro­
vided each offender as part of an affirmative program to 
help him retain community ties.