Baker v. Beto Supplemental Brief for Appellants
Public Court Documents
January 1, 1973

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Brief Collection, LDF Court Filings. Baker v. Beto Supplemental Brief for Appellants, 1973. b979bb35-be9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/93630bf2-c77a-48d0-a28c-783a7a7486f3/baker-v-beto-supplemental-brief-for-appellants. Accessed April 29, 2025.
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IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT NO. 72-2471 JAMES E. BAKER, et al., Appellants, vs. GEORGE J. BETO, et al. , Appellees. On Appeal from the United States District Court for the Southern District of Texas SUPPLEMENTAL BRIEF FOR APPELLANTS WILLIAM BENNETT TURNER 12 Geary Street San Francisco, California 94108 JACK GREENBERG STANLEY A. BASS 10 Columbus Circle New York, New York 10019 MARIO OBLEDO ED IDAR 211 East Commerce Street San Antonio, Texas 78205 JAMES DeANDA PHILLIP K. MAXWELL P. 0. Drawer 480 Corpus Christi, Texas 78403 FRANCES T. F. CRUZ 5135 Val Verde Lane Houston, Texas 77027 ALICE DANIELUniversity of CaliforniaHastings College of the Law198 McAllister StreetSan Francisco, California 94102 Attorneys for Appellants TABLE OF CONTENTS Page TABLE OF AUTHORITIES................................ iii I. Appellants' Previous Submissions .............. 1 II. Present Status Of The Case — Effect Of Preiser v. Rodriguez ...................... 3 III. Recent Decisions Bearing On The Issues In This C a s e ........................ .. 4 A. Due Process Safeguards .................... 4 B. Special Cases In Which Prisoners Are Accused Of In-Prison Felonies ........ 12 C. Censorship of Attorney-Client M a i l ........ 13 D. Refusals To Mail Attorney L e t t e r s ........ 15 CONCLUSION . . . . . . . . . . ........ . .......... 17 APPENDIX A National Advisory Commission on Criminal Justice Standards and Goals, Standard 2.12 (January, 1973) APPENDIX B Model Rules and Regulations on Prisoners Rights and Responsibilities (May 8, 1973) APPENDIX C Model Rules and Regulations on Prisoners Rights and Responsibilities (May 8, 1973) APPENDIX D National Advisory Commission on Criminal Justice Standards and Goals, Standard 2.17 (January, 1973) ii TABLE OF AUTHORITIES CASES Page » Allen v. Nelson, 354 F.Supp. 505 (N.D. Cal. 1973) 5 Barlow v. Amiss, F.2d , No. 72-2401 (5th Cir. AprTTo, 1973) 14 Batchelder v. Geary, F.Supp. , No. C-71 2017 RFP (N.D. Cal. AprTT6, 1973) 5 Carter v. McGinnis, 351 F.Supp. 787 (W.D. N.Y. 1972) 12 Castor v. Mitchell, 355 F.Supp. 123 (W.D. N.C. 1973) 5 Chambers v. Mississippi, U.S. , 93 S.Ct. 1038 (Feb. 21, 1973) 10 Clutchette v. Procunier, 328 F.Supp. 767 (N.D. Cal. 1971) 12 Colligan v. United States, 349 F.Supp. 1233 (E.D. Mich. 1972) 5, 12 Collins v. Hancock, 354 F.Supp. 1253 (D. N.H. 1973) 5, 12 Crowe v. Erickson, Civ. 72-4101 (D. S.D. Dec. 1, 1972) 14 Dodson v. Haugh, 473 F.2d 689 (8th Cir. 1973) 5, 10 # Frye v. Henderson, 474 F.2d 1263 (5th Cir. 1973) 14 Gagnon v. Scarpelli, U.S. , 93 S.Ct. 1756 (May 14, 1973) 6, 7, 9, Gates v. Collier, 349 F.Supp. 881 (N.D. Miss. 1972) 5, 14 Goldberg v. Kelly, 397 U.S. 254 (1970) 6, 7, 10 10 iii Page Gomes v. Travisono, 353 F.Supp. 457 (D. R.I. 1973) 5 Goosby v. Osser, U.S. , 93 S.Ct. 854 (1973) 3 Iverson v. Powelson, No. M33-71CA-2 (W.D. Mich. Mar. 21, 1972) 14 Jansson v. Grysen, No. G-130-71 CA (W.D. Mich. June 5, 1972) 14 Jenkins v. United Gas Corp., 400 F.2d 28 (5th Cir. 1968) 3 In re Jordan, 7 Cal.3d 930, 500 P.2d 873 (Sup. Ct. Cal. Sept. 15, 1972) 2, 13 Landman v. Royster, 333 F.Supp. 621 (E.D. Va. 1971) 10 Martinez v. Procunier, 354 F.Supp. 1092 (N.D. Cal. 1973) 14 , 15 McDonald v. Board of Election Commissioners, 394 U.S. 802 (1969) 3 McKenzie v. Secretary of Public Safety, No. 71-1414 (4th Cir. Apr. 21, 1972) 14 Merritt v. Johnson, No. 38401 (E.D. Mich. Nov. 30, 1972) 14 Morris v. Affleck, No. 4192 (D. R.I. Apr. 20, 1972) 14 Morrissey v. Brewer, 408 U.S. 471 (1972) 5, 6, 7, Nelson v. Hayne, 355 F.Supp. 451 (N.D. Ind. 1972) 5 Nieves v. Oswald, F.2d , No. 72-1974 (2d Cir. Apr. 20, 1973) 12 Preiser v. Rodriguez, U.S. , 93 S.Ct. 1827 (1973) 3, 4 iv Page In re Prewitt, 8 Cal.3d 470, 503 P.2d 1326 (1972) 8 Rankin v. Wainwright, 351 F.Supp. 1306 (M.D. Fla. 1972) 5 Sands v. Wainwright, F.Supp. , 12 Cr. L. Rptr. 2376 (M.D. Fla. Jan. 5, 1973) 5, 12 Sostre v. McGinnis, 442 F.2d 178 (2d Cir. 1971) 13 Stewart v. Jozwiak, 346 F.Supp. 1062 (E.D. Wis. 1972) 5 State ex rel Thomas v. State, 55 Wis.2d 343, 198 N.W.2d 675 (1972) 16 United States ex rel Miller v. Twomey, ___ F.2d ___, No. 71-1854 (7th Cir. May 16, 1973) 5, 9 United States ex rel Neal v. Wolfe, 346 F.Supp. 569 (E.D. Pa. 1972) 5 Van Blaricom v. Forscht, 473 F.2d 1323 (5th Cir. 1973) 7 Washington v. Lee, 390 U.S. 333 (1968), aff»g 263 F.Supp. 327 (M.D. Ala. 1966) 3 Worley v. Bounds, 355 F.Supp. 115 (W.D. N.C. 1973) 5, 13 v OTHER AUTHORITIES Page Model Rules and Regulations on Prisoners Rights and Responsibilities, Center for Criminal Justice of the Boston University School of Law, May 8, 1973 National Advisory Commission on Criminal Justice Standards and Goals, January 1973 11, 15 Standard 2.12 11 Standard 2.15 15 Standard 2.17 15 Standard 2.2 15 Turner and Daniel, Miranda in Prison: The Dilemma of Prison Discipline and Intramural Crime, 21 Buff. L. Rev. 759 (1972) 2 vi IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT NO. 72-2471 JAMES E. BAKER, et al., Appellants, vs. GEORGE J. BETO, et al., Appellees. On Appeal from the United States District Court for the Southern District of Texas SUPPLEMENTAL BRIEF FOR APPELLANTS In accordance with the Court's order of May 14, 1973, setting this case for en banc consideration and directing the Clerk to require supplemental briefs, appellants file this supplemental brief. I. Appellants' Previous Submissions This brief is intended only to supplement our previous submissions, which include the following: - 1 - (1) Brief for Appellants, served August 11, 1972. This is appellants' main brief and contains a thorough statement of facts, completely documented by citations to 1/the record. (2) Reply Brief for Appellants, served October 3, 1972, relating in relevant part to certain clearly erroneous findings by the court below, together with copies of the then unreported decision in In re Jordan, 7 Cal.3d 930, 500 P .2d 873 (Sup. Ct. Cal. Sept. 15, 1972). (3) Letter to the Clerk from counsel for appellants, dated November 20, 1972, noting pertinent cases decided or reported after the above briefs had been filed. (4) Appellants' Comments On Disciplinary Procedures Submitted By Appellees At Oral Argument, served on December 14, 1972, pursuant to leave of the Court granted at oral argument, together with copies of a relevant law review article published at 21 Buff. L. Rev. 759 (1972). We respectfully urge the Court en banc to consider all the above submissions, which fully state our factual and legal contentions. 1/ By order of the Court dated July 25, 1972, leave to proceed on the original record and exhibits, without an appendix, was granted. - 2 - II. Present Status Of The Case — Effect Of Preiser v. Rodriguez Since the argument before a panel of this Court, appellant James E. Baker has been released from prison. Fred Cruz had previously been released. We have been informed that appellant Coy Ray Campbell has received a favorable ruling on a habeas corpus petition, but his present status is unclear. Of course, this action has been maintained as a class action on behalf of all TDC prisoners, and it makes no difference on this appeal that individual parties may have been released. See Goosby v. Osser, ___ U.S. ___, 93 S.Ct. 854, 856, n.2 (1973); McDonald v. Board of Election Commissioners, 394 U.S. 802, 803, n.l (1969); Washington v. Lee, 390 U.S. 333 (1968), aff'g 263 F.Supp. 327 (M.D. Ala. 1966); cf. Jenkins v. United Gas Corp., 400 F.2d 28, 33 (5th Cir. 1968). The individual appellants originally sought, by way of relief, restoration of their statutory good time forfeited in disciplinary proceedings. Because of their release, Baker and Cruz no longer seek such relief; if appellant Campbell is released, this claim might also be moot as to him. In any event, we recognize that the recent Supreme Court decision in Preiser v. Rodriguez, ___ U.S. ___, 93 S.Ct. 1827 (1973), forecloses a claim for restoration of good time unless the prisoner proceeds via habeas corpus and alleges prior exhaustion of state remedies. The decision in Preiser v. Rodriguez does not, however, otherwise affect any aspect of -3- this case. The Supreme Court repeatedly made it clear that only where the prisoner is challenging "the very fact or duration" of his custody and seeks "immediate or more speedy release" must he proceed in habeas corpus and first exhaust state remedies. 93 S.Ct. at 1841, 1838, 1840. In cases like the present one in which "the prisoners' claims [relate] solely to the States' alleged unconstitutional treatment of them while in confinement," the prisoners may properly invoke §1983 and proceed without exhausting any possible state 2/remedies. 93 S.Ct. at 1841. The relief sought in the present case is a declaratory judgment and an injunction against disciplinary proceedings in which punishments are imposed without due process, and a declaratory judgment and an injunction against censorship of attorney-client correspondence. Ill. Recent Decisions Bearing On The Issues In This Case A. Due Process Safeguards It is now well settled, and indeed the Attorney General has conceded as much, that before prison officials can punish a prisoner by imposing more onerous conditions of confinement (solitary confinement) or a longer term of 2/ In this case, the state has not contended either that there is a state remedy or that appellants should have tried to find one. - 4 - incarceration (deprivation of statutory good time and eligibility for parole), the prisoner is entitled to a hearing 3 /meeting "minimum" standards of due process. In short, it is settled that these consequences of prison disciplinary proceedings are serious enough to require a hearing that will reliably determine the facts, so that prisoners are not arbitrarily punished. This alone requires reversal of the decision below. The remaining question, and a question of great importance, is precisely what are the minimum safeguards of due process in prison disciplinary hearings. In Morrissey v. Brewer, 408 U.S. 471 (1972), the Supreme Court held that parolees are entitled to "minimum" standards of due process before parole may be revoked, and 3/ In addition to the numerous cases cited at pages 21-24 of the Brief for Appellants, see the recent decisions in Dodson v. Haugh, 473 F.2d 689 (8th Cir. 1973); United States ex rel Miller v. Twomey, ___ F.2d ___, No. 71-1854 (7th Cir. May 16, 1973); Worley v. Bounds, 355 F.Supp. 115, 120-22 (W.D. N.C. 1973); Castor v. Mitchell, 355 F.Supp. 123 (W.D. N.C. 1973); Collins v. Hancock, 354 F.Supp. 1253 (D. N.H. 1973); Sands v. Wainwright, ___ F.Supp. ___, 12 Cr. L. Rptr. 2376 (M.D. Fla. Jan. 5, 1973); Rankin v. Wainwright, 351 F.Supp. 1306 (M.D. Fla. 1972); Colligan v. United States, 349 F.Supp. 1233 (E.D. Mich. 1972); Gates v. Collier, 349 F.Supp. 881 (N.D. Miss. 1972); United States ex rel Neal v. Wolfe, 346 F.Supp. 569 (E.D. Pa. 1972); Stewart v. Jozwiak, 346 F.Supp. 1062 (E.D. Wis. 1972); Batchelder v. Geary, ___ F.Supp. ___, No. C-71 2017 RFP (N.D. Cal. Apr. 16, 1973). Cf̂ . Nelson v. Hayne, 355 F.Supp. 451 (N.D. Ind. 1972); Allen v. Nelson, 354 F.Supp. 505 (N.D. Cal. 1973); Gomes v. Travisono, 353 F.Supp. 457 (D. R.I. 1973). -5- specified that the following constituted such minimum requirements: "(a) written notice of the claimed violations of parole; (b) disclosure to the parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a 'neutral and detached' hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking parole." 408 U.S. at 489. Essentially the same safeguards were described as "rudimentary" to due process in the Court's earlier decision in Goldberg v. Kelly, 397 U.S. 254 (1970). In Goldberg, the Court held in addition that the right to retained (although not appointed) counsel is rudimentary. The Court in Morrissey left open whether the right to counsel is among the minimum requirements. The Court answered this question in its recent decision in Gagnon v. Scarpelli, ___ U.S. ___, 93 S.Ct. 1756 (May 14, 1973) In Gagnon, the Court held that both probationers and parolees have a right to counsel in appropriate cases. Deciding also that all the Morrissey rights must be observed in probation revocations, including the right to call and cross-examine witnesses, the Court said that arguments against the right to counsel overlook the fact that the effectiveness of the rights guaranteed by Morrissey may "depend on the use of skills which the probationer or parolee is unlikely to possess, - 6 - and referred to the obvious fact that "unskilled or uneducated" persons like prisoners cannot realistically be expected to protect their own interests without help from a "trained advocate." 93 S.Ct. at 1762-3. While the Court stopped short of holding that counsel must be appointed in all cases, it required counsel at least in cases in which the prisoner makes a timely and colorable claim that (1) he did not commit the alleged violation or (2) there are substantial mitigating or justifying factors and the evidence is complex or difficult to present; the agency must also advise the prisoner of the right to request counsel, consider whether he "appears to be capable of speaking effectively for himself," and document the reason for any refusal to afford counsel. 93 S.Ct. at 1764 . We submit that the "minimum" safeguards of Morrissey, Gagnon and Goldberg are also the "minimum" required in prison 4/ disciplinary proceedings. The Attorney General has suggested no reason why any of these safeguards is not required here. It must be recognized that the consequences of disciplinary 4/ In VanBlaricom v. Forscht, 453 F.2d 1323 (5th Cir. 1973), this Court held that the failure of a parole board to permit the prisoner to cross-examine adverse witnesses violated his due process rights. The court also held that the board had failed to state adequately the reasons for its decision and that this violated the prisoner's right under Goldberg v. Kelly, even though the prisoner had been represented by counsel at the hearing. -7- proceedings can result in much greater deprivation of liberty than parole revocation. A Texas prisoner who is "convicted" of a serious offense in a disciplinary proceeding can forfeit several years of good time in a single disciplinary proceeding (correspondingly increasing his actual period of imprisonment), or can be made ineligible for parole, but a parole revocation may have less serious consequences. For example, a prisoner might forfeit three years of good time as disciplinary punishment while a parolee with only, say, a year to serve on his maximum sentence would lose only that period in a parole revocation. Nor has the Attorney General here identified anything in the nature of disciplinary proceedings or in the respective interests of the State or the prisoner that makes a Morrissey-Gagnon "minimum" safeguard dispensable 5/ in resolving disputed facts in the present context. 5/ In In re Prewitt, 8 Cal.3d 470, 503 P.2d 1326 (1972), the California Supreme Court held that a prisoner faced with rescission of a parole grant order is entitled to all of the Morrissey protections. The court perceived "no significant distinction" between the situation of the parolee faced with revocation of conditional liberty and the unreleased prisoner faced with rescission of the right to achieve such liberty. 8 Cal.3d at 474, 503 P.2d at 1330. Prewitt thus requires in-prison Morrissey hearings in all disciplinary cases in which the inmate has received a parole date but has not been released. The California Supreme Court carefully considered the state's interest in summary proceedings and found that the prisoner's interest in fair procedures prevailed. There is no distinction between disciplinary cases in which the prisoner has received a parole date and those in which he is prohibited from receiving one if found guilty of the disciplinary offense. In Texas, a prisoner found guilty of a disciplinary offense may be demoted to a class in which he is absolutely ineligible for parole (R. 399, p. 5; R. 237, 319). In United States ex rel Miller v. Twomey, ___ F.2d ___, No. 71-1854 (7th Cir. May 16, 1973), the Seventh Circuit, after carefully examining the interests of the state and the prisoners in several disciplinary cases, held that Morrissey requires due process protections before imprisonment can be prolonged or punitive segregation imposed in disciplinary 6/hearings. However, the court declined, over a vigorous and persuasive dissent by Chief Judge Swygert, to require all of the Morrissey safeguards, and the court left the precise form of relief to the district courts on remand. The majority of the Seventh Circuit panel did recognize that "in the end we may simply transplant the Morrissey requirements" to prison disciplinary hearings (slip op., p. 27, n.37). The panel said the district courts could require all the Morrissey safeguards, but directed the lower courts to hold special hearings on relief, first giving the officials an opportunity to prepare new procedural regulations. We believe that, while the district court's decision in the instant case must be reversed, this Court, acting en banc, should not leave the court below without precise guidance as to the "minimum" due process safeguards. There is no point in a ruling by the Court en banc that does not definitively settle this issue 6/ The Miller opinion was apparently prepared before the Supreme Court's decision in Gagnon v. Scarpelli, supra, and the court had no occasion to discuss whether counsel would be required in appropriate cases. - 9 - now. As stated above, we believe all of the Morrissey safeguards, and a limited right to counsel or counsel- 77substitute, are constitutionally mandated, and the Court should make that clear. These safeguards are mandated, however, only in the relatively few disciplinary cases in which (1) the most serious punishments may be imposed and (2) there is a genuine dispute as to the facts. Obviously they are not required in minor matters or in cases in which there is no dispute about what happened. Disciplinary procedures must be adequate to permit a determination that "they were likely to have established the truth of the asserted violation." See Dodson 8/ v. Haugh, 473 F.2d 689, 690 (8th Cir. 1973). This cannot be done with less than the "minimum" procedures of Morrissey, Goldberg and Gagnon. 7/ As stated in the Brief for Appellants at pages 27-31, counsel is required at least in cases in which a prisoner is accused of conduct that can be prosecuted as a felony; and any disciplinary hearing that results in a prisoner becoming ineligible for parole certainly requires, under the reasoning of Gagnon v. Scarpelli, that the prisoner be represented by counsel. Counsel-substitute (a staff member, a law student or a fellow prisoner) might be sufficient in less serious cases. 8/ Cf. Chambers v. Mississippi, ___ U.S. ___, 93 S.Ct. 1038 (Feb. 21, 1973), where the Supreme Court relied on Morrissey for the proposition that confrontation of witnesses is essential to assure "the accuracy of the truth-determining process." Of course cross-examination may be restricted by the hearing officers "to relevant matters, to preserve decorum, and to limit repetition." Landman v. Royster, 333 F.Supp. 621, 653 (E.D. Va. 1971). - 10 - In addition to the many judicial decisions discussed above and in the Brief for Appellants, we rely on the Standards promulgated in January, 1973, by the National Advisory Commission on Criminal Justice Standards and Goals. The recommendations of this prestigious Commission completely support our position; in particular, Standard 2.12 requires all of the "minimum" due process safeguards we have specified. A copy of such Standard is reproduced as Appendix A to this brief. In addition, on May 8, 1973, the Model Rules and Regulations on Prisoners Rights and Responsibilities were published by the Center for Criminal Justice of the Boston University School of Law. The Model Rules and their useful commentaries require all the "minimum" safeguards. The relevant Rules, including Foreward and commentaries, are reproduced as Appendix B to this brief. In the Foreward, the Commissioner of Corrections of Massachusetts emphasizes that the Rules are not simply an idealist's notion of prisoners' rights but are "a long overdue instrument for the development of sound correctional policy," provide "a viable blueprint from which a sound correctional management system can be constructed," and are "an invaluable tool" for officials striving to build "systems that operate fairly, thoroughly, and effectively." - 11- B. Special Cases In Which Prisoners Are Accused Of In-Prison Felonies As urged in the Brief for Appellants at pages 40-44, special protections are required in the really serious disciplinary cases, like the case of appellant Baker, when prisoners are accused of in-prison felonies. In addition to the authorities relied upon in the Brief for Appellants, there are several recent decisions in point. In Collins v. Hancock, 354 F.Supp. 1253 (D. N.H. 1973), the court held that if the disciplinary offense is also a felony, counsel must be furnished and in no event can the accused prisoner's testimony be used against him in a subsequent criminal proceeding. In Sands v. Wainwright, ___ F.Supp. ___, 12 Cr. L. Rptr. 2376 (M.D. Fla. Jan. 5, 1973), the court followed the decision in Clutchette v. Procunier, 328 F.Supp. 767 (N.D. Cal. 1971), and held, in addition, that when the disciplinary offense also constitutes a crime, the prisoner must be given "use immunity". In Colligan v. United States, 349 F.Supp. 1233 (E.D. Mich. 1972), the court required all due process safeguards and stated in addition that the accused has the right not to be forced to testify. In Carter v. McGinnis, 351 F.Supp. 787 (W.D. N.Y. 1972), the court, relying on Clutchette v. Procunier, supra, held disciplinary proceedings unconstitutional because prisoners who elected to remain silent were given serious disciplinary punishment. And in Nieves v. Oswald, ___ F.2d ___, No. 72-1974 (2d Cir. Apr. 20, - 12- 1973) , the court stated that when a prisoner faces a disciplinary offense that also constitutes a crime, this 9 /"unquestionably raises grave constitutional issues." C . Censorship Of Attorney-Client Mail In addition to the authorities cited on pages 44-56 in the Brief for Appellants, numerous recent decisions undercut the reasoning of the court below and follow the approach of the Federal Bureau of Prisons and of other state systems in insuring 10/ the confidentiality of attorney-client mail. California's Supreme Court has carefully considered the practicalities of legal mail and stopped its censorship. See In re Jordan, 7 Cal.3d 930, 500 P.2d 873 (Sup.Ct.Cal. 1972). And a number of recent federal decisions can be added to the long list of courts that have condemned censorship of attorney-prisoner mail. See Worley v. Bounds, 355 F.Supp. 115, 118-19 9/ The court distinguished and cast doubt on the continuing validity of its prior decision in Sostre v. McGinnis, 442 F.2d 178 (2d Cir. 1971), on which appellees here rely. The Second Circuit stated that Sostre cannot be read as holding that the safeguards rejected on the facts of that case will not be constitutionally required in other cases. For example, the court pointed out as to cross-examination that Sostre must be distinguished because the facts were not in dispute there and this right is critical in cases in which the facts are in dispute or punishment turns on the perceptions of adverse witnesses. 10/ The Federal Bureau's regulation provides that "correspondence addressed to an attorney shall be mailed from the institution unopened and uninspected" and that incoming attorney correspondence may only be opened "for the purposes of inspection for contraband. . .in the presence of the inmate" (see Brief for Appellants, p. 52). Similar approaches of other state systems are described in the Brief for Appellants and the many decisions granting protection to attorney mail are collected at p. 54, n.58. -13- (W.D. N.C. 1973); Gates v. Collier, 349 F.Supp. 881 (N.D. Miss. 1972); Merritt v. Johnson, No. 38401 (E.D. Mich. Nov. 30, lT71972); Crowe v. Erickson, Civ. 72-4101 (D. S.D. Dec. 1, 1972); Iverson v. Powelson, No. M33-71CA-2 (W.D. Mich. Mar. 21, 1972); Jansson v. Grysen, G-130-71 CA (W.D. Mich. June 5, 1972); Morris v. Affleck, No. 4192 (D. R.I. Apr. 20, 1972); cf. McKenzie v. Secretary of Public Safety, No. 71-1414 (4th Cir. Apr. 21, 1972 )(consent decree); Martinez v. Procunier, 354 F.Supp. 1092 (N.D. Cal. 1973)(applying First 12/ Amendment standards to general mail). In short, the weight of authority holding that attorney-client mail must be confidential is overwhelming. 11/ The order in Merritt is very detailed and gives careful consideration to the practicalities of permitting officials to inspect for physical contraband without reading the contents of attorney mail. Outgoing mail to attorneys may be sealed; incoming mail can be examined only for physical contraband (using a fluoroscope, metal detector or manual manipulation) and if an official has reasonable grounds to suspect that illegal material is contained, the letter can be opened, but only in the inmate's presence. 12/ This issue is still one of first impression in this Circuit. In Barlow v. Amiss, ___ F.2d ___, No. 72-2401 (5th Cir. Apr. 30, 1973), the court held that pretrial detainees stated a valid federal claim with regard to censorship of legal correspondence. Pretrial detainees are not differently situated from TDC prisoners charged or indicted for in-prison crimes, whose attorney correspondence is censored (see Brief for Appellants, pp. 47-48). In Frye v. Henderson, 474 F.2d 1263, 1264 (5th Cir. 1973), the court remarked that "Actual censorship of attorney- inmate mail -- be it incoming or outgoing — might very well infringe unconstitutionally in the prisoner's rights of access to the courts." -14- In addition to the judicial decisions discussed above and in the Brief for Appellants, the Model Rules and Regulations on Prisoners Rights and Responsibilities also provide for such confidentiality. The relevant Rules, including their commentaries, are reproduced as Appendix C to this brief. Finally, the Standards of the National Advisory Commission on Criminal Justice Standards and Goals also provide for confidential attorney correspondence. Standard 2.17, providing that even as to general mail "neither incoming nor outgoing mail should be read or censored," is reproduced as Appendix D 13/ to this brief. D. Refusals To Mail Attorney Letters The Texas officials assert the right not only to read attorney-client mail in all circumstances but also to refuse to deliver legal letters that they deem not "relevant" to the prisoner's case or "derogatory" to the officials. In addition to the authorities discussed at pages 57-58 of the Brief for Appellants, and by the American Bar Association in its brief amicus curiae, the recent case of Martinez v. Procunier, 354 F.Supp. 1092, 1097 (N.D. Cal. 1973), holds that "statements critical of prison life and personnel cannot 13/ Included in Appendix D are related Standards: Standard 2.15 deals with prisoners' rights to free expression and association in general; and Standard 2.2 deals with access to legal services and specifically provides for confidential attorney-prisoner correspondence. -15- be subject to censorship by the very people who are being 14/criticized simply to stifle such criticism." As the American Bar Association brief points out, there is simply no valid basis for the TDC practice of blocking attorney letters because a guard disapproves their contents. 14/ This echoed a decision of the Supreme Court of Wisconsin, which stated that "letters critical of prison administration cannot be forbidden because they cause embarrassment or inconvenience to prison authorities." See State ex rel Thomas v. State, 55 Wis.2d 343, 198 N.W.2d 675 (1972). In both Martinez and Thomas the courts were dealing with general, not attorney correspondence. Legal mail of course has a greater claim for special protection. -16- CONCLUSION The judgment of the district court should be reversed and remanded with instructions to enter a decree substantially in accordance with the Standards of the National Advisory Commission and the Model Rules annexed as Appendices A, B, C and D hereto. Respectfully submitted/ ^ z z _____ WILLIAM BENNETT TURNER 12 Geary Street San Francisco, California 94108 JACK GREENBERG STANLEY A. BASS 10 Columbus Circle New York, New York 10019 MARIO OBLEDO ED IDAR 211 East Commerce Street San Antonio, Texas 78205 JAMES DeANDA PHILLIP K. MAXWELL P. O. Drawer 480 Corpus Christi, Texas 78403 FRANCES T. F. CRUZ 5135 Val Verde Lane Houston, Texas 77027 ALICE DANIEL University of California Hastings College of the Law 198 McAllister Street San Francisco, California 94102 Attorneys for Appellants -17- A p p e n d ix - A CO RRECTIO N S For /Cores STANDARD 2.12 DISCIPLINARY PROCEDURES Each corrections! cgancy immediately should 2dopt, consistent with Standard 16.2, disciplinary procedures for each type of residential facility- it operates 2nd for the persons residing therein. . • • • • .Miner violations of rules of conduct are those punishable by no more than a reprimand, cr loss of commissary, enterrammer.t, cr recreation prAdepts for not more than 2A hours. Ru.cs governing minor vitiations should preside: 1. Staff may impose the prescribed miner sanctions 2i't-:r Informing the offender of Use nature of Isis misconduct and giving him an opportunity to pro-.roe an explanation or denial. . . . - • •- .oj 2. If 3 report of the violation is placed in the offender’s file, the offender should be so notified.- 3 . Th> offender should ba provided with tine opportunity to reruest a review by an impartial officer or heard c f the appropriateness cf the staff 2c*.ion. 4 . V.Tere the review indicates that the offender did not commit the violation or tire staffs action was rat appropriate, ail reference to the incident should be removed from the offender's fide. . + • Major violations c f rules c f conduct arc those punishable by sanctions more stringent than those for minor violations, in clu ing but net limited to, ioss of gcoc time, transfer to segregation, or so’itarv confinement, trarsie; to a hasher lever ut institutional custocy cr any otner c.rar.ee m status which may tcr.d to affect adversely an encoder s time 01 release or discharge. - . . Rules governing major violations should provide for the following prehearing procedures: 1. Someone ether th.c-n the reporting officer should conduct ? complete investigation into the facts of tire alleged misconduct to determine if there is probable cause to ccheve the • offender committed a violation. If probable causa exists, a hearing cute srrould ba set. • • « 2. Tire offender shou-d receive a copy c f any disciplinary report or charges cf the alleged, violation and notice of the time and place of the hearing. 3 . Tire offender, if he desires, should receive assistance in preparing for the treating fremd • member of the correctional staff, another Inmate, or other authorized person (inch,i-ilng legal counsel if available). • . . A. Jv-o sanction for the alleged violation should be imposed until after the hearing except . that tire offcr.der m. y be segregated from the rest of the popu'a'.icn if the head'of the institution finds that l.e constitutes a threat to other inmates, staff members, or himself. Rules ccvenring major violations iliauid provide for c hearing on the alleged viola.ion which should be conducted as foiiows: ' ' ' For /Cotes CO RRECTIO N S for.Wo res J. The hearing should bo hole! as quickly as possible, generally not more then 72 hours after the charges erf made. s 2. The hearing should be Before an Impartial officer or board. 3 . The ofter.cer shoo’d be allowed to present evidence or witnesses on his behalf. 4 . Tire offender should be allowed to confront end cross-examine the witnesses against lum. 5. The offender may be allowed to select someone, including legal counsel, to assist him at the hearing. 6. -The hearing officer c: board should be required to find substantia! crlder.cc cf cu2i before imposing a sanation. 7 . Tl:c hearing effraar or beard should be required to render its decision in writing setting fottir its findings as to controverted facts, its conclusion, and the sanction Imposed. If th* decision finds that tire offender did rot commit the violation, all reference to the charge should be removed from the offenders fire. Rules governing major relations should provide for interna! review of the hearing officer’s or board's decision. Such review should be 2u:o~tatic. The reviewing authority should be authorized to accept tine decision, order further proceedings, or reduce the sanction imposed. Commentary The nature c f prison casrciLne ar.d the procedures utilized to Impose it are very sensitive issues, both to correctional administrators and to committed offender;. Tire imm.csition of drastic disciplinary measures c_n have a direct impact cn trie length cf time 2n offender serves in confinement. The history c f inhumane and degudlrg forms of punishment, Including institutional •'holes” where offenders arc confined without cictltmc. bedding, toilet fzcutties, 2nd other decencies, has been adequately documented In the courts. These practices are stll widespread. The administration of seme form of-discipline is necessary to maintain order Within 2 prison institution. However, when that discipline violates constitutional safeguards or Inhibits or seriously i undermines reformative efforts, it becomes counterproductive and Indefensible. The very nature of a closed, inaccessible prison naltes safeguards against arbitrary disciplinary power difficult. The correctional administraticr. i:as power to authorize cr deny every 2<-ect of lhir.g from food ar.d clothing to access to toilet facilities. It is this pcv\ er. more than perhaps any other v itiur. the correctional system, v.jtich must be brought under the “rj!e of law.” Court decisions such as Cddbcrg v. Kc'lcy, 59? U.S. 25-1 (1970) end Morrissey r. Brewer, 4CS U ^ . -»/l ( i 9 /_) have enab:.sited the hearing proecdure.as a basic due process requirement In srrniticur.t administrative deprivations ct <;ic. liberty, cr prepert}'. There ties been considerably less C:ar:ty, espcc.auy :n ti:c correctional context, of what minimal requirements must attend sucit a hearing. Court decisions l.-\e varied In interpretation. A.i one end of the spectrum they have pros.arc cmy adequate nci:ce cf enarves, a reasonable investigation into relevant facts, art! an opportunity for the p;better to reply to charges. At the ether they have upheld the right to written retreo c: c.uargcs. ::-.v:mg before an in.partia! tribunal, reasonable time to prepare defense, riJrt to confront and crc-sv-exacrane witnesses, a decision based on evidence at tl;e l.carir.c, ar.d ’ For it'etes CO RRECTIO N S assistance by lay counsel (staff or inmate) plus legal counsel where prosecutable crimes are involved. Correctional systems on their ov.n Initiative have implemented detailed disciplinary procedures incorporating substantia! portions of the recognized elements of administrative agency due process. The standard largely follows this trend, emanating from botii courts and correctional systems, toward more formaiized procedures with normal administrative due-process protections in the administration of correctional discipline. Due process is a concept authorizing van ine procedures in differing contexts of governmental action. 1: dees net require in all cases the formal procedures associated with a criminal trios. On the other hur.d. cue process dees contain seme fundamentals that should regulate ail governmental action having a potentially harmful effect on an individual. Basic to any system that respects fundamental fairness are three requirements: (!) that the. individual understand what is expected of him so he may avoid the consequences of Lnarprupnete behavior; (2) if he b charged with a violation, that he be informed of what he is accused; and ^3) that he be given ar. opportunity to present evidar.ee in contradiction ci mitigation of the charge. As the consequences to the individual increase, other procedural devices to assure the accuracy of information on widen action will re based come into play. These include the right to confront the individual mai-Jr.g the chare; of violation with an opportunity to crcss-c.x. mine Urn; the right to assistance in presenting one's case, including Icaai coon rah. the right to z formal hearing before an impart:;: tribunal c: officer; the rich: to have proceedings of the hearing recorded in writing: arc the right in written findings c f tact. . Prison discipline cun range in degree from an oral reprimand to loss o f good time or disciplinary segregation. Where :h; punishment to b: imposed extends cr patenuaL'y extends the period c f incarceration, or substantially charges the stares of the offender either by placing him in disciplinary segregation cr removing him from advantageous werh assignments, the wider range of procedural safeguards should be employed. There decisions arc critical net only to the offender' but to the public. Sir.re these procedures are designed only to assure a proper factual basis for governmental action, both the public and the offender have an interest in their implementation. References 1. Council cr. the Diagnosis and Evaluation of Criminal Defendants. Pdinois Unified Code of Corrections: Tentative Final Draft. St. Paul: West, !9 7 i, Section 335-9 and Section 540-7. 2. H.Tscltkop and Mile maim, Tne U:consdtutioi::lity o f Prison Life, 55 Va. L. Rev. 755 (19d9). 3. Lcndmon v. Royster, 10 Crim. L. Rptr. ECS 1 (E.D. Va. 1971! (Virginia case op hearing and related procedures for Imposition c f solitary confinement, transfer to maximum security, padlock confinement c . er i 0 d>v s and loss cf good time.) •4. McGee. Thomas A.. ‘'Minimum S:arda:ds for • Disciplinary Decision Making.**- . Unpublished paper prepared fer the CrJit'orr.ia Department cf Corrections. Sacra:.::::lo. CORP.ECTIOMS For Notes For Notes 5. Millemann. Prison bisripHnsr.’ Heerinzs end Procedure! D:;e Process - Tiic Requirement o f a Full Adminisnerhc J/esring. 3 i Md. L. Rev. 27 (197!) arc authorities cited therein. v 6. Morris r. Trariur.o, 310 F. Supp. 857 (D.R.!. 1970) (Due process safeguards fer discipline involving segrcg2t.on). 7 . Soshe v. McGinnis. 442 F. 2d 178 (2d Cir. 1971) (Due process safeguards for cases of substantial discipline). 8. South Carolina Department of Corrections. 77/e Emerging Rig?:is o f Offenders. Columbia, 1972. 9 . Turner, Es’cbiLCinz :!.c Ride o f Lev: in Iriscns: A Nenue! f jr Prisoners’ Rights' Lingerie;:. 23 Stan. L. Rev. 473 (1971) ar.d authorities cited therein. ' Related Standards 2.2 Access to Legal Services 2.11 Rules o f Conduct - 16.2 Administrative Justice 1 6 3 Code of Offenders’ Rights 5.9 Continuing Jurisdiction of Sentencing Court 14.16 Security and Discipline A p p e n d ix B MODEL RULES AND REGULATIONS ON PRISONERS5 RIGHTS AND RESPONSIBILITIES Prepared by Professor Sheldon Krantz Robert A. Bell Jonathan Brant Michael Magruder o f llie Center for Criminal Justice Boston University School of Law Sheldon Krantz. Director B T. P A V L, ISIKH. W E S T P U B L I S H I N G CO. 1973 FOREWORD This com prehensive statem ent of basic inmate rights and respon sib ilities is a long overdue instrum ent for the development of sound correctional policy. Events of recent years have shown that many correctional system s operate with no coherent rules and policies gov erning inm ate behavior, or with only partially developed rules and regulations to assist correctional adm inistrators and staffs in the per form ance of their duties. This lack of coherent rules and policies has been a m ajor source of strife in institutions throughout the country and has forced the courts increasingly to become involved in the ad m inistration of prisons. N ow , and for the first tim e in any prison jurisdiction, correctional adm inistrators have, w ith these Model Rules and Regulations on Pris oners’ R ights and Responsibilities, a basic guideline by which they can establish their own formalized procedures for m atters such as disciplinary hearings and the resolution of inmate offenses. The scope of th is document is far greater than proposals in these two areas, how ever. Through its detaiied analysis and development of the areas of substantive rights and prohibited conduct, for example, the docu m ent provides a viable blueprint from which a sound correctional m anagem ent system can be constructed. Much of the unrest in the prisons of this country can be traced to a basic inability to m aintain open channels of comm unications am ong inm ates, staffs, and adm inistrators. These Rules provide helpful di rections for reducing dangerous tensions by providing open lines for the discussion and resolution of institutional problems on a continu ing basis. I am grateful to Professor Sheldon Krantz and the Center staff for their work in the preparation of these Model Rules for the M assa chusetts Departm ent of Corrections. Correctional adm inistrators everyw here should find them to be an invaluable tool as they strive to build or rebuild correctional system s that operate fairly, thorough ly , and effectively. John O. Boone Com m issioner of Corrections Commonwealth of M assachusetts A pril, 1973 * 111 nmjmw - l - •-» ' t ~ - . 1~ .'n ^ ‘. — r I ;. , ' . « - , L * t - ‘ < l~ . '* ■'-'. m m ,.M .■>. ■»i . . . ;^ , iV .t; .1 iW tii n m r V wait. ..«.■», PRISONERS’ RIGHTS AND RESPONSIBILITIES V. RULES AND COMMENTARY ON DISCIPLINARY PROCEDURES General Introduction Because maintenance of security is such an omnipresent factor in cor rectional institutions, the discipli nary process is one of the most im portant elements of prison life. Dis ciplinary procedures are among the most visible parts of the penal sys tem because they so vitally affect the lives, sentences, and attitudes of in mates. As a result, the procedures that determine how the disciplinary process is carried out are an integral part of the correctional system. In writing a comprehensive set of prison disciplinary regulations, the Center for Criminal Justice has set out a number of criteria for an ade quate correctional disciplinary proc ess which these rules attempt to sat isfy. Primarily, rules have been de signed which are intended, as much as possible, to insure impartial and fair procedures throughout the disci plinary* process. In this regard, the development of a comprehensive code of offenses and punishments has been recommended in order that pro scribed behavior may be known by inmates and guards alike and even- handed treatment assured. In an earlier section, a model of that code has been introduced. Similarly, for many offenses it has been required that superior officers investigate al legations of disciplinary infractions brought by line officers. This is to provide a system of review to insure that only valid allegations of disci plinary rule infractions be brought to the attention of the disciplinary board. Further, we have recom mended changes in the composition of the hearing board in order that the process of decisionmaking at the hearing stage be free of any possi bility that the influence of command ing personnel could affect the judg ments meted out by the board. Throughout our work on these rules, we have been guided by the due process standards for prison dis ciplinary procedures which have been required by decisions of the federal courts in recent years. These court decisions have attempt ed to impose standards of fundamen tal fairness which insure that the disciplinary process can determine guilt or innocence and impose pun ishments with speed, accuracy, and rationality. The U. S. Bureau of Prisons correctly stated the attitude which the courts have taken in re viewing the conditions of prison dis ciplinary procedures: “No judicial decision precludes appropriate disci plinary action for misconduct that is imposed in a fair manner. Adverse court decisions have been found ed mainly upon what appears to have been arbitrary and capricious ac tions resulting in unwarranted loss of privileges or the imposition of un duly harsh physical conditions of confinement.” * The courts and commentators have begun to take a closer look at prison disciplinary pro cedures because of a growing sense that current procedures and lack of accountability invite abuse of such power. As the President’s Commis sion on Law Enforcement and Ad ministration of Justice argued, “It is inconsistent with our whole system of government to grant such uncon trolled power to any official, particu larly over the lives of persons. The fact that a person has been convict ed of a crime should not mean that * U. S. Bureau of Prisons, Policy Statement 700.5 Inmate Discipline (July 20. 1970). 155 MODEL RULES AND REGULATIONS he has forfeited all rights to demand that he be fairly treated by offi cials.” * In addition to being designed to insure accountability and fairness, these rules are developed as a work able set of procedures which permit all views to be presented in a mean ingful fashion, provide the necessary flexibility required for a set of disci plinary' procedures, and yet can be utilized without long delays between allegation of misconduct and deter mination of guilt or innocence. At the same time, we have been cognizant of the needs and concerns of correctional officials for insur ing that adequate security is main tained. We have attempted to pro pose rules which will insure the requisite degree of security but make the disciplinary process fair. During the time that these rules were in preparation, the Massachu setts Department of Correction is sued Commissioner’s Bulletin 72-1, dated May 12. 1072. setting out re vised disciplinary procedures, which were to be implemented on an inter im basis. This Bulletin establishes procedures which are similar in many respects to the procedures rec ommended by these rules. For ex ample, when violations other than petty offenses are reported, shift su pervisors must be notified. The sh ift supervisors will review the dis ciplinary report for accuracy and completeness. Further, the proce dures for disciplinary hearings sig nificantly are similar to those rec ommended here since they include the right by inmates to call witness es if advance notice is given, and representation for the inmate and the institution if desired, and a find ing based upon reliable evidence. However, as will be discussed infra, the proposed rules here would change the composition of the hearing board and permit cross-examination, as well as describing in greater detail the appeal process. In addition, the Commissioner’s Bulletin uses a sin gle disciplinary officer to hear minor matters with right of appeal to the disciplinary board for de novo hear ing. The rules proposed here would provide for the original hearing be fore the disciplinary board, but the rules also recommend consideration be given to the feasibility of replac ing the disciplinary board altogether with a professional hearing officer. Finally, the proposed rules permit ex pungement of disciplinary records if further disciplinary infractions are avoided for a period of time. There is no comparable section in the Com missioner's Bulletin. A comparison of Commissioner’s Bulletin 72-1 and 71-7 reveals that the new disciplinary policy moves to ward the goal stated here of clearly articulated and fair procedures. * President's Commission on Law En- Right to Treatment for Prisoners: So- forcement and the Administration of cicty’s Right to Self-Defense, 50 Neb.L. Justice, Task Force Report: Corrections Rev. 543 (1971). 83 (1967). Cf. Comment, A Sfctufory Rule V - l Rulcbook a. A rulebook containing all chargeable offenses and listing the range of potential punishm ents for each offense, and the disciplinary procedures to be followed, shall be compiled and given to each inmate and m em ber of the staff. The rulebook shall be translated into Span- 156 PRISONERS’ RIGHTS AND RESPONSIBILITIES ish and all other foreign languages spoken by a significant number of inm ates. Commentary The purpose of providing a rule- book listing specific offenses and penalties is to insure that all mem bers of the prison community—in cluding both inmates and guards— understand exactly which activities are proscribed and what the result ant penalty may be for any offense. The present disciplinary code for Massachusetts enunciated in Com missioner’s Bulletin 71-7 presents an extremely vague, nonspecific listing of potential offenses and in no way attempts to correlate offense and disposition. The proposed substan tive disciplinary code included in these materials, based in part on an empirical study of the results in all disciplinary proceedings held during the past year at Massachusetts Cor rectional Institutions in Walpole, Norfolk, and Concord is an attempt to insure that the process of initiat ing complaints against inmates will be based upon activities which both officer and inmate know to be pro scribed. The experience from other studies indicates that formulation of clear rules does alleviate difficulties which arise from the enforcement of vague or unwritten disciplinary rules.3 Adoption of a rulebook of prison disciplinary offenses is fur ther recommended here because there are indications that the com pilation of such a rulebook will be required by the courts as part of the due process standards applicable to prison disciplinary procedures.4 > Note. Administrative Fairness in 4 Sinclair v. Henderson. 331 F.Supp. Corrections. 1559 Wisconsin L.Rev. 557. 1123 (E.D.La.1971). Cf. Lcr.drr.cn v. Royster. 333 F.Supp. 621 (E.D.Ya.1971). Rule V—2 Charging, Investigation, Pre-H earing Detention (Aw aiting A ction) a. Except for the category of petty offenses listed in the code of offenses where slight sum m ary punishments m ay be imposed, line officers m ust present allegations of violations of the disciplinary code lo their superior officer. The superior officer shall investigate the factual circum stances and shall determine w hether a charge should be brought and which offense, if any, is appropriate to charge. If a charge is brought, the superior will fill out the appropriate form, set ting forth his understanding of the facts of the situation, including date and tim e of day of the incident, naming the line officer who brought the allegations originally, and listing the offense which is charged. Superior officers m ay initiate complaints them selves w ith out seeking approval from other persons. b. A line officer bringing a complaint against an inmate who believes that the inm ate should be placed in detention prior to the hearing m ust im m ediately seek approval from his superior officer. The superior officer or a higher ranking correctional officer are the only persons who m ay approve detention before a hearing. N otice of the detention must be sent to the superintendent of the institution 157 -----IX * I * * * - * * - * ^ * - v : t 7 - ; A ------- - . ' t - 1 . .1-l-..-*:;/ . - U — MODEL RULES AND REGULATIONS w ho m ust approve the detention action within tw enty-four hours a fter it has begun. The superior officer and the superintendent shall not approve detention before a hearing unless they determ ine that the inm ate constitutes an immediate threat to institutional order or the safety of particular inmates. Inm ates shall not be held in pre- hearing detention longer than three days, the permissible period be fore a hearing is required to be held except when the accused requests th e autom atic three-aav continuance (See Rule V -3) or in an emer gency situation (Rule V - l l ) which m ay m ake longer detention nec essary. Commentary Charging and Investigation. When a line officer observes conduct which he regards as a violation of the disciplinary rules, he has sev eral choices: he can ignore the con duct, let the inmate off with a warn ing, impose summary punishment for certain specified petty offenses, or write up a disciplinary report.5 Because of this wide range of choices which the line officer has, there is always the possibility that he may not act in a consistently fair man ner in all situations. If that were so, the postulated goal of evenhanded treatment would not be approached. The purpose of requiring that su perior officers be the persons who have the authority to file charges is to insure immediate review of deci sions alleging misconduct. It pro vides an immediate review of the ini tial decision to charge to insure that it is made fairly and is based upon an accurate appraisal of the inci dent.® Making mandatory charging and investigation by a superior officer would be an extension of the proce dures currently dictated by the 1971 Commissioner’s Bulletin.* The Bul letin permits such an investigation where one is considered necessary. By making superior officer investi gation and charging mandatory, Massachusetts would be following the precedent of regulations in sev eral other states* as well as a trend indicated by recent court decisions and legal commentary.9 Pre-Hearing Detention ( Awaiting Action). The issue of pre-trial de tention (awaiting action) of accused 5 K raft, P r i s o n D i s c i p l i n a r y P r a c t i c e s and P r o c e d u r e s : I s D u e P r o c e s s R e quired? 47 N.D.L.Rev. 9, 26 (1970). * Of course, the mere existence of the requ irem en t th a t superior officers in v es tig a te complaints does not insure th a t the investigation will be conducted w ell. A study of the senior officers’ in vestiga tion of complaints in the Rhode Island prison indicated that the investi gation was generally perfunctory and inadequa te and failed to screen out poor com plain ts. Harvard Center for Crim inal Justice . J u d i c i a l I n t e r v e n t i o n in Prison D i s c i p l i n e , 63 J.Crim.L.C. & P.S. 2 0 0 , 207 (1972). ' See also Commissioner's Bulletin 72-1 requiring supervisory officers to review the complaint. * See. e. g., Missouri State Peniten tiary Personnel Informational Pamphlet R u l e s a n d P r o c e d u r e s (1967); New Mex ico Penitentiary. .Memo: C l a s s i f i c a t i o n C o m m i t t e e e n d i t s S u b c o m m i t t e e s (1971); Connecticut Dept, of Corrections. Disciplinary Procedures. 9 Brant, P r i s o n D i s c i p l i n a r y P r o c e d u r e s : C r e a t i n g R u l e s , 21 Cleve.St.L. Rev. 83, 86 (May 1972); M o r r i s v. 77a- vtsono, 310 F.Supp. 857, 872 (D.R.I. 1970). -- • ■ - -• II -.r., jgr-TA ,.>• ■« •. JV-.A — -1-. ■ --Jr—* --i. PRISONERS’ RIGHTS AND RESPONSIBILITIES inmates raises identical issues as does the question of charging responsibil ity. The requirement that pre-hear ing detention be ordered by a su perior officer and approved by the superintendent provides some review by superior officers of the exercise of discretion by line officers. In the only judicial decision which has con sidered this issue directly, the U. S. District Court in Rhode Island held that pre-hearing detention could only be ordered by a superior officer and then only in strict conformance with rules for preventive segregation. Furthermore, a presumption of re lease is to exist unless a superior of ficer determines that the alleged vio lations could constitute a threat to institutional order or the safety of particular inmates.10 Examples of circumstances where detention would be validly imposed are allegations of fighting, assault, and attempted es cape, all of which are direct threats to institutional order or the safety of other inmates. i0 Morris v. Travisono, 310 F.Supp. 857 (D.R.I.1970). R ule V -3 Notice, Time Before Hearing a. The accused shall receive notice of proposed disciplinary ac tion in oral form as soon as the decision to charge has been made and in w ritten form as soon thereafter as possible. The w ritten notice shall contain a description of the specific act of misconduct which is alleged, the offense charged, a listing of the tim e and place for the hearing, and a description of the procedure by which the accused can obtain representation for the hearing. b. The hearing shail be scheduled from three to five days after th e w ritten notice has been given to the accused, except the inmate m ay request the board to schedule hearings at the earliest possible tim e. Priority in scheduling hearings shall be given to inmates who have been detained prior to the hearing. The accused inm ate m ay ob tain an autom atic continuance for an additional three-day period by request to the hearing board. The hearing board may, at its discre tion, grant additional continuances for periods of no more than three days w hich are necessary to insure that all parties have adequate tim e to prepare for the hearing. Commentary Notice. Although Commissioner’s Bulletin 71-7 currently provides that inmates receive written notice of the charges against them, the Bulletin does not set out with any specificity what the notice must contain. Be cause the courts 11 have been unani- 11 Nolan v. S c a f a t i , 30G F.Supp. 1 (D. S o s t r e v. R o c k e f e l l e r , 312 F.Supp. 863 Mass.1969), remanded 430 F.2d 5-1S (1st (S.D.N.Y.1971) a f j ' d in p a r t , r e v . in p a r t Cir. 1970); C l u t c h c t t e v . P r o c u r . i c r , 325 s u b n o m . S o s t r e v. M c G i n n i s , 442 F.2d F.Supp. 767 (X.D.Cal.1971); Bundy v. 17S (2nd Cir. 1971), c e r t . d e n . s u b nom. Cannon, 32S F.Supp. 165 (D..\ld.l971); O s w a l d v. S o s t r e , 405 U.S. 97S (1972). 159 i j u u « *\i w . a. *•' - UZs* I r»fI i MODEL RULES AND REGULATIONS mous In holding that the Due Process Clause of the Constitution requires that notice of the charges be given in prison disciplinary proceedings, the present nonspecific regulation in the Commissioner’s Bulletin is inade quate. The proposed regulation on notice does satisfy the requirements of due process since it makes manda tory listing of the offense, sum marizing the factual basis of the charge, as well as listing the time and place of the hearing. These re quirements collectively should insure that the inmate receives sufficient information to comprehend exactly what he did that was allegedly against prison regulations and to be able to prepare an adequate defense. Time Requirements. The require ments that the hearing be scheduled from three to five days after writ ten notice has been given is designed to insure that both sides have an adequate time to prepare for the hearing, a basic requirement of the minimum standard of due process required for prison disciplinary hear ings.1'- At the same time the pe riod is kept short to maintain a system of speedy hearings. In addi tion, the inmate who desires an im mediate hearing may request sched uling of a hearing before the normal three-day minimum has past. If the Hearing Board should be reluctant to grant discretionary continuances, especially when the inmate has been placed in pre-hearing detention since pre-hearing detention is itself a dep rivation of many privileges. ** Lcndman v. Royster. 333 F.Supp. See also Commissioner's Bulletin 72-1 621 (E.D.Va.1971); Cluickette v. Pro- requiring disciplinary board hearings cunicr, 32S F.Supp. 767 (N.D.Cal. 1971). within 3 days. Rule V—1 Composition of the Hearing; Board, Frequency of M eetings a. Except when the offense charged is one of the category of offenses listed in the code of offenses when petty or slight sum m ary punishm ent m ay be imposed, a formal hearing must be held to deter m ine guilt or innocence of the accused inmate. b. The hearing shall be held before a disciplinary board com posed of three members. Two members of the disciplinary board m ay be em ployees of the institution except that members of the custodial sta ff shall not sit on the board. The third member of the board shall not be an em ployee or former employee of the department but shall be selected from am ong a rotating group of citizens who have volun teered to serve on disciplinary hearing boards at the behest of the governor of the commonwealth. This individual shall serve as chair m an of the hearing board. A minimum of two votes shall be required for any decision by the hearing board. c. The disciplinary board shall m eet at least tw ice per week and a t such other tim es as are necessary to prevent undue delays in the hearing of cases. N o person m ay sit on the hearing board if he was in any w ay involved in the incident which was the cause of the dis ciplinary action. 160 r - 'r '/ r T rr i PRISONERS’ RIGHTS AND RESPONSIBILITIES Commentary Requirements for Hearings. These regulations expand somewhat the requirements for holding of hear ings set forth in the Commissioner's Bulletin. The requirement that full hearings be held in all cases of al leged infringement of the discipli nary code except for a specified cate gory of minor offenses follows the trends of recent case law.13 The requirement reflects the view that the disciplinary process will be most fair and that inmates wiil best un derstand the process when formal hearings are held for most offenses. Num ber o f Meetings. The subsec tion requiring that at least two meetings per week occur is carried over from the Commissioner’s Bulle tin with the additional proviso that extra meetings should be held when ever a backlog of pending cases may threaten the speedy disposition of cases. Composition of the Hearing Board. A major change from the Com missioner’s Bulletin is the section re quiring that at least one person from outside the correctional system be re quired to sit as chairman of the Hear ing Board and that members of the custodial staff not sit on the Board. Both of these changes are designed primarily to insure that the Hearing Board is in a better position to make a reasoned judgment about the guilt or innocence of particular inmates. In prisons, no less than in other closed institutions, there should be safeguards against the possibilities of command influence, or other pres sures that could influence the delib erations of the Hearing Board. Cus todial personnel are excluded because they are the persons in charge of enforcing the disciplinary rules. When one member of the custodial staff sits on the Hearing Board and another brings charges, there may be strong peer group pressures re quiring findings of guilt against the accused inmate. As one commenta tor has noted, "the presence of an outsider would give meaning to the substantial evidence requirement by avoiding institution al loyalties and conflict of interest in the decision-making’ body. More over, his role would undoubtedly im bue the inmates with a greater con fidence in the fairness of the sys tem to which they are exposed.” 14 The requirement that the chair man of the Hearing Board be a per son from outside the penal system is recommended for an additional reason besides that of insuring free deliberations. It is hoped that crea tion of a panel of outside laymen who will agree to spend perhaps two days per month sitting on discipli nary Hearing Boards will bring new discerning viewpoints to the disci plinary process as well as making the process more visible for interested persons outside of the institutions.15 » Landman v. Royster,’ 333 F.Supp. vard Center for Criminal Justice, Judicial 621 (E.D.Va.1971); Jacob, Prison Dis- Intervention in Prison Discipline. 63 J. cipline and Inmate Risk's, 5 Harv.Civ. Crim.L.C. & P.S. 200, 210 (1972). Rights—Civ.Lib.L.Rev. 337 (1970). For a case requiring a hearing before any « For a different view, see Harvard imposition of solitary confinement see Center for Criminal Justice, Judicial In- Biagiarclli v. Sielaff, 349 F.Supp. 913 terver.tion in Prison Discipline, 63 J. (W.D.Pa.1972). Crim.L.C. & P.S. 200, 211 (1972). • 14 Hollen, Emerging Prisoner’s Rights, 33 Ohio St.L.J. 1. 61-62 (1972). See Har- 161 MODEL RULES AND REGULATIONS I t is hoped that the Governor of the Commonwealth will assist in the se lection of a panel of interested citi zens who will sit on the Hearing Boards. Because of the important deci sions which this panel will make, it is imperative that well qualified in dividuals be chosen to serve. Quali fications could include academic training, demonstrated interest in correctional problems and experience in related fields. Since the time commitment should be on the order of two or three days per month, par ticipation will require a serious com mitment by members of the panel, but it should be feasible for many interested citizens to sene. A series of orientation meetings should be held after the panel is se lected to acquaint the members with the procedures for conducting the disciplinary hearings. A majority vote will be sufficient to reach a decision. Disciplinary hearings are not the same as jury Irials but are more closely akin to other administrative processes where less than unanimous verdicts may be reached. With the provisions for review described in Section V-9, there is sufficient protection for de fendants in permitting decision by majority vote.16 Although adoption of the Hearing Board system described above is rec ommended, serious consideration should be given to another proposal which would require statutory au thority to implement. This proposal would substitute for the, Hearing Boards a professional Hearing Of ficer.1' The Hearing Examiners would be attorneys hired by the At torney General of the Commonwealth to be full-time triers of disciplinary offenses. The corps of Hearing Ex aminers would rotate among the var- rious correctional institutions of the Commonwealth spending relatively short periods of time, e. g.. one month, at each institution. The Hearing Examiner would have all necessary authority to hold discipli nary hearings, make findings of fact, and impose punishments. By utilizing Hearing Examiners, the disciplinary decision making would be removed completely from the employees of the institutions and given to a professional trained in conducting hearings. All possibility of undue influence should be re moved by use of impartial competent Hearing Examiners who are not em ployees of the Department of Cor rection. Further study of the feasi bility of utilizing Hearing Examin ers is warranted.18 16 See Prison Reform Institute, Pro posed R e g u l a t i o n s f o r C l a s s i f i c a t i o n e n d Discipline a t V i r g i n i a C o r r e c t i o n a l I n stitutions reprinted in U. S. H. Rep. Comm, on Judiciary Subccmm. No. 3. Correction Part III P r i s o n e r ’s R e p r e s e n tation (1972). >* This proposal is based upon a re cent bill filed in the New York Legisla ture Assembly Bill 6257 of the 1971-2 Regular Session. 18 Mass. Commissioner’s Bulletin 72-1 utilized a disciplinary officer to judge minor matters which may be appealed de novo to the disciplinary board. Rule V -5 Evidence, Standard of Proof a. The hearing board shall adm it all evidence which is reliable testim ony about the facts of the incident from which the charge aris es. H earsay evidence shall be admitted only if corroborated by other 1G2 PRISONERS’ RIGHTS AND RESPONSIBILITIES testim ony or authentication. All evidence must be given in the pres ence of the accused inm ate if he attends the hearing. b. The board shall not adjudicate an inmate guilty of any charge unless persuaded by a preponderance of the evidence presented that the inm ate com m itted the alleged act. Commentary The two parts of this section set out the legal standards required for admission of evidence and adjudica tion of guilt. Standards of Adm issibility of E vi dence. Reliable evidence has been chosen as the standard for admission of evidence because disciplinary hear ings, although increasingly formal and adversarial, are not actual trials where the rules of evidence apply. The Disciplinary Board will be per mitted to hear all testimony which appears to be reliable and will assist it in determining guilt or inno cence.19 In effect, this means that although such strict evidentiary ruies as the best evidence rule need r.ot be followed precisely, testimony of dubi ous reliability such as rumor cannr.ot be admitted. Most commonly, the problem of reliability will arise in re lation to hearsay. As the rule itself states, hearsay can be admitted only if some direct testimony is heard tending to show the accuracy of the hearsay. For example, second-level hearsay statements by a guard that he heard from another that the ac cused inmate made an implicating statement would be inadmissible un less the guard had some direct state ment of the accused indicating the accuracy of the original statement or unless someone who had heard the original admission appears to testify against the accused inmate. All evidence must be presented in the presence of an inmate who at tends the hearing to permit the in mate to confront his accusers. Inmate Refusal to Attend. Un der the current rules, failure to attend a disciplinary hearing may in itself be cause for disciplinary ac tion. We believe that the inmate’s refusal to attend should have no evi dentiary value but should be seen merely as a waiver of his rights to confront his accusers. Since the hearing may continue in his absence, the inmate does not escape possible imposition of penalties for the origi nal offense. Any additional penalty should be merely gratuitous. Standard of Proof. The burden of proof for determining guilt at a disciplinary hearing has been set as a preponderance of the evidence. This standard clearly places the burden of proof on the prosecution to overcome a presump tion of innocence for the inmate but should be comprehensible to laymen sitting on a disciplinary board and easily applicable in practice.50 19 See Commissioner’s Bulletin 72-1 setting a reliable evidence standard. *®Ho!len, Emerging Prisoners' Rights. 33 Ohio St.L.J. 1. 61 (1972). The Har vard Center for Criminal Justice study of the disciplinary process in Rhode Is land concluded that the applicable stand ard of proof had no meaning unless the composition of the Hearing Board was changed. Harvard Center for Criminal Justice. Judicial Intervention in Prison Discipline, 63 J.Crim.L.C. & P.S. 200, 211 (1972). • 163 IMi'fcf.T. WA, W r^mVg f ■ >■». T rSA.tr.i-. '| f i ' i i k *-i'- ;| i ■ 1 ■ - Itf ll' I l I i i .i i' » *, I 1 \ MODEL RULES AND REGULATIONS Rule V -6 Record, Reiusons for Decision a. The board shall prepare a sum m ary record of the proceedings listing the names of all persons attending the hearing, and those giv ing testim ony, the nature of the charges against the inmate, and a sum m ary of the evidence presented by each witness. The inmate shall receive a copy of this sum mary and may append a statem ent show ing disagreem ent with any portions of the record he regards as inaccurate. b. For offenses in the major category, inmates m ay request that a tape recording of the proceedings be made. If the inm ate desires to appeal, he m ay listen to the tape and request a transcription of the entire or any part of the proceedings. A copy of the transcript shall be given to the inmate, or upon his direction, to his representative. The tape shall be preserved until all adm inistrative review is com pleted. c. In the event that the inm ate is found guilty of the charge, the hearing board shall state the reason for its decision on the record. A ny dissent shall be noted. A statem ent of the rationale for the dis position shall also be stated. d. The inmate shall receive written notice of the board’s action and the statem ent of the reasons for their verdict and disposition. Commentary Record. Except for the major of fenses category where more formal procedures shall be followed, a sum mary record of the proceedings shall be kept to provide an adequate means for review of the hearing. Although the record need not be a full tran script, it must provide a sufficient summary of the testimony that a reader of the record can understand what transpired at the hearing. The requirements set forth in the rules demand that the testimony of each witness be summarized. For major offenses, it is impera tive that the inmates have an option to request that transcripts be com piled for later review. Tape record ing rather than stenography is rec ommended as the method for record- *l Landman v. Royster, 333 F.Supp. 621 (E.D.Va.1971). 164 mg the hearings because this meth od is appreciably less expensive. Reasons for Decision. To insure that the decisionmaker’s conclu sions about the guilt or innocence of an alleged violator of prison disciplinary rules rest solely upon the proper legal foundation, most states, including Massachusetts, re quire that reasons for the deci sion must be given. The deci sion must be based on the evidence presented because it is “fundamental to due process that the ultimate de cision be based upon evidence pre sented at the hearing which the pris oner has the opportunity to re fute.” The statement of reasons for the decision must be clear “though this statement need not amount to a full PRISONERS’ RIGHTS AND RESPONSIBILITIES opinion or even formal findings of fact and conclusions of law.” 12 No tice of the action should be given to the inmate to insure that he is in formed of this action and able to understand the basis for their deci sion. Since the disposition, as well as the determination of guilt or in nocence, will be reviewed, the ration ale for the sentence where a range of sentencing possibilities existed must be stated on the record to as sist in later review of the proceed ings. ** Goldberg v. Kelly. 397 U.S. 254. 271 (1970). Cf. Morris v. Travisono, 310 F. Supp. 854 (D.R.I.197C); Clutchetle v. Procunicr, 328 F.Supp. 7C7 (X.D.Cal. 1971). But cf. Sostre v. McGinnis, 442 F.2d 17S (2nd Cir. 1971), cert. den. sub nom. Oswald v. Sostre, 405 U.S. 978 (1972). R ule V-7 Inm ate Right to Cross-Examine and Call Witnesses a. The inmate may cross-examine all persons who present testi m ony contrary to his interests. He shall have the opportunity to m ake any statem ents in his own defense or in mitigation and may call witnesses favorable to himseif. The inmate shall inform the hearing board of all witnesses he wishes to call a t least 24 hours be fore the hearing is scheduled. The inmate shall be given an oppor tun ity , along with his attorney or representative, to meet with said witnesses no less than 12 hours before the hearing. b. Fellow inmates may be excused from giving testimony either for or against the accused inmate if their testifying would endanger their personal safety. The hearing board shall hold a private hearing to examine any inmate who claims that his safety would be endan gered by giving testimony. The decision to require testimony may be reviewed by the superintendent at the request of the inmate who had requested to be excused. Commentary The question of whether to permit cross-examination by inmates at dis ciplinary hearings has been one of the most controversial issues. It has been litigated often with differing results. Some courts have feared that the necessary power relation ships in a prison would be disrupted if cross-examination were permitted. In the earliest case on the issue, the U. S. District Court in Massachu setts held: "Cross-examination of a superintendent, a guard, or a fel low prisoner would almost inevitably go beyond the usual consequences of such probing in a court. It would tend to place the prisoner on a level with the prison official. Such equal ity is not appropriate in prison. And, it is hardly likely that in the prison atmosphere discipline could be effectively maintained after an official has been cross-examined by a prisoner. There are types of au thority which do not have as their sole or even principal constituent, rationality. Parents, teachers, army commanders, and, above all, prison wardens have the right to depend to a large extent (though not arbitrar ily) upon habit, custom, intuition, common sense, not reduced to ex press principles and other forms of judgment based more on experience than on logic . . . A judicial 165 ̂ /-V - »irfiA4 g;u. ,t ,, kj.i■ rfiBn 'i«m MODEL RULES AND REGULATIONS examination of one’s fellow prisoners in an atmosphere of a prison might easily prejudice discipline, security, and degree, priority and place.” 23 This statement in Nolan has aroused considerable contrary argu ment based on the notion that due process cannot be satisfied without permitting opportunities to cross- examine or present favorable wit nesses. “It is anomalous to suggest that the inmate should be afforded ‘an opportunity to be heard in his own defense.’ while at the same time denying him the corollary right to present witnesses and cross-exam ine.11 In the case of Goldberg v. Kelly, the United States Supreme Court, in a case involving termina tion of welfare benefits, stated that, “in almost every setting where im portant decisions turn on questions of fact, due process requires an op portunity to confront and cross- examine adverse witnesses." 25 Pris on disciplinary hearings should be among the types of hearings when Goldberg protections do apply be cause of the serious penalties which can ensue from adjudications of guilt. “Considering the significant quantum of personal liberty which is threatened, the quasi-criminal na ture of the disciplinary proceeding, the constructive and rehabilitative effect of a fair disciplinary hearing, and the rather unique pressures and relationships existing in prisons, it would seem that the requirement that prison disciplinary proceedings guarantee inmates the right to con frontation and cross-examination is well founded though novel.” 26 The issue of whether to permit cross-examination and calling of de fense witnesses presents a problem in balancing the legitimate needs for institutional security with the re quirements that sufficient evidence be presented at disciplinary hear ings. Cross-examination of persons presenting evidence against the in mate and the calling of defense wit nesses are necessary to insure that the Hearing Board receive a bal anced account of the events which led to the charge against the accused inmate. At the same time, legiti mate concerns for security may re duce. somewhat, the full exercise of those rights. For example, the in mate must give advance notice of any witnesses he wishes to call in order that their presence may be assured. Thus, the Hearing Board may ex cuse any inmate who requests to be excused from testifying, at its dis cretion, even inmates who have brought charges against other in mates if the Hearing Board upholds their claim that their testifying would create a danger to their per sonal safety. Similarly, it is within t 3 N o l a n v. S c a f a t i , 306 F.Supp. 1 CD. Mass.1969), remanded -530 F.2d 545 (1st Cir. 1970); cf. S o s t r e v. M c G i n n i s , 442 F.2d 17S (2nd Cir. 1971), reversing in p a r t Sostre v. R o c k e f e l l e r . 312 F.Supp. 863 (S.D.N.Y.1959). But cf. Bur.dv v. C annon, 325 F.Supp. 165 (D.Md.1971); M o r r i s v. T r c v i s o n o , 310 F.Supp. S54 (D. R.I.1970); C l u t c h c i t e v. P r o c u n i c r , 32S F.Supp. 767 (N.D.Cal. (1971)). 23 G o l d b e r g v. K e l l y . 397 U.S. 254 (1970) followed in C l u t c h e t t e v. P r o c u n i c r , 325 F.Supp. 767 (N.D.Cal.1971). 25 Milleman, Prison Disciplinary H e a r i n g s a r . d P r o c e d u r a l D u e P r o c e s s : T h e R e q u i r e m e n t c f a F u l l A d m i n i s t r a t i v e H e a r i n g . 31 Md.L.Rev. 27, 51 (1971), cf. Hollen: E m e r g i n g P r i s o n e r s ' R i g h t s , 33 Ohio St.L.J. 1, 70 (1972). *■* Jacob, Prison D i s c i p l i n e a n d I n m a t e Rights, 5 Harv.Civ.Rjghts—Civ.Lib.L. Rev. 227, 246 (1970). 166 PRISONERS* RIGHTS AND RESPONSIBILITIES the a u th o r i ty o f the disciplinary t r ib u n a l to restrict questioning to r e le v a n t matters in order to preserve d e c o ru m and prevent undue repeti t io n .* ’ These controls on the exer c is e o f cross-examination and calling of w itn e s s e s should prevent the dif ficulties feared by the Massachusetts court in the section quoted earlier, but permit the entry of sufficient evidence that the Hearing Board may accurately determine guilt or innocence of the accused.*8 *1 See L a n d m a n v. R oyster, 333 F. Supp. 621 (E.D.Va.l&71). ** Jacob, P r i s o n D i s c i p l i n e a r . d I n m a t e s ’ R i g h t s , 5 H arv.C iv.R ights-Civ. Lib.L.Rev. 227, 247 (1970): B rant, P r i s o n D i s c i p l i n a r y P r o c e d u r e s : C r e a t i n g R u l e s , 21 Cleve.St-L.Rev. S3. 93 (May 1972). Rule V -8 Representation a. W hen offenses other than the category of major offenses are charged, the accused m ay have the assistance of a representative of h is own choosing at the hearing. The representative m ay be a law student, chaplain, member of the staff, or f e l io w inmate whom the accused inm ate selects and who agrees to represent the inmate at the disciplinary hearing. For the category of major offenses, the accused m ay be represented by an attorney or any other possible representa tive listed above. b. E ach institution shall conduct periodic training sessions for inm ates and staff who wish to learn the arts of advocacy in disci plinary hearings. The nam es of all persons who have completed the training course shall be made available to all accused inmates, but ac cused inm ates are not lim ited to the names on this list when selecting a representative. c. A t the discretion of the hearing board, a staff member m ay be appointed to present the evidence against the accused inmate. Commentary The current regulations enunci a te d in Commissioner’s Bulletin 7 1 - 7 p e r m i t inmates to select staff m e m b e rs to represent them at dis c ip l in a ry hearings. The proposed r e g u la t io n s seek to give inmates a w id e r choice of persons who may rep r e s e n t them. A lawyer representa t iv e is not required because of the im m e n se practical difficulties with p ro v id in g counsel for all inmates a t disciplinary hearings. IV ith esti mates of 90fc indigency among pris on inmates, it would be close to im possible to provide lawyer represen tation for inmates a t all disciplinary hearings.*9 Because of these practi cal difficulties, the courts which have required due process standards a t disciplinary hearings have shied away from a requirement that in- ** Jacob , P rison D i s c i p l i n e a n d I n m a t e s ' R i g h t s , 5 Harv.Civ.Rights-Civ.Lib. L.Rev. 227 (1970). KratU-Mod Rulti L Rts.Prlieraf Rifhtl—12 167 Jti'iHitrt. MODEL RULES AND REGULATIONS mates be represented by attorneys, but they have required that inmates have the opportunity to select a coun sel-substitute to represent them.30 The regulations proposed here give the inmate a choice among several possible representatives, including law students,31 fellow inmates,3-' or staff—33 these suggested representa tives are also mentioned in other proposed rules and regulations from other jurisdictions.31 Counsel is an available option for the category of major offenses because of the severe penalties which may be imposed up on findings of guilt. Training Sessions. In addition to providing a wide choice of possible representation, the proposed regula tions require that each institu tion sponsor training sessions so that interested inmates and staff personnel may receive instruction in representing others at dis ciplinary trials. From the persons v,ho complete the training course v.-ill come a list of persons within the institutions who are interested in and trained for representing in mates at disciplinary hearings. In mates accused of disciplinary' viola tions will be given this list at the time formal notice of the charge is given. The accused may select a name from this list, but he is free to select another individual if he so chooses and that individual agrees. Prosecution. The proposed regu lations provide that staff mem bers may be appointed at the discretion of the Hearing Board to present the evidence against the inmate. This role will be analo gous to that of the police prose cutor in the district courts of the Commonwealth in that the prose cutor will be a non-professional des ignated to present the institution’s case. The Hearing Board may ap point a prosecuting official either on its own initiative or at the re quest of the staff member who brought the charge against the in mate. It is envisaged that prosecu tors will generally be used whenever major offenses are charged and on other occasions when charging offi cers desire someone to represent them or when the board prefers that both parties are represented by coun sel-substitute. I f « % C l u t c h e t t c v. P r o c u n i c r . 32S F.Supp. 767 (N.D.Cal.1571): M o r r i s v. T r a v i s o n o . 3110 F.Supp. 664 (D.R.I.1970). 31 Hollen, E m e r g i n g P r i s o n e r s ' R i g h t s . 33 Ohio St.LJ. 1. 60 (1972). representation is inadequate because staff members are afraid to be advo cates for the inmates. Harvard Center for Criminal Justice. J u d i c i a l I n t e r v e n t i o n in P r i s o n D i s c i p l i n e , 63 J.Crim.C. &P.S. 200,205 (1972). 31 See J o h n s o n v. Avery, 393 U.S. 483 (1969). 33The study of the disciplinary proc ess in Rhode Island indicated that staff 34 California Assembly Bill No. 2904 (1971 Regular Session). Nat. Legal Aid and Defender Assn., P r o p o s e d R e v i s i o n s f o r L o r t o n C o r r e c t i o n a l Complex (1971). Rule V -9 Review a. A ny finding of guilt and any disposition m ay be appealed to the superintendent. The appeal must be requested within 4S hours. N o sentence shall take effect until the superintendent has reviewed the decision of the hearing board. The inmate m ay subm it a written statem ent for the superintendent's consideration. The superintendent 168 if, i ■ dk mhAca&A fc4U itTUrtli—rrfara PRISONERS' RIGHTS AND RESPONSIBILITIES shall receive a copy of the sum m ary record or transcript compiled by th e board plus any statem ent submitted by the inmate and shall base his decision on this inform ation. He shall reverse the conviction if it w as not based upon a reasonable assessm ent of the evidence presented. In the interests of justice he m ay also order further or new proceed ings or reduce or suspend the actions of the board. In no circum- .> ’ stances m ay he increase the severity of the disposition imposed. W rit- . ten notice of the decision shall be given to the inmate. The sentence as determ ined or affirm ed by the superintendent shall be imposed aft- er notice is given to the inmate. If the inm ate is in pre-hearing de tention, the superintendent m ust act within 4S hours or the inmate is to be released. b. W ithin 48 hours after notice of the superintendent’s decision is given to the inm ate, he m ay appeal to the commissioner by filing an appeal form which will be provided along with the notice of the superintendent’s decision. The comm issioner shall review the m a terial subm itted to the superintendent and any additional statem ent provided by the inm ate. The com m issioner may act to affirm or mod ify the decision in the sam e m anner and upon the same standards as m ay the superintendent. Commentary This proposed regulation formal izes the procedures permitting ad ministrative review currently stated in the Commissioner's Bulletin. It provides for opportunities for review by the institution superin tendent and by the commissioner. Each of these reviews shall consider whether the verdict of guilt was R ule V -10 Em ergency a. In the event of a widespread em ergency which threatens life and property and seriously disrupts the functioning of the institution, the superintendent m ay order immediate detention of any inmate for a period up to 4S hours. If the cause of the em ergency extends be yond 48 hours, continued detention m ust be authorized in writing by c ’ the com m issioner. b. Upon restoration of order, the normal disciplinary procedures % shall be im m ediately reinstated. All inm ates who were detained un- * der the em ergency provisions shall be tried before a disciplinary hear ing board in accordance w ith the rules of this chapter. Commentary of the penal institution will have to There may arise riots or other sit- he suspended. These aie the few uations when the normal procedures circumstances where large numbers 169 supported by the evidence and whether the sentence imposed was just. The superintendent and the commissioner have the authority to reverse convictions not based upon the evidence presented and to modify the sentence or order new or further proceedings in order to assure that the inmate receives an equitable disposition. -*VrW. ' ^ . ^ , ^ > ^ ' . . 1 . , : , ---- - 1 - ■■■.< v.v . ir, MODEL RULES AND REGULATIONS of Inmates are involved in activities which pose a serious threat to life and property rather than alterca tions between small numbers of in mates which do not disrupt the in stitution as a whole. This section provides that the invoking of emer gency provisions must be authorized by the superintendent for the first two days and by the Commissioner for any longer period of time. The authorization procedure is recom mended as a means of insuring that the emergency provisions are con strued narrowly and only invoked during times of true emergency.13 These provisions are temporary and may be invoked only during a state of emergency. As soon as normalcy returns, the regular pro cedures for discipline are to be quickly reinstated and are to be ap plied retroactively to all persons de tained during the period when the emergency provisions were in effect. * 35 Morris v. Travisono, 310 F.Supp. 854, 861 (D.R.1.1970). Rule V - l l Expungem ent a. A ny inm ate found not guilty at the hearing or whose convic tion is reversed shall have all mention of the charges expunged from h is perm anent record immediately. b. A ny inm ate who receives a penalty at a disciplinary hearing involving loss of good time, transfer, change in custody status, or as signm ent to segregation or isolation m ay have all reference to and record of the violation expunged from his permanent record if he is not found guilty of com m itting any rule violation for a period of 360 days from the date of the hearing except that imposition of sum m ary punishm ents shall not affect expungem ent. c. A ny inm ate who receives any other penalties at a disciplinary hearing m ay have his record expunged after a period of ISO days after th e date of the hearing except that imposition of sum m ary punish m ent shall not affect expungem ent. Commentary This provision gives inmates an opportunity to clear their discipli nary records if they avoid viola tions of the disciplinary rules for ISO or 360 days, depending upon the severity of the offense committed. The provision is designed as an in centive to inmates to avoid further violations of the code of offenses. Inmates found not guilty or whose convictions are reversed will have all mention of the charges expunged immediately in order to assure that no negative connotations result from the charge having been brought. 170 Appendix C MODEL RULES AND REGULATIONS IC. Mail, Visitation, and Telephones General Introduction Once a person is in prison, his opportunities for contact with the world outside are, of course, severely limited. Three means of access which remain are through corre spondence, visits and telephone calls. In this section, rules are proposed to regulate the permissible access by mail, visitation, and telephone of in mates to the free society. This has been an area of consider able change in recent years. From the historical tradition that one in prison was banished from all con tact with society,1 our society has moved to accept the notion that in mates retain limited rights of ac cess. In recent years, strict censor ship of mail has been often chal- 1 See A. Wolfson, Spinoza: A Life of Reason, 74 (1932). 44 « 347 U.S. 4S3 (1954). i n ~ M i i y M i i i , -v J- ■-‘t,.!^ r> ■;—— PRISONERS’ RIGHTS AND RESPONSIBILITIES lenged in the federal courts. The thrust of these decisions has been that whenever possible, uncensored mail should be permitted and that the only permissible restrictions are those which are validly related to the security requirements of the in stitution.* Many prison censorship regulations have been changed to re flect these court decisions.3 For the most part, the regulations proposed here follow the direction of those decisions in attempting to find a feasible position which will pre serve the constitutional rights of the inmates but in no way endanger in stitutional security. Definitions For the purposes of correspond ence regulations, the following ma terials shall be considered contra band, and may be confiscated under the provisions of this section. A. Objects 1. Currency (paper or coin). 2. Postage stamps. 3. Narcotics, hallucinogenic, or other illegal or invalidly possessed drugs. 4. Plans for the manufacture of weapons, incendiary devices, escape routes or the manufacture of drugs or alcohol. 5. Alcoholic beverages. 6. Weapons of any variety. 7. Perishable goods. 8. Any items other than reading matter which are not included on a list of authorized inmate possessions used by the Department of Correc tion. B. Publications 1. Materials which describe the manufacture of weapons, bombs, in cendiary devices, or the brewing of alcohol if their possession by an in mate would create a danger that they would be used to threaten the order of security of the institution. 2. Materials which would be con sidered obscene under current U. S. Supreme Court standards (i. e., those containing pictures or descrip tions of sexual acts which are utter ly without redeeming social impor tance). C. Apportionment of Personnel The Postal Officer and Visiting Room Officer are personnel crucial to the implementation of the pro grams herein proposed. These in dividuals should all be appointed by the institution superintendents. They shall be selected from among the ranks of the officers. (The Vis iting Room Officer may also double as supervisor of the telephone instal lation) . *E. g., Palmigiano v. Travisono, 317 F.Supp. 776 (D.R.I.1970); Marsh v. Moore, 325 F.Supp. 392 (D.Mass.1971); Smith v. Robbins, 328 F.Supp. 162 (D. Me.1971) aff'd 454 F.2d 696 (1st Cir. 1972). See Comment, Palmigiano: The Constitutionality of Prison Mail Cen sorship, 21 Cath.U.L.Rev. 215 (1971). Singer, Censorship of Prisoners' Mail and the Constitution, 56 A.B.A. J. 1051 (1970). 3 Office of Adult Corrections, Olym pia, Washington Mem. No. 71-8, Revi sion of Correspondence Regulations of Adult Corrections Institutions (1971). Pennsylvania Commissioner of Correc tions, A. Directive No. 3, Inmate Mail Privileges (1972). Minnesota Commis sioner of Corrections, Policy Restate ment Concerning Adult and Youthful Offenders—Inmate Mail Procedures (1971). 45 M L, MODEL RULES AND REGULATIONS Rule IC-1 Outgoing Letters a. Inmates may send letters to any person, including inmates in other institutions. There shall be no restrictions upon the number of letters that may be written, the length of any letter, or the lan guage in which a letter may be written. b. All outgoing letters shall be sealed by the inmate and deposit ed in locked mail boxes, which shall be positioned in central, available locations within each institution. All such mail shall be collected daily (except Sunday) by the postal officer, at a predetermined time, and delivered to the U. S. Post Office on the same day. No outgoing letters shall be opened by corrections personnel except upon probable cause and after a warrant has been obtained from a court of law. c. • Each letter shall bear the writer’s name and institutional address on the upper left-hand corner of the envelope. Although no letters will be logged, or names recorded, each inmate should realize that he is subject to the same federal laws and regulations governing use of the mails as are generally applicable to other persons using the U. S. mails. Any complaints from recipients of letters as to threats, obscenities, libels or other illegalities shall be referred to postal au thorities for appropriate action. d. The institution will supply inmates whose institutional ac counts are not sufficient with stationery and postage for three letters each week, which may be addressed to either a foreign or domestic address. Stationery and stamps for other letters may be bought at the canteen. Rule IC—2 Incoming Letters a. There shall be no limit to the number of letters an inmate m ay receive. Letters shall not be restricted as to length or language. The writer’s name and address shall appear on the envelope of each letter. b. N o incoming letters shall be read, even in the cases where they m ay be opened (§ c, below), except upon showing of probable cause and obtaining of a warrant from a court of law. c. Alternative 1: All letters shall undergo visual and tactile external examination for contraband. No letters shall be opened unless there is probable cause that a particular letter threatens the order or security of the institution. The following circumstances shall constitute probable cause: (1) A particular letter being too thick to determine whether contraband may be present, or containing material that feels suspicious. (2) A letter bearing no return address. 46 d r. > fc W t. PRISONERS’ RIGHTS AND RESPONSIBILITIES (3) Recent discovery of contraband in possession of an inmate, which may have been obtained through letters, and which is otherwise unexplained. Alternative 2: A ll incoming letters shall be opened and inspected for contra band, but shall not be read. d. Correspondence from attorneys, courts, state and federal offi cials, and corrections officials shall not be opened except in the pres ence of the inmate addressee. Other mail, to include packages, shall be opened only in the presence of the inmate postal observer (§ e ). e. The inmate council shall appoint one inmate each day for w hatever period is required to observe the actions of the postal officer in opening letters and packages. The inmate postal observer shall insure that no letters are read, and shall witness any discovery of contraband. He shall sign, as witness, a daily statement by the postal officer indicating all item s of alleged contraband found in the m ail, or that there is none if such is the case. f. I f contraband is discovered under Rule IC-2 the postal officer shall, in the presence of the inmate postal observer, remove such con traband and send it to the superintendent or his designee. The postal officer shall at this time complete a notice form to the inmate, in form ing him of this action. A notice form shall be delivered to the inm ate within twenty-four hours, along with any letter that may have accompanied the contraband material in the envelope. The notice form shall indicate the name and address of the sender of the letter, and the nature of the confiscated contraband. A copy of the notice form shall also be filed with the superintendent or his designee. If It appeal's that a state or federal law has been violated, the material shall be referred to the appropriate authority for criminal prosecu tion. A n inm ate will not be disciplined merely because contraband has been received in a letter addressed to him; but if an investigation determ ines that such contraband was mailed with his knowledge or consent, his name may be referred to state or federal authorities for appropriate action. Rule IC—3 Packages a. Packages may be received from any person. Inmates should be aware of regulations as to illegal possessions, however, and should inform their correspondents of such regulations so as to avoid the introduction of illegal items into the institution. b. All packages shall be opened in the presence of the inmate postal observer. Those which contain contraband shall be returned to the sender, and the inmate shall be notified within twenty-four hours. (If the contraband is of such a nature as to violate state or federal 47 f u w . i w y . « ■ * 1. *11' IM W IW W T . ’W IW 'P | ■ ll 1 M JJ HI'. U K . --- --- --- --- --- — --- --- --- --- --- --- --- --- --- --- --- --- --- --- --- -- ----- --------- A . ^ .:.. v .r.irtA ^ ,,,..... . L .u-iii. ----- MODEL RULES AND REGULATIONS law, it will bo treated the same as contraband in letters under Rule IC-2f. All other packages will be delivered to the inmate addres see on the day they are received. Rule IC—4 Publications a. An inmate may receive books, magazines and newspapers from any source, either as gifts or by express order or subscription. Any such materials obtained at cost to the inmate must be prepaid. b. Packages containing published materials shall be treated in the same manner as other packages, under Rule IC-3b. c. Reading materials may be censored in accordance with the established regulations defining contraband. Decisions as to the classification of such materials will be reached as follows: (1) Within twenty-four hours the postal officer shall forward questionable publications to postal authorities for determina tion whether the publication has passed through the mail in violation of federal law. If the postal officer believes that material may legally have passed through the mails but con stitutes an immediate threat to the institution, he shall sub mit the material to the superintendent or his designee. (2) The superintendent or his designee shall read as much of a book as may be necessary to make a reasonable determina tion whether it is admissible, or in the case of a magazine or newspaper, shall read the article in question. If a par ticular article is found to be contraband because it creates an immediate threat to institutional order, it may be clipped from the newspaper or magazine. Similarly, an entire issue of a periodical may be declared contraband if it creates an immediate threat to institutional order. All acceptable ma terial shall be delivered to the inmate within twenty-four hours from the time the postal officer receives it (or forty- eight hours from its arrival in the institution). The inmate shall be notified of materials withheld within the same period of time. All materials determined to be contraband shall be held for five days. If no order is received from the com m issioner’s office by that time, articles from periodicals shall be destroyed, and books returned to sender with an explanatory note. However, if the inmate expresses an in tent to challenge the postal officer's decision in a court of law, the item s shall be retained until all proceedings have ended. If books were purchased by the inmate, all returned funds shall be deposited in the inmate’s institutional ac count. (3) If an inmate wishes to appeal a decision by the superintend ent or his designee, he must initiate a grievance procedure 48 f ■ ...W W W ! I" aifir **—.->*. PRISONERS’ RIGHTS AND RESPONSIBILITIES within forty-eight hours. The questionable material will then be ordered by that office from the institution within forty-eight hours. The commissioner or his designee will re view the material, and take appropriate action. The inmate should receive either the material, or a note indicating an adverse decision on appeal, within seven days. d. N o periodical m ay be summarily rejected as contraband, al though any individual issue that is determined to be contraband may be withheld from an inmate. e. If an inm ate’s native language is not English, he may not be denied publications merely because they are printed in a foreign language. Commentary— Standards of Regula tion When establishing proper stand ards for censorship and control of inmates’ correspondence, one must work from the principle that an in mate “retains all rights of an ordi nary citizen except those expressly or by necessary implication taken from him by law.” 4 Since the pres ent issue involves First Amendment freedoms, the question posed by any regulation in this area is whether that regulation can be adequately justified by the corrections admin istration as a valid restriction upon an inmate’s First Amendment rights. For more than thirty years, the Supreme Court’s standard for regu lation of speech was “whether the words are used in such circumstanc es and are of such a nature as to create a clear and present danger that they will bring about the sub stantive evils that Congress has a right to prevent.” 3 More recently, in Dennis v. United States,6 the Su preme Court amended the “clear and present danger” standard to adopt an “interest balancing” standard. Judge Learned Hand, in his lower court opinion, set forth the require ment that “in each case (courts) must ask whether the gravity of the ‘evil,’ discounted by its improbabili ty, justifies such invasion of free speech as is necessary to avoid the danger.”* The Supreme Court af firmed this decision and Justice Frankfurter, in his concurring opin ion, criticized the old standard as “inflexible,” suggesting that “the demands of free speech in a demo cratic society as well as the interest in national security are better served by a candid and informed weighing of the competing interests, within the confines of the judicial proc ess.” * The Dennis standard was recent ly applied to a prison case by the Fifth Circuit Court of Appeals which declared: “The State must show some substantial controlling interest which requires the subordi nation or limitation of these impor tant rights, and which justifies their infringement . . . and in the absence of such compelling justifi- 4 Coffin v. Reichard, 143 F.2d 443 (6th Cir. 1949) cert. den. 325 U.S. 887. 5 Schenck v. U. S„ 249 U.S. 47 (1919). 6 341 U.S. 494 (1950). 7 183 F.2d at 212 (2nd Cir. 1949). *341 U.S. at 524-525. 49 iii III MODEL RULES AND REGULATIONS cation the State restrictions are im permissible infringements of these fundamental and preferred rights.” 9 In a recent case, the Federal Dis trict Court in Rhode Island stated that “total censorship serves no ra tional deterrent, rehabilitative or prison security purposes.” 10 This case led to a major revision of the mail censorship regulations in that state. Other states have recently given some attention to this impor tant decision, and have limited the amount of permissible restrictions.11 1. Outgoing Letters In recent months, the Department of Correction has permitted all out going mail to leave the inmate’s pos session sealed and uncensored. This satisfies one of the major proposals with respect to outgoing mail. But there is no provision within the same memorandum for the amount of mail which may be sent, nor is there any change in the restrictions regarding persons who may receive mail, the length of letters, or the requirement that letters be written in English. It is with these issues that the pro posed regulations expand upon the current regulations of the Depart ment of Correction. The permissible restrictions upon mail are dictated by emerging inter pretation of the First Amendment in the prison context. The administra tion cannot regulate mail merely to protect its interest from a danger that “might” arise in the future— they must show that such a danger is clear and present, that it is great enough to warrant an invasion of First Amendment rights and fur thermore, that there is no alterna tive method of dealing with the dan ger other than suen an invasion of the inmate’s rights.12 Accordingly, regulations restricting numbers of letters, or prohibiting letters by male inmates to unrelated married fe males, or to ex-offenders, or prohibit ing letters in foreign languages all lack validity.13 None of these regula tions deals with a clear and present danger of any sort.14 While one can visualize the possibility that a letter would be obscene or threatening or could contain escape plans, the mere possibility of such letters is not such as to warrant the restriction. More over, since an alternative remedy ex ists through the postal regulations and state law, the justification for the restriction fails. In addition, the proposed rule re quires that the sender's name and institutional address appear on the envelope (IC-lc). This in itself pro vides some insurance against the evils that other restrictions would regulate—for any improper letters would be subject to complaint by the addressee, and would result in disci plinary or legal action against the inmate. (IC-ld). Similarly, restrictions on length or language are meaningless. If an in mate were writing an escape plan to a friend, a danger to the institution would not exist unless security was so lacking in other areas that es- •Jacfeson v. Godwin, 400 F.2d 529, 541 (5th Cir. 1968). 10 Palmigiano v. Travisono, 317 F. Supp. 776, 785 (D.R.I.1970). 11 See e. g., Mass. Commissioner’s Memorandum of Jan. 12, 1972, and the regulations cited in fn. 3. 12 Palmigiano v. Travisono, 317 F. Supp. 776 (D.R.I.1970). 13 Fox, The First Amendment Rights of Prisoners, 63 J.Crim.L.C. & P.S. 162, 174 (1972). 14 Morales v. Schmidt, 340 F.Supp. 544 (E.D.Wis.1972). 50 At — I I. I ) ) i ) ii i■ I i* i i !I I ■ i W9T* rtinlfcahlVw 11' ijjc&i! PRISONERS’ RIGHTS AND RESPONSIBILITIES cape could be easily accomplished. If such were the case, a mere regu lation on letter writing would prob ably be of little value for security purposes. Eliminating mail inspec tion would hardly leave the state powerless to prevent escapes. At tempted escape from prison is a criminal offense and anyone con spiring by mail to assist in an at tempt could also be prosecuted.15 Furthermore, the security interest cannot outweigh the inmate’s First Amendment rights. As a United States District Judge recently wrote, “I am not persuaded that the gov ernment’s interest in diminishing the likelihood of such future unlaw ful activity by one committed of past crime is so compelling as to per mit the vindication of this interest by interference with the correspond ence of the plaintiff.” 16 Finally, restrictions on letters in foreign languages have little value and are an invasion of freedom of speech to non-English speaking in mates. The requirement that the institu tion furnish postage for indigent in mates is consistent with current cor rectional policy and with recent court decisions.11 Since letter writ ing is to be encouraged for rehabili tative reasons, the institution must insure that all inmates have access to writing materials and postage. Since all outgoing mail will be sent unopened, no mention has been made of special treatment for letters to at torneys, State and Federal officials, etc. All letters will now be brought up to the standards that formerly applied only to such “special” let ters. By the same token, letters to the press will be guaranteed, though their return to the institution may be censored under provisions of § HE—4c if defined as contraband.18 2. Incoming Letters Rule IC-la and b create the same general provisions for incoming let ters that IC-la creates for out going letters. For the same reasons stated above, these are most reason able, and the Department of Cor rection has already taken significant steps in establishing such a system. Section IC-2c is stated in the alter native, primarily because the major considerations in this area are ad ministrative in nature, and should therefore be considered with an eye for efficiency and simplicity of func tion, while still maintaining both proper security and proper regard for inmate’s rights. The first al ternative provides the inmate with a greater feeling that his rights have been preserved, in that he receives his mail intact from the sender in a sealed envelope. Exceptions to this would occur only where the Postal Officer has probable cause to open the envelope. It is assumed that most of these instances would be where an envelope is too thick to permit an effective tactile search (IC—1) or where there is no return « ,s Note, Prison Mail Censorship and the First Amendment, 81 Yale L.J. (1971). See Hollen, Emerging Prisoners' Rights, 33 Ohio St.L.J. 1, 17 (1972). Forys, Constitutional Rights of Prison ers, 55 Mil.L.Rev. 1. 37 (1972). w Morales v. Schmidt, 340 F.Supp. 544, 555 (E.D.Wis.1972.) 11 Jones v. Wittenberg, 330 F.Supp. 707, 719 (N.D.Ohio 1971) aff'd sub nom. Jones v. Metzger, 456 F.2d 854 (6th Cir. 1972) (Institution must furnish postage for 5 letters per week). 18 Nolan v. Fitzpatrick, '326 F.Supp. 209 (D.Mass.1971) aff’d 451 F.2d 545 (1st Cir. 1971). V*.̂ •- a , — »■{,.,! -~“- 11 •»• ■ -Sinn MODEL RULES AND REGULATIONS address (IC-2c(2). Nevertheless, an inmate would be much more willing to submit to such an inspection in the interest of security if such an inspection were limited to instances where there was valid reason for it. These standards of probable cause allow for the possibility that the sender is unknown (no return address), the receiver is suspect (discovery of contraband in his pos session without another known source), or the letter itself is suspect. Such standards provide an adequate measure of security, yet al low the normal current of relatively short, personal letters to pass undis turbed.19 The primary problem with the first alternative is the administra tive burden that would be placed on the Postal Officer. It is presently impossible to determine how many letters are overly thick, or are readily determined to be suspect. A great many would probably be borderline cases, facing the officer with the question of whether or not to open them. The necessity of making such a decision recommends the second alternative, which would probably not be as satisfactory to the inmates, but could be amended to further their protection. This in volves the current procedure, under the most recent Commissioner’s memorandum, by which ail incoming mail is opened and checked for con traband before delivery to the in mate, but no mail is read by cor rections personnel. To insure the same right that would have been present under the first alternative, we have proposed IC-2d and IC- 2e which require inmate observa tion of any corrections personnel opening inmates’ mail. Rule IC- 2d provides, in accordance with Smith v. Robbins,20 that correspondence from attorneys be opened only in the inmate’s presence. This same safe guard would be extended to letters from courts and public officials as well, for these have always been classified as a special group under past regulations.-1 Essentially, this would provide the same type of pro tection for this class of incoming mail as Marsh v. Moore22 would guarantee to outgoing mail. Cor respondence of this type is more in timately concerned with an inmate’s status in prison than all others. It involves his constitutional rights more directly and therefore should be afforded the highest degree of protection. Rule IC-2e provides a parallel situation to IC-2d in that it requires some inmate observation of all opening of mail although not necessarily by the inmate addressee himself. This provision constitutes a major departure from current regulations, and is most important especially if the second alternative is adopted. The importance of an In mate Postal Observer cannot be overemphasized. His presence would insure good faith on the part of the administration. Ideally, the In mate Council should establish a ro tating board of inmate observers, 19 Jones v. Wittenberg, 330 F.Supp 707, 719 (N.D.Ohio 1971) af fd sub nom. Jones v. Metzger, 456 F.2d 854 (6th Cir. 1972). 19 454 F.2d 696 (1st Cir. 1972). 11 Tyree v. Fitzpatrick, 325 F.Supp. 554 (D.Mass.1971) aff’d 445 F.2d 627 (1st Cir. 1971). See Hollen, Emerging Prisoners' Rights, 33 Ohio St.L.J. 1, 73 (1972). ** 325 F.Supp. 392 (D.Mass.1971). See Fox, The First Amendment Rights of Prisoners, 63 J.Crim.L.C. & P.S. 162, 175 (1972). 52 ■ *WI ' »rnHW.W.■,»»!»»II|HHH)I PRISONERS’ RIGHTS AND RESPONSIBILITIES to be changed on a regular basis. This would prevent a routine job from falling upon the same person too often, and at the same time would prevent any possible corrup tion that could occur if one inmate were to hold the same job for a long period. Rule IC-2f deals with the proced ures to be implemented in cases where contraband is found. It close ly follows the format suggested in the latest draft of Mail and Publi cations issued by the Massachusetts Department of Corrections. In these proposals, however, we dis tinguish between letters and publi cations as far as remedies. When a letter is opened, the only items that may be removed are illegal anyway; thus, there can be no successful ap peal by an inmate for restoration of such articles. Otherwise, the pro cedures are similar. The Commis sioner’s notice forms are satisfac tory, but might be improved by the addition of specific lists of contra band items with check-off boxes. This would contribute to a consistent application of the standards and elim inate some discretion on the part of the Postal Officer. This section stresses the principle that is urged throughout these proposals—that there are adequate laws in existence to cover any contraband that could arrive in a letter. The institution may take refuge in those laws where necessary, without creating further regulation of its own. If contraband arrives in a letter addressed to an in mate, the inmate would be no more responsible than an average citizen who receives illegal goods through the mail by mistake. The factor of consent, or intent, must be shown to make him liable. 3. Packages The definitions of Contraband (see definition section supra) pro vide some restrictions on admissible packages. But, as noted earlier, such restrictions should be as ex plicit as possible, and would be best served by the publication of a list from the Commissioner’s Office of items that may be possessed by in mates. Inmates would be encour aged to distribute this list to their friends and relatives, in order to advise them of items which may and may not be sent to the institution. Clearly all packages must be opened for security reasons. Since all packages are inspected, there is no valid reason for restricting in mates to a short list of persons who may send packages. The only plausi ble objection to an unlimited number of packages is that some inmates might use the new regulation to try to over-burden the system. In such cases, an inmate might be instructed to send copies of contraband lists to his friends, and warned that if packages containing contraband con tinue to arrive from such persons, his consent would be presumed, and he would be disciplined. In any case, the likelihood of such incidents is small, and they are much better treated individually, rather than creating regulations which unneces sarily restrict the whole inmate population. 4. Publications For many years there has been a restriction in most institutions that all reading materials be ordered by inmates directly from the publisher. Again, the problem involved is over regulation, the existence of over broad restrictions to enforce an im portant area of security. The only possible evil in receiving books from home, or from friends, is that some contraband might be smuggled in with the books; and if all books are examined for such contraband, this 53 MHfet ------ | , MODEL RULES AND REGULATIONS problem is already avoided.23 There fore, an inmate should be able to re ceive books from anyone, as long as he pays for those that are not gifts. (IC-4a and b). Determining which publications are admissible is a difficult task for prison administrators. Courts and police departments seem to be un sure of what publications are per missible in society outside of prisons, so there is no reason to be lieve that prison officials are more certain of the permissible standard within institutions. It is hoped that the institutions would admit any materials that may pass through the mails, and that the postal standards would be adequate; however, postal standards are no more explicit than prohibiting “lewd, lascivious, or filthy publications’’ or "any mail containing any filthy, vile, or inde cent thing.” 24 This terminology is, of course, rather vague. Neverthe less, the correctional system ought to depend upon the postal authorities for determinations of which material may be said to be “utterly without social importance” since that stand ard can be a difficult one to inter pret.25 From past decisions it would appear that examples of material which would be excluded include publications which graphical ly portray sexual intercourse or such deviations as sadomasochism or fetishism.26 As a general rule, novels or other written work are not obscene.21 Whenever the institu tions have doubt of the admissibility of any item, the postal authorities should be consulted. Besides the obscenity issue, there is also the problem of determining which publications present a danger to security. The Supreme Court re cently distinguished between mere advocacy of violence and direct pro motion or incitement to violence, the former being protected by the First Amendment, the latter being il legal.28 A similar standard has been applied to the introduction of publications into prisons, where a federal court has held that in order to exclude a publication, there must be a “compelling state interest centering on prison security, a clear and present danger of a breach of prison discipline or substantial inter ference with the orderly administra tion of the institution.” 29 Examples of literature which could be banned include materials giving directions on sniffing glue or directions for escaping from prisons.30 The Fed eral postal regulations prohibit “matter of a character tending to in cite arson, murder, or assassina tion.” 31 The definitions are an attempt at the promulgation of ex plicit rules which can minimize the number of publications that would be 13 Seale v. Manson, 326 F.Supp. 1375 (D.Conn.1971). 24 39 C.F.R. 5 123.7(a) (Revised Jan. 1, 1971). 25 Compare Roth v. U. S., 354 U.S. 471 (1957) with Jacobellis v. Ohio, 378 U.S. 184 (1964). 26 Mishkin v. New York, 383 U.S. 502 (1966). 21 Memoirs v. Massachusetts, 383 U.S. 413 (1966). 28 Brandenburg v. Ohio, 395 U.S. 444 (1969). 29 Fortune Society v. McGinnis, 319 F.Supp. 901, 904 (S.D.N.Y.1970). 30 Sostre v. Otis, 330 F.Supp. 941 (S.D. N.Y.1971); cf. Seale v. Manson, 326 F. Supp. 1375 (D.Conn.1970). 3439 C.F.R. 5 123.7(c)'(Revised Jan. 1, 1971). See Fox, The First Amend ment Rights of Prisoners, 63 J.Crim.L.C. & P.S. 162, 177 (1972). PRISONERS’ RIGHTS AND RESPONSIBILITIES questionable under these standards. It should be noted that Rule IC-4d and e insure that publications will not be excluded for other reasons, as suming they meet the standards for obscenity and security. This will al low the receipt of books in foreign languages, religious books, law books, etc. ICrantz-Mod.Ru'es & Reg Prisoners' Rigntv—5 55 A p p e n d ix D 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. Correctional regulations limiting smelt 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, bocks, 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. i 2. Correctional authorities should have the right to inspect incoming and outgoing mail, but neither incoming nor outgoing mail should be read or censored. Cash, checks, or money orders should be removed from incoming m.ui 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 secuirty of the institution should he considered contraband. 3. Offenders should receive a reasonable postage allowance to maintain community ties. Visitation. Offenders should have the right to communicate in person with individuals of their own choosing. The following additional guidelines should apply: 1. Correctional authorities should not limit the number of visitors an offender may receive or the length of such visits except in accordance with regular institutional schedules and requirements. 2. Correctional authorities should facilitate and promote visitation of offenders by the following acts: a. Providing transportation for visitors from terminal points of public transportation. In some instances, the correctional agency may wish to pay the entire transportation costs of family members where the offender and the fxniiy arc indigent. b. Providing appropriate rooms for visitation that allow .ease and informality of communication in a natural environment as free from institutional or custodial attributes as possible. c. Making provisions for family visits in private surroundings conducive to maintuinina and strengthening family ties. 3. The correctional agency may supervise the visiting area in an unobtrusive manner but should not eavesdrop on conversations or otherwise interfere with the participants’ privacy. For Xores Med:s Except tn emergencies sucli ns institutional disorders, offender', should be a"oveJ to present rherr views to the public through the commutations media. Corrections! “u5torit=‘s d en.o-.afee and facilitate the flow of inhumation between the media and offenders bv autnorizirg otter.ders, among other things, to: u n j'-r> s> • i- Grant confidential and uncensored interviews to representatives of the media. Such interviews shouid be scheduled not to disrupt regular institutional schedules' undul' unless curing a newsworthy event. 1 2. Send uncensored letters and other communications to the media. Publish articles or books on any subject. 4. Display and sell original creative works. ' As USid in this standard, the term "media" encompasses any printed or electronic means of ..convev ina information to the public including but not limited to newspapers, magazines books or Other pubu.a.ions regardless ot the size or nature of their circulation and licensed radio and twxis.oi, broadcasters. Representatives of the media should be allowed access to a!! correctional ' Icr r-?or£ino itemii to public interest consistent with the preservation of offenders'P* <2CV . * ‘ »\ broadc^tn4' :S Sh°U!d &S Sr5tit!' d to rcceiv° Ia’vful publication, or radio and television Commentary t. ’• 3tv!,'R? !s institutions have served not merely to restrain criminal offenders but ,1rh;{ hav?,!'8sT ,solated from !he public in general and from their families and 'C r v v V t T°-'S r‘°- kn° 'V wn3t !S k=P?«*g ‘n ?‘j«ns. and in large part the no., know what :s going on outside the prisons. While many restrictions on comnia.nicat-.on vvere imposed under theories of institutional security, they have resulted in pr°sra;ns more dlfncult- If corrections is, to assure that'an offender vilL' ■t\K r.T t l‘:” ‘rei .S0":h; Up0n tSiiz%i’ the adjustment process must begin long before the d-v of w 'V J ° ^ C0‘r,p“aa tn!s! tn2 ?ub!iC mU5t fae concerned about what hausens in corrections Ir.fo.niution is a prerequisite to concern. Likewise, the offender must retain his t-s 'to th» . S S S m p o n « S ' ! ,efl3e ° ' WlWt ^ ^ C°mmUnity 13 likC if he « to be able to live the* - R ation of correctional institutions also contains additional dancers. indue Geseil commenced in U-jz.ungton Post Co. v. Kieindienst, 11 Crim. L. Reptr. 2045 (DI).C. 1972): ac ” carcenw1d- 'Vhether il bj Ja 1 P*°».« insane «y!«n. or an institution su-h xi Tl'v. ' 1 Wr i,'’.3nf r:‘,Jrdf ’ °PP°«Mi»ity for human indignities and administrative insensitivity ^ S Cf “ecJom lW* out of th- Public's view. It is largely only through the media ,'V 3 tl"; "* « - .r ins mutton to adhere to minimum standards of human d.enitv can be exposed ! d.' rc:°rins in t.tesc areas have often been sparked by press attention. Converses- secr-cv is " official conduct of public institutions for it creates suspicion rumor it not distrust. Oisintcroit causes; nbiiscs to multiply. ' di , . J h" ,.,U" n t f C‘,nicxti in V-l!ld’ thc isolation of the offender from the public can be m or? h ,na“' V!Slt:? K’n’ T SCCC“ t0 mcJia' in these three areas are the ruhts of a" otk.uLr to express himself and associate with others. Tints the ttenera! rules justnv.n- correcttona. regulations mtertermg with mail, visitation, an 1 access to media should be the same a’s For A'otes For Soli’s f • * For Soles those regulating speech in general. The test of a dear and convincing evidence of u compelling state interest proposed in Standard 2.15 should be applicable to these regulations. Standard 2.1/ addresses specific aspects o? mail, visitation, and media access. In discussing the rights of offenders to have access to the public, the rights of the public to know what occurs within correctional programs also should be considered. • J M In censoring and regulating mail, correctional authorities have not limited themselves to keeoin? out harmful or potentially dangerous cojects or substances. The censorship of mail all too often has been utilized to exclude ideas deemed by the censor to be tnreatemr.g orharmful to offender or critical of the correctional agency. These efforts result in the diversion ol manpower from other tasks and, to avoid excessive manpower drams, limitations on the volume o. corres pondence permitted. Censorship and limitations on correspondence directly generate inmate hostilities and serve to make correctional progress more diiiicult. Courts be-n to look critically at this process when it came to their attention that correctional authorities we're limiting access to courts. Instances of failure to mail complaints, invasion of Privit-ed attorney-client communications, and reprisals against inmates for attempting to send out information about deficient conditions were documented. Limitations on access to rehgioV.s material also were discovered and criticized. Contraband must be excluded from correctional institutions to preserve their securityand rood drier by iimitins the development of inmate power groups that otter, results »rom '.'quhioon 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 provided each oftender as part of an affirmative program to help him retain community ties. Visitation. Whether a person is confined across town in a juti or across the State in a prison, confinement totally disrupts his relationship with his community. The longer confinement persists, the more alienated the individual becomes. Strained ties with family and friends increase the difficulty of making the eventual transition back to the community. The critical value for offenders of a program of vim mg with relatives and triends long has ' been recottnizeJ. Nevertheless, a substantia! number of jails have no visiting taclliV.es. In many institutions the facilities are demeaning and degrading, as well as violative o: privacy. This defeats the purpose of visiting. Screening or glass partitions between the <»!fender and his visitor emphasize their separation rather than the retaining comm >n bonds and interests. Correctional authorities should not merely tolerate visiting hut should encourage it. This extends to providing or pitying for transportation when the cost of traveling to the facility would be a limiting factor' Such a provision is plain!;, needed to equalize the situation of rich and poor inmates. Expenses of this type can be minimized by incarcerating ol tenders in their cwr. community or through expanded, use ot furlough programs. Other steps to eneouraee visits are required. Family visits will overcome difficult and •expensive babysitting problems. Seven-day visiting would permit visitors to come on days when Fur Suit's For S u it’s diev are not employed. Arb-.trary time limits on the Juration of visits discriminate ae-unst those svho cannot nuke frequent visits. Expansion of visiting hours and ucilities m uistitunor.s with consistently crowded visiting facilities would alleviate proolem.s caused oy mai.aqu.ite sp-.e. Visitiv should not be barred under any but the most exceptional circumstances. Where the administrator can meet the test recommended in Standard 2.1c ot clear and convincing eudsne,. of a compelling state interest, visiting can be regulated and m unusual circumstances prombue . Hie standard recommends provisions for family visits in surroundings conducive to the nvmterunce and strengthening of family ties. The setting should provide privacy and a noiainstUutional atmosphere. In institutions where such facilities are net avadable, furlougn -■should he -anted custodial qualified offenders in order to maintain .anuly relationships. It is recognized'that the so-called conjugal visit is controversial, partly oecau*e tne concept ^em. to ■foctis "entirely on sexual activity and raises the specter of providing sexual Partners for unmarr.ed inmates. • The furlough svstem is far superior to the institutional arrangement. It is not only less expensive and less controversial but is more effective for the oi tender and ms fami.y. Ho a .ser th-. ^commendations of this report contemplate that, as institutional cor.uncn.ent cea,-s to be a ct r . o n criminal sanction, prisons will increasingly house more dangerous offenders tor whom furloU procrams will not be appropriate. Provision of settings where an entire tamny can visit in private surroundings would add much to an offender’s receptivity to correctional programs and will strengthen his family relationships. . - Me na While mail and visitation allow offender contact with specific individuals. access to the cotfimunicacions media provides contact with the public generally. The pub.ie n s a r i ^ t o -ififormed of their aovernment’s activities through customary mass comnu..«...... ;.s J..,nd..s •have i tight to have their s t o r y told as well as to be informed c. events m the free souc.y. Several scent court decisions have recognized both the public's right to kv .w and the O ^ v w ’s relit to tell. 1 n Washington Pcs.r Co. v. Kkindisnst, 1 1 Cren. L. Rptr. -O-o fD.D.C. 1972) the court struck dov/n the Federal Bureau of Prison's total bait against press confined inmates. Tne court ordered that “the thrust of new press regulations shout, be to p.rm.it uncensored confidential interviews wherever possible and to withoid permission to interview on an ■ E S * ;,! basis only where demonstrable administrative or disciplinary considerations dominate. In' D’tr~h-sm v. Or.ald, 332 F. Supp 1128 (W.D.N.Y. 1972) the court required tne correctional authorities to show a clear and present danger to prison order, security, or o^cip.me or prior aous. of an interview right by the inmate before press interviews could be proiucited. inmate interviews should be permitted when cither party requests the interview, assuming media representatives show reasonable regard for the timing, duration, anu location .or interview*. Confidentiality should be respected. When press contacts are not initiated by the inmate, his desires must be considered. The correctional authority should not release information about tnd.viduals without their permission except in connection with a legitimate news story. In this instance only matters o. puolic rc.o.d should be divulged. Incoming information from the press and other media should not be controlled. Tne laws governing piliUinq, mailing, and electronic communications oftcr the neeued protections io tne correctional authority. In addition to meeting constitutional requirements, ot.eiu.crs a^.ss u For Sales newspapers, m arines, periodicals, and other printed material is important in maintaining ties with the community. References 1 American Correctional Association. Manual o f Correctional Standards. 3d ed. Washington: ACA. 1966. 2. Burnham r. Oswald, 333 F. Supp. 112S (W.D. N.Y. 1972). 3. Comment, Prisoner Mail Censorship and The First Amendment, SI h ale L. J. S7 (19/!). i 4. Fortune Society v. McGinnis, 319 F. Supp. 901 (S.D.N.Y. 1970) (Upholding right of inmate to receive newsletter published by society of tormer inmates.) 5. Glaser, Daniel. Trie Effectiveness n f a Prison and Parole System. Indianapolis: Bobbs - Merrill, 1964. 6. Jackson v. Godwin. 400 F. 2J 529 (5tit Cir. 1968). 7. Xohm v. Fitzpatrick. 451 F. 2d 545 (1st Cir.' 1971) (Inmate right to correspond with news media upheld). 8. Pedmiaaio n. Traiisono, 317 F.Supp. 776 (D.R.l. 19/Q). 9. Rowan. Joseph R. Public Relations and Citizen Action in the Delinquency and Crime Field-O ur Greatest Meed. Undated monograph. It). Sinecr, Censorship o f Prisoners' Mcil and the Constitution, 56 A3AJ 1051 119/0). : i j. South Carolina Department of Corrections. Emerging Rights o f Offenders. Columbia, 1972. Ch.7. 12. Washington Post Co. v. Kleindienst, 11 Crint. L. Rptr. 2045 ( D.D.C. 1^?_). 13. Stol'cry. “Families Come to the Institution.: A Five-day Experience in Rehabilitation, Federal Probation. 36 (1979), p. 346. Related Standards (6.3 Cede ui Gltenders Rights 8.4 Juvenile Facility Planning Concepts 9.10 Local Facility Evaluation and Planning 11.1 Planning New Correctional Institutions 11.2 Modification of Existing Institutions 1 1 . 4 C r e a t i n e a n d S u p p o r t i n g a T r e a t m e n t E n v i r o n m e n t V-v- t l For Notes STANDARD 2.15 FREE EXFRESSION'AXD .ASSOCIATION For Notes 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 tire publia-at-large. Regulations limiting an offender's right of expression and as'-cciation should be justified by a compelling state interest requiring such limitation. '.Vhere such justification exists, the agency should adopt regulations which effectuate the state interest with as little interference with an offender's rights as possible. Rights of expression and association are involved in the following contexts: 3. Exercise of free speed’. 2. Exercise of religious beliefs and practices. 3. 4. 5. 6. 7. 8. Justification for limiting an offenders right of expiession or association would include regulations necessary to maintain order, or to protect other offenders, correctional stall, or other persons from violence, or the clear threat rtf vicler.ce. 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 cr institution to which he is assigned. Ordinarily, the following factors would not constitute sufficient justification for. art interference with an offender’s rights unless present in a situation which constituted a clear threat to persona! or institutional security. 1. Protection of the correctional agency or its staff from criticism, whether or not justified; 2. Piotection of other offenders from unpopular ideas. 3. Protection of offenders from views correctional officials deent not conducive to rehabilitation or other correctional treatment. 4. Administrative inconvenience. Sending or receipt of mail. (See Standard 2.17). Visitations. (See Standard 2.17). Access to the public through the media. (See Standard 2.17). ; Engaging in peaceful assemblies. t*-. Beloncinc to and participatin'.: in organizations. Preserving identity through distinguishing clothing, hairstyles, and other characteristics j related to physical appearance. For \ ’orcs i For Wales 5. Administrative cost except where unreasonable and disproportionate to that expended on other offenders for similar purposes. W Correctional authorities should encourage and facilitate the exercise of the right of expression and association by providing "appropriate opportunities and facilities. •' Commentary Offenders’ first amendment right of free expression and association has been one of the last tb- receive judicial review in the shift from ihe “hands-off” doctrine. A number of older court decisions have upheld severe limitations on oral and written speech, particularly in the prison context, without consideration of the existence of any significant free-spceeh rights. Nevertheless, an impressive and continually increasing number of recent decisions have made it dear that the. legal status of the offender (and the pretrial detainee) must incorporate the fust amendment right to free expression that may not be limited without a credible showing cf significant danger to institutional order, security, or other major societal interests. These decisions have been applied fo offenders under parole or probation supervision and those in prisons and other institutions. , . .. This standard recommends the applicability of the first amendment to all offenders and" detainees. For offenders the exercise of the right and any imposed limitations should be on the ■ same basis applicable to tire general population. Recent decisions have invalidated, parole conditions prohibiting expression of opinion criticizing Federal laws or limited participation in peaceful political demonstrations. In general, the first amendment as applied to ordinary' citizens’ protects against two different . forms of governmental regulation: (1) prior restraints, which includes pre-speech censorship; and (2) punishments after the fact for speech or speech-related activities. In the correctional setting, . prior restraints would include regulations prohibiting speech entirely on various suojects or censoring mail or ether written matter. Disciplinary action for speech or speech-related activities also is common. . ■ The justifications asserted for prior restraints include protection of the public safety*Or'• national security. In some instances, censorship of material deemed obscene has been authorized. Ail jurisdictions likewise have statutory crimes involving speech-related activities -- many of which' are of the type not protected by the first amendment. Acts providing criminal penalties for- ' inciting riots or distributing obscene material are typical examples. In addition, in limited instances, persons injured by the spoken or written word may recover damages from the instigator •' through common 'law libel and slander doctrines. These principles encouraging or limiting The expression of ideas should be applicable to criminal offenders as well ?s to the general public. Rights of expression and association are involved in a number of differing contexts. This standard proposes general rules protecting such rights in any context. More specific standards dealing with specific problems involved in specific contexts follow. However, it is important to view the rights cf expression and association as general rights. For example, in some cases offenders have been prohibited from wearing medallions. Some courts have focused on whether the medallion had religious connotation sufficient to raise a first amendment right. Even if tiie medallion is not of religious significance however, it may still be protected as a right of.genera! expression unreicted to religious freedom. An offender has the right to belong to a political organization as well as a religious organization, and the same rules should govern cerr-.eticnal interference with that right. While mail and visitation proccdutcs often arc singled out forpj-ocific For Notes rc c s p c e c : ; .governed by general standards protecting f The standard recommends two genera! rules that should cavern the re-ml ,i„n r • and association of offenders v 'r tV r nr n n , ,h „ , , ' rcbi.Ltiyn of expression I t o . dm, mm b o a = o m i = : ‘ „ . ' 1 ; ; . , “ ' " r ” ™ » * * " * * « " > . T ! » dm is — - - : ^ r ™11 C orrocom , au.homlos >v,aii S; jtraifisd in limiting spood, o„d J r ° * ' ^ d ? : ± ^ level. Traditionailv, agencies h^v ^ Jied a Hat *rlT'- ' ‘ ^ ^ ’T CL" r7 J° 2n un2CC2Ptah!e standard seeks to correct this situation/" * ° f * * and the oflJdeHxSoTltts SdSuf ""n1£ -T™ infrinsensenl of Pressure o,.‘correctional ad m lo is t^ rsb y " " ° ^ Ui° ns' bri”3i!53 ™due and often unfair »har otiter offenders will become o 'TendiV v 3J? ^ Corf rTlun,i>’- Administrators also fear ^ will lead to tension w i ^ T p ^ ^ 7 ^ ^ ? * * * ’ and conducive to rehabilitation. 1 ^tend thai terrain expression is not interferences w n l f f r J e d ^ .°f Sl!?p0rt for K3»iatior.s involving its inevitable tensions and h o s t i n g speech ^ ' n o ^ T ^ [Cd °r irn2fned- dC5S Rot 2l-c •ts mevitabic inaccuracies and perceptions is as usefufto the political process. Much of the current interns'm correction- J \ “ t0 L‘e been developed because of the com-hinrs ,r a . ;m arT10r° rhe general public has proceedings. !: is dear that nun- sudi - \ “ '•nw£,f. generally transmitted through court many are mi* A (u " ! « ■ * » or not supported in f i t . But be false. Corrections has much \ o cah 'an • r^ l ^ ,deas " ,nany of wh5ch will turn out to discussion of correctional practices? ° * tC ° %° b'V alIow,n= and encouraging public **•'#«<*>*■ 'soli-to! -uj-pt"najs 'vl,J‘ls 2? r t r r* *•“?..w oS arxssst ■ " » fc«b diversity is to ta l..,I v'louUl n.,t b. For Notes For N otesFor N otes i ' . prqcecied from views they find offensive while confined. It is not appropriate training for their eventual release. In the prison setting, however, unlike free society, an individual cannot always . escape offensive views. The audience, as well as the speaker, is confined in. a limited area. Where tensions are great and a threat of violence clear, correctional authorities can act. Speech not / ‘conductive t.o rehabilitation” implies that "rehabilitation” contemplates "forcing individual ' offer, iers into a preset mold. It does not. Correctional authorities should seek to assure reasonable opportunities for dissemination of . various points of view. Thus facilities for oral and written expression should be provided to ' offenders' on a reasonable basis. Typewriters, pencil and paper, musical Instruments, and other - types of material should be accessible to those offenders who desire them. Leisure activities should ' allow for the exchange of ideas. In a number of instances administrative inconvenience and expense have been asserted to -justify interferences with, the rights of expression and association. Society incurs responsibilities - when it confines a person. Feeding offenders involves inconvenience nr.d expense, but no one urses that offenders not be fed. Rights' of expression and association cannot be withdrawn merely because they may require actions on the part of correctional staff. In addition, facilitation of expression or association is effective correctional treatment and should not be considered ."inconvenient” but a part of the staffs responsibility. ' - '•. The extent to which administrative expense should justify prohibitions on free expression . poses difficult issues, in ail the rights proposed in this chapter there is a distinction between what . the government must provide and what the government must allow. If die request of the offender rehtei to his rights of expression or association and he is willing to pay for the exercise of those . rights, then the correctional authorities.should not interfere. In some instances, however, the correctional agency should be obligated to provide facilities or opportunities at governmental expense. a ;. ; Two concepts should govern determinations as to when expense justifies inaction. If the -■expense U reasonable in light of existing rea'cces and in relationship to the benefit to be ~ obtained, the expenditure should be made. Likewise, if the government expends funds to facilitate ~ the rights of some offenders, it is obligated to expend proportionally for all offenders. For ■ example, to allow Black Muslims to abide by their dietary restrictions on eating pork may require some nominal expenditure. Reasonable substitutes for pork do exist. However, if some religious faith required champagne and pheusani under glass for every' mwl, the cost would be disproportionate to the cost of providing meals generally and might be considered unreasonable. * ••• •- -The courts generally have not had tiie opportunity to decide questions regarding inmates’ ; nights to organize or belong to various organizations and their right to peacefully assemble. In ■Roberts v. Pepersack, 256 F. Supp. 415 (D. Mu. 1966;, the court found no constitutional right to promote an organization that would advocate open defiance of authority within a prison. The court does not deal with the right to organize generally where the motive does not constitute a danger to rrison security. >y Implicit in the cases involving religious freedom is the ability to belong to various religious organizations. Organizations such as Alcoholics Anonymous and Junior Chambers of Commerce long have been utilized vvithin institutions. The f.rst amendment should similarly protect an offender s right to belong the political organizations as long as the organization does not present a clear and present danger to a compelling state interest. Reasonable regulations designed to provide For Soles 1 i j For ' correctional administrators with information concerning the aims, procedures, and membership of ; organisations within institutions may be justified provided such refutations are applied equally to j all organizations end r.re not used to harass individual offenders or unpopular organisations. Such ! regulations should relate to the legitimate objectives of the agency in allocating facilities for organizational meetings, scheduling events, and maintaining institutional security. The right to assemble is particularly sensitive within trie context of a correctional institution. The tension bred by close confinement may be exacerbated by large gatherings of offenders. Thus the dance; of violence may be more easily shown within the prison environment than in the free community. 'But the test of a ciear and present danger should be applicable. In addition to the expression of particular idea? cr beliefs, the first amendment has been held in some circumstances to assure a person the right to maintain his identity. Seme courts, while not i relying on tire firs; amendment, have found other constitutional provisions which protect an j individual in his manner of dress or the style in which he wears his hair. These freedoms as applied to school children have caused conflict and controversy in tire courts, with seme courts accepting the view that school authorities have a substantial burden to justify regulations affecting appearance. Courts that have confronted similar claims by ccmmitred offenders have been reluctant to overturn prison regulations prohibiting facial hair. Several studies of prisons have indicated that their mosi degrading feature is their. ■ dehumanizing influence on prisoners. The institution for purposes increasingly difficult to justify, withdraws from confined offenders ail semblances of 'their separate identity. Offenders wear similar clothing. Each has his hair cut the same way. Each is given a number rather than retaining Ills nalne. The effect of this approach is becoming increasingly clear. Offenders lose whatever self-respect they have; their adjustment to free society upon release is made more-difficult if not impossible. Prohibiting offenders from maintaining their identifies defeats the purposes of corrections. f. ■Correctional authorities undoubtedly have a compelling interest in being able to identify committed offenders. In some instances the ability of offenders to effectuate extreme alterations in appearance within a short period of time may constitute a justification for reasonable regulations. The recommendation thus contemplates that while offenders should be allowed to maintain individuality through clothing, hair styles, and other appearance-related characteristics, the correctional authorities should be authorized to promote reasonable regulations to maintain - case of identification. However, this justification should be subject to the same restraint that the least drastic regulation be adopted. And if the recommendation limiting the size of institutions is accepted, the ‘likelihood of inability to identify prisoners will decrease. There is no evidence that the requirements of sanitation — so often asserted by correctional authorities to justify rules prohibiting facial hair or longhair - require an absolute prohibition. Regulations assuring normal cleanliness should be sufficient. References * . 1. Partial v. RcJrcn, 410 F. 2d 905 (D. C. Cir. 1969) (“'Treatment that degrades the inmate, invades his privacy, and frustrates tire ability to choose pursuits through which he can manifest himself and gain scif-respcct erodes, the very foundations upon which he can . prepare for a socially useful life.’’) '■acs For Notes I'or Notes 2. Dis'h'i> v. Colaw. 450 F. 2d 1060 (Rtli Cii. 1071) (Overturning dress code regulations for school chilJrcn). w 3. Ci hen. Fred. Vic Legal Challenge to Correa inns. Washington: Join! Commission on Correctional Manpower and Training. !l-69. (. Ii. ill. i • 4. Goidfarb and Singer, Redressing Prisoners' Grievances, 30 Geo. Wash. L. Rev. 221-223 (I960) (Free expression generally). • . . 5. Nolen v. Fitzpatrick. 451 F. 2d 545 (1st Cir. 1971) (First amendment protects prisoner-la' speech, with newmtdia and invalidates prison rule against correspondence with press.) 6. Pabnigisno r. Travisino. 317 F. Supp. 776 (D.K.I. 1070) (Affirming freedom of publishers to circulate materials to prisoners except for hard core pornography). " 7. Penh r. Templar, 453 F. 2d 33? (10th Cir. 1971) (Invalidating parole condition barring expression of opinion as to constitutionality of federal income tax law). . t S. Shakur r. McGrath, 303 F. Supp. 303 (S.D.N.Y. 1969) (Permitting inmate members of- Black Panther Party to read party magazine subject to.correctional authority discrilibay. on dissemination to other inmates and when and how Panthers could read the periodical).. C|. Sobel! r. Reed. 327 F. Supp 1294 (S.D.N.Y. 1971) (Invalidating application oi parole conditions to prevent parolee from peacefully participating in 1969 and 1970 Washington ' peace marches). . ' ■ 10. Se>snc r. McGinnis. 442 F. 2d 17S (2d Cir. 1971) (Affirms lower court order prohibiting punishment of offender for constitutionally protected speech in written and oral form.) 11. Sostre i’. Otis, 330 F. Supp. 941 (S.D.N.Y. 1971) (Requiring notice to prisoner and opportunity to be heard before v.ithoicling access to radical literature and periodicals otherwise proiCvted as part of first amendment speech). 12. Turner. Establishing the Ride o f Law in Prisons: A Manual for Prisoners’ Rights Litigation, 23 Stan. L. Rev. 473 (1971). • •• Related Standards 2.1 Access to Courts : 16.2 Administrative Justice 16.3 Code of Offenders’ Rights 5.9 Continuing Jurisdiction of Sentencing Court 11.7 Coping v i'.li Alienation and Coercion For Norcs i CORRECTIONS • STANDARD 2.2 ACCESS TO LEGAL SERVICES \ < Eacli correctional agency should immediately develop and implement policies and procedures to fulfill the right cf offenders to have access to legal assistance, through counsel or counsel substitute, with problems or proceedings relating to their custody, control, management, or legal affairs while under correctional authority. Correctional authorities have a responsibility to facilitate access to such assistance and to assist offenders affirmatively in pursuing their legal rights. Governmental authority in genera! has a responsibility to furnish adequate attorney representation and, where appropriate, lay representation to meet the needs cf offenders without the financial resources to retain such assistance privately. The proceedings or matters to wliich tins standard applies include the following: 1. host convict ion proceedings testing the legality of conviction or confinement. 2. Proceedings challenging conditions or treatment under confinement or other correctional supervision. 3. Probation revocation and parole granting and revocation proceedings. 4. Disciplinary proceedings in a correctional facility that impose major penalties and deprivations. 5. Proceedings or consultation in connection with civil legal problems relating to debts, marital status, property, or other personal affairs of the offender. In the exercise of the foregoing rights: 1. ' Attorney representation should be required for all proceedings or matters related to the foregoing items 1 to 3, except that law students, if approved by rule of court or other proper authority, may provide consultation, advice, and initial representation to offenders in presentation of pro sc postconviction petitions. 2. In all proceedings or matters described herein, counsel substitutes (law students, correctional staff, inmate paraprofessionals, or ether trained paralegal persons) may be used to provide assistance to attorneys of record or supervising attorneys. 3. Counsel substitutes may provide representation in proceedings or matters described in foregoing items 4 and 5, provided the counsel substitute lies been oriented and trained by qualified attorneys or educational institutions and receives continuing supervision from qualified attorneys. 4. Major deprivations or penalties should include loss of “gobd time,” assignment to , isolation status, transfer tc another institution, transfer to higher security or custody status, and fine or forfeiture of inmate earnings. Such proceedings should be deemed to include administrative classification or reclassification actions essentially disciplinary in nature; that is. in response to specific acts of misconduct by the offender. For Notes CORRECTIONS For Notes j 5. Assistance from other inmates should be proliibitcd only if legal counsel is reasonably available in the institution. v, 6. The access to legal services provided for herein should apply to all juveniles under correctional control. 7. Correctional authorities should assist inmates in making confidential contact with attorneys and lay counsel. This assistance includes visits during normal institutional hours, uncensorcd correspondence, telephone communication, and special consideration for afterhour visits where requested on the basis of special circumstances. Commentary Right to 2 nd availability of counsel, both in court litigation and critical phase's of -administrative decisionmaking on offender status, has been a major trend in the current expansion of prisoners’ rights. The presence of counsel assures that the complicated adversary proceeding is carried out properly and that the factual bases for decisionmaking are accurate. This standard' seeks to address virtually all issues row the.subject of debate and does so without distinction . between the indigent and nomndigent offender. ‘ ' . , . .. .. The emphasis on a full range of legal services is consistent with the opinion of today’s correctional administrators. In a recent national survey among correctional leaders (system administrators, institutional wardens, and treatment directors), majorities in each category expressed the view that legal sendee programs should be expanded. Corrections officials stated this expansion would preside a safety valve for grievances and help reduce inmate tension and power- ■structures. They also said it would not have adverse effects on prison security and would proside.a positive experience contributing to rehabilitation. .• . Representation of offenders in postconsiction status always has lagged considerably behind that of the criminally accused. Although indigent defendants constitutionally are entitled to' appointed counsel at their trial or appeal, lassycrs have nor generally been available to represent ofienaers seeking pcstecnviction relief or challenging prison or supervision conditions through civil suits or administrative procedures. Where the right is asserted as part of administrative procedure - (for example, parole revocation and forfeiture of good time), counsel often is flatly denied, even when tire offender has the means to retain his own lawyer. Access to representation tor those confronted by private legal problems such as divorce, debt, or social security claims is virtually nonexistent except for a few experimental legal aid. law school, or bar association programs. The offender must take lus place at the bottom cf the ladder of die still modest but growing national commitment to provision of legal services for the poor. In summary, prisoners generally must represent themselves, even though many arc poorly educated and functionally illiterate. .. . " The standard asserts a new right to representation for major disciplinary proceedings within correctional systems and to civil legal assistance. Here the principle of “counsel substitute” or “lay representation” is accepted, consistent with those court decisions that have examined the is^ue, the realities of effective correctional administration, and limited attorney resources for such services. The Supreme Court indirectly sanctioned by representation, even in court actions, when it held in Johr.son v. Avery, 393 U.S. 483 (1969), that States not providing reasonable legal service alternatives could not bar assistance to other prisoners by “jailiiousc lawyers.” For N otes CORRECTIONS For Note* Recognizing the large and probably unmanageable burden on existing attorney resources, the standard validates supplemental use of lay assistance (law students, trained correctional staff, jailhouse lawyers, or other para professionals) .even iri matters requiring, formal attorney representation. In tins regard, a recent judicial observation in a California case dealing with right to counsel in parole revocation is instructive. The ruling, In rc Tucker, 9 Crim. L. Rptr. 2307 (Cal. Sup. Ct., 1971). stated: Formal hearings, with counsel hired or provided, for the more than 4,000 parole suspensions annually would atone reo,uire an undertaking of heroic priecilions. But that is only the beginning. For if there is a right to counsel at parclc revocation or suspension proceedings, no reason in law or logic can be advanced why a prisoner, appearing before the Adult Authority as an applicant for parole and seeking to have his indeterminate sentence made determinate, should not also have legal representation. The conclusion is inescapable that my dissenting brethren arc in effect insisting upon counsel for a potential c f 32,000 appearances annually: 28.000 parole applicants and 4,000 parole rcvokccs. This monumental requirement would stagger tit: imagination. This standard rejects that view. If the criminal justice system must provide legal counsel in every instance where a mart’s liberty may be jeopardized, as the Supreme Court of the United St2 tes held in Argersinycr v. HarrJin, 92 Sup. Ct. 2005 (1972), its duty should not end there. Tile system must and can find wavs to meet the cost involved. In oilier situations where liberty is not directly at stake, those serving as counsel substitutes would be required to receive reasonable training and continuing supervision by attorneys. The opportunity tiris presents for broadening of perspectives on the part of correctional staff and a new legitimacy and vocational path for the trained “jailhouse lawyer” may prove to be valuable by-products. In addition, full cooperation with correctional authorities by public defender programs, civil legal aid systems, law schools, bar groups, and federally supported legal service offices for the poor will be necessary' to put the standard Into practice. Careful definition of those major disciplinary penalties involving the right to representation has been undertaken. There is genera! agreement on the substance of these penalties, including solitary' confinement, loss of good time, and institutional transfer. Reasonable minimums have beeti established that would permit handling limited penalties in these categories by' less forma! procedure and without counsel or counsel substitute. Tiie Federal system and several Siate systems already are making provision for representation while considering major disciplinary sanctions. It will be noted that “classification piocccdings” cannot be used under the standard to avoid disciplinary sanctions where the basic issue involved is offender misconduct. A preferred status also has been established for use of attorneys rather than counsel substitute, wherever possible. , In the juvenile area, the standard makes clear that right to counsel applies to the “person in . reed of supervision” category or other juveniles under correctional custody for noncriminal conduct. Finally, the right to free and confidential access between offenders and attorneys through visits, correspondence, and, where feasible, telephonic communication is made clear. Beyond that, a policy' of special accommodation is suggested where the circumstances of the legal assistance being rendered reasonably support such a preference, as in afterhour visits and special telephone calls. Past interference In some jurisdictions with confidential and free inmate-attorney access is documented in recent case law - for example. In re Ferguson, 361 P. 2d 417 3 (Cal. 1961) (State supreme court forbids authority io censor or screen letters to attorneys) arid Stark y. Cory, 62 Wash. 2d 371 (Wash. 1963) (electronic eavesdropping of attorney interviews banned) — and thus warrants that this critical facet of the attorney-client te-lationsltip be emphasized. For N otes CORRECTIONS For .Wales ! References * 1 J. American Bar Association. Standards Relating to Probation. New York: Office of the Criminal Justice Project, 1968, geCi 5 4 . u‘ 2' * * « " * ' '* Frmkl!'“ &"*•*■ NewYo,k. Ofi.ee of fbc Crimm.1 Jusi.ee Projcci, I o6s. Scc. 4.2 on "Colleierel Proceeding •’ and Appendix B on Standards for Defender Systems.” For Kates 3. Argersinger v. Hamlin, 92 Sup. Cl. 2006 ( 1972). “■ s e a s * ™ for iu!,ice' “pc'5p=c,ivB ™ p'is°" 5- Ri$!" * C W " f m , e X m xai° * «**•**•9 H « « « L, 6. Jacob and Sharna, Justice After Trial: Prisoner's Need for Lead Servicet in the C rrrrJf Conecrionc!Process, IS Kan. L. Rev. 505<3970). . . Cr,r!'lJ l 7' m' 39? US' 483 <>*»> W *»S ieie presided no reesoneWe nliern.-n-" it could not pi cm bit the operations of the “jaiihoyse lawyer",) . ‘ " *• * ' Z Pf ' ) F C '-389 V S - 138 (,9f,7) W 10 counsel affirmed in defer,W sen.cnemg/probanon revocation proceedings conducted by State courts.) 9. Note, 1968 Duke L. .1.493. 10. Note, 19 Stan. L. Rev. SS7 (1967). 11 - Note, 1967 Wis. L. Rev. 514. •. : Related Standards . 3.1 Access to Courts ... . 2.3 Access to Lena! Materials - - ■ 16.2 Administrative Justice 16.3 Code of Offenders’ Rights 5.9 Continuing Jurisdiction of Sentencing Court 6.2 Classification for Inmate Management 1 2 . 3 T h e P a r o l e G r a n t H e a r i n g 12.4 Revocation Healings T