RONALD BANKS, for himself and on behalf of all similarly situated prisoners who are confined or will be confined in Long Term Segregation Units of State Prisons located in the Western Judicial District of Pennsylvania,
JEFFREY BEARD, in his official capacity as Secretary of the Pennsylvania Department of Corrections
On Appeal from the United States District Court for the Western District of Pennsylvania
District Court Judge: The Honorable Terrence F. McVerry
(D.C. No. 01-cv-1956)
Argued on October 22, 2003
Before: ALITO, FUENTES, and ROSENN, Circuit Judges
(Opinion Filed: February 25, 2005)
OPINION OF THE COURT
ALITO, Circuit Judge, dissenting:
At issue in this case are restrictions that the Pennsylvania Department of Corrections imposes as a last resort on the most disruptive and dangerous .1% of its prison population. These restrictions apply only as long as an inmate remains in Level 2 of the LTSU, an assignment that may terminate after as little as 90 days. The question before us is whether these temporary, lastresort restrictions are facially unconstitutional under the standard set out in Turner v. Safley, 482 U.S. 78 (1987), a standard that instructs courts to extend considerable deference to judgments of correctional officials. Because I believe that the majority has misapplied Turner, I must respectfully dissent. Under Turner, prison regulations that restrict constitutional rights must be sustained if they are "reasonably related to legitimate penological interests." 482 U.S. at 89. Turner noted four factors to be considered in determining whether the requisite reasonable relationship exists: (1) whether there is "a valid, rational connection' between the prison regulation and the legitimate governmental interest put forward to justify it"; (2) "whether there are alternative means of exercising the right that remain open to prison inmates"; (3) "the impact accommodation of the asserted constitutional right will have on guards and other inmates"; and (4) whether there are "ready alternatives" to the challenged regulation." Id. at 89-90 (citation omitted). I will address each factor.
First factor: Rational relationship between regulation and legitimate penological interests. I agree with the District Court that this factor weighs in favor of the constitutionality of the challenged regulations because there is a "rational" relationship between that restriction and the legitimate penological objective of deterring misconduct. It is "rational" for corrections officials to think that inmates who are not in Level 2 will be deterred from engaging in serious misconduct because they do not want to be transferred to that unit and thus to be subjected to the restrictions that accompany that assignment. It is also "rational" for corrections officials to think that inmates who are in Level 2 will be deterred from engaging in serious misconduct while in that unit because they wish to be transferred out and thus to escape such restrictions.
The majority disagrees with these conclusions for two reasons. First, the majority apparently believes that a sanction cannot deter unless a potential violator knows with some specificity the type misconduct that will result in the imposition of the sanction and the length of time that the sanction will last. The majority concedes that "deterrence of future infractions of prison rules can be an appropriate justification for temporarily restricting the rights of inmates" and that other courts of appeals have sustained rules restricting the receipt of newspapers by prisoners in disciplinary segregation. See Maj. at 9 (citing Gregory v. Auger, 768 F.2d 287, 290 (8th Cir. 1985); Daigre v. Maggio, 719 F.2d 1310, 1313 (5th Cir. 1983)). The majority finds these precedents inapplicable because the "LTSU is not a place where inmates are sent for a discrete period of punishment, pursuant to a specific infraction, but a place for Long Term' segregation of the most incorrigible and difficult prisoners for as long as they fall under that umbrella." Id.
The majority's reasoning is unsound. The uncertainties noted by the majority may diminish the deterrent effect of the regulations on some inmates who are not yet in Level 2, but there is no reason to think that these uncertainties entirely eliminate the deterrent effect of the regulations on the general prison population. Similarly, it is rational to believe that the challenged restrictions provide an incentive for those inmates who are already in Level 2 to refrain from disruptive behavior in the hope of obtaining a transfer out of the unit. Again, uncertainty about what must be done to obtain such a transfer or about when such a transfer may be available may have an impact on the degree of the incentive, but there is no reason to suppose that the incentive is wholly destroyed. Second, the majority concludes that the regulations are not rationally related to the goal of deterring misconduct because "the DOC has offered no evidence that the rule achieves or could achieve its stated rehabilitative purpose." Maj. Op. at 10. In taking this approach, the majority misconstrues the nature of the first Turner factor. This factor requires us to determine whether there is a "logical connection between the regulation and the asserted goal," see 482 U.S. at 89 (emphasis added), not whether there is empirical evidence that the regulation in fact serves that goal. The entire system of prison discipline might be imperilled if each sanction for prison misconduct could not be sustained without empirical evidence that the sanction provided some incremental deterrent.
Second factor: alternative means of exercising the right. This is the most troubling of the four factors, but I do not think that it is sufficient to support the majority's conclusion that the regulations are facially unconstitutional. The regulations impinge upon the right to receive information about current events and communications (in the form of photographs) from family members and friends, but the restrictions are not absolute. Inmates in Level 2 may still read books from the prison library and may receive letters. Moreover, as the District Court noted, inmates in Level 2 have the "option of modifying their behavior and being promoted to a less restricted environment." Report & Recommendation at 8. An as-applied challenge by an inmate subjected to lengthy confinement in Level 2 despite a record of reformed behavior would present different considerations, but the majority's opinion is not limited to such a case.
Third and fourth factors: Availability and impact of accommodation. The majority proposes modifications in prison policies that would almost certainly have an impact on prison resources. The majority first suggests that guards could deliver requested newspapers and magazines to inmates' cells and then retrieve these materials after the expiration of a specified "reading period." Maj. Op. at 18. Providing this service for each of the 40 inmates in Level 2 would be time consuming. "Alternatively," the majority states, "individual prisoners could be escorted to [the] secure mini-law library to read a periodical of their choosing." Maj. Op. at 19. This service, however, would undoubtedly impose a significant burden, particularly since the inmates in question are those whom the Department of Corrections has classified as the most violent and disruptive. It is Department policy that Level 2 inmates may not be transported from their cells unless they are placed in hand and leg irons and are escorted by two officers. Taking into account all four of the Turner factors, I conclude that the challenged regulations are not facially unconstitutional. On their face, these regulations are reasonably related to the legitimate penological goal of curbing prison misconduct, and I would therefore affirm the decision of the District Court.