Signed. Sealed. Delivered?

Amid government efforts to quell correspondence of prisoners, prisoners seek to enforce their fundamental First Amendment free speech rights, compelling federal courts to discharge their duty to protect them and create a clear standard by which the government should be bound in preserving this Constitutional covenant.

By Liam Truong via Unsplash

As you drive down Western Boulevard on a sunny afternoon in May, you may see a pack of runners braving a hilly trail or clusters of flowers in bloom, all painted a kaleidoscope of shapes, sizes, colors, and patterns.  If you peer just beyond the foreground, the vitality of this scenic route is suddenly dampened.  It is then that you will observe rows of distressed hands clenching a rusty barbed wire fence that stretches for miles and ascends dozens of feet into the air.  Beneath the shadows cast along this backdrop are human beings that have assumed the moniker of a prisoner.  Prison life is solitary and bleak, but life beyond those walls goes on in all of its oblivion.  Separation from one’s dreams, loved ones, and society at large are linked to incarceration.  I would venture to guess the mundanity of everyday life “on the inside” supplies that there is perhaps no better feeling than hearing your name or number called at mail call—another opportunity to experience the humanity of interaction in the form of written communication.  Unfortunately, the experience of engaging in this seemingly simple pleasure is a burdensome reality, if reality at all, for prisoners in the United States.

Historical Perspective

The First Amendment to the United States Constitution as applied to the states by the Fourteenth Amendment protects the fundamental right of free speech.  The idea that the reception and dissemination of correspondence, information, and ideas should be held sacred for all persons is a corollary of this First Amendment safeguard.  However, as is especially so within the context of incarceration, the right to free speech is not absolute; penological interests, prison order, and security contribute significantly to the extent to which this sacrosanct right is enjoyed by a prisoner.  Turner v. Safley, 482 U.S. 78, 84 (1987).  Courts once viewed prisoners as slaves of the state who should suffer a deprivation of liberty and who are entitled only to those rights which the state chose to accord them.  Meachum v. Fano, 427 U.S. 215, 231 (1976).  Thus, the condition of being incarcerated acted as a forfeiture of those rights freely possessed and exercised by persons not subject to the custody of the State.  Ruffin v. Commonwealth, 62 Va. (21 Gratt.) 790 (1871).

The Supreme Court has routinely confronted the complex problem of interpreting the First Amendment as applicable to prisoners to strike a balance between the competing interests of safeguarding both individual rights and governmental priorities.  While it has been clearly established “that federal courts must take cognizance of the valid constitutional claims of prison inmates,” Turner v. Safley, 482 U.S. 78, 84 (1987) (citing Procuiner v. Martinez, 416 U.S. 396, 405 (1974)), the tension lies in how they should do so.

Martinez: The Exacting Standard

The Supreme Court has articulated various tests for lower courts to apply when interpreting the First Amendment rights of prisoners in the context of written correspondence.  These tests have proved to create unresolved uncertainties in their application.  The Court first adopted a generally deferential posture toward prison officials in its examination of a challenged inmate correspondence prison policy in Procuiner v. Martinez, 416 U.S. 396, 404-05 (1974), which required prison officials to show an “important or substantial governmental interest” in its promulgation.  In Martinez, the Court held that incoming and outgoing correspondence between inmates and societal recipients were subject to articulable strictures.  The policy at issue declared that inmates were prohibited from expressing “inflammatory political, racial, religious or other views or beliefs,” “unduly complain[ing],” or “magnify[ing] grievances.”  Id. at 399.  Prisoners were also prohibited from sending or receiving mail that was “obscene[] or defamatory; contain[ed] foreign matter, or [was] otherwise inappropriate.”  Id. at 400.  Prison administrators adverted that it was within their discretion to proscribe “defamatory” or “otherwise inappropriate” speech in an effort to advance governmental interests such as the deterrence of riotous conduct and the attainment of prisoner rehabilitation.  Id. at 416.  Similarly, prison officials urged such policy curtailments were necessary to preserve order and internal security within the prison environment.  Id.  Therefore, any correspondence that failed to conform to these particular requirements could be censored at the discretion of prison administrators.  Id.

In observing the penological and safety interests of prisons, the Court reasoned that “courts are ill-equipped to deal with the increasingly urgent problems of prison administration and reform.”  Id. at 405.  Although Martinez invalidated the prison mail regulations at issue, the Court failed to tackle the pivotal issue of prisoner’s rights to speak freely; rather, its decision regrettably turned on the rights of those in the external public domain to communicate with inmates.  Id. at 415.  Instead of squarely affirming the rights of prisoners within the free speech domain, the Court couched its pronouncements in observation of the “particularized interests” of those outside the prison.

The result in Martinez was a hollow victory, as it would only prove to be another rendition of “kicking the can” jurisprudence.  Yet, Justice Marshall’s concurrence, in all of its perspicacity, declared the right and not mere privilege a prisoner should retain in the Court’s robust protection of his First Amendment freedoms and correlative rights—like those involving written communications.  Id. at 423.  Marshall declared, “A prisoner does not shed such basic First Amendment rights at the prison gate.  Rather, he ‘retains all the rights of an ordinary citizen except those expressly, or by necessary implication, taken from him by law.’’  Id. at 422-23.  Moreover, the Court set forth a two-part test it deemed to prioritize competing governmental interests while maintaining the appropriate level of deference to prison officials given the unique conditions of correctional institutions.  Prisons were constitutionally permitted to censor inmates’ mail only if (1) the regulation or practice in question furthers an important or substantial governmental interest unrelated to the suppression of expression, and (2) the limitation of the First Amendment freedoms is no greater than is necessary or essential to the protection of the particular governmental interest involved, viz., not “unnecessarily restrictive of personal freedoms.”  Id. at 423.

Turner: The Deferential Standard

Although the Court established the foregoing exacting standard, in virtually leaving open the question of what standard of review applies to a prisoner’s constitutional claims, the Martinez Court laid bare a means of retreat to precisely declare the scope of prisoners’ rights at a later time.  The Court’s subsequent decision in Turner v. Safley, 482 U.S. 78, 84 (1987), more than a decade later sought to resolve the ambiguities in Martinez, drawing on precedent established in intervening years—each decision taking a decisively deferential approach to the evaluation of prison policies that restricted prisoner rights.[1]  The Turner Court relied upon precedent which invested prison officials with broad discretion in promulgating policies that necessarily infringed on prisoner speech rights.  In light of these decisions on prisoners’ rights employing a highly deferential standard to prison officials, the Court determined rehabilitative and security efforts were “peculiarly within the province and professional expertise of corrections officials.”  Pell v. Procunier, 417 U.S. 817, 827 (1974).

What’s more, the Court made a swift departure from the exacting Martinez standard and analytical framework.  The Turner decision explicitly aimed to resolve the question left open by Martinez as to prisoner’s correspondence rights within the meaning of the First Amendment, ultimately yielding the articulation of a new standard informed by a line of precedent: “[W]hen a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.”  Turner, 482 U.S. at 89.  This decision arguably altered the analysis on prisoners’ rights and accords drastically more deference to prison management when the case “involves questions of prisoners’ rights”; rather than rooting it in the First Amendment rights of persons external to prison, as in Martinez.

Accordingly, the Court established four factors to consider when determining whether the challenged policy must be upheld as constitutional.  First, the reviewing court must not act capriciously and must find a “valid, rational connection” between the prison regulation and the legitimate governmental interest put forward to justify it.”  Id. at 89.  Second, the reviewing court must determine “whether there are alternative means of exercising the right that remain open to prison inmates.”  Id. at 90.  Third, the reviewing court should evaluate what effect, if any, facilitating the constitutional right would have on “guards and other inmates, and on the allocation of prison resources generally,” such that an untenable policy in the short term that otherwise serves a broader purpose may be upheld.  Id.  Fourth, the reviewing court should examine whether other feasible alternatives exist that are equally likely to be effective in achieving the desired ends.  Id.  However, the Turner Court specified that the fourth factor is not intended to be a “least restrictive alternative test,” such that prison officials are not required to exhaust every conceivable alternative method of accommodating the prisoner’s rights.  Id. at 90-91.  Thus, so long as an alternative means enabling the exercise of a prisoner’s rights comes at a de minimis cost to content-neutral and valid penological interests, a court may properly consider that as evidence that the regulation at issue was reasonable.  Id.

In establishing the deferential standard of Turner, the Court instructed as to how Martinez could be reconciled and applied post-Turner.  Specifically, the Court affirmed that the holding of the Martinez Court and its established test applied exclusively to outgoing mail. Id. In so holding, the Court reasoned that “the logic of our analyses in Martinez and Turner requires that Martinez be distinctively limited to regulations concerning outgoing correspondence,” given that “outgoing correspondence was the central focus of our opinion in Martinez.” Thornburg v. Abbott, 490 U.S. 401, 413 (1989).  In its reliance on a long line of intervening precedent and its endeavor to fashion a standard of review for prisoners’ constitutional claims, the Court sought to formulate a standard of review “that is responsive both to the “policy of judicial restraint regarding prisoner complaints and [t]o the need to protect constitutional rights.”  Id. (quoting Martinez, 416 U.S. at 406).  Furthermore, the key distinction between the courts that apply Turner and those that apply Martinez in the outgoing mail context is the level of governmental interest that they believe is justified.  Courts applying the Martinez standard emphasize the decreased threat outgoing mail poses to internal prison security and other penological interests, whereas those that apply the Turner standard perceive the governmental interest as nearly preeminent.


The excessive role of near-absolute deference in the Turner Court’s reasonableness standard affords nearly unfettered discretion to prison officials and minimal jurisprudential scrutiny of challenged regulations that strip prisoners of their due constitutional protections—and does so invidiously.  With each stroke of Madison’s ink quill, his disenchantment with the effectively unbridled conduct of the formidable structure and institutions of government could not have been made more plain.  It was a purposeful exercise in delineating the separation of powers to preserve individual liberty of the weakest among us—a function within the sui generis province of the highest Court in our land.

It is in this very spirit that the Supreme Court should repudiate Turner.  Although the Court did not squarely address prisoners’ rights in Martinez, in some ways minimizing the seminal holding of its bite, the integrity of its articulated standard nonetheless endures as it concerns the fundamental rights of prisoners.  The Martinez standard recognizes the right to speak, even for those branded as unworthy, as inviolable and deserving of robust protection.  Although it is axiomatic that the prison environment presents unique challenges and the exercise of prisoners’ rights in some cases may run up against the penological, rehabilitative, and security interests of the government, the Turner standard proves sorely inadequate, and its emphasis on prison official “expertise” and “discretion” perilous to the Madisonian ethos.  Affording prison institutions virtual free rein to obstruct prisoners’ speech in the form of written correspondence stifles one of the most critical modes of communication between incarcerated people and the public, which includes their families and communities of support and advocacy.

Mail correspondence is generally the most practical and economical method of communication to and from a correctional institution, and a failure to accommodate this measure constitutes a dramatic departure from centuries of jurisprudence entrenched within the fabric of this nation’s founding ideals—that all persons merit a high degree of protection of fundamental rights from governmental encroachment irrespective of one’s status, including the right to speak no matter how disagreeable, odious, or unpopular the message or messenger.  R.A.V. v. City of St. Paul, 505 U.S. 377 (1992).  For prisoners, the ability to communicate is a dignity that should be legally preserved.  Similarly, the chilling effect of a failure to repeal Turner is deleterious to the very rehabilitative ends the government seeks to promote, as speech restrictions compound the particularly demoralizing conditions of prison institution and tend to cause prisoners to harbor defiance and mistrust of authority that resurfaces when prisoners are reintegrated into society. See H. Barnes & N. Teeters, New Horizons in Criminology 359 (3d ed. 1959).  In the words of Madison, “it could not be less folly to abolish liberty, which is essential to political life, because it nourishes faction,” and the Martinez standard is better suited to the task.

[1] See e.g., Pell v. Procunier, 417 U.S. 817, 827 (1974) (stating that lower courts should defer to the “expert judgment” of prison officials in such matters “in the absence of substantial evidence in the record to indicate the officials have exaggerated their response to these considerations”); Jones v. N.C. Prisoners’ Union, 433 U.S. 119, 129 (1977) (holding that bans on union meetings and solicitation to join prisons unions were valid); Bell v. Wolfish, 441 U.S. 520, 550 (1979) (upholding a proscription on inmates’ receipt of books as “rational response” to a clear security problem); and Block v. Rutherford, 468 U.S. 576, 586 (1984) (holding that a visitation ban was rationally related to internal security concerns within the prison environment).

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About Robyn Sanders (1 Articles)
Robyn Sanders is a third-year law student at Campbell Law and currently serves as a Staff Writer for the Campbell Law Observer. She holds a Bachelor of Arts in Political Science and a Master of Arts in Public Administration with a focus in public policy, graduating with High Honors, from North Carolina State University. She has policy analysis experience in both the public and private sectors and has completed externships with multiple judges and justices in the state and federal judiciary. During her second year of law school, Robyn was a member of the nationally-ranked Campbell Law School Mock Trial Team, where she and four other second-year students won second place out of twenty-four nationally-ranked teams at the Lone Star Classic in San Antonio, Texas. Robyn also served on the Executive Board of the Campbell Black Law Student Association and received a “Book Award” for receiving the highest grade in her Constitutional Law II and Advanced Legal Writing classes. After her second year of law school, she was a summer associate at Ellis and Winters, LLP in Raleigh, NC, where she worked in their civil and appellate litigation sections. Following graduation, Robyn will serve as a judicial law clerk to the Honorable Justice Anita Earls at the North Carolina Supreme Court. Her interests include civil rights, constitutional, and appellate litigation.