ST. LOUIS (CN) — An Arkansas county argued before an Eighth Circuit panel on Tuesday morning that its postcard-only mail policy mirrors that of other counties and has been proven constitutional in previous cases.
The Human Rights Defense Center, a prison rights advocacy group, filed a lawsuit against Baxter County in 2017 challenging the “postcard-only” policy, which prohibits the center and other publishers from sending books, magazines and correspondence to inmates in the Baxter County Detention Center. The group claims the ban violates the center’s First and 14th amendment rights.
Baxter County argues that several case precedents have upheld nearly identical policies in county jails, most notably in a case the HRDC filed about the same time against Union County, Arkansas, in which the Eighth Circuit found in favor of the policy.
“If you compare the complaints filed by the plaintiff in both cases, they’re nearly identical, except for the names of the counties,” Baxter County attorney Jason Owens said.
HRDC attorney Theodore R. Snyder, of Davis Wright Tremaine in New York, pushed back, noting that the jail in Union County provided alternatives like electronic kiosks that Baxter County did not.
The arguments centered on the 1987 ruling in Turner vs. Safely, which established the Turner test for whether a prison regulation violates constitutional rights.
The three-judge panel pushed Owens about the availability of alternatives for inmates, which is one of the factors for Turner.
U.S. Circuit Judge Jane L. Kelly, a Barack Obama appointee, and U.S. Circuit Judge Raymond W. Gruender, a George W. Bush appointee, took turns questioning whether telephone calls were a viable way to get information to inmates.
“Any form of communication is limiting to some degree,” Owens said. “Every inmate’s mother wishes they could go serve the time with them and wishes they could spend more time.
“Visitation is always too short,” he said. “Telephone calls are always too short. The collect calls are too expensive. … That’s the difference between available and ideal.”
Owens noted that HRDC was aware of the jail’s policy of accepting donated materials but never took advantage of it.
Snyder pushed back on that idea.
“The finding that the district court made is that there’s no policy in the jail for the county to accept donations,” Snyder said. “The county has no record of accepting donations.”
Snyder took specific aim at the jail’s law library.
“The law library, as is clear from the record, is a milk crate with six worn rule books,” Snyder said. “During the depositions in this case, the sheriff added a couple of the publications from HRDC. They became dated.”
U.S. Circuit Judge L. Steven Grasz, a Donald Trump appointee, asked if a ruling in the HRDC’s favor could open a Pandora’s box for similar groups to inundate jails with their publications.
Snyder said such a scenario was speculative and highly unlikely.
“These are worthy publications that provide knowledge about updated rulings used for prisoners and conditions and things like that,” Snyder said. “There’s a limited number of entities and folks that will sort of be in the market for doing this.”
Owens, in his rebuttal, argued that the jail was already receiving more mail from publishers since a district court ruled in HRDC’s favor, but he allowed that no evidence of that uptick is part of the record.
“Unsolicited commercial junk mail, if I may be so bold, doesn’t have the same First Amendment protections as a call from an inmate’s mother,” Owens said. “That’s Supreme Court law. That’s black-letter law.”
Baxter County, in its brief, argues that all four of the Turner factors weigh in its favor.
“The district court’s holding on the First Amendment claim conflicts not only with its own previous contrary holding, but with the holdings of at least six other judges and 12 unanimous jurors who have all held that substantively identical postcard mail policies do not violate the First Amendment,” Baxter County officials claim. “The district court’s second opinion in this case also fails to afford sufficient judicial deference to the administrators of the Baxter County jail.”
The HRDC argues in its brief that Baxter County jail officials have unfettered discretion to approve or reject books as they wish.
“Based on testimony, the district court found that, despite the written policy in effect, the jail’s policy was ‘arbitrary’ and ‘appears to change on a whim,’” HRDC claims. “The testimony at trial of Lieutenant Dennis, the acting administrator of the jail, was that the sheriff and management of the jail have ‘subjective personal discretion’ about the type of mail that an inmate can receive, and that can change from day to day.”
This is the second time this matter has been before the Eighth Circuit.
A district judge originally found against the HRDC, which prompted an appeal. After hearing the arguments, the Eighth Circuit remanded the case back to the lower court to decide whether Baxter County’s policy resulted in “a de facto ban” on inmates accessing HRDC materials.
The district judge then ruled in favor of the HRDC, finding that the policy was a de facto ban, prompting Baxter County to appeal.
There is no timetable for a ruling from the appeals court, which took the arguments under advisement.
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