Reading Material for Pa. Inmates Debated

High Court Hears 1st Amendment Case

A newspaper has many alternative uses -- fish wrap, puppy training. In Pennsylvania, some prisoners fill a rolled-up paper with toothpaste, let it harden -- and use it as a club.

That glimpse of prison reality came at the Supreme Court yesterday, from a lawyer explaining why Pennsylvania denies about 40 of its most violent inmates reading materials unless they obey the rules. The policy, Pennsylvania Executive Deputy Attorney General Louis J. Rovelli said, is "logically connected to both rehabilitation and security."

Prisoner Ronald Banks sued when his Christian Science Monitor was barred, claiming a violation of his First Amendment rights. Last year, a federal appeals court in Philadelphia ruled in his favor. The state appealed, setting up yesterday's oral argument in Beard v. Banks , No. 04-1739. The case will help define how much the Constitution permits officials to restrict inmates' already limited freedom for the sake of order, security and rehabilitation.

At issue is the Long-Term Segregation Unit, located in Pittsburgh until a move in recent years to Fayette County, where inmates from around the state are sent after attempting to escape or assaulting guards. Prisoners may be kept in solitary confinement 23 hours per day. They get no television, radio, newspapers, magazines or photographs, except for religious or legal publications.

Access to reading material is relaxed in return for good behavior. Pennsylvania says this "behavior modification" is consistent with Supreme Court precedent, which says prisons may restrict inmates' rights as long as they have a legitimate reason to do so and have exhausted the alternatives.

The appeals court ruled that Pennsylvania could not enforce the policy without evidence that it achieved its stated purposes. Then-Judge Samuel A. Alito Jr. dissented, saying that a prisoner who was subjected to the restrictions for a long time may have a claim, but that in general the rules were reasonable.

Yesterday, now-Justice Alito had to sit out the case, leaving his eight colleagues to weigh the policy.

Justice Ruth Bader Ginsburg seemed skeptical, noting that a religious publication could also be rolled up and fashioned into a club.

Rovelli answered that, in the experience of prison officials, inmates are less likely to use religious materials as weapons.

The Bush administration supports Pennsylvania, and Assistant Solicitor General Jonathan L. Marcus argued on its behalf. Justice David H. Souter told him he was worried that the state's argument could justify almost anything.

"I don't see the logical stopping point if we accept the behavioral-modification theory," he noted. "Why wouldn't it allow for the deprivation of all communication except access to counsel?"

Marcus replied that such an "exaggerated response" would be barred. "There is a reasonableness test," he said.

But the court's toughest questioning was reserved for Banks's attorney, Jere Krakoff. He puzzled several justices by arguing that the policy was impermissible because the prisoners were so incorrigible that it would never work.

"I'm suggesting there comes a time when you've taken so many things from these prisoners that, yes, you do have to give up," he said.

That prompted a rebuke from Justice Anthony M. Kennedy, who said, "The state's position is that it wants to avoid . . . the most extreme circumstances of just forgetting about them."

Krakoff also disputed the state's claim that newspapers are a danger because inmates light them on fire. The same is true of writing paper, which is allowed, he said.

Justice Antonin Scalia replied: "You want to know what kind of fire you can set with the Sunday New York Times? You're going to compare that with writing paper?"

A decision is expected by July.