In a 6-2 ruling, the high court accepted the state’s argument that the policy, which is one of the most restrictive in the nation, was needed to encourage better behavior among the “worst of the worst” in the state prison system.

“While we do not deny the constitutional importance of the interests in question, we find, on the basis of the record now before us, that prison officials have set forth adequate legal support for the policy,” wrote Justice Stephen G. Breyer.

The decision came in a case brought by a Pittsburgh man, Ronald Banks, 41, who is serving a life sentence for murder and is now confined in the long-term segregation unit at the state prison in Fayette.

Banks went to court on behalf of himself and other inmates in the 40-prisoner unit in a constitutional test of how far prisons can go in restricting reading material and personal photos without violating the First Amendment.

Andrew Shubin, an attorney for Banks, said he was disappointed but not surprised by the ruling. “Prisoners face additional hurdles — extraordinarily high hurdles — on issues that touch on security and rehabilitation,” he said.

Prison officials would not disclose Banks’ disciplinary history, but his prison behavior earned him a cell in long-term segregation, customarily a place for inmates who pose security risks or have a history of escape or violence.

Inmates placed in the most restrictive part of that unit can have religious and legal periodicals, writing paper and two paperback books, but not mainstream newspapers, magazines or personal photographs.

Such prisoners also are kept in solitary confinement for 23 hours a day with no access to radio or TV, and they have phone privileges only in an emergency and one visit a month from a family member.

While Banks challenged the ban on newspapers as excessive, attorneys for state prison officials said the policy was necessary to give inmates an incentive to improve their behavior, and for safety reasons.

The high court held in a 1987 case that “prison walls do not form a barrier separating prison inmates from the protections of the Constitution.”

When a regulation “impinges” on a constitutional right, the court said then, the rule is valid if it is reasonably related to “legitimate penological interests.”

Breyer concluded that, under that standard, Banks did not show that the Pennsylvania regulation was unreasonable. Breyer was joined by Chief Justice John G. Roberts Jr., and Justices David H. Souter and Anthony M. Kennedy. Justice Clarence Thomas concurred in the decision, but wrote a separate opinion that was joined by Justice Antonin Scalia.

Justice John Paul Stevens, one of the two dissenters, said that the ban on newspapers and photographs was excessive.

“What is perhaps most troubling about the prison regulation at issue in this case is that the rule comes perilously close to a state-sponsored effort at mind control,” he wrote.

Justice Ruth Bader Ginsburg, the other dissenter, said she found some of the state’s justification “too tenuous to be plausible.” Inmates, she said, were unable to get the Christian Science Monitor but allowed to have the Jewish Daily Forward, barred from reading about the war in Iraq and Hurricane Katrina but allowed to read romance novels.

The high court ruling reversed last year’s decision by the Philadelphia-based U.S. Court of Appeals, which concluded, in a 2-to-1 ruling, that the policy went too far. The newest justice, Samuel A. Alito Jr., was the dissenter in that case when he was on the Third Circuit. He did not consider the case in the high court.

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Copyright (c) 2006, The Philadelphia Inquirer

State College lawyer Andrew Shubin has an opportunity to do what most lawyers can only dream about: argue a case before the United States Supreme Court.

Shubin will be in Washington on March 27 to present arguments before the court in favor of upholding an appellate court decision that allows state prison inmates to read newspapers, magazines or view any other media for current events.
These inmates — hardened, “problem” inmates — are prohibited from reading any form of current events, which Shubin argues, is a violation of the First Amendment.

“They are among the most isolated inmates on the planet,” Shubin, 42, said. “They are virtually in a prison within a prison. They have no access to news or current events.

“The First Amendment clearly protects that, the right to receive information.”

In 2005,Shubin won a 2-1 decision in the 3rd Circuit Court of Appeals in favor of the inmates, housed in the long-term segregation unit at the State Correctional Institution at Pittsburgh. But attorneys for the commonwealth of Pennsylvania asked the U.S. Supreme Court to review the case, which it agreed to do in December.

In the appellate case, the lone dissent against the inmates was now-Supreme Court Justice Samuel Alito, who Shubin said will have to recuse himself from the case because the justice essentially would be reviewing his own decision.

“There is a distinct possibility there will be a 4-4 tie, which will mean the appellate ruling will stand and the inmates will have won,” Shubin said.

The commonwealth argues prisons have the right to keep reading materials away from inmates to prevent them from using newspapers and such to hide weapons or sling bodily waste at guards. The prison system also argues that keeping these materials away from inmates can serve as motivation for them to behave.

Segregated inmates are allowed religious and legal materials.

While winning the case is foremost on his mind, Shubin admits he is excited for this opportunity, which rarely comes along for most lawyers.

“For an attorney, it’s an incredibly rare opportunity,” he said. “It’s probably going to be once in a lifetime. It’s been a wonderful experience so far, and a little bit scary. It’s been one of the highlights of my practice.”

Centre County attorney Terry J. Williams, a former president of the Centre County Bar Association, said, to the best of his knowledge, Shubin will be only the second county attorney to argue before the high court.

“That’s how rare it is,” Williams said.

In private practice since 1998, Shubin handles civil-rights cases, criminal defense, employment law, constitutional and political cases. He began practicing law with Mid-Penn Legal Services and worked on prisoners’ rights issues for the first five or six years of his legal career.

By Pete Bosak
pbosak@centredaily.com