United States Court of Appeals for the EIGHTH CIRCUIT

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No. 19-2096

IN THE United States Court Of Appeals FOR THE EIGHTH CIRCUIT

HUMAN RIGHTS DEFENSE CENTER, Plaintiff-Appellant,

BAXTER COUNTY, ARKANSAS, Defendant-Appellee.

On Appeal from the United States District Court for the Western District of Arkansas, Civil Action No. 3:17-CV-3070 (Judge Timothy L. Brooks)

BRIEF OF THE RODERICK & SOLANGE MACARTHUR JUSTICE CENTER, CENTER FOR APPELLATE LITIGATION, FREE MINDS BOOK CLUB & WRITING WORKSHOP, JUST DETENTION INTERNATIONAL, MICHIGAN STATE UNIVERSITY COLLEGE OF LAW’S CIVIL RIGHTS CLINIC, AND UPTOWN PEOPLE’S LAW CENTER AS AMICI CURIAE IN SUPPORT OF APPELLANT

David M. Shapiro Devi M. Rao RODERICK AND SOLANGE Counsel of Record MACARTHUR JUSTICE CENTER Emily M. Savner NORTHWESTERN PRITZKER JENNER & BLOCK LLP SCHOOL OF LAW 1099 New York Ave., NW 375 E. Chicago Ave. Washington, DC 20001 Chicago, IL 60611 (202) 639-6869 [email protected]

CORPORATE DISCLOSURE STATEMENT Amici curiae certify that they have no outstanding shares or debt securities in the hands of the public, and they do not have parent companies. No publicly held company has a 10% or greater ownership interest in amici curiae.

/s/ Devi M. Rao

TABLE OF CONTENTS CORPORATE DISCLOSURE STATEMENT ...... i

TABLE OF AUTHORITIES ...... iii

IDENTITY AND INTEREST OF AMICI ...... 1

SUMMARY OF ARGUMENT ...... 5

ARGUMENT ...... 6

I. The Baxter County Jail and Detention Center’s Postcard-Only Policy Significantly Limits Prisoners’ Main Means Of Communicating With The Outside World...... 6 II. The BCDC Policy Inhibits Rehabilitation By Effectively Banning Letter Correspondence And The Receipt Of Literature...... 9 A. The BCDC Policy Undermines Rehabilitation By Restricting Meaningful Correspondence And Access To Literature, Which Reduces Alienation And Improves Behavior Upon Release...... 10 B. The BCDC Policy Inhibits Contact With Family, Which Is Essential To Rehabilitation And Reducing Recidivism...... 18 C. The BCDC Policy Undermines Rehabilitation By Restricting Access To Religious Material...... 22 CONCLUSION ...... 27

TABLE OF AUTHORITIES

CASES Procunier v. Martinez, 416 U.S. 396 (1974), overruled in part on other grounds by Thornburgh v. Abbott, 490 U.S. 401 (1989) ...... 10

Turner v. Safley, 482 U.S. 78 (1987) ...... 5

OTHER AUTHORITIES American Bar Ass’n Criminal Justice, Standards on Treatment of Prisoners § 23-8.6 (2018), https://www.americanbar.org/groups/ criminal_justice/publications/criminal_justice_section_archive/cri mjust_standards_treatmentprisoners/#23-8.6 ...... 15 Joyce A. Arditti et al., Saturday Mornings at the Jail: Implications of Incarceration for Families and Children, 52 Fam. Rel. 195 (2003) ...... 20 Arkansas Department of Correction, 2017 Inmate Handbook (Nov. 2017), https://adc.arkansas.gov/images/uploads/Inmate_Hand book_2017.pdf ...... 24 Laura J. Bakker et al., Hidden Victims of Crime, 23 Soc. Work 143 (1978) ...... 18 Baxter County Sheriff, Jail, https://www.baxtercountysheriff.com/jail (last visited Aug. 23, 2019) ...... 6, 8 Mary Bosworth et al., Doing Prison Research: Views from Inside, 11 Qualitative Inquiry 249 (2005) ...... 11 Bonnie E. Carlson & Neil Cervera, Inmates and their Families: Conjugal Visits, Family Contact, and Family Functioning, 18 Crim. Just. & Behav. 318 (1991) ...... 20 Johnna Christian, Riding the Bus: Barriers to Prison Visitation and Family Management Strategies, 21 J. Contemp. Crim. Just. 31 (2005) ...... 21 Todd R. Clear & Melvina T. Sumter, Prisoners, Prison, and Religion, 35 J. Offender Rehab. 125 (2002) ...... 23

iii

Dharma Friends, Compassion Works for All, https://www.compassion worksforall.org/dharmafriends (last visited Aug. 23, 2019) ...... 25

EBP Society, Family Relationships and the Incarcerated Individual (2016), https://www.ebpsociety.org/blog/education/221-family-rela tionships-incarcerated-individual ...... 19

Creasie Finney Hairston, Family Ties During Imprisonment: Important to Whom and For What?, 18 J. Soc. & Soc. Welfare 87 (1991) ...... 13

From Former Inmates Listed on WriteAPrisoner.com, Why WriteAPrisoner?, WriteAPrisoner.com, https://writeaprisoner.com/ why-writeaprisoner (last visited Aug. 23, 2019) ...... 11

Olga Grinstead et al., The Financial Cost of Maintaining Relationships with Incarcerated African American Men: A Survey of Women Prison Visitors, 6 J. African Am. Men 59 (2001) ...... 18, 21 Craig Haney, The Psychological Impact of Incarceration: Implications for Post-Prison Adjustment (2001), Presented at U.S. Health and Human Services & The Urban Institute National Policy Conference, From Prison to Home (2002), http://aspe.hhs.gov/hsp/prison2home 02/haney.pdf ...... 13-14 Kathy Hieatt, Incarcerated Women Use Internet to Seek Pen Pals, Virginian-Pilot (Apr. 20, 2013), https://pilotonline.com/news/local/ crime/article_9fa15e3b-d8f7-5abb-99c5-f73c2945218d.html ...... 15 How it Works, Crossroads Prison Ministries, https://cpministries.org/ mentorship-program/how-it-works (last visited Aug. 23, 2019) ...... 24-25

Inmate Visitation Date and Times to Change for Female Jail Inmates, Baxter County Sheriff (Apr. 27, 2015), https://www.baxtercounty sheriff.com/press_view.php?id=1431 ...... 6-7 Byron R. Johnson, Religious Participation and Criminal Behavior, in Effective Interventions in the Lives of Criminal Offenders (J.A. Humphrey & P. Cordella eds., 2014) ...... 23

Terry A. Kupers, Prison Madness: The Mental Health Crisis Behind Bars and What We Must Do About It (1999) ...... 18

Nancy G. La Vigne et al., Examining the Effect of Incarceration and In-Prison Family Contact on Prisoners’ Family Relationships, 21 J. Contemp. Crim. Just. 314 (2005) ...... 18, 19

Thomas P. O’Connor & Michael Perreyclear, Prison Religion in Action and its Influence on Offender Rehabilitation, 35 J. Offender Rehab. 11 (2002) ...... 23

Plaintiff’s Post-Trial Brief, Human Rights Defense Center v. Baxter County, No. 3:17-CV-03070 (W.D. Ark. Feb. 15, 2019), ECF No. 101 ...... 8

Prison, Jail Ministries Seek More Volunteers, Catholic Voice (Aug. 11, 2016), http://catholicvoiceomaha.com/mercy-series/prison-jail- ministries-seek-more-volunteers (last visited Aug. 23, 2019) ...... 24 Christopher P. Salas-Wright et al., Buffering Effects of Religiosity on Crime: Testing the Invariance Hypothesis Across Gender and Developmental Period, 41 Crim. Just. & Behav. 673 (2014) ...... 23 Spark of Light Prison Programs, The Aleph Institute, http://www. aleph-institute.org/programs/correspondence-courses.html (last visited Aug. 23, 2019) ...... 25 Stay in Touch, Federal Bureau of Prisons, https://www.bop.gov/ inmates/communications.jsp (last visited Aug. 23, 2019) ...... 20 Jim Thomas & Barbara H. Zaitzow, Conning or Conversion?: The Role of Religion in Prison Coping, 86 Prison J. 242 (2006) ...... 13, 25 Trial Transcript, Human Rights Defense Center v. Baxter County, No. 3:17-CV-03070 (W.D. Ark. Jan. 30, 2019) ...... 8 Trial Transcript, Human Rights Defense Center v. Baxter County, No. 3:17-CV-03070 (W.D. Ark. Feb. 1, 2019) ...... 26 United Nations Office on Drugs and Crime, Handbook on Prisoner with Special Needs (2009), https://www.unodc.org/pdf/criminal_ justice/Handbook_on_Prisoners_with_Special_Needs.pdf ...... 14, 16, 25-26

Urban Institute, Justice Policy Center, Returning Home Study: Understanding the Challenges of Prisoner Reentry, https://www. urban.org/policy-centers/justice-policy-center/projects/returning- home-study-understanding-challenges-prisoner-reentry (last visited Aug. 23, 2019) ...... 18

Visitation for Jail Inmates to be Temporarily Suspended Due to Construction, Baxter County Sheriff (June 7, 2019), https://www. baxtercountysheriff.com/press_view.php?id=2015 ...... 7

Peter Wagner & Alexi Jones, Prison Policy Initiative, State of Phone Justice Report 2018 (Feb. 2019), Prison Policy Initiative, State of Phone Justice Report 2018, https://www.prisonpolicy.org/phones/ state_of_phone_justice.html ...... 7, 8, 21-22 Michael D. White et al., Exploring Inmate Reentry in a Local Jail Setting: Implications for Outreach, Service Use, and Recidivism, 58 Crime & Delinq. 124 (2012) ...... 9

1 IDENTITY AND INTEREST OF AMICI

Undersigned amici, non-profit groups that work to improve the criminal justice system, have an interest in ensuring incarcerated persons’ successful rehabilitation. The furtherance of this interest depends on incarcerated persons’ ability to correspond via letter and receive literature of all types, and amici believe the District Court’s order here puts this interest in jeopardy. Should the postcard- only policy at issue in this case stand, the vital interest in incarcerated persons’ rehabilitation will be severely impaired in Baxter County, Arkansas and jeopardized in every other prison and jail system in the United States.

The Roderick & Solange MacArthur Justice Center (“MJC”) is a not-for- profit organization founded by the family of J. Roderick MacArthur to advocate for human rights and social justice through litigation. MJC has represented clients facing myriad human rights and civil rights injustices, including issues of discrimination, the unlawful detention of foreign nationals, and the rights of marginalized groups in the American justice system. MJC has also worked to improve jail and prison conditions nationwide. MJC has an interest in ensuring that

1 Pursuant to Federal Rule of Appellate Procedure 29(a)(4)(E), amici affirm that no party or counsel for a party authored this brief in whole or in part and that no person other than amici, their members, or their counsel have made any monetary contributions intended to fund the preparation or submission of this brief.

1 incarcerated persons’ voices are heard and that they are treated with respect for their basic dignity and constitutional rights.

The Center for Appellate Litigation (“CAL”) is a non-profit public defense law firm dedicated to the pursuit of equal justice under the law for indigent New

Yorkers in their criminal appeals and other post-conviction proceedings. CAL believes all people deserve dignity, respect, and the right to be heard and treated fairly when their liberty has been taken from them or threatened, regardless of their ability to pay for an attorney. CAL’s Books Beyond Bars program, founded in

November 2016, provides reading materials to indigent, incarcerated individuals across New York and advocates for policies that support prisoners’ access to information. Books Beyond Bars’ goal is to encourage literacy, education, self- empowerment, personal growth, or simply to provide a brief escape from the dehumanization of the criminal justice system.

Free Minds Book Club & Writing Workshop (“Free Minds”) is an organization dedicated to aiding incarcerated youth through creative expression, job readiness training, and violence prevention outreach. Free Minds uses books, creative writing, and peer support to further its vision of helping young people who are incarcerated achieve their education and career goals and become powerful voices for change in the community. Among other ways, Free Minds communicates with its incarcerated members through mailed newsletters and a mail-based book

2 club, sending discussion questions, new books, creative writing and book review assignments, and volunteers’ feedback to Free Minds’ members. Free Minds also connects recently released members with resources and programs in the community to help them achieve a successful reentry. Free Minds has an interest in ensuring that incarcerated persons nationwide are able to communicate and receive mail- based resources and tools.

Just Detention International (“JDI”) is the only organization in the world dedicated exclusively to ending sexual abuse behind bars. JDI works to: hold government officials accountable for prisoner rape; promote public attitudes that value the dignity and safety of people in detention; and ensure that survivors of this violence get the help they need. JDI trains staff on sexual abuse prevention and response, educates prisoners about their rights, and creates policies that increase safety for LGBT and other especially vulnerable prisoners. JDI also helps make sure that survivors in detention get the crisis services they need and deserve. One of JDI’s top priorities is to make sure that prisoner rape survivors can get the help they need to heal. Every day, JDI gets letters from prisoners who have been sexually assaulted.

JDI responds to each survivor who contacts them, letting the survivors know— through written, mailed material—that they are not alone, that the abuse was not their fault, and that healing is possible.

Michigan State University College of Law’s Civil Rights Clinic advocates for prisoners whose civil rights have been violated in the prison system, from individual representation to class actions. The Clinic represents clients on matters such as suppression of free speech and free practice of religion, instances of cruel and unusual punishment, and other infringements of civil rights. Foundational to prisoners’ civil rights is their ability to communicate, without undue burden, with those outside of prison.

The Uptown People’s Law Center (“UPLC”) provides legal representation, advocacy, and education for poor and working people in Chicago, and legal assistance to people housed in Illinois prisons in cases related to their confinement.

UPLC has provided direct representation to over 100 persons confined in Illinois prisons pertaining to their civil rights, including in seven class-action or putative class-action cases that are currently pending. UPLC has also litigated individual cases involving excessive use of force, denial of religious freedom, censorship, due process violations, and denial of medical care, among others.

SUMMARY OF ARGUMENT

“Prison walls do not form a barrier separating prison inmates from the protections of the Constitution.” Turner v. Safley, 482 U.S. 78, 84 (1987). Nor should they form a barrier to accessing the tools that men and women who are incarcerated need to ensure their success upon release. But that is exactly what

Defendant-Appellee Baxter County’s policy does by prohibiting incarcerated persons’ access to all materials, sent through the mail, if those materials do not fit on a 5.5 inch by 8.5 inch postcard (“post-card only policy” or “BCDC policy”).

The BCDC policy is breathtaking in the scope of the material prohibited. It bars not just Plaintiff-Appellant’s Prison Legal News (“PLN”), but all literature and all correspondence by letter; it would have prohibited St. Paul from sending his prison epistles and Dr. King from dispatching his “Letter from a Birmingham Jail.”

The BCDC policy compounds alienation and social isolation. It makes it difficult, if not impossible to stay in touch with loved ones and form connections—life lines— with those who should become their critically important support network upon release. In so doing, BCDC’s policy not only fails to serve a legitimate penological interest—as described in the PLN’s merits brief—but also undercuts the recognized penological interest in rehabilitation.

ARGUMENT

I. The Baxter County Jail and Detention Center’s Postcard-Only Policy Significantly Limits Prisoners’ Main Means Of Communicating With The Outside World. The breadth of the postcard-only policy is staggering. Under the policy, individuals held in Defendant Baxter County’s Baxter County Jail and Detention

Center (“BCDC”) are limited to sending and receiving mail on postcards with dimensions not exceeding 5.5 by 8.5 inches. The policy has a single, narrow exception for legal mail—limited to mail to and from the courts, attorneys, and

2 government agencies. Under this policy, a person held at BCDC cannot receive a religious tract sent by a member of the clergy, a letter from a loved one, or a printed picture of their child. All outside publications and personal, letter correspondence are banned.

For those housed at BCDC, keeping in touch with loved ones is already a challenge. Persons housed at BCDC may receive visitors only once a week during the hours of 12:00 pm and 4:00 pm, working hours for most would-be visitors.

Within this window, each person housed at BCDC is allowed only 30 minutes of visitation per week, with that time divided across visitors if he or she is lucky enough to receive more than one. Inmate Visitation Date and Times to Change for Female

2 BCDC houses both pre-trial detainees and post-conviction prisoners. Baxter County Sheriff, Jail, https://www.baxtercountysheriff.com/jail.

Jail Inmates, Baxter County Sheriff (Apr. 27, 2015), https://www.baxtercountysheriff.com/press_view.php?id=1431 (stating visiting times for all incarcerated persons). Additionally, visitation may be suspended due to unforeseen circumstances at the jail. For instance, in June of 2019, visitation at

BCDC was “temporarily” suspended due to construction. The Sheriff’s office expected the suspension to last three to four weeks, leaving those held at BCDC able to communicate with family only via telephone and postcard during that time.

Visitation for Jail Inmates to be Temporarily Suspended due to Construction, Baxter

County Sheriff (June 7, 2019), https://www.baxtercountysheriff.com/press_view.php?id=2015. As of August 23,

2019, however, the jail still had not announced that the suspension had been lifted.

Even when friends or family members are able to visit, according to the BCDC rules, they can only bring in identification and keys. Persons held at BCDC thus have no way now of seeing pictures of family or receiving literature or other reading materials.

Phone calls are also not a ready alternative to mail. The cost of calling an incarcerated person is extremely high: in-state calls to persons held at BCDC cost

$24.82 for fifteen minutes, or almost $100 an hour. Peter Wagner & Alexi Jones,

Prison Policy Initiative, State of Phone Justice (Feb. 2019), https://www.prisonpolicy.org/phones/state_of_phone_justice.html [hereinafter

“State of Phone Justice Report”]. Among facilities surveyed, BCDC had the highest phone call cost in the country. The rate for calls at BCDC was five times higher than even the rate charged at Arkansas state prisons, which house people who have been convicted of crimes. Id.

The pre-trial detainees and post-conviction prisoners held at BCDC do not have access to television or the internet. See Baxter County Sheriff, Jail, https://www.baxtercountysheriff.com/jail; Trial Transcript 122:13-16, Human

Rights Defense Center v. Baxter Cty., No. 3:17-CV-03070 (W.D. Ark. Jan. 30,

2019). Radio access is limited to 25-30 minutes of local radio news per day. Id. at

123:8-19. One copy of the Baxter County Bulletin is circulated; no other newspapers or magazines are allowed. Id. at 123:8-124:23. And when it comes to available legal material, BCDC prisoners are limited to the “law library/milk crate” that

BCDC provides and that consists of just “a few[,] basic, tattered, and out-of-date legal books.” Plaintiff’s Post-Trial Brief at 2, Human Rights Defense Center v.

Baxter Cty., No. 3:17-CV-03070 (W.D. Ark. Feb. 15, 2019), ECF No. 101. BCDC provides no non-law library; the “book cart” that once existed is no longer available.

Trial Transcript 120:8-11, Human Rights Defense Center v. Baxter Cty., No. 3:17-

CV-03070 (W.D. Ark. Jan. 30, 2019).

The difficulty of in-person visits, the high cost of phone calls, and the lack of access to in-house reading material makes correspondence by letter the primary way

8 those housed at BCDC can keep in touch with the outside world, including family members, friends, and pen pals. To restrict such communications to only those words that can fit on a postcard serves to further isolate those held at BCDC from the people whose support they will need once they reenter the community.

Additionally, the postcard-only policy deprives the men and women held at BCDC of access to correspondence and outside reading materials—including religious material—that may facilitate rehabilitation and reduce recidivism.

In considering the extent of the infringement of the postcard-only policy on

HRDC’s First Amendment rights, this Court should consider not only the policy’s claimed benefits to BCDC, but also the policy’s significant detrimental effects on the rehabilitation of BCDC prisoners.

II. The BCDC Policy Inhibits Rehabilitation By Effectively Banning Letter Correspondence And The Receipt Of Literature. The postcard-only policy undermines one of the fundamental goals of the penal system: rehabilitation. Because nearly all incarcerated persons will gain release at some point, the societal interest in ensuring that they are able to readjust to society successfully is strong. See Michael D. White et al., Exploring Inmate

Reentry in a Local Jail Setting: Implications for Outreach, Service Use, and

Recidivism, 58 Crime & Delinq. 124, 125-26 (2012).

As the Supreme Court recognized more than forty years ago, “the weight of professional opinion seems to be that inmate freedom to correspond with outsiders

9 advances rather than retards the goal of rehabilitation.” Procunier v. Martinez, 416

U.S. 396, 412 & n.13 (1974) (citing then Federal Bureau of Prisons policy statement and Association of State Correctional Administrators’ policy guideline describing contact with community as a “valuable therapeutic tool in the overall correctional process” and recognizing that correspondence is “beneficial to the morale of all confined persons and may form the basis for good adjustment in the institution and the community.”), overruled in part on other grounds by Thornburgh v. Abbott, 490

U.S. 401 (1989). BCDC’s postcard policy, however, works against the goal of rehabilitation. Specifically, limiting outside contact increases isolation and the negative psychological effects of “prisonization”—effects that extend beyond an incarcerated persons’ release date—reduces the ability to stay connected with loved ones, and hampers the ability to form religious or spiritual connections.

Additionally, by preventing correspondence by letter and preventing the receipt of literature, the policy further isolates incarcerated persons from the networks they will need to successfully reenter their communities upon release.

A. The BCDC Policy Undermines Rehabilitation By Restricting Meaningful Correspondence And Access To Literature, Which Reduces Alienation And Improves Behavior Upon Release. Incarceration creates a sense of isolation and alienation that is damaging to incarcerated persons’ ability to successfully reenter society, a sense of isolation that correspondence can reduce. As incarcerated persons who have participated in the

Write A Prisoner’s pen pal program have explained:

• “Yes, I’m in prison, and yes, I’m guilty. I think I’ve paid my debt to society and definitely have a new attitude and outlook on life! I need new friends and a new environment to start my life anew.” (T.W., Lake City, FL) • “My friends and family outside of prison have all disappeared. Everyday is a struggle to retain an ounce of dignity. I don’t seek pity. I ask you to remember that prison is a very lonely place. Having someone willing to listen, confide in and be an outside source of strength will help to make prison life bearable.” (T.C., Shakopee, MN) • “I’ve 2 pen-pals now and it has been good to get mail from positive people.” (V.T., Soledad, CA) • “I would like to thank you very much for helping me connect with the world. Because of your program, I’ve met two very nice people who really care about my situation and have treated me like a human being and a person instead of a dog in a cage.” (D.M., Corcoran, CA) • “I was going to write earlier but I wanted to make sure that I am leaving. On March 23, 2009 I am going to be released from prison. So you can go ahead and remove my profile. I want to also thank you for your service. Because of you, I have made many new friends which has made my time here much easier. The best part is because of your service, I now have a wonderful job awaiting me when I get out.” (T.G., Hawkinsville, GA)

From Former Inmates Listed on WriteAPrisoner.com, Why WriteAPrisoner?,

WriteAPrisoner.com, https://writeaprisoner.com/why-writeaprisoner (last visited

Aug. 23, 2019); see also Mary Bosworth et al., Doing Prison Research: Views from

Inside, 11 Qualitative Inquiry 249, 257 (2005) (“Making a connection with someone new outside helps a person feel a bit closer to home, a bit more like a human being and a bit less like a prisoner.”).

Amicus Center for Appellate Litigation’s Books Beyond Bars program sends books and magazines to indigent individuals in jails and prisons, one goal being to provide a diversion for their clients. The results, as seen by client testimonials, demonstrate the positive effect that the program, which provides outside contact and literature, can have in terms of reducing feelings of isolation:

• “My sincere thanks to everybody involved in books beyond bars. This program has helped me build by vocabulary and escape a lot of the trouble that idle minds attract. It also helps me educate myself in matters of the law, and for that I am truly appreciative of everyone involved in this program. From the people who put this program together to the people who send out the books and everyone in between.” • “…Honestly, I saw your address on someone’s legal work, which I was helping fill out and the offer for books caught my eye. Being a bookworm I ask him if I could write to your office. So this is a letter of pleading. I’m asking you to send me reading material! I will list my favorite: All Books : ) You know, just when I start to feel angry at the world or just stress out due to some of the things these staff members do to harass us, something good comes out of nowhere to remind me that God’s people are out there ready to help the forgotten ones.” • “I would like to say thanks for these few books of enlightenment I really appreciate them. They shine a lot of light in places in places that were dark for me so I will say thank you.” • “I have to say that this book has me like a kid again … When I read the book it unlocks things inside of me, it’s like I’m being set free, like someone gave me back my liberty … I would never forget this nice thing you’ve done for me. And you might think to yourself, for a book? But it’s not just a book, it’s the path that this book is about to set me on.” Research has confirmed the positive effects of outside contact for men and women who are incarcerated. Making connections with the outside world helps

12 incarcerated persons cope with the challenges of prison life and reduces the likelihood that they will internalize the undesirable behaviors of the prison subculture. See, e.g., Jim Thomas & Barbara H. Zaitzow, Conning or Conversion?:

The Role of Religion in Prison Coping, 86 Prison J. 242, 246 (2006) (“Considerable evidence suggests that prisoners’ contacts with the outside are crucial in adjusting to and coping with prison experiences.”); Creasie Finney Hairston, Family Ties During

Imprisonment: Important to Whom and For What?, 18 J. Soc. & Soc. Welfare 87,

93-94 (1991) (“Several studies suggest the prisoner’s mental health is dependent on his contact with the outside world.”).

Psychologist and University of California professor Craig Haney has dissected the negative psychological effects of incarceration, including:

• dependence on institutional structure and contingencies;

• hypervigilance, interpersonal distrust and suspicion;

• hyper control over one’s emotions;

• alienation, and psychological distancing;

• social withdrawal and isolation;

• incorporation of exploitative norms of prison culture;

• diminished sense of self-worth and personal value; and

• post-traumatic stress reactions to the pains of imprisonment.

Craig Haney, The Psychological Impact of Incarceration: Implications for Post-

Prison Adjustment 7-12 (2001), Presented at U.S. Health and Human Services &

The Urban Institute National Policy Conference, From Prison to Home (2002), http://aspe.hhs.gov/hsp/prison2home02/haney.pdf. Professor Haney found that the more “extreme, harsh, dangerous, or otherwise psychologically-taxing the nature of the confinement, the greater the number of people who will suffer and the deeper the damage that they will incur.” Id. at 5. Among Professor Haney’s recommendations to limit these effects and “eas[e] the transition from prison to home,” is a directive to policymakers and prison officials to “support[] contact with the outside world … both to minimize the division between the norms of prison and those of the freeworld, and to discourage dysfunctional social withdrawal that is difficult to reverse upon release.” Id. at 17.

The United Nations Office on Drugs and Crime has similarly determined that the “promotion of mental health, as well as … social well-being should comprise key elements of prison management and health care policies” and “[t]he provision of purposeful activities and mental stimulation, as well as contact with the outside world is … vital” in the context of protecting the mental well-being of all incarcerated persons. United Nations Office on Drugs and Crime, Handbook on

Prisoner with Special Needs 24 (2009), https://www.unodc.org/pdf/criminal_justice/Handbook_on_Prisoners_with

_Special_Needs.pdf (emphases added) [hereinafter “UNODC Handbook”].

Corrections officials themselves also recognize the benefits of outside correspondence for incarcerated persons, including its role in rehabilitation. As Lisa

Kinney, Virginia Department of Corrections spokesperson, put it, “Correspondence allows people to maintain and even strengthen bonds and ties within a community despite being physically disconnected, and it is one way to facilitate reentry . . . .

Using different modes of correspondence, offenders can build and maintain relationships, return with resources, and feel positive about themselves and their connections.” Kathy Hieatt, Incarcerated Women Use Internet to Seek Pen Pals,

Virginian-Pilot (Apr. 20, 2013), https://pilotonline.com/news/local/crime/article_9fa15e3b-d8f7-5abb-99c5- f73c2945218d.html.

Others in the legal field agree. Within its Standards on Treatment of

Prisoners, the American Bar Association includes among its “Rehabilitation and

Reintegration” standards prescriptions for policies concerning incarcerated persons’ written communications, which the BCDC policy contravenes: “Correctional authorities should allow prisoners to communicate as frequently as practicable in writing with their families, friends, and representatives of outside organizations, including media organizations”; “Correctional authorities should allow prisoners to receive or access magazine, soft- or hard-cover books, newspapers, and other written materials, including documents printed from the Internet…” ABA Criminal Justice,

Standards on Treatment of Prisoners § 23-8.6 (2018), https://www.americanbar.org/groups/criminal_justice/publications/criminal_justice

_section_archive/crimjust_standards_treatmentprisoners/#23-8.6?.

Reducing alienation through outside contact is particularly important for incarcerated persons with specialized needs or concerns. The United Nations Office on Drugs and Crime has identified the following relevant populations of incarcerated persons with special needs for whom contact with the outside community is particularly important: (1) persons with mental health care needs, for whom “regular and meaningful contact with family members and friends through … correspondence” is “fundamental”; (2) persons with disabilities, from whom the

“opportunity to participate in programmes designed for their needs and increase contact between the prisoners and the outside world” will “have a beneficial effect on their mental well-being”; (3) ethnic and racial minorities, for whom “continuing contacts with the community is likely to be of particular importance, due to their sense of alienation and isolation within the system, and the higher level of distress experienced as a result of breaking ties with the community in some cultures”; and

(4) lesbian, gay, bisexual, and transgender persons, for whom the United Nations recommends that prison authorities make “special efforts to facilitate their contact with the outside world” “[d]ue to the likelihood of limited contact with family and relatives.” UNODC Handbook at 36, 52, 73, 116.

Another group of incarcerated persons with special needs are people in detention who are survivors of sexual assault. Amicus JDI connects with this group of people through written correspondence and literature. JDI receives letters from survivors of sexual assault and responds to each and every one. To help them cope and rebuild their lives, JDI has developed a Survivor Packet, which includes Hope for Healing, JDI’s 32-page self-help guide; contact information for local rape crisis centers and legal aid organizations; and a letter of hope from another prisoner rape survivor. JDI mails all of these materials to people in detention upon receipt of a letter, and from there, a line of communication and help is established. California prisoner J.W. has explained the value of these materials in a message of thanks to

JDI: “I want to acknowledge all your correspondence and thank JDI for all of its support. I have come to learn a sense of safety from abuse just knowing you all exist and are there to support.” These personal and multi-page materials, which are not well-suited for postcards, are barred by the post-card only policy.

In short, material delivered from outside of the prison’s walls—material that is now largely prohibited by the BCDC policy—fills a void and allows for much- needed human contact, positive influence, and community connection. This, in turn, aids in creating a healthier, less alienated prisoners and therefore healthier, less alienated former prisoners.

B. The BCDC Policy Inhibits Contact With Family, Which Is Essential To Rehabilitation And Reducing Recidivism. One of the key drivers of rehabilitation is the maintenance of familial relationships. Family members provide the financial resources, housing, and emotional support for incarcerated persons, both in anticipation of and after release.

See Urban Institute, Justice Policy Center, Returning Home Study: Understanding the Challenges of Prisoner Reentry, https://www.urban.org/policy-centers/justice- policy-center/projects/returning-home-study-understanding-challenges-prisoner- reentry (last visited Aug. 23, 2019). “One of the most consistent findings in criminal justice” is that incarcerated persons’ contact with family members promotes subsequent family reunification and reduces recidivism. Olga Grinstead et al., The

Financial Cost of Maintaining Relationships with Incarcerated African American

Men: A Survey of Women Prison Visitors, 6 J. African Am. Men 59, 59-60 (2001); see also Terry A. Kupers, Prison Madness: The Mental Health Crisis Behind Bars and What We Must Do About It 157 (1999) (“Research shows that continuous contact with family members throughout a prison term makes it much less likely that a prisoner will be re-arrested and re-imprisoned in the years following his release”);

Nancy G. La Vigne et al., Examining the Effect of Incarceration and In-Prison

Family Contact on Prisoners’ Family Relationships, 21 J. Contemp. Crim. Just. 314,

316, 331-32 (2005); Laura J. Bakker et al., Hidden Victims of Crime, 23 Soc. Work

143, 144, 148 (1978) (noting “[r]esearch has found that there is a strong positive

18 relationship between the maintenance of strong family ties during imprisonment and the success of parole after an inmate has been released” and recommending corrections officials “remove restrictions on mail and visitors that are not absolutely necessary to maintain security”). For example, one qualitative analysis found that

“any in-person contact as well as the occurrence and frequency of mail and phone calls were significant predictors of attachment to children after release.” La Vigne et al. at 328. Referencing “[p]rior research linking family contact in prison with lower rates of post-release recidivism, the researchers concluded, in part, that

“prisoners would be well served by corrections policies that remove barriers to contact during incarceration.” Id. at 332.

A report by EBP Society, an association of evidence-based professionals, explains this connection: “it is clear that social connectedness is the root source of reintegration into society. This social connectedness stems from the relationships an incarcerated individual is able to maintain during and after their sentence.” EBP

Society, Family Relationships and the Incarcerated Individual (2016), https://www.ebpsociety.org/blog/education/221-family-relationships-incarcerated- individual (citing Sarah Wakefield, Changing the Ties that Bind, 15 Criminology &

Pub. Pol’y, 543 (2016)). Inmates’ strong family ties are also associated with deterring future incidents of crime. Id. (citing William D. Bales & Daniel P. Mears,

Inmate social ties and the transition to society: Does visitation reduce recidivism?,

45 J. Res. in Crime & Delinq. 287 (2008)).

The Federal Bureau of Prisons (“BOP”) recognizes the connection between family and community support and the lower likelihood of recidivism. BOP acknowledges that “[s]tudies show that when inmates maintain relationships with friends and family, it greatly reduces the risk they will recidivate.” Stay in Touch,

Federal Bureau of Prisons, https://www.bop.gov/inmates/communications.jsp (last visited Aug. 23, 2019). Therefore, BOP “encourages inmates to write to family, friends, and other community contacts to maintain these ties during incarceration.”

Id.

However, “family systems are stressed severely by even short periods of incarceration.” Joyce A. Arditti et al., Saturday Mornings at the Jail: Implications of Incarceration for Families and Children, 52 Fam. Rel. 195, 195 (2003). And by making contact with loved ones even more difficult, the postcard-only policy undermines family connections and thus puts successful reentry and rehabilitation in jeopardy. The significant challenges associated with in-person visits and telephone calls—in correctional facilities generally and at BCDC in particular— make correspondence by letter necessary for incarcerated persons seeking to keep in touch with family on the outside. Indeed, letters are, in general, the most common form of family communication for incarcerated persons, including for parent-child contact. See Bonnie E. Carlson & Neil Cervera, Inmates and their Families:

Conjugal Visits, Family Contact, and Family Functioning, 18 Crim. Just. & Behav.

318, 327 (1991) (finding that letters were the most common form of communication between incarcerated husbands and their wives); Johnna Christian, Riding the Bus:

Barriers to Prison Visitation and Family Management Strategies, 21 J. Contemp.

Crim. Just. 31, 32 (2005) (finding that only 57% of male prisoners in state custody with minor children had received an in-person visit from their child since their admission to prison). At BCDC, the limited time allowed for in-person visits—30 minutes total per week and only during the typical work- and school-day—illustrates the difficulty families and loved ones may find in actually visiting loved ones housed at BCDC.

Mail is also the least expensive regular means of communicating with a person in prison. In a survey of visitors at a large state prison in California, researchers found that the average monthly costs of mailing packages to incarcerated persons was approximately three times less expensive than the average monthly cost of phone calls and approximately six times less expensive than regular visits. Grinstead et al. at 64-66.

And, as noted above, the cost of calling a person held at BCDC is particularly and prohibitively high. The State of Phone Justice Report describes the consequences of charging the high prices for phone calls for pre-trial detainees that

Baxter County does—it “punishes people who are legally innocent, drives up costs

21 for their appointed counsel, and makes it harder for them to contact family members and others who might help them post bail or build their defense. It also puts them at risk of losing their jobs, housing, and custody of their children while they are in jail awaiting trial.” State of Phone Justice Report. These problems are multiplied when incarcerated persons are also severely restricted in their ability to communicate in written form.

Thus for most persons held at BCDC, correspondence is the best—if not only—option for significant contact with friends and family. Without the postcard- only policy, a prisoner whose elderly father could not visit could still receive a lengthy letter with health updates and words of encouragement. Or, during the holidays, prisoners could receive printed pictures of their family in the mail to keep their spirits up. Postcards, which is all that the BCDC policy allows, are simply not an adequate replacement for these more intimate, personal types of communication with loved ones.

C. The BCDC Policy Undermines Rehabilitation By Restricting Access To Religious Material. The post-card only policy also inhibits incarcerated persons from forming religious connections, another means by which the policy may negatively affect incarcerated men and women’s mental health and chances of rehabilitation. The benefits of religious connection on incarcerated persons’ behavior are well known.

Importantly, religious involvement during incarceration has been shown to reduce

22 offender recidivism. See Byron R. Johnson, Religious Participation and Criminal

Behavior, in Effective Interventions in the Lives of Criminal Offenders 3, 4-7 (J.A.

Humphrey & P. Cordella eds., 2014) (reviewing studies finding that incarcerated persons involved in religious programming were less likely to be rearrested after release and less likely to experience negative emotions and engage in destructive behavior); Thomas P. O’Connor & Michael Perreyclear, Prison Religion in Action and its Influence on Offender Rehabilitation, 35 J. Offender Rehab. 11, 26, 28 (2002)

(finding that more religious involvement reduced the number of incarcerated persons’ infractions; referencing research findings that in-prison infractions are predictor of recidivism); Christopher P. Salas-Wright et al., Buffering Effects of

Religiosity on Crime: Testing the Invariance Hypothesis Across Gender and

Developmental Period, 41 Crim. Just. & Behav. 673, 674, 688 (2014) (“Simply, the body of evidence seems to point to a straightforward empirical conclusion that ‘more religion’ is associated with ‘less crime’”). Additionally, “higher levels of inmate religiousness are associated with better psychological adjustment to the prison environment and fewer self-reported disciplinary confinements.” Todd R. Clear &

Melvina T. Sumter, Prisoners, Prison, and Religion, 35 J. Offender Rehab. 125, 126

(2002). Moreover, “religious commitment seems to reduce depression and provide the support needed to counteract the strains of a hostile environment,” as well as

“provid[ing] the type of support [incarcerated persons] need to stay out of trouble.”

Id. at 146. The Arkansas Department of Corrections agrees that religious programs can aid in rehabilitation, referencing religious programs as among the programs available in state prison facilities to “help [prisoners] with the rebuilding process.”

Arkansas Department of Correction, 2017 Inmate Handbook 7 (Nov. 2017), https://adc.arkansas.gov/images/uploads/Inmate_Handbook_2017.pdf.

Closed letters allow men and women who are incarcerated to find religious solace by corresponding with clergy or others about religion and spirituality, or studying these issues through pamphlets and other reading material and literature.

The exchange of views regarding religion is often a private, sensitive topic—one that does not lend itself to the postcard format. There is a great desire for such religious connection among persons who are incarcerated. Numerous, religion- based pen pal programs exist and the Catholic Archdiocese of Omaha, for instance, has found such significant demand for its jail and prison ministry that it needs more volunteers. Prison, Jail Ministries Seek More Volunteers, Catholic Voice (Aug. 11,

2016), http://catholicvoiceomaha.com/mercy-series/prison-jail-ministries-seek- more-volunteers (last visited Aug. 23, 2019). Additionally, organizations like

Crossroads Prison Ministries provides Bible correspondence courses for incarcerated persons. The Crossroads program is operated through the mail—

Crossroads sends a Bible study lesson to an incarcerated student; the student completes the lesson and sends it back; and volunteer mentors review the completed

24 lessons and mail them back to the student “with an encouraging letter.” See How it

Works, Crossroads Prison Ministries, https://cpministries.org/mentorship- program/how-it-works. Involvement in the program can lead to progress letters to the parole board, the judge, or a prospective employer, potentially speeding release and aiding with employment, a key component of reentry success. Persons held at

BCDC, however, cannot take advantage of the benefits of such programs.

What is more, for incarcerated persons who are members of religious minorities, reading material from outside the correctional facility may be the only way of meaningfully engaging in religious practice. See Thomas & Zaitzow, supra,

86 Prison J. at 250 (explaining that corrections centers mostly provide Christian programming). In recognition of this fact, many religious institutions are willing to provide these valuable services to incarcerated persons. For instance, Jewish persons who are incarcerated can seek religious pen pals or correspondence through the Aleph Institute. See generally Spark of Light Prison Programs, The Aleph

Institute, http://www.aleph-institute.org/programs/correspondence-courses.html

(last visited Aug. 23, 2019). Similarly, Compassion Works for All provides a free bimonthly newsletter and resource lists for Buddhists who are incarcerated. Dharma

Friends, Compassion Works for All, https://www.compassionworksforall.org/dharmafriends (last visited Aug. 23, 2019).

Access to these types of outside religious resources is key to allowing members of

25 minority religious groups to receive the rehabilitative benefits of spiritual counseling. See also UNODC Handbook at 72 (“Providing possibilities for ethnic and racial minorities … to fulfil the requirements of their religious or spiritual beliefs is important to ensure that they do not feel further isolated from their own culture and traditions, and that they find spiritual support during their imprisonment.”).

None of these valuable resources are available to people housed at BCDC, however, except to the extent that the spiritual counseling fits on a postcard. By foreclosing a key avenue through which incarcerated persons form religious connections—mail-based correspondence and literature—in a corrections system

3 with few, if any, replacement resources, BCDC’s postcard-only policy disregards the recognized link between religious involvement, successful reentry, and reduced recidivism.

* * *

The many benefits that correspondence by letter and access to outside reading materials have for incarcerated persons’ rehabilitation cannot be adequately provided by postcards. Postcards do not allow for sufficient writing space or privacy to be a reasonable substitute for letters from loved ones or clergy, and cannot take

3 BCDC offers visits by a chaplain—presumably not one of any minority religion or denomination—on an ad hoc basis. See Trial Transcript 353:2-4, Human Rights Defense Center v. Baxter Cty., No. 3:17-CV-03070 (W.D. Ark. Feb. 1, 2019).

26 the place of religious reading material, written resources, or other literature that may supplement the under-resourced libraries at correctional facilities. BCDC’s postcard-only policy bans an extremely broad range of outside materials, further isolating incarcerated persons from the outside world and thereby undercutting the penological goal of rehabilitation.

CONCLUSION

For the reasons set out above, and those contained in Appellant’s brief, the judgment of the district court should be reversed.

DATED: September 3, 2019 Respectfully submitted,

/s/ Devi M. Rao Devi M. Rao Counsel of Record Emily M. Savner JENNER & BLOCK LLP 1099 New York Ave., NW Washington, DC 20001 (202) 639-6869 [email protected]

David M. Shapiro RODERICK AND SOLANGE MACARTHUR JUSTICE CENTER NORTHWESTERN PRITZKER SCHOOL OF LAW 375 E. Chicago Ave. Chicago, IL 60611

CERTIFICATE OF COMPLIANCE

I hereby certify that this brief complies with the typeface requirements of Fed.

R. App. P. 32(a)(5), the type style requirements of Fed. R. App. P. 32(a)(6), and the type-volume limitations of Fed. R. App. P. 29(a)(5) and 32(a)(7)(B) because it is proportionally spaced, has a typeface of 14 point Times New Roman, and contains

5984 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(f). This brief complies with Circuit Rule 28A(h) because the files have been scanned for viruses and are virus-free.

/s/ Devi M. Rao

CERTIFICATE OF SERVICE

I, hereby certify that on September 3, 2019, I caused the foregoing brief to be electronically filed with the Clerk of the Court for the United States Court Of

Appeals for the Eighth Circuit by using the CM/ECF system. I certify that all participants in this case are registered CM/ECF users and that service will be accomplished by the CM/ECF system.

/s/ Devi M. Rao