FL Inmates right to have pen pal contacts

To: "Steven Wellhausen" ([email protected])



Cc: "Wendel Whitehurst" ([email protected])







Florida State Department of Correction







2601 Blair Stone Road







Tallahassee, Florida 32399-2500















Gentlemen:















It has recently been brought to our attention that the Florida Department of Corrections (hereinafter DOC) is punishing inmates under Rule 33-210.101(9) for placing ads on the internet seeking pen pal correspondence. In this regard please be advised that we consider such to be a grievous violation of all DOC inmates First Amendment Constitutional rights. This letter is therefore intended to serve three purposes: first, to set forth for your consideration a brief overview of our related legal arguments; second, to serve as a vehicle by which to formally request immediate rescission of the subject prohibition; and third, to place you on notice that, unless such rescission occurs on an immediate basis, we intend to file a federal civil rights action against DOC under 42 U.S.C. 1983 on behalf of all state inmates, seeking injunctive relief and damage awards for each and every inmate adversely affected thereby.















As a threshold matter I direct your attention to the fact that long ago the United States Supreme Court established that mail between author and intended recipient is entitled to protection under the First Amendment. See, e.g., Martin v. City of Struthers, 319 U.S. 141 (1943); see also, Lamont v. Postmaster General, 381 U.S. 301 (1965); Kleindienst v. Mandel, 408 U.S. 753 (1972). And the fact prisoners retain most of their constitutional rights while incarcerated is well settled by such other Supreme Court cases as Johnson v. Avery, 393 U.S. 483 (1969) (establishing retention of First and Sixth Amendment rights to petition the government for redress of their grievances); Lee v. Washington, 390 U.S. 333 (1968) (holding inmates remain vested with their Fourteenth Amendment protections against invidious racial discrimination; and Wolff v. McDonnell, 418 U.S. 539 (1974) (observing inmates must be afforded their Fifth and Fourteenth Amendment due process rights). Indeed, [p]rison walls do not form a barrier separating prison inmates from the protections of the Constitution. Turner v. Safley, 482 U.S. 78, 84 (1987). And while Turner did not stand for the proposition that prison officials cannot dilute inmates constitutional rights where safety and/or security are at issue, it did specifically hold that where prison officials promulgate a rule or regulation that infringes to any degree upon the constitutional rights retained by inmates, those officials bear the burden of showing both that the offensive rule or regulation is reasonably related to legitimate penological interest (Id. at 89), and that there are no less objectionable means by which to achieve that neutral government objective. Id. at 90.















The DOC rule here at issue, 33-210.101(9), made effective on September 20, 2004, specifically provides as follows:















Inmates shall not use correspondence privileges to solicit or otherwise commercially advertise for money, goods or services. For the purposes of this rule this includes advertising for pen-pals; inmates are not prohibited from corresponding with pen pals, but shall not place ads soliciting pen pals. Inmates are prohibited from receiving correspondence or materials from persons or groups marketing advertising services, or from subscribing to advertising services. Inmates who post ads or have ads posted with the assistance of another person shall be subject to disciplinary action.















And while a reading of such makes clear that the Department recognizes the constitutional rights of its inmates to freely correspond with free citizen pen pals (inmates are not prohibited from corresponding with pen pals), at the same time it prevents inmates from exercising that right (but shall not place ads soliciting pen pals). The logical question therefore begged is, how does an inmate establish correspondence with a pen pal when he or she is prohibited from making known his or her desire for such? In the absence then of the Department itself providing a forum by which inmates can make known to free citizens their wishes to establish pen pal relationships, beyond argument is that the two above-quoted parenthesized clauses are repugnant to one another. This is particularly true when undeniable is that the subject rule also necessarily deprives potential free citizen pen pals from learning the names, Department identification numbers and addresses of inmates desiring such relationships. Therefore equally troubling then is that the Department is also clearly impinging the constitutional rights of free citizens to establish pen pal relationships with inmates.















Finally, I remind you that DOC officials shoulder an affirmative obligation to taxpayers to encourage the rehabilitation of all persons incarcerated within the Florida State prison system. And I further direct your attention to the fact that penological experts determined long ago that inmates who establish and/or maintain meaningful relationships with free citizens are far less likely to recidivate that are those inmates who do not establish and/or maintain such relationships. Submitted for your consideration then is that the subject prohibition against inmates making known their desires to establish pen pal relationships with free citizens evidences a de facto policy of discouraging inmate rehabilitation as opposed to fostering it.















For all the foregoing reasons then, hereby requested is that you take the necessary steps to cause for DOC Rule 33-210.101(9) to be immediately amended to the extent of redacting therefrom the clause prohibiting inmates from placing ads making known to free citizens their wishes to establish pen pal relationships.











Your attention to and consideration of this matter is sincerely appreciated.