A Warden's Lot is Not, etc.

The cast of characters begins with Jeffrey Beard, Pennsylvania's secretary of corrections. The Banks in this case is Ronald Banks, now serving a life term for murder. Judge Alito now awaits almost certain confirmation to succeed Justice Sandra Day O'Connor on the high court. If he is confirmed, he will have to sit this one out. Custom requires that he decline to take part in deciding a case on which he acted below.

Not surprisingly, the pending case has nothing to do with the crime for which Banks was convicted. He is merely the lead plaintiff in a class action testing the rights and privileges of inmates in a state prison. If it were not for Judge Alito's dissenting opinion in the lower appellate court, the case would amount to little more than a dispute between cold hearts and warm hearts on a circuit bench. He makes it news.


Under Pennsylvania's penal system, one-tenth of 1 percent of the imprisoned felons may be confined in a Long Term Segregation Unit (LTSU). These are the inmates deemed to be the most violent or disruptive. Initially assigned to an LTSU, they must stay at Level 2 for at least 90 days. The regimen is not pleasant. These prisoners may have neither radio nor television. They are locked into solitary confinement 23 hours a day. They are permitted telephone calls only to cope with an emergency or to talk with their lawyers. They may receive only legal or religious publications.

The more lenient rules for "Level 1" permit prisoners to have one newspaper, 10 photographs and up to five magazines in their cells. Prisoners in an LTSU may work their way out through sustained good behavior. Their status is reviewed once a month.

Banks and other long-term convicts filed suit three years ago, challenging especially the limits on newspapers, magazines and photographs. They lost in U.S. District Court on the state's motion for summary judgment. Judge Terrence F. McVerry found the rules "reasonably related to legitimate penological interests."

A panel of the 3rd Circuit reversed, 2-1. Speaking through Judge Julio M. Fuentes, with Judge Max Rosenn concurring, the majority sided with the prisoners all the way. They saw no evidence that the state's program contributes to an inmate's rehabilitation. The very idea is "illogical." They found no supportive testimony behind the "deprivation theory." They perceived no rational connection between security concerns and a ban on newspapers. If newspapers are combustible, said Judge Fuentes, so too are toilet paper, writing paper, socks, Bibles and paperbacks from the prison library. One could serve as well as another to start a fire. "The relationship between the policy and the penological interest may be too attenuated to be reasonable." The panel majority voted to send the prisoners' case back to the District Court for trial.

Judge Alito politely dissented. (To those of us just getting acquainted with the judge's opinions, his dissent in this case appears to be entirely in character: The gentleman is a little wordy, but he's invariably respectful and restrained. No Scalia, he.) Here the judge noted that Pennsylvania's last-resort restrictions, enforced only on the most incorrigible prisoners, may be lifted after 30 days of good behavior. In his view, a "rational" relationship links a prisoner's serious misconduct to serious infringements upon his liberty.

Alito mildly observed that his colleagues in the majority apparently believe that sanctions are ineffective unless potential offenders know specifically what punishment to expect for their misbehavior. "The majority's reasoning," said Alito in dissent, "is unsound."

"The entire system of prison discipline might be imperiled if each sanction for prison misconduct could not be sustained without empirical evidence that the sanction provided some incremental deterrent."

The judge's short dissenting opinion struck me as the work of a jurist who thinks in terms of the real world -- a world in which wardens must deal with real criminals who deserve real punishment for real wrongdoing. If he makes it to the high court, he will not be able to vote on the case of Ronald Banks. Too bad, but other such appeals will surely come along.

(Letters to Mr. Kilpatrick should be sent by e-mail to kilpatjj@aol.com.)

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