The federal appeals court in Philadelphia ruled last year that prison officials had to provide some objective evidence to show that the policy actually accomplished the twin goals they claimed for it: improved security and "behavior modification" of recalcitrant inmates.
The appeals court's 2-to-1 ruling set aside a federal district court's judgment for the state, leading to Pennsylvania's Supreme Court appeal. Justice Samuel A. Alito Jr., then a member of the appeals court, was the dissenter on the three-judge panel. He left the Supreme Court bench Monday morning when the argument began, and will not take part in the case, Beard v. Banks, No. 04-1739.
The case is a class-action lawsuit that began when the prison authorities seized a copy of The Christian Science Monitor, to which an inmate, Ronald Banks, had a subscription. The lower courts looked at the policy as a whole, and did not scrutinize its application to individual inmates.
The argument in the Supreme Court was more lopsided than the eventual decision might be. Jere Krakoff, a lawyer from Pittsburgh representing the inmates who had brought the lawsuit, was making his first Supreme Court argument and appeared nonplused by questions from the justices that more experienced lawyers would have taken in stride.
"I'm obviously not framing my argument in a way that's getting my point across," Mr. Krakoff said at one point in a discouraged tone. At another point, he offered, "My brief may be more coherent than I am today."
If Mr. Krakoff was discouraged, the justices who were sympathetic to his legal position, or who at least wanted his position to be articulated, appeared frustrated, intervening to the extent of putting words in his mouth.
For example, Mr. Krakoff got into a discussion with Chief Justice John G. Roberts Jr. about an exception in Pennsylvania's policy that permits inmates to have religious newspapers and law-related reading matter in their cells. One of the state's explanations for the general no-newspaper rule was that inmates might set fire to newspapers. Mr. Krakoff, trying to show that, given the exceptions, the policy made little sense, observed that "The Jewish Forward can burn as quickly as The New York Times."
"Now you're making your clients' situation worse," Chief Justice Roberts said. He said the state had been willing to take "a more circumscribed approach" in exempting the religious and legal papers.
Justice Ruth Bader Ginsburg intervened at this point, addressing Mr. Krakoff. "I thought you were saying that as a security concern, it doesn't hold up, because the materials they are allowed to have in their cells could be put to the same end," she said.
Later, nearing the end of his allotted 30 minutes, Mr. Krakoff told the justices that he would sit down rather than continue. But he was kept on his feet by justices who had more questions.
Seeking to summarize as the red light came on to signal that his time was up, Mr. Krakoff observed that some of the hard-core inmates in the special prison unit under discussion would eventually complete their sentences and go back into society, deprived of knowledge of what had been going on in the world.
"They could read about ancient wars in the Bible, but not about the war in Iraq," he said. "It's not a healthy situation."
Pennsylvania's lawyer, Louis J. Rovelli, executive deputy state attorney general, received his share of skeptical questions but appeared generally unfazed by them, as did Jonathan L. Marcus, an assistant United States solicitor general who also argued on the state's behalf.
Justice Ginsburg asked Mr. Rovelli to explain why the policy permitted inmates to order paperback books from the prison library while prohibiting newspapers and magazines. "The rationality of that line escapes me," she said.
Mr. Rovelli replied that paperbacks were "small and compact and much more difficult to use as weapons" by the "worst of the worst" inmates to whom the policy applies. About 40 inmates fit into this category at any one time, housed in a special "long-term segregation unit" in the state prison at Fayette, Pa.
Chief Justice Roberts asked: "Is a paperback copy of 'War and Peace' less dangerous?"
It was a "difficult line to draw," Mr. Rovelli acknowledged, while turning his concession into an opening. That was where the expertise of prison officials, to which judges should defer, came in, he said.
He explained that the policy was "guided by the experience of prison administrators," who had observed the "high value" that prisoners placed on access to newspapers and magazines. These were therefore removed to give prisoners an incentive to change their behavior in order to gain a transfer to a lower-security area of the prison.
This was a justification that the appeals court had found insufficient in the absence of any evidence that it worked or had "any basis in real human psychology," the majority opinion said.
The majority added that far from disregarding Supreme Court precedents requiring deference to prison administrators' judgment, it was simply trying to determine "whether an asserted goal is logically connected to the prison regulation."
If the Supreme Court agrees, the case will go back to Federal District Court in Pittsburgh for a trial. A 4-to-4 tie, in Justice Alito's absence, would have the effect of affirming the appeals court's ruling.
Justice David H. Souter told Mr. Rovelli that the state's behavior-modification theory appeared to justify depriving inmates of access to legal papers. Questioning the state's approach, Justice Souter said: "Tell them, 'No, you may not receive any legal material because it's something you very much want to do.' Can the state do that?"
It could, the state's lawyer replied, as long as the prisoner was left with other means of access to court, including the unlimited visits from lawyers that the policy permits for these high-security inmates. Any prisoner who was deprived of a meaningful access to court, a right to which the Supreme Court has given constitutional protection, could bring another lawsuit challenging the policy "as applied," Mr. Rovelli said.