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In a ruling that creates a split in the circuits, the 3rd U.S. Circuit Court of Appeals has revived a First Amendment challenge to a law that prohibits inmates in federal prisons from receiving any material that is “sexually explicit or features nudity.” In Ramirez v. Pugh, a unanimous three-judge panel found that a lower court was too quick to declare that the law, known as the Ensign Amendment, is constitutional on the basis of the government’s argument that it was necessary to promote prisoner rehabilitation. Instead, the panel said, the lower court should have conducted hearings to determine if applying such a ban to all inmates — and not just sex offenders — meets the U.S. Supreme Court’s requirement in Turner v. Safley that prison rules be “reasonably related to legitimate penological interests.” The ruling is a victory for Marc Ramirez, an inmate at the low-security federal prison in Allenwood, Pa., who complained that numerous magazines sent to him were rejected as either being “sexually explicit” or “featuring nudity.” Senior 3rd Circuit Judge Robert E. Cowen found that if the scope of the Ensign Amendment had been limited to federal prisoners who have committed sex crimes or violence against women, its connection to legitimate rehabilitation goals would be “obvious,” and it would easily pass constitutional muster “on the basis of common sense.” But since the ban applies to all inmates — and prohibits even non-obscene, so-called “soft-core” pornography, which is protected by the First Amendment — Cowen found that the question of its constitutionality could not be decided as a matter of common sense. “We do not find the connection between the Ensign Amendment and the government’s rehabilitative interest to remain obvious upon consideration of the entire federal inmate population, including those prisoners not incarcerated for sex-related crimes,” Cowen wrote in an opinion joined by 3rd Circuit Judge Marjorie O. Rendell and visiting Senior U.S. District Judge William W Schwarzer of the Northern District of California. On remand, Cowen said, U.S. District Judge James F. McClure Jr. of the Middle District of Pennsylvania “must first identify with particularity the specific rehabilitative goals advanced by the government to justify the restriction at issue.” Then, Cowen said, McClure must “give the parties the opportunity to adduce evidence sufficient to enable a determination as to whether the connection between these goals and the restriction is rational.” But Cowen also emphasized that the appellate court was simply ordering fact-finding hearings and had not reached any conclusions about whether the government would be able to meet the test it was announcing. “By no means do we wish to suggest that the only legitimate target of the Ensign Amendment is the class of convicted federal sex offenders,” Cowen wrote. “We recognize that the government has wide latitude in pursuing legitimate rehabilitative goals.” Courts, Cowen said, “may not substitute their own judgment in place of that of the legislative or executive branches where the position advanced by the government is not ‘irrational or unreasonable’ but simply ‘less reasonable’ than that of the prisoner plaintiffs.” Nonetheless, Cowen said, the appellate court “cannot ignore the possibility” that the ban may be appropriate only for a “small percentage” of the prison population. If that proves to be true, Cowen said, the government’s interest in applying it to all inmates may be “so remote as to render it arbitrary or irrational.” In reviving the suit, the 3rd Circuit created a circuit split by explicitly rejecting the reasoning of a divided panel of the U.S. Court of Appeals for the D.C. Circuit. In its 1998 decision in Amatel v. Reno, the D.C. Circuit rejected a challenge to the Ensign Amendment after finding that its restriction on the distribution of sexually explicit material was reasonably related to the government’s penological interest of prisoner rehabilitation. Cowen found that the Amatel court applied a broad definition to the government’s interest in prisoner rehabilitation, holding that the government has the power to “inculcate values” and to promote “respect for authority and traditional values” as a legitimate rehabilitative purpose in and of itself. The Amatel court also relied on “common sense,” Cowen found, when it reasoned that “prisoners are more likely to develop the now-missing self-control and respect for others if prevented from poring over pictures that are themselves degrading and disrespectful.” Unlike the 3rd Circuit, the Amatel court “did not see the need for an evidentiary record,” Cowen said. Instead, Cowen said, the D.C. Circuit held “that its own common sense was sufficient to verify the rational connection between the Ensign Amendment’s proscriptions and the asserted rehabilitative goal.” But Cowen found that the First Amendment questions raised by the Ensign Amendment were not so easily answered. “To say … that rehabilitation legitimately includes the promotion of ‘values,’ broadly defined, with no particularized identification of an existing harm towards which the rehabilitative efforts are addressed, would essentially be to acknowledge that prisoners’ First Amendment rights are subject to the pleasure of their custodians,” Cowen wrote. “To the extent that the Amatel majority defines rehabilitation in this way, we disagree with its reasoning,” Cowen said. Instead, Cowen said he agreed with the dissenting judge in Amatel, D.C. Circuit Judge Patricia M. Wald, who said she rejected the government’s argument that there was an “inherent reasonableness” in Congress’ decision that sexually explicit materials are “always inimical to rehabilitation.” Like Cowen, Wald said that she would have insisted on hearings. In her dissent, she complained that the government “steadfastly resisted creating any kind of record to support such a wide-reaching incursion on the constitutional rights of incarcerated individuals.” The 3rd Circuit’s decision in Ramirez strongly echoes a July 2002 decision by the 3rd Circuit, authored by Rendell, that revived a similar suit in which inmates in federal prisons challenged a ban on allowing them to watch movies rated R or NC-17. In Wolf v. Ashcroft, Rendell found that U.S. District Judge Sean J. McLaughlin of the Western District of Pennsylvania “did not conduct a proper, thorough analysis” of whether the movie ban was “reasonably related to legitimate penological interests.” Rendell found that McLaughlin improperly relied on “common sense” and that his four-page order deciding the case in favor of the government failed to show his reasoning.

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