400 F.2d 529 (5th Cir. 1968), 25299, Jackson v. Godwin

Docket Nº:25299.
Citation:400 F.2d 529
Party Name:Herman JACKSON, Jr., Appellant, v. James B. GODWIN, etc., Appellee.
Case Date:July 23, 1968
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 529

400 F.2d 529 (5th Cir. 1968)

Herman JACKSON, Jr., Appellant,


James B. GODWIN, etc., Appellee.

No. 25299.

United States Court of Appeals, Fifth Circuit.

July 23, 1968

Page 530

Michael Meltsner, New York City, Earl M. Johnson, Jacksonville, Fla., for appellant.

David U. Tumin, Asst. Atty. Gen., Tallahassee, Fla., for appellee.

Before TUTTLE and GOLDBERG, Circuit Judges and HOOPER, District Judge.

TUTTLE, Circuit Judge:

Petitioner Herman Jackson is a twenty-seven year-old Negro who has been a prisoner for over seven years at the Florida State Prison under sentence of death for the crime of rape. Petitioner is lodged in the prison's maximum security area, the East Unit, which has a population of about 1,100 or one-third of the prison's population. Approximately one-half of the population of the East Unit and of the prison as a whole is Negro. Jackson resides in Death Row, in a cell block with some seventeen others similarly condemned to death, all confined in single solitary cells. Each is not visible to the Death Row inmates but the cells are penetrable by voice. As a Death Row prisoner Jackson is not allowed visitors and the usual privileges afforded the other prisoners but is allowed out to play shuffleboard or catch, hopefully once a week in good weather. As a death Row prisoner, Jackson is also permitted books from the prison library brought by the prison chaplain on his visits.

Petitioner filed a hand-written complaint against the state prison superintendent under 42 U.S.C. § 1983 on the grounds that the rules and regulations of the prison deprived him of the equal protection of the laws by denying him the right to receive Negro newspapers and magazines because he was a Negro while permitting white inmates to receive white newspapers and magazines. The petition specifically alleged that (1) he was denied a request to subscribe to a Negro newspaper, the Pittsburgh Courier, and to national magazines such as Ebony and Sepia, which are published primarily for Negroes; (2) none of the reading material selected by a special screening committee was designed for Negro readers even though one-half of the prison population was non-white; (3) petitioner was denied a request to subscribe to any Negro newspaper; (4) none of the requested material could be construed as subversive or destructive to the morals of the petitioner and (5) white inmates were free to choose any newspaper they desired so long as it did not fall within one or both of the above-named prohibited categories. The petition contained the prison superintendent's answer to petitioner's request, which answer asserted that only subscriptions to newspapers of a prisoner's hometown were permitted and, as to the requested Negro magazines, white inmates on Death Row were not permitted 'to have Esquire.'

The petition further alleged that Jackson had received the white-oriented Washington Post for three months, the Tampa Tribune and Times for nine months, the Gainesville Sun for four and one-half months and the St. Petersburg

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Times, Sunday issue, for three months, and also averred that the petitioner had received the Negro newspaper, The Amsterdam News, a weekly published out of New York City, until prison officials discovered that it was a Negro newspaper. The petition stated that as a result of being forced to read only white newspapers and magazines and being denied access to Negro publications, petitioner as a Negro was kept ignorant and uninformed as to news and events in the Negro community. The petition requested the district court to restrain the prison officials from denying petitioner access to non-subversive Negro publications and that petitioner specifically be permitted to read Ebony, Sepia and Tan magazines and the Pittsburgh Courier newspaper and other non-subversive Negro newspapers.

The prison authorities' defense was that petitioner's rights had not been violated because (1) control of mail was an essential part of the administration and maintenance of prison discipline; (2) administrative power to control the form of reading matter within state institutions for the use of prisoners was clearly set forth by Section 944.11 Fla.Stats., F.S.A., which authorized the adoption of such regulations as the Board of Commissioners of state institutions might deem proper and by section 945.21(1)(j) which specifically authorized regulation of the mail to and from prisoners; (3) pursuant to the valid statutory authority, rules and regulations controlling the admission of reading material has been adopted, specifically authorizing the prison superintendent to refuse mail if in his opinion, such mail would be detrimental to good order and discipline and granting officials the authority to set up a specific list of reading materials; (4) that the magazines and periodicals which Jackson sought were 'of a known character to induce lack of security in the penal system because of their nature to incite and stimulate in an unhealthy manner, and such matters of control have long been recognized to be purely within the administrative discretion of the custodian of any prison.'

At a full evidentiary hearing held before the district court to determine the merits of petitioner's allegations, it was developed that the rules and regulations adopted by the prison authorities under authority delegated by Florida law provided a list of magazines to which prisoners were restricted in their subscriptions. This list consisted of the weekly issues of U.S.News and World Report and Sports Illustrated, the monthly publications of Reader's Digest, National Geographic, and Outdoor Life, the semimonthly Saturday Evening Post, and six issues a year of Pocket Crossword Puzzles. The regulations and rules also provided that a prisoner could subscribe to one newspaper of his choice, but that choice was restricted to newspapers published in the prisoner's home town.

Assistant Superintendent Godwin asserted that race had played no part in the regulations and that there was no conscious discrimination in the selection of reading materials but those selected were publications aimed at a 'general cross-section of Americans.' He stated that the hometown newspaper rule applied to all prisoners and represented a necessary administrative decision to 'draw the line' somewhere. Godwin further urged the reasonableness of the regulations and justified them on the basis that strict control was necessary to insure that no publications containing elements of violence or sex entered the prison, for racial tensions and general prison life would make prison discipline extremely difficult if prisoners had access to such materials. He further asserted that the regulations were administrative efforts to cope with the problem of bulk and censorship and maintained that prison officials had 'reports of magazines being impregnated with LSD and other types of dope' in other prisons.

The district court denied petitioner relief on the grounds that control of the mail was an important part of the administration and maintenance of discipline and it was not the duty of the federal courts to superintend the general administration of state prisoners, and that the courts would interfere with the

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enforcement of rules and regulations only in extreme cases:

'Respondent has affirmatively shown at the hearing that the method for selection of reading materials is not accomplished in an arbitrary or discriminatory manner, but in a systematic way to benefit all those incarcerated in the state prison. The broad scope of magazines and other reading material available to the prisoners has not been shown to be racially directed in any manner. Petitioner has failed in his burden to show that the practices complained of are manifestly discriminatory in violation of 42 U.S.C. § 1983.' We must reverse.

It is true that 'Lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system.' Price v. Johnston, 1948, 334 U.S. 266, 68 S.Ct. 1049, 92 L.Ed. 1356. 'It is a rule grounded in necessity and common sense, as well as authority, that the maintenance of discipline in a prison is an executive function with which the judicial branch ordinarily will not interfere.' Sewell v. Pegelow, 291 F.2d 196, 197 (Fourth Circuit, 1961). Some deprivations are a necessary and expected result of being an inmate of a penal institution, which institution must provide for the custody, maintenance, discipline and optimistically, rehabilitation of those who have violated the laws of the sovereign.

However, we have come a long way from some earlier attitudes toward the rights of prisoners such as the following: 'He (the convicted felon) has, as a consequence of his crime, not only forfeited his liberty, but all his personal rights except those which the law in its humanity accords him. He is for the time being the slave of the State.' Ruffin v. Commonwealth, 62 Va. (21 Grath) 790, 792 1871). Prisoners suffer many other kinds of deprivations which are not a necessary result of the institutional structure of prisons but rather are attributable to arbitrary and capricious decisions by prison officials or to unduly restrictive prison regulations. See Note, 72 Yale Law Journal 506 (1963) and Note, 110 U.Pa.L.Rev. 985 (1962). There has been the growing recognition that '(a) prisoner retains all the rights of an ordinary citizen except those expressly or by necessary implication, taken from him by law.' Coffin v. Reichard, 143 F.2d 443, 445 (Sixth Circuit, 1944).

Acceptance of the fact that incarceration, because of inherent administrative problems, may necessitate the withdrawal of many rights and privileges does not preclude recognition by the courts of a duty to protect the prisoner from unlawful and onerous treatment of a nature that, of itself, adds punitive...

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