Inmate wins constitutional challenge to contraband punishment

Even inmates have rights. They cannot be charged with violating prison rules without due process. The in-house rules have to be clear so that inmates are on notice of all behavioral standards. Lawsuits against Department of Corrections challenging inmate punishments usually fail, but not always.

The case is Farid v. Ellen, decided on January 28. Farid was an inmate who was involved with the DOCS-approved Long Termers Committee (LTC), an inmate group that focuses on inmates with long sentences. When officers searched Farid's cell, they found booklets entitled, "The Politics of Parole," a publication which criticized parole policies and practices and which appeared to be published by the LTC but was not authorized by DOCS or LTC. In light of the prison's contraband rules which prohibit inmates from possessing "any item unless it has been specifically authorized" by jail officials, the prison deemed the booklet contraband and Farid was sentenced to solitary confinement.

Farid wins this appeal in the Second Circuit (Calabresi, Sack and Wesley) because that rule about unauthorized possession of items in the jail did not place Farid on notice that his booklet was contraband. True, the booklet violated LTC rules because that committee did not authorize Fahid's publication. But he was not charged with violating LTC rules; he was charged with violating prison rules, which did not specifically prohibit publications like this. Under the prison's rules, the pamphlet was not contraband. Moreover, the rules governing inmate behavior gave prison officials unbounded discretion to decide what was "specifically authorized" in the facility. That discretion also violates the Constitution.

In defending the case, the state invoked qualified immunity, a doctrine which gives public officials the benefit of the doubt in close constitutional cases. But this is not a close case, Judge Calabresi says:

We have no trouble concluding that the right not to be punished under one set of rules for violations of another is clearly established. The very essence of constitutional prohibitions on vagueness is that rules must give notice of the conduct that they (not another set of rules) prohibit, and must constrain the discretion of officials who apply them. This is impossible where prohibitions and punishments are set out in one set of rules, but officials remain free to impose punishments established in an entirely different set of rules not referenced by the first.

What makes the Court's qualified immunity analysis interesting is that qualified immunity is usually denied when other cases on point had already prohibited the challenged governmental decision. There are no cases involving the vagueness of the precise regulations at issue in this case, but precedent clearly foreshadows the Court of Appeals' analysis. As Judge Calabresi sees it, Chatin v. Coombe, 186 F.3d 82 (2d Cir. 1999), "comes mighty close to holding the conduct here at issue to be unlawful." In that case, "we held that prisoners are not required to synthesize prison regulations with other potentially relevant restrictions on their conduct." The Court concludes, "Here, too, we reject Defendants’ argument that Farid should have read the contraband and smuggling rules alongside the LTC’s internal by-laws and interpreted them in conjunction as saying that conduct barred under the latter is punishable under the former."