Turner, Thornburgh, and an Inmate’s Right to Read: The Chelsea Manning Case and Possible Solutions to BOP and USDB Regulation Language
Al M. Dean
The United States Army Military District of Washington convicted Chelsea Manning of contravening provisions of the federal Espionage Act in 2010 after Manning released classified military and diplomatic documents to WikiLeaks. While some commentators describe “the largest dump of classified information in American history” as dangerous and severely treasonous, others applaud Manning’s support of government transparency, prison reform, and transgender equality. Incarcerated in a maximum-security prison, Manning faced solitary confinement for keeping prohibited publications in her cell without filing a book request. Despite being commuted by President Obama in January 2017, the case represents a recent concern lodged at both the United States Disciplinary Barracks (USDB) rules and the Bureau of Prisons (BOP) regulations. The concern is the ambiguity of how prison administrators may accept or deny book requests on a case-by-case basis.
Of particular interest is 28 C.F.R. § 540.71, which governs how BOP wardens review individual book requests. The provision gives prison officials the subjective freedom to determine which materials to ban from federal inmates, resulting in inconsistencies throughout the federal prison system. Some correctional facilities keep relaxed systems that only meet the minimum requirements of § 540.71, while others refuse “to allow any books whose content includes anything legal, medical or contains violence.” Affording prison officials the freedom to decide which materials to ban from federal inmates creates inconsistencies in the interpretation of § 540.71 throughout the federal prison system. This has a significant effect on the level of First Amendment protection afforded from institution to institution, and hampers judicial guidance to administrators.
The Supreme Court keeps a doctrine of deference toward incoming publications as a First Amendment issue. Holdings maintain that prison administrators are in the best position to assess the reasonability of correspondence and book requests. Approvals of these requests are largely left to the discretion of the warden, allowing individual prisons to craft their own policies within the confines of BOP and USDB regulations. Institutional rules are flexible depending on individual prisoner, sentence, or behavior. The current standard from Turner v. Safely and Thornburgh v. Abbott requires regulations that bar the receipt of written materials to be reasonably related to legitimate security interests. The current BOP framework allows wardens to deny a request if it is “determined detrimental to the security, good order, or discipline of the institution or if it might facilitate criminal activity.” While the USDB—where Manning was incarcerated—is a military prison in Fort Leavenworth, Kansas, outside the strict purview of the BOP, the USDB contains essentially the same language as part of the Military Correctional Complex Regulations. This gives prison officials the subjective freedom to determine which materials to ban from federal inmates, resulting in inconsistencies throughout the federal prison system.
This Note sheds light on the constitutional and enforcement implications of current BOP regulations on book requests for federal inmates, and it proposes an alternative to these regulations based on a federally recognized banned publication list. It will examine the existing precedent surrounding the deference given to prison officials (the “hands-off” approach), and the historical trend toward this doctrine. Part I outlines the regulatory and case law histories alongside the treatment of book request rules over the past several decades. It will detail the constitutional tests used in First Amendment challenges. Part II will state the primary issues, including the lack of guidance given to wardens and the public, the arbitrary categorization of publications, and the unequal application between inmates of the same status. Part III proposes new wording to the BOP rules and the creation of a national banned book registry for federal correctional facilities. A detailed list can provide guidance, thereby evenly establishing the evidentiary burden on federal prison officials throughout the U.S. Part IV will demonstrate the public policy benefits of these changes to inmates, wardens, the public at large, and the interests of fairness and justice.
A guided, analytical approach to prison publication requests would eliminate the pressure placed on wardens and inmates to know what constitutes objectionable material. Education and open access to information in the prison system can encourage self-improvement and reduce recidivism. Lower courts will be equipped with the sense of direction necessary to rule on delicate constitutional questions. By creating a level playing field between prison policies, sentences for the same crime are served equally regardless of facility.
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 Espionage Act of June 15, 1917, Pub. L. No. 24, ch. 30, 40 Stat. 217 (1917) (codified at 18 U.S.C. §§ 792–99 (2012)) (“An Act To punish acts of interference with the foreign relations, the neutrality, and the foreign commerce of the United States, to punish espionage, and better to enforce the criminal laws of the United States, and for other purposes.”).
 Julie Tate, Bradley Manning Sentenced to 35 Years in WikiLeaks Case, Wash. Post (Aug. 21, 2013), http://wapo.st/19IK4tA.
 See, e.g., James Kirchick, Bradley Manning Gets Off Easy, N.Y. Daily News (July 30, 2013), http://www.nydailynews.com/opinion/manning-easy-article-1.1413222 (Kirchick compares Manning to NSA whistleblower Edward Snowden, arguing that the conviction sends “a clear message to any soldier or government employee . . . thinking of arrogating to himself the power to determine what information the world has a ‘right to know.’”).
 Chase Strangio, Op-Ed: Chelsea Manning’s Plight Highlights Trans Prison Abuses, Advocate (Aug. 24, 2015), http://www.advocate.com/commentary/2015/08/24/op-ed-chelsea-mannings-plight-highlights-trans-prison-abuses. Strangio, a Staff Attorney at the American Civil Liberties Union, is Manning’s lawyer and a transgender advocate for prison reform. Denise Hassanzade Ajiri, Attorney Credits Public with Sparing Chelsea Manning Solitary Confinement (+video), Christian Sci. Monitor (Aug. 19, 2015), http://www.csmonitor.com/USA/Justice/
2015/0819/Attorney-credits-public-with-sparing-Chelsea-Manning-solitary-confinement-video; Chase Strangio, Am. Civil Liberties Union, https://www.aclu.org/bio/chase-strangio (last visited May 3, 2017).
 Marina Koren, The Books that Prison Officials Don’t Want Chelsea Manning to Read, The Atlantic (Aug. 19, 2015), http://www.theatlantic.com/national/archive/2015/08/chelsea-manning-books-reading-prison/401801.
 Charlie Savage, Chelsea Manning to Be Released Early as Obama Commutes Sentence, N.Y. Times (Jan. 17, 2017), https://www.nytimes.com/2017/01/17/us/politics/obama-commutes-bulk-of-chelsea-mannings-sentence.html?_r=0.
 William Mark Roth, Turner v. Safley: The Supreme Court Further Confuses Prisoners’ Constitutional Rights, 22 Loy. L.A. L. Rev. 667, 668–69 (1989) (noting that lower courts have leeway to manipulate the distinction between prisoners and non-prisoners as a First Amendment issue). The highest-ranking administrator of the USDB is not the “Warden,” but the 15th Military Police Brigade Commander (the “Commandant”), who serves under the direction of the Provost Marshal General of the Army Corrections Command in Washington, D.C. Jennifer Walleman, 15th MP Bde. Welcomes New Commander, Fort Leavenworth Lamp (Jul. 31, 2014), http://www.ftleavenworthlamp.com/article/
20140731/News/140739878. For the purposes of this Note, the Commandant will be included within the general term “warden” used by the BOP.
 Roth, supra note 7, at 670.
 Andrew Losowsky, Prison Books Ban: The Censorship Scandal Inside America’s Jails, Huffington Post (Oct. 3, 2011), http://www.huffingtonpost.com/2011/10/02/prison-books-ban_n_991494.html; see also Tex. Civil Rights Project, Banned Books in the Texas Prison System: How the Texas Department of Criminal Justice Censors Books Sent to Prisoners 52 (2011), https://www.texascivilrightsproject.org/en/wp-content/uploads/2016/04/TCRP_Prison_Books
_Report.pdf (explaining that Texas censors books with content relating to prison conditions and noting that there is “no legitimate reason” prisoners should not be able to read books about prison conditions).
 Turner v. Safley, 482 U.S. 78, 85 (1987) (Writing for the majority, Justice O’Connor describes prison administration as “a task that has been committed to the responsibility of [the executive and legislative] branches, and separation of powers concerns counsel a policy of judicial restraint.”).
 Id. at 89 (arguing that subjecting administrators to strict scrutiny under the First Amendment “would seriously hamper their ability to anticipate security problems and to adopt innovative solutions to the intractable problems of prison administration”).
 Jones v. N.C. Prisoners’ Labor Union, Inc., 433 U.S. 119, 128 (1977) (“The necessary and correct result of our deference to the informed discretion of prison administrators permits them, and not the courts, to make the difficult judgments concerning institutional operations . . . .”).
 Turner, 482 U.S. at 78; Thornburgh v. Abbott, 490 U.S. 401, 401 (1989).
 28 C.F.R. § 540.71(b) (2016).
 Diamond v. Grey, 2012 WL 1415527, at *3 (rejection of inmate mail or publications, “either incoming or outgoing, on the basis of content, is authorized only when it is determined to be detrimental to the safety, security, and good order or discipline of the USDB . . .”) (quoting U.S. Disciplinary Barracks Regulation 28-1(c), previously amended and renamed as Military Correctional Complex Regulation 28-1(c) (2011)).
 See infra note 31 (examining the relationship between judicial application of the hands-off doctrine and the number of constitutional challenges brought in federal court).