On appeal from a final agency decision of the Department of Corrections.
The opinion of the court was delivered by: Stern, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 2, 2005
Resubmitted December 20, 2006
Before Judges Stern, A. A. Rodríguez and Sabatino.
On this appeal, Dennis Pryor, an inmate at the Adult Diagnostic and Treatment Center (ADTC), challenges the constitutionality of three regulations promulgated by the Department of Corrections (DOC). First, he challenges N.J.A.C. 10A:18-9.6, which allows the ADTC administrator to prohibit ADTC inmates from "recei[pt], possess[ion], distribut[ion], or display" of "not sexually oriented material" that "will impede the rehabilitation of inmate[s]." He claims that the regulation is unconstitutional because it "restricts inmate[s'] rights under common law and the First Amendment and the Fourteenth Amendment" to the Federal Constitution. In filing the appeal, appellant relied upon the 1987 Supreme Court opinion in Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed. 2d 64 (1987). Second, he challenges the constitutionality of N.J.A.C. 10A:16-4.4, regulating exceptions to statutorily privileged inmate-therapist communications. Appellant asserts that that regulation "voids inmate-therapist confidentiality in contravention of protections offered by the Eighth and Fourteenth Amendments." Finally, he challenges N.J.A.C. 10A:4-4.1 *.260, which subjects an inmate "to disciplinary action and a sanction" for "refusing to submit to mandatory medical or other testing[,]" as "interfer[ing] with inmate rights under the common law and the Fourteenth Amendment to give informed voluntary consent to medical procedures."
Appellant also attacks the three regulations under state law.
In essence, appellant seeks to strike N.J.A.C. 10A:18-9.6 and N.J.A.C. 10A:16-4.4(c) through (f) as unconstitutional under both the federal and state constitutions, to modify subsection (g) of N.J.A.C. 10A:16-4.4 to require notice to inmates that certain disclosures trigger the therapist's "duty to warn[,]" to modify subsection (h) of that regulation "to provide that inmates be noticed that anything they say in therapy may be used against them later in civil commitment" proceedings, and to strike a portion of N.J.A.C. 10A:4-4.1 *.260.
As to appellant's challenge to N.J.A.C. 10A:4-4.1 *.260, we denied a stay of DNA testing on August 8, 2006 (filed August 15, 2006). Subsequently, the Supreme Court upheld the constitutionality of DNA testing in A.A. v. Attorney General, 189 N.J. 128 (2007) and State v. O'Hagen, 189 N.J. 140 (2007). We therefore summarily reject the challenge to N.J.A.C. 10A:4-4.1 *.260.
As to the other points, on April 27, 2006, we adjourned this appeal and ordered supplementary briefs to be filed after the United States Supreme Court's decision in Beard v. Banks, 548 U.S. __, 126 S.Ct. 2572, 165 L.Ed. 2d 697 (2006). Under Beard, courts must give "'substantial deference to the professional judgment of prison administrators[,]'" id. at __, 126 S.Ct. at 2578, 165 L.Ed. 2d at 705 (quoting Overton v. Bazzetti, 539 U.S. 126, 132, 123 S.Ct. 2162, 2167, 156 L.Ed. 2d 162, 170 (2003)), and restrictive regulations are permitted in the prison setting "if they are "reasonably related' to legitimate 'penological interests" and are not an 'exaggerated response' to such objectives." Ibid. (quoting Turner, supra, 482 U.S. at 87, 107 S.Ct. at 2261, 96 L.Ed. 2d at 77-78) (citations omitted). In demonstrating that connection, the inmate has "the burden of persuasion[.]" Ibid.
In light of Beard, we reject the facial challenge to N.J.A.C. 10A:18-9.6 and conclude that there is a legitimate basis for the regulation's limitations on access to the magazines and literature at issue. Since Pennsylvania's ban on access to all newspapers and magazines by inmates of its Long-Term Segregation Unit was upheld on summary judgment in Beard, the limited access to literature challenged here should also be upheld, because it is similarly related to the need for "specialized treatment." As in Beard, the record, based on certifications of ADTC officials, is "adequate" to support the DOC's position as the regulation only reaches a limited group of inmates who require specialized treatment.*fn1 See id. at __, 126 S.Ct. at 2578-79, 165 L.Ed. 2d at 706. Appellant's state constitutional assertions also fail, because the state constitution provides no more protection than the Federal Constitution on these issues. See In re Rules Adoption Regarding Inmate Mail to Attorneys, 120 N.J. 137 (1990).
We also uphold N.J.A.C. 10A:16-4.4 in light of the challenge concerning the provision of psychological services to ADTC inmates.
Appellant is presently incarcerated at the ADTC*fn2 serving an aggregate sentence of life imprisonment with twenty-five years parole ineligibility for aggravated sexual assault and other crimes. Every defendant convicted of a sex offense must be given a psychological examination. N.J.S.A. 2C:47-1. If it is found that the defendant's conduct was characterized by a pattern of repetitive, compulsive behavior and that the offender is amenable to sex offender treatment and is willing to participate in such treatment, the court shall, upon the recommendation of the [DOC], sentence the offender to a term of incarceration to be served in the custody of the commissioner [of the DOC] at the [ADTC] for sex offender treatment[.]*fn3
Parole from the ADTC is different than parole from other institutions, as it must "be based on a determination by the special classification review board that the offender has achieved a satisfactory level of progress in sex offender treatment." N.J.S.A. 2C:47-5. A sentence to the ADTC as a sex offender usually results in the prisoner serving more "real time" than a similarly situated non-sexual offender sentenced to the same custodial term in the custody of the Commissioner of Corrections, because the inmate receives specialized treatment aimed at sexual offender rehabilitation. See State v. Howard, 110 N.J. 113, 124-25 (1988); State v. Luckey, 366 N.J. Super. 79, 90-97 (App. Div. 2004).
Appellant's challenge to N.J.A.C. 10A:18-9.6 follows written notifications by Grace Rogers, Administrator of the ADTC, pursuant to N.J.S.A. 2C:47-10 and its implementing regulations, that inmates would be barred from possession of parts of or the entirety of certain magazines. The specific appeal initiated with the confiscation of portions of appellant's copy of Black Men magazine. Appellant has exhausted his administrative remedies.
N.J.S.A. 2C:47-10, adopted in 1998,*fn4 provides in relevant part:
b. An inmate sentenced to a period of confinement in the Adult Diagnostic Treatment Center shall not receive, possess, distribute or exhibit within the center sexually oriented material, as defined in subsection a. of this section. Upon the discovery of any such material within the center, the commissioner shall provide for its removal and destruction, subject to a departmental appeal procedure for the withholding or removal of such material from the inmate's possession.
c. The commissioner shall request an inmate sentenced to confinement in the center to acknowledge in writing the requirements of this act prior to the enforcement of its provisions. Any inmate who violates the provisions of subsection b. of this section shall be subject to on-the-spot sanctions pursuant to rules and regulations adopted by the commissioner.
N.J.A.C. 10A:18-9.1 to -9.6 were adopted to implement the statute and moot the then pending challenge to the prior practice "by clarifying the statute's scope" regarding the possession and receipt of sexually explicit and oriented literature. See Waterman v. Farmer (Waterman III), 183 F.3d 208, 209, 211 (3d Cir. 1999).*fn5 These regulations "significantly narrow[ed]" the scope of N.J.S.A. 2C:47-10. Ibid. They provided definitions for statutory terms that were otherwise vague and ambiguous (N.J.A.C. 10A:18-9.1, -9.2), prescribed procedures for notifying inmates of prohibited material (N.J.A.C. 10A:18-9.3), imposed sanctions for statutory violations (N.J.A.C. 10A:18-9.5), and exempted "all materials deemed to serve a legitimate rehabilitative purpose" (N.J.A.C. 10A:18-9.4). Waterman III, supra, 183 F.3d at 211. Using the Turner analysis, both the statute and regulations were upheld as constitutional by the Third Circuit in an opinion by Judge (now Justice) Alito. Id. at 209.
However, N.J.A.C. 10A:18-9.6, the regulation challenged by appellant, was not specifically addressed in Waterman III. That regulation allows the ADTC to prohibit material that is not sexually oriented if it is deemed to "impede" the inmates' rehabilitation. The regulation provides:
The provisions of this subchapter shall not preclude the Administrator or designee from prohibiting an inmate(s) at the [ADTC] to receive, possess, distribute, or display any material which is not sexually oriented material if the Administrator or designee, in consultation with the treatment staff, determines that the receipt, possession, distribution, or display of that material will impede the rehabilitation of the inmate(s). [N.J.A.C. 10A:18-9.6.]
Thereunder, according to the DOC, the ADTC mailroom has authority to screen publications and other materials sent to the inmates "to ensure they do not endanger prison order and security, are not sexually oriented, and will not impede the rehabilitation of the ADTC inmates." The State provides an undisputed explanation of how the ADTC staff screens inmate publications pursuant to N.J.A.C. 10A:18-9.6:
[W]hen a publication may be inappropriate for the inmate population, the publication is routed to the treatment staff and/or the Administrator's Office to determine whether receipt, possession, distribution or display of the material will impede rehabilitation . . . . When a particular publication is found to repeatedly contain material that will impede rehabilitation, it is placed on a prohibited publication list and the ADTC inmate population is notified.
The ADTC utilized confiscation forms when publications are taken and inmates may appeal the confiscation or prohibition of material by submitting Administrative Remedy Forms or by submitting a memorandum of appeal . . . . A due process procedure outlined in N.J.A.C. 10A:18-4.13, regarding appeal from decisions to withhold disapproved publications is available and was utilized by [appellant].
In his initial brief, appellant claims that "N.J.A.C. 10A:18-9.6 unconstitutionally restricts [ADTC] inmate[s'] rights under the common law and the First Amendment and Fourteenth Amendment." He argues that, because of the language of N.J.A.C. 10A:18-9.6, "all of the protections afforded by the constraining definitions of subchapters 18-9.1 through 9.3 are defeated as any material that falls outside the restrictive cloak of those subchapters may still be denied to an inmate if the Administrator deems that material likely to impede the rehabilitation of that inmate." He asserts that the effect of this regulation has been to deny ADTC inmates "magazines and periodicals not primarily sexually oriented," including King magazine, "several issues" of Black Men's magazine, Sports Illustrated's Swimsuit Edition, psychotherapy and medical books, classic literature, several mainstream movies, and CD players and CDs. The argument essentially attacks the regulation as unconstitutionally vague and overbroad, asserting that it has no reasonable relationship to a legitimate penological interest or the specialized treatment at the ADTC, principally because they are "non-pornographic, non-obscene and non-sexually oriented material" and some censorship is premised on religious beliefs.
The DOC argues that N.J.A.C. 10A:18-9.6 is "reasonably related to a legitimate penological interest[,]" namely, maintaining prison security and order and the rehabilitation of ADTC inmates. It also disputes several of appellant's factual allegations.
At the time the parties' initial briefs were filed, the controlling method for analyzing whether a prison regulation was constitutional was articulated by the United States Supreme Court in Turner v. Safley, supra, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed. 2d 64. However, as previously stated, a case addressing the core issues of Turner was decided by the Court last term after the parties filed their briefs. In Beard v. Banks, decided on June 28, 2006, the Court reaffirmed its prior decision in Turner, and further explained how to review constitutional challenges to prison regulations. Beard, supra, 548 U.S. __, 126 S.Ct. 2572, 165 L.Ed. 2d 697. We thereafter requested that the parties file supplemental briefs.
In his supplemental brief, appellant argues that the "defense of [N.J.A.C.] 10A:18-9.6 fails to save [the] regulation from constitutional infirmity." He contends that the regulation is "not reasonably related to valid penal interests," the "lack of alternative means of exercising First Amendment rights invalidates subchapter 18-9.6[,]" the "impact of accommodations of prisoner rights on staff/resources" of invalidating the regulation would be to allow for clearer guidelines and would have no affect on treatment, and "ready alternatives" to the regulation, such as rewriting it, are available "at de minimus cost[.]" The DOC reasserts its earlier position that appellant's "constitutional challenge to N.J.A.C. 10A:18-9.6 should be dismissed[,] because the regulation is reasonably related to a legitimate penological interest and it does not violate the First and Fourteenth Amendments to the United States Constitution."
The Supreme Court's decision in Beard v. Banks reaffirmed that the cases of Turner v. Safley, supra, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed. 2d 64, and Overton v. Bazzetta, supra, 539 U.S. 126, 123 S.Ct. 2162, 156 L.Ed. 2d 162, continue to provide "the basic substantive legal standards" for analyzing the constitutionality of prison regulations. Beard, supra, 548 U.S. at __, 126 S.Ct. at 2577, 165 L.Ed. 2d at 704. In Beard, the Court held that regulations denying prisoners in Pennsylvania's Long Term Segregation Unit, which is "reserved for the Commonwealth's 'most incorrigible, recalcitrant inmates[,]'" all "access to newspapers, magazines, or personal photographs" did not violate the inmates' First Amendment rights, as "prison officials . . . set forth adequate legal support for the policy." Id. at __, 126 S.Ct. at 2576, 165 L.Ed. 2d at 702-03. As such, although prisoners have First Amendment protections, "restrictive prison regulations are permissible if they are "reasonably related' to legitimate penological interests' . . . and are not an 'exaggerated response' to such objectives." Id. at __, 126 S.Ct. at 2578, 165 L.Ed. 2d at 705 (quoting and citing Turner, supra, 482 U.S. at 87, 107 S.Ct. at 2261, 96 L.Ed. 2d at 78).
Furthermore, the Court reaffirmed the use of the four factors set out in Turner to "'determin[e] the reasonableness of the regulation at issue'":
[f]irst, is there a "'valid, rational connection' between the prison regulation and the legitimate governmental interest put forward to justify it"? Second, are there "alternative means of exercising the right that remain open to prison inmates"? Third, what "impact" will "accommodation of the asserted constitutional right . . . have on guards and other inmates, and on the allocation of prison resources generally"?
And, fourth, are "ready alternatives" for furthering the governmental interest available? [Ibid. (quoting Turner, supra, 482 U.S. at 89-91, 107 S.Ct. at 2262, 96 L.Ed. ...