Title Waterman v. Farmer
Date 1999
By Alito
Subject Misc
Contents
Page 1
LEXSEE 183 F.3D 208
RICHARD WATERMAN; MICHAEL CURTIS v. JOHN FARMER, JR., New Jersey Attorney General; JACK TERHUNE, New Jersey Commissioner of Corrections; WILLIAM PLANTIER, Superintendent of the Adult Diagnostic & Treatment Center, individually and in their official capacity, Appellants
No. 98-6261
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
183 F.3d 208; 1999 U.S. App. LEXIS 14652
January 14, 1999, Argued
June 30, 1999, Filed
PRIOR HISTORY: **1 ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY. (D.C. Civil No. 98-cv--
1938). District Judge: The Honorable Alfred M. Wolin. DISPOSITION: Reversed decision of the District Court and remanded for the entry of judgment in favor of the Defendants.
CASE SUMMARY:
PROCEDURAL POSTURE: Defendant state officials appealed a judgment from the United States District Court for the District of New Jersey in favor of plaintiff pris- oners in plaintiffs' action that alleged N.J. Stat. Ann. §
2C:47-10, prohibiting plaintiffs' access to pornographic materials, was unconstitutional.
OVERVIEW: Plaintiff prisoners sued defendant state of- ficials, alleging N.J. Stat. Ann. § 2C:47-10 was unconsti- tutional because it restricted plaintiffs' access to porno- graphic materials. The district court held that the statute was unconstitutional and enjoined defendants from en- forcing it. The appellate court reversed the judgment. The statute was constitutional because it had a rational connec- tion to a legitimate and neutral objective. Defendants had a legitimate penological interest in rehabilitating compul- sive sex offenders, and the purpose was neutral because it was unrelated to the suppression of expression. Further, there was a logical connection between the statute and the goal of rehabilitating compulsive sex offenders. The statute provided alternative means for exercising plain- tiffs' constitutional rights because it was not so broad as to prohibit plaintiffs from reading non-pornographic ma- terials. There were no reasonable alternatives available because accommodating plaintiffs' asserted rights would place an undue burden on defendants.
OUTCOME: Judgment that a state statute prohibiting plaintiffs' access to pornographic materials was unconsti- tutional was reversed because the statute had a rational connection to defendants' legitimate and neutral objective of rehabilitating plaintiffs, there were alternative means for plaintiffs to exercise their constitutional rights, and reasonable alternatives to the statute were unavailable.
CORE TERMS: regulation, inmate, penological, of- fender, sex, rehabilitation, sexually, oriented, prison, con- stitutional rights, prisoner, vagueness, depiction, sex- ual, overbreadth, anatomical, sexual activity, rationally, case-by--case, pornography, irrational, prong, staff, over- breadth doctrine, prison regulation, psychologists, defer- ence, predominantly, rehabilitate, pedophiliac
LexisNexis(R) Headnotes
Criminal Law & Procedure > Criminal Offenses > Miscellaneous Offenses
HN1 See N.J. Stat. Ann. § 2C:47-10.
Criminal Law & Procedure > Criminal Offenses > Miscellaneous Offenses
HN2 See N.J. Admin. Code tit 10A, § 18-9.1 (1999). Criminal Law & Procedure > Criminal Offenses > Miscellaneous Offenses
HN3 N.J. Admin. Code tit. 10A, § 18-9.2(b) states that materials containing a depiction or description of sex- ual activity or an associated anatomical area shall not be considered "sexually oriented" unless the material is pre- dominantly oriented to such depictions or descriptions. Section 18-9.2(c) provides that a publication is consid- ered predominantly oriented to the depiction or descrip- tion of sexual activity or associated anatomical area only if it features or contains such descriptions or displays on a routine or regular basis or promotes itself based upon
183 F.3d 208, *; 1999 U.S. App. LEXIS 14652, **1
Page 2
such depictions in the case of individual one-time is- sues. Section 18-9.3 prescribes the procedures that the Adult Diagnostic and Treatment Center staff must follow when notifying inmates that a particular publication is prohibited by the statute. Section 18-9.5 imposes sanc- tions for violations of the statute, and § 18-9.4 exempts from regulation all materials deemed to serve a legitimate rehabilitative purpose.
Civil Procedure > Appeals > Standards of Review
HN4 Constitutional interpretations are questions of law subject to plenary review.
Constitutional Law > Fundamental Freedoms > Overbreadth & Vagueness
HN5 A law or regulation can be deemed unconstitution- ally vague if men of common intelligence must necessar- ily guess at its meaning and differ as to its application. Although the vagueness doctrine was originally used to invalidate, on due process grounds, penal statutes that fail to define the criminal offense with sufficient definite- ness that ordinary people can understand what conduct is prohibited, courts frequently apply it in the U.S. Const. amend. I (First Amendment) context. The vagueness doc- trine is similar, though not identical, to the doctrine of overbreadth. As with the overbreadth doctrine, a vague- ness challenge can nullify an ambiguous law that "chills" protected First Amendment activities. But unlike the over- breadth doctrine, the vagueness doctrine was designed to guarantee fair and non-discriminatory application of the laws, thus reflecting its roots in the due process clause. Constitutional Law > Fundamental Freedoms > Overbreadth & Vagueness
HN6 A law or regulation is invalid on its face under the overbreadth doctrine if it does not aim specifically at the evils within the allowable area of control by the government but sweeps within its ambit other constitu- tionally protected activities. The overbreadth doctrine is an exception to conventional standing requirements. It provides that an individual whose conduct may be pro- hibited may challenge a regulation because that regulation also threatens others not before the court, those who de- sire to engage in legally protected expression but who may refrain from doing so rather than risk prosecution or undertake to have the law declared partially invalid. Constitutional Law > Civil Rights Enforcement
HN7 Prisoners do not lose their constitutional rights when they become incarcerated, and free citizens do not lose their ability to exercise their own constitutional rights by reaching out to those on the inside. Nevertheless, pris- oners' constitutional rights are necessarily limited. The fact of confinement and the needs of the penal institu- tion impose limitations on constitutional rights, including those derived from the U.S. Const. amend. I, which are
implicit in incarceration.
Constitutional Law > Civil Rights Enforcement
HN8 When a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is rea- sonably related to legitimate penological interests. Courts must assess the overall reasonableness of such regulations by weighing four factors. First, there must be a valid, ra- tional connection between the prison regulation and the legitimate governmental interest put forward to justify it, and this connection must not be so remote as to render the policy arbitrary or irrational. Second, a court must con- sider whether inmates retain alternative means of exercis- ing the circumscribed right. Third, a court must take into account the costs that accommodating the right would im- pose on other inmates, guards, and prison resources gen- erally. And fourth, a court must consider whether there are alternatives to the regulation that fully accommodate the prisoner's rights at de minimis cost to valid penological interests.
Governments > Legislation > Interpretation
HN9 The absence of legislative facts has no bearing on whether a statute's purpose is legitimate. Moreover, judicial second-guessing of a legislature's motives is gen- erally unwarranted absent some reason to infer antipathy. Governments > Legislation > Interpretation
HN10 There is a significant difference between the re- quirement that there be a factual basis for a legislative judgment presented in court when that judgment is chal- lenged and a requirement that such a factual basis have been submitted to the legislative body prior to the enact- ment of the legislative measure. Courts always require the former and never require the latter. Whatever level of scrutiny courts apply in a given case, they find it accept- able for individual legislators to base their judgments on their own study of the subject matter of the legislation, their communications with constituents, and their own life experience and common sense so long as they come forward with the required showing in the courtroom once a challenge is raised. Moreover, insistence on the creation of a legislative record is an unwarranted intrusion into the internal affairs of the legislative branch of governments. Constitutional Law > Civil Rights Enforcement
HN11 The "neutrality" requirement, used in determin- ing whether a prison regulation impinges on inmates' con- stitutional rights, is met if the asserted interest is unrelated to the suppression of expression.
Constitutional Law > Civil Rights Enforcement
HN12 A court may conclude that a prison regulation statute bears no valid, rational connection to rehabilita- tion if the logical connection between the statute and the asserted goal is so remote as to render the policy arbi-
183 F.3d 208, *; 1999 U.S. App. LEXIS 14652, **1
Page 3
trary or irrational. This standard is similar to rational- basis review, under which a statutory classification can be declared unconstitutional only where the relationship of the classification to its asserted goal is so attenuated as to render the distinction arbitrary or irrational. The legislature's judgment therefore need not be perfect, just rational.
Civil Procedure > Appeals > Standards of Review
HN13 Determinations related to prison management are peculiarly within the province of the legislative and ex- ecutive branches of government, and must therefore be reviewed with a policy of judicial restraint. Where a state penal system is involved, federal courts have additional reason to accord deference to the appropriate authorities. Where the legislature has undertaken to act in an area fraught with scientific uncertainties, legislative options must be especially broad and courts should be cautious not to rewrite legislation, even assuming arguendo, that judges with more direct exposure to the problem might make wiser choices. Stated differently, courts are bound to give the legislature greater deference, not less, where the latter has undertaken to act in an area where experts disagree.
Civil Procedure > Appeals > Standards of Review
HN14 In determining whether a prison regulation im- pinges on inmates' constitutional rights, it does not matter whether the court agrees with the legislature, only whether the court finds its judgment rational. The question for the court is not whether the regulation in fact advances the government interest, only whether the legislature might reasonably have thought that it would.
COUNSEL: Lawrence S. Lustberg (argued), Mark A. Berman, Laura K. Abel, Gibbons, Del Deo, Dolan, Griffinger & Vecchione, Newark, NJ Attorney for Appellees.
Peter Verniero, Ronald L. Bollheimer, Joseph L. Yannotti,
(argued) Adrianna Calderon, Office of Attorney General of New Jersey, Richard J. Hughes, Trenton, NJ Attorneys for Appellants.
Gregory J. Sullivan, Hamilton, New Jersey. Dennis J. Saffran, New York, New York Attorneys for Amici Curiae Center for the Community Interest, Assemblyperson Marion Crecco, The Friends of Amanda Foundation, Voices for Victims, The Mark Klaas Foundation for Children, Justice for All, Protecting Our Children, and Women Against Violence.
JUDGES: Before: NYGAARD, ALITO, and LEWIS, Circuit Judges.
OPINIONBY: ALITO
OPINION:
*209 OPINION OF THE COURT
ALITO, Circuit Judge:
Two prisoners at a facility for sex offenders who have exhibited "repetitive and compulsive" behavior filed this lawsuit **2 under 42 U.S.C. § 1983, alleging that a re- cently enacted New Jersey statute, N.J.S.A. 2C:47-10, vi- olated their constitutional rights by restricting their access to pornographic materials. The District Court concluded that the statute was unconstitutional and permanently enjoined state officials from enforcing it. Waterman v. Verniero, 12 F. Supp. 2d 378 (D.N.J. 1998). Subsequent to the District Court's decision, the state adopted regu- lations clarifying the statute's scope. Informed by these regulations, we hold that the plaintiffs' constitutional chal- lenge lacks merit, and we therefore reverse the decision of the District Court.
I.
Plaintiffs Richard Waterman and Michael *210 Curtis are convicted pedophiles n1 incarcerated at the Adult Diagnostic and Treatment Center ("A.D.T.C.") in Avenel, New Jersey. The New Jersey Department of Corrections ("D.O.C.") operates the A.D.T.C. for the sole purpose of housing and rehabilitating sex offenders (i.e., pedophiles, child molesters, and rapists) who have exhib- ited behavior that is "repetitive and compulsive." Non- repetitive and non-compulsive sex offenders are housed in other institutions with the general prison population. The A.D.T.C. **3 houses 750 inmates, approximately
70% of whom are pedophiles.
n1 Plaintiff Waterman is currently serving a 54- year prison sentence for sexually abusing a nine- year-old girl. Waterman has two previous convic- tions for pedophiliac offenses--one for abducting and raping an eleven-year--old girl and the other for fondling a nine-year--old girl. Plaintiff Curtis is cur- rently serving a 20-year sentence with 10 years of parole ineligibility for sexually abusing and taking nude photographs of a 14-year--old boy. Curtis also has a prior pedophiliac conviction: he received a sentence of probation for sexually assaulting a 15- year-old boy.
The A.D.T.C.'s therapeutic staff provides the inmates with intensive sex offender treatment, employing a four- step program that "is designed to present information and therapeutic experiences in a progressive order to ame-
183 F.3d 208, *210; 1999 U.S. App. LEXIS 14652, **3
Page 4
liorate the offender's proclivity towards criminal sexual behavior." App. at 127. Each step focuses on concepts of victim empathy and the offender's sexual deviance. D.O.C. **4 officials believe that this type of treatment can reduce recidivism. In 1998, the New Jersey Assembly and Senate unanimously enacted a bill that banned "sex- ually oriented and obscene materials" from the A.D.T.C. n2 Governor Whitman signed the bill into law. The statute reads as follows:
HN1
a. As used in this act, "sexually oriented ma- terial" means any description, narrative ac- count, display, or depiction of sexual activ- ity or associated anatomical area contained in, or consisting of, a picture or other repre- sentation, publication, sound recording, live performance, or film.
b. An inmate sentenced to a period of con- finement 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 ma- terial 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 ma- terial from the inmate's possession.
c. The commissioner shall request an in- mate sentenced to confinement in the center to acknowledge in writing the requirements of this act **5 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 pur- suant to rules and regulations adopted by the commissioner.
d. A person who sells or offers for sale the material prohibited in subsection b. either for purposes of possession *211 or view- ing or who receives, possesses, distributes or exhibits any text, photograph, film, video or any other reproduction or reconstruction which depicts a person under 18 years of age engaging in a prohibited sexual act or in the simulation of such an act as defined in section
2 of P.L. 1992, c. 7 (C.2A:30B-2), within the center shall be considered to have commit- ted an inmate prohibited act and be subject to sanctions pursuant to rules and regulations adopted by the commissioner.
N.J.S.A. 2C:47-10.
n2 Prior to 1998, A.D.T.C. officials had au- thority to prohibit inmates from possessing certain obscene publications pursuant to N.J.A.C. 10A:18-
4.9(a)(6). However, before taking such action, offi- cials had to find that the publication contains mate- rial which, based upon the experience and profes- sional expertise of correctional administrators and judged in the context of a correctional facility and its paramount interest in security, order and reha- bilitation:
i. Taken, as a whole, appeals to a prurient interest in sex;
ii. Lacks, as a whole, serious lit- erary, artistic, political or scientific value; and
iii. Depicts, in a patently offen- sive way, sexual conduct including patently offensive representations or descriptions of ultimate sex acts, mas- turbation, excretory functions, lewd exhibition of the genitals, sadism or masochism.
N.J.A.C. 10A:18-4.9(a)(6). This section still ap- plies in New Jersey's other correctional facilities.
**6
Plaintiffs filed this lawsuit pursuant to 42 U.S.C. §
1983, alleging that the statute violated their constitu- tional rights. They named as defendants Peter Verniero, then the Attorney General of New Jersey; n3 Jack Terhune, Commissioner of the New Jersey Department of Corrections; and William Plantier, Superintendent of the A.D.T.C. (collectively, "Defendants").
The District Court preliminarily enjoined the enforce- ment of N.J.S.A. 2C:47-10 pending a final determina- tion regarding the statute's constitutionality. Waterman v. Verniero, 12 F. Supp. 2d 364 (D.N.J. 1998) (Waterman I). The District Court later concluded that the statute was un- constitutional and permanently enjoined Defendants from enforcing it. Waterman v. Verniero, 12 F. Supp. 2d 378
(D.N.J. 1998) (Waterman II). Defendants appealed. Several weeks after this case was argued on appeal,
counsel for Defendants advised the Court, pursuant to Fed. R. App. P. 28(j), that New Jersey had promulgated regulations implementing N.J.S.A. 2C:47-10. The regula- tions significantly narrow the statute's scope by defining many of the operative terms. HN2 The regulations con-
183 F.3d 208, *211; 1999 U.S. App. LEXIS 14652, **6
Page 5
tain the following definitions:
"Associated anatomical **7 area" means exposed or unclothed genitalia or female breasts.
"Sexual activity" means actual or simu- lated ultimate sexual acts including sexual intercourse, oral sex, masturbation, or bes- tiality.
"Sexually oriented material" means a picture or other representation, publication, sound recording, live performance or film that contains a description or depiction of sexual activity or associated anatomical area, as these terms are herein defined.
N.J.A.C. 10A:18-9.1 (1999). HN3 The regulations also provide that "materials containing a depiction or descrip- tion of sexual activity or an associated anatomical area shall not be considered 'sexually oriented' unless the ma- terial is predominantly oriented to such depictions or descriptions." N.J.A.C. 10A:18-9.2(b). A publication is considered "predominantly oriented to the depiction or description of sexual activity or associated anatomical area" only if it "features or contains such descriptions or displays on a routine or regular basis or promotes itself based upon such depictions in the case of individual one- time issues." N.J.A.C. 10A:18-9.2(c).
n3 John Farmer, Jr. has since replaced Peter
Verniero as Attorney General of New Jersey.
**8
The regulations prescribe the procedures that A.D.T.C. staff must follow when notifying inmates that a particular publication is prohibited by the statute. N.J.A.C. 10A:18-9.3. They also impose sanctions for vi- olations of the statute, N.J.A.C. 10A:18-9.5, and exempt from regulation all materials deemed to serve a legitimate rehabilitative purpose, N.J.A.C. 10A:18-9.4.
II.
Defendants raise two arguments on appeal. First, they argue that the District Court erred in finding the statute un- constitutionally vague and overbroad. Second, they argue that the District Court erred in concluding that the statute is not rationally related to a legitimate penological inter- est. Because both of these arguments present questions of law, our review is plenary. See United States v. Various
*212 Computers & Computer Equip., 82 F.3d 582, 589
(3d Cir. 1996) HN4 ("Constitutional interpretations are questions of law subject to plenary review.").
A. Vagueness and Overbreadth
The District Court declared N.J.S.A. 2C:47-10 uncon- stitutionally vague n4 and overbroad. n5 In so doing, the Court noted that the statute was unconstitutional regard- less of whether it was rationally related to a legitimate penological **9 interest under Turner v. Safley, 482
U.S. 78, 96 L. Ed. 2d 64, 107 S. Ct. 2254 (1987). See Waterman II, 12 F. Supp. 2d at 381 ("Although the Court need not address whether New Jersey had a valid peno- logical interest when it passed N.J.S.A. 2C:47-10, it will briefly discuss the issue because the parties have hotly contested the issue and because the Court's analysis may aid the New Jersey Legislature if they decide to rewrite the statute.").
n4 HN5 A law or regulation can be deemed unconstitutionally vague if "men of common in- telligence must necessarily guess at its meaning and differ as to its application. . . ." Connally v. General Constr. Co., 269 U.S. 385, 391, 70 L. Ed.
322, 46 S. Ct. 126 (1926). Although the vague- ness doctrine was originally used to invalidate--on due process grounds--penal statutes that fail to "de- fine the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited," Kolender v. Lawson, 461 U.S. 352,
357, 75 L. Ed. 2d 903, 103 S. Ct. 1855 (1983), courts frequently apply it in the First Amendment context.
The vagueness doctrine is similar--though not identical--to the doctrine of overbreadth. As with the overbreadth doctrine, a vagueness challenge can nullify an ambiguous law that "chills" protected First Amendment activities. But unlike the over- breadth doctrine, the vagueness doctrine was de- signed to guarantee "fair and non-discriminatory application of the laws, thus reflecting its roots in the due process clause." Kreimer v. Bureau of Police for the Town of Morristown, 958 F.2d 1242, 1266
(3d Cir. 1992).
**10
n5 HN6 A law or regulation is invalid on its face under the overbreadth doctrine if it "does not aim specifically at the evils within the allowable area of control by the government but . . . sweeps within its ambit other constitutionally protected activities." Thornhill v. Alabama, 310 U.S. 88, 97,
84 L. Ed. 1093, 60 S. Ct. 736 (1940). The over- breadth doctrine is an exception to conventional standing requirements. It provides that an individ- ual whose conduct may be prohibited may chal-
183 F.3d 208, *212; 1999 U.S. App. LEXIS 14652, **10
Page 6
lenge a regulation "because that regulation also threatens others not before the court--those who desire to engage in legally protected expression but who may refrain from doing so rather than risk pros- ecution or undertake to have the law declared par- tially invalid." Brockett v. Spokane Arcades, Inc.,
472 U.S. 491, 503, 86 L. Ed. 2d 394, 105 S. Ct.
2794 (1985).
Defendants now argue that the District Court erred in concluding that it could declare the statute unconstitu- tional without first considering whether it was rationally related to a legitimate penological interest. We agree. Constitutional **11 challenges to laws, regulations, and policies governing prison management must be ex- amined under the framework of Turner v. Safley, 482 U.S.
78, 96 L. Ed. 2d 64, 107 S. Ct. 2254 (1987). In Safley, the Supreme Court acknowledged that "courts are ill- equipped to deal with the increasingly urgent problems of prison administration and reform." Id. at 84 (inter- nal quotations omitted). Accordingly, the Court set out
"to formulate a comprehensive standard of review for prisoners' constitutional claims that is responsive both to the 'policy of judicial complaints and to the need to protect constitutional rights.' " Id. (quoting Procunier v. Martinez, 416 U.S. 396, 406, 40 L. Ed. 2d 224, 94 S. Ct.
1800 (1974)). Because vagueness and overbreadth chal- lenges embody "constitutional claims," they must be an- alyzed under the four-pronged test announced in Safley. See, e.g., Procunier v. Martinez, 416 U.S. 396, 40 L. Ed. 2d 224, 94 S. Ct. 1800 (1974) (analyzing plaintiffs' vagueness claims under an evolutionary precursor to the Safley test); Amatel v. Reno, 332 U.S. App. D.C. 191,
156 F.3d 192, 203 (D.C. Cir. 1998) (addressing plaintiffs'
overbreadth claims **12 under Safley), cert. denied,
67 U.S.L.W. 3588 (U.S. June 24, 1999) (No. 98-1452);
Mauro v. Arpaio, *213 147 F.3d 1137, 1140-1144
(9th Cir.) (analyzing plaintiffs' overbreadth claims un- der Safley), withdrawn, 162 F.3d 547 (1998) (ordering rehearing en banc).
Furthermore, the substantial overlap between the Safley test and the doctrines of vagueness and overbreadth n6 suggests that the Supreme Court did not intend for those doctrines to apply with independent force in the prison-litigation context. It would therefore be both re- dundant and inconsistent with Safley to subject N.J.S.A.
2C:47-10 to an independent challenge under the doctrines of vagueness and overbreadth. n7
n6 The Safley test takes into account many of the same factors considered under the doctrines of vagueness and overbreadth. As we explain in
greater detail later in this opinion, see infra., section II.B., Safley requires courts to consider (1) whether a rational connection exists between the regulation and a neutral, legitimate government interest; (2) whether alternative means exist for inmates to ex- ercise the constitutional right at issue; (3) what im- pact the accommodation of the right would have on inmates, prison personnel, and allocation of prison resources; and (4) whether obvious, easy alterna- tives exist. Safley, 482 U.S. at 89-91.
**13
n7 Counsel for Plaintiffs effectively conceded this point at oral argument. Transcript of Oral Argument at 34 ("The truth of the matter is that pretty conventional vagueness and overbreadth analysis are built into the four factors of Safley .").
For this reason, we need not address Plaintiffs' vague- ness and overbreadth challenges separately. Instead, if the challenged statute withstands review under Safley, it does not violate the Constitution. See Safley, 482 U.S. at 89
("When a prison regulation impinges on inmates' consti- tutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.") The District Court erred in concluding otherwise.
B. Reasonable Relation to Legitimate Penological
Interests
As the District Court correctly noted, HN7 prisoners
"do not lose their constitutional rights when they become incarcerated, and free citizens do not lose their ability to 'exercise their own constitutional rights by reaching out to those on the inside.' " Waterman I, 12 F. Supp.
2d 364 at 371 (quoting Thornburgh v. Abbott, 490 U.S.
401, 407, **14 104 L. Ed. 2d 459, 109 S. Ct. 1874
(1989)). Nevertheless, prisoners' constitutional rights are necessarily limited. Jones v. North Carolina Prisoners' Union, 433 U.S. 119, 125, 53 L. Ed. 2d 629, 97 S. Ct.
2532 (1977) ("The fact of confinement and the needs of the penal institution impose limitations on constitutional rights, including those derived from the First Amendment, which are implicit in incarceration.").
In Safley, the Supreme Court explained that HN8
"when a prison regulation impinges on inmates' consti- tutional rights, the regulation is valid if it is reasonably related to legitimate penological interests." 482 U.S. at
89. Safley directs courts to assess the overall reasonable- ness of such regulations by weighing four factors. "First, there must be a 'valid, rational connection' between the prison regulation and the legitimate governmental interest put forward to justify it," and this connection must not be
183 F.3d 208, *213; 1999 U.S. App. LEXIS 14652, **14
Page 7
"so remote as to render the policy arbitrary or irrational."
Id. at 89-90 (quoting Block v. Rutherford, 468 U.S. 576,
586, 104 S. Ct. 3227, 82 L. Ed. 2d 438 (1984)). Second, a court must consider whether inmates retain alternative means of exercising the circumscribed right. 482 U.S. at 90. **15 Third, a court must take into account the costs that accommodating the right would impose on other inmates, guards, and prison resources generally. Id. And fourth, a court must consider whether there are al- ternatives to the regulation that "fully accommodate the prisoner's rights at de minimis cost to valid penological interests." Id. at 90-91. Although the factors are intended to serve as guides to a single reasonableness *214 stan- dard, "the first factor looms especially large" because it
"tends to encompass the remaining factors, and some of its criteria are apparently necessary conditions." Amatel,
156 F.3d at 196.
1. Rational Connection to a Legitimate and Neutral
Objective
Under the first prong of the Safley test, we must decide whether the statute bears a "valid, rational connection" to a legitimate and neutral governmental objective. Safley,
482 U.S. at 89-90 (quoting Block v. Rutherford, 468 U.S. at 586). Accordingly, we may conclude that the statute fails to satisfy this prong if the statute promotes an inter- est that is illegitimate or not neutral, or if the statute bears no "valid, rational connection" to the asserted interest.
482 U.S. at 89-90. **16
a. Legitimacy
Defendants argue that the statute promotes the le- gitimate penological interest of rehabilitation. While the District Court acknowledged that "rehabilitation is a valid penological interest," it concluded that Defendants' expla- nation of the statute's purpose was pretextual and theo- rized that the statute was motivated more by an indignant animus toward sex offenders than a genuine attempt to rehabilitate them:
New Jersey did not have a valid penologi- cal interest when it enacted N.J.S.A. 2C:47-
10 because rehabilitation does not appear to be the true reason why the New Jersey Legislature passed N.J.S.A. 2C:47-10. The legislative history does not mention rehabil- itation, and Dr. Nancy Graffin, the Director of Psychology at the ADTC, did not testify before either the Assembly or the Senate, and learned about the statute after it was en- acted. Most importantly, the Department of Corrections formally opposed the statute be- fore Governor Whitman signed it because the Department believed that adult pornography
for inmates at the ADTC was a step in the right direction. Thus, the true reason for the enactment of N.J.S.A. 2C:47-10 appears to be public outrage over some of **17 the heinous, pedophiliac crimes that occurred in New Jersey.
Waterman II, 12 F. Supp. 2d at 381. Thus, the District Court treated the dearth of legislative history as conclu- sive proof that the "true" purpose of the statute was not to rehabilitate sex offenders, but instead to satisfy the widespread "public outrage over some of the heinous, pedophiliac crimes that occurred in New Jersey." Id. at
381.
This assessment cannot withstand review. HN9 The absence of legislative facts has no bearing on whether a statute's purpose is legitimate. Nordlinger v. Hahn, 505
U.S. 1, 15, 120 L. Ed. 2d 1, 112 S. Ct. 2326 (1992). Moreover, a time-honored principle of constitutional law reminds us that judicial second-guessing of a legislature's motives is "generally unwarranted" "absent some reason to infer antipathy." Vance v. Bradley, 440 U.S. 93, 97, 59
L. Ed. 2d 171, 99 S. Ct. 939 (1979). Consequently, the fact that the statute's "legislative history does not mention rehabilitation" is irrelevant. As our en banc court empha- sized in Phillips v. Borough of Keyport, 107 F.3d 164 (3d Cir. 1997):
HN10
there is a significant difference between the requirement that there **18 be a factual basis for a legislative judgment presented in court when that judgment is challenged and a requirement that such a factual basis have been submitted to the legislative body prior to the enactment of the legislative measure. We have always required the former; we have never required the latter. Whatever level of scrutiny we have applied in a given case, we have always found it acceptable for indi- vidual legislators to base their judgments on their own study of the subject matter of the legislation, their communications with con- stituents, and their own life experience and common sense so long as they come forward with the required showing in the courtroom
*215 once a challenge is raised. . . . We perceive no justification in policy or doctrine for abandoning our traditional approach. Moreover, we believe that insistence on the creation of a legislative record is an un- warranted intrusion into the internal affairs
183 F.3d 208, *215; 1999 U.S. App. LEXIS 14652, **18
Page 8
of the legislative branch of governments.
Id. at 178.
In this case, it is beyond dispute that New Jersey has a legitimate penological interest in rehabilitating its most dangerous and compulsive sex offenders. See O'Lone v. Estate of Shabazz, 482 **19 U.S. 342, 348, 96 L. Ed. 2d
282, 107 S. Ct. 2400 (1987) (recognizing rehabilitation as a "valid penological objective"); see also Waterman II,
12 F. Supp. 2d at 381 ("The Court recognizes that reha- bilitation is a valid penological interest . . . ."). Seeing no reason to question Defendants' assertion that the statute serves the purpose of promoting the rehabilitative efforts of the A.D.T.C., we reject the District Court's conclusion that the statute's purpose is illegitimate.
b. Neutrality
The District Court made no findings concerning the statute's neutrality. However, in Thornburgh v. Abbott,
490 U.S. 401, 104 L. Ed. 2d 459, 109 S. Ct. 1874 (1989), the Supreme Court made clear that Safley's HN11 "neu- trality" requirement is met if the asserted interest is "un- related to the suppression of expression." Id. at 415. As we have already explained, the statute's purpose is to en- hance the A.D.T.C.'s efforts to rehabilitate New Jersey's most serious sex offenders. Because the state's interest in rehabilitation is "unrelated to the suppression of expres- sion," we conclude that the statute's purpose is neutral for purposes of Safley.
c. Means-End Fit
HN12 We may conclude that the **20 statute bears no "valid, rational connection" to rehabilitation if
"the logical connection between the statute and the as- serted goal is so remote as to render the policy arbitrary or irrational." Safley, 482 U.S. at 89-90. This standard is similar to rational-basis review, under which a statutory classification can be declared unconstitutional only where the relationship of the classification to its asserted goal is
"so attenuated as to render the distinction arbitrary or ir- rational." Nordlinger, 505 U.S. at 11 (1992). See Amatel,
156 F.3d at 198-99 (D.C. Cir. 1998) ("The similarity be- tween Safley's phrasing and the language of rational basis review suggests to us that, as far as the means-end fit is concerned, Safley's standard is, if not identical, something very similar."). The legislature's judgment therefore need not be perfect, just rational.
During proceedings before the District Court, Defendants presented evidence that the statute bears a
"valid, rational connection," Safley, 482 U.S. at 89-90, to the rehabilitation of sex offenders. They submitted affi- davits from two psychologists--Dr. Nancy Graffin, Ph.D.,
and Dr. Timothy Foley, Ph.D.--both **21 of whom tes- tified that pornographic material threatened to thwart the effectiveness of the treatment given to A.D.T.C. inmates. Dr. Graffin testified that throughout their treatment, A.D.T.C. inmates are required to develop an advanced un- derstanding of the consequences of their sexual assaults and recognize cognitive distortions associated with their sexual abuse. App. at 125-29. She further explained that during the final treatment phase, inmates are required to demonstrate victim sensitivity and the ability to connect emotionally with others. Id. Finally, Dr. Graffin explained that sexually oriented material can be a threat to A.D.T.C. treatment because pornographic material tends to objec-
tify the individuals depicted. Id.
Similarly, Dr. Foley testified that sexually explicit material could be harmful to A.D.T.C. inmates, reason- ing that exposure to such material can lead the inmates to believe that intimacy can be achieved only *216 through sexual release and that a victim is necessary for sexual enjoyment. App. at 135-140. He also concluded that pornography is particularly dangerous to A.D.T.C. inmates because some sex offenders tend to use such ma- terial to supply and fortify **22 their fantasies and are likely to engage in a series of "trial runs" of these fantasies once they are released from prison. Id.
In addition to the affidavits of Drs. Graffin and Foley, Defendants also referred the Court to "a considerable body of research supporting the view that the sexual ma- terial prohibited by the statute is harmful to prisoners and poses a danger to society when these sex offenders consume it." Br. for Appellants at 16, 31.
Nevertheless, the District Court concluded that the statute did not bear a "valid, rational connection" to a legit- imate and neutral governmental objective. See Waterman II, 12 F. Supp. 2d at 381. In so doing, the Court suggested that the lack of consensus among psychologists invali- dated Defendants' contention that the statute enhanced the state's efforts to rehabilitate its most serious sex of- fenders. The Court wrote:
After reviewing the experts' affidavits, the Courtfinds that the psychology field has not yet reached an agreement on how sexually oriented materials affect the treatment of sex offenders. Although the Court is not equipped to resolve that issue, it has deter- mined that plaintiffs' experts are more con- vincing **23 because their position is more reasonable. Given the disagreement in the psychology field on this issue, it seems most appropriate for psychologists to determine whether to use such materials on a case-by--
183 F.3d 208, *216; 1999 U.S. App. LEXIS 14652, **23
Page 9
case basis. On the other hand, flatly prohibit- ing such materials, as N.J.S.A. 2C:47-10 pro- poses to do, would deny certain sex offenders valuable treatment. Thus, N.J.S.A. 2C:47-
10 actually diminishes New Jersey's pur- ported interest in rehabilitation. The Court concludes that the statute is not rationally re- lated to rehabilitation because plaintiffs' ex- perts' recommendation that the materials be reviewed on a case-by--case basis is a bet- ter method for handling the materials than that provided by the statute and New Jersey's experts.
Id. at 382. Simply stated, the District Court based its conclusion on the fact that "the experts in this case dis- agree on the effect that the materials will have on the treatment of the inmates at the A.D.T.C." Id. at 381; see also id. at 382 ("The psychology field has not yet reached an agreement on how sexually oriented materials affect the treatment of sex offenders.").
Notably, the Court did not conclude that the opinions expressed **24 by the Defendants' experts were irra- tional or unreasonable. Rather, the Court opined that the theories advanced by the Plaintiffs' experts were "better,"
"more convincing," and "more reasonable," id. at 382, thereby suggesting that the opinions expressed by the Defendants' experts were in fact reasonable, but simply less so than the Plaintiffs' experts' opinions.
The District Court applied the wrong standard, re- placing the New Jersey legislature's policy decisions with its own "more reasonable" judgment. In so doing, the Court failed to accord the legislature's judgment the def- erence to which it is entitled. n8 The appropriate ques- tion is not *217 whether the theories advanced by either party's experts are "more reasonable" and "more convincing," but instead whether "the logical connection between the statute and the asserted goal" of improv- ing the A.D.T.C.'s sex offender rehabilitation program is
"so remote as to render the policy arbitrary or irrational."
Safley, 482 U.S. at 89-90.
n8 Two factors present in this case compel us to examine the New Jersey legislature's judg- ment deferentially. First, the statute governs the management of one of New Jersey's prisons. As the Supreme Court explained in Safley, HN13 determinations related to prison management are
"peculiarly within the province of the legislative and executive branches of government," and must therefore be reviewed with a "policy of judicial re- straint." Safley, 482 U.S. at 84-85 (internal citations
and quotation marks omitted). That policy applies with even greater vigor here because "where a state penal system is involved, federal courts have . . . additional reason to accord deference to the appro- priate . . . authorities." Id.
Second, in enacting N.J.S.A. 2C:47-10, the leg- islature has "undertaken to act in an area fraught with . . . scientific uncertainties." Marshall v. United States, 414 U.S. 417, 427, 38 L. Ed. 2d 618, 94 S. Ct.
700 (1974). The Supreme Court has explained that in such circumstances, "legislative options must be especially broad and courts should be cautious not to rewrite legislation, even assuming arguendo, that judges with more direct exposure to the problem might make wiser choices." Id. at 427. Stated dif- ferently, courts are bound to give the legislature greater deference--not less--where the latter has
"undertaken to act in an area " where "experts disagree." Id. at 427.
**25
In a recent decision upholding a statute that effectively prohibits the distribution of sexually explicit material in federal prisons, the United States Court of Appeals for the District of Columbia Circuit acknowledged its deferential role under Safley. The Court explained that the legislative judgment underlying the challenged statute need not be perfect to be deemed rationally connected to a legitimate penological interest:
The legislative judgment is that pornogra- phy adversely affects rehabilitation. HN14 It does not matter whether we agree with the legislature, only whether we find its judg- ment rational. The question for us is not whether the regulation in fact advances the government interest, only whether the legis- lature might reasonably have thought that it would.
Amatel, 156 F.3d at 199 (D.C. Cir. 1998).
We agree with the Amatel panel's analysis; as long as the statute is rational, it clears Safley's first hurdle. Thus, Defendants need only demonstrate that "the New Jersey legislature might reasonably have thought that the statute would" advance the interest of rehabilitating the sex offenders housed at the A.D.T.C. Id. at 199. **26 We conclude that the Defendants made such a showing and that New Jersey "could rationally have seen a con- nection between pornography and rehabilitative values." Id. at 199. Many psychologists--Defendants' experts in-
183 F.3d 208, *217; 1999 U.S. App. LEXIS 14652, **26
Page 10
cluded--have expressed well-reasoned opinions support- ing Defendants' argument that the statute will enhance the A.D.T.C.'s rehabilitative efforts. These opinions provide a sufficient basis for us to conclude that the statute bears a valid rational connection to a legitimate penological interest.
Moreover, "common sense tells us 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." Id. at
199. Thus, even without the opinions of Defendants' ex- perts, we could conclude that New Jersey acted rationally in enacting N.J.S.A. 2C:47-10 because the theoretical un- derpinnings of the statute
share at least a core with ideas that have a lineage of a few centuries, perhaps mil- lennia, stressing the desirability of deferring sexual gratification, of sublimation of sex- ual impulses, of channeling sexual expres- sion into long-term relationships **27 of caring and affection, of joining eros to agape. The supposition that exclusion of pornogra- phy from prisons will have much of an impact in this direction may be optimistic, but it is not irrational.
Id. at 199.
Plaintiffs acknowledge that Amatel is "consistent with the well-established line of cases" applying Safley. Br. for Appellees at 23. However, they attempt to distinguish Amatel by pointing out that the statute upheld in Amatel
" 'is not enforced directly,' " but is instead enforced pur- suant *218 to " 'regulations defining the terms of the proscription and significantly narrowing its scope.' " Id.
(quoting Amatel, 156 F.3d at 194).
Whatever force this argument carried prior to the is- suance of the new implementing regulations, we see no basis for the argument now. As previously noted, New Jersey has now promulgated regulations "defining the terms of the proscription and significantly narrowing the statute's scope." Id. (quoting Amatel, 156 F.3d at 194); see N.J.A.C. 10A:18-9 (narrowing the operative terms of N.J.S.A. 2C:47-10). Thus, Plaintiffs' attempt to distin- guish Amatel fails. n9
n9 Plaintiffs liken N.J.S.A. 2C:47-10 to a prison regulation that was declared unconstitutional in Mauro v. Arpaio, 147 F.3d 1137 (9th Cir. 1998). However, the Ninth Circuit has withdrawn its opin-
ion in that case pending rehearing en banc. See 162
F.3d 547 (1998).
But even if the Mauro opinion had not been withdrawn, it would not affect the outcome of this case. The Mauro panel's holding was based on the defendants' failure to demonstrate that the regulation was reasonably related to a legitimate penological interest. As the panel noted, the de- fendants' evidence amounted to little more than a conclusory assertion that "inmates will misbe- have when using materials depicting frontal nu- dity." Mauro, 147 F.3d at 1143. Unlike the defen- dants in Mauro, the Defendants before us--like the defendants in Amatel--have met their burden under Safley. Mauro is therefore distinguishable.
**28
We are satisfied that N.J.S.A. § 2C:47-10 bears a valid, rational connection to the legitimate penological interest put forward to justify it, and we hold that the District Court erred in concluding otherwise.
2. Alternative Means
The second factor requires us to assess the availability of alternative means of exercising the right at stake. For obvious reasons, this factor tends to favor plaintiffs where the alleged right is defined narrowly, and where the scope of the restriction is construed broadly. Thus, "if the 'right' at stake is defined in terms of the materials excluded by the ban, any regulation will come up short." Amatel, 156
F.3d at 192.
Not surprisingly, Plaintiffs define the right narrowly, and read the statute broadly. Br. for Appellees at 44-45. While not commenting directly on the scope of the right, the District Court construed the statute broadly, finding that it "could potentially prohibit the inmates from reading or viewing many legitimate publications." Waterman I, 12
F. Supp. 2d at 376. The Court feared that (1) "the word
'any' ensures that the statute is overbroad because 'any' mandates that no exceptions will be made to the statute" and (2) **29 "the words 'any associated anatomical area' appears to mean that every publication that con- tains a body part that is associated with sexual activity is banned." Id. According to the District Court, the statute could be read as allowing A.D.T.C. officials to prohibit everything from the Bible to legal publications. Id.
We find the District Court's analysis of this factor to be unreasonable and inconsistent with Thornburgh v. Abbott,
490 U.S. 401, 104 L. Ed. 2d 459, 109 S. Ct. 1874 (1989). In
Thornburgh, the Court upheld a regulation that barred all
"sexually explicit material which by its nature or content poses a threat to the security, good order, or discipline
183 F.3d 208, *218; 1999 U.S. App. LEXIS 14652, **29
Page 11
of the institution, or facilitates criminal activity." Id. at
405 n.5. The Court concluded that the second Safley fac- tor was "clearly satisfied" because "the regulations permit a broad range of publications to be sent, received, and read." Id. at 418. Significantly, the Court saw no problem with the breadth or ambiguity of the regulation.
The Thornburgh Court also explained that the relevant right "must be viewed sensibly and expansively." Id. at
417. Here, it was not "sensible" for **30 the District Court to conclude that the statute was broad enough to forbid prisoners from reading the Bible, legal publica- tions, *219 or other non-pornographic books. See Waterman I, 12 F. Supp. 2d at 376 ("The Court agrees with plaintiffs' argument that the statute prohibits them from reading the Bible, fashion magazines, books, and cases."). We therefore disagree with the District Court's conclusion and conclude that N.J.S.A. 2C:47-10 provides Plaintiffs with an alternative means of exercising their constitutional rights.
Even if we were otherwise inclined to reach the op- posite conclusion, the recently promulgated regulations implementing the statute would foreclose any need for us to do so. As noted, the regulations significantly narrow the statute's broad scope by defining many of its operative terms, providing that
"Associated anatomical area" means exposed or unclothed genitalia or female breasts.
"Sexual activity" means actual or simu- lated ultimate sexual acts including sexual intercourse, oral sex, masturbation, or bes- tiality.
"Sexually oriented material" means a picture or other representation, publication, sound recording, live performance or film that contains **31 a description or depic- tion of sexual activity or associated anatom- ical area, as these terms are herein defined. n10
N.J.A.C. 10A:18-9.1 (1999). Thus, the regulations elim- inate any concern that Plaintiffs will be left without alter- native means of exercising their constitutional rights.
n10 The regulations also explain that "materi- als containing a depiction or description of sexual activity or an associated anatomical area shall not be considered 'sexually oriented' unless the mate- rial is predominantly oriented to such depictions or descriptions." N.J.A.C. 10A:18-9.2(b). A publica- tion is only considered "predominantly oriented to the depiction or description of sexual activity or as-
sociated anatomical area" if it "features or contains such descriptions or displays on a routine or regular basis or promotes itself based upon such depictions in the case of individual one-time issues." N.J.A.C.
10A:18-9.2(c).
Accordingly, we conclude that N.J.S.A. 2C:47-10 sat- isfies Safley's second prong.
3. Impact **32 of Accommodation on Prison
Resources/Absence of Alternatives
Safley's third prong requires us to evaluate the ad- verse impact that accommodating the Plaintiffs' asserted rights would have "on guards and other inmates, and on the allocation of prison resources." Safley, 482 U.S. at
90. Similarly, the fourth prong requires us to determine whether there are alternatives that can accommodate the right "at de minimis costs to valid penological interests." Id. at 91. As the District Court noted before issuing the preliminary injunction, Defendants' "arguments on the third and fourth factors overlap." Waterman I, 12 F. Supp.
2d at 375. We will therefore discuss them together.
The District Court declined to address Safley's third and fourth prongs when issuing the permanent injunc- tion, concluding that "the ruling that New Jersey does not have a legitimate penological interest renders those factors moot." Waterman II, 12 F. Supp. 2d at 382 n.2. However, Plaintiffs maintain that reasonable alternatives are available and argue that the A.D.T.C. staff "could review incoming publications on a case-by--case basis and selectively prohibit materials found to be harmful
**33 to rehabilitation." Br. for Appellees at 46-47.
As the Supreme Court has acknowledged, Safley does not impose a least-restrictive-alternative test. 482 U.S. at 90. Consequently, we need not conclude that no less restrictive alternatives are available. Id. Where accommo- dation of the asserted right would have a "ripple effect" on prison staff, courts are encouraged to give particular def- erence to the informed discretion of corrections officials. Id. (internal quotations omitted).
Defendants maintain that no reasonable alternatives are available. They point out that, while some inmates might not be *220 adversely affected by limited access to pornography, any limited distribution would have to be carried out on the basis of a case-by--case review. Such a review, Defendants argue, "would have to be specifi- cally controlled and monitored by a qualified therapist, thereby causing an undue burden on a staff already in- undated with sex offender cases." Br. for Appellants at
35. Defendants also assert that even if the A.D.T.C. were sufficiently staffed to enable it to conduct a case-by--case review, a limited distribution would be impossible to con-
183 F.3d 208, *220; 1999 U.S. App. LEXIS 14652, **33
Page 12
trol since "prisoners are more than likely **34 to pass their material to other prisoners." Id. at 36.
We agree. The costs of the case-by--case alternative proposed by Plaintiffs would be "far from de minimis." Amatel, 156 F.3d at 201 ("The most obvious alternative is a detailed prisoner-by--prisoner (and presumably pub- lication-by--publication) sifting to determine whether a particular publication will harm the rehabilitation of a particular prisoner. The costs of this approach seem far from de minimis."). Moreover, any attempt to accommo- date the Plaintiffs' asserted rights would have an unduly burdensome effect "on guards . . . and on the allocation
of prison resources." Safley, 482 U.S. at 90.
In sum, having analyzed the statute under the four- pronged test announced in Safley, we conclude that N.J.S.A. 2C:47-10 is "reasonably related to legitimate penological interests," id. at 89, and find that the District Court erred in concluding otherwise.
III. CONCLUSION
For the foregoing reasons, we reverse the decision of the District Court and remand for the entry of judgment in favor of the Defendants.
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