RULES AND REGULATIONS
Title 37—LAW
DEPARTMENT OF CORRECTIONS
[ 37 PA. CODE CH. 93 ]
Inmate Correspondence
[40 Pa.B. 2759]
[Saturday, May 29, 2010]The Department of Corrections (Department) amends § 93.2 (relating to inmate correspondence) to read as set forth in Annex A under the authority in The Administrative Code of 1929 (71 P. S. § 51-732).
Omission of Proposed Rulemaking
Notice of proposed rulemaking is omitted under section 204(3) of the act of July 31, 1968 (P. L. 769, No. 240) (45 P. S. § 1204(3)), known as the Commonwealth Documents Law (CDL), and 1 Pa. Code § 7.4(3) (relating to omission of notice of proposed rulemaking) because the Department has found for good cause that under the circumstances the publication of proposed rulemaking is impracticable, unnecessary and contrary to the public interest. The final-omitted rulemaking amends § 93.2 to clarify that inmates are not permitted to receive correspondence containing nudity, explicit sexual material or obscene material. Section 93.2 provides an exception for artistic, literary, educational and scientific materials. The final-omitted rulemaking is necessary to clarify § 93.2 which addresses obscene material, but is silent with respect to nudity and explicit sexual material. The Department issued an internal policy, notice of which was provided to inmates, prohibiting correspondence containing nudity and explicit sexual material. However, the Commonwealth Court declared the Department's internal policy to be ''of no effect'' because it was not promulgated through the process in the CDL.
The Department, for good cause, finds that notice of proposed rulemaking is impracticable, unnecessary and contrary to the public interest. The effect of the Commonwealth Court's decision will be to permit inmates to obtain nudity and explicit sexual material until § 93.2 can be amended. The Department amended § 93.2 because it believes that allowing inmates to possess nudity and explicit sexual material is contrary to its effort to rehabilitate inmates, particularly sex offenders. Additionally, the possession of explicit sexual material by minors is a crime. The Department's inmate population includes many minors. Providing notice of proposed rulemaking also will allow nudity and explicit sexual material into State correctional institutions for a time and then require that the material be removed. This will create an extremely hazardous situation.
Inmates and staff in prisons in this Commonwealth are experiencing a higher amount of tension than is normal largely because the Commonwealth currently is incarcerating over 52,000 inmates; the largest population in the Department's history. Inmates also are tense concerning the planned temporary relocation of 2,000 inmates to Virginia and Michigan. Additionally, the economic downturn has strained the Department's budget and new personnel are not being hired at the same rate as those who leave employment, creating additional work for the remaining personnel. The increase in inmate and staff tensions, coupled with the population level, increases the risk of a prison riot. Allowing inmates to possess nudity and explicit sexual material on a temporary basis while a proposed rulemaking is published will mean that Department employees will have to sweep the prisons and confiscate newly introduced nudity and explicit sexual material when § 93.2 is amended. This will further strain employee resources and morale. Further, inmate frustration will increase when what has been returned temporarily is removed giving rise to more inmate grievances and potentially resulting in aggressive actions toward an already burdened staff. Finally, permitting inmates to possess nudity, explicit sexual material and obscene material temporarily will result in some inmates expending funds for subscriptions which they will be unable to receive once § 93.2 is amended.
The introduction of nudity and explicit sexual material into State correctional institutions will also undercut the sex offender programs, which do not allow sex offenders to view these materials because once the materials are introduced into the system there is no effective way of preventing inmates from passing them on to other inmates, including minors. The introduction of nudity and explicit sexual material will also cause confusion for overburdened mailroom staff that has been trained not to permit inmates to possess these materials. Additionally, in Brittain v. Beard, 974 A.2d 479 (2009), the Pennsylvania Supreme Court determined that an inmate did not prove that the Department's prohibition of nudity and explicit sexual material violated the First Amendment. Finally, inmates will be given notice of the amendment to § 93.2 through postings placed in the libraries and housing units of State correctional institutions.
Purpose
The purpose of this final-omitted rulemaking is to amend the Department's inmate correspondence regulation to prohibit inmates from receiving nudity and explicit sexual material. The final-omitted rulemaking is necessary to preserve the Department's current prohibition which was found to be ''of no effect'' by the Commonwealth Court because it was not promulgated according to the process set forth in the CDL. The prohibition is intended to further the Department's efforts to rehabilitate inmates and reduce and prevent crime.
Affected Individuals
The final-omitted rulemaking affects Department staff, inmates and persons who publish or send inmates material containing nudity, explicit sexual material or obscene material. The final-omitted rulemaking affects Department staff and inmates by preserving the Department's existing policy which prohibits inmates from receiving or possessing nudity, explicit sexual material and obscene material. The final-omitted rulemaking affects persons who publish and send inmates material containing nudity, explicit sexual material or obscene material by preventing inmates from having these publications mailed to State correctional institutions. The final-omitted rulemaking affects persons who send to inmates correspondence containing nudity (such as nude photographs), explicit sexual material or obscene material in that the material will be confiscated in the mailrooms of the various State correctional institutions and not furnished to the inmate.
Fiscal Impact and Paperwork Estimates
The final-omitted rulemaking will be revenue neutral as it simply preserves existing Department practice. The final-omitted rulemaking is not expected to result in an increased amount of paperwork.
Public Comment and Contact Person
Although the rulemaking is being adopted without publication as a proposed rulemaking, interested persons are invited to submit written comments, suggestions or objections to the Department of Corrections, Randall N. Sears, Deputy Chief Counsel, 55 Utley Drive, Camp Hill, PA 17011.
Persons with a disability who require an auxiliary aid or service may submit comments by using the Pennsylvania AT&T Relay Service at (800) 654-5984 (TDD users) or (800) 654-5988 (voice users).
Effective Date
The final-omitted rulemaking will become effective upon publication in the Pennsylvania Bulletin.
Sunset Date
No sunset date has been assigned.
Regulatory Review Act
Under section 5.1(c) of the Regulatory Review Act (71 P. S. § 745.5a(c)), on April 7, 2010, the Department submitted a copy of the final-omitted rulemaking and a copy of a Regulatory Analysis Form to the Independent Regulatory Review Commission (IRRC) and to the House Judiciary Committee and the Senate Judiciary Committee (Committees). On the same date, the regulations were submitted to the Office of Attorney General for review and approval under the Commonwealth Attorneys Act (71 P. S. §§ 732-101—732-506).
Under section 5.1(j.1) and (j.2) of the Regulatory Review Act, on May 12, 2010, the final-omitted rulemaking was approved by the Committees. Under section 5.1(e) of the Regulatory Review Act, IRRC met on May 13, 2010, and approved the final-omitted rulemaking.
Findings
The Department finds that:
(a) Notice of proposed rulemaking is omitted in accordance with section 204(3) of the CDL and 1 Pa. Code § 7.4(3) because the Department has made a good cause finding that, under the circumstances, a proposed rulemaking is impracticable, unnecessary and contrary to the public interest. The final-omitted rulemaking amends § 93.2 to clarify that inmates are not permitted to receive correspondence containing nudity, explicit sexual material or obscene material. Section 93.2 provides an exception for artistic, literary, educational and scientific materials. The final-omitted rulemaking is necessary to clarify § 93.2 which addresses obscene material, but is silent with respect to nudity and explicit sexual material. The Department issued an internal policy, notice of which was provided to inmates, prohibiting correspondence containing nudity and explicit sexual material. However, the Commonwealth Court declared the Department's internal policy to be ''of no effect'' because it was not promulgated through the process in the CDL.
The Department, for good cause, finds that notice of proposed rulemaking is impracticable, unnecessary and contrary to the public interest. The effect of the Commonwealth Court's decision will be to permit inmates to obtain nudity and explicit sexual material until § 93.2 can be amended. The Department has amended § 93.2 because it believes that allowing inmates to possess nudity and explicit sexual material is contrary to its effort to rehabilitate inmates, particularly sex offenders. Additionally, the possession of explicit sexual material by minors is a crime. The Department's inmate population includes many minors. Providing notice of proposed rulemaking also will allow nudity and explicit sexual material into State correctional institutions for a time and then require that the material be removed. This will create an extremely hazardous situation.
Inmates and staff in prisons in this Commonwealth are experiencing a higher amount of tension than is normal largely because the Commonwealth currently is incarcerating over 52,000 inmates; the largest population in the Department's history. Inmates also are tense concerning the planned temporary relocation of 2,000 inmates to Virginia and Michigan. Additionally, the economic downturn has strained the Department's budget and new personnel are not being hired at the same rate as those who leave employment, creating additional work for the remaining personnel. The increase in inmate and staff tensions, coupled with the population level, increases the risk of a prison riot. Allowing inmates to possess nudity and explicit sexual material on a temporary basis while a proposed rulemaking is published will mean that Department employees will have to sweep the prisons and confiscate newly introduced nudity and explicit sexual material when § 93.2 is amended. This will further strain employee resources and morale. Further, inmate frustration will increase when what has been returned temporarily is removed giving rise to more inmate grievances and potentially resulting in aggressive actions toward an already burdened staff. Finally, permitting inmates to possess nudity, explicit sexual material and obscene material temporarily will result in some inmates expending funds for subscriptions which they will be unable to receive once § 93.2 is amended.
The introduction of nudity and explicit sexual material into State correctional institutions will also undercut the sex offender programs, which do not allow sex offenders to view these materials because once the materials are introduced into the system there is no effective way of preventing inmates from passing them on to other inmates, including minors. The introduction of nudity and explicit sexual material will also cause confusion for overburdened mailroom staff that has been trained not to permit inmates to possess these materials. Additionally, in Brittain v. Beard, 974 A.2d 479 (2009), the Pennsylvania Supreme Court determined that an inmate did not prove that the Department's prohibition of nudity and explicit sexual material was unconstitutional under the First Amendment. Finally, inmates will be given notice of the amendment to § 93.2 through postings placed in the libraries and housing units of State correctional institutions.
(b) The adoption of this final-omitted rulemaking in the manner provided by this order is necessary and appropriate for the administration of State correctional institutions under the jurisdiction of the Department.
Order
The Department, acting under The Administrative Code of 1929, orders that:
(a) The regulations of the Department, 37 Pa. Code Chapter 93, are amended by amending § 93.2 to read as set forth in Annex A.
(b) The Secretary of the Department shall submit this order and Annex A to the Offices of General Counsel and Attorney General for approval as to legality and form as required by law.
(c) The Secretary of the Department shall certify and deposit this order and Annex A with the Legislative Reference Bureau as required by law.
(d) This order shall take effect upon publication in the Pennsylvania Bulletin.
JEFFREY A. BEARD, Ph.D.,
Secretary(Editor's Note: For the text of the order of the Independent Regulatory Review Commission relating to this document, see 40 Pa.B. 2838 (May 29, 2010).)
Fiscal Note: 19-12. No fiscal impact; (8) recommends adoption.
Annex A
TITLE 37. LAW
PART III. AGENCIES AND OFFICES
Subpart B. DEPARTMENT OF CORRECTIONS
CHAPTER 93. STATE CORRECTIONAL INSTITUTIONS AND FACILITIES
Subchapter A. RIGHTS AND PRIVILEGES § 93.2. Inmate correspondence.
(a) Permitted correspondence. Inmates are permitted to correspond with friends, family members, attorneys, news media, legitimate business contacts and public officials. There may be no limit to the number of correspondents.
(b) Restrictions. The following restrictions apply:
(1) Correspondence with inmates of other facilities, former inmates, probationers or victims of the criminal acts of the inmate will not be permitted except upon approval of the facility manager or a designee.
(2) Correspondence containing threatening, obscene or explicit sexual material, or nudity as well as correspondence containing criminal solicitation or furthering a criminal plan or institution misconduct is prohibited.
(3) An inmate shall refrain from writing to persons who have stated in writing that they do not wish to receive mail from the inmate. This will not be interpreted to restrict the right of inmates to correspond with public officials with respect to the official duties of the latter.
(4) Correspondence with prohibited parties through a third party is also prohibited.
(5) Mail addressed to an inmate organization will not be accepted unless the facility manager and Secretary have approved the organization and it is addressed to the staff coordinator of the organization.
(c) Incoming mail. Mail sent to a facility will be opened and examined for contraband in the facility's mailroom or designated area except when permitted under paragraph (1).
(1) The Department may permit sealed mail to be opened in the presence of an inmate under the following conditions:
(i) An attorney or authorized representative/designee may hand-deliver a sealed confidential client communication to an inmate if the attorney is unable to communicate through alternative means, if the following conditions are met:
(A) The person making the delivery does so during normal business hours unless granted permission in advance by the Secretary or a designee.
(B) The person making the delivery shall provide valid identification and information sufficient to verify that the person is the inmate's attorney or authorized representative of the attorney.
(C) The person making delivery shall present the documents for inspection for contraband, unsealed and unbound.
(D) Upon inspection, the documents will be sealed and delivered to the inmate where they will be unsealed and searched again for contraband.
(ii) An attorney may obtain a control number from the Department's Office of Chief Counsel if the attorney wishes to have correspondence addressed to an inmate client opened in the presence of the inmate.
(A) An attorney shall submit a written request for a control number to the Office of Chief Counsel. The request must include the attorney's name, address, telephone and facsimile numbers, State attorney identification number and a verification subject to the penalties of 18 Pa.C.S. § 4904 (relating to unsworn falsification to authorities) that all mail sent to inmates using the control number will contain only essential, confidential, attorney-client communication and will contain no contraband.
(B) The attorney shall place the control number on each envelope that the attorney wishes to have opened in an inmate's presence. The number is confidential. It shall only be placed on the outside of the envelope so that it can be obliterated before it is delivered to an inmate client.
(C) If a control number does not appear on the envelope, the mail will be treated as regular mail and opened in the mailroom unless the procedures in subparagraph (i) are followed.
(D) The Department may change the control number for any reason upon notice to the attorney who requested it.
(iii) A court may direct delivery of court documents sealed from public disclosure to an inmate by specific order. The court's representative shall deliver the sealed documents and the specific court order to the facility. Under no circumstances will documents filed in a court of public record be delivered sealed to an inmate.
(2) Contraband in the form of money orders, certified checks, cash or other negotiable instruments will be recorded indicating the nature of the receipt, the sender, the amount received and the date. Personal checks, unless certified, will be returned to the sender. The facility is not responsible for cash sent through the mails. Confiscated coins and currency will be deposited in the Inmate General Welfare Fund. Contraband not specifically addressed in this section will be returned to the sender or destroyed.
(d) Outgoing mail. Sealed outgoing mail from an inmate will not be examined except as set forth in subsection (e).
(e) Scrutiny of correspondence.
(1) The facility manager or a designee may read incoming or outgoing mail, except mail sealed in accordance with subsection (c)(1), when there is reason to believe that it may reveal or discuss illegal or unauthorized activity or for reasons set forth in any Department document that is disseminated to inmates.
(2) The facility manager or a designee may read mail sealed in accordance with subsection (c)(1), only upon the written order of the facility manager with the written approval of the Secretary when there is reason to believe that there is a threat to facility security or criminal activity.
(f) Rejection of correspondence. An item of correspondence which appears to violate subsection (b) may be rejected by facility mailroom staff. The inmate and the sender, in cases when the inmate is not the sender, will be notified when the letter is rejected. The letter will be held for at least 7 business days after mailing of the notification to permit reasonable opportunity to protest the decision. If the letter is rejected, it will be returned to the sender.
(g) Incoming publications.
(1) A publication review committee consisting of staff designated by and reporting to the facility manager or a designee shall determine whether an inmate may receive a publication.
(2) Publications shall be received directly from a publisher, bookstore, book club, distributor or department store. Newspapers shall be mailed directly from the publisher.
(3) Publications may not be received by an inmate if they:
(i) Contain information regarding the manufacture of explosives, incendiaries, weapons, escape devices, poisons, drugs or intoxicating beverages or other contraband.
(ii) Advocate, assist or are evidence of criminal activity, inmate misconduct, violence, insurrection or guerrilla warfare against the government.
(iii) Threaten the security of a facility.
(iv) Contain nudity, obscene material or explicit sexual materials as defined in subsection (i).
(v) Constitute a bulk mailing specifically intended for the purpose of advertising or selling merchandise.
(4) An inmate under 18 years of age may not receive explicit sexual materials as defined in 18 Pa.C.S. § 5903 (relating to obscene and other sexual materials and performances).
(5) A publication will not be prohibited solely on the basis that the publication is critical of penal institutions in general, of a particular facility, staff member, or official of the Department, or of a correctional or penological practice in this or any other jurisdiction.
(6) An inmate may receive only one copy of any publication unless granted permission by the publication review committee.
(7) Small letter sized pamphlets may be received in regular correspondence.
(8) Covers of hardbound publications may be damaged or removed during inspection in the discretion of mailroom staff.
(h) Exception. Correspondence and publications containing nudity, explicit sexual material or obscene material as defined in subsection (i), may be permitted if the material has artistic, educational or medical value. The following considerations will guide the Department in determining whether to permit nudity, explicit sexual material or obscene material:
(1) Is the material in question contained in a publication that regularly features sexually explicit content intended to raise levels of sexual arousal or to provide sexual gratification, or both? If so, the publication will be denied for inmate possession.
(2) Is it likely that the content in question was published or provided with the primary intention to raise levels of sexual arousal or to provide sexual gratification, or both? If so, the publication or content will be denied for inmate possession.
(i) Definitions. The following words and terms, when used in this section, have the following meanings:
Explicit sexual material—Any book, photograph, pamphlet, magazine, printed matter, sound recording, explicit and detailed verbal description, narrative account or other material of the following:
(i) Sexual conduct, which means acts of masturbation, homosexuality, sexual intercourse, sexual bestiality or physical contact with a person's clothed or unclothed genitals, pubic area, buttocks or, if the person is a female, breast.
(ii) Sadomasochistic abuse, which means flagellation or torture by or upon a person clad in undergarments, a mask or bizarre costume, or the condition of being fettered, bound or otherwise physically restrained on the part of one so clothed.
(iii) Sexual excitement, which means the condition of the human male or female genitals when in a state of sexual stimulation or arousal.
Nudity—The showing of the human male or female genitals, pubic area or buttocks with less than a fully opaque covering or the showing of the female breast with less than a fully opaque covering of any portion below the top of the nipple, or the depiction of covered male genitals in a discernible turgid state.
Obscene—Any book, photograph, pamphlet, magazine, printed matter, sound recording, explicit and detailed verbal description, narrative account or other material is considered obscene if one of the following applies:
(i) An average person applying contemporary community standards would find that the subject matter taken as a whole appeals to the prurient interest.
(ii) The subject matter depicts or describes the following in a patently offensive way:
(A) Ultimate sexual acts, normal or perverted, actual or simulated, including sexual intercourse, anal or oral sodomy and sexual bestiality.
(B) Patently offensive representations or descriptions of masturbation or execratory functions.
(C) In a sexual context, flagellation or torture upon a nude person or one clad only in undergarments, a mask or bizarre costume or fettered, bound or otherwise physically restrained.
(D) Lewd exhibition of the genitals.
(j) Construction. This section is not intended and may not be interpreted to create or confer any rights in addition to those created by the United States Constitution, the Pennsylvania Constitution or Federal or State statutes applicable to the Department.
[Pa.B. Doc. No. 10-985. Filed for public inspection May 28, 2010, 9:00 a.m.]
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