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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Junior Antenor, Keilan C. Ebli, and Loren J. Larson Jr. v. State of Alaska, Department of Corrections (4/17/2020) sp-7442
Notice: This opinion is subject to correction before publication in the P ACIFIC REPORTER.
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
corrections@akcourts.us.
THE SUPREME COURT OF THE STATE OF ALASKA
JUNIOR ANTENOR, KEILAN C. EBLI, )
and LOREN J. LARSON JR., ) Supreme Court No. S-17005
)
Appellants, ) Superior Court No. 3AN-81-05274 CI
)
v.
) O P I N I O N
)
STATE OF ALASKA, DEPARTMENT
) No. 7442 - April 17, 2020
OF CORRECTIONS, )
)
Appellee. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Pamela Scott Washington,
Judge pro tem.
Appearances: Junior Antenor, pro se, Keilan C. Ebli, pro se,
and Loren J. Larson, Jr., pro se, Wasilla, Appellants.
Matthias Cicotte, Assistant Attorney General, Anchorage,
and Kevin Clarkson, Attorney General, Juneau, for Appellee.
Before: Bolger, Chief Justice, Stowers, Maassen, and
Carney, Justices. [Winfree, Justice, not participating.]
CARNEY, Justice.
I. INTRODUCTION
In this appeal we address two separate challenges presented by inmates at
an Alaska correctional facility to Department of Corrections (DOC) policies. First, the
inmates challenge telephone charges for local calls by inmates, arguing that therates they
----------------------- Page 2-----------------------
and call recipients must pay for calls violate their constitutional right to rehabilitation,
their statutory right to reasonable telephone access, and DOC's contractual obligations
under a prior settlement and consent decree. Second, one of the prisoners challenges
DOC officers' decision to deny him access to a computer programming book he ordered
from outside the prison. He contends that DOC placed a content-specific restriction on
the educational materials and publications prisoners are allowed, violating the Alaska
Constitution's free speech provisions as well as prisoners' right to reformation.
Each of these challenges reach this court after inmates exhausted the administrative
1
Inmates then appealed to the
process from prison as set forth in Cleary v. Smith .
Superior Court where their prayers for relief were denied. The present appeal follows.
II. FACTS AND PROCEEDINGS
A. Background
Appellants Loren J. Larson, Jr., Keilan C. Ebli, and Junior Antenor are
inmates in DOC custody at Goose Creek Correctional Center. They have raised two
challenges to DOC policies. First, Larson and Ebli assert that increased charges for local
telephone calls violate inmates' state rights to rehabilitation and telephone access.
Second, Antenor argues that Goose Creek officers' decision not to permit him to have
a certain computer programming book reflects an "unwritten" blanket ban on all
computer-related books, and thus violates his rights to free speech and reformation.
Because the inmates brought their claims as motions to enforce a final settlement in
2
Cleary, a previous class action lawsuit by inmates against DOC, and because their
1 Final Settlement Agreement and Order, Cleary v. Smith , No. 3AN-81-
05274 CI (Alaska Super., Sept. 21, 1990).
2
Id .
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----------------------- Page 3-----------------------
3
claims are governed by the Alaska Prison Litigation Reform Act (APLRA), we review
the relevant portions of the Cleary case and the APLRA.
1. The Cleary case and settlement
We summarized the relevant proceedings of the Cleary case in Smith v.
Cleary:
This case began in 1981 as a class action brought
against the state by Alaska prisoners challenging prison
conditions. The plaintiffs formed three subclasses: pretrial
detainees (subclass A), sentenced prisoners in state owned or
operated correctional centers (subclass B), and prisoners held
by the state in federal facilities (subclass C). Although the
state and subclass C settled in 1983, litigation continued with
the remaining subclasses until the parties entered a
comprehensive settlement, which the superior court
incorporated in a consent decree in 1990.
The settlement agreement applied to "all inmates, with
some exceptions, who are or will in the future be incarcerated
in correctional facilities owned or operated by the state" and
bound the Department of Corrections and "any successor
department, division, or agency of the state of Alaska which
is statutorily responsible for the administration of the state's
adult correctional facilities." It included elaborate provisions
for future operation of Alaska prisons, enumerated rights of
inmates, guaranteed the availability of specific rehabilitative
programs and services, required the state to implement an
inmate classification system, created population guidelines,
and established caps to eliminate overcrowding. The
agreement also established mechanisms to monitor ongoing
compliance, including a provision calling for a designated
3
AS 09.19.200.
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----------------------- Page 4-----------------------
superior court judge to have continuing jurisdiction over
alleged violations. [4]
5
The Final Settlement Agreement and Order provided that individual inmates could raise
6
compliance challenges as long as they first exhausted all administrative remedies.
2. Alaska Prison Litigation Reform Act
In 1999 the Alaska legislature passed the APLRA.7 The APLRA imposed
strict limitations on prisoner lawsuits, limited the remedies courts could order for
violations of inmates' rights, and established standards for terminating prospective relief
under a consent decree such as the Cleary Final Settlement Agreement.8 Specifically,
subsection (a) of the APLRA provides:
Except as provided in (b) and (e) of this section, a court may
not order prospective relief in a civil action with respect to
correctional facility conditions unless the court finds that
(1) the plaintiff has proven a violation of a state or federal
right,(2) theprospectiverelief is narrowly drawn and extends
no further than is necessary to correct the violation of the
right, (3) the prospective relief is the least intrusive means
necessary to correct the violation of the right, and (4) the
4
Smith v. Cleary , 24 P.3d 1245, 1246-47 (Alaska 2001); see also Barber v.
State, Dep't of Corr. , 393 P.3d 412, 414 (Alaska 2017).
5 Also referred to as the consent decree. See Barber, 393 P.3d at 414 n.2.
6 Id. at 415 (quoting Smith v. Cleary, 24 P.3d at 1251). The Alaska
Administrative Code (AAC) and DOC's Polices and Procedures establish the relevant
administrative remedies prisoners must exhaust. 22 AAC 05.185 (2017); STATE OF
ALASKA, DEP 'T OF CORR., POLICIES & PROCEDURES 808.03 (2006), http://
www.correct.state.ak.us/corrections/pnp/pdf/808.03.pdf (detailing specific procedures
for prisoners to pursue grievances against DOC).
7 Ch. 42, § 2, SLA 1999; see AS 09.19.200.
8 AS 09.19.200(a)-(c).
-4- 7442
----------------------- Page 5-----------------------
prisoner has exhausted all administrative remedies
available . . . before filing the civil action. [9]
The APLRA defines a "state or federal right" as "a right arising from the United States
Constitution, the Constitution of the State of Alaska, or a federal or state statute."10
In 2000 DOCmoved to terminate the Final Settlement Agreement pursuant
11
to the APLRA. At the time, inmate plaintiffs immediately opposed, raising several
12 Superior
challenges to the APLRA under the Alaska and United States Constitutions.
Court Judge Elaine M. Andrews issued a ruling in 2001, interpreting the APLRA to
terminate only the prospective effect of the Final Settlement Agreement, not the
Agreement itself, and concluding that, under this narrow reading, the statute was
constitutional.13 Judge Andrews concluded that the APLRA thus limited the court's
ability to order continuing prospective relief under the Final Settlement Agreement.14
We later determined that because no party had appealed the 2001 superior court decision,
9 AS 09.19.200(a).
10 AS 09.19.200(g)(7).
11
Decision and Order, Cleary v. Smith, No. 3AN-81-05274 CI, at *2 (Alaska
Super., July 3, 2001); see also Barber v. State, Dep't of Corr., 393 P.3d 412, 415 (Alaska
2017); AS 09.19.200(c).
12
Decision and Order, Cleary v. Smith, No. 3AN-81-05274 CI, at *2-*3
(Alaska Super., July 3, 2001).
13 Id. at *1, *4-*8.
14
Id. at *7 (See also Gilmore v. California, 220 F.3d 987, 999 (9th Cir. 2000)
(holding that under federal Prison Litigation Reform Act, courts cannot order prison
administrators "to do more than the constitutional minimum")).
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----------------------- Page 6-----------------------
15
"that decision became [the] law of the case." Thus under Judge Andrews's reading of
the APLRA, inmates may seek to enforce the Final Settlement Agreement via a motion
in superior court so long as: they allege a violation of a state or federal right that affects
the entire class of Cleary plaintiffs; they exhaust their administrative remedies prior to
filing a motion; the requested relief uses the least intrusive means to correct the rights
violation; and the court takes into account potential adverse effects on public safety. 16
B. Challenge To Local Telephone Call Rates
1. Facts
Alaska Statute 33.30.231 requires DOC to provide prisoners with
reasonable access to a telephone and permits DOC to contract with private companies
to providethis service;17
DOCthereforecontracted withSecurus Technologies forphone
18 Inmates generally are not permitted to receive calls from outside the
services.
correctional facility where they are housed.19
All inmate calls, whether local or long
distance, must be placed collect at the expense of the recipient, if the recipient accepts
15 Barber, 393 P.3d at 416. The law of the case doctrine generally "prohibits
the reconsideration of issues which have been adjudicated in a previous appeal in the
same case." Id. at 419 (quoting Beal v. Beal , 209 P.3d 1012, 1016 (Alaska 2009)). We
have further held that "in the context of the Cleary Final Settlement Agreement, the law
of the case doctrine is applicable to issues that were fully litigated resulting in a final
order which was not timely appealed." Id.
16 Id. at 421; see AS 09.19.200(a).
17 AS 33.30.231(a), (d); see AS 36.30.005-.086 (governing procurement
contracts by government agencies).
18 See Inmate Phone System, STATE OF ALASKA, D EP 'T OF CORR., http://
www.correct.state.ak.us/inmate-phone-system (last visited July 30, 2019).
19 Id. ("Inmates may only place outgoing calls and cannot receive incoming
calls to their facility.").
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----------------------- Page 7-----------------------
the call.20 If the recipient agrees to pay the cost of the call, he or she may do so either
through an account that has been previously established with Securus or by direct billing
21
In November 2014 Securus applied to the Regulatory Commission of
from Securus.
22 after issuing public notice of the application, RCA
Alaska (RCA) to raise its rate;
approved Securus's request in June 2015.23 On October 1, 2015, Securus began
charging $1 per local call.24
20 Id.
21
Id.
22
Application, In re Application of Securus Technologies, Inc. for a
Certificate of Public Convenience and Necessity to Provide Private Pay Telephone
Service to Inmates in Alaska Department of Corrections Facilities, RCA Docket No. U-
14-113, (Nov. 13, 2014), http://rca.alaska.gov/RCAWeb/ViewFile.aspx?id=B11994
FE-4563-460B-A347-99674E22F514.
23 Order Approving Application, Granting Motion for Waiver of Certain
Service Requirements, Approving Tariff Sheets, and Requiring Compliance Filings, In
re Application of Securus Technologies, Inc. for a Certificate of Public Convenience and
Necessity to Provide Private Pay Telephone Service to Inmates in Alaska Department
of Corrections Facilities, RCA Docket No. U-14-113, (June 12, 2015), http://
rca.alaska.gov/RCAWeb/ViewFile.aspx?id=e28889c7-f0b3-4c2d-9343- c7ce31ed96a0.
24 DOC asserts that local call rates are $0.07 per minute "with a cap of $1.00,"
but nothing in the record confirms this; Securus's petition sought a "$1.00 flat rate
charge for a local call of whatever duration is permitted by the DOC facility," and this
was the rate approved by the Regulatory Commission. Application, In re Application
of Securus Technologies, Inc. for a Certificate of Public Convenience and Necessity to
Provide Private Pay Telephone Service to Inmates in Alaska Department of Corrections
Facilities , RCA Docket No. U-14-113, at *5 (Nov. 13, 2014),
http://rca.alaska.gov/RCAWeb/ViewFile.aspx?id=B11994FE-4563-460B-
A347-99674E22F514; Order Approving Application, Granting Motion for Waiver of
Certain Service Requirements, Approving Tariff Sheets, and Requiring Compliance
Filings, In re Application of Securus Technologies, Inc. for a Certificate of Public
(continued...)
-7- 7442
----------------------- Page 8-----------------------
In late March 2017 Larson submitted a request for interview (RFI) - a
written form used by inmates to raise concerns or complaints with prison staff - in
which he asserted that DOC had violated Section V(C)(2) of the Final Settlement
25 He sought
Agreement by allowing Securus to charge $1 for local telephone calls.
restitution for the money paid by recipients of local collect calls from inmates since the
price increase had gone into effect. DOC denied his RFI, claiming it lacked authority to
grant his requests to reduce local call charges and pay restitution because it did not
directly set rates or collect money for the calls. Larson filed a prisoner grievance in early
April, which was denied on the ground that the issue of local calls had already been
"grieved by the prisoner or by another prisoner and resolved."
24
(...continued)
Convenience and Necessity to Provide Private Pay Telephone Service to Inmates in
Alaska Department of Corrections Facilities, RCA Docket No. U-14-113 (June 12,
2015), http://rca.alaska.gov/RCAWeb/ViewFile.aspx?id=e28889c7-f0b3-4c2d-9343-
c7ce31ed96a0.
25 Section V(C)(2) of the Cleary Final Settlement Agreement provides:
(a) The Department may install coinless pay phones in each
facility for local and long distance calls which provide caller
identification for each call. No charge shall be assessed to
the caller or recipient for local calls. . . .
(b) If, after one year of operation on a statewide basis,
revenues from toll calls are insufficient to pay for the cost of
local calls in the coinless pay phone system, the Department
reserves the right to assess a charge of not more than [$0.50]
per call for local calls. If the Department exercises this right,
the plaintiffs have the corresponding right to challenge any
charge as to its amount and necessity, and to propose less
costly or restrictive alternatives.
Final Settlement Agreement and Order, Cleary v. Smith, No. 3AN-81-05274 CI, at *28
(Alaska Super., Sept. 21, 1990).
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----------------------- Page 9-----------------------
Shortly after Larson submitted his RFI, another inmate, Billy Jack
Wiglesworth, filed a similar RFI challenging local call rates. In addition to the
arguments Larson had made, Wiglesworth contended that the increased rate violated
26 He argued that although
prisoners' state right to telephone access under AS 33.30.231.
DOC had discretion to contract for telephone services, its delegation of those services
to Securus did not relieve it of its duty to ensure that telephone charges complied with
the Final Settlement Agreement.27 When his RFI was denied Wiglesworth filed a
prisoner grievance, which DOC denied on the same grounds as Larson's, as well as
because DOC lacked the ability to change call rates that had been "approved by the
Regulatory Commission of Alaska."
2. Proceedings
In late May 2017 Larson and Wiglesworth jointly filed a motion to enforce
the Cleary Final Settlement Agreement and for restitution. They argued that under the
Final Settlement Agreement DOC had to petition the court and show that revenue from
long-distance calls did not cover the cost of local calls before it could raise local call
rates. DOC had never filed such a petition; even if it had, the inmates argued, the Final
Settlement Agreement established a maximumcall charge of $0.50. They contended that
DOC's decision to contract with Securus for telephone services did not relieve it of its
26 AS 33.30.231(a) provides: "A prisoner shall have reasonable access to a
telephone except when access is suspended as punishment for conviction of a rule
infraction or pending a hearing for a rule infraction involving telephone abuse."
27 Wiglesworth asserted that the Final Settlement Agreement was in effect a
contract and cited this court's observation that "[u]nless the obligee agrees otherwise,
neither delegation of performance nor a contract to assume the duty made with the
obligor by the person delegated discharges any duty or liability of the delegating
obligor." Seville v. Holland Am. Line Westours, Inc., 977 P.2d 103, 111 n.49 (Alaska
1999) (quoting RESTATEMENT (SECOND) OF CONTRACTS § 318(3) (AM. L AW INST .
1981)).
-9- 7442
----------------------- Page 10-----------------------
duties under the Agreement or of liability if it breached those duties. They further
argued that the increased charges for local calls infringed on both their right to
reasonable telephone access under AS 33.30.231(a) and their rights to free speech and
28 They attached affidavits from Larson's
reformation under the Alaska Constitution.
mother and Wiglesworth's parents, who asserted that they had paid $480, $1440, and
$2,300 for local calls from their sons between October 2015 and March or April 2017.
In mid-June DOC opposed Larson and Wiglesworth's motion to enforce.
DOC argued the inmates had not alleged violation of a state or federal right as required
by the ALPRA, because AS 33.30.231 required only "access to the telephone" and said
nothing about cost.29 DOC argued that "since prisoners are almost universally charged
for telephone calls, . . . no [free speech] right to free calls exists." Finally, DOC argued
that restitution was not an appropriate remedy because the individuals paying for the
calls were not parties to the Cleary Final Settlement Agreement.
Shortly afterward Ebli moved to join Larson and Wiglesworth's motion,
asserting that he had attempted to pursue essentially the same grievance as they had.
DOC did not oppose Ebli's motion to join, though at one point it attempted to argue that
he was not a proper party and that Larson was engaging in the unauthorized practice of
law by jointly filing a motion with Ebli. The court allowed the joint pleadings and
28 See AS 33.30.231(a); Alaska Const. art. I, §§ 5 ("Every person may freely
speak, write, and publish on all subjects, being responsible for the abuse of that right."),
12 ("Criminal administration shall be based upon the following: the need for protecting
the public, community condemnation of the offender, the rights of victims of crimes,
restitution from the offender, and the principle of reformation."). We have held that the
reference in article I, section 12 of the Alaska Constitution to "the principle of
reformation" is "not a meaningless guarantee," but creates "a right to rehabilitation."
Ferguson v. State, Dep't of Corr. , 816 P.2d 134, 139 (Alaska 1991).
29 See AS 09.19.200(a); AS 33.30.231(a).
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eventually issued a written order granting Ebli's motion to join.
In late June 2017 Larson and Wiglesworth replied to DOC's opposition.
They argued that the Final Settlement Agreement provision addressing local call costs
was"directed at"theright toreasonabletelephoneaccess establishedbyAS33.30.213(a)
and that by breaching the Agreement, DOC had infringed on that right. They further
argued that the persons paying for local calls - generally family members of
prisoners - were intended beneficiaries of the Final Settlement Agreement and thus
entitled to restitution because the Agreement specifically stated that DOC would not
30 A few days later Larson and Ebli filed a
charge either "the caller or the recipient."
"Supplemental Argument." They argued that DOC was evading its settlement
obligations by allowing Securus to raise the rates for local calls, and that the only
permissible ways for DOC to change those obligations was to seek a modification
through the procedure provided in the settlement or to challenge Judge Andrews's 2001
order upholding the consent decree. They contended that allowing DOC to breach the
30 We have adopted the test of the Restatement (Second) of Contracts to
determine whether a third party is an intended beneficiary of a contract:
Unless otherwiseagreed between the promisor and promisee,
a beneficiary of a promise is an intended beneficiary if
recognition of a right to performance in the beneficiary is
appropriate to effectuate the intention of the parties and either
(a) the performance of the promise will satisfy an
obligation of the promisee to pay money to the beneficiary;
or
(b) the circumstances indicate that the promisee
intends to give the beneficiary the benefit of the promised
performance.
Rathke v. Corr. Corp. of Amer., Inc., 153 P.3d 303, 310 (Alaska 2007) (quoting
RESTATEMENT (SECOND) OF CONTRACTS § 302 (A M. L AW INST . 1979)).
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----------------------- Page 12-----------------------
Final Settlement Agreement would signal to inmates that "laws, rules, and procedures
are merely a suggestion . . . and . . . don't have to be followed," would discourage
inmates from becoming law-abiding citizens, and would deprive them of a meaningful
31
right to rehabilitation.
In December 2017 the superior court denied the motion to enforce, finding
"There is nothing in AS 33.30.231(a) that guarantees prisoners [a] right to make free
phone calls." The court also found that the Alaska Constitution's free speech provision
only required DOC to refrain from restricting inmates' ability to "freely speak, write or
publish on all subjects";32 it did not require DOC to provide inmates with "free tools with
which to cast [their] speech out into the world." (Emphasis in original.) Larson and Ebli
appeal; Wiglesworth does not join the appeal.
C. Challenge To Prohibition On Computer Programming Book
1. Facts
Around April 2017 appellant Junior Antenor attempted to orderacomputer
33
programming book called Programming Arduino Next Steps.
He asserts that he
31 See Alaska Const. art. I, § 12; see also Abraham v. State , 585 P.2d 526,
530-31 (Alaska 1978) ("[O]ne of the objectives of [article I, section 12 of the Alaska
Constitution] . . . was the 'rehabilitation of the offender into a noncriminal member of
society.' " (quoting State v. Chaney , 477 P.2d 441, 444 (Alaska 1970))).
32 See Alaska Const. art. I, § 5.
33
See SIMON MONK,P ROGRAMMING ARDUINO NEXT STEPS: G OING FURTHER
WITH SKETCHES (2014). Arduino is an electronics platform that uses the Arduino
programming language and a corresponding set of software development tools (called
an integrated development environment or IDE) to program microcontrollers known as
RDUINO, https://www.arduino.cc/en/Guide/
Arduino boards. See Introduction, A
Introduction (last visited July 24, 2019). The Arduino language is based on the
programming languages C and C++, and it can be used to operate an Arduino board
(continued...)
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----------------------- Page 13-----------------------
ordered the book to engage in further self-study after taking an electronics class at Goose
Creek. However, DOC officials at Goose Creek refused to accept delivery of the book,
34
stating that "program[m]ing books [were] not allow[ed] for security reasons."
DOC policy provides that incoming publications must be individually
reviewed and that if they include "material that could reasonably be expected to aid in
escape [or] incite violence, theft, or destruction of property in the facility," they must be
35 However,thepolicyprohibitsDOCofficials from"establish[ing]anexcluded
rejected.
list of publications" and rejecting a multiple-issue publication "in its entirety" even if
several individual issues of the publication are found to contain prohibited material.36
Additionally the policy requires all publications sent to inmates to be "ordered and
received directly froman approved vendor or publisher"; Antenor has asserted and DOC
33 (...continued)
through a computer if first translated by another software program known as a compiler.
Id. Antenor points out that he ordered only the book, not any of the related hardware or
software, implying that without these he would have been unable to use any Arduino
code he wrote to threaten the security of the facility. DOC does not respond to this
suggestion; the record contains no evidence of whether Antenor would have been able
to run Arduino-based code on any of Goose Creek's existing computers.
34 Antenor had attempted to order computer-related booksonatleastoneprior
occasion in 2014; those books were similarly rejected on the basis that "[c]omputer
programming [b]ooks constitute a threat to safe and secure operation of the [f]acility."
The superintendent's determination stated that the books had been screened and
determined to contain "some content [that] would be a detriment" to security at Goose
Creek and that Antenor could "participate in computer education classes" at the prison.
35
STATE OF ALASKA, D EP 'T OF CORR., P OLICIES & P ROCEDURES 810.03
§ VIII(B)-(C)(1) (2018), www.correct.state.ak.us/pnp/pdf/810.03.pdf.
36 Id. § VIII(B).
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----------------------- Page 14-----------------------
37
does not dispute that he ordered the book from an approved vendor.
In mid-April 2017 Antenor submitted an RFI challenging Goose Creek's
rejection of the book and stating that a "blanket ban on [e]ducation [b]ooks like the one
at issue here . . . violates the Cleary [consent decree]." When his RFI was denied, he
filed a grievance stating that neither DOC's governing regulations nor the Final
Settlement Agreement "prohibit[ed] educational books regarding programming
languages." His grievance was denied on the ground that the "[i]ssue of computer
educational books [had been] previously grieved and denied" when he had attempted to
order programming books in 2014.
2. Proceedings
In June 2017 Antenor and Wiglesworth jointly filed a motion to enforce the
Cleary Final Settlement Agreement.38 Antenor alleged that Goose Creek had
implemented an "unwritten"standardoperatingprocedurebanning "any computer based
educational literature"; he argued that this amounted to "a content-based restriction on
speech which also burdens a prisoner's right to rehabilitation."39 Antenor pointed to
AS 33.30.011(a)(3), which requires the DOC commissioner to establish programs to
develop inmates' education and occupational skills and "otherwise provide for [their]
37
Former S TATE OF ALASKA, D EP 'T OF CORR., P OLICIES & P ROCEDURES
810.03 § (VII)(H) (2013), https://www.law.umich.edu/special/policyclearinghouse/
Documents/Alaska%20-%20810.03.pdf.
38 In themotionWiglesworth raised a challengetoDOC's"approved vendor"
policy, which prohibits inmates from receiving publications except directly from
approved vendors. See id. Because this issue was not raised on appeal, as Wiglesworth
does not participate in the appeal, we do not address it.
39 See Alaska Const. art. I, §§ 5, 12.
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----------------------- Page 15-----------------------
40
rehabilitation and reformation," and AS 33.30.191, which provides for prisoners to "be
41
productively employed for as many hours each day as feasible."
He argued that these
statutes, plus DOC's regulations on educational programs and reading material for
42 required that he be allowed to have access to the Arduino book. He argued
prisoners,
that under 22 AAC 05.510(b) DOC could only ban publications "reasonably . . .
expected to (1) aid an escape; (2) incite or encourage any form of violence or other
criminal activity; or (3) have an adverse impact on the rehabilitation of the prisoner
possessing [it] or other prisoners."43 Antenor pointed out that the Cleary Final
44
Settlement Agreement imposes similar limits. He argued that none of the listed
40 AS 33.30.011(a)(3)(C), (D), (F).
41
AS 33.30.191(a).
42
22 AAC 05.340 ("[DOC] will provide an educational program to the extent
permitted by available resources. . . . Post-secondary education opportunities consisting
of courses or correspondence study will also be made available to prisoners."); 22 AAC
05.510(a) (providing that prisoners "may request any reading material" available
"through the state library system" and are "not limited to the facility's collection").
43 22 AAC 05.510(b).
44 Section V(D)(4) of the Final Settlement provides:
Except for the categories set out below, the Department may
not limit or restrict the receipt by inmates through the mail of
paperback books and magazines from family and friends, but
may limit the number of books kept by an inmate in his or her
living area . . . . However, the Department may inspect
reading or pictorial materials to determine if they contain
contraband; material which could reasonably be expected to
aid in escape, incite violence, theft or destruction of property
in the facility; material which is obscene . . . ; or which
depicts or describes procedures for the brewing of alcoholic
(continued...)
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----------------------- Page 16-----------------------
grounds for prohibiting books were "applicable to computer programming books."
In July 2017 DOC moved to strike Antenor and Wiglesworth's motion to
enforce, arguing that Wiglesworth was not a proper party to the motion and appeared to
be engaging in the unauthorized practice of law. Antenor and Wiglesworth opposed the
motion to strike, arguing that as members of the class of Cleary plaintiffs they were both
proper parties, that their claims could properly be joined, and that DOC had provided no
evidence or factual basis for the claim that Wiglesworth was engaging in the
unauthorized practice of law. The superior court eventually denied DOC's motion to
strike.
In the same order in which it denied Larson, Wiglesworth, and Ebli's
motion on the local telephone call rates, the superior court denied Wiglesworth and
Antenor's motion to enforce. The court concluded that Antenor had "no inherent right
to receive books on a particular subject matter" and that the "wide-ranging deference"
to which prison administrators are entitled applied to Goose Creek's discretionary
45 The court later
decision to limit the content of reading material available to inmates.
issued an amended order that left unchanged its decisions on both motions to enforce.
Larson, Ebli, and Antenor appeal.
III. STANDARDS OF REVIEW
"Principles of contract interpretation govern the construction and
44
(...continued)
beverages or manufacture of drugs, weapons or explosives.
Final Settlement Agreement and Order, Cleary v. Smith, No. 3AN-81-05274 CI, at *31
(Alaska Super., Sept. 21, 1990).
45 Bell v. Wolfish, 441 U.S. 520,547 (1979) ("Prison administrators . . . should
be accorded wide-ranging deference in the adoption and execution of policies and
practices that in their judgment are needed to preserve internal order and discipline and
to maintain institutional security.").
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----------------------- Page 17-----------------------
46
enforcement ofthe Cleary Final Settlement Agreement." We reviewdenovoquestions
47
of contract law dealing with "[t]he settlement agreement's scope and effect." "We
48
review issues concerning constitutional rights of inmates de novo."
"The interpretation of a statute is a question of law to which we apply our
independent judgment, interpreting the statute according to reason, practicality, and
common sense, considering the meaning of the statute's language, its legislative history,
49 Where "the superior court 'act[ed] as an intermediate appellate court
and its purpose."
in an administrative matter,' we 'independently review the merits of the administrative
decision.' "50
IV. DISCUSSION
A. TheRecordLacks Sufficient EvidenceTo DetermineWhetherCurrent
Local Telephone Call Rates Are Reasonable Or Constitutional.
Larson and Ebli first argue that DOC breached the Cleary Final Settlement
Agreement by allowing Securus to raise local call rates by filing a petition with the
Regulatory Commission of Alaska rather than by moving to modify the Final Settlement
Agreement in superior court. They contend that DOC's delegation of the duty to provide
telephone services to Securus does not absolve it of its contractual obligation to adhere
to the price limits and modification procedures in the Agreement. They further argue
46 Barber v. State, Dep't of Corr., 393 P.3d 412, 418 (Alaska 2017).
47 Id. (quoting Smith v. Cleary, 24 P.3d 1245, 1247 (Alaska 2001)).
48 Simmons v. State, Dep't of Corr., 426 P.3d 1011, 1015 (Alaska 2018).
49 Johnson v. State, Dep't of Corr., 380 P.3d 653, 655 (Alaska 2016) (quoting
Barber, 314 P.3d at 62).
50 Simmons, 426 P.3d at 1015 (alteration in original) (quoting James v. State,
Dep't of Corr., 260 P.3d 1046, 1050 (Alaska 2011)).
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----------------------- Page 18-----------------------
that this breach violates their right to reasonable access to telephone services under
AS 33.31.231(a); their and their friends' and families' rights to free speech and
association under article I, section 5 of the Alaska Constitution; and their right to
rehabilitation under article I, section 12 of the Alaska Constitution. They assert that
recipients of inmate calls, who paid for the calls, are entitled to restitution for payments
made after the rate increase, presumably as intended third-party beneficiaries of the Final
Settlement Agreement.
In response DOC argues that neither AS 33.30.231(a)'s guarantee of
"reasonable access" to telephones nor the Alaska Constitution's free speech provision
confers a "right to free telephone calls." The Cleary Final Settlement Agreement, DOC
notes, expressly provides for the possibility that local call rates might be raised to $0.50
per call. DOC argues that, given the rate of inflation since the Agreement took effect in
1990, charging up to $1 per call "does not establish the violation of a constitutional
right" or unreasonably burden telephone access.
We note first that the plain terms of the Cleary Final Settlement Agreement
establish a maximum charge for local call rates at $0.50. The Agreement does not
mention adjustment for inflation, and it provides inmates an opportunity to challenge the
amount and necessity of any rate increase and propose alternatives. But the prisoners'
claim that DOC failed to follow the Final Settlement Agreement's call rate limits and
51 Under
modification procedures is essentially a common-law breach of contract claim.
Judge Andrews's reading, the APLRA requires termination of prospective relief under
a consent decree upon DOC's motion, unless the court finds that DOC's current practices
51 See Barber, 393 P.3d at 418 (applying principles of contract interpretation
to enforcement of Cleary Final Settlement Agreement).
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----------------------- Page 19-----------------------
52
violate a state or federal right. The inmates here sought injunctive relief, which falls
53
within the APLRA's definition of "prospective relief";
we have previously determined
that DOC properly moved to terminate prospective relief under the Cleary Final
54 Thus, unless the inmates allege violation of a state or
Settlement Agreement in 2000.
federal right - not merely a common-law duty - breach of the Final Settlement
Agreement alone does not entitle them to the injunctive relief they seek.55 We therefore
turn to their claims that the call rates violate their statutory and constitutional rights.
1. Right to reasonable access to a telephone under AS 33.30.231
Alaska Statute 33.30.231(a) provides: "A prisoner shall have reasonable
access to a telephone except when access is suspended as punishment for conviction of
a rule infraction or pending a hearing for a rule infraction involving telephone abuse."
We have not yet had occasion to interpret this provision's guarantee of "reasonable
52 Decision and Order, Cleary v. Smith , No. 3AN-81-05274 CI, at *4-*8
(Alaska Super., July 3, 2001); AS 09.19.200(a); see also Hertz v. State, Dep't of Corr. ,
230 P.3d 663, 667 (Alaska 2010) (holding prisoner not entitled to relief because failed
to demonstrate violation of state or federal right and sought prospective relief).
53 AS 09.19.200(g)(5) (" '[P]rospective relief' means all relief other than
compensatory monetary damages."); see also Hertz, 230 P.3d at 667-68 (noting that
inmate's demand for declaratory and injunctive relief "f[e]ll squarely" within APLRA's
definition of prospective relief).
54 Hertz, 230 P.3d at 667.
55 See AS 09.19.200(a).
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----------------------- Page 20-----------------------
56 57
access." We apply our independent judgment to questions ofstatutory interpretation,
including "agency interpretations of statutory terms that do not implicate agency
58 "[U]nder Alaska's sliding-scale approach to statutory interpretation, 'the
expertise."
plainer the language of the statute, the more convincing contrary legislative history must
be.' "59
The text of AS 33.30.231(a) requires only that prisoners have "reasonable"
telephone access; it makes no mention of the cost of telephone calls.60 The legislative
history also does not mention costs, so it offers little guidance on this question. Alaska
Statute 33.30.231 was passed in 1986.61 It was part of a comprehensive overhaul of Title
33, Chapter 30: Prison Facilities and Prisoners.62 One purpose of the overhaul appears
to have been to codify the obligations DOC assumed through its 1983 settlement with
one subclass of the Cleary plaintiffs.63 A letter from the governor introducing the
overhaul noted that the bill would authorize DOC to monitor prisoners' calls "so as to
56 The only federal case to consider theprovision, Valdez v. Rosenbaum , dealt
with restrictions on aninmate'stelephoneprivileges after hewas placedinadministrative
segregation, not with call charges. 302 F.3d 1039, 1042-45 (9th Cir. 2002).
57 Hertz, 230 P.3d at 666.
58 State, Dep't of Corr. v. Hendricks-Pearce, 254 P.3d 1088, 1091 (Alaska
2011).
59 Bartley v. State, Dep't of Admin., Teachers' Ret. Bd, 110 P.3d 1254, 1258
(quoting Alaskans for Efficient Gov't Inc. v. Knowles , 91 P.3d 273, 275 (Alaska 2004)).
60 AS 33.30.231(a).
61 Ch. 88, § 6, SLA 1986.
62 See 1990 House Journal 2270.
63 See Smith v. Cleary, 24 P.3d 1245, 1246 (Alaska 2001) (noting that DOC
settled in 1983 with prisoners held by the state in federal facilities).
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----------------------- Page 21-----------------------
preserve the security and orderly administration of correctional institutions," but it said
64
nothing about the cost of calls.
Amendments to AS 33.30.231 in 1990 and 1997
65 and a 1992 amendment authorized DOC to
altered the call monitoring provisions,
66 But none of these amendments dealt with or even
contract for telephone services.
mentioned telephone costs or modified subsection (a)'s requirement of "reasonable
access to a telephone."67 There is nothing in the legislative record to suggest that the
legislature intended either to establish a limit on the cost of inmate telephone calls, to
authorize DOC to charge a particular rate, or even to suggest a benchmark of what might
be a "reasonable" rate. It therefore falls to us to construe the term "reasonable access"
according to "reason, practicality, and common sense."68
In order to do so, we have reviewed other courts' consideration of related
issues raised regarding their correctional facilities.69 We also note that some states and
64 1985 House Journal 141.
65
Ch. 56, §§ 1-3, SLA 1990; ch. 49, § 9, SLA 1997.
66 Ch. 2, § 6, FSSLA 1992.
67 See ch. 49, § 9, SLA 1997; ch. 2, § 6, FSSLA 1992 ; ch. 56, §§ 1-3, SLA
1990.
68 Marathon Oil Co v. State, Dep't of Nat. Res., 254 P.3d 1078, 1082 (Alaska
2011) (quoting Native Village of Elim v. State, 990 P.2d 1, 5 (Alaska 1999)).
69 See, e.g., Harrison v. Fed. Bureau of Prisons, 464 F. Supp. 2d 552, 555-57
(E.D. Va. 2006) (holding that three-cent-per-minute increase to long-distance telephone
rate did not violate federal inmate's First Amendment rights, due process, or equal
protection); McGuire v. Ameritech Servs., Inc., 253 F. Supp. 2d 988, 1001-02 (S.D. Ohio
2003) (determining that recipients of inmate calls had raised First Amendment and equal
protection challenges to call rates sufficient to survive motion to dismiss); Benson v.
State, 887 A.2d 525, 528-31 (Md. 2005) (considering challenge to state's receipt of
commissions on inmate collect call charges); Walton v. N.Y. State Dep't of Corr. Servs.,
(continued...)
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localities haverecentlyadoptedorconsidered provisionsthatlimit or eliminatetelephone
70
charges for inmates.
While other jurisdictions may offer some guidance, differences
in Alaska's geography and statewide provision of correctional facilities may limit their
usefulness. In 2007 a New York court considered rates comparable to those at issue
here, holding that New York's Department of Correctional Services did not violate equal
protection or the First Amendment when it took a 57.5% commission from the call
71 The court
revenues of the contractor providing telephone services in state prisons.
appeared to accept a determination by the New York Public Service Commission that the
rate charged by the contractor - a $3 charge per call plus an additional charge of
$0.16 per minute - was "just and reasonable," as was the portion of the fees the
contractor retained - 42.5% or roughly $1.28 plus $0.07 per minute.72 Similarly, in
2005 the Maryland Court of Appeals considered a challenge by recipients of inmate
69 (...continued)
921 N.E.2d 145, 155-57 (N.Y. 2009) (same).
70 See N.Y. C ITY, A DMIN. C ODE § 9-154 (2018) (requiring city to provide
domestic telephone services to inmates in city correctional facilities at no cost and
barring city from collecting revenue from such services); Dominic Fracassa, SF to Allow
Free Calls for Inmates, No Markups on Products Sold in Jail, SAN FRANCISCO
CHRONICLE (June 12, 2019), https://www.sfchronicle.com/bayarea/article/SF-to-
allow-free-calls-for-inmates-no-markups-on-13974972.php (detailing initiative by San
Francisco city officials to eliminate jail phone call fees and commissary merchandise
markups); JennaCarlesso, Bill That Would MakePrisonPhoneCalls FreeAdvances, CT.
M IR R O R (Apr. 9, 2019), https://ctmirror.org/2019/04/09/bill -
that-would-make-prison-phone-calls-free-advances/(discussingstatelegislativeproposal
to eliminate telephone charges in Connecticut prisons).
71 Walton, 921 N.E.2d at 155-57.
72 Id. at 148.
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73
collect calls to the commissions the state received from call charges. At the time the
telephone companies providing the services charged a flat rate of $0.85 for local calls,
74 The court held that the commission did not violate state
of which the State took 20%.
law on any of the grounds raised, upheld dismissal of the plaintiffs' claims, and left the
rates intact.75
DOC asserts that Securus's "local call charges are presently [$0.07] per
minute, with a cap of $1" per call. Larson and Ebli counter that Securus charges $1 "plus
taxes and fees" per call. Neither side presented any evidence to support their position,
so there is none to demonstrate which claim, if either, accurately reflects the current rate
structure or the amount that inmates, or their family and friends, are charged per call.
We are therefore unable to evaluate the accuracy of these assertions.76
We recognize that both sides' asserted rates are similar to those approved
by the New York and Maryland courts.77 But that does not mean that the rates are
likewise "just and reasonable." Even if DOC's purported rate of $0.07 per minute is
accurate, our analysis of what is reasonable in Alaska must take into account our state's
unique geography, economy, and statewide correctional system. Larson and Ebli argue
that many prisoners' families "are so poor that they cannot afford to pay a toll for a local
73 Benson, 887 A.2d at 528-31.
74 Id. at 528-29.
75 Id. at 539, 543, 546-47.
76 We again note, however, that when Securus petitioned for a rate increase,
it sought to impose a "$1.00 flat rate charge for a local call" of any duration.
Application, see supra n. 23.
77 See Walton v. N.Y. State Dep't of Corr. Servs., 921 N.E.2d 145, 157 (N.Y.
2009); Benson, 887 A.2d at 528-29, 549.
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----------------------- Page 24-----------------------
telephone call." The sums paid for local calls with incarcerated family members by the
individuals who provided affidavits were $480, $1,440, and $2,300 between October
2015 and March or April 2017. While these amounts were in fact paid, they appear to
present substantial financial burdens for the families. But the record contains no
evidence on this point except the affidavits.
And the superior court made no factual findings on whether call rates
impose unreasonable burdens on inmates and their families. The court determined only
that "[r]easonable access [under AS 33.30.231(a)] is not the same as the right to free
phone calls." In reaching this conclusion the superior court appears to have construed
Larson and Ebli's argument too narrowly. In claiming that current rates are
78
unreasonable, they do not assert that the only reasonable alternative is free local calls.
In fact, the inmates point to the Cleary Final Settlement Agreement's maximum of $0.50
per call as support for their argument that $1 is not permissible. But the superior court
did not consider whether a reasonable rate could be greater than zero but lower than the
current $1 - with or without added taxes and fees. Without additional evidence and
more detailed findings, we have no way to meaningfully review the superior court's
decision about the inmates' statutory right to reasonable telephone access.
78 They suggest that free local calls should be available for indigent inmates
who cannot afford the charges, but do not assert that AS 33.30.231(a) requires DOC to
provide completely free calls to all inmates.
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2. Entitlement to restitution for failure to provide reasonable
79
access
Larson and Ebli argue thattherecipients oflocal telephone calls are entitled
to restitution for DOC's violation of Title V, § (C)(2)(a) of the Cleary Final Settlement
Agreement. In their reply to DOC's opposition to their motion to enforce in the superior
court the inmates provided some detail to their argument. The reply devoted several
pages to a discussion of applying the usual principles of contract interpretation to the
80
Cleary Final Settlement Agreement, quoted the Restatement sections that they cite
before us, and concluded that the families are intended beneficiaries who are therefore
entitled to restitution.
But in this appeal the inmates' argument is contained in a single paragraph:
DOC breached [the Cleary Final Settlement Agreement]
when they formed a third-party contract with Securus for
providing telephone services and allowed Securus to obtain
a toll for local telephone calls. The Restatement (Second) of
Contracts [§]372 provide[s] that in instances of breach the
injured party may elect restitution to recover money as an
alternative to expectation of damages. Here, due to the
constraints on the ability to obtain money damages for
DOC's breach, it is appropriate to direct the payment of
restitution to the Appellants' families.
79 The inmates label their request as one for "restitution" rather than
compensatory damages. Because they are representing themselves we accord them a
liberal construction of their claims and pleadings. Patterson v. Walker, 429 P.3d 829,
831 (Alaska 2018) (quoting Barber v. Schmidt , 354 P.3d 158, 162 (Alaska 2015)).
80 Final Settlement Agreement and Order, Cleary v. Smith, No. 3AN-81-
05274 CI (Alaska Super., Sept. 21, 1990).
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We regularly accord self-represented inmates liberal construction of their
81
pleadings.
But even self-represented litigants must provide more than a cursory
82 Because the inmates' entire argument that their
statement to be considered on appeal.
83 is made in a portion of a single
families should receive compensatory damages
paragraph in their brief, they have not met this minimal requirement. Their argument
about restitution is therefore waived.84
3. Right to rehabilitation under the Alaska Constitution
Article I, section 12 of the Alaska Constitution provides that "[c]riminal
administration shall be based upon," among other interests, "the principle of
reformation."85
We have held that this provision confers on prisoners a constitutionally
protected right to rehabilitation that must be made "a reality and not simply something
81 Larson v. State, Dep't of Corrections , 284 P.3d 1, 8 (Alaska 2012) ("The
pleadings of pro se litigants are 'held to less stringent standards than those of lawyers.' ")
(quoting Capolicchio v. Levy , 194 P.3d 373, 378 (Alaska 2008)).
82 Petersen v. Mutual Life Ins. Co. of New York, 803 P.2d 406, 410 (Alaska
1990) ("Where a point is not given more than a cursory statement in the argument
portion of a brief, the point will not be considered on appeal.").
83 See Patterson, 429 P.3d at 162.
84 Even if it may be "appropriate to direct the payment of restitution" to the
inmates' families, the families and not the inmates would have to seek that remedy. We
express no opinion about their entitlement to such a remedy, but we note that in Perotti
v Corr. Corp. of Am., we observed that Cleary's enforcement provision "contains no
mention of the payment of compensatory or nominal monetary damages for violations."
290 P.3d 403, 409 (Alaska 2012) The inmates appear to acknowledge this uncertainty
when they point out the "constraint on the ability to obtain money damages for DOC's
breach."
85 Alaska Const. art. I, 12.
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----------------------- Page 27-----------------------
86 87
to which lip service is being paid." This right is fundamental.
In Brandon v. State, Department of Corrections we determined that
88
We
visitation privileges are "a component of the constitutional right to rehabilitation."
recognized that visitation is "indispensable" and "critically important" to rehabilitation
because it helps prisoners maintain ties to their families and the outside world, facilitates
their re-entry into society after they have served their sentences, and reduces
recidivism.89 Telephone contact with loved ones, particularly in a state as vast as Alaska,
is a crucial component of visitation. The right to rehabilitation must therefore encompass
telephone access for inmates. Its importance is magnified for inmates whose families
may find travel to the correctional facility for in-person visitation prohibitively
expensive.
But again the record does not contain enough evidence for us to determine
whether currentlocal call rates unconstitutionally burden inmates' right to rehabilitation.
DOC asserts that even if some inmates and call recipients might find the cost of local
calls to be high, it mitigates the problem by "allow[ing] a certain amount of free phone
calls to indigent prisoners." But neither the record nor DOC's current telephone access
policy offers any indication of how inmates may qualify for or make free phone calls.90
86 Abraham v. State, 585 P.2d 526, 533 (Alaska 1978).
87 Brandon v. State, Dep't of. Corr., 938 P.2d 1029, 1032 (Alaska 1997).
88 Id. at 1032 n.2.
89 Id. (first quoting 2 MICHAEL MUSHLIN, RIGHTS OF PRISONERS § 12.00 (2d
ed. 1993); then quoting Kentucky Dep't of Corr. v. Thompson, 490 U.S. 454, 468 (1989)
(Marshall, J., dissenting)).
90
See STATE OF ALASKA, DEP 'T OF CORR., POLICIES & PROCEDURES 810.01
(2018), http://www.correct.state.ak.us/pnp/pdf/810.01.pdf.
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----------------------- Page 28-----------------------
As a result we cannot evaluate whether existing policies, even if they allow indigent
inmates to make free local calls, adequately protect inmates' right to rehabilitation.
We therefore reverse the superior court's denial of Larson and Ebli's
motion to enforce. We remand this case for the superior court to determine whether
Securus's current rates for local telephone calls violate inmates' statutory and
constitutional rights to reasonable telephone access and rehabilitation. In making its
determination the court should take into account Alaska's unique geography and
economy, as well as its statewide administration of correctional facilities.
B. The Superior Court Did Not Err By Holding That DOC Had Not
Violated Any State Or Federal Rights By Rejecting The Computer
Programming Book.
Antenor argues that DOC has violated his rights by imposing a de facto
91
blanket prohibition on inmates ordering any computer-related educational literature.
He argues first that this content-based restriction violates his state constitutional right to
92 93
free speech. He also argues that it violates his state constitutional right to reformation
and DOC's related statutory obligation to establish programs designed to "create or
improve occupational skills," "enhance educational qualifications," and "otherwise
91 There is some evidence in the record to suggest that such an unwritten
policy may exist, at least at Goose Creek: Antenor was twice denied access to computer
programming books he ordered, once in 2014 and once in 2017. In both cases DOC
phrased its rationale for the denials in general terms, stating in its 2014 findings that
"[c]omputer programming [b]ooks constitute a threat to [the] safe and secure operation
of the [f]acility," and stating in 2017 that "program[m]ing books [are] not allow[ed] for
security reasons." DOC appears to acknowledge that it has a "restriction on computer
programming books" generally.
92 See Alaska Const. art. I, § 5.
93 See Alaska Const. art. I, § 12.
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----------------------- Page 29-----------------------
94
provide for the rehabilitation and reformation of prisoners."
DOC responds that the superior court correctly relied on United States
Supreme Court precedent holding that prison officials are entitled to broad deference on
95 DOC contends its refusal to allow Antenor to have
matters related to prison security.
the book violated no state or federal right. It argues that its restriction on computer
books was a reasonable exercise of the discretion recognized by the United States
Supreme Court and asserts that, because the restriction prevents inmates from learning
how to compromise the security of prison computer systems, its decision is entitled to
broad deference. DOC argues further that Antenor's right to rehabilitation was not
infringed because he was permitted to enroll in electronics and computer classes at
Goose Creek even though he was denied the book he ordered.
1. Free speech provision of the Alaska Constitution
Article I, section 5 of the Alaska Constitution provides that "[e]very person
may freely speak, write, and publish on all subjects, being responsible for the abuse of
that right." The United States Supreme Court has recognized that those who publish
reading material have a legitimate speech interest in being able to send the material to
those who purchase it, including inmates.96 Inmates also have a legitimate interest in
being able to communicate with the outside world.97
DOC's regulations provide that an
94 AS 33.30.011(a)(3)(C), (D), (F).
95 See Bell v. Wolfish, 441 U.S. 520, 547-48 (1979).
96 Thornburgh v. Abbott , 490 U.S. 401, 408 (1989) ("Publishers who wish to
communicate with those who, through subscription, willingly seek their point of view
have a legitimate First Amendment interest in access to prisoners.").
97 See Procunier v. Martinez, 416 U.S. 396, 417-19 (1974) (recognizing
prisoners' free speech and liberty interests in sending letters to correspondents outside
(continued...)
-29- 7442
----------------------- Page 30-----------------------
inmate may purchase books or other reading material "subject to inspection for
contraband" unless the material is obscene or could "reasonably be expected to (1) aid
an escape; (2) incite or encourage any form of violence or other criminal activity; or
(3) have an adverse impact on the rehabilitation of the prisoner possessing the material
98 DOC's policy implementing the regulation
or other prisoners who have access to it."
at the time Antenor ordered the Arduino book required Goose Creek's superintendent
to "designatestaff to review all incoming publications addressed toprisoners";staffwere
directed to reject publications containing "material that could reasonably be expected to
aid in escape [or] incite violence, theft, or destruction of property."99
Antenor argues that we should subject any policy that restricts inmates'
access to "whole blocks of educational publications" to strict scrutiny and invalidate the
policy unless it is "grounded in a compelling and factually supported basis." DOC
instead suggests we should apply the test set forth by the United States Supreme Court
in Turner v. Safley, under which a regulation that "impinges on inmates' constitutional
97 (...continued)
prison), overruled in part on other grounds by Thornburgh v. Abbot, 490, 413-14 U.S.
(1989); see also Lewis v. Casey, 518 U.S. 343, 404-05 (1996) (Stevens, J., dissenting)
(stating that "the residuum of liberty retained by prisoners" under federal constitutional
free speech provision includes "freedomto communicate with the outside world," which
may be "regulated and constrained" but not "obliterated" (citing Thornburgh, 490 U.S.
at 411-12)).
98 22 AAC 05.510(b).
99
Former STATE OF ALASKA, D EP 'T OF CORR., P OLICIES & P ROCEDURES
810.03§VII(H)(2)-(3)(2013),https://www.law.umich.edu/special/policyclearinghouse/
Documents/Alaska%20-%20810.03.pdf; see STATE OF ALASKA, DEP 'T OF CORR.,
OLICIES & PROCEDURES 810.03 § VIII(C)(1) (2018), http://www.correct.state.ak.us/
P
pnp/pdf/810.03.pdf.
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----------------------- Page 31-----------------------
100
rights . . . is valid if it is reasonably related to legitimate penological interests." Two
years after deciding Turner the Supreme Court applied the test to federal regulations
authorizing prison officials to reject publications that were "detrimental to institutional
101 DOC argues that we should do the same because restricting computer
security."
programming books is a reasonable way to "prevent[] prisoners from learning how to
hack into the prison computers," thus threatening prison security.
Antenor limits his free speech argument to the Alaska Constitution,
however, and urges us to adopt a standard "that expands our protections beyond what the
federal constitution requires." We have not yet had occasion to determine what level of
scrutiny applies to state constitutional free speech claims by prisoners. While we are not
102
bound by the Supreme Court's interpretation of federal free speech protections, we
have also declined to apply "an inflexible strict-scrutiny analysis" to other types of
constitutional claims by prisoners, because doing so would "seriously hamper [prison
officials'] ability to anticipate security problems and to adopt innovative solutions."103
And in some contexts, such as prisoners' right to access the court system, we have
100 482 U.S. 78, 89 (1987).
101
Thornburgh, 490 U.S. at 403-04.
102
See McGinnis v. Stevens, 543 P.2d 1221, 1227 (Alaska 1975) ("[W]e are
not bound by the Supreme Court's interpretation of federal constitutional provisions
when interpreting parallel provisions of the Alaska Constitution."); see also Larson v.
Cooper, 90 P.3d 125, 131-32 (Alaska 2004) (evaluating prisoner's free exercise claim
not under Turner test but under two-part inquiry in which, once prisoner establishes that
conduct at issue is religiously based and his or her belief is sincere, courts must weigh
competinggovernmentinterestand determinewhether anycompellingstateinterest "will
suffer if an exemptionis granted to accommodate the religious practice in issue" (quoting
Frank v. State, 604 P.2d 1068, 1073 (Alaska 1979))).
103 Larson, 90 P.3d at 132 (quoting Mathis v. Sauser, 942 P.2d 1117, 1121 n.7
(Alaska 1997)).
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----------------------- Page 32-----------------------
closely followed Turner, stating that a prison policy that "incidentally restrict[s] court
access" may nevertheless be valid so long as it "is grounded in a legitimate penological
objective" and bears "a reasonable relationship [to] the policy goal" it is meant to
achieve.104
In this case we conclude that the Turner approach is appropriate for
evaluating free speech claims by prisoners who challenge restrictions on incoming
publications. Turner set forth four factors relevant to evaluating the reasonableness of
a prison policy.105 The first requires "a 'valid, rational connection' between the prison
regulation and the legitimate governmental interest put forward to justify it."106 Second,
courts must consider the existence of "alternative means of exercising the right that
remain open to prison inmates."107 Third, courts must assess "the impact
accommodation of the asserted constitutional right will have on guards and other
inmates."108 And fourth, "the absence of ready alternatives is evidence of the
reasonableness of a prison regulation," while the existence of such alternatives can
104 Mathis, 942 P.2d at 1121. That case involved a DOC policy prohibiting
prisoners from possessing computer equipment and printers in their cells; we held that
a genuine issue of material fact existed as to whether the policy was intended to impede
prisoners' access to the courts, rather than merely incidentally burdening it in service of
a legitimate penological interest. Id. at 1123.
105 Larson, 90 P.3d at 129 (quoting Turner v. Safley, 482 U.S. 78, 89 (1987)).
106 Turner, 482 U.S. at 89 (quoting Block v. Rutherford, 468 U.S. 576, 586
(1984)).
107 Id. at 90.
108 Id.
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109
indicate that the regulation is "an 'exaggerated response' to prison concerns."
DOC's asserted interest in maintaining the security of its computer systems
is clearly legitimate; Antenor does not contest this, asserting instead that any relation
between this interest and the restriction on programming books is "vague" and lacks a
"factually supported basis." The challenged restriction need only have a rational
connection to the asserted interest, and it does: restricting access to books from which
inmates could potentially learn enough to compromise DOC's computer systems and
110
electronic records protects the security of the computer system.
The second Turner factor looks for alternative means for inmates to
exercise the right at issue. The right to receive and read publications is implicated in this
111
case. Antenor's right to receive and read publications, however, is not denied per se.
Rather, DOC's regulations provide that an inmate may purchase books or other reading
materials, provided that the material is not obscene or could "reasonably be expected"
109 Id.
110
We take note, however, of Antenor's assertion at oral argument that the
Arduino book was "relatively similar" to "two books [he] recently obtained from the
institution library," both of which also allegedly taught programming in a similar
computer language. The record contains no evidence of these other books, or indeed any
evidence that books similar to the Arduino book are already available to inmates, so we
cannot evaluate this claim. But we note that if DOC does in fact allow inmates access
to similar programming books, this would tend to show that a policy prohibiting inmates
from ordering such books bears no rational relation to any security interest. In that case
DOC would have to make a more particularized showing that the content of a specific
book posed a threat before it could deny inmates access to that book.
111
See Keys v. Torres, 737 F. App'x 717, 720 (5th Cir. 2018) (citing
Thornburgh v. Abbot, 490 U.S. 401, 417-18 (1989) (The Fifth Circuit Court of Appeals
has recognized a right to "send, receive, and read publications.").
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112
to threaten the security of the facility. Additionally, Antenor acknowledges that
Goose Creek permits inmates to participate in electronics and computer education
classes, allowing him to obtain information, training, and education in these subjects.
The existence of these alternative avenues for inmates to exercise the right to receive and
read publications weighs in favor of giving deference to DOC's decision to prohibit
inmates from ordering programming books that could pose a risk to prison security. 113
Third, the most obvious potential impact on DOC staff and other inmates
of allowing inmates to have books about programming computers is that the inmates
might learn the skills necessary to hack or introduce malware into DOC's computer
systems. We note, however, that not every computer- or programming-related text
necessarily deals specifically with computer security or would be likely to provide such
information to prisoners. The record does not provide us with information about factors
that might distinguish books that pose a risk from those that do not, and we decline to
speculate. Accordingly, we give this factor limited weight.
Fourth, neither Antenor nor DOC has proposed alternatives to a general
restriction on programming books. It may be that DOC could examine the content and
topics covered in each individual programming book more closely to determine whether
it threatens prison security, but the record offers us no basis on which to conclude
whether such an approach would be feasible enough to constitute a "ready alternative,"
or whether it would place unrealistic demands on DOC in terms of expertise, time, and
112
AS 33.30.11(a)(3)(C), (D), (F).
113 See Turner v. Safley , 482 U.S. 78, 90 (1987) ("Where 'other avenues'
remain available for the exercise of the asserted right, courts should be particularly
conscious of the 'measure of judicial deference owed to corrections officials . . . in
gauging the validity of the regulation.' " (alteration in original) (internal citations
omitted) (first quoting Jones v. N. C. Prisoners' Union, 433 U.S. 119, 131 (1977); then
quoting Pell v. Procunier, 417 U.S. 817, 827 (1974))).
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logistics. Again, therefore, we accord this factor limited weight.
Based on our consideration ofthe Turner factors, we conclude that denying
Antenor access to the Arduino book based on security reasons did not violate the Alaska
Constitution's free speech provision.
2. Right to reformation provision of the Alaska Constitution
Antenor argues that DOC's restriction on programming-related books
denies him self-study and education opportunities and thus violates his right to
114
reformation and rehabilitation under article I, section 12 of the Alaska Constitution.
He suggests that because computers are a "major part of society" and programming
knowledge is "a necessary component" of computer skills, inmates are entitled to
educational materials on these topics. He also points to AS 33.30.011, which provides
that the DOC commissioner must establish programs designed to "create or improve
occupational skills," "enhance educational qualifications," and "otherwise provide for
115
the rehabilitation and reformation of prisoners."
He argues that DOC regulations thus
include a duty to provide inmates access to "[p]ost-secondary education opportunities
116
consisting of courses of correspondence study."
When a facility lacks the resources
to provide such programs directly, he asserts, DOC cannot prevent a prisoner from
engaging in self-study by ordering relevant books.
But Antenor himself admits that he had access to some electronics and
computer education at Goose Creek: he attempted to purchase the Arduino book after
114
Alaska Const. art. I, § 12; see Abraham v. State , 585 P.2d 526, 533 (Alaska
1978) (holding that inmate had protected right to rehabilitation, including rehabilitative
treatment, under article I, section 12 of Alaska Constitution).
115
See supra n.112.
116 Thecourt madenofactual findingsregardingwhether DOCor GooseCreek
did in fact impose a blanket ban on computer-related books.
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completing a DOC electronics class that included the study of microcontrollers. He
further admits that it was through "collateral self-study books" on electronics that he
"was introduced to the Arduino platform." He therefore clearly had access to at least
some material that served the rehabilitation interests he identifies and provided the type
of educational opportunities contemplated by AS 33.30.011(a)(3). Denying him access
to one specific book did not violate his Alaska constitutional right to reformation.
The superior court appeared to conclude that even if Goose Creek had
imposed a blanket ban on computer related books, it would be justified by security
117 Similarly, even if there is in fact a ban on obtaining computer-related books
concerns.
from outside the facility, Antenor was not denied access to related materials within
Goose Creek. He acknowledges that he participated in at least one electronics and
robotics class aimed at providing the type of rehabilitation contemplated in
AS 33.30.011(a)(3). DOC has some discretion over the rehabilitative programs it makes
available to prisoners; we have held, for instance, that transferring a prisoner from one
prison employment position to another did not violate the prisoner's right to
rehabilitation.118 In that case we emphasized that the prisoner "was not denied all
rehabilitative opportunities," merely transferred between positions.119
Antenor likewise
has not been denied all rehabilitative opportunities, or even all rehabilitative
opportunities in his area of interest. Denying him access to a specific book, therefore,
does not violate his constitutional right to reformation.
117 Thecourt madenofactual findings regarding whether DOCor GooseCreek
did in fact impose a blanket ban on computer-related books.
118 Hays v. State, 830 P.2d 783, 785 (Alaska 1992).
119 Id.
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V. CONCLUSION
Because the record does not provide enough evidence for us to
meaningfully determine the reasonableness of the rates charged inmates for local
telephone calls, we REVERSE the denial of Larson and Ebli's motion to enforce and
REMAND for further proceedings consistent with this opinion. Because we conclude
that Goose Creek's restrictions on programming-related books are rationally related to
a legitimate interest, and because they do not infringe on the right to rehabilitation, we
AFFIRM the denial of Antenor's motion to enforce his claimed right to a particular text
about computer programming.
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