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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 18, 2002 Decided February 11, 2003
No. 01-5387
BRETT C. KIMBERLIN AND DARRELL RICE,
APPELLANTS
v.
U.S. DEPARTMENT OF JUSTICE AND BUREAU OF PRISONS,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 97cv02633)
Arthur B. Spitzer argued the cause for the appellants.
Robin M. Earnest, Assistant United States Attorney, ar-
gued the cause for the appellees. Roscoe C. Howard, Jr.,
United States Attorney, and R. Craig Lawrence, Assistant
United States Attorney, were on brief.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
Before: SENTELLE, HENDERSON and TATEL, Circuit Judges.
Opinion for the court filed Per Curiam.
Concurring opinion filed by Circuit Judge HENDERSON.
Separate opinion concurring in part and dissenting in part
filed by Circuit Judge TATEL.
PER CURIAM: The appellants, Brett C. Kimberlin and Dar-
rell Rice are, respectively, a former inmate and a current
inmate of the Federal Correctional Institution in Cumberland,
Maryland (Cumberland).1 Kimberlin and Rice appeal an
order of the district court dismissing in part their challenge
to Bureau of Prisons (BOP) regulations that prohibit federal
inmates from possessing electric or electronic musical instru-
ments (other than for religious purposes). See Kimberlin v.
Dep’t of Justice, 150 F. Supp. 2d 36 (D.D.C. 2001). The
appellants contend the regulations both exceed the BOP’s
statutory authority, in violation of the Administrative Proce-
dure Act (APA), and infringe their rights under the First
Amendment to the United States Constitution to freedom of
(musical) expression. We conclude the district court correct-
ly rejected each contention.
On July 26, 1995 a then congressman from New Jersey
introduced a budget rider (Zimmer Amendment) to prohibit
the use of appropriated funds to provide for several enumer-
ated ‘‘amenities or personal comforts in the federal prison
system,’’ including ‘‘the use or possession of any electric or
electronic musical instrument.’’ 147 Cong. Rec. H7751,
H7768 (July 1995) (statement of Rep. Zimmer)
On November 15, 1995 the BOP issued a memorandum
‘‘providing guidance to wardens on how provisions of the
Zimmer Amendment will be implemented in all [BOP] institu-
tions.’’ JA 50. The memorandum expressly noted that, while
‘‘[p]rovisions of the Zimmer Amendment relate only to the
use of appropriated funds,’’ given the BOP’s ‘‘understanding
of the intent,’’ ‘‘the guidance provided [in the memorandum]
1 Kimberlin was released from Cumberland in 2001. See Appel-
lees’ Br. at 10 n.4.
3
TTT may vary slightly from a literal reading of the amend-
ment.’’ Id. With regard to electric and electronic musical
instruments, the memorandum provides:
Use or Possession of any Electric or Electronic Musical
Instrument:
This section prohibits the use of funds for inmates’ use or
possession of electric or electronic musical instruments.
1. Institutions which currently have electric or elec-
tronic instruments may retain these instruments. No
appropriated funds will be used to purchase new or to
repair existing equipment.
2. New institutions will not purchase electric or elec-
tronic instruments.
3. Trust Fund profits or inmate organization funds
will not be used to purchase or repair electric or
electronic equipment. Donations of these types of
instruments will not be accepted.
4. The only authorized exception is electric or elec-
tronic equipment which is used in conjunction with
religious activities, stored in the chapel area and is
under the supervision of the Religious Services De-
partment. Appropriated funds may be used to pur-
chase or maintain such equipment in all BOP facilities.
JA 54–55.
On December 28, 1995 the BOP issued an ‘‘Institution
Supplement’’ for Cumberland (No. CUM 5370.08),2 which
directed that ‘‘[t]he only musical instrument an inmate may
possess is a harmonica,’’ with the proviso that ‘‘[i]nmates with
authorized possession of a guitar or keyboard at the time this
supplement is issued may retain possession of the instrument
while at this institution.’’ The document also recited that
‘‘the institution will provide a limited number of musical
2 ‘‘Institution Supplement’’ is ‘‘a label that apparently is attached
to regulations issued by a particular prison pursuant to nationwide
Bureau of Prisons regulations.’’ American Fed. of Gov’t Employ-
ees, Local 2441 v. Fed. Labor Relations Auth., 864 F.2d 178, 183 n.4
(D.C. Cir. 1988).
4
instruments for the music program.’’ No. CUM 5370.08 at 3–
4.
On April 26, 1996 the Congress enacted the Zimmer
Amendment as section 611 of the Omnibus Budget Act of
Fiscal Year 1997, Pub. L. No. 104–208, 110 Stat. 3009, § 611.
The enacted language, identical to that initially proposed by
Representative Zimmer, was as follows:
None of the funds made available in this Act shall be
used to provide the following amenities or personal com-
forts in the Federal prison system—
(1) in-cell television viewing except for prisoners who are
segregated from the general prison population for their
own safety;
(2) the viewing of R, X, and NC–17 rated movies,
through whatever medium presented;
(3) any instruction (live or through broadcasts) or train-
ing equipment for boxing, wrestling, judo, karate, or
other martial art, or any bodybuilding or weightlifting
equipment of any sort;
(4) possession of in-cell coffee pots, hot plates, or heating
elements; or
(5) the use or possession of any electric or electronic
musical instrument.
The Zimmer Amendment has since been regularly incorporat-
ed into appropriations acts in identical form. See Pub. L.
No. 107–77, 115 Stat. 748 (fiscal year 2002); Pub. L. No. 106–
113, 113 Stat. 1501, § 611 (fiscal year 2000); Pub. L. No. 105–
277, 112 Stat. 2681, § 611 (fiscal year 1999); Pub. L. No. 104–
134, 110 Stat. 1321, § 611 (fiscal year 1998).
On December 28, 1996 the BOP issued another ‘‘Institution
Supplement’’ (No. CUM 5370.08A) setting out the same re-
strictions on musical instruments as No. CUM 5370.08 except
that the grandfather proviso was revised to prohibit retention
of previously authorized guitars or keyboards as of November
1, 1997. No. CUM 5370.808A at 3–4 .
5
Appellant Kimberlin filed an initial complaint in this action
on November 7, 1997. The amended complaint, filed on
behalf of both appellants on May 17, 2001, alleged that the
BOP musical instrument regulations violate the APA and
infringe the appellants’ First Amendment rights to express
themselves musically (specifically by playing electric guitars)
and, insofar as they make an exception for use of electric/elec-
tronic musical instruments in conjunction with religious activi-
ty, their Fifth Amendment rights to equal protection.
In a memorandum opinion and order dated May 22, 2001
the district court granted the BOP’s motion to dismiss the
complaint’s APA and First Amendment claims and granted
summary judgment in favor of Kimberlin and Rice on the
Equal Protection claim. Kimberlin and Rice appeal the
dismissal.3
II.
‘‘ ‘On appeal, we review the dismissal of the plaintiffs’TTTT
complaint de novo, Moore v. Valder, 65 F.3d 189, 196 (D.C.
Cir. 1995), and ‘‘accept all of the factual allegations in [the]
complaint as true,’’ ’ United States v. Gaubert, 499 U.S. 315,
327, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991) (quoting Berkovitz
v. United States, 486 U.S. 531, 540, 108 S.Ct. 1954, 100
L.Ed.2d 531 (1988)).’’ Sloan v. HUD, 236 F.3d 756, 759 (D.C.
Cir. 2001) (alteration original). Applying this standard, we
conclude the district court’s dismissal should be affirmed.
The appellants first contend the challenged regulations
exceed the BOP’s statutory authority, and therefore violate
the APA, because the Zimmer Amendment prohibits only
expenditure of public funds on electric and electronic instru-
ments, not their mere possession by inmates. In reviewing
the BOP’s interpretation of the Zimmer Amendment, we use
the familiar Chevron analysis:
If TTT ‘‘ ‘Congress has directly spoken to the precise
question at issue,’ ’’ we ‘‘must give effect to Congress’s
3 The BOP’s cross appeal of the summary judgment was volun-
tarily dismissed by an order filed July 2, 2002.
6
‘unambiguously expressed intent.’ ’’ Secretary of Labor
v. [Fed. Mine Safety & Health Review Comm’n], 111
F.3d 913, 917 (D.C. Cir. 1997) (quoting Chevron USA,
Inc. v. Natural Resources Defense Council, Inc., 467
U.S. 837, 842–43, 104 S.Ct. 2778, 2781, 81 L.Ed.2d 694
(1984)). ‘‘If ‘the statute is silent or ambiguous with
respect to the specific issue,’ we ask whether the agen-
cy’s position rests on a ‘permissible construction of the
statute.’ ’’ Id. (quoting Chevron, 467 U.S. at 843, 104
S.Ct. 2778, 2782, 81 L.Ed.2d 694).
National Multi Housing Council v. EPA, 292 F.3d 232, 234
(D.C. Cir. 2002) (quoting Cyprus Emerald Resources Corp. v.
Fed. Mine Safety & Health Review Comm’n, 195 F.3d 42, 45
(D.C. Cir.1999)). We conclude the BOP’s absolute ban on
electric and electronic musical instruments reflects, at a
minimum, a reasonable interpretation of the Zimmer Amend-
ment under Chevron.
As the BOP points out, Appellees’ Br. at 15–16, the express
language of the Zimmer Amendment supports its interpreta-
tion because the ban on using appropriated funds for ‘‘the use
or possession’’ of electric and electronic instruments may
reasonably be construed to prohibit paying for costs inciden-
tal to such use or possession, notably, those incurred for
storage, supervision and electricity. Cf. Envtl. Def. Ctr. v.
Babbitt, 73 F.3d 867, 871–72 (9th Cir. 1995) (holding ‘‘use of
any government resources—whether salaries, employees, pa-
per, or buildings—to accomplish a final listing [of a species as
endangered] would entail government expenditure’’ and
therefore would run afoul of statutory moratorium on spend-
ing for such purpose). Further, the blanket ban on electric
and electronic instruments is consistent with the rationale
underlying the amendment, as announced by its sponsor, that
‘‘[p]risons should be places of detention and punishment’’ and
that ‘‘prison perks undermine the concept of jails as deter-
rence.’’ 147 Cong. Rec. at H7768; see Nat’l Sec. Archive v.
United States Dep’t of Def., 880 F.2d 1381, 1384–85 (D.C. Cir.
1989) (absent other legislative history, ‘‘we must look to the
statements of the sponsors of the bill as ‘the only authorita-
tive indications of congressional intent’ ’’) (quoting North Ha-
7
ven Bd. of Educ. v. Bell, 456 U.S. 512, 527 (1982)). Nor is the
ban on electric and electronic instruments arbitrary or capri-
cious, as the appellants contend, merely because it deviates
from past policy. The BOP implemented the new policy as a
consequence of the Zimmer Amendment’s enactment based
on the Congress’s rational determination that electric and
electronic instruments are ‘‘perks’’ that make prison life less
rigorous and therefore undermine its deterrence.4
We also reject the appellants’ First Amendment challenge,
but do so on grounds different from the district court’s. See
Jenkins v. Wash. Convention Ctr., 236 F.3d 6, 8 n.3 (D.C. Cir.
2001) (‘‘The court may affirm the district court on grounds
different from those relied upon by the district court.’’)
(citations omitted). First, we conclude that the BOP’s deci-
sion to prohibit all use and possession of electric and electron-
ic instruments does not implicate the appellants’ First
Amendment rights and that we therefore need not invoke the
four factor analysis the United States Supreme Court estab-
lished in Turner v. Safley, 482 U.S. 78, 89 (1987). As we
noted above, the aim of the Zimmer Amendment, as shown by
both its text and the legislative history, is to prevent expendi-
ture of public funds to provide inmates with ‘‘perks,’’ includ-
ing ‘‘the use or possession of any electric or electronic musical
instrument,’’ and the BOP has articulated this rationale to
support its ban on all electric and electronic musical instru-
ments. See supra p. 6. As the appellants acknowledge,
‘‘Congress is not required to fund the exercise of First
Amendment rights.’’ Appellants’ Br. at 11. The Supreme
Court has squarely ‘‘reject[ed] the ‘notion that First Amend-
ment rights are somehow not fully realized unless they are
subsidized by the State.’ ’’ Regan v. Taxation With Repre-
sentation of Wash., 461 U.S. 540, 546 (1983) (quoting Cam-
marano v. United States, 358 U.S. 498, 515 (1959) (Douglas,
4 We do not consider the appellants’ argument, raised belatedly in
their reply brief, that the regulations are arbitrary and capricious
insofar as they distinguish between electric or electronic instru-
ments and acoustic instruments. See Steel Joist Inst. v. OSHA, 287
F.3d 1165, 1166 (D.C. Cir. 2002) (argument raised for first time in
reply brief is waived).
8
J. concurring)). This is not a case where the government has
undertaken ‘‘to discriminate invidiously in its subsidies in
such a way as to ‘ ‘‘aim[ ] at the suppression of dangerous
ideas.’’ ’ ’’ Id. (quoting Cammarano, 358 U.S. at 513 (quoting
Speiser v. Randall, 357 U.S. 513, 519 (1958))). Rather, the
BOP has simply chosen not to subsidize inmates’ use or
possession of a class of instruments requiring the expenditure
of funds for electricity and care.
Even applying Safley, we conclude that the regulations
banning electric/electronic instruments do not impermissibly
infringe the appellants’ First Amendment rights.
Safley directs courts to uphold a regulation, even one
circumscribing constitutionally protected interests, so
long as it ‘‘is reasonably related to legitimate penological
interests.’’ We are to assess the overall reasonableness
of such restrictions with attention to four factors: first,
whether the restriction bears a ‘‘valid, rational connec-
tion’’ to the ‘‘legitimate governmental interest put for-
ward to justify it,’’ such that the ‘‘asserted goal is [not] so
remote as to render the policy arbitrary or irrational,’’
second, whether inmates retain alternative means of
exercising the circumscribed right, third, the costs that
accommodating the right imposes on other inmates,
guards, and prison resources generally, and fourth,
whether there are alternatives to the regulation that
‘‘fully accommodate[ ] the prisoner’s rights at de minimis
cost to valid penological interests.’’
Amatel v. Reno, 156 F.3d 192, 196 (D.C. Cir. 1998) (citing
Safley, 482 U.S. at 89) (alterations original). Balancing the
four Safley factors, we conclude that the challenged BOP
regulations should be upheld.
The first and most important factor favors the regulations
because the ban on electric musical instruments plainly bears
a reasonable relationship to the legitimate interest of conserv-
ing correctional department funds. Further, the ban is rea-
sonably related to the asserted goal—conserving correctional
funds. Common sense tells us, and the appellants do not
dispute, that a prisoner’s possession and use of an electric
9
guitar costs correctional institutions money for electricity,
upkeep, storage and supervision. See Amatel, 156 F.3d at
198 (noting that ‘‘scientific studies can have a corrective effect
by establishing an apparently implausible connection or refut-
ing an apparently obvious one, but, subject to such correc-
tions, conformity to commonsensical intuitive judgments is a
standard element of both reasonableness and rationality’’).
Thus, ‘‘[t]he logical connection between the regulation and the
asserted goal is [not] so remote as to render the policy
arbitrary or irrational.’’ Safley, 482 U.S. at 89–90.
The remaining Safley factors are largely encompassed by
the first, see Amatel, 156 F.3d at 196, and can be handily
disposed of here. The second factor asks whether the prison-
er has an alternative means of exercising the right at stake.
In answering this question the court does not view the right
‘‘in terms of the materials excluded by the ban,’’ as for
example, here, the right to possess and use electric or elec-
tronic instruments. Amatel, 156 F.3d at 200. Rather, ‘‘the
relevant right ‘must be viewed sensibly and expansively.’ ’’
Id. at 201 (quoting Thornburgh v. Abbott, 490 U.S. 401, 417
(1989)). In Thornburgh, where the challenged prison regula-
tion banned all ‘‘sexually explicit material which by its nature
or content poses a threat to the security, good order, or
discipline of the institution, or facilitates criminal activity,’’
Thornburgh, 490 U.S. at 405 n.5, the Supreme Court found
the second factor ‘‘clearly satisfied’’ because ‘‘the regulations
at issue [there] permit[ted] a broad range of publications to
be sent, received, and read,’’ id. at 418. The right asserted
here must similarly be broadly limned to include, at a mini-
mum, all forms of musical expression (rather than simply the
appellants’ preferred medium of the electric guitar) and un-
der the BOP regulations prisoners remain free to exercise
such a right through alternative outlets such as voice and
acoustic instruments. The third factor—whether accommo-
dating the right has an ‘‘adverse impact ‘on guards and other
inmates, and on the allocation of prison resources,’ ’’ Amatel,
156 F.3d at 200 (quoting Safley, 482 U.S. at 90)—‘‘seems in
part a restatement of the deferential balancing called for
under the first factor,’’ id, and here can be readily answered.
10
If, as we have concluded, the possession and use of elec-
tric/electronic instruments costs prisons money, then it neces-
sarily has an ‘‘adverse impact TTT on the allocation of prison
resources.’’ See id. (concluding that ‘‘if Congress may rea-
sonably conclude that pornography increases the risk of
prison rape, then the adverse impact [of accommodating the
alleged right to pornography] is substantial’’ because it ‘‘poses
a threat to the safety of guards and other inmates’’). The
fourth Safley factor—‘‘whether there are alternatives that can
accommodate that right ‘at de minimis costs to valid penolog-
ical interests,’ ’’ Amatel, 156 F.3d at 200 (quoting Safley, 482
U.S. at 91)—raises the only question here. While we know
that the regulations save the BOP money, we do not know
how much because we do not know the number of inmates
who would otherwise use the banned instruments or the exact
electrical and other costs that might be incurred. Neverthe-
less, given that the other factors all plainly favor upholding
the regulation and this last remains an unknown, we believe
the balance tips in favor of the appellees.
For the foregoing reasons, we conclude that the challenged
BOP regulations prohibiting prisoner possession or use of
electric and electronic musical instruments do not violate the
APA or the Constitution. Accordingly, the judgment of the
district court is
Affirmed.
1
KAREN LECRAFT HENDERSON, Circuit Judge, concurring:
I concur in the majority opinion but write separately
because I believe the district court’s decision can be affirmed
on the ground the district court articulated. Following Rep-
resentative Zimmer’s lead, the BOP initially identified the
penological interest underlying the ban as ‘‘to make prison
more of a place of deterrence and punishment.’’ Def’s. Opp’n
to Pls.’ Statement of Material Facts at 2. Punishment and
deterrence are not only legitimate penological interests, they
are among the fundamental goals of our penological system.
See Rhodes v. Chapman, 452 U.S. 337, 352 (1981) (identifying
‘‘goals of the penal function in the criminal justice system’’ as
‘‘to punish justly, to deter future crime, and to return impris-
oned persons to society with an improved change of being
useful, law-abiding citizens’’); Pell v. Procunier, 417 U.S. 817,
822 (1974) (‘‘An important function of the corrections system
is the deterrence of crime. The premise is that by confining
criminal offenders in a facility where they are isolated from
the rest of society, a condition that most people presumably
find undesirable, they and others will be deterred from
committing additional criminal offenses.’’).* Further, the ban
is reasonably related to the asserted goal—deterrence
through punishment. It may be true, as the district court
acknowledged, that ‘‘banning musical instruments, by itself,
may not actually deter anyone.’’ Kimberlin v. Dep’t of Jus-
tice, 150 F. Supp. 2d 36, 45 (D.D.C. 2001). Nevertheless, as a
matter of common sense, it is not irrational to believe that
banning a broad spectrum of ‘‘perks,’’ including electric and
electronic musical instruments as both the Zimmer Amend-
ment and the BOP regulations do, may, in the aggregate,
produce such an effect. See Safley, 482 U.S. at 89–90 (noting
that ‘‘a regulation cannot be sustained where the logical
connection between the regulation and the asserted goal is so
remote as to render the policy arbitrary or irrational’’);
Amatel, 156 F.3d at 198 (noting that ‘‘scientific studies can
* The appellants ‘‘do not argue here that the governmental
objective of punishment is not neutral, in the sense that it is
‘ ‘‘unrelated to the suppression of expression.’’ ’ ’’ Appellants’ Br.
at 22 n.4 (quoting Amatel 156 F.3d at 197 (quoting Thornburgh v.
Abbott, 490 U.S. 401, 415 (1989))).
2
have a corrective effect by establishing an apparently implau-
sible connection or refuting an apparently obvious one, but,
subject to such corrections, conformity to commonsensical
intuitive judgments is a standard element of both reasonable-
ness and rationality’’).
The other three Safley factors give little pause. Under the
BOP regulations prisoners are free to exercise their first
amendment rights through forms of musical expression other
than the electric guitar. Addressing the third factor, I
believe that if the Congress and the BOP reasonably conclud-
ed that affording prisoners perks will reduce the deterrent
effect of prisons, as a consequence the prison census will
presumably increase so that ‘‘the adverse impact is substan-
tial.’’ Cf. maj. op. at 10 (‘‘If, as we have concluded, the
possession and use of electric/electronic instruments costs
prisons money, then it necessarily has an ‘adverse impact TTT
on the allocation of prison resources.’ ’’) (quoting Amatel, 156
F.3d at 200). As for the fourth factor, the appellants have
not suggested an alternative that will accommodate their
rights but will not at the same time diminish the deterrent
effect of the BOP regulations.
1
TATEL, Circuit Judge, concurring in part and dissenting in
part: I agree that the BOP regulation prohibiting electric and
electronic instruments is a reasonable interpretation of the
Zimmer Amendment and therefore does not violate the Ad-
ministrative Procedure Act. I also have no doubt that the
government can constitutionally restrict the use and posses-
sion of electric guitars in federal prisons. If the government
had defended the electronic-music ban as reasonably neces-
sary to promote internal order, for example, or even to
promote a more efficient allocation of prison resources, then
the Zimmer Amendment would easily qualify as a constitu-
tional exercise of Congress’s authority to manage the federal
prisons. Or if the government had denied funds only for the
purchase of electric and electronic instruments, that too
would easily pass constitutional muster, since the government
has no obligation to subsidize the exercise of First Amend-
ment rights. The government, however, has done neither of
these things. This court nevertheless sustains the amend-
ment’s constitutionality on the basis of a broad—indeed limit-
less—legal principle under which prison officials may ban not
only the use and possession of electric guitars, but also the
exercise of virtually any other constitutional right that re-
quires electricity, guard supervision, or other prison re-
sources––including the sending and receiving of inmate mail,
and even the use and possession of books and magazines.
Because the court’s holding conflicts with binding Supreme
Court and circuit precedent, and because its alternative basis
for affirmance was neither argued nor even mentioned by the
BOP, I dissent.
I.
In Turner v. Safley, 482 U.S. 78 (1987), which governs
prisoners’ constitutional challenges, the Supreme Court
struck a balance between two competing principles. Safley
first recognizes that ‘‘[p]rison walls do not form a barrier
separating prison inmates from the protections of the Consti-
tution.’’ Id. at 84. In the case before us, the BOP con-
cedes—and this court agrees—that the Zimmer Amendment’s
electric-and electronic-music ban does restrict prisoners’ First
Amendment rights. Appellee’s Br. at 8; cf. Ward v. Rock
Against Racism, 491 U.S. 781 (1989) (employing First
2
Amendment scrutiny to analyze New York City’s sound-
amplification controls for a music concert). At the same time,
however, Safley recognizes the competing principle that
‘‘ ‘prison administrators TTT, and not the courts, [must] make
the difficult judgments concerning institutional operations,’ ’’
and that ‘‘[s]ubjecting the day-to-day judgments of prison
officials to an inflexible strict scrutiny analysis would serious-
ly hamper their ability to anticipate security problems and to
adopt innovative solutions to the intractable problems of
prison administration.’’ Safley, 482 U.S. at 89 (quoting Jones
v. North Carolina Prisoners’ Union, 433 U.S. 119, 128
(1977)). Safley therefore establishes a ‘‘unitary, deferential
standard for reviewing prisoners’ constitutional claims:
‘[W]hen a prison regulation impinges on inmates’ constitution-
al rights, the regulation is valid if it is reasonably related to
legitimate penological interests.’ ’’ Shaw v. Murphy, 532 U.S.
223, 229 (2001) (quoting Safley, 482 U.S. at 89). To evaluate
a prison regulation’s reasonableness, Safley directs courts to
consider four factors:
[F]irst, whether the restriction bears a ‘‘valid, rational
connection’’ to the ‘‘legitimate governmental interest put
forward to justify it,’’ such that the ‘‘asserted goal is [not]
so remote as to render the policy arbitrary or irrational’’;
second, whether inmates retain alternative means of
exercising the circumscribed right; third, the costs that
accommodating the right imposes on other inmates,
guards, and prison resources generally; and fourth,
whether there are alternatives to the regulation that
‘‘fully accommodate[ ] the prisoners’ rights at de minimis
cost to valid penological interests.’’
Amatel v. Reno, 156 F.3d 192, 196 (D.C. Cir. 1998) (quoting
Safley, 482 U.S. at 89–91) (citations omitted) (alterations in
original).
In sustaining the Zimmer Amendment’s constitutionality,
this court adopts a theory that effectively eviscerates Safley’s
premise that prisoners generally retain their constitutional
rights, as well as the decision’s carefully constructed four-part
test for evaluating the constitutionality of prison regulations
3
that restrict those rights. According to the court, because
‘‘the BOP has simply chosen not to subsidize inmates’ use or
possession of a class of instruments requiring the expenditure
of funds for electricity and care,’’ the BOP’s regulation ‘‘does
not implicate the appellants’ First Amendment rights,’’ and
the court ‘‘therefore need not invoke the four factor analysis
the United States Supreme Court established in Turner v.
Safley.’’ Maj. Op. at 7–8. I would have no problem with this
conclusion if the Zimmer Amendment were limited to denying
funds for purchasing electric guitars. But the amendment
also prohibits prisoners from using and possessing their own
guitars, and there is an important difference between a
regulation that denies funds to buy guitars and one that
denies funds for electricity or other infrastructural resources
necessary for the exercise of constitutional rights. All prison
activities depend on an infrastructure of basic resources, such
as electricity, guard supervision, and space, which the govern-
ment both necessarily pays for and controls. If the govern-
ment can ‘‘cho[ose] not to subsidize inmates’ use or possession
of a class of instruments requiring the expenditure of funds
for electricity and care,’’ Maj. Op. at 8, then the government
could just as easily choose not to ‘‘subsidize’’ inmates’ use or
possession of books, by withdrawing funds for electricity for
light to read by, or it could decide not to ‘‘subsidize’’ inmate
correspondence, by withdrawing funds for the distribution of
prison mail.
To be sure, the costs associated with these various activities
may differ, but as the court concedes, we have no evidentiary
record to tell us how the costs of allowing prisoners to use
and possess electric guitars compare with the costs of provid-
ing sufficient reading light or delivering prison mail. Maj.
Op. at 10. In any event, the court’s rationale for sustaining
the Zimmer Amendment makes no distinction between activi-
ties that require large expenditures and those that do not.
Indeed, by upholding the BOP’s ban on electric and electronic
instruments as a reasonable interpretation of the Zimmer
Amendment, which merely denies funding for the use or
possession of such instruments, the court itself recognizes the
proposition that an appropriations law denying funding for
certain activities generally amounts to a substantive ban on
4
those activities, regardless of the amount of funding involved.
Maj. Op. at 6; see Robertson v. Seattle Audubon Soc’y, 429
U.S. 429, 440 (1992) (‘‘Congress TTT may amend substantive
law in an appropriations statute, as long as it does so clear-
ly.’’); Envtl. Def. Ctr. v. Babbitt, 73 F.3d 867, 871–72 (9th Cir.
1995) (noting that the ‘‘use of any government resources––
whether salaries, employees, paper, or buildings—TTT en-
tail[s] government expenditure,’’ and that ‘‘[t]he government
cannot make expenditures, and therefore cannot act, other
than by appropriation’’) (emphasis added).
In the end, almost any restriction of prisoners’ constitution-
al rights can be recast as a ban on funding for those rights.
But as this court observed in Amatel, in prisons, ‘‘[w]here the
government absolutely monopolizes the means of speech or
controls a bottleneck, TTT a refusal to fund functions the same
as an outright ban.’’ 156 F.3d at 194 n.1. That the govern-
ment ‘‘monopolizes’’ certain ‘‘means of speech’’ in prisons is
what sets this case apart from Regan v. Taxation With
Representation, 461 U.S. 540 (1983). See Maj. Op. at 9. In
Regan, the Supreme Court upheld a restriction on lobbying
activities for tax-exempt charities on the ground that ‘‘a
legislature’s decision not to subsidize the exercise of a funda-
mental right does not infringe the right, and thus is not
subject to strict scrutiny.’’ Id. at 549. Describing the gov-
erning principle as ‘‘simple,’’ the Court explained that ‘‘ ‘al-
though government may not place obstacles in the path of a
[person’s] exercise of TTT freedom of [speech], it need not
remove those not of its own creation.’ ’’ Id. at 549–50 (quot-
ing Harris v. McRae, 448 U.S. 297, 316 (1980)). In other
words, when the government denies tax-exempt status to
organizations that engage in lobbying, those organizations
remain free to continue their lobbying activities—the First
Amendment expression in question. See Taxation With Rep-
resentation, 461 U.S. at 545. Similarly, when the government
denies tax deductions for lobbying activities, taxpayers re-
main free to engage in political advocacy, see Cammarano v.
United States, 358 U.S. 498 (1959), and when the government
denies public funding to candidates for public office, those
5
candidates remain free to seek election, see Buckley v. Valeo,
424 U.S. 1, 90–107 (1976) (per curiam).
Even in the prison context, if the government denies feder-
al funds for purchasing magazines, books, stationery, or even
electric guitars, it has ‘‘place[d] no governmental obstacle in
the path’’ of prisoners seeking to read, write, or play, since
they remain free to purchase those items on their own.
Harris v. McRae, 448 U.S. 297, 315 (1980). This is not so
when the government denies funds for prisoners’ use of
prison-controlled infrastructural resources to exercise consti-
tutional rights. Because prisons absolutely control the elec-
tricity supply and storage space, as well as other infrastruc-
tural resources, such as mail distribution systems, denying
federal funds for those resources is quite different from a
refusal to ‘‘subsidize’’ First Amendment rights. Prisoners
can neither generate their own electricity, nor construct their
own storage space, nor deliver their own mail. Denying
access to these resources therefore places an intractable
‘‘governmental obstacle in the path’’ of prisoners seeking to
exercise their rights.
If this court’s subsidy rationale were correct, the reasoning
of Amatel, Safley, and other like cases would have been quite
different. Amatel dealt with an appropriations rider that
barred the use of federal funds to distribute sexually explicit
materials in prisons. Observing that the prison distribution
system was a ‘‘bottleneck’’ under the government’s control,
and that there was no suggestion that prisoners might be able
to ‘‘obtain[ ] such material at their own expense’’ outside of
that distribution system, we treated the government’s refusal
to spend money on the distribution of such material as an
‘‘outright ban’’ on sexually explicit materials in prison. Ama-
tel, 156 F.3d at 194 n.1. But if Congress’s decision to
eliminate expenditures necessary for the exercise of First
Amendment rights implicates no First Amendment concerns,
as this court now holds, then we need not have spent pages
running through the Safley factors to determine whether the
ban on sexually explicit materials was reasonably related to
the government’s interest in rehabilitating prisoners; we
could have ended the opinion after the statement of facts.
The same is true for Safley, part of which sustained restric-
6
tions on inmate-to-inmate correspondence, and Thornburgh v.
Abbott, 490 U.S. 401 (1989), which sustained restrictions on
certain book and magazine subscriptions. Had the Govern-
ment defended those restrictions on the theory that they
merely eliminated ‘‘subsidies’’ for First Amendment rights,
the Court’s careful application of the Safley factors would
have been entirely unnecessary. Indeed, under this court’s
holding, Missouri could now reenact the prohibition on inmate
marriage that the Supreme Court struck down in the remain-
der of Safley simply by recasting it as a ban on funding for
inmate marriage, since inmate weddings no doubt require
expenditures for guard supervision and for electricity to light
the wedding venue.
Of course, the government need not provide any and all
resources necessary for prisoners to engage in constitution-
ally protected activities, but Safley teaches that if the gov-
ernment wants to cut back on infrastructural resources nec-
essary for the enjoyment of constitutional rights, it must
explain how the cutback is ‘‘reasonably related’’ to its ‘‘legit-
imate penological interest’’ in ensuring a more efficient allo-
cation of BOP resources and show how the cutback satisfies
the four-part Safley test. In other words, Congress may
not bypass Safley through the simple expedient of using an
appropriations law that functions, in effect, as an outright
ban.
II.
Perhaps recognizing the weakness in its attempted end-run
around Safley and justifiably dubious that this court might
actually accept it, the BOP devotes most of its brief to
defending the Zimmer Amendment on the ground that it does
in fact satisfy Safley, arguing—apparently for the first time
in litigation of this kind, see Kimberlin v. Dep’t of Justice, 150
F. Supp. 2d 36, 44 (D.D.C. 2001)—that the government’s
interest in enhancing the punitive and deterrent value of
prison can justify a regulation that limits prisoners’ constitu-
tional rights. Although both the district court and the con-
7
curring opinion embrace it, this argument is as flawed as it is
novel.
Because punishment and deterrence are unquestionably
among the fundamental ‘‘goals of the penal function in the
criminal justice system,’’ Rhodes v. Chapman, 452 U.S. 337,
352 (1981), I have no doubt that the government may enhance
prison’s punitive and deterrent value by eliminating weight-
lifting equipment, in-cell coffee pots, and other ‘‘perks’’ not
protected by the First Amendment. See Omnibus Consoli-
dated Appropriations Act of 1997, Pub. L. No. 104–208, § 611,
110 Stat. 3009, 3009–66 (1996). The BOP’s defense of the
Zimmer Amendment, however, presents a very different
question: Does the goal of enhancing the punitive and deter-
rent value of prison by making prison conditions more oner-
ous justify limiting prisoners’ constitutional rights? As long
as Safley is the law––that is, as long as prisoners generally
retain their constitutional rights––the answer must be no, for
there is no discernable limit to the government’s ability to
invoke punishment or deterrence as reasons for adopting
regulations that restrict constitutional rights. The BOP’s
rationale for banning electric guitars could also justify ban-
ning all musical instruments, or all music, or even all books,
including the Bible and the Koran, on the ground that deny-
ing these ‘‘perks’’ will make prison more onerous and ‘‘more
of a place of deterrence and punishment.’’ Concurring Op. at
1 (internal quotation marks and citation omitted). Under this
theory, the government could, subject only to whatever limi-
tations the Eighth Amendment imposes, reduce prisons to
places of virtually silent, solitary confinement, where prison-
ers may not read, write, or engage in any other expressive
activity.
The BOP’s theory conflicts with Safley in two additional
respects. First, Safley does not contemplate punishment as
one of the interests that justifies restrictions on prisoners’
constitutional rights. Its deferential standard of review is
designed only to respond to the fact that ‘‘[r]unning a prison
is an inordinately difficult undertaking that requires exper-
tise, planning, and the commitment of resources, all of which
are peculiarly within the province of the legislative and
8
executive branches of government.’’ 482 U.S. at 84–85; see
also Amatel, 156 F.3d at 196 (‘‘[B]y their nature, [governmen-
tal institutions such as prisons] must allow regulation more
intrusive than what may lawfully apply to the general public.
In these environments, the government is permitted to bal-
ance constitutional rights against institutional efficiency in
ways it may not ordinarily do.’’) (citations omitted). The type
of ‘‘legitimate penological interests’’ to which Safley refers are
administrative matters such as ‘‘the preservation of internal
order or discipline, the maintenance of institutional security
against escape or unauthorized entry, and the rehabilitation
of the prisoners,’’ all of which are particularly within prison
officials’ expertise. Procunier v. Martinez, 416 U.S. 396, 412
(1974). The BOP’s novel punishment rationale has nothing
whatsoever to do with these operational, security, and man-
agement concerns. And while it is possible that a prison
regulation might not be rationally related to such concerns,
see, e.g., Safley, 482 U.S. at 97–98 (holding a ban on inmate
marriage to be insufficiently related to the state’s asserted
goals of promoting security and prisoner rehabilitation), regu-
lations that deprive prisoners of their constitutional rights
will always be rationally related to the goal of making prison
more miserable. Banishing electric guitars from prison will
certainly make prison less pleasant, but banishing all musical
instruments—or even all music—would make it even less
pleasant still, as would banning books, magazines, and letters
from family and friends. While it is true that this case
involves a relatively minor incursion on prisoners’ constitu-
tional rights, the rationale the BOP offers, and that the
district court accepted, would justify all of these far more
significant constitutional deprivations.
Second, the remaining factors that Safley instructs us to
consider in evaluating the ‘‘reasonableness’’ of a prison regu-
lation that impinges on constitutional rights make little sense
when the government’s only reasons for the regulation are
punishment and deterrence. All of those factors––‘‘whether
inmates retain alternative means of exercising the circum-
scribed right,’’ ‘‘the costs that accommodating the right im-
poses on other inmates, guards, and prison resources general-
9
ly,’’ and ‘‘whether there are alternatives to the regulation that
‘fully accommodate[ ] the prisoners’ rights at de minimis cost
to valid penological interests,’ ’’ Amatel, 156 F.3d at 196
(quoting Safley, 482 U.S. at 90–91)––are designed to ensure
that legitimate management and security considerations do
not unnecessarily limit prisoners’ constitutional rights. But if
the government’s very purpose is to make prison more oner-
ous, then why ask whether there are alternative means of
expression available or less costly ways to accommodate the
constitutional rights at issue? After all, the greater the
deprivation, the stronger the connection between the restric-
tion and the government’s goal of punishment and deterrence.
III.
This brings me finally to the court’s alternative holding.
Unable to accept the BOP’s assertion of punishment and
deterrence as legitimate penological interests for purposes of
the Safley test, and perhaps aware of the flaws in its primary
holding that Safley does not apply at all, the court offers its
own Safley-based reason for sustaining the Zimmer Amend-
ment: that the regulation is ‘‘reasonably related’’ to the
‘‘legitimate penological interest’’ of conserving correctional
funds. Maj. Op. at 8–10. Had the BOP made this argument,
it might well have provided a valid basis for upholding the
Zimmer Amendment. But the BOP identifies only deter-
rence and punishment as its ‘‘legitimate penological inter-
ests,’’ and explains only how the Zimmer Amendment relates
to these two interests, never once even hinting––either in its
brief or at oral argument—that the Zimmer Amendment
might also reasonably relate to a governmental interest in
conserving correctional funds. The only place the concept of
money appears in the BOP’s discussion of the Zimmer
Amendment’s goals is in a quotation from the district court––
‘‘The District Court found from this legislative history that
Congress enacted the Zimmer Amendment to ‘curb spending
on prison amenities and to enhance the prison as a deter-
rent’ ’’—to which the BOP attaches the following conclusion:
‘‘Therefore, Congress’ punitive intent is clear from the legisla-
tive history.’’ Appellee’s Br. at 12–13. The BOP’s focus on
10
punishment and deterrence is hardly surprising, since, aside
from a cursory reference to eliminating this ‘‘waste of taxpay-
er dollars,’’ the Zimmer Amendment’s legislative history
makes quite clear that punishment and deterrence were in
fact the amendment’s primary objectives. 147 Cong. Rec.
H7751, H7768 (July 1995) (statement of Rep. Zimmer), (em-
phasizing that ‘‘inmate amenities are better than what law-
abiding Americans have’’ and that such ‘‘prison perks under-
mine the concept of jails as deterrence’’).
Although we are, of course, free to ‘‘consider any argument
on appeal that supports the judgment of the District Court,’’
Dimond v. District of Columbia, 792 F.2d 179, 187 (D.C. Cir.
1986), we may not decide a case on a claim that the parties
have neither briefed nor argued nor even mentioned. Doing
so is not only unfair to the parties, who have had no opportu-
nity to respond to the court’s rationale or to object to the
court’s willingness to decide the case without an appropriate
evidentiary record, Corson & Gruman Co. v. NLRB, 899 F.2d
47, 50 n.4 (D.C. Cir. 1990) (‘‘We require petitioners and
appellants to raise all of their arguments in the opening brief
to prevent ‘sandbagging’ of appellees and respondents and to
provide opposing counsel the chance to respond.’’), but it
undermines ‘‘[t]he premise of our adversarial system[,] TTT
that appellate courts do not sit as self-directed boards of legal
inquiry and research, but essentially as arbiters of legal
questions presented and argued by the parties before them.’’
Carducci v. Regan, 714 F.2d 171, 177 (D.C. Cir. 1983).
IV.
Whether Congress may ban electric guitars from federal
prisons might seem an unimportant—even trivial—question,
but courts are obligated to adjudicate even seemingly unim-
portant issues in accordance with the Constitution and pre-
vailing case law. So long as Safley remains the law of the
land, courts are obligated to ensure that any restriction on
prisoners’ constitutional rights—whether in the form of an
outright ban or a denial of funding that functions as an
outright ban—is reasonably related to the government’s legit-
11
imate penological interests. I would thus reject the BOP’s
subsidy rationale and remand to the district court, where the
BOP may, if it chooses, attempt to defend the Zimmer
Amendment as a reasonable response to its financial con-
cerns.