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 Representative 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.” Defs. Opp’n to Pis.’ Statement of Material Facts at 2. Punishment and deterrence are not only legitimate pe-nological interests, they are among the fundamental goals of our penological sys*235tem. See Rhodes v. Chapman, 452 U.S. 337, 352, 101 S.Ct. 2392, 2402, 69 L.Ed.2d 59 (1981) (identifying “goals of the penal function in the criminal justice system” as “to punish justly, to deter future crime, and to return imprisoned persons to society with an improved change of being useful, law-abiding citizens”); Pell v. Procunier, 417 U.S. 817, 822, 94 S.Ct. 2800, 2804, 41 L.Ed.2d 495 (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 Justice, 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 Amendment and the BOP regulations do, may, in the aggregate, produce such an effect. See Safley, 482 U.S. at 89-90, 107 S.Ct. at 2262 (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 have a corrective effect by establishing an apparently implausible connection or refuting an apparently obvious one, but, subject to such corrections, conformity to commonsensical intuitive judgments is a standard element of both reasonableness 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 concluded 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 substantial.” Cfi maj. op. at 234 (“If, as we have concluded, the possession and use of electric/electronic instruments costs prisons money, then it necessarily has an ‘adverse impact ... 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.
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, 109 S.Ct. 1874, 1882-83, 104 L.Ed.2d 459 (1989))).