Jonathan D. Mauro v. Joseph M. Arpaio, Sheriff Maricopa County, a Political Subdivision of the State of Arizona

1054 eighteen sentence ty’s revocation months. eighteen prison sentence

cation super- months. term of of the additional length imposed is now be vised release months, eigh- eighteen years

three less Thus, twenty-four-month his months. teen exceeds supervised release term of statutory maximum. applicable strong find note that our conclusions We history legislative support in 1994. § enacted 3583 amendments MAURO, Plaintiff- D. Jonathan containing an bill sponsor of earlier Appellant, submitted provisions nearly identical ef- practical their explanation of following v.

fect: Sheriff; Maricopa ARPAIO, Joseph M. of a C example, in the case Class For County, political subdivision of the super- maximum felony which the for Arizona, Defendants-Appel State de- years, is three vised release term lees. re-impris- who is revoked fendant No. 97-16021. ordered to for months could be oned additional months as much as 18 serve Appeals, States Court United (36-month maxi- supervised on release Ninth Circuit. release supervised

mum minus term March Argued Submitted imprisonment equals 18 months supervision). possible re-release months 17, 1999 Aug. Filed re- again defendant was If the same voked,' re-imprisoned could be he (24-month cap mi- six months

exceeding impris- previously-served nus 18 months im- 6 months allowable equals onment could imprisoned, and if so prisonment) supervision placed not thereafter (because imprisonment cap two-year reached). Thus, under would have been amendments], a defendant would [the for incarceration time always be credited cap re-imprisonment against both the period of the maximum authorized supervised release. (daily ed. June Cong. Rec. S7769-72 Beals, 13, 1991); v. see United States (7th Cir.1996);1 United F.3d 857-58 Walker, F.Supp.2d 1305 v. States (MD.Ala.1998). 2, 1998, judgment

The November and the case is district court reversed instructions to reduce remanded with Plen- portion Brings supervised release -, 142 L.Ed.2d 62 part on other 1. Beals was overruled in Withers, grounds 128 F.3d in United States - denied, (7th Cir.1997), cert.

I. Maricopa County system is one country’s largest, in- housing any time. given average

mates stay inmate slightly less than fourteen days. Until had no possession restricting sexually explicit materials. adoption

Prior to chal- Mauro, lenged by female detention officers were faced with in which situations male compared anatomy inmates the officers’ depicted that of nude women in various publications, Playboy magаzine often cen- terfolds. The officers would be invited to models, at look the breasts on these nude Hentoff, Phoenix, Arizona, Nicholas S. opinion or asked their about geni- shaved plaintiff-appellant. for the talia. The officers would also encounter Lewis, Daniel P. Struck and David C. openly inmates who were masturbating Jones, Hochuli, Phoenix, Ari- Skelton & looking sexually explicit pictures. while at zona, defendants-appellees. for the One inmate told an officer that he was

mentally having anal with intercourse Miss done, July, and when he was he going was to do the same to the officer. The officers type were confronted with this of behavior often, ranging daily from several times several times a week. HUG, Judge, Before: Chief SCHROEDER, FLETCHER, response problem, August In to this BRUNETTI, FERNANDEZ, RYMER, 1993, jail instituted a administration NELSON, KLEINFELD, T.G. policy prohibited pos- which inmates from TASHIMA, WARDLAW, and THOMAS sessing “sexually explicit materials.” The Judges. Circuit only to the inmates included the notice materials, prohibition sexually explicit NELSON; Opinion by T.G. Judge accompanying jail notice to em- while SCHROEDER, by Judge Dissents “sexually explicit materi- ployees defined FLETCHER and KLEINFELD. nudi- als” as “materials that show frontal NELSON, Judge: ty” including “personal T.G. photographs, Circuit drаwings, magazines pictorials and and constitutionality case concerns the This nudity.” that show frontal Pursuant policy by Joseph Arpaio, issued M. in a sexually explicit policy, materials Sheriff, Maricopa capacity County his possession of inmates are found prohibiting possessing inmates from “sexu- destroyed. confiscated Mauro, ally explicit material.” Jonathan Implementation policy Maricopa County an inmate resulted prob- system, sharp ‍​​‌‌​​​‌​‌​​‌​‌​‌​‌​‌‌‌​​​​‌‌‌​‌‌‌​‌‌​‌‌​​‌​‌​‌​‍filed an action under 42 a decrease in the number of U.S.C. policy infringed § 1983 the female officers. claiming lems encountered rights. reported on his First Amendment Because The the situations officers reasonably occa- policy only happening we conclude that the declined to to them interests, Aso, August if all. legitimate penological sionally, related to at from policy implemented, hold that is a valid restraint until we when the au- rights. August requested no inmate had on Mauro’s First Amendment is, moreover, a that has been com- possess sexually task thorization to receive prohibited responsibility under to the of those explicit materials that are mitted branches, separation powers con- policy. judicial re- cerns counsel D. was incarcerated Jonathan Mauro penal system is straint. Where a state pre- Maricopa County system as a .the involved, ... addi- federal courts have request- in August detainee 1995. He trial to accord deference to the tional reason Playboy allowed to receive a ed that he be appropriate prison authorities. pursuant magazine, which was denied (citations 84-85,107 omit- Id. policy. He filed suit under U.S.C. ted). Maricopa County § and its against sheriff, Joseph Arpaio, claiming that necessary To maintain the balance under the First policy infringed his principles, we between these two basic

Amendment. of re apply must deferential standard granted the defen- challenges regarding prison regu

The district court' view summary judgment and dants’ motion for uphold lations and “if it is panel A of this court appealed. Mauro reasonably legitimate penologi related to Arpaio, reversed. See Mauro v. 147 F.3d cal interests.” Id. at 107 S.Ct. 2254. (9th Cir.1998). opinion panel necessary prison a if [S]uch standard is was withdrawn when this court voted courts, administrators, and not the are the case en banc. Mauro v. rehear See judgments to make the difficult concern- (9th Cir.1998). Arpaio, 162 F.3d 547 ing operations. Subjecting institutional day-to-day judgments prison of offi- II. an anal- scrutiny cials to inflexible strict begin We our discussion with a re ysis seriously hamper ability their potentially compet view of two basic and anticipate security problems and to ing principles necessarily that frame our adopt intract- innovative solutions to the analysis constitutional claim. of Mauro’s problems prison able of administration. principles prison that The first of these is The rule would also distort the decision- stripped protections are not of ers making process, every for administrative upon incarceration. the Constitution See judgment subject possi- would be to the 84, 107 78, Safley, v. Turner 482 U.S. S.Ct. bility that some court somewhere would (1987). 2254, Thus, 96 L.Ed.2d 64 a “when conclude that it had a less restrictive prison regulation practice or a fun offends way solving problem of at hand. guarantee, damental constitutional federal inevitably pri- Courts would become the duty protect discharge courts will their mary arbiters of what constitutes the [prisoners’] rights.” constitutional Id. every best solution to administrative problem, thereby unnecessarily perpetu- principle The second basic ating the involvement of the federal analysis our that “courts are ill frames is prison in courts affairs of administration. ur equipped increasingly to deal with the problems (citations, gent prison of administration quotations ellipses Id. omit- ted). and reform.” Id. problems prisons in America [T]he III. intractable, and, complex

are more jail’s To determine whether point, they readily suscep- to the are not policy excluding containing all material Running tible of decree. a resolution nudity reasonably frontal “is related to prison inordinately anis difficult under- interests,” legitimate penological taking expertise, that requires planning, valid, resources, therefore we consider four fac and the commitment of all of must (1) valid, peculiarly province which tors: whether there is a rational are within policy connection between the and the le legislative and executive branches government. gitimate governmental put Prison administration interest for- over, (2) court it; although no has addressed whether there are justify ward to reducing sexual harassment of exercising right; whether means of alternative emрloyees (3) accommodating prison legitimate penologi impact of whether the interest, protect cal there is no doubt that right will the asserted constitutional prison ing safety guards general is a negative impact significant interest, legitimate reducing allocation of and that sexu inmates and the guards, other leg (4) particular al and wheth harassment likewise is generally; resources response” See Folkerson v. Circus Circus policy “exaggerated is an er itimate.2 (9th Enters., Inc., 89-90, 107 107 F.3d jail’s concerns. See id. at Cir. to the 1997) Lewis, 2254; Casey (holding employer 4 F.3d be liable S.Ct. (9th Cir.1993). failing prevent for sexual harassment of

employee by by private co-workers and A. Rational Connection individuals, patrons). such as business consider

The first factor we must requirement policy is a rational connection is whether there unquestionably “neutral” is also met in this challenged policy legiti and a between the explained case. As the in Thorn- Court Turner, governmental mate interest. See test, burgh, “neutrality” to meet Turner’s 107 S.Ct. 2254. This re practice question or gov whether the quires us to determine important an must further substantial objective underlying ernmental governmental interest unrelated to the (3) (1) (2) neutral, and wheth legitimate, Where, suppression expression. “rationally related to that er here, draw distinc- prison administrators Abbott, objective.” Thornburgh v. publications solely tions between on the 401, 414, 109 104 L.Ed.2d potential implications basis of their prison security, regulations in “neutral” the technical sense which jail’s policy excluding The of sex meant and used that term in Turner. we expressly aimed ually explicit materials is 415-16, (quota- at 109 1874 490 U.S. S.Ct. maintaining jail security, rehabilitating at omitted). and citation tions reducing sexual harassment of inmates and beyond detention officers. It is Here, jail female Thornburgh, admin jail security that both and reha question mate istrators drew a distinction between intere legitimate penological bilitation are solely rials on the basis of the materials’ 415, (pris 109 1874 potential prison’s legitimate sts.1 See id. at S.Ct. effect on the Turner, 91, security); objectives. regulations 482 at 107 The are therefore U.S. (prison security); required Pell v. Procun “neutral” in the technical sense 2254 S.Ct. 823, 2800, ier, 817, Thornburgh. 490 41 under Turner and See 417 U.S. S.Ct. (1974) 1874; (rehabilitation); 415-16, Procu at 109 S.Ct. Amatel v. L.Ed.2d 495 U.S. 413-14, Reno, 192, (D.C.Cir.1998); Martinez, 396, 156 F.3d 197-98 nier v. (8th (1974) Scurr, 257, 1800, F.2d (prison 40 L.Ed.2d 224 Dawson v. Cir.1993). rehabilitation). More- security, order and dissent, pretrial Judge Kleinfeld maintains a mix of detaineеs 2. In his

1. The houses jail’s goal The of genuine and convicted inmates. material fact that there is a issue of legitimate goal only to the rehabilitation is a regarding jail's policy whether the of exclud applies extent that it to the convicted inmates ing imposed sexually explicit materials was goal jail. legitimate housed at the It is not a punishing pretrial purpose detain of attempting to the extent that the impose is by parties was not ees. This issue raised pretrial detainees rehabilitation on before this court. The issue has in their briefs Hearst, jail. States v. housed at See United Pierce, therefore been waived. See Stivers 1331, (9th 1977) ("[A] n. 11 Cir. 563 F.2d (9th 1995) (holding 71 F.3d 740 n. 5 Cir. pretrial detainee assert his status as a failing parties by waived issue to raise it solely against practices shield intrusive aimed briefs). in their against practices at rehabilitation but not security discipline.”) aimed at inmates, turn that the mothers of other which in Finally, requirement by the in- fights led to and disturbances jail’s policy rationally related to the security and created a risk for both mates objectives in this case. legitimate is met ana- jail employees; inmates and to draw relationship To show a rational between comparisons tomical between the female in penological and a legitimate persons depicted detention officers and the terest, prison prove that officials need not openly photographs; and to mastur- prob material caused actually the banned sexually bate in front of and otherwise past, lems or that the materials the female officers. harass “likely” problems to cause in the future. relationship between the Thornburgh, 490 109 S.Ct. See jail’s possession policy prohibiting 1874; Moreover, Casey, 4 F.3d at 1521. it sexually explicit goals materials and the agree not matter whether we with” “does sexual of the fe preventing harassment or whether the “in the defendants officers, male inmate rehabilitation and jail’s inter legitimate fact advances” the jail security maintenance “re not so Amatel, ests. See 156 F.3d at 199. The policy arbitrary render the mote as to only question ‍​​‌‌​​​‌​‌​​‌​‌​‌​‌​‌‌‌​​​​‌‌‌​‌‌‌​‌‌​‌‌​​‌​‌​‌​‍that we must answer Turner, irrational.” See 482 U.S. at 89- judgment whether the defendants’ Amatel, 2254; 156 F.3d at “rational,” is, that whether the defendants 200-01; Dawson, (holding 986 F.2d at 261 might reasonably thought sexually regulation restricting access to policy would advance its interests. See id. explicit rationally materials is related to goals prison security and inmate reha possession relationship between the bilitation). Although, as the defendants sexually explicit prob- and the materials admit, candidly poli the “fit” between the sought policy- lems to be addressed “exact,” cy jail’s objectives and the is not officers, jail sexual harassment of female Rather, required. an exact fit is not all security and rehabilitation of inmates-is required that is that there be a “ration past,3 clear. In the inmates have used al” connection between the and the photographs nude to draw anatomical com- jail’s objectives. legitimate This standard wives, parisons girlfriends with is met.5 Although required depicting isit offi- Exhibit a live nude female prohibited magazine, cials be able the model the to show that mate- cover of an art actually problems photograph rials have caused and a of a nude female model 1521, past, Casey, Playboy. ability see 4 at in F.3d their certainly strengthens Finally, interesting do so their case. it is to note that one of very publications points that Mauro to in jail policy may 4. That the exclude artistic or support pоlicy of his claim that the "over- journals policy scientific not render does Geographic-is broad”-National available in unconstitutionally overbroad. As the Court fact, jail library. In Mauro has been Thornburgh, prison regulation held in a does single unable to a document instance in pass not need to the “least restrictive alterna- prisoner's request copy which a for a of Na- tive test” to withstand constitutional chal- Geographic, any tional or other "scientific” 414, lenge. See at 490 U.S. 109 S.Ct. 1874. publication, has been refused because of con- Rather, long regulation as the withstands tent. test, the Turner it will reasonableness be deemed constitutional. See id. reject argument policy 5.We Mauro's Moreover, "rationally gives as the court district found: is not related” because it possibility employees is not a [I]t "so remote” "unbridled discretion.” As the prisoners photographs Thornburgh, regulations barter nude or Court made clear in drawings zines, maga- give prison in artistic and scientific which broad discretion to authori- photographs appropriate regulations to use such to draw ties are where the comparisons coming prison. anatomical with the wives concern materials into a See inmates, 416, Moreover, girlfriends or of other and to use 490 U.S. at 109 S.Ct. 1874. photos sexually giving jail employees such de- harass female rather than discretion, unbridled fact, contends, tention officers. In the court finds as Mauro ac- little, plaintiff’s grants tually any, no marked distinction between if discretion to

1061 sent, received, and read.” See Thorn Avenues Alternative B. 417-18, 1874; burgh, 490 at 109 S.Ct. U.S. factor we must second Amatel, also 156 F.3d at 201. see determining the reasonable in consider on constitu policy’s restriction ness of court that a agree We with the district alterna “whether there are rights is tional expansive and view of the consti- sensible exercising right means of tive infringed by jail’s policy tutional right Turner, open prison inmates.” remain sexually explicit to receive “right is the 90, 107 2254. “Where U.S. at S.Ct. in communications.” Viewed this sensible remain available for the ‘other avenues’ manner, expansive many and there are right, courts exercise of asserted means to the alternative available inmates. particularly conscious of the should recognized, although As the district court to cor judicial ‘measure of deference owed sеxually explicit all materi- bans ... in the validi gauging officials rections depicting nudity, als frontal it does not ban ” (citations Id. omit ty regulation.’ sexually explicit letters between inmates ted). others, sexually it explic- nor does ban photographs articles of clothed fe- factor, it right “the applying In this Amatel, males. See 156 F.3d at 202 sensibly be viewed question must (“[T]he only Thornburgh, regulation at its terms re- expansively.” U.S. omitted). (quotations pictures; prisoner may any- read 109 S.Ct. stricts Turner, upheld example, For Court thing pleases.”) he correspon restricted regulation Impact C. on Others state between inmates at different dence so, rejected In prisons. doing Court The third factor that we must ad be af argument that inmates should impact that is the accommodation dress communicating with forded other means of right the asserted constitutional institutions, finding it suf inmates at other inmates, personnel, prison other expression re ficient if other means of resources. See allocation Tur mained available to the inmates. See Turner, at 2254. 482 U.S. S.Ct. ner, 92, 107 2254. at S.Ct. requires This factor us to determine the Sha Similarly, O’Lone Estate impact allowing inmates unrestricted ac bazz, explicit id. sexually cess to materials. See (1987), upheld a L.Ed.2d 282 the Court 92, 107 2254. S.Ct. ability that restricted inmates’ access impact of such unrestricted Jumu’ah, religious to attend the a Muslim previ- significant. would be As discussed it if the in ceremony, finding sufficient lead to the barter- ously, such access could participate in oth permitted mates were explicit and ana- ing sexually materials ceremonies. See id. at religious er Muslim in turn comparisons which could tomical 351-52, Finally, in Thorn- inmates. These fights to between lead upheld re burgh, regulation the Court only safety fights jeopardize not the publications that in stricting incoming the other inmates. employees, but also finding possess, could receive and mates discussed, Moreover, previously also as available to sufficient alternative means access to sexu- allowing inmates unlimited per regulations the inmates because the expose explicit materials would the ally range publications to be mitted “a broad containing eluding materials frontal nudi- employees. policy, materials all Under the all prohibited. containing nudity bright-line rule. This ty, frontal the sets out a Thus, jail employees simply determine must only bright-line rule not limits the discretion question materiаl contains whether the jail employees, also ensures available to but does, prohibited nudity; it is un- frontal if it of materials. consistency in the exclusion policy. der the vague policy. nothing about this There is reject argument that the We also Mauro’s By unconstitutionally "vague.” ex- policy is officers, approach by whose com articulated the female detention Court plaints adoption led originally Appeals respect fails to reflect and policy, and a to sexual harassment hostile deference that the United States Constitu- “Where, here, work environment. as prison judgment tion allows for the ad- right question only ‘can be exercised at ministrators.”); Turner, at 482 U.S. significantly liberty the cost of less (“It 2254; Casey, F.3d at 1523 else, safety everyone guards and other upon prisoners point incumbent alike,’ prisoners should defer to the [we] an their alternative accommodates ‘informed discretion of corrections offi at inter- security de minimis cost to ” Thornburgh, at cials.’ 490 U.S. added)). (emphasis ests.” Turner, (quoting 5.Ct. 1874 pointed Mauro to two alternatives 2254). 90-92, 107 S.Ct. (1) reading district court: room for in- materials; sexually explicit D. mates to view Exaggerated Response (2) psychological testing of inmates The fourth and final factor that “fit” sexually who would be to receive ex- we whether must address is plicit agree materials.6 with We the dis- jail’s an exaggerated response to the con trict court that both of these alternatives cerns. impose would than a more de minimis cost ready absence of alternatives is [T]he penological on valid interests and are pris- evidence of the reasonableness of a inadequate therefore alternatives to the token, regulation. By the same obvious, policy. easy existence of alternatives may be evidence that the First, confining sexually explicit materi- reasonable, “exaggerated not is an but reading prevent als to a room would response” prison concerns. This is the sexual harassment of female detention not a “least restrictive alternative” test: fact, In officers. the female officers trans- prison up officials do not have to set porting reading inmates to and from the every then shoot down conceivable alter- room, well monitoring as those accommodating native method of room, reading esрecially be would vulnera- complaint. claimant’s constitutional But ble to sexual harassment the inmates. if an point inmate claimant can to an Deputy Larry As Chief stated in Wendt fully alternative that accommodates deposition, his reading the creation of a prisoner’s rights at de minimis cost to guarantee room “does not that female de- interests, penological valid a court subjected tention officers would not be regu- consider that as evidence that the the same kind of harassment and verbal lation satisfy does not the reasonable they adoption abuse that endured before relationship standard. Policy in 1993.”

Turner, 90-91, 482 U.S. at 107 S.Ct. 2254 added) (citations omitted). (emphasis Moreover, the creation reading of such a impose room would a significant adminis- prisoner The burden is on the jail: trative burden on the inmates from challenging regulation, pris not on the custody different levels would need to be officials, obvious, to show that there are room; escorted to and from the reading easy regulation. alternatives to the See O’Lone, strip leaving searches the inmates 482 U.S. at 107 S.Ct. 2400 conducted; (“By placing reading the burden on room have to officials disprove alternatives, to availability the reading room would have to be points 6. Mauro to several argu more alternatives therefore decline to address these new appeal that were not raised district appeal. ments on See Woods v. Saturn Dis newly court. Resolution of whether these (9th Cir.1996); Corp., trib. 78 F.3d adequate raised alternatives would be to ad- C.I.R., (9th Bolker v. F.2d jail’s dress the concerns would involve facts Cir.1985). fully developed not in the record. We must not an policy exagger- “is we hold Wendt stat- Deputy Chief As monitored. problems sought to response” to ated in his affidavit: ed by the defendants. See Ca- be addressed a read- proposal [of Specifically, cur- 4 F.3d at 1523. incompatible sey, with the ing room] jails. of the design structure MCSO rent (from all inmates transporting

Simply IV. levels) reading room to a central custody may be a that there recognize We Addi- logistical nightmare. would be different, means of achiev less restrictive used for at- current rooms tionally, the objectives. Un legitimate defendants’ ing already are torney family visitation however, Thornburgh, the defendants der pro- accept Plaintiffs capacity. To over adоpt least restric required not to County spend require the to posal would achieving objectives. these tive means of entirely new room or an funds to build Rather, simply en the defendants must not funds it does budgetary ‍​​‌‌​​​‌​‌​​‌​‌​‌​‌​‌‌‌​​​​‌‌‌​‌‌‌​‌‌​‌‌​​‌​‌​‌​‍unit with reasonably related that the sure vacant possession and on have in its interests. Be legitimate penological it does not own. space that case, cause, under the facts of this an impose would also proposal 7. The sexually explicit prohibition on materials offi- on detention administrative burden test, we hold fulfills this reasonableness transport required cers would who not violate the First does room, well as and from the inmates to Amendment. strip-searching the inconvenience they may enter every inmate before AFFIRMED. staff) (MCSO We command the room. SCHROEDER, manpower Judge, with

simply not have Circuit do service for inmates. provide Judges this extra B. FLETCHER whom (1%) of only percent one assuming THOMAS, join, dissenting: Even Judges, Circuit 6,500 inmates approximately MCSO respectfully I dissent. weekly to use the room a would want majority upholds regulation The basis, sixty- have to escort MCSO by regulation being enforced is not the (65) every to this inmates week five jails. in its The Maricopa Cоunty Coun- reading room. We do not central “sexually explicit” defines ty’s regulation accom- available staff to time or the that “show materials materials as those service. modate this rang- nudity.” publications It bans frontal proposes, Mauro alternative second art Geographic to the National ing from inmates, is also testing psychological David. displaying Michelangelo’s books psy- Although alternative. inadequate an time, inmates to permits it At the same of- testing may prevent sexual chological is- Illustrated swimsuit receive the Sports sexually explicit receiving fenders from catalogs. The lingerie sues and seductive adversely affecting therefore materials and County regulation is ration- Maricopa rehabilitation, would not testing such their rehabilitation, any goal ally related to having the reasons for address the other harassment. preventing sexual security, or harass- security and sexual policy-prison test primary fails articulated It thus See detention officers. ment of the female Safley, in Turner Supreme Court Kolodzieczak, F.2d Friend v. 78, 89-90, Cir.1991) (9th pro- (holding that inmates’ L.Ed.2d 64 it inadequate where posed alternative all, some, prisоn offi- but not satisfied ifas treats the majority concerns). cials’ and limited sexual- it far were narrower contained like those explicit depictions ly an point “to Mauro failed Because publica- pornographic in hard or soft core [his] that accommodates alternative interests,” originally and unani- panel As tions. our security cost to at de minimis held, mously regulation upheld is overbroad No other court has such a broad and flunks the second Turner test as well. intrusion into an inmate’s First Amend- It leaves no alternative means for inmates See, e.g., ment rights. Thornburgh, 490 to exercise their First Amendment 6, (banning U.S. at 405 n. educational, religious, illustrated or oth- sexually explicit involving materials homo- may er materials that contain nude figures sado-masochism, sexuality, bestiality, and any but are penological unrelated to of the children); Senkowski, Giano v. 54 F.3d regulation. concerns underlying (2d Cir.1995) 1050, (banning nude or upholding In regulation, majori- photographs semi-nude of inmates’ wives ty puts Supreme in conflict us with the Scurr, girlfriends); or Dawson v. F.2d Abbott, teaching Thornburgh Court’s v. (8th Cir.1993) 257, 259 n. (regulation 1874, n. 109 S.Ct. prohibiting portraying bestiality, “material (1989), prisons 104 L.Ed.2d 459 sadomasochism, child or nudity, child sexu- prohibition catego- should eschew of broad acts). activity,” al and several other sexual Court, publications. ries in Thorn- burgh, approved regulation a permit- majority Yet appears to believe it ted a federal warden to exclude a regulation recently has similar to that publication any specific after the warden upheld by panel majority of the D.C. determined that it was “detrimental to the Reno, Circuit in Amatel 156 F.3d 192 security, order, good discipline or of the — (D.C.Cir.1998), U.S. -, cert. denied institution.” Id. at 109 S.Ct. 1874. - - (1999). L.Ed.2d Although the standard for exclusion Maricopa County regulation very broad, have seemed explained Court Amatel, upheld different. In the court that it by was circumscribed the require- regulation prohibiting federal material that publication may ment that “no be exclud- “sexually explicit” or nudity.” “features ed unless the warden himself makes the adopted The Bureau of Prisons a definition favorably determination.” Id. The Court nudity” of “features that is much narrower provisions referred to other regula- “ Maricopa County’s than standard: ‘fea prohibited tion that the warden from dele- publication tures’ means that ‘the contains gating power his exclusion establishing or depictions nudity sexually explicit or publications. a list of excluded Id. at 416- conduct on a routine regular basis or 17, 109 S.Ct. 1874. promotes upon itself depictions- based such contrast, In Maricopa County’s policy ” in the case of individual onetime issues.’ places power of exclusion far from the Amatel, 156 F.3d at 194. significant, More administrators, jail’s leaving upit to sever however, is that the regulation Amatel al rotating, relatively low level mail offi expressly provides exception for an to the cers publication to decide whether a ban material that “if nudity features it Moreover, impermissible. seeks medical, ‘nudity contains illustrative of ed to facilitate the mail officers’ detection of ” ucational, or anthropological content.’ prohibited by material an imposing easy to Accordingly, Id. the Amatel court acknowl administer, line, bright standard of “fron edged that the prohibited only tal nudity.” Consequently, County’s (“The “pornography.” Id. at 199 legisla squarely falls within the Thorn- judgment tive is that pornography ad burgh Court’s “[a]ny admonition that at (“We rehabilitation.”); versely affects id. tempt greater consistency achieve think government rationally broader could might exclusions itself run afoul the second Turner factor.” Id. at 417 n. seen a connection between pornogra 15, 109 values.”).1 S.Ct. 1874. phy and rehabilitative (as ''Pornography” is defined as Collegiate ''material citement.” New Webster’s Dictio- photograph) depicts books or a erotic nary 888 behavior and is intended to cause sexual ex-

1065 the validity. The thrust of regulation’s proscribes County’s regulation Maricopa argument regulation is that this County’s demonstrates This record more. much average photo- a inmates who ban can rehabilitate would prison officials that by jails. Michel- painted just two its spend nude weeks of a Christ graph 147 F.3d Arpaio, Mauro v. angelo. See its of County goal even stresses that The Cir.1998). (9th Cir- The D.C. 1143 pretrial detain- is aimed at rehabilitation find it that “[w]e observed in Amatel cuit explains regulation the It that ees. that the impossible to believe but all of prevent the introduction intended “to Secret and Victoria’s Edition Swimsuit into an explicit materials environ- sexually David or Michelangelo’s while pass muster all inmates 10-20% of ment where fail; has nor camp pictures concentration sexual offenses.” charges involving facing any prison any suggestion that there been added). apparently It matters (emphasis a implement such attempted official has “facing County that inmates to the not at 202. F.3d interpretation.” 156 bizarre presumed innocent can- charges” are the case establishes in this The record efforts. subject of rehabilitative not be found “all the Amatel court that very facts County argues to this fact that The believe.” impossible to but an ille- advances regulation that its court Moreover, justification offered the sole merely interest in rehabilitation gitimate for their prisons the federal Amatel by rationality behind of lack underscores inmate rehabilitation. regulation Furthermore, because the regulation. Here, however, pretrial a plaintiff is invoke rehabili- County in this case cannot of yet convicted who has not been detainee policy, for the justification as a Am- tation County no has Just as any crime. support the ma- provides none of atel see punishment, interest in his legitimate it. jority would draw from 520, 535-36, 99 441 Wolfish, v. Bell Amatel, fact, upheld in regulation In (1979), 447 L.Ed.2d neither regulation intrusive we less than while in his interest legitimate it have a can us, not itself free from before Royster, v. rehabilitation. See McGinnis That doubt. constitutional 263, 273, Judge from elоquent an dissent prompted (“[I]t (1973) hardly be L.Ed.2d Wald: to undertake for the State appropriate magazines to read prisoners Claims period programs pretrial detention may not Penthouse be Playboy or like pre- with a a man still clothed rehabilitate the articulation vehicles for the ideal innocence.”); United States sumption of But, as Dos- rights. Amendment First (9th Hearst, n. 11 563 F.2d observed, of civili- degree “the toyevsky Cir.1977) detain- (observing pretrial that society in a is revealed enter- zation as a shield” his status ee can “assert DOSTOYEVKSY, F. prisons.” its ing at rehabilita- jail policies aimed against (C. DEAD 76 THE THE OF HOUSE tion). recog- majority appropriately 1957). trans., ruling Today’s Garnett rehabilita- County’s goal of nizes that stripped prisoners may pretrial legitimate applied tion is choice on of their publications detainees, any sim- to view concern but dismisses reg- legislators County’s jails house the mere assertion ply by noting from ulators-far removed detainees and convicted pretrial “a ofmix supporting evidence and without scene inmates.” publications will kind-that any those reli- its County did not rationalize goes well their “rehabilitation” hinder by arguing rehabilitation ance on case lаw and the prior precedent beyond are convicted jail’s residents some of its troubling a most circuits. It is in other County Quite contrary, the inmates. precedent. this court consistently argued to has (Wald, J., dissent- Amatel, F.3d at inmates, average an stay of its the brief ing). that favors the days, is consideration 13.6 majority The assumes that prison may him, in- validly applied not to Mauro

mates, including pretrial necessarily detainees like purpose contends that the of Mauro who regulation have been convicted of no the justify applica- does not its crime, is, tion him. demeaned individuals who to That he claims that the prefer purpose regulation to see trash than art of the rather does not justify and whose First its a rights application pretrial Amendment there- detainee. Only by ignoring fact, fore will not the assumption be affected. This obvious reflected in record, (or the precedent is without that Mauro is was at diminishes our the time) pretrial a relevant detainee constitutional can protections. the majority conclude that he has waived the FLETCHER, B. Judge, Circuit claim most central to suit. his dissenting: Last, I agree with Judge Kleinfeld that I fully concur in Judge Schroeder’s dis- cоnventional and prison disciplinary senting opinion. regulation The at issue segregation, measures —unit full restric- prohibits ranging material from art books tion, and reclassification —are appro- more displaying Michelangelo’s David to issues priate responses to the harassment of fe- Sports of Illustrated depicting Olym- male guards by male inmates. county The pic Judge swimmers. As amply Schroeder has a legitimate course in prevent- interest demonstrates, prohibition such a is of un- ing employees. the harassment of its But precedented pass breadth and cannot con- by choosing to ban such an astonishingly stitutional majority’s muster. The attempt material, range broad the county impos- to avoid infirmity by this adopting an un- unjustifiable es substantial and burden duly narrow reading regulation the on the rights First Amendment of even support without either in the text those who history have no harassment, regulation inor the County’s expressed yet who have not been convicted of understanding of the regulation.1 any criminal offense. an imposition Such totally proportion out of problem to the

I also agree with Judge Kleinfeld that at hand. specifics case, of this summary judgment should not granted have been majority apparently The concludes that for County. Judge As right- Kleinfeld the First protect Amendment does not out, ly points County attempt of, right example, nonviolent, for non- to “reform” “punish” pretrial or detainees. harassing pretrial pursue detainee to his Wolfish, 520, 535, See Bell v. 99 general equivalency diploma by reading a 60 L.Ed.2d 447 The Western Civilization textbook containing a majority responds that Mauro did not chapter on the art of the Renaissance. raise the issue of whether the regulation Surely prohibition Constitution’s imposed purpose for the pre- of punishing laws “abridging the of speech,” freedom Const, detainees, trial and that he has therefore I, amend. means more than waived it. Majority Opinion See at 10 n.2. that. Because the majority concludes it In so concluding, the majority ignores not, does I respectfully dissent.

essence of Mauro’s suit. Throughout this KLEINFELD, Judge, Circuit with case, Mauro has referred to himself as a Judge FLETCHER, whom B. Circuit pretrial In detainee. addition challeng- Judge, partially joins, dissenting: ing the regulation overbroad, facially he challenges application of the regulation pretrial Mauro is a detainee. As of thе to him. By claiming that regulation case, time covered record this he Deputy County Chief of the Maricopa picted photograph picture, in a Custody Bureau would be nudity? confirmed considered frontal breadth A: Yes. deposition: in his Q: And distinguish it doesn't between Q: somebody just So if topless with male nudity, or female correct? their bottom covered and that was de- A: Correct. order, maintain nudity to showing frontal for crime convicted not been had relation it was not excessive evidently He held. being he was which so, probably the ban is his If purpose. county year's two waited out. way to find prior A trial is the his permissible. involves This case trial.1 experience has some He conviction. of fact the issue majority overlooks accustomed has been jails, and various as a source wrong case it uses because Penthouse, Time, News- reading Playboy, uses majority The rule. controlling the of jail. There in week, newspapers while and Safley, v. “reason- Turner rule from the he has the record that in no evidence is inter- penological legitimate to ably related the any of in publications 3 any of these used prisons, which applies to That rule ests.” mаjor- ways described inappropriate have upon people who punishment impose deposi- in his testified and he opinion, ity use should of crimes. We convicted been his says in He has not. that he tion jail that a Wolfish, from Bell v. rule the Playboy to read likes that he deposition if im- it is is unconstitutional restriction his from case arises This the articles. for is punishment, of but purposes for posed that he request aon turned down being incident of it is “but an if constitutional Playboys. his receive pur- legitimate governmental other some day, the at the end of is that My guess individual that the as assure such pose,” correct, to be turn out majority will the trial, or “to maintain for his present bewill showing publications jail can ban at the institution.” security order and securi- to maintain nudity, order in frontal fact under issue of genuine is a There yet not But we are discipline. and ty Bell,' not un- though there is in even rule rights day. person’s A end of “legitimate is Turner. That because der a basis of away on the be taken should punishment. include interests” penological materi- issue of genuine a There is guess. a rule for validates purpose generally That on sum- was dismissed fact. The case al it for but invalidates prisоners, convicted trial, genu- so a without a mary judgment, detainees. pretrial requires reversal. fact of material ine issue the same “jails” are not “Prisons” and was the ban is whether issue of fact The trial, people pending hold things. Jails disci- jail security and preserve imposed to con- after sentences punitive for short and punishment. of purposes for pline, or people convicted hold Prisons viction.4 that the in the record is evidence There incarceration, substantial sentenced to and publications excludes why reason case before The ordinarily for felonies.5 punish prison- nudity is to frontal with case, case. not a aisus so, unconstitutional. If ‍​​‌‌​​​‌​‌​​‌​‌​‌​‌​‌‌‌​​​​‌‌‌​‌‌‌​‌‌​‌‌​​‌​‌​‌​‍ban is ers. trial, his being held await plaintiff Clause, a de- the Due Process “[UJnder Jail, of several one Madison Street in an prior to punished be may not tainee I jail system. County Maricopa with guilt accordance adjudication of and briefs anything not found have There was also process of law.”2 due any of the record to show that excerpts of publications jail excluded evidence ed.1990) (6th Dictionary 834 that, Law Black's disclose 4. the record to were It 1. that is more place confinement (jail of circumstances, “[a] to take we current lockup less than police than a station standing, so there lacks that Mauro notice persons usually used to hold prison. It is controversy. doubtful It seems no case or (minor misdemeanors of either convicted crimes) pretrial in the Madi- detainee that he is still awaiting or as a lock- trial persons or nothing in But the record has Street Jail. son disorderly persons.”). up for intoxicated standing. indicate the absence it to ed.1990) (6th Dictionary 1194 Black’s Law 5. 520, 535, S.Ct. Wolfish, Bell v. ‘penitentiary’ are ("[t]he ‘prison’ and words (1979). 60 L.Ed.2d institutions designate synonymously used persons convicted imprisonment of for the crimes, distinguished more serious Safley, 3. Turner city jails.”). county from reformatories L.Ed.2d prisoners in the Madison Street Jail have receiving from Playboy punish is to him. been convicted of the crimes for which Wolfish,9 Under Bell v. Mauro is entitled held, they being although county defeat restriction if can he show jail system as a whole of course houses propositions true, either of two to be an pretrial both detainees and persons con- express punish, intent to purpose or a victed of crimes. county punish сan punishment that can be inferred from ex- inmates, convicted and can restrict First cessiveness of the restriction in relation to pretrial Amendment detainees to the legitimate purpose assigned to it: maintain jail, order in the but it cannot A court must decide whether the disabil- punish pretrial detainees or away take ity imposed purpose for the of punish- First right pretrial Amendment detain- ment or whether it is but an incident ees uniformity punish- maintain with some other legitimate governmental ment rules convicted in other criminals purpose. Absent a showing of an ex- facilities. pressed intent punish to part of Although the majority in concedes foot- officials, detention facility that determi- prison note that a regulation cannot be nation generally will turn on whether an adopted purpose for the of punishing and purpose alternative to which [the re- rehabilitating pretrial detainees, appli- its may striction] rationally be connected of “legitimate cation penological inter- it, assignable for appears and whether it est” test allows exactly that. “Penologi- excessive in relation to the alternative cal” means rеlating to the “theory and purpose assigned [to it].10 practice management crimi- question Thus the for us is whether the nal rehabilitation.”6 The word is derived record genuine establishes a issue of fact from the Greek and Latin meaning words on either of these questions. two If it penalty punishment, and still means does, Mauro is to try prove entitled to his roughly Turner, the same thing.7 after case.11 test, formulating the expressly treats reha- bilitation a legitimate as penological inter- Mauro had evidence sufficient to estab- est in holding its regarding a prohibition lish an issue of fact material to both Bell against marriages.8 inmate questions, though he only needed evidence First, on one. disagreement produced

Our he on which rule to evidence of apply has practical phrases substantial what Bell significance as expressed for “an intent case, this because punish there is to part evidence that on the facility detention why jail reason prohibits Mauro officials.” Arpaio, Sheriff who runs the (2d 6. Heritage Dictionary Am. college grounds. parties dispute the legitimacy ed.1985). purpose of the of the policy. Mauro's brief discusses the Penthouse interview with Sher- Arpaio iff “in which 7. Id. he stated pur- that the pose prohibiting behind sexually explicit mag- 'punish' azines jail was to inmates.” The 78, 97-99, Turner Safley, 8. 482 U.S. for the county argues brief sheriff and the 2254, (1987). S.Ct 96 L.Ed.2d 64 the ban had purposes, three "eliminating workplace against discrimination” female de- Wolfish, 9. Bell v. officers, “rehabilitation,” tention pre- and "to 60 L.Ed.2d 447 fights among vent argues inmates.” The brief that "rehabilitation of inmates is clearly a Bell, 10. (inter- 441 U.S. at 99 S.Ct. 1861 legitimate penological peno- interest.” The quotations omitted). nal citations and logical interest of rehabilitation is identical to punishment, that of in that it is constitutional- majority opinion argues that whether ly people limited to who been convicted imposed pur- issue was for of crimes. I agree therefore do not pose pretrial of punishing detainees “was not punishment aspect of the case "was not by parties raised in their briefs” so has parties raised in their briefs.” been waived. Mauro's brief broadly chal- lenges constitutionality 12.Bell, on all 441 U.S. at 99 S.Ct. 1861. admission, the sheriffs Even said, without of the exhibits submitted in one jail, genuine issue of summary judgment, Mauro has established opposition in criterion, magazines out Bell keeping in sex fact material to sеcond purpose his punish prisoners: purpose jail an alternative which “whether rationally in be connect- restriction] live better you [the think should I don’t it, They whether it outside.... assignable on the ed is jail than No Club country clubs. be in relation to the alter- appears shouldn’t excessive jail jails. you go to my Fed in When purpose assigned it].”17 The [to native certain give up have to you should say did not “excessive Supreme Court coffee, maga- adult things- smoking, being relation to the burdens — zines, means movies. Jail and R-rated inmate, being de- generally” —for jail and my ... This is punishment. among the less sub- Playboy prived they’re convicted here until they stay liberty. with his stantial interferences seen I’ve prison.... to state and sent is to be measured The excessiveness national them interviewed on some of legitimate purpose of main- relation to the television, plea agree- saying they’ll sign jail. If the restriction taining order my jail just get ments out legitimate in relation to that is excessive prison.13 sent to evidence that it serves a purpose, that is evidence that imagine better It is hard legitimate which not punitive purpose, punishment purpose of a restriction the of the crimе for people yet not convicted to saying that jail who runs the than the man jailed. they which are give to “should have pretrial his detainees summary on the papers submitted “jail magazines” ... because up adult jury to would enable a judgment motion uses And the sheriff means punishment.” prohibition publica- the conclude that it phrasing to make precise and careful nudity was excessive showing tions frontal de- talking pretrial about clear that he is maintaining purpose of in relation to the tainees, not convicted criminals. order, adopted purposes, for other and was cognizable not Arguably quotation this public punishment and relations. including 56(c) (e) because under Rule and evidence by deputy the written The memorandum hearsay. I cannot may inadmissible it be custody bureau to the sheriff chief of the we have excerpts of record tell from the purposes policy lists several justify to the Probably state- that is so. the whether maintaining to in addition other than and hearsay not as to an admission so ment is “morally we them are that Among order. words.14 But the defendant’s own material to those provide this should hearsay by may be inadmissible statement charged with (referring people people” purported quote Sher- reporter who crimes), requires law “[f]ederal sex I do not Arpaio saying iff these words.15 employee makes com- if a female admitted Arpaio has know whether Sheriff ob- what she considers plaint regarding or whether accuracy quotation,16 scene, must ensure employers that we as been by reporter has a declaration The memoran- is removed.” this material these the sheriff saying filed used relations as- public dum also discusses judge did not reach The district words. reporters, the ban pect presenting critical Admissibility of this question. up may bring newspaper noting that “[t]he the dis- to be ruled ought evidence sys- Prison Arizona the fact that State trict court. City Angeles, 946 F.2d Los prelimi- 15. plaintiffs motion E to Larez 13. Exhibit (9th 1991). Sonnenschein, Cir. nary injunction, Allan Sheriff Penthouse, January, at Arapaio, Joe Inc., Magazine, v. New Yorker 16. Masson Cf. added). (emphasis 1996). (9th Cir. 85 F.3d 1394 801(d)(2). Bell, 14. Fed.R.Evid. 99 S.Ct. 1861. smoking sexually system tem allows both ex- was never used deal with the plicit prisoners.” material to its The mor- magazines by pris- violative uses of sexual must, prisoners al rehabilitation of the of oners. course, await their convictions. jail personnel gave The reason for not out, majority opinion As the sets some using discipline system was that there prisoners disgusting things using did sexu- many too stays were violations and the ally magazines props, oriented to harass too necessarily were short. That reason is guards. female far So as the record indi- speculative discipline proceedings where cates, plaintiff never did. The harass- charges attempted. were not even Even by prisoners ment other does not establish though all the an expressway drivers on banning magazines is not exces- may going twenty miles an hour over goal sive relative to the of maintaining limit, speed probably it will not be Every order. single harassing one of the necessary get to ticket more than a few to by plainly prohibited actions inmates was the rest to slow down. Likewise for more jail discipline code. The has prisoners’ serious offenses such as the dis- express against “engaging rules in sexual orderly magazines, use of sexual punish- acts,” “making proposals sexual or ment of a few deter the rest. The threats,” exposure,” “indecent “refusing to issue, liberty at a First liberty Amendment obey staff,” direct orders from M.C.S.O. (and publishers to read acсess to employee,” “assault on “fighting,” and readers18) one, especially substantial disrupts security opera- “conduct which people where it involves whom the state institution,” among tion of others. The prisoner yet holds as but who have not penalties typically disci- substantial — Ironically, been convicted of crimes. plinary restriction, full segregation, prisoners could not read the Penthouse exposure, reclassification. Indecent en- ap- interview of the sheriff it because acts, gaging in sexual making pro- sexual peared in publication that shows frontal posals, subject restriction, are all to unit nudity. may It be that trial would lead to segregation and other sanctions. These that, finding of fact without that evidence imposed by sanctions can be means of a discipline system had been tried and simple discipline procedure, internal with- failed, a total ban was excessive relative to out of proving burden criminal (Or legitimate its purpose. it might be charges. that it go would not—the case could either jail Yet magazines banned the and far). way on the evidence in the record so other everyone, materials for instead of enough There is plaintiff here to allow the punishing people who used them as get the question to trial. props with which the guards. harass the A question related on which there is a Though the punished inmates could not be genuine issue of fact is whether the ban for the crimes with they which were works. If the ban magazines on sexual charged court, until they were in convicted reasonably not a pre- effective means for they punished could be discipline viola- venting inmates fighting, harassing from relatively

tions after informal discipline guards, and disrupting otherwise good proceedings jail. in the Punishment of jail, order of the then the ban is excessive malefactors is the pre- traditional means of relative purpose. to that A ban on an venting people misusing from their liber- exercise constitutionally protected of a lib- leaving ties while the liberties intact for erty, permissible to serve a purpose, those who do not misuse them. in- One mate excessive relative to that if purpose whose conduct was it especially egre- does gious crime, charged effectively with a not depositions but so far serve it. The indicates, as jail the record disсipline indicate that inmate sexual harassment of Abbott, 401, 408, Thornburgh ("publishers legitimate ... have a First (1989) 104 L.Ed.2d prisoners”). Amendment interest in access to of continued, allowing limitations on the despite the sions has guards female preserve order in the though pretrial some detainees magazines, on sexual ban The evidence jail declined. include this radical extension of sexual say it has guards magazines as workplace use sexual guards’ inmates law. The that harassment described guards, female residence, to harass props and it is an unan- the inmates’ not show that opinion, does majority in the benefit from question swered in- prevents magazines banning sexual uncon- development of a record whether harassing female sexually from mates pretrial custody in must victed individuals people get who Many of the guards. up liberty they what like give their read inappropri- likely to act jail in are thrown inter- guards’ in order to accommodate sexually oriented ately with or without sexually in the absence of offensive est considering that most And magazines. workplace. at It is one material their males, they are jail young are people jail to ban offensive sexual thing for the their thoughts about likely to have sexual women displays may drive some from Be- jail guards. if the uses female guards, receipt ban workplace, and another to male guards for jail cause the uses female possession display. and even without inmates in must and because prisoners, receipt publications, pic- ban here is on facilitate in order to up privacy their give and and other girlfriends, tures of wives going are security, guards the female nudity, include frontal not materials that things that are prisoners doing see the or display guards those items to on people in front of ordinarily not done improper use of them. The harass- other sex, anyone opposite front prohib- displays improper uses ing wheth- go way either all. A trial could discipline posses- rules. That ited from publications, pictures the ban on er may publications offend does sion of these and other material girlfriends, wives States, “The justify banning them. not nudity, purpose showing frontal serves morality” public acting guardians as or is exces- maintaining order merely prohibit speech not because of purpose to that sive relative The harass- it is offеnsive.20 basis ineffectiveness. offense, ment, to the is caused opposed question reached the We have purposely magazines in a by display of the nudi- showing frontal publications whether manner, regulation at but the harassing kept pretrial from detainees ty may be possession receipt their goes issue jail administrator’s concerns jail because of engage in such by those who do not even “[fjederal law that if a female requires that conduct, plaintiff. as the such complaint regarding employee makes a earlier, yet my speculation, IAs said obscene, that we as what she considers has facts because there unsupported by material must ensure this employers trial, majority will turn is that the been no argue in their brief Defendants removed.” Jails can be right to be its result. out in a preventing “hostile environment” that need some blunt tools rough places, and “compelling” government workplace is a themselves prisoners behave make the possession justifies a ban interest be jail may there. The well they are while ratio- sexually speech. This oriented nearly all the items able show nale, course, jails.19 limited to in are that come nudity showing frontal justify government argument wives photographs of magazines and sex showing possession publications ban fight and that the inmates girlfriends, workplace, nudity any whether frontal good order disrupt and otherwise I am displayed anyone or not. they are in, no matter jail if are allowed these Supreme Court deci- not so sure 15, 22-23, Volokh, 91 California, 403 Eugene 20. Cohen v. 19. See generally, Freedom (1971). Workplace 29 L.Ed.2d Speech Appellate Review in Cases, Northwestern Univ. Harassment L.Rev. 1009 discipline. what the tries to do about hand, majority may the other

On wrong. might The evidence establish purpose nudity frontal of the ban on punish pictures prisoners them, proved by express as is rehabilitate or excessiveness relative to declarations jail. A goal preserving order good way trial is a to find out. Arizona people has to convict these before it is punish entitled to and rehabilitate them. Queen’s in- We must not follow the Red junction, after- “sentence first —verdict ward.” America,

UNITED STATES of Plaintiff-Appellee, Guadalupe BLANCO-GALLEGOS, Jose

Defendant-Appellant.

No. 98-50136. Appeals, United States Court of Circuit. Ninth Argued and ‍​​‌‌​​​‌​‌​​‌​‌​‌​‌​‌‌‌​​​​‌‌‌​‌‌‌​‌‌​‌‌​​‌​‌​‌​‍Submitted Feb. April Memorandum Filed Opinion1 Aug. Order and Filed Carroll, concurrently Opinion Lewis Alice’s Adventures' in Won- milted with this (Random 1946). derland 146 House Redesignating Disposi- Order Memorandum Opinion. tion to an 1, 1999, April hereby 1. The dissent filed being withdrawn. A revised dissent is trans-

Case Details

Case Name: Jonathan D. Mauro v. Joseph M. Arpaio, Sheriff Maricopa County, a Political Subdivision of the State of Arizona

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Aug 17, 1999

Citation: 188 F.3d 1054

Docket Number: 97-16021

Court Abbreviation: 9th Cir.