                                                                                                                           Opinions of the United
1999 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-30-1999

Waterman v. Farmer
Precedential or Non-Precedential:

Docket 98-6261




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Recommended Citation
"Waterman v. Farmer" (1999). 1999 Decisions. Paper 181.
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Filed June 30, 1999

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 98-6261

RICHARD WATERMAN; MICHAEL CURTIS

v.

JOHN FARMER, JR., New Jersey Attorney General; JACK
TERHUNE, New Jersey Commissioner of Corrections;
WILLIAM PLANTIER, Superintendent of the Adult
Diagnostic & Treatment Center, individually and in their
official capacity,

       Appellants

ON APPEAL FROM THE
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

(D.C. Civil No. 98-cv-1938)
District Judge: The Honorable Alfred M. Wolin

Argued: January 14, 1999

Before: NYGAARD, ALITO, and LEWIS, Circuit Judges

(Opinion Filed: June 30, 1999)

       Lawrence S. Lustberg (argued)
       Mark A. Berman
       Laura K. Abel
       Gibbons, Del Deo, Dolan, Griffinger
        & Vecchione
       One Riverfront Plaza
       Newark, NJ 07102-5497
       Attorney for Appellees
       Peter Verniero
       Ronald L. Bollheimer
       Joseph L. Yannotti (argued)
       Adrianna Calderon
       Office of Attorney General
        of New Jersey
       Richard J. Hughes Justice Complex
       Trenton, NJ 08625
       Attorneys for Appellants

       Gregory J. Sullivan
       3812 Quakerbridge Rd.
       Hamilton, New Jersey 08619

       Dennis J. Saffran
       Center for the Community Interest
       New York Regional Office
       345 East 37th Street, Suite 303
       New York, New York 10016
       Attorneys for Amici Curiae Center
       for the Community Interest,
       Assemblyperson Marion Crecco, The
       Friends of Amanda Foundation,
       Voices for Victims, The Mark Klaas
       Foundation for Children, Justice for
       All, Protecting Our Children, and
       Women Against Violence.

OPINION OF THE COURT

ALITO, Circuit Judge:

Two prisoners at a facility for sex offenders who have
exhibited "repetitive and compulsive" behaviorfiled this
lawsuit under 42 U.S.C. S 1983, alleging that a recently
enacted New Jersey statute, N.J.S.A. 2C:47-10, violated
their constitutional rights by restricting their access to
pornographic materials. The District Court concluded that
the statute was unconstitutional and permanently enjoined
state officials from enforcing it. Waterman v. Verniero, 12
F.Supp.2d 378 (D.N.J. 1998). Subsequent to the District
Court's decision, the state adopted regulations clarifying

                               2
the statute's scope. Informed by these regulations, we hold
that the plaintiffs' constitutional challenge lacks merit, and
we therefore reverse the decision of the District Court.

I.

Plaintiffs Richard Waterman and Michael Curtis are
convicted pedophiles1 incarcerated at the Adult Diagnostic
and Treatment Center ("A.D.T.C.") in Avenel, New Jersey.
The New Jersey Department of Corrections ("D.O.C.")
operates the A.D.T.C. for the sole purpose of housing and
rehabilitating sex offenders (i.e., pedophiles, child
molesters, and rapists) who have exhibited behavior that is
"repetitive and compulsive." Non-repetitive and non-
compulsive sex offenders are housed in other institutions
with the general prison population. The A.D.T.C. houses
750 inmates, approximately 70% of whom are pedophiles.

The A.D.T.C.'s therapeutic staff provides the inmates with
intensive sex offender treatment, employing a four-step
program that "is designed to present information and
therapeutic experiences in a progressive order to ameliorate
the offender's proclivity towards criminal sexual behavior."
App. at 127. Each step focuses on concepts of victim
empathy and the offender's sexual deviance. D.O.C. officials
believe that this type of treatment can reduce recidivism.

In 1998, the New Jersey Assembly and Senate
unanimously enacted a bill that banned "sexually oriented
and obscene materials" from the A.D.T.C.2 Governor
_________________________________________________________________

1. Plaintiff Waterman is currently serving a 54-year prison sentence for
sexually abusing a nine-year-old girl. Waterman has two previous
convictions for pedophiliac offenses--one for abducting and raping an
eleven-year-old girl and the other for fondling a nine-year-old girl.

Plaintiff Curtis is currently serving a 20-year sentence with 10 years of
parole ineligibility for sexually abusing and taking nude photographs of
a 14-year-old boy. Curtis also has a prior pedophiliac conviction: he
received a sentence of probation for sexually assaulting a 15-year old
boy.

2. Prior to 1998, A.D.T.C. officials had authority to prohibit inmates
from
possessing certain obscene publications pursuant to N.J.A.C. 10A:18-
4.9(a)(6). However, before taking such action, officials had to find that

                               3
Whitman signed the bill into law. The statute reads as
follows:

        a. As used in this act, "sexually oriented material"
       means any description, narrative account, display, or
       depiction of sexual activity or associated anatomical
       area contained in, or consisting of, a picture or other
       representation, publication, sound recording, live
       performance, or film.

        b. An inmate sentenced to a period of confinement
       in the Adult Diagnostic Treatment Center shall not
       receive, possess, distribute or exhibit within the center
       sexually oriented material, as defined in subsection a.
       of this section. Upon the discovery of any such material
       within the center, the commissioner shall provide for
       its removal and destruction, subject to a departmental
       appeal procedure for the withholding or removal of
       such material from the inmate's possession.

       c. The commissioner shall request an inmate
       sentenced to confinement in the center to acknowledge
       in writing the requirements of this act prior to the
       enforcement of its provisions. Any inmate who violates
       the provisions of subsection b. of this section shall be
       subject to on-the-spot sanctions pursuant to rules and
       regulations adopted by the commissioner.
_________________________________________________________________

       [t]he publication contains material which, based upon the
       experience and professional expertise of correctional
administrators
       and judged in the context of a correctional facility and its
       paramount interest in security, order and rehabilitation:

       i. Taken, as a whole, appeals to a prurient interest in sex;

       ii. Lacks, as a whole, serious literary, artistic, political or
scientific
       value; and

       iii. Depicts, in a patently offensive way, sexual conduct including
       patently offensive representations or descriptions of ultimate sex
       acts, masturbation, excretory functions, lewd exhibition of the
       genitals, sadism or masochism.

N.J.A.C. 10A:18-4.9(a)(6). This section still applies in New Jersey's
other
correctional facilities.

                               4
        d. A person who sells or offers for sale the material
       prohibited in subsection b. either for purposes of
       possession or viewing or who receives, possesses,
       distributes or exhibits any text, photograph, film, video
       or any other reproduction or reconstruction which
       depicts a person under 18 years of age engaging in a
       prohibited sexual act or in the simulation of such an
       act as defined in section 2 of P.L. 1992, c. 7 (C.2A:30B-
       2), within the center shall be considered to have
       committed an inmate prohibited act and be subject to
       sanctions pursuant to rules and regulations adopted
       by the commissioner.

N.J.S.A. 2C:47-10.

Plaintiffs filed this lawsuit pursuant to 42 U.S.C. S 1983,
alleging that the statute violated their constitutional rights.
They named as defendants Peter Verniero, then the
Attorney General of New Jersey;3 Jack Terhune,
Commissioner of the New Jersey Department of
Corrections; and William Plantier, Superintendent of the
A.D.T.C. (collectively, "Defendants").

The District Court preliminarily enjoined the enforcement
of N.J.S.A. 2C:47-10 pending a final determination
regarding the statute's constitutionality. Waterman v.
Verniero, 12 F.Supp.2d 364 (D.N.J. 1998) (Waterman I). The
District Court later concluded that the statute was
unconstitutional and permanently enjoined Defendants
from enforcing it. Waterman v. Verniero, 12 F.Supp.2d 378
(D.N.J. 1998) (Waterman II). Defendants appealed.

Several weeks after this case was argued on appeal,
counsel for Defendants advised the Court, pursuant to Fed.
R. App. P. 28(j), that New Jersey had promulgated
regulations implementing N.J.S.A. 2C:47-10. The
regulations significantly narrow the statute's scope by
defining many of the operative terms. The regulations
contain the following definitions:

        "Associated anatomical area" means exposed or
       unclothed genitalia or female breasts.
_________________________________________________________________

3. John Farmer, Jr. has since replaced Peter Verniero as Attorney
General of New Jersey.

                                5
        "Sexual activity" means actual or simulated ultimate
       sexual acts including sexual intercourse, oral sex,
       masturbation, or bestiality.

        "Sexually oriented material" means a picture or other
       representation, publication, sound recording, live
       performance or film that contains a description or
       depiction of sexual activity or associated anatomical
       area, as these terms are herein defined.

N.J.A.C. 10A:18-9.1 (1999). The regulations also provide
that "[m]aterials containing a depiction or description of
sexual activity or an associated anatomical area shall not
be considered `sexually oriented' unless the material is
predominantly oriented to such depictions or descriptions."
N.J.A.C. 10A:18-9.2(b). A publication is considered
"predominantly oriented to the depiction or description of
sexual activity or associated anatomical area" only if it
"features or contains such descriptions or displays on a
routine or regular basis or promotes itself based upon such
depictions in the case of individual one-time issues."
N.J.A.C. 10A:18-9.2(c).

The regulations prescribe the procedures that A.D.T.C.
staff must follow when notifying inmates that a particular
publication is prohibited by the statute. N.J.A.C. 10A:18-
9.3. They also impose sanctions for violations of the
statute, N.J.A.C. 10A:18-9.5, and exempt from regulation
all materials deemed to serve a legitimate rehabilitative
purpose, N.J.A.C. 10A:18-9.4.

II.

Defendants raise two arguments on appeal. First, they
argue that the District Court erred in finding the statute
unconstitutionally vague and overbroad. Second, they
argue that the District Court erred in concluding that the
statute is not rationally related to a legitimate penological
interest. Because both of these arguments present
questions of law, our review is plenary. See United States v.
Various Computers & Computer Equip., 82 F.3d 582, 589
(3d Cir. 1996) ("Constitutional interpretations are questions
of law subject to plenary review.").

                                6
A. Vagueness and Overbreadth

The District Court declared N.J.S.A. 2C:47-10
unconstitutionally vague4 and overbroad.5 In so doing, the
Court noted that the statute was unconstitutional
regardless of whether it was rationally related to a
legitimate penological interest under Turner v. Safley, 482
U.S. 78 (1987). See Waterman II, 12 F.Supp.2d at 381
("Although the Court need not address whether New Jersey
had a valid penological interest when it passed N.J.S.A.
2C:47-10, it will briefly discuss the issue because the
parties have hotly contested the issue and because the
Court's analysis may aid the New Jersey Legislature if they
decide to rewrite the statute.").
_________________________________________________________________

4. A law or regulation can be deemed unconstitutionally vague if "men of
common intelligence must necessarily guess at its meaning and differ as
to its application. . . ." Connally v. General Constr. Co., 269 U.S. 385,
391 (1926). Although the vagueness doctrine was originally used to
invalidate--on due process grounds--penal statutes that fail to "define
the criminal offense with sufficient definiteness that ordinary people can
understand what conduct is prohibited," Kolender v. Lawson, 461 U.S.
352, 357 (1983), courts frequently apply it in the First Amendment
context.

The vagueness doctrine is similar--though not identical--to the
doctrine of overbreadth. As with the overbreadth doctrine, a vagueness
challenge can nullify an ambiguous law that "chills" protected First
Amendment activities. But unlike the overbreadth doctrine, the
vagueness doctrine was designed to guarantee "fair and non-
discriminatory application of the laws, thus reflecting its roots in the
due
process clause." Kriemer v. Bureau of Police for the Town of Morristown,
958 F.2d 1242, 1266 (3d Cir. 1992).

5. A law or regulation is invalid on its face under the overbreadth
doctrine if it "does not aim specifically at the evils within the
allowable
area of control [by the government] but . . . sweeps within its ambit
other
[constitutionally protected] activities." Thornill v. Alabama, 310 U.S.
88,
97 (1940). The overbreadth doctrine is an exception to conventional
standing requirements. It provides that an individual whose conduct
may be prohibited may challenge a regulation "because [that regulation]
also threatens others not before the court--those who desire to engage
in legally protected expression but who may refrain from doing so rather
than risk prosecution or undertake to have the law declared partially
invalid." Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 503 (1985).

                               7
Defendants now argue that the District Court erred in
concluding that it could declare the statute
unconstitutional without first considering whether it was
rationally related to a legitimate penological interest. We
agree.

Constitutional challenges to laws, regulations, and
policies governing prison management must be examined
under the framework of Turner v. Safley, 482 U.S. 78
(1987). In Safley, the Supreme Court acknowledged that
"courts are ill-equipped to deal with the increasingly urgent
problems of prison administration and reform." Id. at 84
(internal quotations omitted). Accordingly, the Court set out
"to formulate a [comprehensive] standard of review for
prisoners' constitutional claims that is responsive both to
the `policy of judicial complaints and [to] the need to protect
constitutional rights.' " Id. (quoting Procunier v. Martinez,
416 U.S. 396, 406 (1974)). Because vagueness and
overbreadth challenges embody "constitutional claims,"
they must be analyzed under the four-pronged test
announced in Safley. See, e.g., Procunier v. Martinez, 416
U.S. 396 (1974) (analyzing plaintiffs' vagueness claims
under an evolutionary precursor to the Safley test); Amatel
v. Reno, 156 F.3d 192, 203 (D.C. Cir. 1998) (addressing
plaintiffs' overbreadth claims under Safley ), cert. denied, 67
U.S.L.W. 3588 (U.S. June 24, 1999) (No. 98-1452); Mauro
v. Arpaio, 147 F.3d 1137, 1140-1144 (9th Cir.) (analyzing
plaintiffs' overbreadth claims under Safley ), withdrawn,
162 F.3d 547 (1998) (ordering rehearing en banc).

Furthermore, the substantial overlap between the Safley
test and the doctrines of vagueness and overbreadth 6
suggests that the Supreme Court did not intend for those
_________________________________________________________________

6. The Safley test takes into account many of the same factors
considered under the doctrines of vagueness and overbreadth. As we
explain in greater detail later in this opinion, see infra., section
II.B.,
Safley requires courts to consider (1) whether a rational connection
exists between the regulation and a neutral, legitimate government
interest; (2) whether alternative means exist for inmates to exercise the
constitutional right at issue; (3) what impact the accommodation of the
right would have on inmates, prison personnel, and allocation of prison
resources; and (4) whether obvious, easy alternatives exist. Safley, 482
U.S. at 89-91.

                               8
doctrines to apply with independent force in the prison-
litigation context. It would therefore be both redundant and
inconsistent with Safley to subject N.J.S.A. 2C:47-10 to an
independent challenge under the doctrines of vagueness
and overbreadth.7

For this reason, we need not address Plaintiffs' vagueness
and overbreadth challenges separately. Instead, if the
challenged statute withstands review under Safley, it does
not violate the Constitution. See Safley, 482 U.S. at 89
("[W]hen a prison regulation impinges on inmates'
constitutional rights, the regulation is valid if it is
reasonably related to legitimate penological interests.") The
District Court erred in concluding otherwise.

B. Reasonable Relation to Legitimate Penological Interests

As the District Court correctly noted, prisoners"do not
lose their constitutional rights when they become
incarcerated, and free citizens do not lose their ability to
`exercis[e] their own constitutional rights by reaching out to
those on the inside.' " Waterman I, 12 F.Supp.2d. at 371
(quoting Thornburgh v. Abbott, 490 U.S. 401, 407 (1989)).
Nevertheless, prisoners' constitutional rights are necessarily
limited. Jones v. North Carolina Prisoners' Union, 433 U.S.
119, 125 (1977) ("The fact of confinement and the needs of
the penal institution impose limitations on constitutional
rights, including those derived from the First Amendment,
which are implicit in incarceration.").

In Safley, the Supreme Court explained that "when a
prison regulation impinges on inmates' constitutional
rights, the regulation is valid if it is reasonably related to
legitimate penological interests." 482 U.S. at 89. Safley
directs courts to assess the overall reasonableness of such
regulations by weighing four factors. "First, there must be
a `valid, rational connection' between the prison regulation
and the legitimate governmental interest put forward to
justify it," and this connection must not be "so remote as to
_________________________________________________________________

7. Counsel for Plaintiffs effectively conceded this point at oral
argument.
Transcript of Oral Argument at 34 ("[T]he truth of the matter is that
pretty conventional vagueness and overbreadth analysis are built into
the four factors of [Safley].").

                                9
render the policy arbitrary or irrational." Id. at 89-90
(quoting Block v. Rutherford, 486 U.S. 576, 586 (1984)).
Second, a court must consider whether inmates retain
alternative means of exercising the circumscribed right. Id.
at 90. Third, a court must take into account the costs that
accommodating the right would impose on other inmates,
guards, and prison resources generally. Id. And fourth, a
court must consider whether there are alternatives to the
regulation that "fully accommodate[ ] the prisoner's rights
at de minimis cost to valid penological interests." Id. at 90-
91. Although the factors are intended to serve as guides to
a single reasonableness standard, "the first factor looms
especially large" because it "tends to encompass the
remaining factors, and some of its criteria are apparently
necessary conditions." Amatel, 156 F.3d at 196.

1. Rational Connection to a Legitimate and Neutral
       Objective

Under the first prong of the Safley test, we must decide
whether the statute bears a "valid, rational connection" to
a legitimate and neutral governmental objective. Safley, 482
U.S. at 89-90 (quoting Block v. Rutherford, 468 U.S. at
586). Accordingly, we may conclude that the statute fails to
satisfy this prong if the statute promotes an interest that is
illegitimate or not neutral, or if the statute bears no "valid,
rational connection" to the asserted interest. Id. at 89-90.

       a. Legitimacy

Defendants argue that the statute promotes the
legitimate penological interest of rehabilitation. While the
District Court acknowledged that "rehabilitation is a valid
penological interest," it concluded that Defendants'
explanation of the statute's purpose was pretextual and
theorized that the statute was motivated more by an
indignant animus toward sex offenders than a genuine
attempt to rehabilitate them:

       New Jersey did not have a valid penological interest
       when it enacted N.J.S.A. 2C:47-10 because
       rehabilitation does not appear to be the true reason
       why the New Jersey Legislature passed N.J.S.A. 2C:47-
       10. The legislative history does not mention

                               10
       rehabilitation, and Dr. Nancy Graffin, the Director of
       Psychology at the ADTC, did not testify before either
       the Assembly or the Senate, and learned about the
       statute after it was enacted. Most importantly, the
       Department of Corrections formally opposed the statute
       before Governor Whitman signed it because the
       Department believed that adult pornography for
       inmates at the ADTC was a step in the right direction.
       Thus, the true reason for the enactment of N.J.S.A.
       2C:47-10 appears to be public outrage over some of the
       heinous, pedophiliac crimes that occurred in New
       Jersey.

Waterman II, 12 F.Supp.2d at 381. Thus, the District Court
treated the dearth of legislative history as conclusive proof
that the "true" purpose of the statute was not to
rehabilitate sex offenders, but instead to satisfy the
widespread "public outrage over some of the heinous,
pedophiliac crimes that occurred in New Jersey." Id. at 381.

This assessment cannot withstand review. The absence of
legislative facts has no bearing on whether a statute's
purpose is legitimate. Nordlinger v. Hahn, 505 U.S. 1, 15
(1992). Moreover, a time-honored principle of constitutional
law reminds us that judicial second-guessing of a
legislature's motives is "generally unwarranted" "absent
some reason to infer antipathy." Vance v. Bradley, 440 U.S.
93, 97 (1979). Consequently, the fact that the statute's
"legislative history does not mention rehabilitation" is
irrelevant. As our en banc court emphasized in Phillips v.
Borough of Keyport, 107 F.3d 164 (3d Cir. 1997):

       [t]here is a significant difference between the
       requirement that there be a factual basis for a
       legislative judgment presented in court when that
       judgment is challenged and a requirement that such a
       factual basis have been submitted to the legislative
       body prior to the enactment of the legislative measure.
       We have always required the former; we have never
       required the latter. Whatever level of scrutiny we have
       applied in a given case, we have always found it
       acceptable for individual legislators to base their
       judgments on their own study of the subject matter

                               11
       of the legislation, their communications with
       constituents, and their own life experience and
       common sense so long as they come forward with the
       required showing in the courtroom once a challenge is
       raised. . . . We perceive no justification in policy or
       doctrine for abandoning our traditional approach.
       Moreover, we believe that insistence on the creation of
       a legislative record is an unwarranted intrusion into
       the internal affairs of the legislative branch of
       governments.

Id. at 178.

In this case, it is beyond dispute that New Jersey has a
legitimate penological interest in rehabilitating its most
dangerous and compulsive sex offenders. See O'Lone v.
Estate of Shabazz, 482 U.S. 342, 348 (1987) (recognizing
rehabilitation as a "valid penological objective"); see also
Waterman II, 12 F.Supp.2d at 381 ("[T]he Court recognizes
that rehabilitation is a valid penological interest . . . .").
Seeing no reason to question Defendants' assertion that the
statute serves the purpose of promoting the rehabilitative
efforts of the A.D.T.C., we reject the District Court's
conclusion that the statute's purpose is illegitimate.

       b. Neutrality

The District Court made no findings concerning the
statute's neutrality. However, in Thornburgh v. Abbott, 490
U.S. 401 (1989), the Supreme Court made clear that
Safley's "neutrality" requirement is met if the asserted
interest is "unrelated to the suppression of expression." Id.
at 415. As we have already explained, the statute's purpose
is to enhance the A.D.T.C.'s efforts to rehabilitate New
Jersey's most serious sex offenders. Because the state's
interest in rehabilitation is "unrelated to the suppression of
expression," we conclude that the statute's purpose is
neutral for purposes of Safley.

       c. Means-End Fit

We may conclude that the statute bears no "valid,
rational connection" to rehabilitation if "the logical
connection between the [statute] and the asserted goal is so

                               12
remote as to render the policy arbitrary or irrational."
Safley, 482 U.S. at 89-90. This standard is similar to
rational-basis review, under which a statutory classification
can be declared unconstitutional only where the
relationship of the classification to its asserted goal is "so
attenuated as to render the distinction arbitrary or
irrational." Nordlinger, 505 U.S. at 11 (1992). See Amatel,
156 F.3d at 198-99 (D.C. Cir. 1998) ("[T]he similarity
between Safley's phrasing and the language of rational
basis review suggests to us that, as far as the means-end
fit is concerned, Safley's standard is, if not identical,
something very similar."). The legislature's judgment
therefore need not be perfect, just rational.

During proceedings before the District Court, Defendants
presented evidence that the statute bears a "valid, rational
connection," Safley, 482 U.S. at 89-90, to the rehabilitation
of sex offenders. They submitted affidavits from two
psychologists--Dr. Nancy Graffin, Ph.D., and Dr. Timothy
Foley, Ph.D.--both of whom testified that pornographic
material threatened to thwart the effectiveness of the
treatment given to A.D.T.C. inmates.

Dr. Graffin testified that throughout their treatment,
A.D.T.C. inmates are required to develop an advanced
understanding of the consequences of their sexual assaults
and recognize cognitive distortions associated with their
sexual abuse. App. at 125-29. She further explained that
during the final treatment phase, inmates are required to
demonstrate victim sensitivity and the ability to connect
emotionally with others. Id. Finally, Dr. Graffin explained
that sexually oriented material can be a threat to A.D.T.C.
treatment because pornographic material tends to objectify
the individuals depicted. Id.

Similarly, Dr. Foley testified that sexually explicit
material could be harmful to A.D.T.C. inmates, reasoning
that exposure to such material can lead the inmates to
believe that intimacy can be achieved only through sexual
release and that a victim is necessary for sexual enjoyment.
App. at 135-140. He also concluded that pornography is
particularly dangerous to A.D.T.C. inmates because some
sex offenders tend to use such material to supply and
fortify their fantasies and are likely to engage in a series of

                               13
"trial runs" of these fantasies once they are released from
prison. Id.

In addition to the affidavits of Drs. Graffin and Foley,
Defendants also referred the Court to "a considerable body
of research supporting the view that the sexual material
prohibited by the statute is harmful to prisoners and poses
a danger to society when these sex offenders consume it."
Br. for Appellants at 16, 31.

Nevertheless, the District Court concluded that the
statute did not bear a "valid, rational connection" to a
legitimate and neutral governmental objective. See
Waterman II, 12 F.Supp.2d at 381. In so doing, the Court
suggested that the lack of consensus among psychologists
invalidated Defendants' contention that the statute
enhanced the state's efforts to rehabilitate its most serious
sex offenders. The Court wrote:

       After reviewing the experts' affidavits, the Courtfinds
       that the psychology field has not yet reached an
       agreement on how sexually oriented materials affect
       the treatment of sex offenders. Although the Court is
       not equipped to resolve that issue, it has determined
       that plaintiffs' experts are more convincing because
       their position is more reasonable. Given the
       disagreement in the psychology field on this issue, it
       seems most appropriate for psychologists to determine
       whether to use such materials on a case-by-case basis.
       On the other hand, flatly prohibiting such materials, as
       N.J.S.A. 2C:47-10 proposes to do, would deny certain
       sex offenders valuable treatment. Thus, N.J.S.A.
       2C:47-10 actually diminishes New Jersey's purported
       interest in rehabilitation. The Court concludes that the
       statute is not rationally related to rehabilitation
       because plaintiffs' experts' recommendation that the
       materials be reviewed on a case-by-case basis is a
       better method for handling the materials than that
       provided by the statute and New Jersey's experts.

Id. at 382. Simply stated, the District Court based its
conclusion on the fact that "[t]he experts in this case
disagree on the effect that the materials will have on the
treatment of the inmates at the A.D.T.C." Id. at 381; see

                                14
also id. at 382 ("The psychology field has not yet reached
an agreement on how sexually oriented materials affect the
treatment of sex offenders.").

Notably, the Court did not conclude that the opinions
expressed by the Defendants' experts were irrational or
unreasonable. Rather, the Court opined that the theories
advanced by the Plaintiffs' experts were "better," "more
convincing," and "more reasonable," id . at 382, thereby
suggesting that the opinions expressed by the Defendants'
experts were in fact reasonable, but simply less so than the
Plaintiffs' experts' opinions.

The District Court applied the wrong standard, replacing
the New Jersey legislature's policy decisions with its own
"more reasonable" judgment. In so doing, the Court failed
to accord the legislature's judgment the deference to which
it is entitled.8 The appropriate question is not whether the
theories advanced by either party's experts are"more
reasonable" and "more convincing," but instead whether
"the logical connection between the [statute] and the
asserted goal" of improving the A.D.T.C.'s sex offender
_________________________________________________________________

8. Two factors present in this case compel us to examine the New Jersey
legislature's judgment deferentially. First, the statute governs the
management of one of New Jersey's prisons. As the Supreme Court
explained in Safley, determinations related to prison management are
"peculiarly within the province of the legislative and executive branches
of government," and must therefore be reviewed with a "policy of judicial
restraint." Safley, 482 U.S. at 84-85 (internal citations and quotation
marks omitted). That policy applies with even greater vigor here because
"[w]here a state penal system is involved, federal courts have . . .
additional reason to accord deference to the appropriate . . .
authorities."
Id.

Second, in enacting N.J.S.A. 2C:47-10, the legislature has
"undertake[n] to act in [an] area[ ] fraught with . . . scientific
uncertainties." Marshall v. United States, 414 U.S. 417, 427 (1974). The
Supreme Court has explained that in such circumstances, "legislative
options must be especially broad and courts should be cautious not to
rewrite legislation, even assuming arguendo, that judges with more
direct exposure to the problem might make wiser choices." Id. at 427.
Stated differently, courts are bound to give the legislature greater
deference--not less--where the latter has "undertake[n] to act in [an]
area[ ]" where "experts disagree." Id. at 427.

                                15
rehabilitation program is "so remote as to render the policy
arbitrary or irrational." Safley, 482 U.S. at 89-90.

In a recent decision upholding a statute that effectively
prohibits the distribution of sexually explicit material in
federal prisons, the United States Court of Appeals for the
District of Columbia Circuit acknowledged its deferential
role under Safley. The Court explained that the legislative
judgment underlying the challenged statute need not be
perfect to be deemed rationally connected to a legitimate
penological interest:

       The legislative judgment is that pornography adversely
       affects rehabilitation. It does not matter whether we
       agree with the legislature, only whether we find its
       judgment rational. The question for us is not whether
       the regulation in fact advances the government
       interest, only whether the legislature might reasonably
       have thought that it would.

Amatel, 156 F.3d at 199 (D.C. Cir. 1998).

We agree with the Amatel panel's analysis; as long as the
statute is rational, it clears Safley'sfirst hurdle. Thus,
Defendants need only demonstrate that "the [New Jersey]
legislature might reasonably have thought that [the statute]
would" advance the interest of rehabilitating the sex
offenders housed at the A.D.T.C. Id. at 199.

We conclude that the Defendants made such a showing
and that New Jersey "could rationally have seen a
connection between pornography and rehabilitative values."
Id. at 199. Many psychologists--Defendants' experts
included--have expressed well-reasoned opinions
supporting Defendants' argument that the statute will
enhance the A.D.T.C.'s rehabilitative efforts. These opinions
provide a sufficient basis for us to conclude that the statute
bears a valid rational connection to a legitimate penological
interest.

Moreover, "[c]ommon sense tells us that prisoners are
more likely to develop the now-missing self-control and
respect for others if prevented from poring over pictures
that are themselves degrading and disrespectful." Id. at
199. Thus, even without the opinions of Defendants'

                               16
experts, we could conclude that New Jersey acted rationally
in enacting N.J.S.A. 2C:47-10 because the theoretical
underpinnings of the statute

       share[ ] at least a core with ideas that have a lineage of
       a few centuries, perhaps millennia, stressing the
       desirability of deferring sexual gratification, of
       sublimation of sexual impulses, of channeling sexual
       expression into long-term relationships of caring and
       affection, of joining eros to agape. The supposition that
       exclusion of pornography from prisons will have much
       of an impact in this direction may be optimistic, but it
       is not irrational.

Id. at 199.

Plaintiffs acknowledge that Amatel is "consistent with
th[e] well-established line of cases" applying Safley. Br. for
Appellees at 23. However, they attempt to distinguish
Amatel by pointing out that the statute upheld in Amatel
" `is not enforced directly,' " but is instead enforced
pursuant to " `regulations defining the terms of the
proscription and significantly narrowing its scope.' " Id.
(quoting Amatel, 156 F.3d at 194).

Whatever force this argument carried prior to the
issuance of the new implementing regulations, we see no
basis for the argument now. As previously noted, New
Jersey has now promulgated regulations "defining the
terms of the proscription and significantly narrowing [the
statute's] scope." Id. (quoting Amatel, 156 F.3d at 194); see
N.J.A.C. 10A:18-9 (narrowing the operative terms of
N.J.S.A. 2C:47-10). Thus, Plaintiffs' attempt to distinguish
Amatel fails.9
_________________________________________________________________

9. Plaintiffs liken N.J.S.A. 2C:47-10 to a prison regulation that was
declared unconstitutional in Mauro v. Arpaio, 147 F.3d 1137 (9th Cir.
1998). However, the Ninth Circuit has withdrawn its opinion in that case
pending rehearing en banc. See 162 F.3d 547 (1998).

But even if the Mauro opinion had not been withdrawn, it would not
affect the outcome of this case. The Mauro panel's holding was based on
the the defendants' failure to demonstrate that the regulation was
reasonably related to a legitimate penological interest. As the panel
noted, the defendants' evidence amounted to little more than a

                               17
We are satisfied that N.J.S.A. S 2C:47-10 bears a valid,
rational connection to the legitimate penological interest
put forward to justify it, and we hold that the District Court
erred in concluding otherwise.

2. Alternative Means

The second factor requires us to assess the availability of
alternative means of exercising the right at stake. For
obvious reasons, this factor tends to favor plaintiffs where
the alleged right is defined narrowly, and where the scope
of the restriction is construed broadly. Thus, "if the `right'
at stake is defined in terms of the materials excluded by the
ban, any regulation will come up short." Amatel, 156 F.3d
at 192.

Not surprisingly, Plaintiffs define the right narrowly, and
read the statute broadly. Br. for Appellees at 44-45. While
not commenting directly on the scope of the right, the
District Court construed the statute broadly, finding that it
"could potentially prohibit the inmates from reading or
viewing many legitimate publications." Waterman I, 12
F.Supp.2d at 376. The Court feared that (1) "the word `any'
ensures that the statute is overbroad because `any'
mandates that no exceptions will be made to the statute"
and (2) "the words `any associated anatomical area' appears
to mean that every publication that contains a body part
that is associated with sexual activity is banned." Id.
According to the District Court, the statute could be read
as allowing A.D.T.C. officials to prohibit everything from the
Bible to legal publications. Id.

We find the District Court's analysis of this factor to be
unreasonable and inconsistent with Thornburgh v. Abbott,
490 U.S. 401 (1989). In Thornburgh, the Court upheld a
regulation that barred all "sexually explicit material which
by its nature or content poses a threat to the security, good
_________________________________________________________________

conclusory assertion that "inmates will misbehave when using materials
depicting frontal nudity." Mauro, 147 F.3d at 1143. Unlike the
defendants in Mauro, the Defendants before us--like the defendants in
Amatel--have met their burden under Safley. Mauro is therefore
distinguishable.

                               18
order, or discipline of the institution, or facilitates criminal
activity." Id. at 405 n.5. The Court concluded that the
second Safley factor was "clearly satisfied" because "the
regulations permit a broad range of publications to be sent,
received, and read." Id. at 418. Significantly, the Court saw
no problem with the breadth or ambiguity of the regulation.

The Thornburgh Court also explained that the relevant
right "must be viewed sensibly and expansively." Id. at 417.
Here, it was not "sensible" for the District Court to conclude
that the statute was broad enough to forbid prisoners from
reading the Bible, legal publications, or other non-
pornographic books. See Waterman I, 12 F.Supp.2d at 376
("[T]he Court agrees with plaintiffs' argument that the
statute prohibits them from reading the Bible, fashion
magazines, books, and cases."). We therefore disagree with
the District Court's conclusion and conclude that N.J.S.A.
2C:47-10 provides Plaintiffs with an alternative means of
exercising their constitutional rights.

Even if we were otherwise inclined to reach the opposite
conclusion, the recently promulgated regulations
implementing the statute would foreclose any need for us to
do so. As noted, the regulations significantly narrow the
statute's broad scope by defining many of its operative
terms, providing that

        "Associated anatomical area" means exposed or
       unclothed genitalia or female breasts.

        "Sexual activity" means actual or simulated ultimate
       sexual acts including sexual intercourse, oral sex,
       masturbation, or bestiality.

        "Sexually oriented material" means a picture or other
       representation, publication, sound recording, live
       performance or film that contains a description or
       depiction of sexual activity or associated anatomical
       area, as these terms are herein defined.10
_________________________________________________________________

10. The regulations also explain that "[m]aterials containing a depiction
or description of sexual activity or an associated anatomical area shall
not be considered `sexually oriented' unless the material is
predominantly oriented to such depictions or descriptions." N.J.A.C.

                               19
N.J.A.C. 10A:18-9.1 (1999). Thus, the regulations eliminate
any concern that Plaintiffs will be left without alternative
means of exercising their constitutional rights.

Accordingly, we conclude that N.J.S.A. 2C:47-10 satisfies
Safley's second prong.

3. Impact of Accommodation on Prison
       Resources/Absence of Alternatives

Safley's third prong requires us to evaluate the adverse
impact that accommodating the Plaintiffs' asserted rights
would have "on guards and other inmates, and on the
allocation of prison resources." Safley, 482 U.S. at 90.
Similarly, the fourth prong requires us to determine
whether there are alternatives that can accommodate the
right "at de minimis costs to valid penological interests." Id.
at 91. As the District Court noted before issuing the
preliminary injunction, Defendants' "arguments on[the
third and fourth] factors overlap." Waterman I, 12
F.Supp.2d at 375. We will therefore discuss them together.

The District Court declined to address Safley 's third and
fourth prongs when issuing the permanent injunction,
concluding that "the ruling that New Jersey does not have
a legitimate penological interest renders those factors
moot." Waterman II, 12 F.Supp.2d at 382 n.2. However,
Plaintiffs maintain that reasonable alternatives are available
and argue that the A.D.T.C. staff "could review incoming
publications [on a case-by-case basis and selectively
prohibit] materials [found to be] harmful to rehabilitation."
Br. for Appellees at 46-47.

As the Supreme Court has acknowledged, Safley does not
impose a least-restrictive-alternative test. 492 U.S. at 90.
Consequently, we need not conclude that no less restrictive
alternatives are available. Id. Where accommodation of the
asserted right would have a "ripple effect" on prison staff,
_________________________________________________________________

10A:18-9.2(b). A publication is only considered"predominantly oriented
to the depiction or description of sexual activity or associated
anatomical
area" if it "features or contains such descriptions or displays on a
routine or regular basis or promotes itself based upon such depictions in
the case of individual one-time issues." N.J.A.C. 10A:18-9.2(c).

                               20
courts are encouraged to give particular deference to the
informed discretion of corrections officials. Id. (internal
quotations omitted).

Defendants maintain that no reasonable alternatives are
available. They point out that, while some inmates might
not be adversely affected by limited access to pornography,
any limited distribution would have to be carried out on the
basis of a case-by-case review. Such a review, Defendants
argue, "would have to be specifically controlled and
monitored by a qualified therapist, thereby causing an
undue burden on a staff already inundated with sex
offender cases." Br. for Appellants at 35. Defendants also
assert that even if the A.D.T.C. were sufficiently staffed to
enable it to conduct a case-by-case review, a limited
distribution would be impossible to control since"prisoners
are more than likely to pass their material to other
prisoners." Id. at 36.

We agree. The costs of the case-by-case alternative
proposed by Plaintiffs would be "far from de minimis."
Amatel, 156 F.3d at 201 ("The most obvious alternative is
a detailed prisoner-by-prisoner (and presumably
publication-by-publication) sifting to determine whether a
particular publication will harm the rehabilitation of a
particular prisoner. The costs of this approach seem far
from de minimis."). Moreover, any attempt to accommodate
the Plaintiffs' asserted rights would have an unduly
burdensome effect "on guards . . . and on the allocation of
prison resources." Safley, 482 U.S. at 90.

In sum, having analyzed the statute under the four-
pronged test announced in Safley, we conclude that
N.J.S.A. 2C:47-10 is "reasonably related to legitimate
penological interests," id. at 89, andfind that the District
Court erred in concluding otherwise.

III. CONCLUSION

For the foregoing reasons, we reverse the decision of the
District Court and remand for the entry of judgment in
favor of the Defendants.

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A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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