Being a prisoner is a communicatively distinctive status. As the U.S. Supreme Court has noted, a prisoner freed on parole is “free to be with family and friends and to form the other enduring attachments of normal life”; being in prison is “very different” from not being in prison.^ Being a prisoner significantly affects the enduring attachments of normal life.
To determine the legality of regulations defining communicative conditions of confinement, U.S. federal courts have analyzed whether the regulations bear a rational relation to legitimate penological interests. In Turner v. Safley 482 U.S. 78 (1987), a prison regulation that required a prisoner to seek permission of the warden before marrying was declared unconstitutional. In Gerber v. Hickman, 291 F.3d 617 (2002), prison officials’ refusal to allow a prisoner to send sperm to his wife to conceive a child by artificial insemination was affirmed. Overton v. Bazzetta, 539 U.S. 126, 123 S.Ct. 2162 (2003), affirmed restrictions on who could visit prisoners and with what frequency. Inmates at the highest level of disciplinary segregation have been deprived of all reading material but religions and legal literature. In Beard v. Banks, 548 U.S. 521 (2006), such regulation of prisoners’ communication was upheld. Thus far, consideration of legitimate penological interests has recognized meager public interest in prisoners’ communication.
Legal scholarship has scarcely considered communication with prisoners. Over the past two centuries, advances in communications technologies have greatly expanded the communicative liberties that prisoner might feasibly have. In addition, changes in occupational structure and in typical patters of geographic dispersion of family members have changed the value of different types of communicative liberties to prisoners. Scholarship has explored in depth what alternative sanctions mean, but taken for granted imprisonment’s effect on prisoners’ communicative liberty.^ Recently subjective punishment has been the focus of law review articles. These articles have little connection to actual policies of regulating prisoners’ communication. Equality in punishment continues to be generally understood merely as equality in sentencing to incarceration time.