As Introduced 1
123rd General Assembly 4
Regular Session H.B. No. 62 5
1999-2000 6
REPRESENTATIVES COUGHLIN-TIBERI-HOOD-EVANS 8
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A B I L L
To enact sections 5120.425, 5120.426, 5120.427, 11
5120.428, and 5120.429 of the Revised Code to 12
codify provisions governing the receipt and 13
retention of specified inflammatory materials, 14
specified obscene or other sexually oriented 15
materials, and other types of materials by
prisoners in state correctional institutions. 16
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO: 17
Section 1. That sections 5120.425, 5120.426, 5120.427, 19
5120.428, and 5120.429 of the Revised Code be enacted to read as 20
follows: 21
Sec. 5120.425. AS USED IN SECTIONS 5120.425 TO 5120.429 OF 23
THE REVISED CODE: 24
(A) "ADVERTISING MAIL" MEANS PROMOTIONAL OFFERS, DRAWINGS, 27
SWEEPSTAKES, LOTTERIES, AND OTHER PROMOTIONAL CAMPAIGNS THAT 28
PROPOSE A COMMERCIAL TRANSACTION AND THAT, TAKEN AS A WHOLE, ARE 29
NOT PERSONAL COMMUNICATIONS UNIQUELY COMPOSED FOR A SPECIFIC 30
INDIVIDUAL.
(B) "DEADLY WEAPON" HAS THE SAME MEANING AS IN SECTION 32
2923.11 OF THE REVISED CODE. 34
(C) "HEAD OF A STATE CORRECTIONAL INSTITUTION," 36
"PRISONER," AND "STATE CORRECTIONAL INSTITUTION" HAVE THE SAME 37
MEANINGS AS IN SECTION 2967.01 OF THE REVISED CODE. 40
(D) "HEAD'S DESIGNEE" MEANS A PERSON OR, FOR PURPOSES OF 42
DIVISION (A) OF SECTION 5120.428 OF THE REVISED CODE, A PANEL OF 45
PERSONS DESIGNATED BY THE HEAD OF A STATE CORRECTIONAL
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INSTITUTION TO PERFORM A RESPONSIBILITY THAT SECTIONS 5120.425 TO 46
5120.429 OF THE REVISED CODE GENERALLY OTHERWISE IMPOSE UPON THAT 48
INDIVIDUAL.
(E) "INCOMING MATERIAL" MEANS EITHER OF THE FOLLOWING: 51
(1) A MATERIAL THAT IS MAILED DIRECTLY TO A SPECIFIC 54
PRISONER FROM THE MATERIAL'S PUBLISHER OR OTHER DISTRIBUTOR; 55
(2) A MATERIAL THAT A SPECIFIC PRISONER MAY BE ELIGIBLE TO 58
RECEIVE THROUGH THE UNITED STATES MAIL OR IN ANOTHER MANNER FROM 61
A MEMBER OF THE PRISONER'S FAMILY, A FRIEND OF THE PRISONER, OR 62
ANOTHER SOURCE WITH THE PRIOR APPROVAL OF THE HEAD OF A STATE 63
CORRECTIONAL INSTITUTION OR THE HEAD'S DESIGNEE. 64
(F)(1) EXCEPT AS PROVIDED IN DIVISION (F)(2) OF THIS 68
SECTION, "MATERIAL" MEANS A PRERECORDED MAGNETIC AUDIO TAPE, 69
BOOK, DRAWING, MAGAZINE, NEWSPAPER, PAMPHLET, POSTER, PRINT, 70
PHOTOGRAPH, OR OTHER SIMILAR PRINTED, WRITTEN, RECORDED, OR 71
OTHERWISE PRODUCED ITEM.
(2) "MATERIAL" DOES NOT INCLUDE ADVERTISING MAIL OR MAIL 74
THAT IS IN THE FORM OF A FIRST CLASS LETTER ADDRESSED TO A 75
SPECIFIC PRISONER AND THAT THE PRISONER MAY BE ENTITLED TO 76
RECEIVE AFTER ANY INSPECTION THAT MAY BE REQUIRED BY RULES THAT 77
THE DIRECTOR OF REHABILITATION AND CORRECTION ADOPTS PURSUANT TO 78
THIS CHAPTER.
(G) "OTHER CONDUCT" MEANS BESTIALITY, MASTURBATION, HUMAN 80
BODILY FUNCTIONS OF ELIMINATION, OR SADOMASOCHISM THAT INVOLVES 81
THE INFLICTION OF DEATH, PAIN, OR SUFFERING. 82
(H) "PROHIBITED INFLAMMATORY MATERIAL" MEANS A MATERIAL 84
THAT, IN THE DETERMINATION OF THE HEAD OF A STATE CORRECTIONAL 85
INSTITUTION OR THE HEAD'S DESIGNEE, SATISFIES ANY OF THE 86
FOLLOWING: 87
(1) THE MATERIAL MAY INCITE, AID, OR ABET CRIMINAL 90
ACTIVITY WITHIN OR ON THE GROUNDS OF THE INSTITUTION, INCLUDING, 91
BUT NOT LIMITED TO, AGGRAVATED RIOT, RIOT, OR UNLAWFUL 92
TRAFFICKING IN, POSSESSION OF, OR USE OF A DRUG OF ABUSE. 93
(2) THE MATERIAL MAY INCITE, AID, OR ABET PHYSICAL 96
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VIOLENCE AGAINST INDIVIDUALS WITHIN OR ON THE GROUNDS OF THE 97
INSTITUTION, INCLUDING, BUT NOT LIMITED TO, A MATERIAL THAT 98
PROVIDES INSTRUCTION WITH RESPECT TO THE MAKING, USE, OR 99
CONVERSION OF DEADLY WEAPONS OR OTHER WEAPONS.
(3) THE MATERIAL MAY INCITE, AID, OR ABET ESCAPE FROM THE 102
INSTITUTION, INCLUDING, BUT NOT LIMITED TO, A MATERIAL THAT 103
PROVIDES INSTRUCTION WITH RESPECT TO THE PICKING OF LOCKS OR THE 104
DIGGING OF TUNNELS.
(4) THE MATERIAL APPEARS TO BE WRITTEN IN CIPHER OR CODE. 107
(5) ANY MATERIAL THAT IS NOT DESCRIBED IN DIVISIONS (H)(1) 111
TO (4) OF THIS SECTION, THAT IS NOT A PROHIBITED OBSCENE OR OTHER 113
SEXUALLY ORIENTED MATERIAL, AND THAT BY ITS NATURE OR CONTENT MAY 114
POSE A THREAT TO SECURITY, GOOD ORDER, OR DISCIPLINE WITHIN OR ON 115
THE GROUNDS OF THE INSTITUTION. 116
(I) "PROHIBITED OBSCENE OR OTHER SEXUALLY ORIENTED 118
MATERIAL" MEANS A MATERIAL THAT, IN THE DETERMINATION OF THE HEAD 120
OF A STATE CORRECTIONAL INSTITUTION OR THE HEAD'S DESIGNEE,
SHOWS, REPRESENTS, DISPLAYS, DEPICTS, OR DESCRIBES SEXUAL 121
ACTIVITY, SEXUAL EXCITEMENT, OR OTHER CONDUCT AND SATISFIES ALL 122
OF THE FOLLOWING: 123
(1) THE MATERIAL, TAKEN AS A WHOLE BY THE AVERAGE PERSON 126
APPLYING CONTEMPORARY COMMUNITY STANDARDS, APPEALS TO THE 127
PRURIENT INTEREST.
(2) THE MATERIAL, TAKEN AS A WHOLE BY THE AVERAGE PERSON 130
APPLYING CONTEMPORARY COMMUNITY STANDARDS, PORTRAYS SEXUAL 131
ACTIVITY, SEXUAL EXCITEMENT, OR OTHER CONDUCT IN A PATENTLY 132
OFFENSIVE WAY.
(3) THE MATERIAL, TAKEN AS A WHOLE BY A REASONABLE PERSON, 135
LACKS SERIOUS LITERARY, ARTISTIC, POLITICAL, OR SCIENTIFIC VALUE. 136
(J) "PUBLICATION SCREENING COMMITTEE" MEANS THE COMMITTEE 139
CREATED BY THE DIRECTOR OF REHABILITATION AND CORRECTION PURSUANT 140
TO DIVISION (B)(2) OF SECTION 5120.428 OF THE REVISED CODE. 141
(K) "SEXUAL ACTIVITY" HAS THE SAME MEANING AS IN SECTION 143
2907.01 OF THE REVISED CODE. 145
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(L) "SEXUAL EXCITEMENT" HAS THE SAME MEANING AS IN SECTION 148
2907.01 OF THE REVISED CODE AND ALSO INCLUDES COVERED MALE 150
GENITALS IN A DISCERNIBLY TURGID STATE.
Sec. 5120.426. THE HEAD OF A STATE CORRECTIONAL 153
INSTITUTION MAY ADOPT REGULATIONS THAT GOVERN THE TYPES AND 154
MAXIMUM AMOUNT OF MATERIALS THAT EACH PRISONER CONFINED IN THE 155
INSTITUTION IS PERMITTED TO RECEIVE AND RETAIN. THOSE 156
REGULATIONS SHALL BE CONSISTENT WITH SECTIONS 5120.425 TO
5120.429 OF THE REVISED CODE AND THE RULES THAT THE DIRECTOR OF 158
REHABILITATION AND CORRECTION ADOPTS PURSUANT TO THIS CHAPTER TO 159
IMPLEMENT THOSE SECTIONS.
THE HEAD OF A STATE CORRECTIONAL INSTITUTION SHALL FORWARD 161
PROPOSED REGULATIONS OF THAT NATURE TO THE DIRECTOR FOR THE 162
DIRECTOR'S REVIEW AND APPROVAL PRIOR TO THE IMPLEMENTATION OF THE 164
REGULATIONS. THE DIRECTOR PROMPTLY SHALL REVIEW AND APPROVE OR 165
DISAPPROVE THE PROPOSED REGULATIONS. IF THE DIRECTOR APPROVES 166
THE PROPOSED REGULATIONS, THE HEAD OF THE INSTITUTION SHALL POST 167
THE REGULATIONS IN APPROPRIATE LOCATIONS THROUGHOUT THE 168
INSTITUTION AND IMPLEMENT THEM.
Sec. 5120.427. (A)(1) EACH PRISONER CONFINED IN A STATE 170
CORRECTIONAL INSTITUTION MAY RECEIVE A REASONABLE NUMBER OF 172
MATERIALS DIRECTLY FROM THE PUBLISHERS OR OTHER DISTRIBUTORS OF 173
THOSE MATERIALS. WITH THE PRIOR APPROVAL OF THE HEAD OF THE 174
STATE CORRECTIONAL INSTITUTION IN WHICH A PRISONER IS CONFINED OR 175
THE HEAD'S DESIGNEE, EACH PRISONER ALSO MAY RECEIVE A REASONABLE 176
NUMBER OF MATERIALS FROM MEMBERS OF THE PRISONER'S FAMILY, THE 177
PRISONER'S FRIENDS, OR OTHER APPROVED SOURCES. 178
(2) A PRISONER'S RECEIPT AND RETENTION OF MATERIALS IS 180
SUBJECT TO THE SECURITY INSPECTION PROCEDURE DESCRIBED IN 181
DIVISION (B) OF THIS SECTION, THE REVIEW AND APPEAL PROCEDURES 183
DESCRIBED IN DIVISIONS (A) AND (B) OF SECTION 5120.428 OF THE 185
REVISED CODE, AND THE REGULATIONS ADOPTED, REVIEWED, AND APPROVED 186
PURSUANT TO SECTION 5120.426 OF THE REVISED CODE. SUBJECT TO A 188
CONTRARY DECISION WITH RESPECT TO A MATERIAL'S NATURE BY THE HEAD 189
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OF THE STATE CORRECTIONAL INSTITUTION IN WHICH THE PRISONER IS
CONFINED, THE HEAD'S DESIGNEE, OR THE DIRECTOR OF REHABILITATION 191
AND CORRECTION FOLLOWING A REVIEW OR APPEAL UNDER SECTION 193
5120.428 OF THE REVISED CODE, A PRISONER IS NOT ENTITLED TO 194
RECEIVE OR RETAIN ANY MATERIAL THAT THE MAIL OFFICE OF THE STATE 195
CORRECTIONAL INSTITUTION DETERMINES DURING THE COURSE OF THE 196
SECURITY INSPECTION PROCEDURE TO BE A PROHIBITED INFLAMMATORY 197
MATERIAL OR A PROHIBITED OBSCENE OR OTHER SEXUALLY ORIENTED 198
MATERIAL.
(B)(1) EACH STATE CORRECTIONAL INSTITUTION SHALL INSPECT 201
THROUGH ITS MAIL OFFICE EACH INCOMING MATERIAL TO DETERMINE 202
WHETHER THE MATERIAL IS A PROHIBITED INFLAMMATORY MATERIAL, A 203
PROHIBITED OBSCENE OR OTHER SEXUALLY ORIENTED MATERIAL, OR 204
ANOTHER TYPE OF MATERIAL. THE MAIL OFFICE SHALL NOT DETERMINE A 205
MATERIAL TO BE A PROHIBITED INFLAMMATORY MATERIAL SOLELY ON THE 206
BASIS OF ITS APPEAL TO A PARTICULAR ETHNIC, RACIAL, OR RELIGIOUS 207
AUDIENCE.
(2) IF THE MAIL OFFICE DETERMINES THAT AN INCOMING 210
MATERIAL IS NOT A PROHIBITED INFLAMMATORY MATERIAL AND IS NOT A 211
PROHIBITED OBSCENE OR OTHER SEXUALLY ORIENTED MATERIAL, THE MAIL 212
OFFICE SHALL CAUSE THE MATERIAL TO BE PROMPTLY FORWARDED TO THE 213
PRISONER WHO IS ITS INTENDED RECIPIENT. IF THE MAIL OFFICE HAS 214
REASONABLE CAUSE TO BELIEVE THAT AN INCOMING MATERIAL IS A 215
PROHIBITED INFLAMMATORY MATERIAL OR A PROHIBITED OBSCENE OR OTHER 216
SEXUALLY ORIENTED MATERIAL, THE MAIL OFFICE SHALL WITHHOLD THE 217
MATERIAL FROM THE PRISONER WHO IS ITS INTENDED RECIPIENT AND 218
PROMPTLY SHALL PROVIDE THAT PRISONER WITH A WRITTEN NOTICE 219
CONTAINING ALL OF THE FOLLOWING:
(a) A GENERAL DESCRIPTION OF THE WITHHELD MATERIAL; 222
(b) THE REASON WHY THE MATERIAL HAS NOT BEEN FORWARDED TO 225
THE PRISONER;
(c) A STATEMENT OF THE PRISONER'S RIGHT UNDER DIVISION (A) 228
OF SECTION 5120.428 OF THE REVISED CODE TO HAVE THE HEAD OF THE 229
STATE CORRECTIONAL INSTITUTION OR THE HEAD'S DESIGNEE REVIEW THE 231
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MAIL OFFICE'S WITHHOLDING DECISION. 232
(3) WITHIN FIVE WORKING DAYS AFTER A PRISONER'S RECEIPT OF 235
THE MAIL OFFICE'S WRITTEN NOTICE DESCRIBED IN DIVISION (B)(2) OF 236
THIS SECTION, THE PRISONER MAY SUBMIT TO THE HEAD OF THE STATE 237
CORRECTIONAL INSTITUTION A WRITTEN REQUEST FOR A REVIEW OF THE 238
MAIL OFFICE'S WITHHOLDING DECISION. IF THE PRISONER FAILS TO 239
SUBMIT A TIMELY WRITTEN REQUEST FOR A REVIEW OF THAT NATURE, THE 240
FAILURE SHALL CONSTITUTE THE PRISONER'S ACCEPTANCE OF THE MAIL 241
OFFICE'S WITHHOLDING DECISION, AND THE HEAD OF THE STATE 242
CORRECTIONAL INSTITUTION OR THE HEAD'S DESIGNEE SHALL CAUSE THE 243
MATERIAL TO BE DISPOSED OF IN WHICHEVER OF THE FOLLOWING MANNERS 244
IS CONSIDERED TO BE MOST APPROPRIATE UNDER THE CIRCUMSTANCES: 246
(a) IF THE PRISONER SO REQUESTS, THE MATERIAL MAY BE 249
DESTROYED.
(b) IF THE PRISONER SO REQUESTS AND PAYS ANY ASSOCIATED 252
EXPENSE, THE MATERIAL MAY BE FORWARDED OR DELIVERED TO AN 253
INDIVIDUAL WHO IS AN APPROVED VISITOR OF THE PRISONER AT THE 254
STATE CORRECTIONAL INSTITUTION. 255
(c) THE MATERIAL MAY BE RETURNED TO THE UNITED STATES 259
POSTAL SERVICE OR TO THE PUBLISHER, DISTRIBUTOR, OR OTHER PERSON 260
WHO MAILED OR OTHERWISE ATTEMPTED DELIVERY OF THE MATERIAL TO THE 261
PRISONER.
(d) THE MATERIAL MAY BE HELD AS EVIDENCE OF A VIOLATION OF 264
LAW OR OF RULES OF THE DIRECTOR OF REHABILITATION AND CORRECTION 265
ADOPTED UNDER THIS CHAPTER.
(e) THE MATERIAL MAY BE DISPOSED OF IN ACCORDANCE WITH ANY 268
RULE OF THE DIRECTOR OF REHABILITATION AND CORRECTION THAT IS 269
ADOPTED UNDER THIS CHAPTER AND THAT PERTAINS TO CONTRABAND WITHIN 270
A STATE CORRECTIONAL INSTITUTION. 271
Sec. 5120.428. (A)(1) IF A PRISONER CONFINED IN A STATE 274
CORRECTIONAL INSTITUTION SUBMITS A TIMELY WRITTEN REVIEW REQUEST 275
UNDER DIVISION (B)(3) OF SECTION 5120.427 OF THE REVISED CODE, 276
THE HEAD OF THE STATE CORRECTIONAL INSTITUTION IN WHICH THE 277
PRISONER IS CONFINED OR THE HEAD'S DESIGNEE SHALL CAUSE THE 279
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INSTITUTION'S MAILING OFFICE TO PROMPTLY FORWARD THE WITHHELD 280
MATERIAL TO THE HEAD OF THE INSTITUTION OR THE HEAD'S DESIGNEE. 281
FOR PURPOSES OF THIS DIVISION, THE HEAD'S DESIGNEE MAY BE EITHER 282
ONE INDIVIDUAL OR A PANEL OF THREE OR MORE INDIVIDUALS, NO MORE 283
THAN ONE OF WHOM MAY BE A MEMBER OF THE INSTITUTION'S CUSTODY 284
STAFF.
(2) AS SOON AS IS PRACTICABLE AFTER RECEIPT OF THE 286
WITHHELD MATERIAL FROM THE INSTITUTION'S MAIL OFFICE OR, IF 287
POSSIBLE, WITHIN FIVE WORKING DAYS AFTER THAT RECEIPT, THE HEAD 288
OF THE STATE CORRECTIONAL INSTITUTION OR THE HEAD'S DESIGNEE 289
SHALL CONDUCT A REVIEW OF THE MATERIAL TO DETERMINE WHETHER IT IS 291
A PROHIBITED INFLAMMATORY MATERIAL, A PROHIBITED OBSCENE OR OTHER 292
SEXUALLY ORIENTED MATERIAL, OR ANOTHER TYPE OF MATERIAL. IN 293
MAKING THAT DETERMINATION, THE HEAD OF THE INSTITUTION OR THE
HEAD'S DESIGNEE MAY CONDUCT A HEARING AND MAY PERMIT THE PRISONER 295
WHO REQUESTED THE REVIEW TO BE PRESENT AT THE HEARING. THE HEAD 296
OF THE INSTITUTION OR THE HEAD'S DESIGNEE SHALL NOT DETERMINE A 297
MATERIAL TO BE A PROHIBITED INFLAMMATORY MATERIAL SOLELY ON THE 298
BASIS OF ITS APPEAL TO A PARTICULAR ETHNIC, RACIAL, OR RELIGIOUS 299
AUDIENCE.
(3) IF THE DETERMINATION OF THE HEAD OF THE INSTITUTION OR 302
THE HEAD'S DESIGNEE IS THAT THE WITHHELD MATERIAL IS NOT A
PROHIBITED INFLAMMATORY MATERIAL AND IS NOT A PROHIBITED OBSCENE 304
OR OTHER SEXUALLY ORIENTED MATERIAL, THE HEAD OF THE INSTITUTION 305
OR THE HEAD'S DESIGNEE SHALL CAUSE THE WITHHELD MATERIAL TO BE 306
PROMPTLY FORWARDED TO THE PRISONER WHO REQUESTED THE REVIEW. 307
(4) IF THE DETERMINATION OF THE HEAD OF THE INSTITUTION OR 310
THE HEAD'S DESIGNEE IS THAT THE WITHHELD MATERIAL IS A PROHIBITED 311
INFLAMMATORY MATERIAL OR A PROHIBITED OBSCENE OR OTHER SEXUALLY 312
ORIENTED MATERIAL, THE HEAD OF THE INSTITUTION OR THE HEAD'S 313
DESIGNEE SHALL CONTINUE TO WITHHOLD THE MATERIAL AND PROMPTLY 314
SHALL PROVIDE THE PRISONER WHO REQUESTED THE REVIEW WITH A 315
WRITTEN NOTICE THAT SETS FORTH ALL OF THE FOLLOWING:
(a) A GENERAL DESCRIPTION OF THE MATERIAL; 318
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(b) A STATEMENT THAT THE MATERIAL WILL CONTINUE TO BE 320
WITHHELD FROM THE PRISONER; 321
(c) THE REASON FOR THE CONTINUED WITHHOLDING; 324
(d) A STATEMENT OF THE PRISONER'S RIGHT TO APPEAL THE 327
CONTINUED WITHHOLDING DETERMINATION UNDER DIVISION (B) OF THIS 328
SECTION TO THE PUBLICATION SCREENING COMMITTEE AND THE DIRECTOR 329
OF REHABILITATION AND CORRECTION. 330
(5) THE HEAD OF THE INSTITUTION OR THE HEAD'S DESIGNEE 333
SHALL RETAIN A COPY OF THE WRITTEN NOTICE PROVIDED UNDER DIVISION 334
(A)(4) OF THIS SECTION IN THE RECORDS OF THE STATE CORRECTIONAL 335
INSTITUTION FOR AT LEAST TWO YEARS FROM THE DATE OF THE CONTINUED 336
WITHHOLDING DETERMINATION. 337
(B)(1) WITHIN FIVE WORKING DAYS AFTER A PRISONER'S RECEIPT 340
OF THE WRITTEN NOTICE DESCRIBED IN DIVISION (A)(4) OF THIS 342
SECTION, THE PRISONER MAY SUBMIT TO THE DIRECTOR OF
REHABILITATION AND CORRECTION A WRITTEN APPEAL OF THE CONTINUED 343
WITHHOLDING DETERMINATION OF THE HEAD OF THE STATE CORRECTIONAL 344
INSTITUTION OR THE HEAD'S DESIGNEE. THE PRISONER'S APPEAL SHALL 345
BE MADE IN THE FORM THAT THE DIRECTOR PRESCRIBES BY RULE, SHALL 346
REQUEST THE DIRECTOR TO RECEIVE AN ADVISORY OPINION FROM THE 347
PUBLICATION SCREENING COMMITTEE AND THEN RENDER A FINAL 348
DETERMINATION WITH RESPECT TO THE NATURE OF THE WITHHELD 349
MATERIAL, AND MAY INCLUDE ANY OBJECTIONS THAT THE PRISONER HAS TO 351
THE CONTINUED WITHHOLDING DETERMINATION. IF THE PRISONER FAILS 352
TO SUBMIT A TIMELY WRITTEN APPEAL OF THAT NATURE, THE FAILURE 353
SHALL CONSTITUTE THE PRISONER'S ACCEPTANCE OF THE CONTINUED 354
WITHHOLDING DETERMINATION, AND THE HEAD OF THE INSTITUTION OR THE 355
HEAD'S DESIGNEE SHALL CAUSE THE MATERIAL TO BE DISPOSED OF IN 356
WHICHEVER OF THE MANNERS LISTED IN DIVISION (B)(3) OF SECTION 357
5120.427 OF THE REVISED CODE IS CONSIDERED TO BE MOST APPROPRIATE 358
UNDER THE CIRCUMSTANCES. 359
(2) FOR PURPOSES OF THIS DIVISION AND SECTION 5120.429 OF 362
THE REVISED CODE, THE DIRECTOR OF REHABILITATION AND CORRECTION 363
SHALL APPOINT A PUBLICATION SCREENING COMMITTEE THAT SHALL BE AN 364
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ADVISORY BODY COMPOSED OF FIVE INDIVIDUALS CHOSEN IN THE 365
DIRECTOR'S DISCRETION. AT LEAST ONE MEMBER OF THE COMMITTEE 366
SHALL BE AN ATTORNEY WHO IS LICENSED AND REGISTERED TO PRACTICE 367
LAW IN THIS STATE. AT LEAST THREE MEMBERS OF THE COMMITTEE SHALL 368
PARTICIPATE IN EACH ADVISORY REVIEW OF A MATERIAL THAT IS 369
CONDUCTED UNDER THIS DIVISION OR SECTION 5120.429 OF THE REVISED 371
CODE.
(3) IF A PRISONER CONFINED IN A STATE CORRECTIONAL 373
INSTITUTION SUBMITS A TIMELY APPEAL UNDER DIVISION (B)(1) OF THIS 375
SECTION, THE DIRECTOR OF REHABILITATION AND CORRECTION SHALL 376
CAUSE THE HEAD OF THAT STATE CORRECTIONAL INSTITUTION OR THE 377
HEAD'S DESIGNEE TO PROMPTLY FORWARD THE WITHHELD MATERIAL AND THE 379
RELEVANT CONTINUED WITHHOLDING DETERMINATION TO THE PUBLICATION 380
SCREENING COMMITTEE. WITHIN TWENTY WORKING DAYS AFTER RECEIPT OF 381
THE WITHHELD MATERIAL AND THE CONTINUED WITHHOLDING 382
DETERMINATION, THE COMMITTEE SHALL REVIEW THE MATERIAL AND THE 383
CONTINUED WITHHOLDING DETERMINATION AND SHALL PREPARE AND FILE 384
WITH THE DIRECTOR A WRITTEN ADVISORY OPINION AS TO WHETHER THE 385
MATERIAL IS A PROHIBITED INFLAMMATORY MATERIAL, A PROHIBITED 386
OBSCENE OR OTHER SEXUALLY ORIENTED MATERIAL, OR ANOTHER TYPE OF 387
MATERIAL. IN PREPARING THE ADVISORY OPINION, THE COMMITTEE SHALL 388
CONSIDER THE REASON UNDERLYING THE CONTINUED WITHHOLDING 389
DETERMINATION AND, IF ANY, THE PRISONER'S WRITTEN OBJECTIONS TO 390
THAT DETERMINATION SET FORTH IN THE WRITTEN APPEAL. THE 391
COMMITTEE SHALL NOT DETERMINE A MATERIAL TO BE A PROHIBITED 392
INFLAMMATORY MATERIAL SOLELY ON THE BASIS OF ITS APPEAL TO A 393
PARTICULAR ETHNIC, RACIAL, OR RELIGIOUS AUDIENCE. 394
(4) AS SOON AS IS PRACTICABLE AFTER RECEIPT OF THE 396
PUBLICATION SCREENING COMMITTEE'S ADVISORY OPINION, THE DIRECTOR 397
SHALL REVIEW THE WITHHELD MATERIAL, SHALL CONSIDER THE ADVISORY 398
OPINION, THE REASON UNDERLYING THE CONTINUED WITHHOLDING 399
DETERMINATION, AND, IF ANY, THE PRISONER'S WRITTEN OBJECTIONS TO 400
THAT DETERMINATION SET FORTH IN THE WRITTEN APPEAL, AND SHALL 402
RENDER A FINAL DETERMINATION AS TO WHETHER THE MATERIAL IS A 403
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PROHIBITED INFLAMMATORY MATERIAL, A PROHIBITED OBSCENE OR OTHER 404
SEXUALLY ORIENTED MATERIAL, OR ANOTHER TYPE OF MATERIAL. THE 405
DIRECTOR SHALL NOT DETERMINE THE MATERIAL TO BE A PROHIBITED 406
INFLAMMATORY MATERIAL SOLELY ON THE BASIS OF ITS APPEAL TO A 407
PARTICULAR ETHNIC, RACIAL, OR RELIGIOUS AUDIENCE. 408
(5) IF THE DIRECTOR'S FINAL DETERMINATION IS THAT THE 410
WITHHELD MATERIAL IS NOT A PROHIBITED INFLAMMATORY MATERIAL AND 411
IS NOT A PROHIBITED OBSCENE OR OTHER SEXUALLY ORIENTED MATERIAL, 412
THE DIRECTOR SHALL CAUSE THE WITHHELD MATERIAL TO BE RETURNED TO 413
THE HEAD OF THE STATE CORRECTIONAL INSTITUTION OR THE HEAD'S 415
DESIGNEE TOGETHER WITH A WRITTEN COPY OF THE DIRECTOR'S FINAL 416
DETERMINATION AND AN INSTRUCTION THAT THE HEAD OF THE INSTITUTION 417
OR THE HEAD'S DESIGNEE PROMPTLY DELIVER THE WITHHELD MATERIAL TO 418
THE PRISONER WHO APPEALED THE CONTINUED WITHHOLDING
DETERMINATION. 419
(6) IF THE DIRECTOR'S FINAL DETERMINATION IS THAT THE 421
WITHHELD MATERIAL IS AN INFLAMMATORY MATERIAL OR A PROHIBITED 422
OBSCENE OR OTHER SEXUALLY ORIENTED MATERIAL, THE DIRECTOR SHALL 423
CAUSE A WRITTEN COPY OF THE FINAL DETERMINATION TO BE DELIVERED 424
TO THE HEAD OF THE STATE CORRECTIONAL INSTITUTION OR THE HEAD'S 426
DESIGNEE AND TO THE PRISONER WHO APPEALED THE CONTINUED 427
WITHHOLDING DETERMINATION. THE FINAL DETERMINATION SHALL INCLUDE 428
A GENERAL DESCRIPTION OF THE MATERIAL, A STATEMENT THAT THE 429
MATERIAL WILL NOT BE DELIVERED TO THE PRISONER, AND THE REASON 430
FOR THAT NONDELIVERY. THE DIRECTOR SHALL CAUSE THE MATERIAL TO 431
BE DISPOSED OF IN WHICHEVER OF THE MANNERS LISTED IN DIVISION 433
(B)(3) OF SECTION 5120.427 OF THE REVISED CODE THE DIRECTOR 434
CONSIDERS TO BE MOST APPROPRIATE UNDER THE CIRCUMSTANCES. THE 435
DIRECTOR SHALL RETAIN A COPY OF THE FINAL DETERMINATION IN THE 436
RECORDS OF THE DEPARTMENT OF REHABILITATION AND CORRECTION AND 437
ALSO SHALL CAUSE A COPY OF THE FINAL DETERMINATION TO BE 438
DELIVERED TO THE HEADS OF OTHER STATE CORRECTIONAL INSTITUTIONS 439
TO BE USED AS PRECEDENT IN MAKING FUTURE DETERMINATIONS UNDER 440
DIVISION (A) OF THIS SECTION. 441
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Sec. 5120.429. (A)(1) IN ADDITION TO PRISONER APPEALS 444
UNDER DIVISION (B) OF SECTION 5120.428 OF THE REVISED CODE, 445
WITHIN TWENTY WORKING DAYS AFTER RECEIVING A REQUEST FROM THE 446
DIRECTOR OF REHABILITATION AND CORRECTION, THE HEAD OF A STATE 447
CORRECTIONAL INSTITUTION, OR A HEAD'S DESIGNEE, THE PUBLICATION 448
SCREENING COMMITTEE SHALL DO ALL OF THE FOLLOWING: 449
(a) REVIEW ANY MATERIAL THAT THE DIRECTOR, HEAD OF THE 452
INSTITUTION, OR DESIGNEE SUBMITS;
(b) PREPARE A WRITTEN ADVISORY OPINION AS TO WHETHER THE 455
MATERIAL IS A PROHIBITED INFLAMMATORY MATERIAL, A PROHIBITED 456
OBSCENE OR OTHER SEXUALLY ORIENTED MATERIAL, OR ANOTHER TYPE OF 457
MATERIAL;
(c) SUBMIT THE WRITTEN ADVISORY OPINION TO THE DIRECTOR. 460
(2) THE COMMITTEE SHALL NOT DETERMINE UNDER DIVISION 463
(A)(1) OF THIS SECTION THAT A MATERIAL IS A PROHIBITED 464
INFLAMMATORY MATERIAL SOLELY ON THE BASIS OF ITS APPEAL TO A 465
PARTICULAR ETHNIC, RACIAL, OR RELIGIOUS AUDIENCE. 466
(B) AS SOON AS IS PRACTICABLE AFTER RECEIPT OF THE 468
PUBLICATION SCREENING COMMITTEE'S ADVISORY OPINION UNDER DIVISION 469
(A) OF THIS SECTION, THE DIRECTOR SHALL REVIEW THE MATERIAL, 471
CONSIDER THE ADVISORY OPINION, AND RENDER A WRITTEN DETERMINATION 472
AS TO WHETHER THE MATERIAL IS A PROHIBITED INFLAMMATORY MATERIAL, 473
A PROHIBITED OBSCENE OR OTHER SEXUALLY ORIENTED MATERIAL, OR 474
ANOTHER TYPE OF MATERIAL. THE DIRECTOR SHALL NOT DETERMINE THE 475
MATERIAL TO BE A PROHIBITED INFLAMMATORY MATERIAL SOLELY ON THE 476
BASIS OF ITS APPEAL TO A PARTICULAR ETHNIC, RACIAL, OR RELIGIOUS 477
AUDIENCE. THE DIRECTOR SHALL CAUSE A COPY OF THE WRITTEN 478
DETERMINATION TO BE DELIVERED TO THE HEADS OF ALL STATE 479
CORRECTIONAL INSTITUTIONS TO BE USED AS PRECEDENT IN MAKING 480
FUTURE DETERMINATIONS UNDER DIVISION (A) OF SECTION 5120.428 OF 481
THE REVISED CODE.
Section 2. It is the intent of the General Assembly in 483
defining a "prohibited obscene or other sexually oriented 484
material" in section 5120.425 of the Revised Code, as enacted by 485
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this act, to reflect the standards enunciated by the United 486
States Supreme Court in Pope v. Illinois (1987), 481 U.S. 497, 488
Miller v. California (1973), 413 U.S. 15, and Roth v. United 490
States (1957), 354 U.S. 476, that state courts must follow in 491
determining whether a particular material is an obscene material 492
and to recognize the holdings in Urbana ex rel. Newlin, v. 493
Downing (1989), 43 Ohio St. 3d 109, State v. Burgun (1978), 56 495
Ohio St. 2d 354, State v. Keaton (1996), 113 Ohio App. 3d 696, 496
703, State v. Caudill (1991), 75 Ohio App. 3d 322, State v. Wolfe 497
(1987), 41 Ohio App. 3d 119, and other Ohio Supreme Court and 498
courts of appeals decisions that have authoritatively construed 499
this state's obscenity statutes to reflect the standards 500
enunciated in the listed United States Supreme Court decisions. 501