As Reported by House Criminal Justice Committee 1
123rd General Assembly 4
Regular Session Sub. H.B. No. 62 5
1999-2000 6
REPRESENTATIVES COUGHLIN-TIBERI-HOOD-EVANS- 8
WOMER BENJAMIN-MYERS-WILLAMOWSKI 9
_________________________________________________________________ 10
A B I L L
To enact sections 5120.425, 5120.426, 5120.427, and 12
5120.428 of the Revised Code to regulate the 14
receipt and retention of specified inflammatory
materials, specified obscene or other sexually 16
oriented materials, and other types of materials
by prisoners in state correctional institutions. 17
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO: 18
Section 1. That sections 5120.425, 5120.426, 5120.427, and 20
5120.428 of the Revised Code be enacted to read as follows: 22
Sec. 5120.425. AS USED IN SECTIONS 5120.425 TO 5120.428 OF 24
THE REVISED CODE: 25
(A) "HEAD OF A STATE CORRECTIONAL INSTITUTION," 27
"PRISONER," AND "STATE CORRECTIONAL INSTITUTION" HAVE THE SAME 28
MEANINGS AS IN SECTION 2967.01 OF THE REVISED CODE. 31
(B) "HEAD'S DESIGNEE" MEANS A PERSON OR A PANEL OF PERSONS 34
DESIGNATED BY THE HEAD OF A STATE CORRECTIONAL INSTITUTION TO 35
PERFORM A RESPONSIBILITY THAT SECTIONS 5120.425 TO 5120.428 OF
THE REVISED CODE GENERALLY OTHERWISE IMPOSE UPON THAT INDIVIDUAL. 37
(C) "MATERIAL" MEANS A PRERECORDED MAGNETIC AUDIO OR VIDEO 39
TAPE, BOOK, DRAWING, MAGAZINE, NEWSPAPER, PAMPHLET, POSTER, 40
PRINT, PHOTOGRAPH, OR OTHER SIMILAR PRINTED, WRITTEN, RECORDED, 41
OR OTHERWISE PRODUCED ITEM. 42
(D) "PROHIBITED INFLAMMATORY MATERIAL" MEANS A MATERIAL 44
THAT, IN THE DETERMINATION OF THE HEAD OF A STATE CORRECTIONAL 45
INSTITUTION OR THE HEAD'S DESIGNEE, IS DETRIMENTAL TO, OR POSES A 47
2
THREAT TO, THE REHABILITATION OF THE INMATES OR THE SECURITY, 48
GOOD ORDER, OR DISCIPLINE WITHIN OR ON THE GROUNDS OF THE 49
INSTITUTION. 50
(E) "PROHIBITED OBSCENE OR OTHER SEXUALLY ORIENTED 52
MATERIAL" MEANS A MATERIAL THAT, IN THE DETERMINATION OF THE HEAD 54
OF A STATE CORRECTIONAL INSTITUTION OR THE HEAD'S DESIGNEE, MEETS 55
THE STANDARD FOR OBSCENE OR OTHER SEXUALLY ORIENTED MATERIAL
ADOPTED BY THE DIRECTOR OF REHABILITATION AND CORRECTION PURSUANT 56
TO DIVISION (B) OF SECTION 5120.426 OF THE REVISED CODE. 57
(F) "PUBLICATION REVIEW COMMITTEE" MEANS THE COMMITTEE 60
CREATED BY THE DIRECTOR OF REHABILITATION AND CORRECTION PURSUANT 61
TO DIVISION (B)(2) OF SECTION 5120.428 OF THE REVISED CODE. 62
Sec. 5120.426. (A) THE DIRECTOR OF REHABILITATION AND 64
CORRECTION SHALL ADOPT RULES AND THE HEAD OF A STATE CORRECTIONAL 67
INSTITUTION SHALL ADOPT REGULATIONS THAT GOVERN THE FORM, MEDIUM, 68
AND QUANTITY OF MATERIALS THAT EACH PRISONER CONFINED IN THE 69
INSTITUTION IS PERMITTED TO RECEIVE AND RETAIN. THOSE RULES AND 70
REGULATIONS SHALL BE CONSISTENT WITH SECTIONS 5120.425 TO
5120.428 OF THE REVISED CODE. THE REGULATIONS ADOPTED BY THE 72
HEAD OF AN INSTITUTION SHALL BE CONSISTENT WITH THE RULES THAT 74
THE DIRECTOR OF REHABILITATION AND CORRECTION ADOPTS PURSUANT TO 75
THIS DIVISION.
THE HEAD OF A STATE CORRECTIONAL INSTITUTION SHALL FORWARD 77
PROPOSED REGULATIONS THAT THE HEAD OF THE INSTITUTION WISHES TO 78
ADOPT TO THE DIRECTOR FOR THE DIRECTOR'S REVIEW AND APPROVAL 80
PRIOR TO THE IMPLEMENTATION OF THE REGULATIONS. THE DIRECTOR 81
PROMPTLY SHALL REVIEW AND APPROVE OR DISAPPROVE THE PROPOSED 82
REGULATIONS. IF THE DIRECTOR APPROVES THE PROPOSED REGULATIONS, 83
THE HEAD OF THE INSTITUTION SHALL ADOPT THE REGULATIONS, SHALL 84
POST THEM IN APPROPRIATE LOCATIONS THROUGHOUT THE INSTITUTION, 86
AND SHALL IMPLEMENT THEM.
(B) THE DIRECTOR OF REHABILITATION AND CORRECTION SHALL 88
ADOPT A RULE ESTABLISHING A STANDARD FOR DETERMINING WHETHER 89
MATERIAL IS OBSCENE OR IS OTHER SEXUALLY ORIENTED MATERIAL. THE 90
3
STANDARD FOR DETERMINING WHETHER MATERIAL IS OBSCENE SHALL 91
COMPORT WITH THE STANDARD FOR DETERMINING OBSCENITY ESTABLISHED 92
BY THE UNITED STATES SUPREME COURT. IN ESTABLISHING THE STANDARD 93
FOR DETERMINING WHETHER MATERIAL IS SEXAULLY ORIENTED MATERIAL, 94
THE DIRECTOR SHALL CONSIDER THE STANDARD ESTABLISHED FOR MATERIAL 95
THAT IS HARMFUL TO JUVENILES IN SECTION 2907.01 OF THE REVISED 96
CODE, BUT THE DIRECTOR SHALL NOT BE GOVERNED OR LIMITED BY THAT
STANDARD.
(C) THE DIRECTOR OF REHABILITATION AND CORRECTION SHALL 98
APPOINT A PUBLICATION REVIEW COMMITTEE OF ONE OR MORE PERSONS. 99
THE MEMBER OR MEMBERS OF THE COMMITTEE SHALL REVIEW WITHHOLDING 100
DETERMINATIONS PURSUANT TO SECTION 5120.428 OF THE REVISED CODE. 101
Sec. 5120.427. (A) EACH PRISONER CONFINED IN A STATE 103
CORRECTIONAL INSTITUTION MAY RECEIVE A REASONABLE NUMBER OF 105
MATERIALS DIRECTLY FROM THE PUBLISHERS OR OTHER DISTRIBUTORS OF 106
THOSE MATERIALS. WITH THE PRIOR APPROVAL OF THE HEAD OF THE 107
STATE CORRECTIONAL INSTITUTION IN WHICH A PRISONER IS CONFINED, 108
EACH PRISONER ALSO MAY RECEIVE A REASONABLE NUMBER OF MATERIALS 109
FROM A SOURCE OTHER THAN THE PUBLISHER OR OTHER DISTRIBUTOR OF 110
THOSE MATERIALS. 111
A PRISONER'S RECEIPT AND RETENTION OF MATERIALS IS SUBJECT 114
TO SECURITY INSPECTIONS CONDUCTED BY THE INSTITUTION IN WHICH THE
PRISONER IS CONFINED AND TO THE REGULATIONS ADOPTED, REVIEWED, 116
AND APPROVED PURSUANT TO SECTION 5120.426 OF THE REVISED CODE. 117
SUBJECT TO A CONTRARY DECISION WITH RESPECT TO A MATERIAL'S 118
NATURE BY THE PUBLICATION REVIEW COMMITTEE FOLLOWING A REVIEW 119
PURSUANT TO SECTION 5120.428 OF THE REVISED CODE, A PRISONER IS 121
NOT ENTITLED TO RECEIVE OR RETAIN ANY MATERIAL THAT THE HEAD OF 122
THE STATE CORRECTIONAL INSTITUTION OR THE HEAD'S DESIGNEE
DETERMINES DURING THE COURSE OF A SECURITY INSPECTION TO BE A 123
PROHIBITED INFLAMMATORY MATERIAL OR A PROHIBITED OBSCENE OR OTHER 125
SEXUALLY ORIENTED MATERIAL.
(B)(1) THE HEAD OF EACH STATE CORRECTIONAL INSTITUTION OR 128
THE HEAD'S DESIGNEE SHALL INSPECT EACH INCOMING MATERIAL TO 129
4
DETERMINE WHETHER THE MATERIAL IS A PROHIBITED INFLAMMATORY 130
MATERIAL, A PROHIBITED OBSCENE OR OTHER SEXUALLY ORIENTED 131
MATERIAL, OR ANOTHER TYPE OF MATERIAL. THE HEAD OF THE STATE 132
CORRECTION INSTITUTION OR THE HEAD'S DESIGNEE SHALL NOT DETERMINE 133
A MATERIAL TO BE A PROHIBITED INFLAMMATORY MATERIAL SOLELY ON THE 134
BASIS OF ITS APPEAL TO A PARTICULAR ETHNIC, RACIAL, OR RELIGIOUS 135
AUDIENCE.
(2) IF THE HEAD OF THE STATE CORRECTION INSTITUTION OR THE 137
HEAD'S DESIGNEE DETERMINES THAT AN INCOMING MATERIAL IS NOT A 139
PROHIBITED INFLAMMATORY MATERIAL AND IS NOT A PROHIBITED OBSCENE 140
OR OTHER SEXUALLY ORIENTED MATERIAL, THE HEAD OF THE INSTITUTION 141
OR THE HEAD'S DESIGNEE SHALL CAUSE THE MATERIAL TO BE PROMPTLY 143
FORWARDED TO THE PRISONER WHO IS ITS INTENDED RECIPIENT. IF THE 144
HEAD OF THE INSTITUTION OR THE HEAD'S DESIGNEE DETERMINES THAT AN 145
INCOMING MATERIAL IS A PROHIBITED INFLAMMATORY MATERIAL OR A 146
PROHIBITED OBSCENE OR OTHER SEXUALLY ORIENTED MATERIAL, THE HEAD 147
OF THE INSTITUTION OR THE HEAD'S DESIGNEE SHALL CAUSE THE
MATERIAL TO BE WITHHELD FROM THE PRISONER WHO IS ITS INTENDED 149
RECIPIENT AND PROMPTLY SHALL PROVIDE THAT PRISONER WITH A WRITTEN 150
WITHHOLDING NOTICE CONTAINING ALL OF THE FOLLOWING:
(a) A GENERAL DESCRIPTION OF THE WITHHELD MATERIAL; 153
(b) THE REASON WHY THE MATERIAL HAS NOT BEEN FORWARDED TO 156
THE PRISONER;
(c) A STATEMENT OF THE PRISONER'S RIGHT UNDER DIVISION (A) 159
OF SECTION 5120.428 OF THE REVISED CODE TO HAVE THE PUBLICATION 160
REVIEW COMMITTEE REVIEW THE WITHHOLDING DECISION OF THE HEAD OF 161
THE INSTITUTION OR THE HEAD'S DESIGNEE. 162
(3) WITHIN FIVE WORKING DAYS AFTER A PRISONER'S RECEIPT OF 165
THE WITHHOLDING NOTICE DESCRIBED IN DIVISION (B)(2) OF THIS 166
SECTION, THE PRISONER MAY SUBMIT TO THE HEAD OF THE STATE 167
CORRECTIONAL INSTITUTION A WRITTEN REQUEST FOR A REVIEW OF THE 168
WITHHOLDING DECISION. IF THE PRISONER FAILS TO SUBMIT A TIMELY 169
WRITTEN REQUEST FOR A REVIEW OF THAT NATURE, THE FAILURE SHALL 170
CONSTITUTE THE PRISONER'S ACCEPTANCE OF THE WITHHOLDING DECISION, 172
5
AND THE HEAD OF THE INSTITUTION OR THE HEAD'S DESIGNEE SHALL 173
CAUSE THE MATERIAL TO BE DISPOSED OF IN THE MANNER THAT THE HEAD 174
OF THE INSTITUTION OR THE HEAD'S DESIGNEE CONSIDERS TO BE MOST 175
APPROPRIATE UNDER THE CIRCUMSTANCES. 176
Sec. 5120.428. (A)(1) IF A PRISONER CONFINED IN A STATE 179
CORRECTIONAL INSTITUTION SUBMITS A TIMELY WRITTEN REVIEW REQUEST 180
UNDER DIVISION (B)(3) OF SECTION 5120.427 OF THE REVISED CODE, 181
THE HEAD OF THE STATE CORRECTIONAL INSTITUTION IN WHICH THE 182
PRISONER IS CONFINED OR THE HEAD'S DESIGNEE PROMPTLY SHALL 185
FORWARD THE WITHHELD MATERIAL TO THE PUBLICATION REVIEW
COMMITTEE. AS SOON AS IS PRACTICABLE AFTER RECEIPT OF THE 186
WITHHELD MATERIAL OR, IF POSSIBLE, WITHIN FIVE WORKING DAYS AFTER 188
THAT RECEIPT, THE PUBLICATION REVIEW COMMITTEE SHALL REVIEW THE 190
MATERIAL TO DETERMINE WHETHER IT IS A PROHIBITED INFLAMMATORY 191
MATERIAL, A PROHIBITED OBSCENE OR OTHER SEXUALLY ORIENTED 192
MATERIAL, OR ANOTHER TYPE OF MATERIAL. IN MAKING THAT 193
DETERMINATION, THE PUBLICATION REVIEW COMMITTEE MAY CONDUCT A 194
HEARING AND MAY PERMIT THE PRISONER WHO REQUESTED THE REVIEW TO 195
BE PRESENT AT THE HEARING AND TO PRESENT OBJECTIONS TO THE 196
DECISION OF THE HEAD OF THE INSTITUTION OR THE HEAD'S DESIGNEE TO 197
WITHHOLD THE MATERIAL.
(2) IF THE PUBLICATION REVIEW COMMITTEE DETERMINES THAT 200
THE WITHHELD MATERIAL IS NOT A PROHIBITED INFLAMMATORY MATERIAL 201
AND IS NOT A PROHIBITED OBSCENE OR OTHER SEXUALLY ORIENTED 202
MATERIAL, THE COMMITTEE SHALL CAUSE THE WITHHELD MATERIAL TO BE 204
PROMPTLY FORWARDED TO THE PRISONER WHO REQUESTED THE REVIEW. 205
(3) IF THE PUBLICATION REVIEW COMMITTEE DETERMINES THAT 208
THE WITHHELD MATERIAL IS A PROHIBITED INFLAMMATORY MATERIAL OR A 209
PROHIBITED OBSCENE OR OTHER SEXUALLY ORIENTED MATERIAL, THE 210
COMMITTEE SHALL FORWARD THE MATERIAL TO THE HEAD OF THE 211
INSTITUTION OR THE HEAD'S DESIGNEE FOR DISPOSAL IN THE MANNER 212
THAT THE HEAD OF THE INSTITUTION OR THE HEAD'S DESIGNEE CONSIDERS 213
TO BE MOST APPROPRIATE UNDER THE CIRCUMSTANCES. 214