As Passed by the House 1
123rd General Assembly 4
Regular Session Am. Sub. H.B. No. 62 5
1999-2000 6
REPRESENTATIVES COUGHLIN-TIBERI-HOOD-EVANS-WOMER BENJAMIN- 8
MYERS-WILLAMOWSKI-JOLIVETTE-HAINES-BRADING-WINKLER-YOUNG- 9
SALERNO-CALVERT-HOOPS-CAREY-TERWILLEGER-AMSTUTZ-HARRIS- 10
METZGER-GRENDELL-MAIER 11
_________________________________________________________________ 12
A B I L L
To enact sections 5120.425, 5120.426, 5120.427, and 14
5120.428 of the Revised Code to regulate the 16
receipt and retention of specified inflammatory
materials, specified obscene or other sexually 18
oriented materials, and other types of materials
by prisoners in state correctional institutions. 19
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO: 20
Section 1. That sections 5120.425, 5120.426, 5120.427, and 22
5120.428 of the Revised Code be enacted to read as follows: 24
Sec. 5120.425. AS USED IN SECTIONS 5120.425 TO 5120.428 OF 26
THE REVISED CODE: 27
(A) "HEAD OF A STATE CORRECTIONAL INSTITUTION," 29
"PRISONER," AND "STATE CORRECTIONAL INSTITUTION" HAVE THE SAME 30
MEANINGS AS IN SECTION 2967.01 OF THE REVISED CODE. 33
(B) "HEAD'S DESIGNEE" MEANS A PERSON OR A PANEL OF PERSONS 36
DESIGNATED BY THE HEAD OF A STATE CORRECTIONAL INSTITUTION TO 37
PERFORM A RESPONSIBILITY THAT SECTIONS 5120.425 TO 5120.428 OF
THE REVISED CODE GENERALLY OTHERWISE IMPOSE UPON THAT INDIVIDUAL. 39
(C) "MATERIAL" MEANS A PRERECORDED MAGNETIC AUDIO OR VIDEO 41
TAPE, BOOK, DRAWING, MAGAZINE, NEWSPAPER, PAMPHLET, POSTER, 42
PRINT, PHOTOGRAPH, OR OTHER SIMILAR PRINTED, WRITTEN, RECORDED, 43
OR OTHERWISE PRODUCED ITEM. 44
(D) "PROHIBITED INFLAMMATORY MATERIAL" MEANS A MATERIAL 46
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THAT, IN THE DETERMINATION OF THE HEAD OF A STATE CORRECTIONAL 47
INSTITUTION OR THE HEAD'S DESIGNEE, IS DETRIMENTAL TO, OR POSES A 49
THREAT TO, THE REHABILITATION OF THE INMATES OR THE SECURITY, 50
GOOD ORDER, OR DISCIPLINE WITHIN OR ON THE GROUNDS OF THE 51
INSTITUTION. 52
(E) "PROHIBITED OBSCENE OR OTHER SEXUALLY ORIENTED 54
MATERIAL" MEANS A MATERIAL THAT, IN THE DETERMINATION OF THE HEAD 56
OF A STATE CORRECTIONAL INSTITUTION OR THE HEAD'S DESIGNEE, MEETS 57
THE STANDARD FOR OBSCENE OR OTHER SEXUALLY ORIENTED MATERIAL
ADOPTED BY THE DIRECTOR OF REHABILITATION AND CORRECTION PURSUANT 58
TO DIVISION (B) OF SECTION 5120.426 OF THE REVISED CODE. 59
(F) "PUBLICATION REVIEW COMMITTEE" MEANS THE COMMITTEE 62
CREATED BY THE DIRECTOR OF REHABILITATION AND CORRECTION PURSUANT 63
TO DIVISION (C) OF SECTION 5120.426 OF THE REVISED CODE. 64
Sec. 5120.426. (A) THE DIRECTOR OF REHABILITATION AND 66
CORRECTION SHALL ADOPT RULES AND THE HEAD OF A STATE CORRECTIONAL 69
INSTITUTION SHALL ADOPT REGULATIONS THAT GOVERN THE FORM, MEDIUM, 70
AND QUANTITY OF MATERIALS THAT EACH PRISONER CONFINED IN THE 71
INSTITUTION IS PERMITTED TO RECEIVE AND RETAIN. THOSE RULES AND 72
REGULATIONS SHALL BE CONSISTENT WITH SECTIONS 5120.425 TO
5120.428 OF THE REVISED CODE. THE REGULATIONS ADOPTED BY THE 74
HEAD OF AN INSTITUTION SHALL BE CONSISTENT WITH THE RULES THAT 76
THE DIRECTOR OF REHABILITATION AND CORRECTION ADOPTS PURSUANT TO 77
THIS DIVISION.
THE HEAD OF A STATE CORRECTIONAL INSTITUTION SHALL FORWARD 79
PROPOSED REGULATIONS THAT THE HEAD OF THE INSTITUTION WISHES TO 80
ADOPT TO THE DIRECTOR FOR THE DIRECTOR'S REVIEW AND APPROVAL 82
PRIOR TO THE IMPLEMENTATION OF THE REGULATIONS. THE DIRECTOR 83
PROMPTLY SHALL REVIEW AND APPROVE OR DISAPPROVE THE PROPOSED 84
REGULATIONS. IF THE DIRECTOR APPROVES THE PROPOSED REGULATIONS, 85
THE HEAD OF THE INSTITUTION SHALL ADOPT THE REGULATIONS, SHALL 86
POST THEM IN APPROPRIATE LOCATIONS THROUGHOUT THE INSTITUTION, 88
AND SHALL IMPLEMENT THEM.
(B) THE DIRECTOR OF REHABILITATION AND CORRECTION SHALL 90
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ADOPT A RULE ESTABLISHING A STANDARD FOR DETERMINING WHETHER 91
MATERIAL IS OBSCENE OR IS OTHER SEXUALLY ORIENTED MATERIAL. THE 92
STANDARD FOR DETERMINING WHETHER MATERIAL IS OBSCENE SHALL 93
COMPORT WITH THE STANDARD FOR DETERMINING OBSCENITY ESTABLISHED 94
BY THE UNITED STATES SUPREME COURT. IN ESTABLISHING THE STANDARD 95
FOR DETERMINING WHETHER MATERIAL IS SEXUALLY ORIENTED MATERIAL, 96
THE DIRECTOR SHALL CONSIDER THE STANDARD ESTABLISHED FOR MATERIAL 97
THAT IS HARMFUL TO JUVENILES IN SECTION 2907.01 OF THE REVISED 98
CODE, BUT THE DIRECTOR SHALL NOT BE GOVERNED OR LIMITED BY THAT
STANDARD.
(C) THE DIRECTOR OF REHABILITATION AND CORRECTION SHALL 100
APPOINT A PUBLICATION REVIEW COMMITTEE OF ONE OR MORE PERSONS. 101
THE MEMBER OR MEMBERS OF THE COMMITTEE SHALL REVIEW WITHHOLDING 102
DETERMINATIONS PURSUANT TO SECTION 5120.428 OF THE REVISED CODE. 103
Sec. 5120.427. (A) EACH PRISONER CONFINED IN A STATE 105
CORRECTIONAL INSTITUTION MAY RECEIVE A REASONABLE NUMBER OF 107
MATERIALS DIRECTLY FROM THE PUBLISHERS OR OTHER DISTRIBUTORS OF 108
THOSE MATERIALS. WITH THE PRIOR APPROVAL OF THE HEAD OF THE 109
STATE CORRECTIONAL INSTITUTION IN WHICH A PRISONER IS CONFINED, 110
EACH PRISONER ALSO MAY RECEIVE A REASONABLE NUMBER OF MATERIALS 111
FROM A SOURCE OTHER THAN THE PUBLISHER OR OTHER DISTRIBUTOR OF 112
THOSE MATERIALS. 113
A PRISONER'S RECEIPT AND RETENTION OF MATERIALS IS SUBJECT 116
TO SECURITY INSPECTIONS CONDUCTED BY THE INSTITUTION IN WHICH THE
PRISONER IS CONFINED AND TO THE RULES ADOPTED AND THE REGULATIONS 118
ADOPTED, REVIEWED, AND APPROVED PURSUANT TO SECTION 5120.426 OF 119
THE REVISED CODE. SUBJECT TO A CONTRARY DECISION WITH RESPECT TO 120
A MATERIAL'S NATURE BY THE PUBLICATION REVIEW COMMITTEE FOLLOWING 121
A REVIEW PURSUANT TO SECTION 5120.428 OF THE REVISED CODE, A 122
PRISONER IS NOT ENTITLED TO RECEIVE OR RETAIN ANY MATERIAL THAT 123
THE HEAD OF THE STATE CORRECTIONAL INSTITUTION OR THE HEAD'S 124
DESIGNEE DETERMINES DURING THE COURSE OF A SECURITY INSPECTION TO 125
BE A PROHIBITED INFLAMMATORY MATERIAL OR A PROHIBITED OBSCENE OR 126
OTHER SEXUALLY ORIENTED MATERIAL. 127
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(B)(1) THE HEAD OF EACH STATE CORRECTIONAL INSTITUTION OR 130
THE HEAD'S DESIGNEE SHALL INSPECT EACH INCOMING MATERIAL TO 131
DETERMINE WHETHER THE MATERIAL IS A PROHIBITED INFLAMMATORY 132
MATERIAL, A PROHIBITED OBSCENE OR OTHER SEXUALLY ORIENTED 133
MATERIAL, OR ANOTHER TYPE OF MATERIAL. THE HEAD OF THE STATE 134
CORRECTIONAL INSTITUTION OR THE HEAD'S DESIGNEE SHALL NOT
DETERMINE A MATERIAL TO BE A PROHIBITED INFLAMMATORY MATERIAL 136
SOLELY ON THE BASIS OF ITS APPEAL TO A PARTICULAR ETHNIC, RACIAL, 137
OR RELIGIOUS AUDIENCE.
(2) IF THE HEAD OF THE STATE CORRECTIONAL INSTITUTION OR 139
THE HEAD'S DESIGNEE DETERMINES THAT AN INCOMING MATERIAL IS NOT A 142
PROHIBITED INFLAMMATORY MATERIAL AND IS NOT A PROHIBITED OBSCENE 143
OR OTHER SEXUALLY ORIENTED MATERIAL, THE HEAD OF THE INSTITUTION 144
OR THE HEAD'S DESIGNEE SHALL CAUSE THE MATERIAL TO BE PROMPTLY 146
FORWARDED TO THE PRISONER WHO IS ITS INTENDED RECIPIENT. IF THE 147
HEAD OF THE INSTITUTION OR THE HEAD'S DESIGNEE DETERMINES THAT AN 148
INCOMING MATERIAL IS A PROHIBITED INFLAMMATORY MATERIAL OR A 149
PROHIBITED OBSCENE OR OTHER SEXUALLY ORIENTED MATERIAL, THE HEAD 150
OF THE INSTITUTION OR THE HEAD'S DESIGNEE SHALL CAUSE THE
MATERIAL TO BE WITHHELD FROM THE PRISONER WHO IS ITS INTENDED 152
RECIPIENT AND PROMPTLY SHALL PROVIDE THAT PRISONER WITH A WRITTEN 153
WITHHOLDING NOTICE CONTAINING ALL OF THE FOLLOWING:
(a) A GENERAL DESCRIPTION OF THE WITHHELD MATERIAL; 156
(b) THE REASON WHY THE MATERIAL HAS NOT BEEN FORWARDED TO 159
THE PRISONER;
(c) A STATEMENT OF THE PRISONER'S RIGHT UNDER DIVISION (A) 162
OF SECTION 5120.428 OF THE REVISED CODE TO HAVE THE PUBLICATION 163
REVIEW COMMITTEE REVIEW THE WITHHOLDING DECISION OF THE HEAD OF 164
THE INSTITUTION OR THE HEAD'S DESIGNEE. 165
(3) WITHIN FIVE WORKING DAYS AFTER A PRISONER'S RECEIPT OF 168
THE WITHHOLDING NOTICE DESCRIBED IN DIVISION (B)(2) OF THIS 169
SECTION, THE PRISONER MAY SUBMIT TO THE HEAD OF THE STATE 170
CORRECTIONAL INSTITUTION A WRITTEN REQUEST FOR A REVIEW OF THE 171
WITHHOLDING DECISION. IF THE PRISONER FAILS TO SUBMIT A TIMELY 172
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WRITTEN REQUEST FOR A REVIEW OF THAT NATURE, THE FAILURE SHALL 173
CONSTITUTE THE PRISONER'S ACCEPTANCE OF THE WITHHOLDING DECISION, 175
AND THE HEAD OF THE INSTITUTION OR THE HEAD'S DESIGNEE SHALL 176
CAUSE THE MATERIAL TO BE DISPOSED OF IN THE MANNER THAT THE HEAD 177
OF THE INSTITUTION OR THE HEAD'S DESIGNEE CONSIDERS TO BE MOST 178
APPROPRIATE UNDER THE CIRCUMSTANCES. 179
Sec. 5120.428. (A) IF A PRISONER CONFINED IN A STATE 182
CORRECTIONAL INSTITUTION SUBMITS A TIMELY WRITTEN REVIEW REQUEST 183
UNDER DIVISION (B)(3) OF SECTION 5120.427 OF THE REVISED CODE, 184
THE HEAD OF THE STATE CORRECTIONAL INSTITUTION IN WHICH THE 185
PRISONER IS CONFINED OR THE HEAD'S DESIGNEE PROMPTLY SHALL 188
FORWARD THE WITHHELD MATERIAL TO THE PUBLICATION REVIEW
COMMITTEE. AS SOON AS IS PRACTICABLE AFTER RECEIPT OF THE 189
WITHHELD MATERIAL OR, IF POSSIBLE, WITHIN FIVE WORKING DAYS AFTER 191
THAT RECEIPT, THE PUBLICATION REVIEW COMMITTEE SHALL REVIEW THE 193
MATERIAL TO DETERMINE WHETHER IT IS A PROHIBITED INFLAMMATORY 194
MATERIAL, A PROHIBITED OBSCENE OR OTHER SEXUALLY ORIENTED 195
MATERIAL, OR ANOTHER TYPE OF MATERIAL. IN MAKING THAT 196
DETERMINATION, THE PUBLICATION REVIEW COMMITTEE MAY CONDUCT A 197
HEARING AND MAY PERMIT THE PRISONER WHO REQUESTED THE REVIEW TO 198
BE PRESENT AT THE HEARING AND TO PRESENT OBJECTIONS TO THE 199
DECISION OF THE HEAD OF THE INSTITUTION OR THE HEAD'S DESIGNEE TO 200
WITHHOLD THE MATERIAL.
(B) IF THE PUBLICATION REVIEW COMMITTEE DETERMINES THAT 203
THE WITHHELD MATERIAL IS NOT A PROHIBITED INFLAMMATORY MATERIAL 204
AND IS NOT A PROHIBITED OBSCENE OR OTHER SEXUALLY ORIENTED 205
MATERIAL, THE COMMITTEE SHALL CAUSE THE WITHHELD MATERIAL TO BE 207
PROMPTLY FORWARDED TO THE PRISONER WHO REQUESTED THE REVIEW. 208
(C) IF THE PUBLICATION REVIEW COMMITTEE DETERMINES THAT 211
THE WITHHELD MATERIAL IS A PROHIBITED INFLAMMATORY MATERIAL OR A 212
PROHIBITED OBSCENE OR OTHER SEXUALLY ORIENTED MATERIAL, THE 213
COMMITTEE SHALL FORWARD THE MATERIAL TO THE HEAD OF THE 214
INSTITUTION OR THE HEAD'S DESIGNEE FOR DISPOSAL IN THE MANNER 215
THAT THE HEAD OF THE INSTITUTION OR THE HEAD'S DESIGNEE CONSIDERS 216
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TO BE MOST APPROPRIATE UNDER THE CIRCUMSTANCES. 217