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As Reported by House Criminal Justice Committee
123rd General Assembly
Regular Session
1999-2000 | Sub. H.B. No. 62 |
REPRESENTATIVES COUGHLIN-TIBERI-HOOD-EVANS-
WOMER BENJAMIN
-MYERS-WILLAMOWSKI
A BILL
To enact sections 5120.425, 5120.426, 5120.427, and 5120.428 of the Revised
Code to regulate
the receipt and retention of specified inflammatory
materials, specified
obscene or other sexually oriented materials, and other types of materials by
prisoners in state correctional institutions.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 5120.425, 5120.426, 5120.427, and 5120.428
of the Revised Code be enacted to read as
follows:
Sec. 5120.425. AS USED IN SECTIONS 5120.425 TO 5120.428 OF THE
REVISED CODE:
(A) "HEAD OF A STATE CORRECTIONAL INSTITUTION,"
"PRISONER," AND "STATE CORRECTIONAL INSTITUTION" HAVE THE SAME
MEANINGS AS IN SECTION 2967.01 OF THE
REVISED
CODE.
(B) "HEAD'S DESIGNEE" MEANS A PERSON OR
A PANEL OF PERSONS DESIGNATED BY THE HEAD OF A STATE CORRECTIONAL
INSTITUTION TO PERFORM A RESPONSIBILITY THAT SECTIONS 5120.425 TO 5120.428 OF
THE REVISED CODE
GENERALLY OTHERWISE IMPOSE UPON THAT INDIVIDUAL.
(C) "MATERIAL" MEANS A PRERECORDED MAGNETIC AUDIO OR VIDEO
TAPE, BOOK, DRAWING, MAGAZINE, NEWSPAPER, PAMPHLET, POSTER,
PRINT, PHOTOGRAPH, OR OTHER SIMILAR PRINTED, WRITTEN, RECORDED,
OR OTHERWISE PRODUCED ITEM.
(D) "PROHIBITED INFLAMMATORY MATERIAL" MEANS A MATERIAL
THAT, IN THE DETERMINATION OF THE HEAD OF A STATE CORRECTIONAL
INSTITUTION OR THE HEAD'S DESIGNEE,
IS DETRIMENTAL TO, OR POSES A THREAT TO, THE REHABILITATION OF THE INMATES OR
THE SECURITY, GOOD
ORDER, OR DISCIPLINE WITHIN OR ON THE GROUNDS OF THE
INSTITUTION.
(E) "PROHIBITED OBSCENE OR OTHER SEXUALLY ORIENTED
MATERIAL" MEANS A MATERIAL THAT, IN THE DETERMINATION OF THE
HEAD OF A STATE CORRECTIONAL INSTITUTION OR THE HEAD'S DESIGNEE,
MEETS THE STANDARD FOR OBSCENE OR OTHER SEXUALLY ORIENTED MATERIAL ADOPTED BY
THE DIRECTOR OF REHABILITATION AND CORRECTION PURSUANT TO DIVISION
(B) OF SECTION 5120.426 of the Revised Code.
(F) "PUBLICATION REVIEW COMMITTEE" MEANS THE
COMMITTEE CREATED BY THE DIRECTOR OF REHABILITATION AND
CORRECTION PURSUANT TO DIVISION
(B)(2) OF SECTION 5120.428 OF THE REVISED CODE.
Sec. 5120.426. (A) THE DIRECTOR OF REHABILITATION AND CORRECTION
SHALL ADOPT
RULES AND THE HEAD OF A STATE
CORRECTIONAL INSTITUTION SHALL ADOPT REGULATIONS THAT GOVERN THE
FORM, MEDIUM, AND QUANTITY OF MATERIALS THAT EACH PRISONER
CONFINED IN THE INSTITUTION IS PERMITTED TO RECEIVE AND RETAIN.
THOSE RULES AND REGULATIONS SHALL BE CONSISTENT WITH SECTIONS 5120.425 TO
5120.428 OF
THE REVISED CODE. THE REGULATIONS ADOPTED BY THE HEAD OF AN
INSTITUTION SHALL BE CONSISTENT WITH THE
RULES THAT THE DIRECTOR OF REHABILITATION AND CORRECTION ADOPTS
PURSUANT TO THIS DIVISION.
THE HEAD OF A STATE CORRECTIONAL INSTITUTION SHALL FORWARD
PROPOSED REGULATIONS THAT THE HEAD OF THE INSTITUTION WISHES TO ADOPT TO THE
DIRECTOR FOR THE
DIRECTOR'S REVIEW AND APPROVAL PRIOR TO THE IMPLEMENTATION OF
THE REGULATIONS. THE DIRECTOR PROMPTLY SHALL REVIEW AND APPROVE
OR DISAPPROVE THE PROPOSED REGULATIONS. IF THE DIRECTOR
APPROVES THE PROPOSED REGULATIONS, THE HEAD OF THE INSTITUTION
SHALL ADOPT THE REGULATIONS, SHALL POST THEM IN APPROPRIATE LOCATIONS
THROUGHOUT
THE INSTITUTION, AND SHALL IMPLEMENT THEM.
(B) THE DIRECTOR OF REHABILITATION AND CORRECTION SHALL ADOPT A
RULE ESTABLISHING A STANDARD FOR DETERMINING WHETHER MATERIAL IS OBSCENE OR IS
OTHER SEXUALLY ORIENTED MATERIAL. THE STANDARD FOR DETERMINING WHETHER
MATERIAL IS OBSCENE SHALL COMPORT WITH THE STANDARD FOR DETERMINING OBSCENITY
ESTABLISHED BY THE UNITED STATES SUPREME
COURT. IN ESTABLISHING THE STANDARD FOR DETERMINING WHETHER MATERIAL
IS SEXAULLY ORIENTED MATERIAL, THE DIRECTOR SHALL CONSIDER THE STANDARD
ESTABLISHED FOR MATERIAL THAT IS HARMFUL TO JUVENILES IN SECTION 2907.01
of the Revised Code, BUT THE DIRECTOR SHALL NOT BE GOVERNED OR LIMITED BY THAT STANDARD.
(C) THE DIRECTOR OF REHABILITATION AND CORRECTION SHALL APPOINT A
PUBLICATION REVIEW COMMITTEE OF ONE OR MORE PERSONS. THE MEMBER OR MEMBERS OF
THE COMMITTEE SHALL REVIEW WITHHOLDING DETERMINATIONS PURSUANT TO SECTION
5120.428 of the Revised Code.
Sec. 5120.427. (A) EACH PRISONER CONFINED IN A STATE
CORRECTIONAL INSTITUTION MAY
RECEIVE A REASONABLE NUMBER OF MATERIALS DIRECTLY FROM THE
PUBLISHERS OR OTHER DISTRIBUTORS OF THOSE MATERIALS. WITH THE
PRIOR APPROVAL OF THE HEAD OF THE STATE CORRECTIONAL INSTITUTION
IN WHICH A PRISONER IS CONFINED, EACH
PRISONER ALSO MAY RECEIVE A REASONABLE NUMBER OF MATERIALS FROM
A SOURCE OTHER THAN THE PUBLISHER OR OTHER DISTRIBUTOR OF THOSE
MATERIALS.
A PRISONER'S RECEIPT AND RETENTION OF MATERIALS IS
SUBJECT TO SECURITY INSPECTIONS CONDUCTED BY THE INSTITUTION IN WHICH THE
PRISONER IS CONFINED AND TO
THE REGULATIONS ADOPTED, REVIEWED, AND APPROVED PURSUANT TO
SECTION 5120.426 OF THE REVISED CODE. SUBJECT
TO A CONTRARY DECISION WITH RESPECT TO A MATERIAL'S NATURE BY
THE PUBLICATION REVIEW COMMITTEE FOLLOWING A REVIEW PURSUANT TO
SECTION 5120.428 OF THE REVISED CODE, A PRISONER
IS NOT ENTITLED TO RECEIVE OR RETAIN ANY MATERIAL THAT THE HEAD
OF THE STATE CORRECTIONAL INSTITUTION OR THE HEAD'S DESIGNEE DETERMINES DURING
THE COURSE OF A SECURITY INSPECTION TO BE A
PROHIBITED INFLAMMATORY MATERIAL OR A PROHIBITED OBSCENE OR
OTHER SEXUALLY ORIENTED MATERIAL.
(B)(1) THE HEAD OF EACH STATE
CORRECTIONAL INSTITUTION OR THE HEAD'S DESIGNEE SHALL INSPECT EACH INCOMING
MATERIAL TO DETERMINE WHETHER THE MATERIAL IS A
PROHIBITED INFLAMMATORY MATERIAL, A PROHIBITED OBSCENE OR OTHER
SEXUALLY ORIENTED MATERIAL, OR ANOTHER TYPE OF MATERIAL. THE
HEAD OF THE STATE CORRECTION INSTITUTION OR THE HEAD'S DESIGNEE SHALL NOT
DETERMINE A MATERIAL TO BE A PROHIBITED
INFLAMMATORY MATERIAL SOLELY ON THE BASIS OF ITS APPEAL TO A
PARTICULAR ETHNIC, RACIAL, OR RELIGIOUS AUDIENCE.
(2) IF THE HEAD OF THE STATE CORRECTION INSTITUTION OR THE HEAD'S DESIGNEE
DETERMINES THAT AN
INCOMING MATERIAL IS NOT A PROHIBITED INFLAMMATORY MATERIAL AND
IS NOT A PROHIBITED OBSCENE OR OTHER SEXUALLY
ORIENTED MATERIAL, THE HEAD OF THE INSTITUTION OR THE HEAD'S DESIGNEE SHALL
CAUSE THE MATERIAL TO
BE PROMPTLY FORWARDED TO THE PRISONER WHO IS ITS INTENDED
RECIPIENT. IF THE HEAD OF THE INSTITUTION OR THE HEAD'S DESIGNEE DETERMINES
THAT AN INCOMING MATERIAL IS A PROHIBITED INFLAMMATORY MATERIAL
OR A PROHIBITED OBSCENE OR OTHER SEXUALLY ORIENTED MATERIAL,
THE HEAD OF THE INSTITUTION OR THE HEAD'S DESIGNEE SHALL CAUSE THE MATERIAL TO
BE WITHHELD FROM THE PRISONER WHO IS
ITS INTENDED RECIPIENT AND PROMPTLY SHALL PROVIDE THAT PRISONER
WITH A WRITTEN WITHHOLDING NOTICE CONTAINING ALL OF THE FOLLOWING:
(a) A GENERAL DESCRIPTION OF THE
WITHHELD MATERIAL;
(b) THE REASON WHY THE MATERIAL HAS NOT BEEN
FORWARDED TO THE PRISONER;
(c) A STATEMENT OF THE PRISONER'S
RIGHT UNDER DIVISION (A) OF
SECTION 5120.428 OF THE REVISED CODE TO HAVE THE PUBLICATION
REVIEW COMMITTEE REVIEW THE WITHHOLDING DECISION OF THE HEAD OF THE
INSTITUTION OR THE HEAD'S DESIGNEE.
(3) WITHIN FIVE WORKING DAYS AFTER A PRISONER'S RECEIPT
OF THE WITHHOLDING NOTICE DESCRIBED IN DIVISION
(B)(2) OF THIS SECTION, THE
PRISONER MAY SUBMIT TO THE HEAD OF THE STATE CORRECTIONAL
INSTITUTION A WRITTEN REQUEST FOR A REVIEW OF THE
WITHHOLDING DECISION. IF THE PRISONER FAILS TO SUBMIT A TIMELY
WRITTEN REQUEST FOR A REVIEW OF THAT NATURE, THE FAILURE SHALL
CONSTITUTE THE PRISONER'S ACCEPTANCE OF THE
WITHHOLDING DECISION, AND THE HEAD OF THE
INSTITUTION OR THE HEAD'S DESIGNEE SHALL CAUSE THE MATERIAL TO
BE DISPOSED OF IN THE MANNER THAT THE HEAD OF THE INSTITUTION OR THE HEAD'S
DESIGNEE CONSIDERS TO BE MOST APPROPRIATE UNDER THE
CIRCUMSTANCES.
Sec. 5120.428. (A)(1) IF A PRISONER
CONFINED IN A STATE CORRECTIONAL INSTITUTION
SUBMITS A TIMELY WRITTEN REVIEW REQUEST UNDER DIVISION
(B)(3) OF SECTION 5120.427 OF THE REVISED CODE, THE
HEAD OF THE STATE CORRECTIONAL INSTITUTION IN WHICH THE PRISONER
IS CONFINED OR THE
HEAD'S DESIGNEE
PROMPTLY SHALL FORWARD THE WITHHELD MATERIAL TO THE PUBLICATION REVIEW
COMMITTEE. AS SOON AS IS PRACTICABLE AFTER RECEIPT OF THE
WITHHELD MATERIAL OR, IF
POSSIBLE, WITHIN FIVE WORKING DAYS AFTER THAT RECEIPT, THE
PUBLICATION REVIEW COMMITTEE
SHALL REVIEW THE MATERIAL TO DETERMINE WHETHER IT
IS A PROHIBITED INFLAMMATORY MATERIAL, A PROHIBITED OBSCENE OR
OTHER SEXUALLY ORIENTED MATERIAL, OR ANOTHER TYPE OF MATERIAL.
IN MAKING THAT DETERMINATION, THE PUBLICATION REVIEW COMMITTEE
MAY CONDUCT A HEARING AND MAY PERMIT THE
PRISONER WHO REQUESTED THE REVIEW TO BE PRESENT AT THE HEARING AND TO PRESENT
OBJECTIONS TO THE DECISION OF THE HEAD OF THE INSTITUTION OR THE HEAD'S
DESIGNEE TO WITHHOLD THE MATERIAL.
(2) IF THE PUBLICATION REVIEW COMMITTEE DETERMINES
THAT THE WITHHELD MATERIAL IS NOT A
PROHIBITED INFLAMMATORY MATERIAL AND IS NOT A
PROHIBITED OBSCENE OR OTHER SEXUALLY ORIENTED MATERIAL, THE COMMITTEE
SHALL CAUSE THE
WITHHELD MATERIAL TO BE PROMPTLY FORWARDED TO THE
PRISONER WHO REQUESTED THE REVIEW.
(3) IF THE PUBLICATION REVIEW COMMITTEE DETERMINES
THAT THE WITHHELD MATERIAL IS A
PROHIBITED INFLAMMATORY MATERIAL OR A PROHIBITED OBSCENE OR
OTHER SEXUALLY ORIENTED MATERIAL, THE COMMITTEE SHALL FORWARD THE MATERIAL TO
THE HEAD OF THE INSTITUTION OR
THE HEAD'S DESIGNEE FOR DISPOSAL IN THE MANNER THAT THE HEAD OF
THE INSTITUTION OR THE HEAD'S DESIGNEE CONSIDERS TO BE MOST APPROPRIATE
UNDER THE CIRCUMSTANCES.
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