Legal Commentary

7th Circuit Upholds Prison Rule Forbidding Inmates to Play Dungeons and Dragons

By Ilya Somin

In a decision issued today (here is an alternate link to the decision), the 7th Circuit Court of Appeals has upheld a Wisconsin prison?s rule forbidding inmates to play Dungeons & Dragons or possess D&D publications and materials [HT: Josh Blackman].

The prison?s rationale for the ban is that playing D&D might stimulate ?gang activity? by inmates. But the government conceded that there is no evidence that Dungeons and Dragons actually had stimulated gang activity in the past, either in this prison or elsewhere. The only evidence for the supposedly harmful effects of Dungeons and Dragons were a few cases from other states where playing the game supposedly led inmates to indulge in ?escapism? and become divorced from reality, one case where two non-inmates committed a crime in which they ?acted out? a D&D story-line, and one where a longtime D&D player (not an inmate) committed suicide. Obviously, almost any hobby or reading material might lead people to become divorced from reality, or in rare cases commit suicide. And disturbed individuals could potentially ?act out? a crime based on a scenario in almost any film or literary work. Should prisons ban The Count of Monte Cristo on the grounds that it might encourage escape attempts? Moreover, the ?escapism? rationale conflicts with the gang argument. People who become engrossed in escapism and retreat from society are presumably less likely to become active gang members.

That said, the Seventh Circuit decision may well be legally correct. It is based on the highly deferential standard under which most prison regulations are to be upheld against constitutional challenge so long as they are ?rationally related? to some legitimate goal of prison administration. And, as lawyers know, when courts apply such a ?rational basis? test, that usually means that almost anything goes. The test is mandated by Supreme Court precedent, and the Seventh Circuit judges had little choice but to follow it.

UPDATE: I should perhaps mention that the court also cited statements by a ?gang expert? who argued that playing D&D might stimulate gang activity because Dungeons and Dragons has a structure similar to a gang:

The sole evidence the prison officials have submitted on this point [the connection between D&D and gangs] is the affidavit of Captain Muraski, the gang specialist. Muraski testified that Waupun?s prohibition on role-playing and fantasy games was intended to serve two purposes. The first aim Muraski cited was the maintenanceof prison security. He explained that the policy was intended to promote prison security because cooperative games can mimic the organization of gangs and lead to the actual development thereof. Muraski elaborated that during D&D games, one player is denoted the ?Dungeon Master.? The Dungeon Master is tasked with giving directions to other players, which Muraski testified mimics the organization of a gang.

This argument is, I think, too weak to bother refuting ? even if it is just barely compelling enough to pass muster under the rational basis test. By this ?reasoning,? you could ban the ?cooperative game? of football because ?during football games, one player is denoted the ?quarterback.? The quarterback is tasked with giving directions to other players.?

Full post as published by The Volokh Conspiracy on January 25, 2010 (boomark / email).