Perhaps Not The Most Compelling Of All Reasons To Avoid Prison

In an opinion that demonstrates just how astonishingly deferential the “rational basis” standard for governmental actions can be, the Seventh Circuit Court of Appeals has permitted a Wisconsin prison to ban inmates from playing Dungeons and Dragons or possessing any D&D related material.

The little lead figurines, I can understand.  Those could be molded into weapons, and the lead is soft enough to be pliable in one’s hand while still strong enough to actually cut something or be good at gouging out someone’s eye.  But lead figurines are really old-school.  I don’t think there’s a lot of figurine-moving going on any more.  When I played D&D as a kid in the 1980’s, my dorky friends and I didn’t use them and wouldn’t have really wanted to if we had them.

As to the rationale underlying the rule, I quote both the opinion and then Prof. Ilya Somin of the always-excellent Volokh Conspiracy:

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.”

But, of course, the rational basis test is the ultimate example of giving the government room to be wrong. It doesn’t matter if the information that the government’s decision is based on is incorrect so long as it seems credible; it doesn’t matter if the government’s response to this incorrect information is on its face asinine, so long as the rule bears some rational relation to some legitimate problem the government might wish to try and solve, even if its solution is apparently counter-productive.

I won’t argue that D&D is a good thing for prisoners to be doing although I would suggest that for some people it can actually be a good aid for the development of certain kinds of mental skills, both left-brained and right-brained. But I would argue that, without more information about what the prisoners were doing within or related to their game, it’s presumptively harmless. It’s not like they’re going to really learn how to cast fireball spells or psionically communicate with griffins to break out of their cells.  Yes, some of the (imaginary) in-game combat might be considered rather violent, but as a practical matter you can’t stop prisoners from talking about real-life violence, so really, what’s the big deal about having them talk about fantasy violence?

All in all, a very silly ruling responding to a very silly lawsuit.

Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering litigator. Recovering Republican. Recovering Catholic. Recovering divorcé. Recovering Former Editor-in-Chief of Ordinary Times. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.


  1. I would argue that D&D probably is beneficial for inmates but that it is probably something that should fall within the discretion of the prisons themselves. It would seem to me that the better argument for the prisons would be that it is something that could needlessly cause discord amongst the inmates. I have friends that stopped speaking to one another after particularly heartless D&D behavior.

  2. The powers that be saying they are worried about prisoners turning little figurines into weapons is very silly when all it takes to turn a toothbrush into a shiv is a sheet of sandpaper and thirty minutes time.

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