MIM Notes 194 September 15, 1999 MIM Legal Notes MIM Legal Notes is a product of MIM's Serve the People Prisoners' Legal Clinic. MIM Legal Notes is researched and written by our comrades behind the walls. We publish these articles and briefs because we believe that the legal research and arguments will be useful to other prisoners. As the work of MIM and prisoners, through the Serve the People Prisoners' Legal Clinic grows, we plan to increase publication of MIM Legal Notes. Comrades should be aware that differences in laws between states, changes in laws and legal precedents over time, and different case circumstances all mean that even something that was successful for one person might not work for others. We print the best legal writing available to us with the understanding that the PLC will only grow stronger with increased exposure and participation. We encourage all prisoners and non-prisoners to contribute to this program with research, writing, and funding. There may be other legal arguments or cases or statutes that would better serve your purposes; what you find here should be useful as a starting point. If you can do your own legal work, you may choose to rely on a purely bourgeois legal argument, or also use political arguments to make your legal case. South Carolina's policy on STGs unconstitutional submitted by a South Carolina prisoner The South Carolina Department of Corrections' policy on Security Threat Groups (STGs) OP21.01 is constitutionally illegal. The policy defines an STG as follows: A group of three or more inmates that has a common name and whose members or associates engage or have engaged in activities that include planning, organizing, threatening, soliciting, or committing unlawful acts of misconduct classified as serious threats or potential threats to the safety and security of the public, SCDC, etc. is a STG. SCDC policy OP22.14(OP), Inmate Disciplinary Procedures Appendix A 2.22. The 5%ers, the Black Panther Party, and the Almighty Latin King and Queen Nation, can all be construed as STGs under this policy. The reason for this is it is assumed that these groups have a well-organized infrastructure for crime (for example, drug trade). This is unsubstantiated. Crime is committed by individuals who act on their own that are associated with these groups. However, individuals in virtually any group may or may not have committed crimes. The South Carolina policy is unconstitutional because it bans groups regardless of their actual conduct--and makes individual members guilty by association. The 5%ers, the Black Panthers, and the ALKQN may have radical, different, or unpopular political and/or religious beliefs, but affiliation with them isn't illegal. See, U.S. Const. 14th Amend., Edwards v. South Carolina, 372 U.S. 229, 83 S. Ct. 680, 9 L. Ed. 2d. 697 (1963). The government may not suppress religious belief or practice no matter how varied and extreme a group's views may be. United States v. Ballard, 332 US 78, 87 (1944), U.S. Const. 1st Amend., Article 1 2 S.C. Const. The United States constitution protects freedom of association, and South Carolina's DOC policies state that: "No inmate will be discriminated against on the basis of religion or political beliefs." SCDC policy OP22.15, page 2(4). Freedom of association is a right guaranteed by the 1st Amend U.S. Const., Bistrick v. University of South Carolina 324 F. Supp. (1971), State v. Ellefson , 224 S.E. 2d 666, 266 S.C. 494 (1976). However, the reality in South Carolina is that prisoners are being punished for associating with or being members of religious and political organizations. There is no evidence that just because an inmate is associated with a so-called STG, he/she has or will engage in activities construed as unlawful acts of misconduct by the SCDC. There is no evidence to prove there will be any serious threats to safety and security from these groups. In fact, paragraph 2.22 of Appendix A SCDC policy OP22.14(OP) could include any three inmates with the same political or religious beliefs, especially if their beliefs are unpopular or unorthodox to the general populace. In fact, most inmates associated with the 5%ers, ALKQN, and other groups, have "good" prison records, meaning they have not been disciplined by the authorities. SCDC policy OP 21.04 (OP) inmate classification plan states that rational, objective criteria should be used to determine the security status of inmates. This apparently does not apply to inmates associated with so-called STGs. They are automatically housed in the Special Management Unit (see SCDC policy OP22.12 (OP) SMU). Their security status evaluation isn't based on accumulation of identified relevant rational factors and standards. Only that they belong to a so-called STG. Even though most inmates affiliated with an STG have excellent prison records they are still housed in close custody or SMUs. This violates the prisoner's right to due process: segregation from the general population requires at least minimum due process, Sylvester v. Hanks 140 F. 3d 713 (1998), Sealey v. Giltner 116 F. 3d 47 (1997). There is no due process when an inmate is confined to strict security units with no actual finding of acts of misconduct. It is tantamount to cruel and unusual punishment to be housed in more secure units and have fewer privileges than general population when an inmate has committed no actual threats or potential threats to safety and security. See, e.g., Wojtczak v. Cuyler, 480 F. Supp. 1288 (1979). Potential threats are speculation, and speculation can't be proven. Assuming an inmate is a threat because of STG association is not an acceptable method of classifying inmates. Only inmates who have actually committed unlawful acts of disciplinary infraction as defined in the SCDC disciplinary policy OP 22.14 (OP) should be remanded to the SMU. A liberty interest is threatened when inmates are automatically placed in SMU without due process or prolonged time for STG affiliation. This is because certain liberties and privileges afforded general population are not afforded to those in SMU, 14th Amend U.S. Constitution, Article 1, 3(10)(5) S.C. Constitution, Wright v. Miller 973 F. Supp 390 (1997). The worst threat group in prison is the "Blue Gang" (the guards). All inmates and jailhouse lawyers need to fight the reactionary STG policy. SCDC will only expand the scope of Security Threat Groups if not stopped. Soon inmates simply recreating or playing cards in a group will be considered an STG! Note: This author's legal expertise is limited (self-taught in prison). Most law books are outdated, and pocket parts for updates are usually missing. Anyone with more knowledge, please write to MIM on this matter. Or if I'm wrong, let us know! To the best of my knowledge the laws and cases noted are still good. Some of the narrative here is my own, so check the actual cites before quoting any of this in a legal action. MIM comments: In general we agree with this author that the STG policies of South Carolina and other states are reactionary tools designed to keep prisoners further down and apart so that education and organizing are more and more difficult. We have faith in the strength of our comrades behind the walls, and in their ability to continue to organize, study, and struggle. We disagree with this author, however, with respect to his/her comment that only inmates who actually commit an infraction should be placed in segregation. This position lends legitimacy to the prison system that MIM does not believe it deserves. The entire prison system under capitalism is illegitimate, and should be taken down and replaced with a proletarian system of real justice under a proletarian government. While MIM does not now advocate armed struggle or any violence in prison or within Amerikan borders, MIM also does not say that any prison rules under the present system are acceptable. Prisons are designed to keep oppressed nations down, and arbitrary regulations and codes are not in the interest of the oppressed. MIM encourages all our readers to think critically about prisons and prison regulations, and to help us struggle toward the end to this prison system!