Tracking Prison Censorship in the United States

To the Publisher:

This letter is to advise you that the following issue(s) of publication(s) sent to an inmate of the North Carolina Department of Correction, Division of Prisons, has been disapproved for delivery to the inmate.

Under Lock & Key, November/December 2011, No. 23 (Page 2)

This action was taken for the following reason: D. Violence, disorder, insurrection or terrorist/gang activities against individuals, groups, organizations, the government or any of its' institutions.

These issues contain material which violates North Carolina Division of Prisons policy D.0100, Publications Received/Possessed by Inmates. This material could be detrimental to the security and good order of the prison facility and the rehabilitation of inmates and is disapproved for the reason(s) indicated. . .

Signed: Fay Lassiter. Chair, Publication Review Committee

Assistant Director of Support Services
North Carolina Department of Corrections
Division of Prisons
4260 MSC
Raleigh, NC, 27699-4260
January 24, 2012

RE: censorship of Under Lock & Key issue no. 23 ? prisoner XXX - Scotland Correctional Institution.

1. Background.

We recently received from prisoner XXX, currently held at Scotland Correctional Institution, a ?notice to inmate of a statewide disapproved publication? (attachment #2), with which K. Stanback informs the prisoner that issue no. 22 of our publication titled Under Lock & Key appears on the Master List of Disapproved Publications of the NC Division of Prisons. Therefore, states the notice, the publication is rejected and ?there are no additional appeal rights to this decision?.

We also received a letter from another prisoner held at Scotland Correctional Institution as well (CCC), stating that in the last four months he hasn?t received any issues of Under Lock & Key because the publication has allegedly been put on the Master List of Disapproved Publications.

It is important to note that MIM Distributors has never received from your Division of Prisons any notices or other letters regarding the inclusion of any of its publications in the Master List of Disapproved Publications.

At this juncture, therefore, it is hard for us to understand whether any of our publications is in fact on the list of disapproved publications, which issues are on the list, for what reasons, and since when.

2. The determination is illegitimate and unconstitutional.

The above determination of Ms. Stanback is illegitimate and unconstitutional for many reasons and under several aspects. It violates both principles laid down by the U.S. Supreme Court and rules established in your own policies, namely in policy D.0100 adopted by your Division on 09/24/2010, regulating publications received by prisoners.

As already noted, MIM Distributors has never received any notice about the inclusion of issue no. 22 (or any other issue) in the Master List of Disapproved Publications. As you are responsible to know, section 0107 of your policy D.0100 requires that ?When pursuant to law the Division of Prisons rejects a publication mailed to an inmate, the publisher shall be notified in writing of the reason for rejection and the procedure to follow to appeal the rejection, including the responsibility of the publisher to submit a written appeal.?

If issue no. 22 of Under Lock & Key is actually on the Master List of Disapproved Publications by virtue of a previous decision, that decision (and the new one we?re discussing here) would be illegitimate and unconstitutional because it has never been notified to the publisher. The determination we?re discussing here would be illegitimate as well, as it would entirely rely on a previous illegitimate determination.

In sum, the above rule (section 0107 of policy D 0100) would have been violated twice by Ms. Stanback, who has presumably sent the mentioned notices only to the prisoners.

If issue no. 22 of Under Lock & Key wasn?t on the Master List of Disapproved Publications at the moment Ms. Stanback rejected it for prisoner XXX, then the determination would also be in contradiction with Section .0105 of the same policy, which specifies that ?The Master List does not ban the publication title but only those volumes, issues or editions that have been reviewed and rejected.?

In either case, therefore, the most recent negative determination of Ms. Stanback appears to be illegitimate for it clearly conflicts with the above rules included in your own policies.

3. The NC Division of Prisons Policy D.0100 is unconstitutional as it violates due process rights of prisoners and publishers.

Furthermore, section D.0105 of your policy no. D.0100 is certainly unconstitutional, inasmuch as it does not afford the publisher and the prisoner the right to appeal a negative determination whenever the rejected publication already appears on the Master List of Disapproved Publications.

The U.S. Supreme Court has made it clear that both the sender and the prisoner have a right, under the First Amendment and the Due Process Clause of the Fourteenth Amendment of the U.S. Constitution, to receive notice and an opportunity to be heard when prison administrators or staff prevent the sender?s expressive materials from reaching their intended recipients (Procunier v. Martinez, 416 U.S.396. 94 S.Ct 1800, as reaffirmed on the point by Turner V. Safley, 482 U.S. 78 (1987) and Thornburgh v. Abbott, 490 U.S. 401 (1989) and Montcalm Publ'g Corp. v. Beck, 80 F.3d 105, 106 (4th Cir.), cert. denied, 519 U.S. 928 (1996)).

The right that both the publisher and the prisoner have to appeal negative determinations may not be abridged only because the publication is allegedly on a list of disapproved publications. These protections evidently are the typical due process safeguards, which substantiate any other constitutional right and afford individuals a chance to appeal governmental decisions that affect their fundamental rights, among which the most cherished certainly are First Amendment rights.

In light of the these considerations, thus, there is very little doubt that decisions that affect publishers? First Amendment rights in the prison context must be accompanied by the typical due process safeguards, i.e. by procedural mechanisms that offer the publisher the opportunity to contest and fight the decision to exclude its materials.

The fact that the rejected publication may appear on a list of previously disapproved publications does not constitute a valid reason to deprive the prisoner and the publisher of the right to appeal the censorship determination. Both the prisoner and the publisher may not have had an opportunity to appeal the previous decision that initially included the publication in the list, just like it happened in the present case. Depriving them of the right to appeal the new censorship determination means nothing less than completely abridging those fundamental due process safeguards whose pivotal role in the prison mail censorship system the Supreme Court has so clearly stated.

It is very clear indeed that every single negative decision made by prison administrators must be accompanied by the above safeguards, regardless of the existence of a previous negative determination regarding the same publication. Even the same prisoner or publisher may have developed new arguments to submit while appealing the decision and therefore they may not be deprived of their right to fight the censorship decision.

4. Establishing a list of disapproved publications is unconstitutional, too.

Your policy D.0100 is also unconstitutional for the very fact that it establishes a list of disapproved publications. The Supreme Court has already struck down similar bans across the country and has flatly stated since 1989 that "Wardens may not reject a publication 'solely because its content is religious, philosophical, political, social[,] sexual, or . . . unpopular or repugnant,' or establish an excluded list of publications, but must review each issue of a subscription separately." Thornburgh v. Abbott, 490 U.S. 401 (1989).

Nor does the temporary nature of the inclusion of a publication in the list exclude its unconstitutionality. What the Supreme Court is trying to avoid is any automatic mechanism by which prison administrators may avoid the obligation to review each publication or issue separately. Here, the inclusion of a publication in the Master List of Disapproved Publications determines precisely the mechanism that the Supreme Court has addressed as illegitimate, as prison administrators may reject the publication (although for a period of 12 months) without reviewing it.

Based on the above considerations, we request that:
1) the censorship determination to include Under Lock & Key no. 23 on the MLDP be reversed;
2) the publication be allowed to the above prisoners;
3) the practice of including publications in the Master List of Disapproved Publication be discontinued;
4) the previously included issues be separately reviewed regardless of the inclusion;
5) your policy D.0100 be amended to accurately reflect United States law.


We appreciate your assistance in this matter and look forward to your response.

Sincerely,

MIM Distributors

CC: Affected parties

Warden Greg Lewis
Pelican Bay State Prison
PO Box 7000
Crescent City, CA 95531


January 13th, 2012

RE: Censorship incidents occurred at Pelican Bay State Prison ? exclusion of letters and publications sent to prisoners MR. YYY and Mr. XXX by MIM Distributors.

I am writing this letter about what seems to be a series of censorship incidents that recently occurred at Pelican Bay State Prison.

MIM Distributors sent the above mentioned prisoner several different publications and letters.

Precisely MIM Distributors sent Mr. YYY four letters on 10/12/2011, 10/6/2011, 9/8/2011 and 7/21/2011 and two magazines titled MIM Theory on 5/15/2011. MIM Distributors sent Mr. XXX issue no. 23 of a publication titled Under Lock & Key on 11/18/2011.

We recently learned from the prisoners that they never received any of those letters and/or publications. Nor did they receive any determination of your Department explaining whether and why the letters and publications were censored. MIM Distributors didn?t receive any notice of censorship determination either.

Your DOM states at sections 54010.16 and 54010.21.3 that respectively prisoners and publishers have to be notified of negative determinations and entitles both the sender and the recipient to appeal rejections of publications and letters.

As of now, it is impossible for us to understand why the letters and publications haven?t been delivered to the inmate and whether or not the Administration has decided to censor them.

As you are certainly aware, the U.S. Supreme Court has clearly stated that both the sender and the prisoner have a right, under the First Amendment and the Due Process Clause of the Fourteenth Amendment of the U.S. Constitution, to receive notice and an opportunity to be heard when prison administrators or staff prevent the sender?s expressive materials from reaching their intended recipients (Procunier v. Martinez, 416 U.S.396. 94 S.Ct 1800, as reaffirmed on the point by Turner V. Safley, 482 U.S. 78 (1987) and Thornburgh v. Abbott, 490 U.S. 401 (1989) and Montcalm Publ'g Corp. v. Beck, 80 F.3d 105, 106 (4th Cir.), cert. denied, 519 U.S. 928 (1996)). In plain and striking contradiction with these principles, neither the prisoners, nor MIM Distributors were notified of the censorship decision or actually of any decisions that the Mailroom staff has made with regard to the publications and letters sent to Mr. YYY and Mr. XXX.

In refusing to provide notice and an opportunity to be heard to both the prisoners and the publisher (MIM Distributors), under local policies and/or practices, prison administrators and staff violated clearly established constitutional law and acted under color of state law for purposes of 42 U.S.C. ? 1983.

In addition, the practice of holding publications and/or letters for an indefinite time without providing notice of any determination is certainly unconstitutional, as it does not satisfy the obligation that the prison administration has to provide both the sender and the recipient with a decision in a reasonable time and ultimately frustrates the right that both the sender and the prisoner have to appeal a negative determination.

With the present letter, MIM Distributors requests
to know whether or not a determination has been made over the mentioned letters and publications;
in case of a negative determination, to be notified of the reasons of the censorship decision and to be offered a chance to appeal the exclusion of its materials.

We also request that adequate notice be provided to the prisoners.

We appreciate your assistance in this matter and look forward to your response.

Sincerely,

MIM Distributors


CC: Affected parties

Warden Greg Lewis
Pelican Bay State Prison
PO Box 7000
Crescent City, CA 95531


January 13th, 2012

RE: Censorship incidents occurred at Pelican Bay State Prison ? exclusion of letters and publications sent to prisoners MR. YYY and Mr. XXX by MIM Distributors.

I am writing this letter about what seems to be a series of censorship incidents that recently occurred at Pelican Bay State Prison.

MIM Distributors sent the above mentioned prisoner several different publications and letters.

Precisely MIM Distributors sent Mr. YYY four letters on 10/12/2011, 10/6/2011, 9/8/2011 and 7/21/2011 and two magazines titled MIM Theory on 5/15/2011. MIM Distributors sent Mr. XXX issue no. 23 of a publication titled Under Lock & Key on 11/18/2011.

We recently learned from the prisoners that they never received any of those letters and/or publications. Nor did they receive any determination of your Department explaining whether and why the letters and publications were censored. MIM Distributors didn?t receive any notice of censorship determination either.

Your DOM states at sections 54010.16 and 54010.21.3 that respectively prisoners and publishers have to be notified of negative determinations and entitles both the sender and the recipient to appeal rejections of publications and letters.

As of now, it is impossible for us to understand why the letters and publications haven?t been delivered to the inmate and whether or not the Administration has decided to censor them.

As you are certainly aware, the U.S. Supreme Court has clearly stated that both the sender and the prisoner have a right, under the First Amendment and the Due Process Clause of the Fourteenth Amendment of the U.S. Constitution, to receive notice and an opportunity to be heard when prison administrators or staff prevent the sender?s expressive materials from reaching their intended recipients (Procunier v. Martinez, 416 U.S.396. 94 S.Ct 1800, as reaffirmed on the point by Turner V. Safley, 482 U.S. 78 (1987) and Thornburgh v. Abbott, 490 U.S. 401 (1989) and Montcalm Publ'g Corp. v. Beck, 80 F.3d 105, 106 (4th Cir.), cert. denied, 519 U.S. 928 (1996)). In plain and striking contradiction with these principles, neither the prisoners, nor MIM Distributors were notified of the censorship decision or actually of any decisions that the Mailroom staff has made with regard to the publications and letters sent to Mr. YYY and Mr. XXX.

In refusing to provide notice and an opportunity to be heard to both the prisoners and the publisher (MIM Distributors), under local policies and/or practices, prison administrators and staff violated clearly established constitutional law and acted under color of state law for purposes of 42 U.S.C. ? 1983.

In addition, the practice of holding publications and/or letters for an indefinite time without providing notice of any determination is certainly unconstitutional, as it does not satisfy the obligation that the prison administration has to provide both the sender and the recipient with a decision in a reasonable time and ultimately frustrates the right that both the sender and the prisoner have to appeal a negative determination.

With the present letter, MIM Distributors requests
to know whether or not a determination has been made over the mentioned letters and publications;
in case of a negative determination, to be notified of the reasons of the censorship decision and to be offered a chance to appeal the exclusion of its materials.

We also request that adequate notice be provided to the prisoners.

We appreciate your assistance in this matter and look forward to your response.

Sincerely,

MIM Distributors


CC: Affected parties

Regional Director
Michael K. Nalley
North Central Regional Office
Federal Bureau of Prisons
400 State Avenue, Suite 800
Kansas City, KS 66101

January 3, 2011

RE: Censorship incident occurred at FCI Pekin; exclusion of publications sent to inmate XXX from MIM Distributors.

Dear Director Nalley,

I am writing this letter about a censorship incident that recently occurred at FCI Pekin in Pekin, IL. MIM Distributors sent the above mentioned inmate issue no. 21 of a publication titled Under Lock & Key. The publications was sent on 07/29/2011.

We recently received the publication back with a stamp on it that merely states: ?return to sender? and ?refused?. None of the possible reasons for refusal given with the stamp have been marked. It is impossible for us to understand why the publication has not been delivered to the inmate and why the Administration has decided to censor it.

Let me remind you that 28 CFR ? 540.71, at par. d) clearly states?Where a publication is found unacceptable, the Warden shall promptly advise the inmate in writing of the decision and the reasons for it. The notice must contain reference to the specific article(s) or material(s) considered objectionable. The Warden shall permit the inmate an opportunity to review this material for purposes of filing an appeal under the Administrative Remedy Program?.

In addition, par. e) of the same section states that ?The Warden shall provide the publisher or sender of an unacceptable publication a copy of the rejection letter. The Warden shall advise the publisher or sender that he may obtain an independent review of the rejection by writing to the Regional Director within 20 days of receipt of the rejection letter?.

As you are certainly aware, the above regulation is pursuant to the principles laid down by the U.S. Supreme Court in the matter. Both the sender and the prisoner have a right, under the First Amendment and the Due Process Clause of the Fourteenth Amendment of the U.S. Constitution, to receive adequate notice indicating the reasons of the censorship and offering an opportunity to be heard when prison administrators or staff prevent the sender?s expressive materials from reaching their intended recipients (Procunier v. Martinez, 416 U.S.396. 94 S.Ct 1800, as reaffirmed on the point by Turner V. Safley, 482 U.S. 78 (1987) and Thornburgh v. Abbott, 490 U.S. 401 (1989) and Montcalm Publ'g Corp. v. Beck, 80 F.3d 105, 106 (4th Cir.), cert. denied, 519 U.S. 928 (1996)).

In plain and striking contradiction with these principles, and with the Federal regulations above cited, neither XXX, nor MIM Distributors were notified of the reasons of the censorship decision. Merely stamping the publication ?refused? does not satisfy the obligation to provide both the sender and the recipient with a clear indication of the reasons of the censorship determination, and frustrates the right that both the sender and the prisoner have to appeal such determination.

With the present letter, MIM Distributors requests to be notified of the reasons of the censorship decision and to be offered a chance to appeal the exclusion of its materials and/or letter. We also request that adequate notice be provided to the prisoner. We appreciate your assistance in this matter and look forward to your response.

Sincerely,

MIM Distributors

CC: Affected parties