Tracking Prison Censorship in the United States

W.D. Jennings, Ph.D., Management Lead Analyst
Virginia Department of Corrections
PO Box 26963
Richmond, VA 23261-6963

10 February 2008

Mr. Jennings,

I am writing you again regarding a new incident that just came across my desk. A letter that was sent by MIM Distributors to Mr. XXXXXX XXXXXX (XXXXXX) regarding the censorship problems MIM has been having at Red Onion State Prison was returned with the reason ?No Approval? (see enclosed memo).

After re-reviewing Operating Procedure 803.2, which you had previously sent me, there is no indication that you need to get prior approval to send a letter to someone at Red Onion. In fact, the whole operating procedure is on the subject of ?Incoming Publications,? which are defined as ?Any written communication such as newspapers, magazines, newsletters or other periodicals, books, brochures, catalogs, or pamphlets that can be subscribed to or ordered from a legitimate mail order vendor.? Clearly, this does not include letters. Is there a separate operating procedure I should be referring to in this matter? And if letters need to be approved, how would we go about doing that? Must we write to you directly before sending each letter to someone at Red Onion?

Finally, also note that Mr. XXXXXX received written approval to receive a free subscription to MIM?s newsletters on the same day that this letter was censored (see enclosed Personal Property Request Form). So if this letter is being treated as a publication by Major K. Chris, as it appears to be, then his claim of ?no approval? is unfounded.

Thank you for any clarification you can provide in this matter,

Sharon Benson-Perry, Media Review Chairperson
Clinton Correctional Facility
PO Box 2000
Dannemora, NY 12929-2000

January 7, 2007

Dear Sharon Benson-Perry:

In August I had sent you a response to your most recent letter to Us with a copy of the third issue of Our publication the Party Bulletin for your review. You had requested a copy so that it could be reviewed and (hopefully) approved to avoid the long standing policy of the Clinton mailroom of returning, and now apparently discarding, any mail from Our organization. I never received a response from you about the Party Bulletin that was sent.

Just recently it was brought to my attention that Issue 5 of the Party Bulletin was then censored at Clinton Correctional Facility in September of last year. We were never notified of this censorship, the materials were not even returned to Us. Is it now the policy of Clinton to destroy any mail from NAMP that is sent to prisoners at the facility?

I am requesting a response to this inquiry explaining the justification for censorship of Our publication at Clinton. We have also begun mailing Our literature delivery confirmation in hopes that staff will be encouraged to follow the standard administrative procedures in handling mail and media review procedures.

We are aware of certain individuals at Clinton who have taken it upon themselves to spearhead the campaign against prisoners who receive literature from Our organization. We hope it is within your ability to rein in these individuals so that they adhere to NYS DOCS policy as well as the United States Constitution.

Please respond at your earliest convenience so that we may resolve this issue.

Sincerely,

Sharon Benson-Perry, Media Review Chairperson
Clinton Correctional Facility
PO Box 2000
Dannemora, NY 12929-2000

February 3, 2008

Dear Sharon Benson-Perry:

Thank you for taking the time to respond to my previous letter and explaining why media is not always returned to the sender. However, a brief look at the handling of literature from NAMP at Clinton will make it clear where my confusion may have come from.

As you?ll recall, the first time I wrote you was in response a stack of copies of one of our newsletters that were all stamped ?Contents Prohibited? and sent right back to us. When I wrote to inquire about the reasoning for this you claimed that there was no record of the newsletters arriving or being censored.

In the most recent incident I wrote you about neither our office nor Mr XXXXXX XXXXXX, who we had sent our newsletter to, had received any notification of censorship, yet the newsletter was not received. Hence, my inquiry into whether it is now Clinton Correctional Facility?s policy to discard any mail from NAMP to avoid having to deal with justifying the censorship of our mail. Since it clearly is not, I would hope that this practice ends immediately.

In your January 22 letter you write, ?If a portion of reviewed material is disapproved, each individual inmate is notified and given an opportunity to have the material sent home, or redacted (if under 8 pages) and sent to him? Nothing is destroyed unless it is done so at the inmate?s request.? And ?media is sent to individual inmates and would not ordinarily be returned to sender unless the inmate so requests.? Our experience has shown none of these statements to be true in practice. So you can see why we had expressed the hope in our last letter that you can get Clinton CF staff to adhere to NYS DOCS policies. Seems that would make both of our lives a bit easier.

As you are aware, there is a lawsuit pending regarding the handling of our mail and prisoners in possession of our literature in the NYS DOCS, specifically Clinton Correctional Facility. We continue to document the unsubstantiated incidents of censorship that are occurring at Clinton as part of this case and hope that we can convince staff to adhere to department policies in the near future.

Sincerely,

Chairman W.D. Jennings, Ph.D.
Publication Review Committee
Virginia Department of Corrections
PO Box 26963
Richmond, VA 23261-6963

25 November 2007

Chairman Jennings,

We have received your recent letter notifying us that 10 issues of our newspaper have been rejected for violating Operating Procedure 803.2. MIM Notes has been censored at Red Onion multiple times in recent months for allegedly violating Operating Procedure 803.2 and 852. In that time we have made a number of efforts to find out what these Operating Procedures are and how MIM Notes has violated them. To further these efforts, I am requesting that you send us a copy of your Operating Procedures and explain to us how MIM Notes has violated them.

Also please note, that while MIM Distributors uses the Los Angeles address for their publications and distribution, or legal office is currently based out of San Francisco. By corresponding with me through the address above we can ensure more efficient communications.

We look forward to receiving the above requested material so we can work to remedy this problem.

Thank you,

Deputy Director
Division of Operations
Virginia Department of Corrections
PO Box 26963
Richmond, VA 23261-6963

25 November 2007

Deputy Director,

We recently received the enclosed letter from Chairman Jennings of the Publication Review Committee. This is one of a number of incidents in recent months where MIM Notes has been censored by the Virginia Department of Corrections for allegedly violating Operating Procedure 803.2 or 852.

We would like to take this opportunity to request an independent review of these decisions. It is still unclear to us the reasoning for the censorship as our past requests for explanations and copies of the Operating Procedures have not yet been met. However, the enclosed letter does state that MIM Notes ?could be detrimental to the security and good order of the institution and the rehabilitation of inmates.? As an organization MIM has put enormous energy and resources into the education and rehabilitation of prisoners throughout the country. And there is nothing in our newspaper that could be construed to support any sort of illegal or unruly activities as this would undermine our aforementioned efforts and goals. In this light, I hope you will agree that the censorship of MIM Notes has been unjustified.

Also please note, that while MIM Distributors uses the Los Angeles address for their publications and distribution, our legal office is currently based out of San Francisco. By corresponding with me through the address above we can ensure more efficient communications.


Thank you for your time in this matter,

Deputy Director
Division of Operations
Virginia Department of Corrections
PO Box 26963
Richmond, VA 23261-6963

10 December 2007

Dear Sir/Madam,

We have not received a response regarding our request for an independent review of the decision to censor MIM Notes made last month. If the department has already determined that our appeal merited a reversal of the decision, then this letter can be disregarded and we thank you for your time. However, since I last wrote, we have received the information we requested from W.D. Jennings, Management Lead Analyst, and would like to address the new information we have in the case that the decision to censor still stands. We now possess a copy of Operating Procedure 803.2 explaining the Virginia Department of Correction?s policy on incoming publications, including the criteria for disapproving publications sent to prisoners in their custody.

The original letter sent to MIM Distributors by W.D. Jennings regarding the censorship of 10 issues of MIM Notes, dated October 30, 2007, does not cite specific sections of the Procedure, but did state that the newspapers ?could be detrimental to the security and good order of the institution and the rehabilitation of inmates.? I already addressed this claim in my previous letter. In the numerous rejection notices that were received by prisoners, many cited criteria #7 and #13 and most were issued by Major K. Chris, Chief of Security at Red Onion State Prison. While the page numbers cited in the memo from W.D. Jennings don?t give us the ability to address specific concerns as most pages have multiple articles on them, let me briefly address the claims made by Major Chris.

803.2 #7 Material that promotes or advocates violence, disorder, insurrection or terrorist activities against individuals, groups, organizations, the government, or any of its institutions

While MIM Notes frequently discusses the use of violence and terrorism by various parties, it does so from a critical standpoint. For example, MIM Notes actively opposes the bombing of Iraq, the financial backing of Israel?s occupation of Palestine and even physical mistreatment of prisoners in this country. MIM Notes also regularly points out that such violence and terrorism will breed resistance. Holding such a belief is the protected right of all citizens of the United States. Nowhere does MIM Notes promote or encourage resistance that is based in violence or any sort of terrorist activities. If you believe that it does, we request that you provide specific citations where this is done.

803.2 #13 Material that depicts, describes or promotes gang signs, language, clothing, jewelry, codes or paraphernalia, gang participation or other gang-related activity or association.

Elsewhere in the Procedure a gang is defined as:

?A group of individuals who: (a) possess common characteristics that distinguish them from other offenders or groups of offenders and who, as an entity, pose a threat to the safety and security of staff, the facility, other offenders or the community; (b) have a common distinctive goal, symbolism or philosophy; (c) possess identifiable skills or resources, or engage in unauthorized/illegal activities??

MIM Notes does not promote any illegal or unauthorized activities, nor does it threaten the safety or security of anyone in the facility. Similarly, MIM Notes does not promote symbols of groups that do promote such activities. Again, you would need to provide concrete examples of where such things are depicted or promoted in order for these charges to stand.

MIM Distributors is very interested in remedying the problems that have led to the repeated censorship of its publications in recent months. However, to date we have been unable to come up with any actionable responses to the charges made by the Virginia DOC, as the claims appear to be unfounded. We appreciate the information provided by W.D. Jennings, but if the department determines to uphold these decisions we request specific citations of the text or content that violates the criteria cited in the publication disapproval memos.

We hope to work with you to remedy these issues in an expedient manner.

Sincerely,

W.D. Jennings, Ph.D., Management Lead Analyst
Virginia Department of Corrections
PO Box 26963
Richmond, VA 23261-6963

7 January 2008

Mr. Jennings,

I have received your letter from December 19, however it does not address any of the concerns that were brought up in my previous letter dated December 10, 2007. In that letter I addressed all of the charges that have been brought against various issues of MIM Notes.

Your recent letter does not provide any evidence that these issues of MIM Notes are security risks. You do state that ?the cited issues of MIM Notes contain depictions of violence and the suggested use of violent activities against individuals.?

Since you fail to provide any citations to back up your assertion, let me take MIM Notes 343 as an example, as it had the greatest number of objectionable pages. The first two pages contain articles about the United States war effort against Iran and Hezbollah and the execution of Saddam Hussein. Certainly, violence is part of these stories. Is it the department?s policy to prohibit any news outlets that discuss issues of war, murder and other acts of violence? If so, I would refer you to Sizemore v. Williford, 829 F.2d 608, 610 (7th Cir. 1987), as well as Maddox v. Berge, _F.Supp.2d_, 2007 WL 420193 *9-10 (W.D. Wis. Feb. 8, 2007). In addition, Turner v. Safley, 482 U.S. 78 (1987), which set the standard for censorship of material for ?legitimate penological interests,? does not allow you to cut a prisoner off from news about the outside world.

The last two pages cited as being objectionable in MIM Notes 343 are almost entirely stories of censorship in prisons, and contain no depiction of violence. I am particularly interested to hear how stories of censorship pose a threat to the security of the prisons in Virginia. And if they do, wouldn?t you be violating the legitimate penological goals of the department by arbitrarily censoring MIM Distributors and other organizations?

As you know, the Fourteenth Amendment prohibits a state from denying anyone equal protection under law. And as you know, the First Amendment provides MIM Distributors with the right to freedom of the press. And as established in decisions such as Procunier v. Martinez, 416 U.S. at 415, this freedom does not end at the prison gates.

Therefore I am requesting that you either allow inmates to receive the issues of MIM Notes in question, or provide legal justification for their censorship that would stand up in a court of law.

Thank you,

W.D. Jennings, Ph.D., Management Lead Analyst
Virginia Department of Corrections
PO Box 26963
Richmond, VA 23261-6963

3 February 2008

Mr. Jennings,

I received your letter from January 16 and am disappointed that you are still unable to respond to my requests.

In your letter you take issue with my statement that the VADOC is not allowed to cut a prisoner off from news about the outside world. In response you state, ? The purpose of Operating Procedure 803.2 is to ensure the safety of both staff and the inmate population by restricting published content that could be detrimental to the good order and rehabilitative efforts?? However, I did not question the intention of the policy, but rather the legality of the apparent blanket ban on MIM Notes. As you are unable to provide any evidence that the issues of MIM Notes in question are in fact detrimental to the good order and rehabilitative efforts, you should be able to understand my point.

You refer me to the grievance process for publishers and imply that this procedure has been exhausted. If that is the case, then I will certainly stop wasting my time writing to you. I do understand that it is your job to uphold department decisions, but you should be aware that the laws that your department is violating are federal laws not departmental regulations.

Thank you,

Functional Unit Manager
Snake River Correctional Institution
777 Stanton Blvd
Ontario, OR 97914

9 December 2007

Dear Sir/Madam,

This letter is in response to two publication violation notices received by our office for literature that was sent to Mr. XXXXXX XXXXXX (XXXXXX). Two issues of MIM Notes were censored for allegedly violating Code 2 e and j on pages 10 and 11. Pages 10 and 11 of these two newspapers contain a section called Under Lock & Key, which both contain letters from prisoners in California regarding conditions in prisons there.

The first code (2e) forbids materials that ?plans for activities in violation of other Department of Corrections administrative directives.? It is our clearly stated policy that we do not encourage our readers to break the law, and in the case of prisoners the rules at their prison. It is our belief that MIM Notes 344 does not discuss any plans that would violate Oregon DOC?s rules. If there is something in that issue of MIM Notes that does propose violating your rules, please notify us of specifically where and what rule is potentially being violated so that we can avoid this problem in the future.

The second code (2j) prohibits ?inflammatory material.? Code 2j is purposefully vague in not defining the term inflamatory. It is our understanding that in this context inflammatory is taken to mean ?arousing to action or rebellion? and not the more benign definition of ?arousing passion or strong emotion.? The latter definition would restrict most anyone with something important to say from communicating with people in Oregon?s prisons.

Assuming the definition of inflammatory to be ?arousing to action or rebellion,? I would still take issue with the assertion that encouraging action can be legally prohibited. Of course, it is your job to keep order within SRCI, and so your concern is to prevent disturbances among prisoners. If you feel that articles about conditions in California prisons will spark rebellion among Oregon prisoners, then I would suggest investigating the actions of your staff that might be behind such a reaction. Regardless, you cannot shoot the messenger. Stating that the truth will incite rebellion is not a legally sound way to prevent a party from expressing the truth.

While I realize I do not have the ability to challenge the legitimacy of Code 2j through this avenue, I do believe that it is being used, in this case, beyond what is reasonable and legal. Clearly, political speech is protected by the First Amendment and Supreme Court decisions such as Procunier v. Martinez, and Code 2j cannot be used in violation of these laws.

Thank you for your consideration in this matter,

Functional Unit Manager
Snake River Correctional Institution
777 Stanton Blvd
Ontario, OR 97914

9 December 2007

Dear Sir/Madam,

This letter is in response to two publication violation notices received by our office for literature that was sent to Mr. XXXXXX XXXXXX (XXXXXX). Two issues of MIM Notes were censored for allegedly violating Code 2 e and j on pages 10 and 11. Pages 10 and 11 of these two newspapers contain a section called Under Lock & Key, which both contain letters from prisoners in California regarding conditions in prisons there.

The first code (2e) forbids materials that ?plans for activities in violation of other Department of Corrections administrative directives.? It is our clearly stated policy that we do not encourage our readers to break the law, and in the case of prisoners the rules at their prison. It is our belief that MIM Notes 344 does not discuss any plans that would violate Oregon DOC?s rules. If there is something in that issue of MIM Notes that does propose violating your rules, please notify us of specifically where and what rule is potentially being violated so that we can avoid this problem in the future.

The second code (2j) prohibits ?inflammatory material.? Code 2j is purposefully vague in not defining the term inflamatory. It is our understanding that in this context inflammatory is taken to mean ?arousing to action or rebellion? and not the more benign definition of ?arousing passion or strong emotion.? The latter definition would restrict most anyone with something important to say from communicating with people in Oregon?s prisons.

Assuming the definition of inflammatory to be ?arousing to action or rebellion,? I would still take issue with the assertion that encouraging action can be legally prohibited. Of course, it is your job to keep order within SRCI, and so your concern is to prevent disturbances among prisoners. If you feel that articles about conditions in California prisons will spark rebellion among Oregon prisoners, then I would suggest investigating the actions of your staff that might be behind such a reaction. Regardless, you cannot shoot the messenger. Stating that the truth will incite rebellion is not a legally sound way to prevent a party from expressing the truth.

While I realize I do not have the ability to challenge the legitimacy of Code 2j through this avenue, I do believe that it is being used, in this case, beyond what is reasonable and legal. Clearly, political speech is protected by the First Amendment and Supreme Court decisions such as Procunier v. Martinez, and Code 2j cannot be used in violation of these laws.

Thank you for your consideration in this matter,

Functional Unit Manager
Snake River Correctional Institution
777 Stanton Blvd
Ontario, OR 97914

9 December 2007

Dear Sir/Madam,

This letter is in response to two publication violation notices received by our office for literature that was sent to XXXXX XXXXXX. Two issues of MIM Notes were censored for allegedly violating Code 2 e and j on pages 10 and 11. Pages 10 and 11 of these two newspapers contain a section called Under Lock & Key, which both contain letters from prisoners in California regarding conditions in prisons there.

The first code (2e) forbids materials that ?plans for activities in violation of other Department of Corrections administrative directives.? It is our clearly stated policy that we do not encourage our readers to break the law, and in the case of prisoners the rules at their prison. It is our belief that MIM Notes 344 does not discuss any plans that would violate Oregon DOC?s rules. If there is something in that issue of MIM Notes that does propose violating your rules, please notify us of specifically where and what rule is potentially being violated so that we can avoid this problem in the future.

The second code (2j) prohibits ?inflammatory material.? Code 2j is purposefully vague in not defining the term inflamatory. It is our understanding that in this context inflammatory is taken to mean ?arousing to action or rebellion? and not the more benign definition of ?arousing passion or strong emotion.? The latter definition would restrict most anyone with something important to say from communicating with people in Oregon?s prisons.

Assuming the definition of inflammatory to be ?arousing to action or rebellion,? I would still take issue with the assertion that encouraging action can be legally prohibited. Of course, it is your job to keep order within SRCI, and so your concern is to prevent disturbances among prisoners. If you feel that articles about conditions in California prisons will spark rebellion among Oregon prisoners, then I would suggest investigating the actions of your staff that might be behind such a reaction. Regardless, you cannot shoot the messenger. Stating that the truth will incite rebellion is not a legally sound way to prevent a party from expressing the truth.

While I realize I do not have the ability to challenge the legitimacy of Code 2j through this avenue, I do believe that it is being used, in this case, beyond what is reasonable and legal. Clearly, political speech is protected by the First Amendment and Supreme Court decisions such as Procunier v. Martinez, and Code 2j cannot be used in violation of these laws.

Thank you for your consideration in this matter,

Deputy Director J. Jabe
Division of Operations
Virginia Department of Corrections
PO Box 26963
Richmond, VA 23261-6963

15 December 2007

Dear Sir/Madam,

Shortly after my last letter I received further documentation of censorship of MIM?s mail at Red Onion State Prison from Mr. XXXXXX XXXXXX (XXXXXX). As of today, we have still not received a response to our appeal made in late November.

Two of the documents were regarding grievances filed by Mr. XXXXXX regarding the censorship of a number of publications including MIM Notes and MIM Theory. The final decision made by yourself upheld the censorship for Operating Procedure 803.2 #7, 13 and 14. In my previous letter I addressed these claims in relation to MIM literature. These new documents merely recite these rules, without providing any substantiating evidence. As Mr. XXXXXX points out, it is not legal to block our mail for reasons of political disagreements or discrimination against Black or other minority group organizations. Therefore, I am reiterating our request for specific citations of the material that is alleged to have violated these procedures.

The third document was in reference to the most recent incident of censorship of a letter sent from MIM to Mr. XXXXXX in October. The memo from Major K. Chris claims that MIM study group material violated 803.2 #7, 13, 14 and 15. The new procedure (15) refers to publications in a language other than English or written in code. The study group material was a set of questions on the topic of a philosophy text regarding materialism and idealism. This was also sent with a copy of the letter of inquiry I had sent to your office that I was carbon copying to Mr. XXXXXX. I am at a total loss as to which portions of these materials were deemed to violate any of the rules cited.

Please pass our mail along to Mr. XXXXXX or provide us with specific citations of how each item violates each operating procedure cited.

Sincerely,

Functional Unit Manager
Snake River Correctional Institution
777 Stanton Blvd
Ontario, OR 97914

9 December 2007

Dear Sir/Madam,

This letter is in response to two publication violation notices received by our office for literature that was sent to XXXXX XXXXXX. Two issues of MIM Notes were censored for allegedly violating Code 2 e and j on pages 10 and 11. Pages 10 and 11 of these two newspapers contain a section called Under Lock & Key, which both contain letters from prisoners in California regarding conditions in prisons there.

The first code (2e) forbids materials that ?plans for activities in violation of other Department of Corrections administrative directives.? It is our clearly stated policy that we do not encourage our readers to break the law, and in the case of prisoners the rules at their prison. It is our belief that MIM Notes 344 does not discuss any plans that would violate Oregon DOC?s rules. If there is something in that issue of MIM Notes that does propose violating your rules, please notify us of specifically where and what rule is potentially being violated so that we can avoid this problem in the future.

The second code (2j) prohibits ?inflammatory material.? Code 2j is purposefully vague in not defining the term inflamatory. It is our understanding that in this context inflammatory is taken to mean ?arousing to action or rebellion? and not the more benign definition of ?arousing passion or strong emotion.? The latter definition would restrict most anyone with something important to say from communicating with people in Oregon?s prisons.

Assuming the definition of inflammatory to be ?arousing to action or rebellion,? I would still take issue with the assertion that encouraging action can be legally prohibited. Of course, it is your job to keep order within SRCI, and so your concern is to prevent disturbances among prisoners. If you feel that articles about conditions in California prisons will spark rebellion among Oregon prisoners, then I would suggest investigating the actions of your staff that might be behind such a reaction. Regardless, you cannot shoot the messenger. Stating that the truth will incite rebellion is not a legally sound way to prevent a party from expressing the truth.

While I realize I do not have the ability to challenge the legitimacy of Code 2j through this avenue, I do believe that it is being used, in this case, beyond what is reasonable and legal. Clearly, political speech is protected by the First Amendment and Supreme Court decisions such as Procunier v. Martinez, and Code 2j cannot be used in violation of these laws.

Thank you for your consideration in this matter,