Tracking Prison Censorship in the United States

Rick Thaler, Director
Texas Department of Criminal Justice
Correctional Institutions Division
P.O. Box 99
Huntsville, Texas 77342

November 14, 2015

RE: Illegal censorship of book to Mr.xxx

Dear Director Thaler,

On September 28, 2015 MIM Distributors mailed a book titled Power and the Struggle for Aztlan to the above named prisoner held at Hughes Unit in Gatesville, TX. This book was not returned to MIM Distributors, and it was not received by Mr. xxx. MIM Distributors was not sent any notification for this censorship, and we would not have known the book was censored except that Mr. xxx informed us himself. MIM Distributors was not sent a Publication Receipt and Course of Action Form DOC0211 regarding this incident.

Per Texas DOC policy (BP-03.91 (rev.3)): "V. B. Any offender, other correspondent, or sender of a publication may appeal the rejection of any correspondence or publication. They may submit written evidence or arguments in support of their appeal. An offender or a correspondent may appeal the placement of the correspondent on the offender?s negative mailing list. An offender or a correspondent may appeal to the DRC for reconsideration of the negative mailing list placement after six months." Based on this we formally request an appeal of this censorship.

In your review of this censorship, please note that your own policy (BP-03.91 (rev.3)) states: "Publications shall not be rejected solely because the publication advocates the legitimate use of offender grievance procedures, urges offenders to contact public representatives about prison conditions, or contains criticism of prison authorities." In order to reject these publications for content, per your policy, you must demonstrate that the publication "contains material that a reasonable person would construe as written solely for the purpose of communicating information designed to achieve the breakdown of prisons through offender disruption such as strikes, riots, or STG activity".

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 listed above.

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.

Sincerely,


CC: Affected parties

I filed a Step 1 Grievance pertaining to the denial of the publication "Chicano Power and the Struggle for Aztlan" on the ground that I was not given an official "Decision Form" from the Director's Review Committee pending a decision regarding my appeal of this unit's rejection of said publication. I will prepare myself for Step 2 if necessary.

Letter from prisoner: The book titled " Power and the Struggle for Aztlan" appeared on the Director's Review Committee denial list for December 2015. Now the mailroom is saying they don't have the book anymore, as I still had 2 weeks to send it back out, either home or to you. So I've filed another grievance because of that.

Warden Michael A. Dittmann
Columbia Correctional Institution
2925 Columbia Dr.
PO Box 950
Portage, WI 53901-0950

January 3, 2016

RE: Failure to notify publisher of censorship of Under Lock & Key #53 and #50

Dear Sir/Madam,

This letter is to document that MIM Distributors was not notified by the Wisconsin Department of Corrections when its publications were impounded or rejected. I am requesting that the Wisconsin DOC follow its own policies (309.04 4.E.1 and 309.05 3) which requires that for censored publications: “If a publication is not delivered pursuant to sub. (2), the department shall notify the inmate and the sender. ”

We have been notified by Mr. [XXX] that both of these publications were not delivered to him by CCI. ULK 53 was mailed on December 5, 2016 and ULK 50 was sent on June 22, 2016.

We understand that Mr. [XXX] was notified that ULK53 was denied because it “teaches, advocates behavior that violates US, Wisconsin ad DOC laws or rules.” We presume that this is in reference to the WiDOC policy 309.04 4.C.5 which allows for denial of mail if it contains material that “Concerns activity that, if completed, would violate the laws of Wisconsin or the United States or the administrative rules of the department.” and/or 309.05 2.B.2 which allows for denial of publications that “Teach or advocate behavior that violates the law of the state or the United States or the rules of the department.” We are confident that nothing in this publication meets either restriction. We further ask that you clarify what content in this publication, which is education in nature, is in violation of which rules or laws. You will need to identify both the content and the specific rules of laws that it violates as such overly broad reasons for censorship are insufficient to meet either the Wisconsin DOC mail policies or the state and federal court requirements for censorship.

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, MIM Distributors was never notified of the censorship decisions or actually of any decisions that the Mailroom staff has made with regard to the publications listed above.

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.


Sincerely,

MIM Distributors