Tracking Prison Censorship in the United States

February 25, 2200

Texas Department of Criminal Justice
Institutions Division
Director’s Review Committee
PO Box 99
Huntsville, TX 77342-0099


Re: Appeal of Censorship of Publication
TDCJ Offender Grievance Manual
Attempted delivery to XXX



To Whom It May Concern:

We are in receipt of a Director’s Review Committee Decision Form (hereinafter, “Form”), dated February 11, 2020 concerning the decision to uphold censorship of the Texas Department of Criminal Justice Offender Grievance Manual. We are the mailing entity listed on the form. We would note that we have never been provided notice of the censorship related to the Form as required by Federal case law.

We wrote to you about this same issue in May 2019 and received no response from your office.

Due process requires adequate notice of the reasons for censorship. Instructive is the District Court’s reasoning set forth in Prison Legal News v. Jones:

“Procunier demands that the publisher "be given a reasonable opportunity to protest" the censorship. Id. at 418. For an opportunity to be reasonable, the publisher must know of the grounds upon which the publication has been censored. See Henry J. Friendly, "Some Kind of Hearing", 123 U. Pa. L. Rev. 1267, 1280 (1975) (explaining that it is "fundamental" to due process that "notice be given . . . that . . . clearly inform[s] the individual of the proposed action and the grounds for it"). This knowledge component of due process does not turn on whether the publication is the first copy or a subsequent copy. What matters is the basis for censorship. If a subsequent impoundment decision is based on a different reason not previously shared with [the publisher], due process requires that [the publisher] be told of this new reason.” 126 F. Supp. 3d 1233, 1258 (N.D. Fla. 2015) (emphasis added).

It is an arbitrary and capricious use of power to censor the TDCJ’s own publication, the Offender Grievance Operations Manual. As a government publication it is freely available and not subject to copyright protection. Further, since the TDCJ fails to provide the manual in its law libraries, we have a Constitutional right to distribute the manual. In plain English, the TDCJ’s censorship of its own manual relating to offender grievances is “asinine.” Is the TDCJ publishing offender manuals which do not comply with TDCJ censorship guidelines?

Your failure to provide notice of censorship as well as the arbitrary and capricious nature of the censorship is a clear violation of our Constitutional rights as the mailer of the manual.

We look forward to your reply concerning this censorship of the TDCJ Offender Grievance Manual and potential litigation concerning same.

Please govern yourself accordingly.

Sincerely,

Texas Department of Criminal Justice
Institutions Division
Director’s Review Committee
PO Box 99
Huntsville, TX 77342-0099


Re: Appeal of Censorship (unnamed item)
Attempted delivery to XXX


To Whom It May Concern:

We are in receipt of a Director’s Review Committee Decision Form (hereinafter, “Form”), dated February 11, 2020 concerning the decision to uphold censorship of the an unnamed item to the above-named prisoner. We are the mailing entity listed on the form. We would note that we have never been provided notice of the censorship related to the Form as required by Federal case law.

Due process requires adequate notice of the reasons for censorship. Instructive is the District Court’s reasoning set forth in Prison Legal News v. Jones:

“Procunier demands that the publisher "be given a reasonable opportunity to protest" the censorship. Id. at 418. For an opportunity to be reasonable, the publisher must know of the grounds upon which the publication has been censored. See Henry J. Friendly, "Some Kind of Hearing", 123 U. Pa. L. Rev. 1267, 1280 (1975) (explaining that it is "fundamental" to due process that "notice be given . . . that . . . clearly inform[s] the individual of the proposed action and the grounds for it"). This knowledge component of due process does not turn on whether the publication is the first copy or a subsequent copy. What matters is the basis for censorship. If a subsequent impoundment decision is based on a different reason not previously shared with [the publisher], due process requires that [the publisher] be told of this new reason.” 126 F. Supp. 3d 1233, 1258 (N.D. Fla. 2015) (emphasis added).

Your failure to provide notice of censorship as well as the arbitrary and capricious nature of the censorship is a clear violation of our Constitutional right. We request a response to this letter within fifteen (15) days of receipt. Failure to do so may result in litigation against the TDCJ. Alternatively, the decision to censor the material intended for Mr. XXXXXX from MIM Distributors may be reversed and the material delivered to the prisoner to whom it was addressed.

We look forward to your reply concerning this censorship.

Please govern yourself accordingly.

Sincerely,

"It encourages or instructs in the commission of criminal activity."

no notification to MIM Dist. from admin

On 12-10-19 I wrote a request slip (informal grievance) to mail room L. Chambers: "On 12-4-19 I had mail confiscated from "MIM Distributors." I have been receiving mail from "MIM Distributors" for several months. I am asking to receive the confiscated mail from "MIM Distributors" and that future mail will not be delayed. Thank you for looking into this.

On 12-11-19 I filled out an Offender Grievance Form: On 12-4-19 I had mail confiscated from "MIM Distributors." I have been receiving mail from "MIM Distributors" for several months. I wrote an informal complaint to the mail room on 12-10-19 (see attachment). On 12-4-19 I wrote an informal complaint to I.I (Internal Investigations) asking, what was confiscated and why cannont I receive it? I have not received a response. I am asking to receive the confiscated mail from "MIM Distributors" and that future mail will not be delayed.

MIM Distributors
PO Box 40799
San Francisco, CA 94140


January 25, 2020

Indiana Department of Corrections
Office of the Director
302 West Washington St E334
Indianapolis, IN 46204

Re: Appeal of Censorship of unnamed item
XXX #XXX



To Whom It May Concern:

We have been notified that an unnamed item has been censored by the Indiana Department of Corrections (IDOC). We received this information from the above-named prisoner and we received no notice from IDOC. Mr.XXX has indicated the item was censored based on “safety and security” reasons on 12/4/19, and Mr. XXX’s appeal of this censorship was denied on 1/16/20.

CLAIM 1:
IDOC MAIL POLICY UNCONSTITUTIONAL ACCORDING TO FEDERAL LAW

Federal case law is clear: the publisher must be notified by prison authorities of any censorship of publications and must be given a meaningful opportunity to appeal the censorship. It is clear IDOC policy 02-01-103 provides no such option and is unconstitutional on its face.

Due process requires adequate notice of the reasons for censorship. Instructive is the District Court’s reasoning set forth in Prison Legal News v. Jones,
“Procunier demands that the publisher "be given a reasonable opportunity to protest" the censorship. Id. at 418. For an opportunity to be reasonable, the publisher must know of the grounds upon which the publication has been censored. See Henry J. Friendly, "Some Kind of Hearing", 123 U. Pa. L. Rev. 1267, 1280 (1975) (explaining that it is "fundamental" to due process that "notice be given . . . that . . . clearly inform[s] the individual of the proposed action and the grounds for it"). This knowledge component of due process does not turn on whether the publication is the first copy or a subsequent copy. What matters is the basis for censorship. If a subsequent impoundment decision is based on a different reason not previously shared with [the publisher or distributor], due process requires that [the publisher or distributor] be told of this new reason.” 126 F. Supp. 3d 1233, 1258 (N.D. Fla. 2015).

Setting aside the unconstitutionality of the IDOC Offender Correspondence policies and procedures, there were still failures of IDOC staff at multiple levels regarding this censorship incident.

CLAIM 2:
POLICY 02-01-103 WAS NOT FOLLOWED IN RE: XIII. REPORT OF ACTION TAKEN ON CORRESPONDENCE

Policy and Administrative Procedure 02-01-103 states:
XIII. REPORT OF ACTION TAKEN ON CORRESPONDENCE (See Operational
Procedure):
Whenever a decision is made to delay, censor, copy, or withhold any correspondence, the offender is to be informed within two (2) working days of the action, except as indicated in Procedure VIII. D or Procedure IX D State Form 11984, NOTICE AND REPORT OF ACTION TAKEN ON CORRESPONDENCE, shall be used for this purpose. The staff person completing this form shall ensure that the following information is contained in the notice:
A. A complete description of the article being withheld;
B. The specific reason for the action;
C. The name of the sender;
D. The date of any postmark;
E. The date the correspondence was received or deposited at the facility or program;
F. The proposed disposition to be made of the correspondence;
G. The name of the person who made the decision; and,
H. The fact that the action may be challenged through the grievance procedure.

Yet Mr. XXX was not informed of A. A complete description of the article being held. To our knowledge, Mr. XXX was only told that the item was called “MIM Distributors March 2012.” This is not the title of any publication of MIM Distributors. To the best of our knowledge, the item being censored is titled “Fundamental Political Line of the Maoist Internationalist Ministry of Prisons,” yet we don’t know for sure. The lack of description of the item being censored causes unnecessary confusion and obstructs Mr. XXX’s access to the grievance process.

This not only is a violation of IDOC policy, it also is a violation of not only Mr. XXXX’s First Amendment rights to communication with society outside of prisons, as well as Mr. XXX’s Eighth Amendment right to due process. This is grounds for legal suit against your Department.

CLAIM 3:
POLICY 02-01-103 WAS NOT FOLLOWED IN RE: CENSORSHIP BASED ON POLITICAL VIEWS

I trust you are already aware of your Department’s own mail policies, yet I will reiterate them here for your convenience. According to Policy 02-01-103, there are specific reasons why incoming mail may be censored. MIM Distributors does not believe its material violates any mail rules of IDOC, and the censored item does not fit the list of permissible censorship.

Section “VIII. OPENING OF CORRESPONDENCE” states, in part:
Incoming correspondence is not to be censored, copied, withheld, disclosed to another person or otherwise interfered with in regard to its prompt delivery unless:
A. The Department has reasonable grounds to believe the correspondence:
1. Poses an immediate danger to the safety of an individual or a serious threat to the security of the facility or program;

Section “XIV. INTERFERENCE WITH AN OFFENDER'S CORRESPONDENCE” states, in part:
An offender's correspondence may not be censored, copied, delayed or disallowed for delivery solely on the basis of the sender's or receiver's apparent moral, political, ethical, ethnic or religious values or attitudes, veracity or choice of words.

Section “XIX. PRINTED MATTER” states, in part:
Printed matter which threatens the security of the public, facility, or program, contains multiple copies, or has an invoice indicating an amount due shall be considered prohibited property. Examples of the types of materials that are considered prohibited property and shall be excluded include, but are not limited to, those:
A. Depicting or describing procedures for the construction or use of weapons, ammunition, bombs or incendiary devices;
B. Depicting, describing or encouraging methods of escape from correctional facilities, or contains blueprints, drawings or similar descriptions of correctional facilities;
C. Depicting or describing procedures for the brewing of alcoholic beverages or the manufacture of drugs;
D. Written in code;
E. Depicting, describing or encouraging activities which may lead to the use of physical violence or group disruption;
F. Encouraging or instructing in the commission of criminal activity; or,
G. Any printed matter that features nudity or any other material depicting nudity.
H. Containing sexually explicit material which by its nature or content poses a threat to the security, good order or discipline of the facility or facilitates criminal activity.

We believe that upon thoughtful review of the censored material, you will see that IDOC staff and administration are fact obstructing Mr. XXX’s Constitutionally protected rights, and ignoring IDOC’s own policy and procedures.

We request a response to this letter within fifteen (15) days of receipt. Failure to do so may result in litigation against the IDOC. Alternatively, the decision to censor the material intended for Mr. XXX from MIM Distributors may be reversed and the material delivered to the prisoner to whom it was addressed.

Sincerely,


B Legal Assistant
MIM Distributors
PO Box 40799
San Francisco, CA 94140