Under Lock & Key

This article was submitted a year ago after the author won a successful anti-censorship lawsuit in Wisconsin where the prison administration was censoring materials because they were critical of the department and encouraged legal challenges to their abuses. As MIM(Prisons) continues to stress, censorship has nothing to do with the safety and security of humyn beings and everything to do with the safety and security of the state and its use of repression. This article is being posted as we work to release a collection of legal documents and launch a Serve the People program for jailhouse lawyers. We apologize for not publishing this sooner.

Dear MIM Distributors,

I am glad to share with your readers the successful strategy used in my First Amendment case that could be used by other prisoners in the future. However, I would be remissed if I didn’t acknowledge the assistance of well known Legal Activist and Para-legal “MoSo” who actually litigated the case.

He provided me with this information for your article. He indicated that prison officials always rely on the trusted and well used excuse to deny your rights by asserting “security” or as in this case, that the material was “inflammatory”.

This derives from the well-known phrase that although you have a First Amendment right to freedom of speech, you cannot shout “Fire!!” in a crowded movie theater. Even the Supreme Court has recognized there are limits of what a person can say, including things such as “Fighting Words”. These types of restrictions are amplified in the prison context, of course, and are over exaggerated by prison officials.

Thus, the first thing in litigating such issues is to make sure to continue to remind the court that it is their Constitutional duty to review those decisions “independently.” This is true despite the assertions put forth by prison officials to support their decisions, and despite the fact that the court owes such decisions some deference. So once you can get the court to step outside of the prison official’s mind set, and look at the issue legally, then you have passed the first hurdle.

Most of these conservative Republican judges simply read what the prison official says and accept that as being a valid reason to infringe upon a Constitutional Right. However, a judge’s job is to “protect” the Constitution, not act as a supervisor authority for the prison or a rubber stamp, nor be a sympathetic ear for something bad prison officials did against you.

Whether the Court is in your own Circuit or an outside Circuit (if you can’t find one in yours), try to develop arguments that show that the Court had ruled against whatever it is the prison officials did. A lot of prisoners make the mistake of thinking the more cases you cite for a proposition, the stronger your argument is and the court will be impressed. What I have learned is stick to one or two cases that are factually the same and continually argue from those cases, showing such excuses are either not valid, with no connection to the “concern,” or are exaggerated to such a concern.

In convincing a court such excuses are not valid or are an exaggeration, I used the “comparison” technique. There is well-known case law which holds that if you can show other prisons of the same security allow certain things, even publications, when another bans it, the concern put forth by that prison has been shown to be either invalid or exaggerated. So in the case cited as Lorenzo Johnson v. Rick Raemisch, et al., Case No. 07-CV-309-bbc. (W.D. Wis), we got affidavits from other prisons showing the publication was allowed in those institutions and yet was banned from mine. [note: MIM(Prisons) can often provide documentation of where certain items have been allowed if needed.]

In addition, in discovery, I requested what specific material the defendants deemed objectionable. Then when arguing in the briefs, proved that all that same information alleged to be inflammatory was in fact available to inmates from other sources allowed in the prison, such as on the computer, news paper articles, or even in prior published court decisions.

And lastly, what I would like to import to other prisoners attempting to litigate any First Amendment claims is the fact that most publications are denied based on prison officials’ conclusions that such publications create a risk to security because they are either inflammatory, or contain gang symbols or racist materials. So one should make sure to read and cite the Supreme Court’s decision in Procunier v. Martinez, 416 U.S. 396 (1976). Another case I would recommend to read is Bressman v. Farrier cite as 825 F. Supp. 231 (N.D. Iowa. 1993). These are just good cases to keep in your ammo belt.

I hope this information helps others. I believe Judge Crabb’s decision in Johnson, supra, could also be helpful if cited, as it was finally a principled decision based purely on law and showing that a true judge’s Constitutional responsibility is to uphold the Constitution, no matter who’s right and wrong. The judge is supposed to be “impartial.”

Justice for all!!!

Jailhouse Lawyers: Prisoners Defending Prisoners v. the U.S.A.
Mumia Abu-Jamal
City Lights Books, 2009.

Many prison activists focus their ire on the 13th Amendment, which proclaims slavery to be legal for the convicted felon. While we support economic struggles of u.$. prisoners, we do not see this law as deserving particular focus in the struggle to end the injustice system. A law that might better be a strategic focus for anti-imperialists and other progressive forces is the Prisoner Litigation Reform Act (PLRA), passed much more recently, in 1996, by then-President Bill Clinton.

The PLRA has significantly hampered the ability of prisoners to combat the injustices they face on a daily basis, effectively delegating them as second class citizens in the eyes of the courts. In what he says is the first book on the subject, Mumia Abu Jamal’s Jailhouse Lawyers: Prisoners Defending Prisoners v. the U.S.A. accurately places the PLRA in historical context as modern day Black Codes, keeping the oppressed in their place.

This week, a spokesman for the California Department of Corrections and Rehabilitation went so far as to cite the PLRA in claiming that federal orders to decrease the prison population by 40,000 people in California to relieve the current tortuous conditions are illegal.

Class action suits for humyn rights were an integral part of the prison movement of the 1960s and ’70s. The PLRA has greatly changed the context for such struggle.

Mumia reinforces how much the state fears legal struggle by citing an interesting study that showed jailhouse lawyers to be the most punished population in u.$. prisons; followed by Blacks, the mentally ill, gang members and political prisoners (in that order). Though we often stress the repression of oppressed nations, politically active and other organized prisoners, we have seen over and over people being punished for filing complaints and lawsuits against their abusers. The Illinois Supermax, Tamms, brags of holding the most litigious prisoners in the state.

Mumia opens Jailhouse Lawyers with a story that paints the clear picture that there are no rights, only power struggles. While being interviewed by Mumia, Delbert Africa describes prisoners spending all their time reading law books, fighting their own cases, and then going literally crazy when they lose. Why? “They go crazy becuz, Mu, they really believe in the System, and this System always betray those that believe in it! That’s what drive them out they minds, they cain’t handle that.”

Mumia minces no words, and is clear that getting a fair hearing by the imperialist system is a joke, particularly for the oppressed nations. For the most part he condemns street lawyers for their failure to effectively defend prisoners and soon-to-be prisoners.

In the conclusion, Mumia points out that jailhouse lawyers can also help prop up the system by providing the illusion of justice to the outside and as a pressure release for those on the inside. As a result, things like the PLRA, and rules forbidding prisoners to help each other serve to heighten the contradiction between the oppressed and the state within the u.$. prison system.

He goes on to quote former political prisoner Ed Mead about the need for organizing to go beyond the very limited scope of legal work. That is why MIM(Prisons) is working to build legal campaigns and a new Serve the People program run by jailhouse lawyers within the context of our greater organizing work. In fact, the right to organize in itself is a legal battle that our movement has been and will continue to be heavily involved in. As Mead says, “It used to be against the law for workers to combine, to organize, to unionize, and workers just went ahead and did it. And that’s how they won their rights. And that’s the same with prisoners.”

Overall, Jailhouse Lawyers is well-researched and an easy read, exemplifying Mumia’s journalistic skills. MIM(Prisons) recommends this book, particularly for the analysis of the law provided by Mumia with thorough historical examples. Such an analysis is crucial for anyone who wants to effectively battle the injustice system on its terms.

I would like to shed some light on a scam being run by the establishment here on level 4 SHU yards in California. I’m certain if tax payers knew how their money was being wasted they would have a problem. People here in the SHU with life sentences already are getting taken to court for frivolous prosecution for knives, mutual combat, participating in riots, crap like that.

Now if a person with life doesn’t murder anyone you can’t upgrade his time so the question arises, why are they trying lifers for petty crimes? Then it dawned on me, these capitalist crooks don’t pass up a chance to make a dollar, even if they have to waste resources. California is broke, but the pig has the audacity to waste money on frivolous prosecution, just so they can boost their conviction rate and feed that propaganda to the public about how awful prison is. And in doing so the public is not paying attention to the wastefulness and lies of the establishment. I thought I’d share this fraud with the brothers locked in the struggle.

MIM(Prisons) responds: This prisoner exposes a good example of the criminal injustice system creating reasons to pass around the profits of imperialism and keep the prison system growing. This is very wasteful, but we are under no illusions that alerting the tax payers to this waste would rally them to join the fight against the criminal injustice system. Even in this economic downturn, Amerikan tax payers are benefiting from the profits of imperialist exploitation of the majority of the world’s people. And the prison system is a tool of this imperialist system. A majority of Amerikans will continue to support that system even when presented with evidence of it’s abuses. Just like a majority of Amerikans support the imperialist wars that murder innocent people around the world and cost billions of dollars.

I just got my first issue of Under Lock and Key (July 2009, No 9). Needless to say, I sure appreciated it. The mail room personnel did not censor it, but that does not necessarily mean they won’t in the near future. I write to respond to the letter that was written by the Georgia prisoner (Pig Enables Stabbing of Prisoner in Riot, May 2009). Hopefully you will print my letter so our comrade can read it and use the information therein.

First, to our comrade, you’ve got to file your complaint at the unit level and keep copies of it and any other documents that you file with the administration because you’ll need to file a title 42 United States Code Section 1983 lawsuit for a redress of grievances. Write down everything that happened to you, as well as everything else that you have done since to secure medical care, etc., for this will definitely come in handy for your lawsuit. If you’ve got any witnesses that are willing to help you out by testifying you need to try to keep in contact with them.

Second, you need to do some legal research in the unit’s law library to better understand your situation and to go about filing your lawsuit. You can write the district court where the incident occurred and request the necessary forms to file your suit. The district court’s address should be in the unit law library (there should be a “venue list” or simply request the address from the unit law library). There’s a lot you need to know and do and there’s not enough space here to expound.

I got a hold of your March 2009 No 7 issue. It was the first time I ever saw a MIM(Prisons)’s Under Lock & Key newsletter. One of your articles really reached out to me, about the administration being the real gang. I’m in the feds at USP Florence. I’m currently going through the administrative remedy process for 2 reasons. #1 is my case manager not doing his job. I was supposed to be out February 12th but my case manager has messed my paperwork up so bad, and on more than one occasion, so that I won’t be out until May 14th. The only reason I’m even getting out in May is because my family on the street applied pressure to the proper offices. And my derelict case manager doesn’t even have so much as a reprimand in his file. Just to give you an example of his shoddy work, check this: I’m from Washington DC, and when Mr. Pacheko presented me with my initial release papers they were for an address in Southern California.

The second grievance I’m filing is in relation to a shakedown. I’m currently in SHU on admin-seg. The captain and riot squad came and took everybody to the rec cage area and made us all strip and spread eagle. This took place on 3-25-09 when the temp was below 30 degrees. This strip search was in direct violation of FBOP program statement 5521.04, the 6th circuit ruling in Cornwell v. Dahlberg, and the 4th amendment to the US Constitution. Since I’m in SHU I have to wait for a member of my unit team to respond to get administrative remedies. Since I filed the first remedy, nobody from my unit team has been to see me. Effectively they are killing my ability to file anything further.

To any prisoner anywhere who reads this, I want you to know that prison guards and administrators don’t care if you have a violent outburst to staff misconduct. That’s exactly what they want you to do. So then they can gas you, assault you, and then write you an incident report. The only things these people care about is filing paperwork. I’ve been put out of two institutions for “disrupting the orderly running of the institution” because I file lots of paperwork on behalf of myself and others. Remember, if you do something wrong they write you up. So you have to write them back up.

MIM(Prisons) adds: We agree with this comrade that it’s important we use the legal system to fight the abuses of the criminal injustice system. When you take on the system you can also use the pages of Under Lock and Key to expose the injustice and publicize your battles.

When last I wrote I shared my struggle to get typewriters in our prison law library. Makes sense to have typewriters in a law library, doesn’t it?

Well, for my efforts I was thrown in the hole when I was attempting to use the law library facilities in order to finish some work for a case that was scheduled for a telephone hearing the following day.

Now similar to my brother’s situation in North Carolina (ULK #7, March 2009) I was placed in a “security cage” (California prisoners are familiar with these) and left there from 6 am until 2 pm and I had an abscessed tooth at the time (documented and since crowned) and medical refused me my antibiotics and pain medication. By 2 pm I was so delirious with pain that they felt the need to cover the security cage I was in with a wool blanket and dump two fire extinguishers full of chemicals; one of them is known as 505 (lethal).

The next thing I recall was waking up in a cold bare cell with no means of comfort (mattress, blanket, nothing).

Since that attempt on my life I attempted to file a board of claims to the state, but it disappeared after my CCI got it from me. I had to give it to him because I had to get a registered trust statement from him to file with the state. California keeps her “ducks” in a row.

So, as a result of my injury, the state of California’s prison at Mule Crrek accommodates their medically assigned bottom bunk prisoners to bare naked cells in the hole. No property, no bunk, just a mattress on the floor. This is common practice, my neighbor is a seventy plus year old man, forced to sleep on the floor!

If a nation is judged by the way she treats her prisoners, this country is damned.

I have been getting blocked from accessing the courts by mail due to my indigency and DACDC refusing to send out my legal mail to the courts. I have been writing 2-3 times per week to submit motions and add exhibits as evidence including 40 more mail rejection notices and 10 envelopes from the Supreme Court of New Mexico Law Library that were not processed properly as legal mail. Can you advise me on this or at least give me appropriate case law to cite in this regard?

Under the United States Constitution, in particular the First Amendment, is Our fundamental right of freedom of speech, expression, association and religion. This means that people have the right to freely express themselves socially, politically or religiously no matter how radical or backwards the ideas may seem. Everyone has the right to believe what they choose and to freely express those views. At lease that is what the law says.

However, prison administrators across the country have continuously and deliberately violated prisoner’s rights based upon the false assumptions that the social, historical and political material that they are receiving is somehow a threat to the prison safety and security.

What this amounts to in reality is the prisonkrats suppressing Our right to associate with, receive mail from, correspond with, possess the literature of, or be part of any group or organization that is political in nature, and especially those groups or organizations which are critical of the prison industrial complex. The last thing the prisonkrats want to see is a bunch of prisoners who are socially and politically conscious and active. They want Us to stay ignorant and in the dark, as We are their job security.

Everyone who is currently incarcerated must learn not only mailroom policy and procedure, but what federal case law supports and protects Our rights. If you aren’t doing anything to challenge the repressive/oppressive conditions, then you really have no right to complain. I am encouraging all of you whose rights have been violated to appeal those decisions through the grievance process and to exhaust all of your administrative remedies. Once this is done, you should prepare and file suit under 42 USCA 1983, which is the federal civil rights lawsuit and the proper legal avenue to challenge the system’s censorship of your mail.

For those of you in Missouri, I am currently preparing a federal complaint and once filed, you may be able to become a part of this suit if it is “certified” as a class action, meaning that the censorship policy is violating our rights as a class.

I am asking all of you on the outside who support Our right to receive literature and information to write letters to the Director of the Department of Corrections. and the warden here and let them know that you are aware of their illegal activity of violating Our rights and that you support Our right to receive information, correspond with and be members of outside social and political organizations.

For those who are not too abreast of the law, here are some cases that the courts rely on regarding censorship. These are your weapons, use them well.

Turner v. Safely 482 U.S.78. 107 S.Ct 2254
Proconier v. Martinez 416 U.S.396. 94 S.Ct 1800
Thornburgh v. Abbott 490 U.S. 4o1
Johnson v. Raemisch 557 F.Supp 2d 964
Jacklovich v. Simmons 392 F.3d 42o

Injustice anywhere is a threat to justice everywhere. Thank you for your support. You can also contact me through MIM for more information. Send letters of support/protest to:

Larry Crawford, Director
Missouri Dept. of Corrections
PO Box 236
Jefferson City, MO 65102
(573) 526-6607

Troy Steele, Warden
Southeast Correctional Center
300 E. Pedro Simmons Dr.
Charleston, MO 63834
(573) 683-4409

I’m in solitary and they have strict magazine/newspaper rules, meaning no magazines/newspapers and just this last week they said no books. I’m grieving them on the books and all the returns using this case law: Prison Legal News v. Lehman 397 5.30 692 (9th Cir. 2005) - prisons may not prohibit prisoners from receiving non-subscription mail and catalogs, Sonnels v. McKee, 290 F.30 965 (9th Cir 2002) - prisons may not ban gift publications for which prisoner has not paid, and Morrison v. Hall, 261 F.3d 896 (9th Cir. 2001) - prisons may not ban receipt of subscription publications sent by bulk, third or fourth class mail. I’ve tried writing to the mailroom and explaining the way they’ve been in the wrong, nicely. But it seems there’s no other way but to grieve and most likely prosecute.

It’s not just mail and books I’ve been grieving and this might be why they have been holding/denying my mail. I’ve grieved mental health all the way to level three and also medical for deliberate indifference. They have mentally ill prisoners over here in solitary who regularly get peppersprayed, stun gunned, thrown around, thrown on strip cell, and even end up killing themselves. The C/O’s kick their doors every count, waking them up. Calling them names, egging them on. Sgt. Feikert commented just last week as they zipped up Mark in his body bag, “No big loss, this scumbag did us a favor, we need the bedspace.”

I read a piece by Emile Capouya called, “Laying Down the Gun,” that says this about C/Os, “The policeman’s… training… [is] directed to a single object… making the system safe for the powerful. The deformation of character he suffers may be greater or less than that of the ‘other’ born losers he is paid to keep in line, but I imagine it must be substantial.” And I can see it in their faces. They’re in the belly of this beast called prison even though they go home to sleep. I’ve been locked up for six years, but against my will. They drive their sorry selves here each day.

But isn’t the key in the general strike? If that was awakened again I believe it could work. It’s not about violence, is it? I don’t know but like I told these other organizations, if you could have talked to me one year ago I wouldn’t have been able to tell you there’s 2.3 million people caged in the U.$. of A’s prison industrial complex. In my mind I knew something wasn’t right and I literally saw no better way than to take a couple cops with me, hence my disarming an officer charge. But now I have something larger and more pressing to put my weight behind. I just hope others like myself see the truth before it’s too late for them.

MIM(Prisons) says: We also spend a lot of time explaining to prison mailrooms and administrators when they are breaking their own rules and laws. But often they will not address the misdeeds and it is then necessary to prosecute in the courts, as this comrade explains. Unfortunately, this is usually the case, as years of reporting in Under Lock & Key have documented. Like the quote in this letter implies, this is only to be expected from those who are trained to serve the interests of the state. While oppression of certain groups serves the state, so does a semblance of bourgeois democratic rights. That is why we can usually count on the courts to give us a more fair shake than the pigs will. Such battles are necessary survival tactics for the oppressed and for the movement.

The author, like many who write us, is someone who used to think killing cops was the only way to defend himself from the attacks he faced. Prison staff abuse and disregard the lives of prisoners regularly as he describes. Lives are at stake in the amerikan prison environment, both prisoners and cops. Yet official policy institutionalizes violence by encouraging a culture of punishment while often denying any administrative recourse for those who are being abused. In many of these same facilities, even outside parties such as MIM(Prisons) have no recourse with these state employees, nominally servants of the people, when they violate our guaranteed rights by preventing us from communicating and associating with others.

MIM(Prisons) works with comrades like this to find a real solution to these problems because fist fights and stabbings are not the answer to abuse in prisons. We hope that the prison administration will recognize this and begin treating prisoners like humyn beings. Studies have shown that the u$ prison system inherently breeds abuse, while history demonstrates that only a socialist prison system that puts the interests of the world’s people first can provide a viable alternative where those who have committed real crimes are restored and not victimized. So it is important that we use long legal battles to build outside pressure and oversight on what is going on inside u$ concentration camps today, in order to bring this contradiction of capitalist society to the forefront while building a broader anti-imperialist united front.

I have come across two cases that fit the criteria of our problems with censorship in California.

Powell v. Ellis, 2006 US Dist. Lexis 83758 (D. Aliz. Nov 15, 2006) is concerning authorized vendor status for books among other things.

The other case, Ross v. Alameida 2006 US Dist. Lexis 6079 ED Cal. Feb 15, 2006, really interests me because Scott Kernan is named as a defendant in this 2nd Amendment complaint. He was acting warden at the time of the incident. The incident was related to freedom of religious exercise and due process violations in the past authorized by Scott Kernan as acting warden at Mule Creek State Prison. Sound familiar?

The violation had to do with requiring the inmates to receive some kind of prior approval in order to receive religious reading materials thru the mail. Also, the same as now, inmates were not being notified of their disapproved mail.

I hope that you are able to check this out and refer it to anyone also pushing forward with a §1983 on the ban.

Mr. Kernan, it seems from his experience in Ross v. Alameida, knew full well that by issuing a statewide ban in our current care he was willfully and deliberately breaking the law, and for that there is no excuse!