Tracking Prison Censorship in the United States

Warden Greg Lewis
Pelican Bay State Prison
5905 Lake Earl Drive
Crescent City, CA 95531
January 7, 2014

RE: Censorship incidents occurred at Pelican Bay State Prison ? exclusion of letters and publications sent to prisoner xxx by MIM Distributors

Dear Warden Lewis,

I am writing this letter about a censorship incident that recently occurred at Pelican Bay State Prison. On September 9, 2013 MIM Distributors mailed Mr. xxx a letter, under one ounce. MIM Distributors was never notified by Pelican Bay State Prison mailroom staff that this letter would be censored. Mr. xxx informed us that it was being censored, and he appealed the censorship. This is an illegal practice of the PBSP mailroom staff and must cease immediately.

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.

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.

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;
and that adequate notice be provided to Mr. xxx of any information pertaining to mail intended for him from MIM Distributors, past, present and future.

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

Sincerely,
MIM Distributors



CC: Affected parties

California Department of Corrections and Rehabilitation
Secretary Jeffrey Beard
1515 S. St., Ste. 330
Sacramento, CA 95811

6 March, 2014

RE: Censorship incident occurred at Pelican Bay State Prison on September 9, 2013; exclusion of letter sent to Mr. xxx by MIM Distributors

Dear Secretary Beard,

I am writing this letter regarding two similar censorship incidents that occurred in Pelican Bay State Prison, on September 9, 2013 and November 6, 2013. While there has already been a significant exchange of correspondence between the Department and MIM Distributors on this topic, it is desirable at this point to place in focus the precise questions that now are before us.

I. Background.

The relevant facts can be summarized as follows:

? At the time the incident occurred, Mr. xxx was detained (and is still detained) at Pelican Bay State Prison (PBSP);
? MIM Distributors sent Mr. xxx a letter on September 9, 2013 via First Class mail. This piece of mail is defined as First Class Mail per CDCR Department Operations Manual (DOM), Section 54010.4, Definitions of Classes of Mail;
? On September 12, 2013 Mr. xxx was given a CDCR Form 1819 disapproval regarding the September 9 letter;
? On September 12, 2013 Mr. xxx appealed this censorship;
? On October 28, 2013 Mr. xxx was given the letter requested;
? MIM Distributors was never notified via CDCR Form 1819 of the censorship of this letter.

Separately:

? At the time the incident occurred, Mr. xxx was detained (and is still detained) at Pelican Bay State Prison (PBSP);
? On November 6, 2013, MIM Distributors sent Mr. xxx a letter via First Class mail. This piece of mail is defined as First Class Mail per CDCR DOM Section 54010.4, Definitions of Classes of Mail;
? On January 7, 2014, MIM Distributors sent a letter to Warden Greg Lewis asserting that MIM Distributors should have been notified by PBSP mailroom staff of this censorship;
? On January 16, 2014, Mr. xxx submitted a 602 Grievance Form protesting this censorship;
? On January 22, 2014, Mr. xxx submitted an Inmate/Parolee Request for Interview, Item or Service to request information on the censorship incident;
? On January 24, 2014, Mr. xxx was informed by C. Williams, OSSI, that this letter had been forwarded from them to "Squad" (IGI) and that they had no knowledge of the outcome of the letter in question;
? On February 13, 2014, a letter was sent from Warden (A) C.E. Ducart to MIM Distributors in response to our letter from January 7.

The February 13 letter from Warden Ducart raises the legal question of whether notification via CDCR Form 1819 needs to be given to senders of censored mail who are not publishers. A careful, unbiased and comprehensive review of the relevant case law and of any applicable regulation strongly suggests to respond affirmatively to this question, for several reasons that I will try to explain below in greater detail.

II. First Amendment rights in the prison context

It has been the constant teaching of the U.S. Supreme Court that a prison inmate retains only those First Amendment rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system. Procunier v. Martinez, 416, U.S. 396 (1974).

Not equally consistent has been the view that the Supreme Court has displayed on what standard of jurisdictional review Courts should apply to prison regulation that curb prisoners? (and publishers?) First Amendment rights. The matter was in fact examined for the first time in Procunier v. Martinez and the Court?s perspective on it has been subject to some variations since then.

In Procunier v. Martinez, the Court seemed to apply a strict scrutiny standard to regulations aimed at compressing an inmate?s constitutional right. The Court stated that ?the censorship of direct personal correspondence involves incidental restrictions on the right to free speech of both prisoners and their correspondents, and is justified if the following criteria are met: (1) it must further one or more of the important and substantial governmental interests of security, order, and the rehabilitation of inmates, and (2) it must be no greater than is necessary to further the legitimate governmental interest involved?.

The standard of review was later re-examined in Turner v. Safley, 482 U.S. 78 (1987), and in Thornburgh v. Abbott 490, U.S., 401 (1989) and the Court came to a slightly different formulation of it. As stated in Turner v. Safley, the new standard of review focuses rather on the reasonableness of prison regulations: thus, the relevant inquiry is whether the actions of prison officials are "reasonably related to legitimate penological interests?. Whenever those regulations are in fact reasonably related to a legitimate penological interest, they will pass the constitutional scrutiny and will be deemed valid and legitimate.

This more deferential standard was later confirmed in Thornburgh v. Abbott, and hasn?t been subject to modifications since then. It is fair to acknowledge, therefore, that it is the current applicable standard of review to prison regulations that carry restrictions on prisoners? First Amendment rights.

III. Courts protect penological interest of the institution, and First Amendment rights of prisoners, publishers, and independent senders

However, Courts? rulings must be read in their integrity, with due accuracy and unbiased eyes, in order to avoid misinterpretations that may lead to mistaken beliefs and illegitimate administrative activity. As we will see in a moment, the individuation by the Supreme Court of a slightly different standard of review for regulations that limit censorship of mail sent to inmates, does not imply, at any rate, that prison administrators (CDCR in this case) aren?t bound to take into account and respect an independent person?s constitutional rights.

While enunciating the new standard of review, the Supreme Court has also made it clear, in Thornburgh, that ?there is no question that publishers who wish to communicate with those who, through subscription, willingly seek their point of view have a legitimate First Amendment interest in access to prisoners?.

As stated in Turner v. Safley and recalled in Thornburgh v. Abbott, ?there is little doubt that the kind of censorship just described (censorship of a publication sent by an independent publisher to an inmate, n.d.r.) would raise grave First Amendment concerns outside the prison context. It is equally certain that prison walls do not form a barrier separating prison inmates from the protections of the Constitution, nor do they bar free citizens from exercising their own constitutional rights by reaching out to those on the inside?.

The premise from which the Court moves is that ?we do not deal here with difficult questions of the so-called "right to hear" and third-party standing, but with a particular means of communication in which the interests of both parties (the sender and the prisoner, n.d.r) are inextricably meshed?. It is quite evident to the Court that ?mail censorship implicates more than the right of prisoners. Communication by letter is not accomplished by the act of writing words on paper. Rather, it is effected only when the letter is read by the addressee. Both parties to the correspondence have an interest in securing that result, and censorship of the communication between them necessarily impinges on the interest of each. Whatever the status of a prisoner's claim to uncensored correspondence with an outsider, it is plain that the latter's interest is grounded in the First Amendment's guarantee of freedom of speech? (Procunier v. Martinez).

The language employed by the Supreme Court in Procunier and in Thornburgh as to the question of senders? (or publishers?) First Amendment rights is undeniably the same; in both cases, the Court has clearly stated that (not only prisoners? constitutional rights, but) also First Amendment rights of those who seek to communicate with inmates are at stakes, when reviewing prison regulations that restrict that very channel of communication. Those rights may be compressed only if the limiting regulations reasonably respond to and further a legitimate governmental interest.

Instead the statement (also made in Warden Ducart's letter dated February 13) that CDCR would not be obliged to respect any sender's constitutional rights is wholly misplaced. As we have seen, the standard of review is exactly the same, whether prisoners? rights, publishers? rights, or independent sender's rights are involved, and prison administrators are indeed obligated to equally respect all parties' First Amendment rights.

IV. CDCR's erroneous interpretation of law

Moving from that premise, it becomes quite obvious that the direction laid out by the U.S. Supreme Court rust opposite the one your Department suggests. A standard of review is only imaginable in relation to a non-arbitrary administrative activity. In other words, if prison administrators were not obliged to respect any prisoners? or free citizens? constitutional rights, no possible jurisdictional review of their activity and/or decisions would be even conceivable.

That is why the Supreme Court, even in Thornburgh, recalled the regulations set forth at 28 CFR ? 540.70 and 540.71, highlighting that such regulations ?provide procedural safeguards for both the recipient and the sender?. In particular, the Warden must advise the inmate promptly in writing of the reasons for the rejection, ? 540.71(d), and must provide the publisher or sender with a copy of the rejection letter, ? 540.71(e) and the sender (that is not specified as only an independent publisher or distributor) may obtain an independent review of the Warden's rejection decision by a timely writing to the Regional Director of the Bureau. ? 540.71(e).

The Court had already come to an identical conclusion in Procunier, in which it flatly stated that ?the decision to censor or withhold delivery of a particular letter must be accompanied by minimum procedural safeguards?. More importantly for our concerns, those 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.

The above mentioned Federal Regulations (28 CFR ?? 540.70 and 540.71) already provide sufficient safeguards, compelling prison administrators to notify publishers of any decision of exclusion and/or censorship and to offer them the chance to appeal such decisions, within the prison system, in accordance with the Administrative Remedy Program.

I am well aware that your Department Operations Manual updated through January 1, 2013 (which applies to California State Prisons, such as the one in which Mr. xxx is detained) does not expressly provide the same safeguards. However, even in the absence of an express provision that offers the same or similar protections to the publishers whose First Amendment rights are affected by prison administrators decisions, the California Department of Corrections and Rehabilitation must simply comply with the principles laid down in the above reviewed case law and provide senders with the right to appeal decisions that exclude or censor their materials. Any different administrative conduct would be deemed as irremediably unconstitutional.

V. Holding mail indefinitely

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. Your own DOM states at Section 54010.4, Definitions of Classes of Mail First Class Mail, "All First Class Mail shall be delivered to the inmates as soon as possible, but not later than seven (7) calendar days from receipt of the mail from the Post Office." That mail from MIM Distributors is being immediately forwarded to IGI not only violates Due Process law, but also violates your own policies.

MIM Distributors has requested, from its very first letter to CDCR on this matter (dated January 7, 2014), that elementary safeguards be made available for it in the present case and CDCR has constantly and illegitimately denied them, on the basis of a deplorable misinterpretation of the relevant case law on the matter. MIM Distributors, therefore, insists once again to encourage the Pelican Ban State Prison mailroom staff to not only follow its own DOM, but also to adhere to all relevant case law on the matter.

Sincerely,

MIM Distributors
PO Box 40799
San Francisco, CA 94140

CC: Affected parties

Prison Law Office
Mrs. Sara Norman
General Delivery
San Quentin, CA 94964

T.E. Puget, Correctional Administrator (A)
Security Housing Unit
Pelican Bay State Prison
5905 Lake Earl Drive
Crescent City, CA 95532

California Department of Corrections and Rehabilitation
Office of the Ombudsman
1515 S Street, Room 311 South
Sacramento, CA 95811

DOM Section 54010.4, Definitions of Classes of Mail First Class Mail
The United States Postal Services (USPS) regulations define First Class Mail as all matter wholly or partly in writing or typewriting, all actual and personal correspondence, all bills and statements of account, and all matter sealed or otherwise closed against inspection. The maximum weight for a First Class letter is 13 ounces.
All First Class Mail shall be delivered to the inmates as soon as possible, but not later than seven (7) calendar days from receipt of the mail from the Post Office.

Also 54010.4 and 54010.6
All appropriately addressed mail shall either be delivered to the inmate, or forwarded per the CCR Subsection 3133(f) and DOM Section 54010.25.

DOM Section 54010.21, Publications
Inmates may subscribe to, purchase, or have the items listed below purchased for them by a third party: Newspapers. Periodicals. Magazines. Books.
If subscriptions or books are purchased for the inmate by a third party (or donated to an inmate) they must be mailed directly from a book store or publisher. If subscriptions or books are purchased for the inmate by a third party (or donated to an inmate) they must be mailed directly from a book store, book distributor, a publisher, or a religious organization. Personal correspondents cannot mail books, periodicals, or publications directly to inmates and state that they are a donation.
There shall be no Approved Vendor Lists‖ for any publication. The CDCR shall distribute a centralized list of disapproved publications that are prohibited as contraband. Publications that are enumerated on this centralized list are not allowed in any institutions. Local institutions may not add items to the centralized list.

DOM Section 54010.28, Appeals Relating to Mail and Correspondence Inmates, their correspondents, and publishers may appeal Department regulations, and their application relating to mail and correspondence. Inmates shall use established appeal procedures as provided in CCR, Section 3084, etc. seq. Persons other than inmates should address any appeal relating to Department policy or regulations to the Secretary of the California Department of Corrections and Rehabilitation. Appeals relating to a specific institution/facility procedure and/or practice shall be addressed in writing to the Warden or Associate Director of the institution/facility where the appeal issue arises. A written response shall be provided within 15 business days. Appeals that are not satisfactorily resolved at this level may be forwarded in writing to the Secretary who shall provide a written response within 20 business days.