This is an archive of the former website of the Maoist Internationalist Movement, which was run by the now defunct Maoist Internationalist Party - Amerika. The MIM now consists of many independent cells, many of which have their own indendendent organs both online and off. MIM(Prisons) serves these documents as a service to and reference for the anti-imperialist movement worldwide.

MIM Legal Notes:
Cain v. MDOC implementations of censorship

by a Michigan prisoner
10 June 1998

MIM is proud to introduce MIM Legal Notes, a forum for prisoners and others to help us agitate in favor of prisoners and against oppression. This issue deals with censorship in Michigan prisons. MIM has the full legal brief written by the prisoner, and it is available to our comrades under lock and key who are fighting censorship in their koncentration kamps. The following has been edited for clarity and space, with a response from MIM at the end.

What are the implications of Cain v. MDOC on censorship of prisoner mail in the penal concentration camps of Michigan?

Censorship is defined as: A review of publication, movies, plays and the like for the purpose of prohibiting the publication, distribution, or production of material deemed objectionable as obscene, or immoral. Such actions are frequently challenged as constituting a denial of freedom of press or speech. Blacks' Law Dictionary, West Publications, 6th edition, 1990. p. 22

In the case of Cain v. MDOC, the court dealt a devastating blow to prisoners' constitutional rights on December 5, 1997 when it denied relief for many of the prisoner's claims. The plaintiffs (prisoners) were challenging the Michigan DOC policy of cutting back their rights to receive mail, books, and other printed materials. A Michigan statute provides that: "In a correctional facility having a security designation of IV,V or VI, not more [property] than the amount that can be contained in one duffel bag and one footlocker is approved by the department of corrections."

In Cain v. MDOC, the court upheld this statute, and ruled that the department of corrections may legally declare what items of property prisoners will be allowed to possess or acquire in a correctional facility. In November 1997, Prison Legal Services of Michigan (PLSM) filed a motion seeking a preliminary injunction to stop MDOC from implementing the new policy directive. While the judge denied the motion (and thus allowed the censorship policy, in the guise of a limitation on amount of property, to be implemented), he did rule that books, magazines, newspapers, and catalogs from approved vendors are "mail" and need not be ordered through the institution. The judge also ruled that calendars from books, magazines, newspapers or catalogs are permissible; added five paperback books as allowable items at level VI facilities (previously was limited to 10 books); allowed possession of personal correspondence and photographs at level VI facilities. The judge also ruled that prisoners are entitled to a Notice of Intent (NOI) for prisoner property taken by MDOC, unless the prisoner waives this notice in writing.

In spite of the above "relaxation" of the harsh censorship policies, prison officials have wide discretion in the regulation of how much, and a large extent, what types of reading material any prisoner can possess under the provisions. The constitutional implications surrounding MDOC's censorship of prisoner property/mail rights under these enactments are certainly issues of critical contention and grave concern for all Michigan prisoners, book publishers and distributors, newspaper columnists who reports on prison conditions, etc.

Another Michigan court recently addressed the issue of prison officials' censorship of prisoner mail in Winburn v Bologna. In Winburn a prisoner brought suit under Title 42 U.S.C. Sec. 1983, against MDOC officials alleging violations of his United States Constitutional First and Fourteenth Amendment rights, where a prison mail regulation allowed corrections officials discretionary authority to censor and ultimately ban his receipt of certain objectionable racially inflammatory reading materials.

In this opinion, the court used the Turner standard (a 1987 united snakes supreme court decision) of "reasonableness" regarding restrictions on prisoners rights. The Turner test is as follows:

  1. Whether there is a "valid," rational connection between the regulations and a legitimate and neutral government interest put forward to justify it, which connection cannot be so remote as to render the regulation arbitrary or irrational.
  2. Whether there are alternative means of exercising the asserted constitutional right that remain open to inmates, which alternatives, if they exist, will require a measure of judicial deference to the corrections officials expertise.
  3. Whether and the extent to which accommodation of the asserted right will have an impact on prison staff, on inmates' liberty, and on the allocation of limited prison resources, which impact, if substantial, will require particular deference to correctional officials.
  4. Whether the regulation presents an "exaggerated response" to prison concerns, the existence of a ready alternative that fully accommodates the prisoner's rights at de minimis cost to valid penological interest being evidence of unreasonableness.
While the Michigan department of corrections advances the hypocritically false proposition that prisoner rehabilitation is one of the main objectives of the statue and the policy, we have all witnessed the gradual whittling away of prisoners' constitutional rights and civil liberties by corrections officials and governmental bureaucracy. With the decision in Cain, the curtailment and censorship of prisoner mail rights under the constitution clearly came into focus. Available educational reading material and literature made accessible to political prisoners warehoused in close custody facilities will be sparse at best, while the illusion of so-called rehabilitation fades into oblivion.

Nevertheless, a successful challenge by prisoners to government censorship can be reached. A case in point is Amatel v. Reno, a federal case brought in D.C. In this case, federal prisoners and various publishers brought suit under 42 U.S.C. sec 1983 against the Federal Bureau of Prisons (BOP) challenging the constitutionality of a statute which prohibited the BOP from using Federal funds to "distribute or make available" to prisoners "commercially published information or material" known to be "sexually explicit or featuring nudity."

The "legitimate" penological interest advanced by the BOP (to be "balanced" against the "rights" of prisoners) was the "rehabilitation" of prisoners. The Supreme Court has already identified security, order and rehabilitation of prisoners as "substantial" government interests. When the court identifies the government interest as "substantial", then the prisoners' "rights" are given much less weight in the balance. The Amatel court addressed whether the BOP's statue drew distinctions between publications based solely upon the basis of their potential implementations for rehabilitation, and concluded that the statutory regulation's "distinctions on the basis of content were not drawn with a view to the implications of rehabilitation." The court found the statute was content-based with a sole focus on a publications' sexual content. Questioning the regulatory scheme, the court identified curious distinctions between the BOP's banning magazines such as Playboy and Penthouse as sexually counter-productive to prisoner rehabilitation, while allowing other such publications as the Sports Illustrated Swimsuit Issue and Victoria Secret catalogue. Through its analysis the court struck down the regulation's discriminatory selectivity: "If rehabilitation was the content neutral goal of the [statute], then presumably it would ban all non-rehabilitative publications." Amatel. The court questioned the BOP's reasoning for concluding that publications such as Playboy and Penthouse could be considered any more or less rehabilitative than the other two publications. The Amatel court found that the statute was not "neutral" pursuant to the reasonableness standard of Turner v. Safley and further found the regulation facially violative of the First Amendment.

With this view in mind, and through further research, prisoners may be better equipped to challenge the Cain court order on the censorship issue. One final note: mail delays that are brief, occasional or accidental are seldom found unconstitutional, especially if there are not harmful consequences. If your MIM Notes is held up by officials for weeks you should first file an administrative grievance to find out why MDOC held up your privileged mail. [Again, MIM has the full legal brief with citations from which this article was excerpted, for those comrades working on censorship campaigns in their prisons.-ed.]

MIM supports winnable battles against censorship and other repressive prison policies. MIM and RAIL are leading a mass organization of prisoners to work against repression in any way we can at this time. We gather information from prisoners and distribute this information, as well as books and other literature, back to our comrades under lock and key. We also agitate on the outside against prisons and prison conditions. Write to MIM or RAIL if you want to get involved in the struggle against censorship and other repressive conditions of confinement under this oppressive imperialist system!

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