Advice on Censorship Fight in Arizona

I am a Jailhouse Lawyer of the High Rolla Jailhouse Law firm. I was appointed by the chief Jailhouse Lawyer of the Jailhouse Law Firm to aid and assist the MIM(Prisons) Legal Clinic. I have reviewed the Prisoner’s Legal Clinic letter dated October 4, 2010. Upon review I have taken the opportunity to offer my legal experience to assist MIM(Prisons) in responding to the statement made by the Director of Arizona’s Department of Corrections.

According to the Director of Arizona’s Dept. of Corrections, he states Procunier v. Martinez, 416 U.S. 369 (1974) was overruled and your reliance on that case is misplaced. The Director of Arizona’s Dept of Correction further states that there is nothing that gives rise to a publisher’s right to appeal a decision to exclude its material on an administrative appeal level and you are not entitled to a forum within the prison system.

The Arizona Dept. of Corrections Director is partially correct and partially wrong. Basically what the Director is telling MIM(Prisons) is that it does not have an entitlement to use the prison grievance system to appeal administrative decisions. The Inmate Grievance System is a forum within the Department of Corrections for prisoners to avail themselves of if they are dissatisfied and wish to appeal an administrative decision. This system is for use by prisoners, not publication companies. The Director is correct, in that there is no case laws that gives rise to a publisher’s right to appeal on an administrative level. If MIM(Prisons) wishes to challenge the administrative decision of the Director to exclude its publications, the proper forum would be for MIM(Prisons) to file a §1983 Civil Rights action in Federal Court, or to provide the prisoner with the appropriate arguments, case laws and legal authorities and have the prisoner himself file the appeal by going through the Grievance System and then the Administrative Law Court.

However, MIM(Prisons) should notify the Director that it is fully aware of the fact that it does not have the right to appeal on an administrative appeal level. MIM(Prisons) should notify the Director that it is fully aware that it is not entitled to a forum within the prison system. MIM(Prisons) should notify the Director that it was only making an effort at an informal appeal or request for the Director to reconsider its decision. Because contrary to what the Director stated Procunier v. Martinez 416 U.S. 396 (1974) is still applicable in part. Just as prisoners have a first Amendment Right to receive and send mail, so does publication companies and publishers. When the complaining party is the prisoner, then Turner v. Safely 482 U.S. 78 (1987) is the applicable standard, however when a publisher complains that its first amendment right has been violated then Procunier v. Martinez and Thornburgh v. Abbott 490 U.S. 401 (1989) is the appropriate standard.

I say all that to say this, if the Director cannot show that the restrictions placed on mail received by a prisoner is rationally related to a legitimate penological interest, then the Director’s reliance on Thornburgh v. Abbott and Turner v. Safely is unsupported and misplaced, then the correct standard would be Procunier v. Martinez. The United States Supreme Court clearly held in Thornburgh v. Abbott, that prison officials could reject incoming mail if it was deemed detrimental to security, but if no such penological interest is involved, the Director can not rely on this case nor Turner v. Safely to justify its restrictions on incoming mail. The question is now “Is there a legitimate penological interest to justify its restriction of the MIM(Prisons)’s Under Lock and Key??” The only way to force the Director to answer this question and identify the penological interests involved is to file a §1983 Civil Right Action against the director making him accountable to the Federal Courts. The prisoner has the additional alternative of the Prison Grievance System which we know is unreliable. At this moment my advice and suggestion to MIM(Prisons) is to challenge these censorships from a different angle. From my research dealing with a recent line of cases i.e. Beard v. Banks 126 S.C.T. 2572 (2006), Overton v. Bazzetta 539 U.S. 126 (2003) Ramirez v. Pugh 486 F. Supp. 2d 421 (M.D. Pa. 2007), Brittain v. Beard, 932 A.2d 324 (Pa. Commw. Ct. 2007). The Courts seem to be interested in whether the regulation challenged promotes rehabilitation. Recently the term “Rehabilitation” has been used by prison officials to uphold prohibitive regulations and thus far have been successful. It would be a strategic legal maneuver to argue that such restrict regulations actually discourage rehabilitation, and expert testimony from a psychologist or sociologist would help to support this argument. This would be a more strategic angle to strike from.

MIM(Prisons) also was inquiring about cases concerning prisoner’s rights to read newspapers as well as write for them and concerning inmate to inmate correspondence. Well I do not know right off top a specific case that involves prisoners rights to read newspapers as well as write for them, but there is a case that states “prisoners may not be punished for posting material on the internet with the assistance of a third party,” I don’t think it’s what MIM(Prisons) is looking for though.

I do know as far as inmate to inmate correspondence is concerned, that the United States Supreme Court held in Shaw v. Murphy 532 U.S. 223, 121 S.Ct. 1475 (2001) that a prisoner who was working as a prison law clerk claimed his First Amendment rights were violated when he was disciplined for statements he made in a letter to another inmate in which he gave legal advice. He was disciplined for violating a prison policy prohibiting insolence and interference with due-process hearings. The court found that inmates do not possess a special First Amendment right to give legal assistance to other inmates. If they did possess such a right, it would mean enhancing the usual protection given to inmate to inmate correspondence. Thus his letter, regardless of its content, was subject to the same regulations as all other letters sent between inmates. At least as far as South Carolina is concerned inmate to inmate correspondence is only allowed if the inmates are immediate family members or if the inmates are involved in a joint legal action and the correspondence is related to the legal action only. SCDC Policy 10.08 Section 18.