Tracking Prison Censorship in the United States

Benjamin A. Wright, Publication Review Committee
Virginia Department of Corrections
PO Box 26963
Richmond, VA 23261-6963

21 April 2008

Mr. Wright,

I am responding to your letter dated March 31, 2008 regarding the decision to ban Issue #1 of the newsletter Under Lock & Key. As the letter was postmarked April 9, 2008 I believe I am writing within the 15 day period required to request a review of this decision.

The basis for my request for a review is the U.S. Supreme Court decision of THORNBURGH v. ABBOTT, 490 U.S. 401 (1989). The reason that you cite from Operating Procedure #803.2 is taken directly from THORNBURGH, which reads:

Federal Bureau of Prisons regulations generally permit prisoners to receive publications from the "outside," but authorize wardens, pursuant to specified criteria, to reject an incoming publication if it is found "to be detrimental to the security, good order, or discipline of the institution or if it might facilitate criminal activity."

You cite the latter part of this sentence but ignore what it refers to as ?specified criteria,? which the case cites as being established in TURNER v. SAFLEY, 482 U.S. 78, 89 (1987). TURNER reiterates the need to establish a ?valid, rational connection between the prison regulation and the legitimate government interest? and that ?the governmental objective must be a legitimate and neutral one.? Citing the pages of the newsletter that provide a well-documented factual account of abuses that took place at Red Onion State Prison indicates a clear bias in determining the linkage of the material to a presumed threat to security. In fact, this is a textbook example of what the First Amendment exists for, to prevent the government from restricting the press to content that serves the interest of the government itself.

We hope that upon review you can act to rectify this blatant violation of the U.S. Constitution by the VADOC Publication Review Committee.

Sincerely,

Deputy Director J. Jabe
Division of Operations
Virginia Department of Corrections
PO Box 26963
Richmond, VA 23261-6963

15 December 2007

Dear Sir/Madam,

Shortly after my last letter I received further documentation of censorship of MIM?s mail at Red Onion State Prison from Mr. XXXXXX XXXXXX (XXXXXX). As of today, we have still not received a response to our appeal made in late November.

Two of the documents were regarding grievances filed by Mr. XXXXXX regarding the censorship of a number of publications including MIM Notes and MIM Theory. The final decision made by yourself upheld the censorship for Operating Procedure 803.2 #7, 13 and 14. In my previous letter I addressed these claims in relation to MIM literature. These new documents merely recite these rules, without providing any substantiating evidence. As Mr. XXXXXX points out, it is not legal to block our mail for reasons of political disagreements or discrimination against Black or other minority group organizations. Therefore, I am reiterating our request for specific citations of the material that is alleged to have violated these procedures.

The third document was in reference to the most recent incident of censorship of a letter sent from MIM to Mr. XXXXXX in October. The memo from Major K. Chris claims that MIM study group material violated 803.2 #7, 13, 14 and 15. The new procedure (15) refers to publications in a language other than English or written in code. The study group material was a set of questions on the topic of a philosophy text regarding materialism and idealism. This was also sent with a copy of the letter of inquiry I had sent to your office that I was carbon copying to Mr. XXXXXX. I am at a total loss as to which portions of these materials were deemed to violate any of the rules cited.

Please pass our mail along to Mr. XXXXXX or provide us with specific citations of how each item violates each operating procedure cited.

Sincerely,

W.D. Jennings, Ph.D., Management Lead Analyst
Virginia Department of Corrections
PO Box 26963
Richmond, VA 23261-6963

16 March 2008

Mr. Jennings,

In my February 10 letter to you I had inquired about an incident in which a letter to a prisoner at Red Onion State Prison from MIM Distributors was described as having ?No Approval.? I pointed out that Operating Procedure 803.2 only applies to publications, and as defined in the rule letters are not included.

In your February 27th letter to MIM Distributors regarding a different letter to a different prisoner, you describe the letter as a ?magazine,? despite the fact that the letter does not fit the description of a magazine or publication given in 803.2. In your attempt to inappropriately apply the rules you have exposed your own unwillingness to allow prisoners to participate in programs aimed at education and personal reform. Is inviting a prisoner to participate in a study group ?detrimental to security? and ?the rehabilitation of inmates??

We are officially requesting an independent review of this decision to censor our mail. Also, could you please let us know who is responsible for conducting the independent review? We are quite confident that an independent review of the decision would show that not only are the rules being applied incorrectly, but that the materials in question do not pose a threat to the rehabilitation of inmates, rather they represent an important program to promote rehabilitation. Since your letter was postmarked March 6, 2008, we should still be well within the 15 calendar day requirement for our request.

Sincerely,

W.D. Jennings, Management Lead Analyst
Virginia Department of Corrections
PO Box 26963
Richmond, VA 23261-6963

21 April 2008

Mr. Jennings,

In your letter dated April 8, replying to my March 16 request for an administrative review, you failed to address any of my concerns once again. Not only are you treating a document sent to a prisoner as a magazine, but you fail to provide any response regarding the substance of you claims that the material violates any rules or posses any threats. Your letter contains no content but a restating of the rules. As I established with you late last year, we are now fully briefed on the rules and regulations as spelled out in Operating Procedure #803.2. Yet the department has failed to demonstrate how any of the materials sent by MIM Distributors violate these rules.

The administrative review process was established in response to the standards of TURNER v. SAFLEY, 482 U.S. 78 (1987) which allow leeway to prison administrators so as to avoid court decisions for every instance of censorship. By failing to provide a means of dealing with these problems administratively you are preventing the decision from being effective in protecting the rights of the public to communicate with prisoners.

In the most recent censorship notice that MIM Distributors has received from Mr. Benjamin Wright (see enclosed), the VADOC decided to ban a publication for an article that is critical of the department itself. This conflict of interest is also a violation of federal law.

Finally, in violation of Sizemore v. Williford, 829 F.2d 608, 610 (7th Cir. 1999), the VADOC has systematically blocked and delayed mail to prisoners within Red Onion State Prison. One recent report from a prisoner documents letters that MIM Legal Department cc?ed him regarding my appeals to your office were delayed by 1 to 2 months.

We intend to pursue these matters until the department can reasonably claim to be following the law in relation to mail sent by MIM Distributors and the communications of prisoners with the outside world.

Sincerely,

W.D. Jennings, Ph.D., Management Lead Analyst
Virginia Department of Corrections
PO Box 26963
Richmond, VA 23261-6963

10 February 2008

Mr. Jennings,

I am writing you again regarding a new incident that just came across my desk. A letter that was sent by MIM Distributors to Mr. XXXXXX XXXXXX (XXXXXX) regarding the censorship problems MIM has been having at Red Onion State Prison was returned with the reason ?No Approval? (see enclosed memo).

After re-reviewing Operating Procedure 803.2, which you had previously sent me, there is no indication that you need to get prior approval to send a letter to someone at Red Onion. In fact, the whole operating procedure is on the subject of ?Incoming Publications,? which are defined as ?Any written communication such as newspapers, magazines, newsletters or other periodicals, books, brochures, catalogs, or pamphlets that can be subscribed to or ordered from a legitimate mail order vendor.? Clearly, this does not include letters. Is there a separate operating procedure I should be referring to in this matter? And if letters need to be approved, how would we go about doing that? Must we write to you directly before sending each letter to someone at Red Onion?

Finally, also note that Mr. XXXXXX received written approval to receive a free subscription to MIM?s newsletters on the same day that this letter was censored (see enclosed Personal Property Request Form). So if this letter is being treated as a publication by Major K. Chris, as it appears to be, then his claim of ?no approval? is unfounded.

Thank you for any clarification you can provide in this matter,

Chairman W.D. Jennings, Ph.D.
Publication Review Committee
Virginia Department of Corrections
PO Box 26963
Richmond, VA 23261-6963

25 November 2007

Chairman Jennings,

We have received your recent letter notifying us that 10 issues of our newspaper have been rejected for violating Operating Procedure 803.2. MIM Notes has been censored at Red Onion multiple times in recent months for allegedly violating Operating Procedure 803.2 and 852. In that time we have made a number of efforts to find out what these Operating Procedures are and how MIM Notes has violated them. To further these efforts, I am requesting that you send us a copy of your Operating Procedures and explain to us how MIM Notes has violated them.

Also please note, that while MIM Distributors uses the Los Angeles address for their publications and distribution, or legal office is currently based out of San Francisco. By corresponding with me through the address above we can ensure more efficient communications.

We look forward to receiving the above requested material so we can work to remedy this problem.

Thank you,

Deputy Director
Division of Operations
Virginia Department of Corrections
PO Box 26963
Richmond, VA 23261-6963

25 November 2007

Deputy Director,

We recently received the enclosed letter from Chairman Jennings of the Publication Review Committee. This is one of a number of incidents in recent months where MIM Notes has been censored by the Virginia Department of Corrections for allegedly violating Operating Procedure 803.2 or 852.

We would like to take this opportunity to request an independent review of these decisions. It is still unclear to us the reasoning for the censorship as our past requests for explanations and copies of the Operating Procedures have not yet been met. However, the enclosed letter does state that MIM Notes ?could be detrimental to the security and good order of the institution and the rehabilitation of inmates.? As an organization MIM has put enormous energy and resources into the education and rehabilitation of prisoners throughout the country. And there is nothing in our newspaper that could be construed to support any sort of illegal or unruly activities as this would undermine our aforementioned efforts and goals. In this light, I hope you will agree that the censorship of MIM Notes has been unjustified.

Also please note, that while MIM Distributors uses the Los Angeles address for their publications and distribution, our legal office is currently based out of San Francisco. By corresponding with me through the address above we can ensure more efficient communications.


Thank you for your time in this matter,

Deputy Director
Division of Operations
Virginia Department of Corrections
PO Box 26963
Richmond, VA 23261-6963

10 December 2007

Dear Sir/Madam,

We have not received a response regarding our request for an independent review of the decision to censor MIM Notes made last month. If the department has already determined that our appeal merited a reversal of the decision, then this letter can be disregarded and we thank you for your time. However, since I last wrote, we have received the information we requested from W.D. Jennings, Management Lead Analyst, and would like to address the new information we have in the case that the decision to censor still stands. We now possess a copy of Operating Procedure 803.2 explaining the Virginia Department of Correction?s policy on incoming publications, including the criteria for disapproving publications sent to prisoners in their custody.

The original letter sent to MIM Distributors by W.D. Jennings regarding the censorship of 10 issues of MIM Notes, dated October 30, 2007, does not cite specific sections of the Procedure, but did state that the newspapers ?could be detrimental to the security and good order of the institution and the rehabilitation of inmates.? I already addressed this claim in my previous letter. In the numerous rejection notices that were received by prisoners, many cited criteria #7 and #13 and most were issued by Major K. Chris, Chief of Security at Red Onion State Prison. While the page numbers cited in the memo from W.D. Jennings don?t give us the ability to address specific concerns as most pages have multiple articles on them, let me briefly address the claims made by Major Chris.

803.2 #7 Material that promotes or advocates violence, disorder, insurrection or terrorist activities against individuals, groups, organizations, the government, or any of its institutions

While MIM Notes frequently discusses the use of violence and terrorism by various parties, it does so from a critical standpoint. For example, MIM Notes actively opposes the bombing of Iraq, the financial backing of Israel?s occupation of Palestine and even physical mistreatment of prisoners in this country. MIM Notes also regularly points out that such violence and terrorism will breed resistance. Holding such a belief is the protected right of all citizens of the United States. Nowhere does MIM Notes promote or encourage resistance that is based in violence or any sort of terrorist activities. If you believe that it does, we request that you provide specific citations where this is done.

803.2 #13 Material that depicts, describes or promotes gang signs, language, clothing, jewelry, codes or paraphernalia, gang participation or other gang-related activity or association.

Elsewhere in the Procedure a gang is defined as:

?A group of individuals who: (a) possess common characteristics that distinguish them from other offenders or groups of offenders and who, as an entity, pose a threat to the safety and security of staff, the facility, other offenders or the community; (b) have a common distinctive goal, symbolism or philosophy; (c) possess identifiable skills or resources, or engage in unauthorized/illegal activities??

MIM Notes does not promote any illegal or unauthorized activities, nor does it threaten the safety or security of anyone in the facility. Similarly, MIM Notes does not promote symbols of groups that do promote such activities. Again, you would need to provide concrete examples of where such things are depicted or promoted in order for these charges to stand.

MIM Distributors is very interested in remedying the problems that have led to the repeated censorship of its publications in recent months. However, to date we have been unable to come up with any actionable responses to the charges made by the Virginia DOC, as the claims appear to be unfounded. We appreciate the information provided by W.D. Jennings, but if the department determines to uphold these decisions we request specific citations of the text or content that violates the criteria cited in the publication disapproval memos.

We hope to work with you to remedy these issues in an expedient manner.

Sincerely,

W.D. Jennings, Ph.D., Management Lead Analyst
Virginia Department of Corrections
PO Box 26963
Richmond, VA 23261-6963

7 January 2008

Mr. Jennings,

I have received your letter from December 19, however it does not address any of the concerns that were brought up in my previous letter dated December 10, 2007. In that letter I addressed all of the charges that have been brought against various issues of MIM Notes.

Your recent letter does not provide any evidence that these issues of MIM Notes are security risks. You do state that ?the cited issues of MIM Notes contain depictions of violence and the suggested use of violent activities against individuals.?

Since you fail to provide any citations to back up your assertion, let me take MIM Notes 343 as an example, as it had the greatest number of objectionable pages. The first two pages contain articles about the United States war effort against Iran and Hezbollah and the execution of Saddam Hussein. Certainly, violence is part of these stories. Is it the department?s policy to prohibit any news outlets that discuss issues of war, murder and other acts of violence? If so, I would refer you to Sizemore v. Williford, 829 F.2d 608, 610 (7th Cir. 1987), as well as Maddox v. Berge, _F.Supp.2d_, 2007 WL 420193 *9-10 (W.D. Wis. Feb. 8, 2007). In addition, Turner v. Safley, 482 U.S. 78 (1987), which set the standard for censorship of material for ?legitimate penological interests,? does not allow you to cut a prisoner off from news about the outside world.

The last two pages cited as being objectionable in MIM Notes 343 are almost entirely stories of censorship in prisons, and contain no depiction of violence. I am particularly interested to hear how stories of censorship pose a threat to the security of the prisons in Virginia. And if they do, wouldn?t you be violating the legitimate penological goals of the department by arbitrarily censoring MIM Distributors and other organizations?

As you know, the Fourteenth Amendment prohibits a state from denying anyone equal protection under law. And as you know, the First Amendment provides MIM Distributors with the right to freedom of the press. And as established in decisions such as Procunier v. Martinez, 416 U.S. at 415, this freedom does not end at the prison gates.

Therefore I am requesting that you either allow inmates to receive the issues of MIM Notes in question, or provide legal justification for their censorship that would stand up in a court of law.

Thank you,

W.D. Jennings, Ph.D., Management Lead Analyst
Virginia Department of Corrections
PO Box 26963
Richmond, VA 23261-6963

3 February 2008

Mr. Jennings,

I received your letter from January 16 and am disappointed that you are still unable to respond to my requests.

In your letter you take issue with my statement that the VADOC is not allowed to cut a prisoner off from news about the outside world. In response you state, ? The purpose of Operating Procedure 803.2 is to ensure the safety of both staff and the inmate population by restricting published content that could be detrimental to the good order and rehabilitative efforts?? However, I did not question the intention of the policy, but rather the legality of the apparent blanket ban on MIM Notes. As you are unable to provide any evidence that the issues of MIM Notes in question are in fact detrimental to the good order and rehabilitative efforts, you should be able to understand my point.

You refer me to the grievance process for publishers and imply that this procedure has been exhausted. If that is the case, then I will certainly stop wasting my time writing to you. I do understand that it is your job to uphold department decisions, but you should be aware that the laws that your department is violating are federal laws not departmental regulations.

Thank you,

Deputy Director J. Jabe
Division of Operations
Virginia Department of Corrections
PO Box 26963
Richmond, VA 23261-6963

15 December 2007

Dear Sir/Madam,

Shortly after my last letter I received further documentation of censorship of MIM?s mail at Red Onion State Prison from Mr. XXXXXX XXXXXX (XXXXXX). As of today, we have still not received a response to our appeal made in late November.

Two of the documents were regarding grievances filed by Mr. XXXXXX regarding the censorship of a number of publications including MIM Notes and MIM Theory. The final decision made by yourself upheld the censorship for Operating Procedure 803.2 #7, 13 and 14. In my previous letter I addressed these claims in relation to MIM literature. These new documents merely recite these rules, without providing any substantiating evidence. As Mr. XXXXXX points out, it is not legal to block our mail for reasons of political disagreements or discrimination against Black or other minority group organizations. Therefore, I am reiterating our request for specific citations of the material that is alleged to have violated these procedures.

The third document was in reference to the most recent incident of censorship of a letter sent from MIM to Mr. XXXXXX in October. The memo from Major K. Chris claims that MIM study group material violated 803.2 #7, 13, 14 and 15. The new procedure (15) refers to publications in a language other than English or written in code. The study group material was a set of questions on the topic of a philosophy text regarding materialism and idealism. This was also sent with a copy of the letter of inquiry I had sent to your office that I was carbon copying to Mr. XXXXXX. I am at a total loss as to which portions of these materials were deemed to violate any of the rules cited.

Please pass our mail along to Mr. XXXXXX or provide us with specific citations of how each item violates each operating procedure cited.

Sincerely,

Major K. Chris, Chief of Security
Red Onion State Prison
PO Box 1900
Pound, VA 24279

28 September 2007

Dear Sir/Madam,

It has recently come to our attention that mail from MIM Distributors is being censored at Red Onion State Prison. We just received documentation of censorship that you authorized in May on the basis of Division Operating Procedure 852, Section 852-7.8 #7 & #13. From what we have been told by prisoners on our mailing list all of our mail is being rejected with the justification that it is ?STG-related? material.

We are requesting a copy of the Division Operating Procedure so that we can further address this matter. In addition, if it is true that the cited sections refer to our mail being related to a Security Threat Group, we are also requesting a justification from the department for this accusation.

We look forward to your response,

Publication Review Committee
Virginia Department of Corrections
6900 Atmore Drive
PO Box 26963
Richmond, VA 23261-6963

15 October 2007

Dear Sir/Madam,

This letter is to repeat the requests that we had sent to Major K. Chris last month. Major Chris responded by saying that we should refer any inquiries to your office (see enclosed). We have not received a copy of your Division Operating Procedure or any explanation for the censorship that MIM Distributors faced earlier this year. We have enclosed some of the censorship notices that we have received so far.

We look forward to your response,

Major K. Chris, Chief of Security
Red Onion State Prison
PO Box 1900
Pound, VA 24279

28 September 2007

Dear Sir/Madam,

It has recently come to our attention that mail from MIM Distributors is being censored at Red Onion State Prison. We just received documentation of censorship that you authorized in May on the basis of Division Operating Procedure 852, Section 852-7.8 #7 & #13. From what we have been told by prisoners on our mailing list all of our mail is being rejected with the justification that it is ?STG-related? material.

We are requesting a copy of the Division Operating Procedure so that we can further address this matter. In addition, if it is true that the cited sections refer to our mail being related to a Security Threat Group, we are also requesting a justification from the department for this accusation.

We look forward to your response,