Tracking Prison Censorship in the United States

Cynthia Bostic, Assistant Director
Support Services
4260 Mail Service Center
Raleigh, NC 27699-4260

9 December 2012

RE: Blanket ban on mail at Marion CI

To Ms. Bostic,

I have not yet received any response to my letters to you dated November 12. However I did get copies returned to me from a Mr. XXXXXX XXXXXX (#XXXXXX), one of the affected parties being held in Marion Correctional Institution. It appears that the materials were censored and he was forced to pay to have them mailed back or destroyed. This corroborates other incidents I mentioned in my previous letter of petitions being censored at Marion CI with the justification that MIM Distributors is on the disapproved publication list.

As our staff has been over with you before, this list is used to ban the publication or mail from the organization, but is a one-year ban on the specific issue of a specific publication. So why is it that personal letters are being censored based on this list? We have not yet received a notice from your staff as to the reason for censoring the letters regarding censorship sent to Mr. XXXXXX, but if I may preemptively request a review of this decision as I cannot imagine what legitimate penological interest would allow you to censor these letters.


I would appreciate your taking the time to address this issue in a timely manner.

Thank you,

Prisoner filed a DC410 appeal form and a month later the Asst. Supers office says they are still reviewing this letter.

Cynthia Bostic, Assistant Director
Support Services
4260 Mail Service Center
Raleigh, NC 27699-4260

19 November 2012

To Ms. Bostic,

This letter is in response to a "Letter To Publisher" from Fay Lassiter dated October 30, 2012. In a previous communication you state that it is overly burdensome to review censorship decisions more than fifteen days after the notice. Trust me, this is quite burdensome for us as well, and we do not have a paid full time staff to address these issues as your agency does. So I apologize for the delayed response, and will respond as soon as I am able in the future. But as you can see by checking the USPS Certified Mail tag on the letter, our mail retriever did not receive this letter until last week. I was holding the enclosed letter dated 12 November 2012 until I was able to get ahold of the most recent letter as I wanted my letter to be relevant to the most recent information.

All that said, such time restraints from your office do not preclude you from following the law in handling the mail between outside parties and the prisoners being held by your agency. I am requesting an independent review of the enclosed decision to censor Under Lock & Key No. 28. Once again there is no "Reason for Disapproval" listed on page 2 of the notice. Page 1 cites pages 2 and 13. Page 2 is merely a description of what Under Lock & Key and MIM(Prisons) are that is printed in each issue of the newsletter. This statement reads in part, "We encourage prisoners to join these battles while explicitly discouraging them from engaging in any violence or illegal acts." So I do not understand how this statement violates your mail rules.

Ms. Lassiter seems to have an issue with page 13 because it criticizes decisions she made regarding the censorship of previous issues of Under Lock & Key. We are very familiar with Ms. Lassiter's personal opinions on Under Lock & Key and whether or not prisoners should read it. But we hope that you will agree with us that she does not have the discretion to decide what prisoners in North Carolina are allowed to ready, only to apply the "legitimate penological interests" standard. Thornburgh v. Abbott, 490 U.S. 401, clearly asserted that you cannot censor things you find politically repugnant. Furthermore, Johnson v. Raemisch, 557 F.Supp.2d 964 (2008) directly addressed the issue of state agencies censoring materials that are critical of their agency claiming it was a "security threat." The courts are clear that this type of behavior is against federal laws.

On this same subject I have recently been notified by prisoners in Marion that a petition addressed to James French is being censored there because "MIM Distributors is on the disapproved publication list." I know you know this is not legal as we have had long discussions with you about the disapproved publication list in North Carolina, and how it cannot be used to censor any mail from an organization or company. You should also be aware that prisoners have a right to "petition the government for a redress of grievance," which was the purpose of the petition.

Please let me know whether or not you agree with my interpretation of the law described above and whether you will allow prisoners in North Carolina to receive Under Lock & Key No. 28.


Thank you,

Cynthia Bostic, Assistant Director
Support Services
4260 Mail Service Center
Raleigh, NC 27699-4260

19 November 2012

To Ms. Bostic,

This letter is in response to a "Letter To Publisher" from Fay Lassiter dated October 30, 2012. In a previous communication you state that it is overly burdensome to review censorship decisions more than fifteen days after the notice. Trust me, this is quite burdensome for us as well, and we do not have a paid full time staff to address these issues as your agency does. So I apologize for the delayed response, and will respond as soon as I am able in the future. But as you can see by checking the USPS Certified Mail tag on the letter, our mail retriever did not receive this letter until last week. I was holding the enclosed letter dated 12 November 2012 until I was able to get ahold of the most recent letter as I wanted my letter to be relevant to the most recent information.

All that said, such time restraints from your office do not preclude you from following the law in handling the mail between outside parties and the prisoners being held by your agency. I am requesting an independent review of the enclosed decision to censor Under Lock & Key No. 28. Once again there is no "Reason for Disapproval" listed on page 2 of the notice. Page 1 cites pages 2 and 13. Page 2 is merely a description of what Under Lock &Key and MIM(Prisons) are that is printed in each issue of the newsletter. This statement reads in part, "We encourage prisoners to join these battles while explicitly discouraging them from engaging in any violence or illegal acts." So I do not understand how this statement violates your mail rules.

Ms. Lassiter seems to have an issue with page 13 because it criticizes decisions she made regarding the censorship of previous issues of Under Lock & Key. We are very familiar with Ms. Lassiter's personal opinions on Under Lock & Key and whether or not prisoners should read it. But we hope that you will agree with us that she does not have the discretion to decide what prisoners in North Carolina are allowed to ready, only to apply the "legitimate penological interests" standard. Thornburgh v. Abbott, 490 U.S. 401, clearly asserted that you cannot censor things you find politically repugnant. Furthermore, Johnson v. Raemisch, 557 F.Supp.2d 964 (2008) directly addressed the issue of state agencies censoring materials that are critical of their agency claiming it was a "security threat." The courts are clear that this type of behavior is against federal laws.

On this same subject I have recently been notified by prisoners in Marion that a petition addressed to James French is being censored there because "MIM Distributors is on the disapproved publication list." I know you know this is not legal as we have had long discussions with you about the disapproved publication list in North Carolina, and how it cannot be used to censor any mail from an organization or company. You should also be aware that prisoners have a right to "petition the government for a redress of grievance," which was the purpose of the petition.

Please let me know whether or not you agree with my interpretation of the law described above and whether you will allow prisoners in North Carolina to receive Under Lock & Key No. 28.


Thank you,

Cynthia Bostic, Assistant Director
Support Services
4274 Mail Service Center
Raleigh, NC 27699-4274

May 31, 2012

RE: Censorship of Under Lock & Key No. 25 (March/April 2012)

Dear Ms. Bostic,

We would like to appeal the censorship of the above-listed publication. Please see attached notificatino.

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

Sincerely,

MIM Distributors


CC: Affected parties

Cynthia Bostic, Assistant Director
Support Services
4260 Mail Service Center
Raleigh, NC 27699-4260

12 November 2012

To Ms. Bostic,

We are in receipt of your two letters dated October 1, 2012 addressed to XYZ, responding to h inquiries made in June of this year. In one you state that conducting reviews of decisions to censor mail is time consuming and burdensome when the request is delayed. In the other letter you respond to her request for statistics on the review process stating that you do not provide such information.

How is it that so much time and effort goes into the review process and after over a year of requesting substantiation for your decisions you have not provided any? Certainly you can provide us with documentation of the reviews of our own mail.

As I have pointed out to you repeatedly, the notifications of censorship that we receive from your staff is hit or miss in providing any justification for the decision to censor. Sometimes they list a page number, but no further information. Sometimes we don't even get that. And I have not seen one instance where your "review" of their decisions has provided any justification. Is there or is there not any evidence that an independent review process exists within the NC Department of Public Safety? If there is, can you please provide documentation of such for the incidents of censorship involving mail from MIM Distributors for the past year?


Thank you,

My name is xxxx. I sent you a letter about a book I got in the mail but could not have. I tried to send this book home but you said "Funds Not Available." On 10-10-12 you sent me an answer to this letter stating "your publication was destroyed per policy." As I said in my first letter, you said it is $2.90 to send the book home. I am indigent. I get 10 indigent stamps a month. 7 indigent stamps would have covered the mailing of this book. So why was it destroyed?

You just told the inmate in ABCDEFG (who also got something in the mail you would not let him get) that he could have used his 10 indigent stamps to sent it out but tit would not cover the mailing. So why was my book destroyed when I have the stamps to cover it? And policy says if we (indigent inmates) don't have the money you are supposed to take the money from the indigent inmate trust fund. So I need to know who destroyed my book? I need their full name because I will be filing a lawsuit.

You must have funds available in your account for trust fund officer to draw and mailroom to place on outgoing mail.


mail room 10-12-12

Assistant Director of Support Services
North Carolina Department of Corrections
Division of Prisons
4260 MSC
Raleigh, NC, 27699-4260


January 13th, 2012

RE: Censorship incident occurred at Lanesboro Correctional Institution ? exclusion of publications sent to prisoner XXX by MIM Distributors.

I am writing this letter about what seems to be a censorship incident that recently occurred at Lanesboro Correctional Institution in Polkton, North Carolina.

MIM Distributors sent the above mentioned prisoner three different issue of a publication titled Under Lock & Key. Precisely MIM Distributors sent Mr. XXX:
-Under Lock & Key, issue 21 on 07/28/2011
-Under Lock & Key, issue 22 on 09/21/2011
-Under Lock & Key, issue 23 on 11/18/2011

We recently learned from the prisoner (Mr. XXX) that he never received any of the publications listed above. Nor did he receive any determination of your Department explaining whether and why the publications were censored. MIM Distributors didn?t receive any notice of censorship determination either.

Your Division of Prisons Policy D.0100 states at sections D.0103 and D.0107 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.

The same Policy obligates your mailroom staff to come to a determination within 7 days from the arrival of the publication.

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 Mr. XXXXXX, nor MIM Distributors were notified of the censorship decision.

In refusing to provide notice and an opportunity to be heard to both the prisoner (Mr. XXX) 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 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.

We also request that adequate notice be provided to the prisoner.

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

Sincerely,

MIM Distributors

CC: Affected parties

Richard Neeley, Administrator
Lanesboro Correctional Institution
P.O. Box 280
Polkton, NC 28135

Cynthia Bostic, Assistant Director
Support Services
4274 Mail Service Center
Raleigh, NC 27699-4274

June 6, 2012

RE: Your April 11, 2012 letter regarding denial of several issues of Under Lock & Key to Mr. XXX

Dear Ms. Bostic,

Thank you for your response to my letter concerning the above-mentioned problem. I would like to contest two points made in your letter, both of which point to a similar concern.

Issue 1: Claim that Under Lock & Key No. 21 has not been denied in North Carolina

In your letter you state that "Under Locke [sic] & Key Issue # 21 has not been disapproved for inmate XXX or any other inmate in our system as of date." However, according to my records, MIM Distributors is aware of four separate facilities where prisoners' issues of Under Lock & Key No. 21 (July/August 2011) have never been delivered to them. Not Surprisingly, no notification was given to either MIM Distributors or the prisoners.

The facilities in question are Brown Creek Correctional Institution, Scotland Correctional Institution, Alexander Correctional Institution, and Lanesboro Correctional Institution. Notably, Lanesboro and Scotland Correctional Institutions both have histories of illegally censoring materials from MIM Distributors.

Issue 2: Claim that Under Lock & Key No. 22 and No. 23 were not received for Mr. XXX

In your letter you state that "We did not find any record of issue #22 or issue #23 of Under Locke [sic] & Key being received and disapproved for receipt by inmate XXX." Yet, according to my records, Under Lock & Key No. 22 (September/October 2011) was mailed via Presorted Standard mail with the USPS on September 21, 2011, and Under Lock & Key No. 23 (November/December 2011) was mailed with the same service, on November 18, 2011.

Conclusion

Since no notification was given to either the prisoners or MIM Distributors, you are correct that these incidents of censorship would not be recorded in your system. But tell me, then, what happened to them? I suspect you will point a finger at the USPS or MIM Distributors. Yet, MIM Distributors mailed these publications out via Standard Presorted mail with all the rest of them. Considering the culture of eagerness to censor Under Lock & Key amongst North Carolina prison administrators and mailroom staff, we wonder if the issues are not being simply thrown away upon arrival. What safeguards does your administration implement to ensure that mail is not thrown away by mailroom staff?

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

Sincerely,

MIM Distributors


CC: Affected parties

Date: 10/21/11

From: K. Stanback

RE: Disapproved Publication

Your publication/material, Under Lock & Key, Sept/October 2011, is on the Master List of Disapproved Publications list of the Division of Prisons. The publication/material violates Division of Prisons policy at section D.0109 and is disapproved for the reason listed. Please note the pages listed may not be the only pages in the material that violate North Carolina Division of Prisons policy; however, any violation is grounds for disapproval of the entire publication.

This publication appears on the statewide Master List of Disapproved Publications because it was disapproved during the previous twelve (12) months by the Division of Prisons Publication Review Committee. There are no additional appeal rights to this decision.

The publication/material has been disapproved due to the violation of Division of Prisons Policy Chapter D, Section .0109(f), because it contains threats to institutional safety and security including but not limited to materials which depict, describe or advocate or which include:

Reason .0109 I Materials which are used or which appear likely to be used to intimidate or sexually harass facility staff or visitors.
Page Number(s): 4
Reason for Disapproval: Contains information which may intimidate staff.

Assistant Director of Support Services
North Carolina Department of Corrections
Division of Prisons
4260 MSC
Raleigh, NC, 27699-4260
January 24, 2012

RE: censorship of Under Lock & Key issue no. 23 ? prisoner XXX - Scotland Correctional Institution.

1. Background.

We recently received from prisoner XXX, currently held at Scotland Correctional Institution, a ?notice to inmate of a statewide disapproved publication? (attachment #2), with which K. Stanback informs the prisoner that issue no. 22 of our publication titled Under Lock & Key appears on the Master List of Disapproved Publications of the NC Division of Prisons. Therefore, states the notice, the publication is rejected and ?there are no additional appeal rights to this decision?.

We also received a letter from another prisoner held at Scotland Correctional Institution as well (CCC), stating that in the last four months he hasn?t received any issues of Under Lock & Key because the publication has allegedly been put on the Master List of Disapproved Publications.

It is important to note that MIM Distributors has never received from your Division of Prisons any notices or other letters regarding the inclusion of any of its publications in the Master List of Disapproved Publications.

At this juncture, therefore, it is hard for us to understand whether any of our publications is in fact on the list of disapproved publications, which issues are on the list, for what reasons, and since when.

2. The determination is illegitimate and unconstitutional.

The above determination of Ms. Stanback is illegitimate and unconstitutional for many reasons and under several aspects. It violates both principles laid down by the U.S. Supreme Court and rules established in your own policies, namely in policy D.0100 adopted by your Division on 09/24/2010, regulating publications received by prisoners.

As already noted, MIM Distributors has never received any notice about the inclusion of issue no. 22 (or any other issue) in the Master List of Disapproved Publications. As you are responsible to know, section 0107 of your policy D.0100 requires that ?When pursuant to law the Division of Prisons rejects a publication mailed to an inmate, the publisher shall be notified in writing of the reason for rejection and the procedure to follow to appeal the rejection, including the responsibility of the publisher to submit a written appeal.?

If issue no. 22 of Under Lock & Key is actually on the Master List of Disapproved Publications by virtue of a previous decision, that decision (and the new one we?re discussing here) would be illegitimate and unconstitutional because it has never been notified to the publisher. The determination we?re discussing here would be illegitimate as well, as it would entirely rely on a previous illegitimate determination.

In sum, the above rule (section 0107 of policy D 0100) would have been violated twice by Ms. Stanback, who has presumably sent the mentioned notices only to the prisoners.

If issue no. 22 of Under Lock & Key wasn?t on the Master List of Disapproved Publications at the moment Ms. Stanback rejected it for prisoner XXX, then the determination would also be in contradiction with Section .0105 of the same policy, which specifies that ?The Master List does not ban the publication title but only those volumes, issues or editions that have been reviewed and rejected.?

In either case, therefore, the most recent negative determination of Ms. Stanback appears to be illegitimate for it clearly conflicts with the above rules included in your own policies.

3. The NC Division of Prisons Policy D.0100 is unconstitutional as it violates due process rights of prisoners and publishers.

Furthermore, section D.0105 of your policy no. D.0100 is certainly unconstitutional, inasmuch as it does not afford the publisher and the prisoner the right to appeal a negative determination whenever the rejected publication already appears on the Master List of Disapproved Publications.

The U.S. Supreme Court has made it clear 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)).

The right that both the publisher and the prisoner have to appeal negative determinations may not be abridged only because the publication is allegedly on a list of disapproved publications. These 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.

In light of the these considerations, thus, there is very little doubt that decisions that affect publishers? First Amendment rights in the prison context must be accompanied by the typical due process safeguards, i.e. by procedural mechanisms that offer the publisher the opportunity to contest and fight the decision to exclude its materials.

The fact that the rejected publication may appear on a list of previously disapproved publications does not constitute a valid reason to deprive the prisoner and the publisher of the right to appeal the censorship determination. Both the prisoner and the publisher may not have had an opportunity to appeal the previous decision that initially included the publication in the list, just like it happened in the present case. Depriving them of the right to appeal the new censorship determination means nothing less than completely abridging those fundamental due process safeguards whose pivotal role in the prison mail censorship system the Supreme Court has so clearly stated.

It is very clear indeed that every single negative decision made by prison administrators must be accompanied by the above safeguards, regardless of the existence of a previous negative determination regarding the same publication. Even the same prisoner or publisher may have developed new arguments to submit while appealing the decision and therefore they may not be deprived of their right to fight the censorship decision.

4. Establishing a list of disapproved publications is unconstitutional, too.

Your policy D.0100 is also unconstitutional for the very fact that it establishes a list of disapproved publications. The Supreme Court has already struck down similar bans across the country and has flatly stated since 1989 that "Wardens may not reject a publication 'solely because its content is religious, philosophical, political, social[,] sexual, or . . . unpopular or repugnant,' or establish an excluded list of publications, but must review each issue of a subscription separately." Thornburgh v. Abbott, 490 U.S. 401 (1989).

Nor does the temporary nature of the inclusion of a publication in the list exclude its unconstitutionality. What the Supreme Court is trying to avoid is any automatic mechanism by which prison administrators may avoid the obligation to review each publication or issue separately. Here, the inclusion of a publication in the Master List of Disapproved Publications determines precisely the mechanism that the Supreme Court has addressed as illegitimate, as prison administrators may reject the publication (although for a period of 12 months) without reviewing it.

Based on the above considerations, we request that:
1) the censorship determination to include Under Lock & Key no. 23 on the MLDP be reversed;
2) the publication be allowed to the above prisoners;
3) the practice of including publications in the Master List of Disapproved Publication be discontinued;
4) the previously included issues be separately reviewed regardless of the inclusion;
5) your policy D.0100 be amended to accurately reflect United States law.


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

Sincerely,

MIM Distributors

CC: Affected parties

Assistant Director of Support Services
North Carolina Department of Corrections
Division of Prisons
4260 MSC
Raleigh, NC, 27699-4260

February 7, 2012

RE: Censorship incident occurred at Scotland Correctional Institution on October 21, 2011; exclusion of publication sent to prisoner Mr. XXX by MIM Distributors.

Dear Assistant Director,

On January 24, 2012 I wrote to your office regarding the censorship of a publication titled ?Under Lock & Key? issue no. 23 to the above named prisoner at Scotland Correctional Institution. The reason Karen Stanback (Warden/Superintendent/Designee at Scotland CI) gave to Mr. XXX in support of her disapproval of this publication was "Your publication/material, Under Lock & Key, Sept/October 2011, is on the Master List of Disapproved Publications list of the Division of Prisons."

I am writing again on the same matter because some new information has been brought to my attention.

In fact, on January 24, 2012, I had also written to your office regarding the censorship of the very same publication mentioned above to a different prisoner held at Lanesboro Correctional Institute (prisoner YYY).

While I haven?t received any response with regards to the censorship at Scotland CI, Becky Warwick, Administrative Services Manager at Lanesboro CI, in a letter dated January 25, 2012 stated that "This publication is not listed on the Master List of Disapproved Publications listing" in regards to issues 21, 22, and 23 of Under Lock & Key.

In light of this new information, it seems that your staff at different Correctional Institutions has contradicting information regarding the presence of Under Lock & Key issue no. 23 on the Master List of Disapproved Publications. That means either that there are different versions of the list within your Department, or that some of the Wardens or Superintendents are not aware of how to actually read the list and/or update it. In either case, the outcome is the issuance of illegitimate negative determinations, clearly founded on invalid practices in keeping, updating and amending the Master List of Disapproved Publications.

With the present letter, thus, we request:
1) once again that the publication Under Lock & Key issue no. 23 be delivered to the prisoner XXX held at Scotland Correctional Institution;

2) that a copy of the official Master List of Disapproved be sent to us from your Department;

3) that your Department implement best practices to ensure uniformity in keeping, updating and amend the Master List of Disapproved publications in all its facilities.


Sincerely,

MIM Distributors

CC: Becky Warwick
Administrative Services Manager
Lanesboro Correctional Institution
PO Box 280
Polkton, NC, 28135

Karen Stanback
Warden/Superintendent/Designee
Scoltand Correctional Institution
PO Box 1808
 Laurinburg, NC 28353

Affected parties

Cynthia Bostic, Assistant Director
Support Services
4274 Mail Service Center
Raleigh, NC 27699-4274

June 4, 2012

RE: Your April 11, 2012 letter regarding denial of Under Lock & Key No. 22 (September/October 2011) to Mr. XXX

Dear Ms. Bostic,

Thank you for your lengthy and informative responses to the many letters I have sent you recently on behalf of MIM Distributors. Regarding the censorship of Under Lock & Key No. 22 (September/October 2011) to Mr. XXX, I apologize for any confusion in my letter to you. We were in fact referring to issue No. 22, not issue No. 23.

Issue 1: Items placed on MLDP before appeal deadlines expire

You are correct that on October 13, 2011, a letter was dated to MIM Distributors, informing us that issue No. 22 of Under Lock & Key was "disapproved for delivery to the inmate." It is our understanding that denied publications are referred to the Publication Review Committee (PRC). Publications denied by the PRC are automatically placed on the Master List of Disapproved Publications, even when appeal timeframes have not yet expired.

MIM Distributors is a volunteer organization. We do not have the bureaucratic manpower, or the downtime of a prisoner in captivity, necessary to immediately respond to every incident of censorship the moment we are notified. Furthermore, MIM Distributors is not a legal team, and we do not have the funds to consult legal counsel for each incident of censorship. Since censorship of an issue of Under Lock & Key for a full year has an extremely significant impact on our First Amendment rights, as well as those of the prisoners in correspondence with us, we ask that you extend your official timeframe for appeal so that we may perform a thorough investigation into our records, and prepare a substantive argument. There is simply no due process when we are mailed a notification of censorship on October 14, the item is placed on the MLDP on October 21, and must stay there with no appeal rights for one full year.

If the item is placed on the MLDP well before the nominal fifteen day time limit is expired, what is the harm in offering the publisher a longer timeframe to form their appeal? There appears to be no difference administratively dependent on whether an appeal is received from the publisher or not, because it's automatically placed on the MLDP before the appeal timeframe expires. Without explicit policy protections, it is easy for an appeal to be wrongfully denied because "the publication is already on the MLDP," which is what appears to have happened to Mr. XXX.

Issue 2: MLDP undermines appeal rights and due process

Besides the limited timeframes offered for appeal rights, other main problems with North Carolina's appeal process are (1) that it does not offer appeal rights on each incident of censorship and (2) that prisoners are not permitted to make an argument for why their publication should not be denied delivery. We wrote to your office on this issue in a letter dated January 24, 2012. Below I will include an excerpt from that letter for your reference.

The U.S. Supreme Court has made it clear 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)).

The right that both the publisher and the prisoner have to appeal negative determinations may not be abridged only because the publication is allegedly on a list of disapproved publications. These 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.

In light of the these considerations, thus, there is very little doubt that decisions that affect publishers? First Amendment rights in the prison context must be accompanied by the typical due process safeguards, i.e. by procedural mechanisms that offer the publisher the opportunity to contest and fight the decision to exclude its materials.

The fact that the rejected publication may appear on a list of previously disapproved publications does not constitute a valid reason to deprive the prisoner and the publisher of the right to appeal the censorship determination. Both the prisoner and the publisher may not have had an opportunity to appeal the previous decision that initially included the publication in the list, just like it happened in the present case. Depriving them of the right to appeal the new censorship determination means nothing less than completely abridging those fundamental due process safeguards whose pivotal role in the prison mail censorship system the Supreme Court has so clearly stated.

It is very clear indeed that every single negative decision made by prison administrators must be accompanied by the above safeguards, regardless of the existence of a previous negative determination regarding the same publication. Even the same prisoner or publisher may have developed new arguments to submit while appealing the decision and therefore they may not be deprived of their right to fight the censorship decision.

Conclusion

In closing, MIM Distributors would like to offer you the following suggestions for how to improve the Constitutionality of your appeals process regarding censored publications and the First Amendment rights of prisoners and publishers:

(1) Offer appeal rights on each incident of censorship, and do away with the unconstitutional MLDP process.
(2) Allow prisoners to submit arguments with their appeals as to why they believe their publication should not be denied.

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

Sincerely,

MIM Distributors

CC: Affected parties

Assistant Director of Support Services
North Carolina Department of Corrections
Division of Prisons
4260 MSC
Raleigh, NC, 27699-4260

March 13, 2012

RE: Censorship incident occurred at Johnston Correctional Institution ? exclusion of publications sent to prisoner XXX from MIM Distributors.

I am writing this letter about a censorship incident that recently occurred at Johnston Correctional Institution in Smithfield, North Carolina.

MIM Distributors sent the above mentioned prisoner two different issue of a publication titled Under Lock & Key. Precisely MIM Distributors sent Mr. XXX:
➢ Under Lock & Key, issue 22 on 09/21/2011
➢ Under Lock & Key, issue 23 on 11/18/2011

We recently learned from the prisoner (Mr. XXX) that he never received any of the publications listed above. This letter is to inform you that MIM Distributors didn?t receive any notice of censorship determination about these two publications.

Your Division of Prisons Policy D.0100 states at sections D.0103 and D.0107 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.

The same Policy obligates your mailroom staff to come to a determination within 7 days from the arrival of the publication.

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 Mr. McCrae, nor MIM Distributors were notified of the censorship decision.

In refusing to provide notice and an opportunity to be heard to both the prisoner (Mr. McCrae) 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 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.

We also request that adequate notice be provided to the prisoner.

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

Sincerely,

MIM Distributors
P.O. Box 40799
San Francisco, CA 94140

CC: Affected parties

Joseph B. Hall, Administrator
Johnston Correctional Institution
2465 US 70 West
Smithfield NC 27577

Cynthia Bostic, Assistant Director
Support Services
4274 Mail Service Center
Raleigh, NC 27699-4274

June 5, 2012

RE: Your April 12, 2012 letter regarding denial of Under Lock & Key No. 22 (September/October 2011) and No. 23 (November/December 2011)to Mr. XXX

Dear Ms. Bostic,

Thank you for your response to my letter concerning the above-mentioned issue. In your letter from April 12, 2012, you stated that a review was conducted of Under Lock & Key No. 22 and No. 23 even though our appeal deadline had expired. We appreciate that you conducted another review. Nonetheless, we are disappointed that you came to the same determination to censor these publication.

With this letter we would like to request statistics or further information on the frequency of the Publication Review Committee (PRC) to uphold or overturn the initial censorship decision made by prison mailroom staff. The reasons offered by the PRC to allow censorship are so superficial, it is impossible to tell whether a review was conducted at all. In your most recent letter you simply stated "we conducted a review. Resultantly, the Publication Review Committee's disapproval of these two publications is upheld..." Really? What did the review entail?

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

Sincerely,

MIM Distributors


CC: Affected parties

Cynthia Bostic, Assistant Director
Support Services
4260 Mail Service Center
Raleigh, NC 27699-4260

1 September 2012

To Ms. Bostic,

This letter is to request an independent review of two decisions to censor mail sent by MIM Distributors to unnamed prisoners held by the state of North Carolina. One was dated August 23, 2012 and was in regards to Under Lock Key No. 27 (July/August 2012). The second was dated August 24, 2012 and was in regards to an unspecified issue of Under Lock & Key. Though you do not indicate what issue it is, the notice lists pages 1 & 3 as promoting the commission of criminal activities. I can state with certainty that no issue of Under Lock & Key promotes breaking the law and this policy is specified on page 2 of every issue as well.

In light of the incomplete information found in this form I am once again requesting that Fay Lassiter complete the fields in the future to indicate the publication name and issue/date, as well as to indicate pages that violate the rules and the specific reason for disapproval in each case. Please provide this information to me in your response regarding these appeals.


Sincerely,

Cynthia Bostic, Assistant Director
Support Services
4260 Mail Service Center
Raleigh, NC 27699-4260

1 September 2012

To Ms. Bostic,

This letter is to request an independent review of two decisions to censor mail sent by MIM Distributors to unnamed prisoners held by the state of North Carolina. One was dated August 23, 2012 and was in regards to Under Lock Key No. 27 (July/August 2012). The second was dated August 24, 2012 and was in regards to an unspecified issue of Under Lock & Key. Though you do not indicate what issue it is, the notice lists pages 1 & 3 as promoting the commission of criminal activities. I can state with certainty that no issue of Under Lock & Key promotes breaking the law and this policy is specified on page 2 of every issue as well.

In light of the incomplete information found in this form I am once again requesting that Fay Lassiter complete the fields in the future to indicate the publication name and issue/date, as well as to indicate pages that violate the rules and the specific reason for disapproval in each case. Please provide this information to me in your response regarding these appeals.


Sincerely,

Cynthia Bostic, Assistant Director
Support Services
4274 Mail Service Center
Raleigh, NC 27699-4274

21 August 2012

To Ms. Bostic,

This letter is in regards to mail sent to Mr. AAAA XXXX at Marion Correctional Institution, including a letter sent by myself on July 30, 2012. The mail was marked legal mail and certified. It included the letter I sent to you on the same date, which you should have received, as well as some documents of censorship and appeals of the censorship of our mail to Mr. XXXX. The United States Post Office lists this mail as being certified delivered to the addressee. Yet Mr. XXXX informs us that this mail was opened and read by state employees F. Hamilton and Ofc. Curtis counter to the procedures listed in D.0307(f)(1)(A). After reading this mail in front of him, staff took it with them for about 7 hours before returning it to Mr. XXXX. This is a blatant violation of the handling of certified legal mail, and I am requesting that your office investigate these staff members actions and ensure that they do not happen in the future.

It seems that most mail that MIM Distributors sends into Marion CI is being censored. Many items MIM has not received any notification for, nor have the recipients. This inappropriate handling of legal mail seems to be part of this systematic approach to any mail from MIM Distributors address, regardless of content. This reinforces suspicions related to previous censorship where you are unable to provide any substantiating evidence to back up claims that mail from MIM Distributors somehow poses a threat to safety of people living and working in North Carolina prisons. I am requesting that notifications be issued to the addressee and the sender when mail is censored, and that these notifications explain specifically what was objectionable and why.

As I mentioned in my last letter, I don't think we can consider it notification of censorship if you do not complete the forms that you send to MIM Distributors. Previous forms listed no reason for censorship or page numbers that violated rules. A recent notice given to Mr. XXXX does not list the publication name/volume/issue # as instructed, and the page number listed on page 2 of the form is "A." Judging by the date this form was addressing issue 27 of Under Lock & Key, but there is no page "A" in that publication. No notification of this incident has been received by MIM Distributors. So I am requesting that you send us a completed form when you do notify us of this censorship so that we can address your concerns.

In summary I am making the following requests:

1) ensure that your staff follow legal procedures in handling mail from MIM Distributors;
2) ensure that you and your staff fill out forms completely to provide proper notification of censorship;
3) specifically, provide a complete notice of censorship of mail received on 7/31/2012 at Marion CI.

Sincerely,