Tracking Prison Censorship in the United States

DAI Deputy Director
Department of Corrections
2729 Plaza Drive
Jefferson City, MO 65109

February 10, 2015

RE: Censorship of Under Lock & Key No. 41 (Nov/Dec 2014)

Dear DAI Deputy Director,

On January 16, 2015 we were sent a letter from Omer Clark, Warden of Operations at Southeast Correctional Center. This letter was dated January 9, 2015, and a copy is enclosed. The letter was to notify MIM Distributors of the censorship of the above named publication to several prisoners held at Southeast Correctional Center.

The reason cited for this censorship is ?Pg. 3-5 promotes anarchy.? With this letter I have also enclosed pages 3-5 of the above named publication for your reference.

I am sure you are familiar with the relevant case law on this topic. As stated in Thornburgh v. Abbott, 490 U.S. 401:

"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."

Additionally, in Procunier v. Martinez, 416, U.S. 396 (1974) and in Thornburgh v. Abbott, 490, U.S. at 416 n. 14 (1989), that prison officials violate the First Amendment when for reasons unrelated to legitimate penological interests they engage in ?censorship of . . . expression of ?inflammatory political, racial, religious or other views?.

Furthermore, the motivation alleged to support the censorship determination seems to be too vague and not sufficiently articulate to satisfy the threshold of adequate motivation established by the U.S. Supreme Court. Federal Courts have stated in several occasions that "Prison authorities cannot rely on general or conclusory assertions to support their policies." Walker v. Sumner (9th Cir. 1990) 917 F.2d 382, 385 and that "Unsupported security claims couldn't justify infringement on First Amendment rights." Crofton v. Roe (9th Cir. 1999) 170 F.3d 957

With the present letter MIM Distributors would like to:
(1) appeal the negative determination to censor the above-named publication; and
(2) request the decision be reversed and the publication be delivered to the intended recipients as soon as possible.

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

Sincerely,


MIM Distributors


CC: Affected parties

Your February 10, 2015 appeal was received of the Department of Correction's decision to censor Issue #41 of Under Lock & Key. After reviewing your appeal and the censored material, I support your appeal. I will advise the facilities that Issue #41 of Under Lock & Key will not be censored and thus should be given to the offenders.

Dave Dormire, Director

I wrote the Mail Room and asked them about the November/December issue of ULK and they claim one never arrived with my name on it. It wasn't censored or seized because my comrade received his copy.

IS REJECTED and may not be received by inmates...

REJECTION of the publication due to subject matter

(3)(a) It depicts or describes procedures for the construction of or use of weapons, ammunitions, bombs, chemical agents, or incendiary devices.

(3)(f) It encourates or instructs in the commission of criminal activity.

(3)(j) It depicts nudity in such a way as to create the appearance that sexual conduct is imminent, i.e. the display of contact or intended contact with a person's unclothed genitals, pubic area, buttocks or female breasts orally, digitally or by foreign object, or display of sexual organs in an aroused state.

(3)(m) It otherwise presents a threat to the security, good order, or discipline of the correctional system or the safety of any person.

Authorized Employee: D. Locke/TJO

IS REJECTED and may not be received by inmates...

REJECTION of the publication due to subject matter

(3)(a) It depicts or describes procedures for the construction of or use of weapons, ammunitions, bombs, chemical agents, or incendiary devices.

(3)(f) It encourates or instructs in the commission of criminal activity.

(3)(j) It depicts nudity in such a way as to create the appearance that sexual conduct is imminent, i.e. the display of contact or intended contact with a person's unclothed genitals, pubic area, buttocks or female breasts orally, digitally or by foreign object, or display of sexual organs in an aroused state.

(3)(m) It otherwise presents a threat to the security, good order, or discipline of the correctional system or the safety of any person.

Authorized Employee: D. Locke/TJO

Reason(s): Material that ... support the illegal activities of a security threat group contrary to the security interests of the facility or the individual rehabilitative goals of the recipient...

Material which poses a potential threat to the safety and security of the offender population or DOC employees, contract workers, and volunteers by advocating facility disruption or noncompliance with prison rules or regulations.

Disposition
Sent to reading committee

Reason:
Publication teaches or advocates violence and presents a clear and present danger to institutional security.

Warden
Smith State Prison
PO Box 726
Glennville, GA 30427-0726

February 10, 2015

RE: Illegal censorship of letter to Mr. zzz at Smith State Prison

Dear Warden,

In December 2014, MIM Distributors sent the above named prisoner two articles of mail which were never delivered to him. These items were not returned to MIM Distributors, and neither MIM Distributors nor the intended recipient (prisoner) received notifications regarding the censorship of these items. Below is a list of the items in question, the dates they were sent, and the way in which they were mailed to Mr. zzz.

12/10/2014 Under Lock & Key No. 41 (Nov/Dec 2014) via USPS Standard Mail
12/26/2014 personalized letters via USPS First Class Mail including:
Second introductory letter about MIM(Prisons)
Tips for writing articles for Under Lock & Key
Campaign updates about the grievance process, and the Tier II Step-down program

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.

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.

Sincerely,

MIM Distributors


CC: Affected parties

Superintendent Clare Sullivan
Spring Creek Correctional Center
3600 Bette Cato
Seward, Alaska 99664

February 10, 2015

RE: Illegal censorship of mail to xxx at Spring Creek Correctional Center

Dear Superintendent Sullivan,

From 2012 through 2014, several items were sent to the above named prisoner at Spring Creek Correctional Center. The prisoner never received them, was never given notice of censorship of these items, and MIM Distributors was never notified. Below is a list of items that were sent, the date they were sent, and the method with which they were mailed.

12/20/2014 Under Lock & Key No. 41 (Nov/Dec 2014) via USPS Standard Mail
10/2/2012 Under Lock & Key No. 28 (Sept/Oct 2012) via USPS Standard Mail
7/27/2012 Under Lock & Key No. 27 (July/Aug 2012) via USPS Standard Mail
7/27/2012 MIM Theory 13: Revolutionary Culture magazine via USPS Standard Mail (MIM Theory 13 and ULK 27 were mailed together in a single envelope)
6/1/2012 Under Lock & Key No. 26 (May/June 2012) via USPS Standard Mail
3/30/3012 Under Lock & Key No. 25 (March/April 2012) via USPS Standard Mail
3/30/2012 MIM Theory 11: Amerikkkan Prisons on Trial magazine via USPS Standard Mail (MIM Theory 11 and ULK 25 mailed together in a single envelope)

According to your Department's Policies and Procedures 810.03 Prisoner Mail, Publications and Packages, Procedure F. Disposition of Prohibited Material, 3. Non-Delivery of Mail, the prisoner is supposed to be notified within two working days the specific reasons why the mail was not delivered to the prisoner. Can you please provide us with copies of these notices? To our knowledge, Mr. xxx was never notified that the mail we sent him was non-delivered.

Under Procedure H. Publications, 4. Withholding a Publication, it states ?a. Staff shall give the prisoner written notice within 30 days when withholding a publication from a prisoner. The notice must include:
(1) The reason for withholding the publication; and
(2) A statement that the prisoner may challenge the decision by filing a grievance within 15 days.?
Again, to our knowledge, Mr. xxx was never notified of the withholding of the above listed publications.

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.

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.

I look forward to your response.

Sincerely,


MIM Distributors


CC: Affected parties