Battling Censorship Behind Bars

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William Hotz/Baltimore Sun

How Prisons and Jails Are Barring Inmates’ Access to Legal News, Literature, and Letters

In November 2008, a mail-order book addressed to Lou Johnson arrived at the Hilltop Unit, a state prison for women located in Gatesville, central Texas. Written by investigative journalist Silja Talvi, the book was titled Women Behind Bars: The Crisis of Women in the U.S. Prison System, and chronicled the past decades’ sweeping upsurge in female incarceration as told through the stories of prisoners across the country. Talvi’s interviews cast light on the common threads of trauma and abuse these women shared, the increase in nonviolent drug charges that put them behind bars, and the troubling conditions they found inside.

Johnson, one of the women interviewed for the project, described the harsh and humiliating circumstances she endured at the Texas Department of Criminal Justice (TDCJ) facility. Denied adequate medical care, refused meals for minor infractions such as talking in line, and forced to clean pipe chases “covered with fecal material” without gloves, Johnson summed up her experience as “cruel and unusual punishment.”

But Johnson was barred from reading her own account in print, as well as from accessing the testimonies of the one hundred other female prisoners interviewed for Women Behind Bars. By the time her copy arrived at the Hilltop Unit mailroom, the book had already been censored at another TDCJ facility. Johnson received a form explaining that an offending passage on page 38 depicted “sex with a minor,” therefore the publication as a whole was “detrimental to offenders’ rehabilitation” because it would encourage “deviant criminal behavior.” She attempted to appeal the decision to no avail; having never received the book to review the contents of page 38, she was in no position to present a compelling rebuttal.

“Prison walls do not form a barrier separating prison inmates from the protections of the Constitution,” the U.S. Supreme Court found in its 1987 Turner v. Safley decision. While inmates are not entitled to full First Amendment rights, any encroachment on their freedom of speech must be “reasonably related to legitimate penological objectives.”

While both publishers and prisoners have standing to challenge prison censorship policies that restrict opportunities to send and receive literature, in practice publishers are far better equipped—they are free from the legal restrictions that bind the incarcerated, and can actually access the material in question. But commercial magazines and booksellers rarely act upon notice that the material they’ve mailed has been seized or withheld; prison inmates don’t represent a sufficiently marketable demographic.

Women Behind Bars, however, was distributed by Prison Legal News (PLN), which, as the only national publication whose majority of contributors and subscribers are state and federal prisoners, is deeply invested in combating prison censorship. “That’s our core constituency,” says editor Paul Wright. Wright founded the magazine in 1990 while serving out a sentence for first-degree murder in Washington State. As a twenty-one-year-old military policeman, Wright was broke and a week away from completing his service when he tried to rob a cocaine dealer who turned out to have a gun. Wright panicked and shot first, and was sentenced to twenty-five years.

In prison, he worked as a book fetcher at the facility’s law library, and grew interested in prison conditions litigation. With fellow inmate Ed Mead, he began PLN as a ten-page hand-typed newsletter with a readership of just seventy-five aimed at raising political consciousness and informing prisoners of their rights. The censorship was immediate. In 1991, Wright reported on pervasive racism at Washington’s Clallam Bay Corrections Center, and a specific incident in which a group of white guards brutalized a black inmate. Prison authorities redacted the incriminating sections for circulation inside Clallam Bay, and when they found out that PLN had been distributed to subscribers outside of the facility, subjected Wright to three weeks of solitary confinement.

Wright, who was released in 2003 after serving seventeen years of his twenty-five year sentence, says that over the past few decades, censorship practices in prisons and jails have grown startlingly worse. PLN—which now has 7,000 print subscribers in all fifty states, with reader surveys indicating that each issue is passed around to ten different inmates—has faced blanket censorship in over ten state prisons systems, and countless bans in local jails across the country. The magazine was impelled to establish the Human Rights Defense Center, a legal nonprofit dedicated to protecting subscribers’ right to read. It also launched a book publishing operation to distribute titles that, despite limited commercial appeal, are vital to incarcerated populations, such as Prisoners’ Self Help Litigation Manual, Hepatitis and Liver Disease: What You Need to Know, and Beyond Bars: Rejoining Society After Prison. Which brings us back to Texas.

Page 38 of Women Behind Bars, it turned out, described the childhood ordeals faced by Tina Thomas, a neurologist and professor in a teaching college who battled drug addiction late in her career:

          What is even more remarkable about Thomas is that she had overcome the kind
          of childhood trauma that might have completely derailed her adult life. It might
          have been precisely that background that first propelled her to become an
          overachiever and attain a high level of professional success, but then came back
          to haunt her just as she had gotten to where she wanted to go. The dark secret of
          her life was that she had been forced to perform fellatio on her uncle when she
          was just four years old. Thomas explains that this unresolved trauma became “the
          template for a lifetime of distrust, fear, uncertainty, and a spirit of self-negation.”

“Fellatio” was the word flagged by TDCJ as depicting “sex with a minor.” Despite the fact that the controversial passage was more likely to prevail upon readers who had endured similar traumas that theirs was not a solitary struggle, Women Behind Bars was withheld from Texas prisoners for its purported encouragement of “deviant criminal behavior.”

In 2009, PLN filed a lawsuit against TDCJ for censoring Women Behind Bars, as well as additional incarceration-related books it had attempted to send to prisoners in Texas. The complaint alleged what amounted to pretextual censorship: the statewide system—the largest in the country—was using cherry-picked words or phrases as grounds to ban entire books, many of which were literary classics, award-winners, or collections of artwork. Even more unsettling was the department’s widespread censorship of works discussing civil rights issues, and works critical of prison conditions or corruption. In the course of litigation TDCJ’s banned books list finally surfaced; it included nearly 12,000 volumes.

On its face, the prison system’s policy set off few alarms. The policy called for banning books containing contraband; instructions for the manufacture of explosives, weapons, or drugs; suggestions for escape schemes; sexually explicit images; material designed to provoke strikes, gang violence, or rioting; and subject matter encouraging deviant criminal sexual behavior.

These rules were twisted, however, to lift passages or images out of context, and once one facility banned a text, it was prohibited on a statewide scale. Each book was allowed only one appeal (often undertaken by inmates in the same Catch-22 scenario as Johnson) before being permanently censored.

As noted by the Texas Civil Rights Project, the majority of banned books fell into the two most nebulous threat categories: promoting deviant sexual behavior, and inciting disorder through strikes, gang violence, or riots. Wide tracts of literature grappling with challenging themes like race, sex, and poverty were denied at the discretion of prison authorities, with no clear link to penological objectives. Books by Pulitzer Prize-winning authors like Jeffrey Eugenides, Sinclair Lewis, Norman Mailer, Annie Proulx, Philip Roth, Art Spiegelman, Wallace Stegner, John Updike, Robert Penn Warren, and Alice Walker were deemed unfit. The Color Purple, for example, was banned for its opening scene of sexual abuse—Celie’s ensuing struggle for empowerment amid racism and patriarchy were of no value according to TDCJ’s mailroom inspectors.

Some denials were so absurd they barely merit mention (the Renaissance painting depicting a naked Cupid on the cover of Shakespeare and Love Sonnets as “sexually explicit,” for instance). But broad trends were evident. Racial slurs, in allegedly threatening to ignite antagonisms, were identified as an easy premise for censorship, never mind the historical context in which they were cited. Kevin Boyle’s Arc of Justice: A Saga of Race, Civil Rights, and Murder in the Jazz Age—which traces the trial of Ossian Sweet and residential segregation in 1925 Detroit—was censored because of slurs attributed to members of a white mob: “‘There goes some niggers now,’ came the cries. ‘Lynch them! Kill them!’ A gang of white men surged toward the car…” Far from inciting violence, Boyle’s account gives insight into one of the century’s great civil rights campaigns, and was a recipient of the National Book Award for Nonfiction and the Simon Wiesenthal Center’s Tolerance Book Award.

Even in explicitly anti-racist frames of reference, like a segment on freedom of expression from Chomsky on Anarchism, the inclusion of derogatory language led to the work to be condemned:

          “[V]ictories for freedom of speech are often won in defense of the most depraved
          and horrendous views. The 1969 Supreme Court decision was in defense of the Ku
          Klux Klan from prosecution after meeting with hooded figures, guns, and a burning
          cross, calling for ‘burying the nigger,’ and ‘sending the Jews back to Israel.’ With
          regard to freedom of speech there are basically two positions: you defend it vigorously
          for views you hate, or you reject it.”

Chomsky was censored for using racist language to prove a point, denouncing the “depraved and horrendous views” associated with it, while publications like Mein Kampf and The Aryan Youth Primer: Official Handbook for Schooling the Hitler Youth were somehow accepted by TDCJ without challenge.

Books incriminating prison institutions were overwhelmingly censored for mentioning rape, despite the topic’s critical relevance. Prison Masculinities, a collection of essays edited by prison mental health experts, was banned for its candid discussion of sexual assault and violence behind bars. The Perpetual Prisoner Machine, a look into the profit motives driving mass incarceration, was barred for quoting a 1968 report from the Philadelphia District Attorney’s Office on the problem’s prevalence in local jails. Even self-help and rehabilitative titles about the prevention of violent sexual behavior, like Stopping Rape: A Challenge for Men, and Conspiracy of Silence: The Trauma of Incest, were prohibited by TDCJ.

“Prison authorities like docile, uninformed masses of people because they’re easier to control and dominate,” says Wright. “You can’t divorce the issue of prison censorship from prison education. These policy choices ensure that prisoners, the majority of whom have very low literacy levels, are going to remain that way.” According to the Department of Education, “incarcerated adults have among the lowest academic skill levels and highest disability and illiteracy rates of any segment of our society.” Multiple studies have demonstrated that educational programming improves prison safety and reduces recidivism rates by providing problem-solving skills and minimizing tensions inside facilities, while preparing inmates for employment and community reintegration upon release. A 2004 study published in the Journal of Correctional Education collected a decade’s worth of research on post-secondary correctional education (PSCE), finding that “inmates who participated in PSCE recidivated 22 percent of the time and those not participating in PSCE had a recidivism rate of 41 percent.”

Although the number of Americans in state and federal prison systems has quintupled since 1980, funding for education behind bars has declined dramatically. President Clinton’s legislation designating anyone incarcerated in federal or state correctional facilities ineligible to receive Pell Grants in 1994 was the “death knell of higher education for prisoners,” says David Fathi, director of the ACLU’s National Prison Project. With responsibility for correctional education transferred to states now mired in budgetary crises, prisoners’ ability to self-educate becomes all the more essential. But in Texas, book denials continue to increase as inmate populations level off, and in states across the country, censorship in prisons and jails has outpaced growth.

In June 2012, a judge for the 5th U.S. Circuit Court of Appeals found that TDCJ’s censorship policies did not violate PLN’s First Amendment rights to distribute books critical of the prison system to Texas inmates. While Women Behind Bars was eventually taken off the banned books list in the course of the lawsuit, 12,000 titles remain. While acknowledging the disparity between TDCJ’s policy and practice, Judge Edith Brown Clement showed deference to prison administrators, contending that the role of the federal courts is not to “sit as permanent appeals councils reviewing every individual censorship decision made by state corrections institutions.” But according to Wright, because “the legislative and executive branches are paralyzed when it comes to criminal justice issues, we’re left with piecemeal litigation as our only mode to address this, subject to the whims and mercy of the court.” He adds, “There’s not going to be any meaningful challenge of the books that have been censored.”

While PLN has achieved major victories—the magazine has obtained consent decrees in nine states compelling prisons to deliver to subscribers—the decentralized structure of our penal system means the campaign is never-ending. In Michigan, Georgia, and Arizona county jails, PLN is currently challenging “postcard policies,” a draconian new trend that limits incoming and outgoing mail to what can fit on a postcard. Not only are postcards more expensive than letters sent in envelopes, but they stifle correspondence between incarcerated people and their families and communities by airing in plain sight content that might be medical, financial, or personal. Such restrictions strain social ties that have proven pivotal in successful reentry. According to PLN managing editor Alex Friedmann, postcard policies are “just another way for facilities to reduce communication, and thus criticism.” Because jails—where those pending trial or serving shorter sentences are usually held—are local operations outside the scope of the state system, they tend to display the most egregious cases of censorship (with the ACLU, PLN recently won a case against a South Carolina jail that outlawed all reading material outside of the Bible). Without centralized policy to dispute, PLN must litigate on a case-by-case basis.

PLN is also currently up against the Florida Department of Corrections (FDOC), which censors the magazine on the basis of its advertising content—PLN carries ads for pen-pal programs and discount telephone services that the FDOC does not allow. Claiming a nexus between censoring PLN and preventing services that the magazine advertises for but does not actually provide, the FDOC has asserted a threat to prison security. “They’re completely relieved of any evidentiary burden,” Wright notes. “You say this is going to happen, but where’s the evidence?”

As with book banning in Texas, Friedmann contends it’s a pretext: “They don’t like our content regarding misconduct and corruption by prison officials.” He points out that ads are incidental to the content of the magazine itself, and that other publications advertise prohibited material without any problem, like TIME, which runs ads for cigarettes. It’s true that PLN’s coverage of the FDOC has been uncompromising. In 1999, the magazine reported on Frank Valdez, an outspoken inmate who allegedly contacted the media about abuses at Florida State Prison (FSP) under then warden James Crosby. Valdez was found stomped to death inside his cell. The guards charged in Valdez’s death were bafflingly acquitted by a jury in a North Florida town where FSP was a leading employer, despite evidence of their boot prints on his back. PLN covered Florida’s negligent treatment of mentally ill prisoners, and published a series tracking a corruption scandal that erupted in 2006, involving guards dealing steroids, sexual assault, and the sentencing of Crosby—who by that point had been promoted to FDOC Secretary—to eight years for accepting bribes. “These are things PLN has done a pretty good job of reporting on over the years,” Wright explains. “None of which have ingratiated us to prison officials.” A trial is scheduled for August.

Wright sees the censorship plaguing prisons not as an isolated trend, but rather as representative of the increasing encroachment of the American police state. He lists changes he’s observed on the outside since his reentry in 2003: the aggressive prosecution of whistleblowers, retaliatory arrests for videotaping police officers, even increases in Google takedown requests issued by government agencies. “I think this is part of a greater silencing,” he explains, “but with prisoners it’s a bit more pronounced because they’re a more vulnerable population.” Indeed, it’s difficult to determine what legitimate penological objectives are advanced by restricting prisoners—95 percent of whom will eventually be released into their communities—from accessing literature, staying apprised of their rights, communicating with their families, and resisting alienation through journals like PLN.