23 New Restrictions on Prisoners’ First Amendment Rights

by Project Censored

On November 1, 2017, the Michigan Department of Corrections (MDOC) implemented strict changes to its prison mail policy that discouraged inmates, their families, and friends from using the US Postal Service. Officially the policy aimed to stop the flow of contraband, including controlled substances, into state prisons. However, as Rand Gould reported for the San Francisco Bay View, the policy will actually “stop prisoners, their families and friends from sending mail via the U.S. Postal Service (USPS) and force them into buying email ‘stamps’ from JPay,” allowing JPay and the MDOC to “rake in profits” and closely monitor all mail.

JPay is a private company, based in Florida, that provides money transfer, email, and video visitation services for prisoners and their families. According to a 2012 Bloomberg report, it services more than one million prisoners in at least 35 states. As the Bay View reported, JPay is a subsidiary of Securus, the second-largest prison phone company in the United States.

Some of the new MDOC restrictions on incoming mail include mail being rejected if it is not in a white envelope, has any stain, sticker, or label on it, or is not addressed in blue or black ink or graphite pencil. Sending and receiving mail via USPS is a US citizen’s right, as the freedom of speech and press is protected by the First Amendment, Gould wrote, but for Michigan inmates use of that service will now be tightly controlled and possibly phased out by the MDOC. Further, critics speculate that the new policy is the first step on a slippery slope that will lead to the shutdown of prison mail rooms, forcing inmates to use the JPay system exclusively. As it stands, the new policies effectively restrict inmates’ access to newspapers, magazines, and possibly court mailings, as Efren Paredes Jr. reported in an August 2017 article for the Voice of Detroit.

The new changes come disguised as an effort to curb contraband being smuggled into prisons, although there is little evidence or research to support the recent restrictions as effective measures. Meanwhile, little is done to stop what studies have shown to be significant contraband avenues: Data suggests prison employees are responsible for more than 80 percent of prison contraband traffic. Furthermore, discrepancies identified in the new policy hint at a blatant disregard for consistent lawmaking—for example, inmates’ own funds (provided by friends and family) will be used to repackage all incoming envelopes, even ones which meet MDOC’s criteria.

Meanwhile, in correctional facilities across the country, prison officials have banned thousands of books—including Michelle Alexander’s bestselling book, The New Jim Crow, on the endemic racial bias of US prison systems. As Jon Swaine reported for the Guardian, through a public records request, the American Civil Liberties Union (ACLU) obtained a list of books banned in several New Jersey prisons. Those records led the ACLU to call for lifting the book ban because it violates inmates’ rights under the First Amendment. In response to the ACLU’s campaign, officials in New Jersey and North Carolina lifted bans; however, Texas, Pennsylvania, and Florida prisons have persisted in restricting inmates’ access to numerous books.

The press secretary for the Pennsylvania Department of Corrections told Thu-Huong Ha at Quartz that the bans are intended to “ensure the safety, security and rehabilitation requirements inherent in the operation of a prison.” That rationale might seem questionable if the books that are allowed to remain in prisons under the recent restrictions are considered; they include Adolf Hitler’s autobiography, Mein Kampf, and two titles by former Ku Klux Klan leader David Duke, as another Guardian article on the ban, by Edward Helmore, reported.

Banning The New Jim Crow is illustrative of precisely what Michelle Alexander’s book on mass incarceration and “colorblindness” addressed: The contemporary criminal justice system is a modern-day version of past Jim Crow laws, which mandated racial segregation in all public facilities until 1965. As Alexander wrote, “As a criminal, you have scarcely more rights, and arguably less respect, than a black man living in Alabama at the height of Jim Crow. We have not ended racial caste in America; we have merely redesigned it” [Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (New York: The New Press, 2010/2012) p. 2.] 

In the case of prison officials banning particular books, the information in the books appears to be perceived as threatening to official power, as information obtained by inmates may lead to challenges to the very systems that oppress and incarcerate them.

During 2017–2018, the New York TimesSlate, and NBC News all reported that the book bans in prisons are unconstitutional, yet their coverage was minimal. Without the ACLU’s efforts, first to obtain records of prisons’ banned books lists and then to publicize those bans as unconstitutional, it seems unlikely that any establishment news outlets would have covered this topic.

Rand Gould, “New Mail Policy in Michigan Prisons: Billionaires Profit at the Expense of Prisoners, Their Families and Friends, and U.S. Postal Service,” San Francisco Bay View, January 2, 2018, http://sfbayview.com/2018/01/new-mail-policy-in-michigan-prisons-billionaires-profit-at-the-expense-of-prisoners-their-families-and-friends-and-u-s-postal-service/.

Efren Paredes Jr., “MDOC Implements Strict New Prisoner Mail Policy Changes,” Voice of Detroit, August 23, 2017, http://voiceofdetroit.net/2017/08/23/mdoc-implements-strict-new-prisoner-mail-policy-changes/.

Jon Swaine, “Acclaimed Book The New Jim Crow Banned in Some New Jersey Prisons,” The Guardian, January 8, 2018, https://www.theguardian.com/us-news/2018/jan/08/new-jim-crow-banned-new-jersey-prisons.

Thu-Huong Ha, “Exactly What Gets a Book Banned from Prisons, in One US State’s Spreadsheet,” Quartz, January 17, 2018, https://qz.com/1176515/exactly-what-gets-a-book-banned-from-prisons-in-one-us-states-spreadsheet/.

Edward Helmore, “Texas Prison Ban The Color Purple and Monty Python—But Mein Kampf is Fine,” The Guardian, December 2, 2017, https://www.theguardian.com/us-news/2017/dec/02/texas-prisons-ban-books-mein-kampf-color-purple.

Shaun King, “ACLU Says New Jersey Prisons’ Banning of ‘The New Jim Crow’ is Unconstitutional,” The Intercept, January 8, 2018, https://theintercept.com/2018/01/08/new-jim-crow-ban-prisons-nj-new-jersey-aclu/.

Student Researchers: Courtney Hale (College of Western Idaho) and Anabel Sosa (University of Vermont)

Faculty Evaluators: Michelle Mahoney (College of Western Idaho) and Rob Williams (University of Vermont)

Review Article with Credder

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