The First Amendment in Twenty-First Century American Corrections

The First Amendment in Twenty-First Century American Corrections

The other day a friend asked me a question.  The question was, “What does the future of the battle for prisoners’ rights look like?”  To this, I responded that the battleground will most likely revolve around the First Amendment; that we, as prisoner rights advocates, would have to fight for the staples of the freedom of speech.  These staples include newspapers, magazines, and even traditional correspondence.  While not a novel or radical response, it is one which deserves some level of analysis.

From the beginning of American corrections reading materials have been problematic.  In fact, in the penitentiary model, inmates were not allowed to read at all.  This was because they were locked in small solitary confinement cells and instructed to be penitent about their actions.  In fact, even the design of these penitentiaries encouraged such humility, as inmates had to bend down to even enter their cells (because the cell doors were so small).  They were supposed to effectively think about their actions and grow from this thinking process.  Hmm.

As the Quakers jumped into the corrections mix, the Bible was allowed.  This way, there could be spiritual reformation and restoration of the soul.  Mind you, it was only allowed to those rare inmates who could read, and inmates could only read by the light of the window in daylight; there were no lights in the cells, and inmates were never allowed out of their cells.

And as time progressed, inmates were allowed the privileges of congregational eating and work in their cells. Eventually, factory work and congregational recreation too were allowed.  This took many, many years to come about.  Nonetheless, inmate reading materials were substantially restricted.  This is why there was the advent of the penal press.  Prison authorities eventually came to the understanding that inmates should be allowed to read a newspaper, but not a general circulation one, since it could contain news that the prison administration didn’t want inmates to be reading.  As such, prison administrators allowed inmates to produce internal newspapers, containing only authorized news content.

The first attempts at prison education are also very telling about where we’ve come from in American corrections.  While restrictions on reading materials were eventually relaxed and inmates could read not just the Bible but leisure books too, educating inmates was deemed a radical idea.  A dangerous one, too.  In fact, in an early instance, prison guards would stand off to the side of a prison classroom with a loaded cannon.  The fear was that congregational learning could set off the inmates; it could inspire them to violence.  As such, prison staff aimed to be ready to put down the incarcerated students with grapeshot.  While this harsh treatment has gone by the wayside, there is still a readily apparent bias against educating prisoners within the correctional industry.

We’ve progressed a long way since then.  Now, the First Amendment protects inmate’s right to both read and write.  It always should have, but this right wasn’t asserted and affirmed by the courts.  Today, inmates not only have the right to read and be educated, they have the right to speak and write and educate others.  How far we’ve come!

It is now generally understood that the First Amendment guarantees American citizens — regardless of whether they are incarcerated or not — the right to speak their thoughts and the right to listen to what others have to say.  So, the New York Times retains the right to speak (by publishing their newspaper and sending it to me), and I retain the right to listen (by reading their newspaper).  The same is true the other way around.  I have the right to write articles and submit them to the New York Times (for them to listen to my speech, and, perhaps, share my speech with others).  The same is true of speaking to the Prison Law Blog and  I have a right to speak, and other parties have a right to listen.  This much is guaranteed by the First Amendment, even if I happen to be incarcerated in a federal prison.

The problem in modern corrections is that the gains in the assertion of inmate’s First Amendment rights from the past several decades are eroding.  Prison systems which once allowed almost unfettered access to commercial and private publications are now restricting these rights.  It hasn’t come to prison systems banning all correspondence — although the Federal Bureau of Prisons can do so via the utilization of Special Administrative Measures (SAMs) — but banning components of it or certain kinds of it, like sexually suggestive or explicit materials or other content deemed objectionable.

Further, some prison and jail systems are restricting inmates to only receiving postcards, or letters written on blank postcards.  Others are enforcing an enclosure limit where only 6 or 8 pieces of paper are allowed to be enclosed in any one envelope.  Prison systems that employ such restrictive measures claim that this is necessary to maintain the security and good order of the institution since they can read every postcard (or limited correspondence), whereas they couldn’t possibly read every letter otherwise, citing budget and manpower concerns as reasons.  While some of these regulations and policies have withstood judicial review, others have not.  In fact, the noted prisoners’ rights publication, Prison Legal News, is currently engaged in litigation concerning these postcard restrictions.

The Federal Bureau of Prisons even has some limits on the amount of inbound correspondence to inmates, albeit a fairly liberal one.  Inmates can only receive envelopes containing less than 16 ounces of materials without authorization, which is all but categorically not issued.  Books and magazines do not count against such restrictions, but paper manuscripts are.  Inmates incarcerated in the Federal Bureau of Prisons can only receive 5 books and 5 magazines in any single envelope.

Perhaps recent sex offender correspondence restrictions are the best indicator of where American corrections are heading, as it concerns inmate’s First Amendment rights to freedom of speech and freedom of the press.  Some prison systems have created special prisons or units within prisons where sex offenders are housed.  Inmates housed in these units or prisons are restricted from receiving any magazines at all, regardless of content, barred from certain books deemed sexually explicit or featuring minors, and certain categories of content (e.g., any photos of men, women, or children in bathing suits), which is allowable to those in the general population.  These policies are disconcerting since they can so easily be adapted to those in the general population.  Indeed, they are alarming for the single fact that they are currently being employed in the sex offender units.  After all, with the erosion of the rights of any one segment of American society comes the eventual erosion of all of our rights.  The sex offender registries are a good indicator of this in that there are now violent offender registries, methamphetamine registries, and others certain to pop up in years to come.

The first step in protecting the First Amendment rights of prisoners is to agree to stand up for all prisoners; division only harms the group as a whole.  The second step is to become aware of the problems which are to come.  In order to forecast what is to come for the average American or average prisoner, we need only look at what is currently being tested on the fringe groups.  Lastly, after unity and understanding are present, we must form a united front against such intrusions.  This is done through a concerted effort, which should include publications (articles, books, blogs, etc.), community and legislative outreach, and a real commitment on the part of all of those who agitate for the rights of the incarcerated, along with the incarcerated themselves.

For those individuals and groups interested in engaging in such an initiative, the Prison Law Blog is more than willing to be the platform for such an effort to spring from.  Feel free to send your thoughts, relate your experiences, and submit copies of memorandums or other official paperwork which might promote the rights of prisoners.

Editorial Note

Prison Law Blog is plugged into the inner happenings at a number of prisons, but not all.  Therefore, article submissions are encouraged as they help to foster a sense of community by allowing multiple voices to contribute to the discussion.