Last year, Jeff Fogel, an attorney who was working on a prison First Amendment case, e-mailed to tell me I was too hot for the Virginia Department of Corrections. An article I had written on states experimenting with creative ways to reduce their prison population had failed to make it past the department's Publications Review Board.
At first, I thought I was pretty badass -- it's not often that political journalists in the United States can say that their work is so subversive as to be censored. Then I discovered it wasn't my words that prompted the censorship -- it was a photo accompanying the story that showed a group of inmates at a prison in Chino, California. Virginia's prison censors recognized a tattoo on one of the men as a gang symbol and therefore deemed the issue unsuitable for distribution.
Legal precedents give prison administrators wide berth to ban publications in the interests of security. Of Virginia's banned titles, few seem dangerous. Understandably, the Corrections Department barred books on martial arts and computer hacking but did so alongside classics like The Autobiography of Malcolm X, current-events nonfiction titles like Wars of the World by conservative British historian Niall Ferguson, and a novel by mystery writer Walter Mosely. Erotic fiction was banned under a seemingly arbitrary rule that nevertheless allows the inmates to possess nude photographs -- as long as they are of people of the opposite sex. Worse, at times the prison censors seemed to be deliberately attempting to prevent inmates from accessing legal information, prohibiting publications such as Prison Legal News and The Jailhouse Lawyer's Handbook, both of which help the incarcerated muddle through our labyrinthine legal system.
Politics and the courts have converged to offer inmates ever fewer sources of information and avenues for redress, even as the prison population explodes. The restricted publications themselves can mount the strongest cases against censorship, but struggling print media have been reluctant to intervene. My search to figure out why I was banned gave me a fascinating glimpse into the prison censorship process -- and which publications are not concerned with fighting back.
To hear John Baylor tell it, most censorship boils down to safety and security. Baylor, 56, spent 27 years working as a corrections officer in several Virginia prisons before joining the state chapter of the National Association of Public Safety Officers. He says being a prison guard was a perilous, often thankless job. As public employees, corrections workers face a combination of stress, low pay, and budget cuts, Baylor says, which makes prisons a dangerous work environment.
"From day to day, you don't know if you're going to come home or not," Baylor says. "Many people get into this business, and they quickly learn they are not cut out for corrections -- it's a difficult job."
Corrections employees like Baylor see censorship as a necessity. An issue of Popular Mechanics that focused on high-tech security systems, for example, could lead to a daring escape. "Inmates plan things, and when they plan things, they tend to be patient in their planning," Baylor explains. "They're not in a rush. Some of these guys can sit down for months and years putting together plans."
Virginia's Department of Corrections learned that lesson in 1984, when, after two years of planning, seven death-row inmates escaped from the Mecklenburg Correctional Center. The inmates had developed an elaborate system for smuggling contraband into the prison, but it wasn't merely careful planning that led to the escape -- it was incompetence on the part of the prison administrators, who had dismissed warnings from other prisoners about the plot.
The inmates were all eventually captured and executed. But the escape happened at the dawn of an era in which Republicans and Democrats competed over who could endorse the most draconian tough-on-crime policies. Even though in 1984 Virginia was experiencing its lowest level of escapes in 11 years, the fact that death-row inmates managed to break out of what was touted as an impregnable facility fueled the broader ideological and political trends -- and helped motivate further crackdowns on prisoners' rights.
Prisoners don't have absolute First Amendment rights, but that doesn't mean they have no rights at all. In 1987, Supreme Court Justice Sandra Day O'Connor wrote in her majority opinion in Turner v. Safley that "prison walls do not form a barrier separating prison inmates from the protections of the Constitution." Yet the court went on to grant prison administrators broad authority to do just that, as long as there is a "valid, rational connection between the prison regulation and the legitimate governmental interest put forward to justify it." The standard gives administrators a lot of deference in making decisions that are related to security, because the regulation need not actually be effective, merely "rational" from the point of view of the warden.
"Broad criteria are very frowned upon in First Amendment area," Fogel explains. "But that really shifts completely when it comes to prisoners." The Mecklenburg escapees' meticulous planning represents a nightmare scenario for authorities -- imagine what some inmates could do with access to manuals on how to manufacture biodiesel or books on locksmithing, both of which are on Virginia's banned publications list.
William R. Couch is the kind of inmate guards might be worried about. In the late 1980s, he worked as a repairman for Sears, and his house calls doubled as a way to scope out potential rape victims. In 1992, he pleaded guilty to raping three women after visiting their homes. The prosecutor described him "as close to a professional rapist as you can get," and the judge who sentenced him to life in prison compared him to serial killer Ted Bundy.
Three years in, Couch began working in the law library at Augusta Correctional Facility for 45 cents an hour -- a plum job for those inmates with the necessary skills. He slowly joined an unofficial fraternity of "jailhouse lawyers," inmates with the legal knowledge to help other inmates file cases. "I can't walk around the yard without being inundated with [questions]," Couch says. Through people like Couch, other inmates can access legal services without having to rely on unscrupulous attorneys squeezing money from inmates' families through a lengthy, hopeless appeals process. Couch is also unusually talented -- he's won several suits against the Virginia Department of Corrections while proceeding "pro se," or without counsel. In his first case in 2005, he forced a settlement with the state on behalf of a group of Muslim inmates who were being starved during Ramadan because of the facility's meal schedule.
Winning prisoners' rights cases is difficult -- even with a lawyer. For prisoners without legal representation, it's downright rare. "It's very uncommon for prisoners, many of whom have little education ... to actually prevail in a pro se case," says Rachel Meeropol, a staff attorney at the Center for Constitutional Rights.
Last year, Couch set out to challenge Virginia prisons' censorship policy. Couch says a couple of inmates who worked in the library approached him, concerned that Augusta Operations Director Debbie Swisher was banning publications that shouldn't have been controversial. When he started looking into the matter, Couch realized that Virginia's broad censorship policy was similar to one in West Virginia that had been struck down as unconstitutional. The policy puts time limits on when complaints and grievances can be filed, so in order to get the ball rolling, Couch had his wife send him material he knew would run afoul of the policy: James Joyce's Ulysses and D.H. Lawrence's Lady Chatterley's Lover.
Couch chose these books deliberately. The novels are celebrated as literary classics now, but both had been subject to allegations of obscenity in the 1930s. And when it comes to prison censorship, precedent matters. While inmates are notified that a newer publication has been censored and the reason why, challenges can be difficult precisely because inmates don't have access to the disallowed material. "A prisoner has a right to appeal," Fogel says, "but they're given no knowledge of the disapproved material, because they're not allowed to have it."
In Couch's complaint about the censorship of the literary classics, he pointed out inconsistencies in the department's censorship policies, noting that the Bible was allowed despite its portrayals of sex and even incest and that prisoners are allowed copies of Playboy magazine but not books that could be on the syllabus of an average college freshman English class. "It strains credulity that Lady Chatterley's Lover would have any effect on the security, discipline, and disorder of the prison," Judge James Turk of the United States District Court said in his ruling upholding Couch's complaint. "Likewise, it would be patently incredible to assert that Joyce's Ulysses could threaten the rehabilitation of a prisoner."
Couch says that some of the administrators at Augusta have privately conceded that they agree with him. "I'm convinced that the department's policy problems, including those of censorship, do not stem from malice," Couch says. "Arrogance? Gross neglect? Studied indifference? Absolutely. But not malice."
Turk's ruling forced the Department of Corrections to implement new censorship policies, but inmates' inability to access the material means that in most cases, when classic literature isn't involved, successfully challenging those policies is a burden that falls on outside publishers. Often publishers just don't care enough to intervene or don't have a financial incentive to do so. Most publications are barely paying attention to what happens in prison, even if they have readers there.
This kind of apathy is representative of how the country responds to prison issues now that crime rates are down. "Prisoners were talked about as if they were chattel, and to a certain extent they are, as far as the dominant political consensus in this country," Wright says. "No one cares any more what prisoners think about criminal-justice policy than what cows think about farm policy."
Prison Legal News is a different story. The magazine, which focuses on prisoners' rights and corrections policy issues, has consistently challenged censorship of its publications. It is "the one entity that always litigates this stuff," Fogel says.
The magazine was founded by Paul Wright, who was sent to prison for shooting a man during a botched robbery, and his fellow inmate and "radical Marxist" Ed Mead in 1987. When Mead was released in 1993, the terms of his parole prohibited him from communicating with Wright, who was still incarcerated at the time. Wright says Mead's parole terms caused him to drift out of the magazine's day-to-day affairs. (Mead contends that their falling out came in 2001, when Wright "snitched" on a former business manager who had embezzled $19,000.) Prison Legal News now has four employees who work out of its Vermont office and a budget of $150,000, mostly from donations. Wright says "90 to 95 percent" of its material is submitted by prison inmates. The magazine lost a lawsuit over compensating them directly, so writers usually have payment forwarded to their families. "Unlike Arianna Huffington, for example, I think it's important for writers to be paid for their work," Wright says.
Prison Legal News was first targeted by prison censors in 1996, due to a Washington state prison rule that inmates were not allowed to receive gift subscriptions. "The warden said there was no need to censor us, because we'd be gone in six months," Wright says. "That was 20 years ago." Since then, Prison Legal News has been censored -- and challenged that censorship -- in more than 21 states, for reasons ranging from postage issues to bans on prisoner communication across facilities to concerns that the articles "cast law enforcement in a negative light."
The incarcerated in America have limited Internet access, so one might imagine that it's still possible to produce a profitable print publication when your target readership resides in jails and prisons. But like the print industry in general, publications focused on prison policy have struggled. Their advertising and subscription numbers are declining even as the prison population -- and by extension, the number of people with family members in prison -- increases.
"Look at the number of prison magazines there were in the 1970s, when the prison population was like an eighth of what it is today," Wright says. The educational level of the average inmate is also a factor. "You're targeting a population that, depending on the state, is 60 to 80 percent functionally illiterate," Wright shrugs. "On its face, this isn't a good demographic for a magazine."
The magazine's litigation efforts have been overwhelmingly successful, in part because once the cases actually make it to court, the government tends to back down. But Prison Legal News has suffered its defeats, such as when it published a 1999 expose of guards in Washington state prisons with ties to white supremacist groups.
"When I say Nazi guards, I'm not exaggerating," Wright explains, a necessity in the age of Glenn Beck. "I'm talking about people with Hitler and swastika tattoos." This was the first and only case Prison Legal News lost on the merits -- the judge ruled that publishing the names of the guards put them at risk of violence from prisoners who were offended by their racial views. Veteran prison administrators like Baylor might understand the caution, but for Wright, the ruling was absurd, because the guards' white-power tattoos made their allegiances obvious to the inmates who saw them every day.
Since 2008, the Virginia Department of Corrections' Publications Review Board has banned 19 issues of Prison Legal News. The board claimed that these issues contained "material whose content could be detrimental to the security, discipline, and good order of the facility." In August 2009, Wright called Fogel, whose law practice is located in Virginia, and asked him to intervene. This was how Fogel ended up suing the Virginia Department of Corrections and learned my article had been banned.
Fogel argues that the Prison Legal News case is a symptom of a larger problem with the Corrections Department's Publication Review Board, noting that the board hadn't banned a single issue of Prison Legal News before 2009. In July 2010, the board also banned The Jailhouse Lawyer's Handbook, which teaches the incarcerated how to litigate their own cases. While Larry Traylor, a department spokesperson, said that sometimes decisions are made based on an individual inmate's "specific criminogenic factors," once a publication is banned in one prison, it's banned system-wide.
"Prison litigation is expensive and difficult, so relatively few lawyers are willing to represent prisoners who claim to have been abused or mistreated," says Rachel Meeropol, the primary author of The Jailhouse Lawyer's Handbook. "We publish and distribute the [handbook] for free in hopes that it will serve as a resource for prisoners who want to learn about their rights and assist those prisoners whose constitutional and civil rights have been violated to stand up for themselves in court."
Two weeks after Judge Turk's Sept. 1 ruling excoriating the ban on Ulysses and Lady Chatterley's Lover, the department settled with Prison Legal News, agreeing to allow the previously banned issues to be distributed. According to the minutes of a Virginia Board of Corrections meeting that same day, the then-director, Gene M. Johnson, told the board that Turk's ruling had forced policy changes that had already been in the works. Johnson also alluded to the madness that seemed to have gripped the review board, calling the current policy "crazy" and saying that "some members of the Publications Review Committee were using personal concerns as a reason for denying publications as opposed to denying publications because they were a security issue."
Even in Virginia, though, the fight isn't over. The Prison Legal News settlement didn't touch on another censorship issue -- depriving inmates of publications purchased by third parties. As my phone conversation with Couch came to a close, he told me he was about to file a new complaint over the fact that the prison's censors had prevented him from receiving another publication. Someone had tried to mail him a copy of The Jailhouse Lawyer's Handbook.