Freedom to Read Victory in DC Jail: Corrections Officials Promise Staff Retraining to End Mail-room Censorship of Innocent Books

"A jail full of prisoners quietly reading," says ACLU Senior Staff Attorney Fritz Mulhauser, "is exactly what every warden should want. With a recent response from the D.C. Department of Corrections to censorship problems we identified, we look forward to more books reaching D.C. prisoners."

Department General Counsel Maria Amato in a May 15, 2012, letter confirmed the ACLU complaint that mailroom staff had been wrong to censor innocent books. There will be additional training, Amato told ACLU, to assure staff do a "more faithful application" of the First Amendment rights of prisoners to read literature. Staff had also ignored internal rules requiring high-level review before any book-banning is final; Amato said those rules, too, will be reinforced in training "and adhered to going forward."

Based on complaints to the ACLU of the Nation's Capital from numerous inmates, the ACLU on January 19, 2012, asked Thomas Faust, Acting Director of the D.C. Department of Corrections, to investigate arbitrary and inconsistent censorship of ordinary books inmates tried to buy from Amazon during 2011.

The ACLU provided evidence that Jail staff sometimes allowed, and sometimes rejected, books by such popular authors as James Patterson and David Baldacci. Officials even rejected one inmate's order of a book on chess strategy.

That official wrote in response to an inmate grievance that two Patterson novels and the chess book were rejected as they "displays killings" [sic].

ACLU in its lettersaid "the [jail official] was just plain wrong about the four books displaying killings (unless the official meant checkmates, where the king piece is near death), since one was about the game of chess."

Furthermore, said ACLU, "the term 'displays' (here, killings) is an ambiguous trigger for exclusion. What, exactly does it mean? If it means simply 'mentions killings in the text,' then DOC should also bar the Washington Post and the Bible."

The ACLU recalled for the Corrections director that "to pass constitutional scrutiny, censorship may not be based on taste or preference or vague guesses about risk, but only on factually-based analyses. As the Supreme Court directed in Pell v. Procunier, 417 U.S. 817, 823 (1974), inmates' challenges to limits on First Amendment interests must be analyzed only 'in terms of the legitimate policies and goals of the corrections system.' … DOC censorship of commonplace American fictional crime novels is misplaced, on this standard. [The inmate] chose his titles from lists of best-sellers; what is the basis for considering this material dangerous to penological interests? On no theory of criminal behavior do crime novels play a role in stimulating or encouraging criminal or even disruptive activity; millions of people read them every day and do not subsequently commit crimes. Neither do we believe DOC officials can show evidence crime novels threaten the 'security, good order, or discipline' of D.C. Jail. Crime novels are fictional stories where people commit crimes and are often brought to justice for those crimes. No official could reasonably believe that letting an inmate read such literature would undermine control of inmates at the jail."

The ACLU concluded, "Past incorrect actions by DOC staff have several constitutional implications; they may violate the inmates’ rights to First Amendment expression (right to read), to not lose property without due process and to not suffer arbitrary, capricious and laughably inconsistent rule-enforcement. In addition, you should be concerned that DOC staff appear not to conform to the narrow exclusion criteria in the DOC program statement on incoming materials; failure of jail staff to follow jail rules is corrosive and breeds cynicism about all official action. In addition, the exclusion of books by widely read and enormously popular authors like Patterson and Baldacci violates basic common sense, and in that sense opens officials to public critique."

The ACLU letter asked for investigation and corrective action to assure the free flow of harmless information.