| September 30, 2003
Greg Fisher, Warden
Idaho Maximum Security Institution
P.O. Box 51
Boise, ID 83707
Re: Inmate Mail
Dear Mr. Fisher:
I had a very busy summer, and in
May my 24 year old nephew was killed in a fall off Mt. Washington in
Washington State. So I got way behind in my prison work, and now
am going through my mail and catching up on some issues that had been laid
aside.
I received a torn up front of an
envelope which I mailed on April 3, 2003 from Shingletown, to Inmate Elias
Custodio, #56658. This was returned to me April 17, 2003, and it
had a note written in red by a guard stating: “MAIL WILL BE DENIED NEXT
TIME FOR TO MANY COPIES ONLY 5 ALLOWED. MAIL ROOM.” I don’t
remember what I sent, but usually it is a letter and I print out a document
that I know the prisoner would enjoy reading, many are religious documents
would be over 5 pages. Most prisons and jail allow I think about
22 pages before it would be returned.
This didn’t make sense to me, as
there is no reason for so few pages being allowed, except for the laziness
of the mail room. Unless of course you are requiring them to read
everything, and that is just plain wrong, as the law allows mail to be
opened to check f0r contraband, but that is all and then it should be given
to the Inmate. A prison knows which prisoners are in prison for drug
use, and I would allow that their mail should be checked carefully, but
the mail of other prisoners should not require the time and money to check
except for contraband.
I did some research on the law, and
Federal Law states:
18 United States Code Section 1702. Obstruction of correspondence
Whoever takes any letter, postal card, or package out of any
post office or any authorized depository for mail matter, or from any letter
or mail carrier, or which has been in any post office or authorized depository,
or in the custody of any letter or mail carrier, before it has been delivered
to the person to whom it was directed, with design to obstruct the correspondence,
or to pry into the business or secrets of another, or opens, secretes,
embezzles, or destroys the same, shall be fined under this title or imprisoned
not more than five years, or both. |
I found your IDC Website and read the Mail Definitions, where it lists
items considered Contraband. It is very general and just states “Items
received in a letter or package not authorized by policy or directive.”
Most had to do with publications which are not at issues in this letter,
it does list stickers, but does except return address labels [which some
don’t allow] as I’ve had them ripped off so they may not know who letter
was from. Since I sent articles of a religious or helpful nature,
most of this would not apply to my letters. There was nothing in
this policy listing how many pages were allowed in a letter, with the exception
of legal mail.
Then I went to Idaho Code, Title 20, and didn’t find much there,
and ended up in the Idaho Rules and Regulations, which state:
| Rule 402. CORRESPONDENCE WITH INMATES
Incoming mail shall be opened and inspected to make sure that
it is not contrary to penological interests or is not obscene. Mail
may be withheld subject to the provisions of Subsection 402.06.
Rule 402-06. Withholding of Prohibited Mail
Whenever incoming mail may contain prohibited material as defined
herein the facility head shall review the material to determine if it is
prohibited or should otherwise be withheld. If it is not to be withheld,
it shall be delivered to the inmate. If the facility head determines
that the mail should be withheld, the sender shall be given notice that
the material was withheld. The sender shall be given notice that
the material was withheld. The sender shall be given notice that
the sender may contest the withholding by contacting the facility head,
in writing, with fourteen (14) days of the date the notice is sent to the
sender. |
So here the only reason is “penological interests” and how would 5 or
20 pages make any difference. This is just a bureaucratic rule that
does not make sense, and is not in harmony with recent Court decisions.
Here is excerpt from one decision:
The United States Supreme Court in the case of Procunier v. Martinez,
416 U.S. 396 (1974), a Northern California case that applies to the present
case, as my First Amendment rights have been violated in not allowing free
speech in writing to an inmate. "Communication by letter is not
accomplished by the act of writing words on paper. Rather, it is effected
only when the letter is read by the addressee. Both parties to the correspondence
have an interest in securing that result, and censorship of the communication
between them necessarily impinges on the interest of each. Whatever the
status of a prisoner's claim to uncensored correspondence with an outsider,
it is plain that the latter's interest is grounded in the First Amendment's
guarantee of freedom of speech."
The restriction of Internet mail or addresses is overly broad. "Thus
a restriction on inmate correspondence [416 U.S. 396, 414] that furthers
an important or substantial interest of penal administration will nevertheless
be invalid if its sweep is unnecessarily broad." Procunier,
supra. As this regulation is applied to all correspondence, without valid
reason it "is unnecessarily broad." "Prison officials may not censor
inmate correspondence simply to eliminate unflattering or unwelcome opinions
or factually inaccurate statements. Rather, they must show that a regulation
authorizing mail censorship furthers one or more of the substantial governmental
interests of security, order, and rehabilitation." Procunier,
supra.
| The following is a quote from Procunier v. Martinez,
416 U.S. 396 (1974) and note that reading all prisoner mail comment as
not necessary:
MR. JUSTICE MARSHALL, with whom MR. JUSTICE BRENNAN joins, concurring.
I concur in the opinion and judgment of the Court. I write separately
only to emphasize my view that prison authorities do not have a general
right to open and read all incoming and outgoing prisoner mail. Although
the issue of the First Amendment rights of inmates is explicitly reserved
by the Court, I would reach that issue and hold that prison authorities
may not read inmate mail as a matter of course. . .
A prisoner does not shed such basic First Amendment rights at the prison
gate. Rather, he "retains all the rights of an ordinary citizen except
those expressly, or by necessary implication, taken from [416 U.S. 396,
423] him by law." Coffin v. Reichard, 143 F.2d 443, 445 (CA6
1944). Accordingly, prisoners are, in my view, entitled to use the mails
as a medium of free expression not as a privilege, but rather as a constitutionally
guaranteed right. . .
It seems clear that this freedom may be seriously infringed by permitting
correctional authorities to read all prisoner correspondence. A prisoner's
free and open expression will surely be restrained by the knowledge that
his every word may be read by his jailors and that his message could well
find its way into a disciplinary file, be the object of ridicule, or even
lead to reprisals. A similar pall may be cast over the free expression
of the inmates'
correspondents. Cf. Talley v. California, 362 U.S. 60,
65 (1960); NAACP v. Alabama, 357 U.S. 449, 462 (1958). Such
an intrusion on First Amendment freedoms can only be justified by a substantial
government interest and a showing that the means chosen to effectuate the
State's purpose are not unnecessarily restrictive of personal freedoms.
. .
The State asserts a number of justifications for a general right to
read all prisoner correspondence. The State argues that contraband weapons
or narcotics may be smuggled into the prison via the mail, and certainly
this is a legitimate concern of prison authorities. But this argument provides
no justification for reading outgoing mail. Even as to incoming mail, there
is no showing that stemming the traffic in contraband could not be accomplished
equally well by means of physical tests [416 U.S. 396, 425] such as fluoroscoping
letters. If physical tests were inadequate, merely opening and inspecting
- and not reading - incoming mail would cllearly suffice.
It is also suggested that prison authorities must read all prison mail
in order to detect escape plans. The State surely could not justify reading
everyone's mail and listening to all phone conversations on the off chance
that criminal schemes were being concocted. Similarly, the reading of all
prisoner mail is too great an intrusion on First Amendment rights to be
justified by such a speculative concern. There has been no showing as to
the seriousness of the problem of escapes planned or arranged via the mail.
Indeed, the State's claim of concern over this problem is undermined by
the general practice of permitting unmonitored personal interviews during
which any number of surreptitious plans might be discussed undetected.
When prison authorities have reason to believe that an escape plot is being
hatched by a particular inmate through his correspondence, they may well
have an adequate basis to seize that inmate's letters; but there is no
such justification for a blanket policy of reading all prison mail. Procunier
v. Martinez, 416 U.S. 396 (1974) |
A recent case from the Ninth Circuit, Northern California Division,
had to do with Internet Mail Clement v. Department of Corrections,
Case No. C 00-1860 CW, excerpts as follows:
| Prison regulations that infringe a prisoner's constitutional right
are valid so long as they are "reasonably related to legitimate penological
interests." Turner v. Safely, 482 U.S. 78, 89 (1987). But
the legitimate penological interest may not be presumed. “[T]he [defendant]
must, at the very least, adduce some penological reason for its policy
at the relevant stage of the judicial proceedings. ‘‘[C]onsiderations advanced
to support a restrictive policy [must] be . . . sufficiently articulated
to permit . . . meaningful review.’’ Thus, at a minimum, the reasons must
be urged in the district court.” Armstrong v. Davis, 275
F.3d 849, 874 (9th Cir. 2001) (quoting Walker v. Sumner,
917 F.2d 11 382, 386 (9th Cir. 1990)). . .
A prisoner’s constitutional right to receive information by incoming
mail is undisputed. See e.g., Prison Legal News v. Cook,
238 F.3d 1145, 1149 (9th Cir. 2001). A prison regulation that impinges
on this right is valid only if it is reasonably related to the prison’’s
legitimate penological interests. . .
There are, in short, recognized rehabilitative benefits to permitting
prisoners to receive educational reading material and maintain contact
with the world outside the prison gates. Defendants nevertheless argue
that the ban on all Internet-generated material is rationally related to
maintaining safety and security in the prison. Defendants contend that
Internet-generated information provides a particular danger to prison security
because the potential high volume of e-mail, the relative anonymity of
the sender, and the ability of senders easily to attach lengthy articles
and other publications would greatly increase the risk that prohibited
criminal communications would enter the prison undetected and would make
tracing their source more difficult. See In re Collins, 86
Cal. App. 4th 1176, 1184 (2001) (upholding the regulation challenged here).
. .
The Court, on its own motion, grants Plaintiff summary judgment
on his First Amendment claim. By separate order, the Court will permanently
enjoin Defendants from enforcing any policy prohibiting California inmates
from receiving mail that contains Internet-generated information. Judgment
shall enter accordingly. Each party shall bear its own costs.
DATED: [Posted Internet September 12, 2002]
CLAUDIA WILKEN
United States District Judge
Link
to Opinion
|
This opinion states that, “Prison regulations that infringe a prisoner's
constitutional right are valid so long as they are ‘reasonably related
to legitimate penological interests.’ Turner v. Safely, 482
U.S. 78, 89 (1987). But the legitimate penological interest may not be
presumed.” I would state the 5 page limit is an infringement
of my constitutional rights, and this rule is out of harmony with legitimate
penological interests.
I had previously raised the Internet Mail issue with Calipatria State
Prison in California who had returned Internet Mail [in this case the prisoners
own writings], and the above Clement vs. CDC, opinion came
out in the middle of this process. Enclosed is a copy of the letter
I received from California Department of Corrections, that “all institutions
were directed to process and permit any incoming mail that contains Internet-generated
information consistent with current California Code of Regulations guidelines
concerning inmate mail.” I have had no problems with return mail
in California since that time.
I would appreciate your attention to this matter, and that at least
22 pages be allowed, and that all legal opinions be allowed in the interest
of the inmate constitutional rights. That the prison rules and regulations
be brought into harmony with the recent opinion of Clement vs. CDC.
Thank you for your attention to this matter.
Sincerely yours,
J
cc: Tom Beauclair, Director, Idaho Dept. of Corrections
Governor Dick Kimpthorne |