This article originally appeared in the October 2024 issue of Information Today. For another perspective on books in prisons, read “San Francisco Public Library and hoopla Bring Free E-Resources to County Jails” from the October issue of Computers in Libraries.
A prison administrator, a school board member, and a library board member walk into a bar. What do they have in common? They are the players who determine the extent of your constitutional right to freely access information in the United States of America. Not a very funny punchline.
Banned Books Week, held the last week of September each year, used to elicit a chuckle and a “Can you believe people could be so backward?” sigh from booklovers. Those days are over. The present status of book banning and censorship is overwhelming, eliciting true fear for our democracy. Public chagrin directed toward the fanaticism of the fringe has gone from commonplace to dangerous because the fanatic may now be in a position of power.
Challengers attempted to put 4,240 unique book titles behind metaphorical bars in 2023, according to ALA. And those are just the ones the organization knows about. Nationwide, bills are continuously being introduced attempting to ban titles and remove obscenity protections for public and school librarians, opening them up to criminal prosecution. Some of these bills have become law, like in Utah and Idaho. Other bills have been introduced and thankfully died on the floor, such as the Alabama bill seeking to register librarians who provide open access to materials as sex offenders. Information is under attack in the U.S., but not just at school and public libraries.
A type of censorship that proliferates under the radar occurs in prisons. While access champions are racing to put out fires set by radical legislators in the public sphere, materials bans have been smoldering in state and federal prisons for decades with little to no recourse for those adversely affected. Just as lawmakers attempt to control minors by banning what they do not wish them to know, state and federal carceral systems prioritize power and control over rehabilitation. Nowhere is this fact more obvious than in prison-sanctioned book banning.
RIGHTS INFRINGEMENT
Information is a human right. Departments of Corrections (DOCs) set policies on incoming publications that infringe on incarcerated people’s right to information, freedom of speech, and freedom of expression. By unfairly limiting the content inmates can consume, DOCs deny American citizens intellectual freedom, increase the chances of recidivism, and betray the public good.
When access to information is limited by policy, it is easy for decision makers to forget that their choices impact real people. Across the nation, prisons limit the materials inmates are permitted to access. Some states maintain formal lists of materials—usually consisting of books, magazines, and newsletters—that are officially banned in prisons. Censorship in these institutions revolves around materials seen as pornographic, violent, or purportedly offensive. Decisions about permitted content are based on subjective standards and keep American citizens from freely accessing chosen reading materials because of their status as an incarcerated person.
These policies impact more than 1.2 million people in the U.S., almost 40,000 of whom are incarcerated in my home state of Pennsylvania and from which I will draw most of my examples. There are two ways materials are banned in prisons: content bans and content-neutral bans. Content bans take into account specific information in the item—such as nudity, sex, violence, and racial content—and it is then destroyed and never delivered to the intended recipient. Content-neutral bans are a de facto type of censorship that happens when prison policy demands that informational materials may only be delivered straight from the publisher or distributor, making it so that if the approved publishers and distributors do not carry a desired title, that title cannot be accessed. Content-neutral bans also restrict access for impoverished inmates because they are unable to read used or donated books.
Twenty-nine states maintain formal banned books lists (see the map at right), and all 50 states, as well as the federal government, censor and restrict access to materials in prisons. Fifteen states provide reasons why items are banned, and all of the others ban without explanation. In October 2023, PEN America published an extensive report on censorship in American prisons. The nonprofit, dedicated to the freedom to write and access information, argues that “prison censorship normalizes the idea that reading can be dangerous” and that curtailing information for inmates is “inherently undemocratic.” It makes sense to disallow materials that may have the propensity to encourage violence or give instructions on a means of escape. These criteria cannot account for the banning of The New Jim Crow, A Game of Thrones, or The Kite Runner in Missouri, Louisiana, and California, respectively. These bans can be attributed to nothing but governmental overreach.
Ironically, not even government figures are immune from having their content restricted by these bans. In 2008, a federal prison would not allow an inmate to access President Barack Obama’s two memoirs, Dreams From My Father and The Audacity of Hope, because they were “potentially detrimental to national security.” While this ban was overturned, the vast majority of others are not, and final rulings are not appealable unless a lawsuit is filed.
PENNSYLVANIA: A CASE STUDY
Materials in Pennsylvania prisons are subject to PA DC-ADM 803. This policy was most recently updated in 2020 and applies to all DOC facilities. Publications must be ordered from the publisher or distributor, whether purchased by the inmate, the inmate’s family, or a third party as a donation. They must be addressed to the state’s security processing center, whose employees search the items for contraband. They are then forwarded to the prison where the inmate is incarcerated. Prison mailroom workers, untrained in constitutional rights, can deny inmates access to a publication if it “contains content considered to pose a potential threat to security, contains nudity, explicit sexual materials, or obscene material. …” If the publication contains even one paragraph of objectionable material, the entire publication is denied.
If a publication or material is flagged by mailroom staff as possibly objectionable, the Incoming Publications Review Committee (IPRC) is tasked with determining its status and, if denied, must give a reason, although that reason is not made public. The committee includes at least three prison personnel selected by the manager or warden. Only one member must be a librarian, teacher, or school principal. After the committee denies a publication, the inmate has 15 days from the date of the notification of denial to file an appeal. Appeals require a significant amount of paperwork, all of which must be copied and mailed at the inmate’s expense and without them ever actually seeing the censored material. If an appeal is filed, it is turned over to the Secretary’s Office of Inmate Grievances and Appeals, which directs it to the Office of Policy, Grants, and Legislative Affairs for a final determination. Once a decision is made, it is final.
The Pennsylvania DOC currently maintains a list of denied publications available on its website. The spreadsheet includes publications that were initially denied by prison staff and appealed by the intended inmate. As of August 2024, there were 1,076 publications on the Denied Publications List. Of those initial 1,076 denials, 35% of bans were upheld, and 65% were overturned. These statistics show that staff consistently incorrectly determine the presence of banned content and overextend their directive to censor inmates’ materials.
Mailroom staff at a single institution determine access to a title statewide if it is not overturned by the IPRC or appealed by the inmate. Examples of materials that were initially denied and reinstated include 50 Shades of Grey, The Complete Encyclopedia of Magic the Gathering, The New Jim Crow, Tarot for Beginners, White Rage, 29 volumes of Letters to Penthouse including “Extreme Sex, Maximum Pleasure” and “Horny in Class,” and Hot Cougar Sex. In contrast, banned materials include all issues of Don Diva, Ghost in the Shell, Incarcerated Workers Organizing Committee Directory and Reference Guide, San Francisco Bay View (a national Black newspaper), Small Business Taxes for Dummies, issues of Popular Science and Popular Mechanics, Art and Queer Culture, The 48 Laws of Power, and a book with the nondescriptive name Hurricanes. In 2020, the list identified the title, author, type of material, publication date, volume, issue, specific page numbers of concern, and the date it was denied or permitted. The spreadsheet the DOC now posts includes only the title.
CASE LAW
The American judicial system has expressed many opinions about prison materials policies. In 1974, Supreme Court Justice Thurgood Marshall wrote in Procunier v. Martinez that “when the prison gates slam behind an inmate, he does not lose his human quality; his mind does not become closed to ideas; his intellect does not cease to feed on a free and open interchange of opinions. …” He continued, “If anything, the needs for identity and self-respect are more compelling in the dehumanizing prison environment.”
Despite previous arguments advocating for the humanity of inmates and their need for materials, Turner v. Safley (1987) directed the lower courts to defer to prison administrators to decide the fate of incoming materials. This case established the Turner Test, which gives prison officials the authority to decide the rational basis for prohibiting materials. In 1989, Thornburgh v. Abbott applied the Turner Test to publications and determined that each publication must be examined individually, although Justice John Paul Stevens wrote in his dissent that “substantial deference” to prison officials could create unconstitutional results. As time has shown, he was correct.
IMPACTS OF CENSORSHIP ON THE VULNERABLE
The words “potential threat” or “potential security threat” can be used to ban almost anything, Christopher Zoukis writes for Prison Legal News. In Texas, vague policy banned Where’s Waldo? and A Charlie Brown Christmas yet permitted Mein Kampf and books by KKK leader David Duke.
Although publishers can challenge bans, they often do not because prisoners are not a marketable demographic. Inmates are politically and socially powerless. Attorney Alicia Bianco argues in the Roger Williams University Law Review that deference to prison administrators allows “non-elected and largely anonymous individuals to routinely make subjective decisions that limit a large population’s First Amendment rights.” Curtailing the publications inmates can read directly reduces their ability to participate in a democratic forum, Evan Bianchi and David Shapiro write in the St. John’s Law Review. This policy can be instituted with impunity and with little to no oversight because of court deference to prison administration. Freedom of speech is rendered toothless if there is no freedom to read that speech.
ALA asserts that only items presenting an “actual compelling and imminent risk to safety and security” should be restricted, instead of the low bar of potential threat that is currently set. Furthermore, ALA contends that sexual content should be allowed unless it violates written law. Intellectual freedom is maintained during incarceration, and its denial “diminishes the human spirit of those segregated from society.”
DOCs retain sweeping power to abridge inmates’ freedoms of speech and expression. The systems and personnel making unilateral decisions about contemporary community standards, safety, and security lack transparency and public accountability for their actions. Sound policy must be created in the DOCs in all 50 states and the federal government to balance the interests of inmates, their families, publishers, the American public, and the institutions themselves. The standards for denying inmates materials and publications must be modified to more clearly reflect a society that values the free exchange of information—a society that is rapidly questioning whether the free and democratic exchange of information is a value we still collectively uphold. In a society in which books are banned and information is demonized, democracy simply cannot prosper.
This post was originally published on here
