NY Backs Down on “Draconian” Censorship of Prisoners’ Right to Read
By Lisa Hoover
New York temporarily joined the list of states taking flak for limiting prison inmates’ right to read, and the state’s short-lived regulations were among the most extreme limitations we have seen.
Following public concern, Gov. Andrew Cuomo tweeted “I am directing the Dept. of Corrections to rescind its flawed pilot program that restricted shipment of books & care packages to inmates. Concerns from families need to be addressed, while we redouble efforts to fight prison contraband” (NYGovCuomo, 2018). It is unclear what this means for the future of the program, but for now at least it seems to be on ice.
The hullabaloo was over the Department of Corrections Directive 4911A (aka the “Secure Vendor Program”), which seems to have been removed from the web, regarding “packages and articles sent or brought to facilities” which was in the pilot stage, applying to only three prisons across the state (PEN America, 2018). The DOC planned to implement the program statewide this fall, and claimed the program would “enhance the safety and security of correctional facilities through a more controlled inmate package program” (Da Silva, 2018). Incidentally, the program also limited things such as fresh produce, clothing, toiletries and cosmetics (Da Silva, 2018).
While several states, including Texas, have raised public concern recently regarding inmates’ right to read, the New York regulations seemed especially harsh. Texas regulations involve banning specific titles (albeit 10,000 of them), although some have raised eyebrows, including “A Charlie Brown Christmas” (Haag, 2017).
New York’s regulation took a different approach; rather than banning specific books, the new regulation only allowed books purchased from specific vendors – six vendors, to be specific (PEN America, 2018).
While the DOC stated that it was “patently false to suggest that individuals in DOCCS custody will not have access to books, magazines or other literature,” critics were concerned that limiting prisoners to certain vendors would impact the quality of the materials available to inmates (Katz, 2018). Five of the vendors offered a combined selection of only 77 books, including “5 romance novels, 14 religious texts, 24 drawing or coloring books, 21 puzzle books, 11 how-to books, one dictionary and one thesaurus” (Katz, 2018, quoting Baird, 2018). Critics argued that this severely limited selection consisted of “’junk sex novels’ and ‘bibles and religious books’” (Da Silva, 2018). Books Through Bars, an organization that distributes free books to inmates, called the directive “draconian” (Da Silva, 2018).
One opponent, Molly Crabapple, also argued that the state was forcing “families of prisoners’ to buy overpriced products from ‘politically-motivated vendors” as they “bilk incarcerated folk and their loved ones out of every possible cent” (Da Silva, 2018).
The New York Times posted an insightful opinion piece highlighting the rehabilitation stories of two inmates — Reginald Dwayne Betts and Michelle Jones — both of whom continued their education while in prison. The piece cites a 2013 study which found that people who participated in educational programs while incarcerated had a 43% lower chance of reoffending than inmates who did not (Mzezewa, 2018).
The piece goes on to call New York’s new regulation “mind boggling” and observes that “the next Mr. Betts or Ms. Jones will be unlikely to find inspiration in a coloring book” (Mzezewa, 2018). It also reminds the reader of the legacy of denying African Americans (who make up a larger proportion of the prison population than they do the general population) the right to read during slavery in the United States (Mzezewa, 2018).
The American Library Association, in an interpretation of the Library Bill of Rights, argues that there is a “compelling public interest in the preservation of intellectual freedom for individuals of any age held in jails, prisons, detention facilities, juvenile facilities” and other places of incarceration, citing Procunier v. Martinez (1974): “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; his yearning for self-respect does not end; nor is his quest for self-realization concluded. If anything, the needs for identity and self-respect are more compelling in the dehumanizing prison environment” (American Library Association, 2010, emphasis added)
However, the U.S. Supreme Court has held that the interest in safety and orderly running of the prison can limit prisoners’ First Amendment rights – to some extent. The landmark case on prisoners’ First Amendment rights was Turner v. Safley in 1987. In that case, the Missouri Division of Corrections allowed correspondence between inmates who were immediate family members. However, they only allowed correspondence between non-family member inmates if 1) it related to legal matters or 2) at the discretion of the classification or treatment teams of both inmates. This regulation was upheld by the court (Oyez, 2018).
Writing for the court, Justice Sandra Day O’Connor argued that this content-neutral restriction on correspondence between inmates was “logically connected to the DOC’s legitimate security concerns” (Oyez, 2018). She also argued that it did not deprive inmates of all means of expression because it only limited correspondence with a particular “class of people” and pointed to the impact more relaxed restrictions might have on the liberty and safety of the guards and other inmates and that there were no “obvious, easy alternatives” (Oyez, 2018).
Thornburgh v. Abbott held that there is a governmental interest in denying access to publications where necessary to maintain security, but held that the limitation on the materials must be “no greater than what is necessary to preserve the penological interest” (Oyez, 2018). Despite the name, the Jailhouse Lawyer’s Handbook has a good discussion of how the courts have applied Turner to reading materials.
I would argue that while regulating prisoners’ reading material can be logically connected to security concerns, the particular regulation adopted and then abandoned in New York was not. Such a broad ban on materials does not seem logically connected to such interests; in fact, we can argue that with such limited reading material prisoners would likely be bored and, presumably, therefore be more likely to get into trouble.
While I suppose the regulation didn’t deprive inmates of “all means of expression,” it seemed to limit almost all means for personal improvement and education. Given the list above, there wasn’t much for intellectual stimulation or deep thought on the vendor lists under the pilot program.
I think the most important bit here is the part about “easy alternatives.” Plenty of other states have used what is, to me, a more common sense approach of banning specific books they deem to be a security threat. Even Texas, with their 10,000 book-long list, has not done a blanket ban. Either way, New York’s brief program clearly went beyond what is “necessary to preserve the penological interest,” the standard set by Thornburgh.
There is a world of difference between banning specific books that are a security risk and banning all books except a severely limited selection, especially if there is no way to appeal for a book to be added to the approved list. And while her language is inflammatory, Ms. Crabapple raises a good point: limiting where inmates can get their books also forces them into a specific price structure set by the vendors, which they may not be able to afford.
Even if we look beyond the ALA’s Library Bill of Rights and the First Amendment, the program just seemed to violate common sense. Isn’t one of the purposes of prison, at least for most offenders, supposed to be rehabilitation? Isn’t one of the purposes of reading to allow us to grow as individuals and to increase our understanding of the world around us? These seem like goals that naturally partner together.
While I think most of us would admit that there need to be limits for safety reasons, those limits should be as minimal as possible and should be carefully considered to only ban books that really pose a safety threat. A de-facto blanket ban cannot, by definition, have engaged in this careful consideration. A more nuanced approach is the right thing to do for the inmates, and it’s the right thing to do for society. Let’s hope this particular program stays “rescinded.”
PEN America (2018). New York State’s efforts to restrict access to books in prisons shows troubling disregard for right to read.” Retrieved from https://pen.org/press-release/new-york-restricts-books-prisons-right-read/
Katz, B. (2018). New York directive restricts inmates’ literature options. Smithsonian. Retrieved from https://www.smithsonianmag.com/smart-news/new-york-directive-restricts-inmates-literature-options-180967779/
Da Silva, C. (2018). New York prisons impose ‘draconian rules limiting books inmates can read to ‘sex novels, bibles and coloring books.’ Newsweek. Retrieved from http://www.newsweek.com/new-york-prisons-impose-draconinan-rules-limiting-books-inmates-can-read-sex-775708
Mzezewa, T. (2018). To make prisons ‘safer,’ some are banning…..books. New York Times. Retrieved from https://www.nytimes.com/2018/01/12/opinion/books-prison-packages-new-york.html?action=click&pgtype=Homepage&clickSource=story-heading&module=opinion-c-col-right-region®ion=opinion-c-col-right-region&WT.nav=opinion-c-col-right-region
Haag, M. (2017). Texas prisons ban 10,000 books. No ‘Charlie Brown Christmas’ for inmates. New York Times. Retrieved from https://www.nytimes.com/2017/12/07/us/banned-books-texas-prisons.html
“Turner v. Safley.” Oyez, 12 Jan. 2018, www.oyez.org/cases/1986/85-1384.
American Library Association (2010). Prisoners right to read: An interpretation of the Library Bill of Rights. American Library Association. Retrieved from http://www.ala.org/advocacy/intfreedom/librarybill/interpretations/prisonersrightoread
Jailhouse Lawyer’s Handbook (2010). Your First Amendment right to freedom of speech and association. Jailhouse Lawyer’s Handook. Retrieved from http://jailhouselaw.org/your-first-amendment-right-to-freedom-of-speech-and-association/
“Thornburgh v. Abbott.” Oyez, 12 Jan. 2018, www.oyez.org/cases/1988/87-1344.
NYGovCuomo. (2018, Jan. 12). Tweet. Retrieved from https://twitter.com/NYGovCuomo/status/951886741484589056
Lisa Hoover is a public services librarian at Clarkson University and an adjunct professor in criminal justice at SUNY Canton. In addition to her MLS, Lisa holds a JD and an MA in political science. She began her career as an editor and then manager for a local news organization, adjunct teaching in her “spare time.” She teaches courses in criminal procedure, criminal law and constitutional law. She is passionate about First Amendment issues. She recently began her career as a librarian, starting at Clarkson University in June 2017 teaching information literacy sessions and offering reference services. Lisa and her husband Lee live in Norwood, New York with their cats Hercules and Pandora and pug-mix Alexstrasza (Alex). Find her on Twitter @LisaHoover01.
A prisoner, who continues his/her education inside the prison, is very inspiring. They should be given the right to read and learn.