The Corrections Department is reviewing the court order with its attorneys and will be responding to Judge Silver, according to a statement from public information officer Bill Lamoreaux.
The judge’s decision underscores the problem of censoring inmate reading material and the indeterminate manner in which jails and prisons prohibit or grant what incarcerated people can read, prisoner rights advocates say.
In March 2014, copies of Prison Legal News weren’t delivered to the 97 inmate subscribers in Arizona because some articles described nonconsensual sexual contact between guards and prisoners, according to court documents.
Arizona prisoners were receiving their Prison Legal News magazines without issue before March 2014 when more interruption of delivery happened, according to court documents. Prison Legal News notified the director of the corrections department of its unlawful censorship in a February 2015 letter, but the agency still didn’t deliver uncensored magazines to prisoners due to a mail policy that prohibits “sexually explicit material."
There was no exception for publications that discussed sexual interactions in a factual or legal manner.
The policy was overly broad and the standard too vague to be consistently followed, said David Fathi, director of the American Civil Liberties Union’s National Prison Project, who has represented Prison Legal News in past cases.
“You saw in the Arizona case that staff were told to use common sense and good judgment. That’s a recipe for arbitrary or inconsistent decision-making,” he said.
Fathi said the judge’s order is a big improvement but adding a training on the new policy would be best practice.
A list of banned publications by the Arizona Department of Corrections as of June include other seemingly innocuous publications, such as issues of National Geographic, Men’s Health and GQ. Books such as “What to Expect When You’re Expecting,” “The Complete Step-by-Step Book of Honey” and the cult classic “The Girl with the Dragon Tattoo” are also among the list of contraband reading material.
Restricting what inmates can read is a decentralized process that can happen on the state or federal level, said Nazgol Ghandnoosh, senior research analyst for the Sentencing Project.
Sexually explicit bans can include biology books and even literary works appropriate for high school students.
“It’s a huge subjective power that prison officials have in establishing these procedures,” Ghandnoosh said, emphasizing that a lack of explicit regulation and public discourse around how such policies are made are usually what lead to high-profile cases such as the banning of Michelle Alexander’s “The New Jim Crow: Mass Incarceration in the Age of Colorblindness.”
Silver’s order could change the previous issues that were part of the original policy.
In her order, Silver wrote that the Arizona Department of Corrections and the state must change its mail policy from allowing agency employees and agents to use their own discretion in determining what’s banned and to establish consistency in excluding sexually explicit material.
The department now has to deliver the previously censored issues of the magazine to its subscribers within 30 days of the order.
During litigation, the Arizona Department of Corrections said the ban helped protect staff from unwanted inmate behavior, which Paul Wright, executive director and founder of the litigious Human Rights Defense Center, doesn’t agree with.
“It’s all conjecture,” Wright said, noting that he wanted to settle the case. “The flip side would be, I suspect that all the behaviors they claim are still occurring.”
Prison Legal News has been banned for being pornographic before, but those allegations don’t appear to hold up well in court, said Wright.
In 2015, a district court in Virginia found that the Virginia Beach Sheriff’s Office had an unconstitutional and overbroad policy for sexually explicit materials after Prison Legal News filed a lawsuit when it was informed that inmates at the Virginia Beach Correctional Center and the Virginia Beach Sheriff’s Office were not receiving copies of magazine. The policy was changed throughout the course of litigation and the court issued a permanent injunction preventing the Virginia Beach Sheriff’s Office from returning to its former policy.
Prisoners are subject to the prejudices and biases of the people who work in the prison system who are often white, male and evangelical Christians, Wright said.
Black, Hispanic and Native American people are overrepresented in Arizona’s prisons and jails, according to data from the Prison Policy Initiative.
Wright said the banning of Prison Legal News is another way some penal institutions try to prevent inmates from knowing their rights.
Under Silver’s directive, the state of Arizona and its corrections department can no longer violate prisoners’ First Amendment rights, which include the right to read — something that also impacts non-incarcerated people once prisoners are released, Fathi said.
“Do we want people who have exercised their minds in prisons? Do we want people who improved their ability to read and think? Or do we want people who have been completely cut off?” he said. “I think the answer is clear.”