NC Prisoners Unreasonably Denied Access to Publications
By: NCPLS Staff Attorney Dawn Ducoste
Imprisonment strips inmates of most basic liberties. Along with physical constraints, prisoners have a limited right to make their own medical care decisions, no right to choose where they are housed or how they are classifi ed, and no right to vote, to name just a few restrictions. The Supreme Court, however, has held that prisoners do not surrender all constitutional rights at the prison gate. See, e.g., Wolf v. McDonnell, 418 U.S. 539 (1974). Under the 1st Amendment, one of the protections prisoners retain is the right to receive reading materials directly from publishers, subject to censorship by prison officials only if the publication poses a threat to prison security, order, or inmate rehabilitation. Thornburgh v. Abbott, 490 U.S. 401(1989). Prisoners are also entitled to a “minimal level” of due process when this fundamental right is withheld. Procunier v. Martinez, 416 U.S. 396 (1974), overruled on other grounds by Thornburg, id. at 413.
The N.C. Division of Prisons Policy & Procedures Manual, Chapter D.0100 and following sections describe the process and criteria for censoring incoming publications. In summary, when a publication arrives at a facility, it is screened to determine whether it is deemed to pose a security threat. If that initial determination is made, the inmate is to be notified and given the option to forward the publication, have the publication destroyed, or appeal the decision to the DOC Publication Review Committee (PRC). If the PRC determines that the publication poses a threat, the inmate is to be notified, and that specific publication is then listed on a “Master List of Disapproved Publications,” which is to be available for all inmates’ review.
On their face, these rules appear to clearly define an established procedure which comports with the law. However, in practice, the policies are often arbitrarily and inconsistently applied. Many prisoners have written NCPLS complaining that their publications have been denied without notice, without explanation, and without an opportunity to appeal. Reported problems also include inconsistent publication rejections, magazines being rejected on a wholesale basis, and after rejection, magazines not being forwarded as requested. Prisoners have been denied seemingly innocuous publications such as religious periodicals, music magazines, books by and about Malcolm X, books with gay and lesbian themes, Sports Illustrated, and even Oprah Winfrey’s “O Magazine.” NCPLS has spent the last two years negotiating with the DOC to improve the inconsistently applied procedures and the lengthy delays of the PRC without success.
A pro se lawsuit was filed this year against the DOC, and NCPLS has agreed to undertake representation. We are considering whether to seek the certification of a class so that any ruling would generally apply to all North Carolina prisoners, enforcing their right to receive publications without unreasonable or arbitrary constraints. With so few privileges, the right of prisoners to expose themselves to ideas and information from the outside world is of particular importance. When such ideas or information pose no threat to prison security, there is no legal reason to withhold such literature. Fundamental rights afforded constitutional protection must be accorded deference and respect. The name of the case is Urbaniak v. Beck, et al., (5:06-CT-3135-FL) (EDNC 2007).
