MAIL POLICY IN JAILS
by Jack Ryan, Attorney
©2016 Jack Ryan, Attorney, Co-Director PATC Legal & Liability Risk Management Institute (www.llrmi.com)
In Johnson v. Wickersham, [i] the United States District Court for the Eastern District of Michigan considered a claim brought by inmates of the Macomb County Jail that challenged the jail’s mail policy. The jail, which changed its policies going from a liberal policy to a restrictive policy that led to the lawsuit, returned to the liberal policy after the suit was filed. The court detailed the two policies and the issues as follows:
This is a First Amendment case that centers on a mail policy at the Macomb County Jail. On August 15, 2013, the Jail replaced a relatively liberal policy on the receipt of magazines—one that banned only publications that posed a threat to security, including sexually explicit and racially inflammatory material—with a more restrictive policy that limited an inmate's choice to 12 specific magazines:
"-Magazines: Only the following magazines will be allowed in the facility (received directly from the publisher/non-retail distributor): People, Field & Stream, Newsweek, Outside, Time, Readers Digest, The Oprah Magazine, Men's Fitness, Shape, Martha Stewart Living, Parenting and Money Magazine."
The policy that was replaced provided as follows:
"Soft covered books received directly from a non-retail distributor will be accepted. Prepaid magazine or newspaper subscriptions mailed directly to the inmate will also be accepted. Materials which may create a threat to jail order, or contain sexual, racial or ethnic profanity are prohibited. All reading material is subject to the five (5) item maximum."
In his amended complaint, Plaintiff claims that the 12 magazines permitted by the newer policy did not include publications intended for or directed to minorities, specifically African-American or Hispanic inmates. He claims that the restriction was arbitrary and capricious, and violated his rights under the First Amendment. He claims that he was denied his Fourteenth Amendment right to due process because he was not provided with an opportunity to challenge the exclusion of certain magazines, and that the Defendants violated the Equal Protection Clause of the Fourteenth Amendment "when they instituted the new magazine policy with only twelve magazines—none of which oriented to minority populations."
As noted, after the lawsuit was filed, the jail reverted back to the more liberal policy which, according to testimony, allowed the prisoners to get nearly any title, however they were limited to having a total of five magazines and/or books in their cell at any one time. A staff member testified that a member of the staff screened the magazines for inappropriate content, which might include “a book on how to make a bomb, how to escape, racial hate or pornography, sexually explicit things.”
In dismissing the claim on the policy, the court noted that the more liberal rule that had been reinstated by the jail was similar to the rule that the U.S. Supreme Court approved in the Thornburgh case. The court wrote that the restrictive rule would have likely run afoul of the First Amendment, however, once the jail put the liberal rule back in place, the legal action that sought to change the policy was no longer necessary.
- Prisoners have a First Amendment right to receive publications
- A policy that restricts a prisoners receipt of magazines may not be consistent with the First Amendment
- Jails may limit magazines that would impact security/safety in the jail on a case-by-case basis
Note: Court holdings can vary significantly between jurisdictions. As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases. This article is not intended to constitute legal advice on a specific case.
[i] Johnson v. Wickersham, 2016 U.S. Dist. LEXIS 24449 (E.Dist. Michigan 2016).