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Attorney Anne Butterfield Weills: ‘Obscenity’ regs show ‘CDCR views many of its prisoners … as political prisoners’

June 26, 2014

by Anne Butterfield Weills

To: Timothy M. Lockwood, California Department of Corrections and Rehabilitation, Regulation and Policy Management Branch, on June 17, 2014

Re: CDCR Notice of Change to Regulations 14-05, “Obscene Materials”

Dear Mr. Lockwood:

“Censorship” – Art: Michael D. Russell, C-90473, D7-217, P.O. Box 7500, Crescent City CA

“Censorship” – Art: Michael D. Russell, C-90473, D7-217, P.O. Box 7500, Crescent City CA

I think one must first ask why is the CDCR pursuing these proposed regulations regarding “Obscene Materials” at this time. The fact that these rules were noticed as “Obscene Materials” indicates an intention of CDCR to attempt to fly below the radar so as to not draw attention to the fact that much of the material under these proposed regulations could be so broad as to cover newspaper articles and a multitude of other written materials that do nothing to promote prison safety and security and do everything to violate and infringe on the First Amendment rights of California’s prisoners.

It is not an accident that the CDCR is trying to control the reading material of its prisoners as it wants to keep them isolated, ignorant and uninformed about their rights and not see the robust media that has been developing in the last few years led by prisoner reps, family members, prison rights activists, lawyers and journalists, world-wide.

These proposed “obscenity” regulations are a response by the CDCR to the hunger strikes of 2011 and 2013 and the fact that prisoners have had a voice in various publications such as the PHSS News, Rock, Prison Focus, SF Bay View, Abolitionist, Prison Legal News, Turning the Tide, The Final Call, The New York Times, Mother Jones, The Nation and The Los Angeles Times.

One can only surmise why the CDCR is pursuing the codification of these proposed regulations at this time under the disingenuous title of “Obscene Materials.” It appears that its submission was intended to go unnoticed by many prisoner rights advocates because at the same time legislators are currently developing legislation specifically focused on the SHU flowing from commitments made to the men on hunger strike in 2013 and attention is being paid to the Ashker v. Brown, et al. (Case No. 4:09-cv-5796) litigation in which U.S. District Judge Claudia Wilken just granted class certification for a class of men in the Pelican Bay Security Housing Unit.

It is not an accident that the CDCR is trying to control the reading material of its prisoners as it wants to keep them isolated, ignorant and uninformed about their rights and not see the robust media that has been developing in the last few years led by prisoner reps, family members, prison rights activists, lawyers and journalists, world-wide.

Fortunately, all of this activity did not disguise the politicized nature of the proposed regulations that is clear from the following Subsection 3134.1(e), second paragraph, which states:

“Also on the fifth line, the text ‘STG recruitment material’ is added in reference to the type of publications that may be placed on the Centralized List of Disapproved Publications. This change is necessary for the safety and security of the institutions by stating that publications concerning recruitment for any Security Threat Group will be placed on the Centralized List of Disapproved Publications as these groups are deviant in nature, opposed to authority and society. This change reflects consistency within Department regulations concerning disallowed material and Security Threat Groups.”

What is material that is “opposed to authority?” This category of media is so extraordinarily broad and vague as to be unconstitutional, subject to great abuse and to future lawsuits that will most likely be successful based on Murphy v. Missouri Department of Corrections, 814 F.2nd 1252, 1256 (8th Cir. 1987); McCabe v. Arave, 827 F.2d 634, 638 (9th Cir. 1987); Shakur v. Selsky, 391 F.3d 106, 109 (2d Cir. 2004); Hrdkicka v. Reniff, 631 F.3d 1044, 1048 (9th Cir. 2011); and similar and related cases.

These proposed regulations would disallow publications and media that indicate an association with a validated STG member or associate and cannot withstand constitutional scrutiny because the material poses no threat to the security and safety of the institution and because they interfere with the First Amendment rights of both prisoners and publishers.

What is material that is “opposed to authority?”

The proposed regulations are designed to both limit what the prisoners read but also deny public communications from the prisoners themselves because the materials in question may be “opposed to authority.” To censor writings of this nature confirms what many prisoner advocates have known for some time, which is that the CDCR views many of its prisoners, especially those who have called for the 2011 and 2013 hunger strikes, as political prisoners.

These proposed regulations are an attack on the intellectual development of California’s prisoners. As we know, information is power, and a well-rounded education encourages critical thinking and develops the consciousness of humans so that they can begin to fulfill their potential. It is in the interest of the CDCR to educate its prisoners so that they are not illiterate, ignorant or isolated from the internal and external society and as a result will be better able to cope with the outside world when they are released to civil society.

These proposed regulations will also have a chilling effect in that prisoners will begin to self-censor their incoming publications for fear of receiving “contraband” that could cause them to receive rules violation reports, creating the prospect of being placed in the SHU. This will clearly be one of the consequences of the proposed regulations because of the unconstitutional vagueness and breadth as presently written.

The proposed regulations are designed to both limit what the prisoners read but also deny public communications from the prisoners themselves because the materials in question may be “opposed to authority.”

The proposed regulations would bar the very kind of information and advocacy that all democratic societies allow their prisoners. The CDCR is imposing its own ideological, subjective and politically biased worldview on what our prisoners are allowed to see and articulate to the outside world. Californians would not have become increasingly educated about the negative effects on the mind and body of our prisoners in long term solitary confinement without having heard from our prisoners who wrote to a number of publications over the years, both mass and alternative media.

These proposed regulations are intended to squelch the voices of serious criticism of the CDCR and its policies, particularly that of long term indefinite detention in the SHUs and its draconian debriefing policy. It seeks to pursue total control of the media available to our prisoners so they will become more disempowered than they already are. This act of punishing prisoners because of what they choose to read, see, learn, think and write goes to the heart of a free society, and those rights should not be lost just because one is in prison.

The proposed regulations would bar the very kind of information and advocacy that all democratic societies allow their prisoners.

I recommend that the proposed Obscenity Regulations be rejected as written.

Very truly yours,

Anne Butterfield Weills

Attorney Anne Butterfield Weills can be reached at Siegel & Yee, 499 14th St., Suite 300, Oakland, CA 94612, 510-839-1200, ext. 205, aweills@aol.com.

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