The postcard only mail policy as practiced at the Baxter County Detention Center is unconstitutional according to a recent ruling from Federal Judge Timothy Brooks of the Western District of Arkansas.

Judge Brooks also permanently enjoined the county from “enforcing any incoming mail policy at the jail that prohibits the receipt of publications mailed by the Human Rights Defense Center (HRDC)” only because the publications don’t meet the postcard-only rule.

The county was also ordered to make the results of the lawsuit public by posting information on the Baxter County Sheriff’s website, “and any other mechanism used by the county to communicate with the public about jail policies.”

The Baxter County case has been in the courts for almost six years.

The Florida-based HRDC filed the suit against Baxter County and a similar one against the Union County jail in El Dorado.

A federal court jury in El Dorado recently found against HRDC in that case.

The result of the diametrically opposed decisions means that for the time being a postcard-only policy is unconstitutional in Baxter County, but not in Union County.

Both counties are in the same federal court district. Because there have been contradictory rulings, legal experts say the likelihood of the issue winding up in the U.S. Supreme Court is growing more likely.

Baxter County Sheriff John Montgomery told KTLO, Classic Hits and the Boot News that the ruling in the Baxter County case came as a surprise, particularly because the Union County Federal Court jury had come to an opposite conclusion. The sheriff said that an appeal is possible although no decisions have been reached on that issue as yet. Meanwhile, the sheriff said his office is “under a court order to change the mail policy and we will follow that order.”

The sheriff said a study is now being done to see what changes need to be made to comply with Judge Brooks’ order.

WHAT IS HRDC?

HRDC describes itself as a non-profit charitable organization. It publishes an array of materials, including Prison Legal News.

The publication is described as a “soft cover magazine” containing news about prisons, jails, prisoner rights, and other information of interest to incarcerated individuals.

The publication is not allowed into the Baxter County jail under the postcard-only policy put in place in 2012.

The suits in Baxter and Union Counties allege a postcard-only policy being enforced at both jails violated HRDC’s rights under the first and fourteenth amendment to the U.S. Constitution.

RULING IN 2019: WAS WIN FOR BAXTER COUNTY

After the initial three-day bench trial in Fayetteville in late January 2019, Federal District Judge Timothy Brooks issued a ruling on the HRDC suit April 25, 2019.

It was basically an across-the-board win for the county. The judge wrote the HRDC’s 14th Amendment rights to due process were only “technically violated” when Baxter County jail staff sent four pieces of mail back in August 2016 without explanation as to why it had been rejected.

Judge Brooks also found HRDC had not suffered in a major way by a few pieces of mail being rejected and awarded the group $4 in damages.

Judge Brook’s also ruled that HRDC’s First Amendment rights had not been violated.

After the initial ruling in the Baxter County case, HRDC went to the Eighth Circuit Court of Appeals in St. Louis.

The 8th Circuit upheld Judge Brooks’ ruling on the 14th Amendment due process claim and the nominal damage award.

But the appeals court judges vacated Brooks’ First Amendment ruling and ordered the case sent back to his court in Fayetteville for further proceedings “consistent with this opinion.”

A bench trial on the question raised by the appeals court was held September 19 last year in Judge Brook’s court.

After the appeals court decision, the major issue remaining was whether alternative means were available for inmates to access information that cannot be reduced to a postcard, or if the policy represented a “de facto” ban on any such mail.

In his ruling following the Eighth Circuit Court of Appeals’ opinion, Judge Brooks basically reversed his original First Amendment findings and followed the instructions of the Appeals Court.

He wrote that when the case was sent back to his court, it was with instructions that any further findings in the case be consistent with the opinion of the Appeals Court.

In fact, the “mandate rule” requires that a lower court comply with and carry out the rulings of a higher court when a case is sent back.

In the opinion written by the Appeals Court Judges it was pointed out that the U.S. Supreme Court has made clear that alternative methods of communication with inmates do not have to be “ideal,” but do “have to be available.”

The written opinion from the court of appeals characterizes the postcard-only mail policy at the Baxter County jail as creating a de facto “total ban” on materials produced by HRDC.

EIGHTH CIRCUIT HEARING

Judges from the eighth circuit heard oral arguments on HRDC’s appeal of Judge Brooks’ initial ruling in a teleconference June 17, 2020.

During the hearing, the issue of whether postcards represented the “exclusive” manner of communicating with inmates in the Baxter County jail was the major focus of discussion.

One judge on the panel commented he did not realize the jail basically prohibited the receipt of all mail not on postcards. He commented that the policy as practiced “certainly appears to be a de facto total ban on materials that cannot be reduced to postcards.”

In a brief filed with the Eighth Circuit Court of Appeals, the county’s attorney refuted the argument of the HRDC that the postcard-only policy deprives inmates of the ability to communicate with friends and relatives.

The attorney wrote the postcard-only policy was put in place not to cut off contact with the outside world, but to prevent the introduction of contraband, to save money and staff time, and to promote efficiency.

The U.S. Supreme Court has recognized that greater restrictions can be placed on the rights of individuals locked up in a jail or prison, Owens wrote.

Judges on the Eighth Circuit had already found one postcard-only mail policy acceptable within narrow confines.

The case involved a jail in Cape Girardeau, Missouri with similar requirements on incoming mail as those enforced in Baxter County.

The three-judge panel cautioned however, the Cape Girardeau ruling was not a blanket approval, and each situation where the postcard-only rule becomes an issue should be looked at on a case-by-case basis.

The Baxter County case hinges on whether an out-of-state publisher has any real alternative to the postcard only policy, or if the policy meant the publisher was barred from sending its materials to inmates.

FEDERAL COURT JURY DECISION

On March 8, a federal court jury in ElDorado found for Union County and against HRDC in a case filed simultaneously with the suit in Baxter County.

There is a difference between the current mail policies in Union County and Baxter County, according to court filings.

While Union County also launched a postcard- only mail policy in 2012, modifications were made in May 2017. Those modifications included allowing letters that conform to other rules to be scanned and made available to inmates at electronic kiosks. Electronic tablets were added the next year.

HRDC has already appealed the jury verdict claiming that Union County’s lawyer did not present enough evidence for the jury to have found against the organization.

HRDC is asking the appeals court to overturn the jury’s decision and that a directed verdict be entered in favor of the organization.

PUBLICATIONS BAN EGREGIOUS

A ban on publications is “particularly egregious” in the case of the Baxter County Detention Center, the HRDC claims, “since prisoners basically only have access to a few tattered and out-of-date legal books” kept in what is described as the jail’s “milk crate” law library.

The organization contends that, “nowhere are inmates more removed from public discourse than the jail in Baxter County, Arkansas.”

Inmates are, “completely denied the ability to receive letters, magazines or periodicals. A Baxter County inmates’ entire access to the written marketplace of ideas is restricted by county officials to words that can be reduced to a 3×5 postcard,” HRDC contends.

The lawyer for the county countered that the postcard-only policy allows inmates to communicate at will, and that there are other means for them to contact those in the free world, including telephone calls.

The county’s attorney said that since the mail policy was put in place in 2012, there have been no complaints until HRDC filed its lawsuit.

HRDC alleges phone calls are not a practical alternative for inmates in the Baxter County jail because of cost.

HRDC notes the jail permits only one copy of a local newspaper to enter the facility, and only 20-30 minutes of local radio news to be heard by prisoners over speakers. No television is allowed and there is no access to the Internet.

The organization alleges “because no publisher” can send its message into the jail, Baxter County’s policy governing incoming inmate mail “effectively cuts the proverbial tongues from all publishers’ mouths.”

There is an exception for “legal mail,” meaning mail sent by an inmate to a number of entities, including courts, lawyers or probation and parole officers.

The suit initially named Sheriff Montgomery and other employees of the sheriff’s office as defendants. Earlier, the federal court in Arkansas ruled they were to be dismissed from the suit as individuals, leaving the county as the only defendant.