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Federal judge rules Baxter County jail’s postcard-only mail policy is unconstitutional

Arkansas Online, April 9, 2023.

A federal judge in Arkansas' Western District has ordered the Baxter County jail in Mountain Home to stop restricting inmate mail to postcard size -- a practice the jail began in January 2012 -- and ruled the practice to be a violation of the First Amendment to the U.S. Constitution.

At the time the restriction was put into place, the Baxter County sheriff's office said it was to enhance security by lessening the amount of mail coming in that could potentially be used to smuggle contraband and to save on the cost of postage the county was paying for indigent inmates. Under the policy -- according to a Dec. 7, 2011, news release posted on the Baxter County sheriff's office website -- mail sent or received by jail inmates was restricted to postcards only, with an exception for "legal mail," which is described as "mail to and from the courts, attorneys, officers of the court, and government agencies."

Under that exception, the sheriff's office noted a requirement that all envelopes containing such mail must be clearly marked as "legal mail" and "must be addressed appropriately," with pre-printed return addresses of the court, attorney, officer of the court or government agency that sent the correspondence.

In 2017, the Human Rights Defense Center, a human rights watchdog organization based out of Lake Worth, Fla., filed a lawsuit against Baxter County over the policy, naming Sheriff John Montgomery, then-Jail Administrator Brad Lewis, Sgt. Eric Neal -- who died Jan. 25, 2018 -- and 10 unnamed defendants referred to in the lawsuit only as "Does." All co-defendants were terminated from the lawsuit in May 2018, leaving Baxter County as the sole defendant, according to an order by U.S. District Judge Timothy Brooks, the presiding judge over the case.

In its complaint, the Human Rights Defense Center accused the defendants of violating the center's First Amendment rights by refusing to deliver its publications to jail inmates -- particularly a periodical entitled Prison Legal News, a monthly 72-page magazine which it said contains news and analysis about prisons, jails and other detention facilities; prisoners' rights; court opinions; prison facilities management and conditions; and other matters "pertaining to the rights and/or interests of incarcerated individuals."

The center said in its complaint that from August 2016 until the filing of the lawsuit a year later in August 2017, "at least [110] items of mail sent by HRDC to prisoners held in the BCDC" were censored by jail staff and returned to the center, "many with notations such as 'Refused' or 'Return to Sender Post Cards Only,'" by way of explanation. In its complaint, the center said the restrictions were not "rationally related to any legitimate penological interest" and violated the center's First Amendment right to communicate its speech to inmates of the jail.

The center said in its complaint that the policy also violated its 14th Amendment right to due process -- and the rights of other correspondents -- by failing to provide notice of and an opportunity to object to or appeal the decision to return the center's mailings. Brooks dismissed the case following a three-day bench trial in early 2019 in a ruling that was partially overturned by the Eighth Circuit Court of Appeals in June 2021, which dismissed the due process claim but remanded the First Amendment claim back to Brooks for reconsideration.

In his order dated March 31, 2023, Brooks declared Baxter County's "postcard-only" policy to be overly broad and its refusal to allow the center to mail its publications to jail inmates to be unconstitutional. In his order, Brooks issued a permanent injunction to prohibit Baxter County officials from refusing mailings from the Human Rights Defense Center because of the policy and to notify the public of the change via the sheriff's office website and "any other mechanism used by the County to communicate with the public about its Jail policies."

In his ruling, Brooks noted that the postcard-only policy was not uniformly applied, saying that the jail "accepts Bibles sent to individual inmates through the mail yet refuses all other publications sent in the same manner." He said there exists no reason to think "publications sent directly by a publisher are more likely to contain contraband than Bibles sent directly by a religious organization," and that there was also no "reason to believe that one of HRDC's publications requires a more onerous inspection than a Bible."

Brooks said in his ruling that inmates are provided with "an enormous amount of paper" by the county itself, which he said allows inmates to keep a Bible and books purchased from the jail commissary or borrowed from the jail's book cart as well as "unlimited paper" in their cells. He said to rationalize the jail's postcard-only policy with its other practices, "one must believe that a publication sent by mail will impact security and efficiency differently than the same publication provided by another mechanism, such as the book cart or commissary." But, he said, the county had offered no factual basis for the distinction, saying regardless of the source of a book -- by mail or donated by a local library for the jail book cart -- all would have to be examined for contraband.

Another problem with the policy, Brooks noted in his ruling, was that it "appears to change on a whim," with exceptions being granted on a case-by-case basis "according to some unknown criteria" by the sheriff or jail management. Brooks said because jail and prison officials are required "to maintain a fragile balance of competing objectives," they must be given the ability to exercise discretion and that courts defer to that reality by requiring officials "to articulate a conceivably rational basis for a given policy or decision."

"This is a low bar," Brooks said in his ruling. "But one that Baxter County fails to clear."

Reached by phone Friday, Montgomery said that he and the attorneys who handled the case are looking through the order and considering whether to appeal.

"Obviously, we're going to comply with the judge's order," Montgomery said, "but as of this time we're still going through the order and working to decide our next steps."

Montgomery said the lawsuit filed by the Human Rights Defense Center is the first and only complaint his office has received on the jail's mail policy since it was implemented in 2012.

Ceasar Kalinowski, a Seattle-based First Amendment attorney who helped represent Human Rights Defense Center, said the center is best known for its Prison Legal News publication, which he said is mailed to more than 3,000 jails and prisons across the U.S., but that it also serves as an inmate advocacy organization. To that end, he said, the center files litigation in cases where it believes inmates' rights are being abused.

"It became aware a number of years ago that Baxter County had implemented a postcards only policy," Kalinowski said, "effectively restricting anything that anyone could say to anyone in the jail down to what could fit on a postcard. For a book, magazine and newsletter publisher, you can imagine that such a policy just doesn't work."

Kalinowski said that in his 2019 ruling, Brooks had ruled that the policy was constitutional because "HRDC could call or visit each of the inmates," and that the jail security and efficiency were adequate reasons to have the policy in place.

"We obviously felt like that was not sufficient," he said. "We can't reasonably call or visit every single inmate across the nation as a book publisher and nobody is sitting in the visiting room listening to somebody read a book to them for 20 hours."