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HRDC comment to UN for Universal Periodic Review Sept 2014

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Human Rights Defense Center
September 15, 2014
14 avenue du Mail
1205 Geneva, Switzerland

Human Rights Defense Center – Individual Submission for UPR (USA)

The Human Rights Defense Center (HRDC) is a U.S. based non-profit organization that advocates on
behalf of the human rights of people held in U.S. detention facilities. This includes people in state and federal
prisons, local jails, immigration detention centers, civil commitment facilities, Bureau of Indian Affairs jails,
juvenile facilities and military prisons. HRDC is one of the few national opponents to the private prison industry
and is the foremost advocate on behalf of the free speech rights of publishers to communicate with prisoners
and the right of prisoners to receive publications and communications from outside sources. HRDC also does
significant work around government transparency and accountability issues by filing and litigating public
records and Freedom of Information Act requests at the state and federal levels.
HRDC was originally founded in 1990 in Washington State as Prisoners' Legal News (later Prison
Legal News). The initial purpose of the organization was to publish a monthly newsletter of the same name to
give a voice to prisoners, their families and others affected by criminal justice policies in Washington. Today,
HRDC distributes around 50 different criminal justice, legal and self-help titles, and continues to publish Prison
Legal News, which has become a 64-page monthly publication with subscribers in all 50 states and
internationally. PLN distributes its publication to prisoners and law librarians in approximately 2,200
correctional facilities across the United States, including institutions within the Federal Bureau of Prisons and
all thirty-three adult prisons of the California Department of Corrections and Rehabilitation. HRDC engages in
litigation, media campaigns and outreach, public speaking and education, and testimony before legislative and
regulatory bodies. HRDC also works to reform regulation governing intrastate prison and jail phone calls.
Lowering the costs of calls from prisons, jails, juvenile facilities and other detention centers eases the burden on
prisoners’ families, who are disproportionately poor, people of color and members of communities already hit
hard by mass incarceration. Moreover, for prisoners who are functionally illiterate or suffer from mental
disorders and cannot rely on written correspondence, phone calls are the primary means of maintaining family
ties and parental relationships.
Very Truly Yours,

By: Lance T. Weber
General Counsel
PO Box 1151 Lake Worth, FL 33460
Phone: 561-360-2523 Fax: 866-735-7136

1. Over the past thirty years, the U.S. prison population has ballooned to 2.3 million – the highest
incarcerated population in the world – engendering reports of prisoner abuse, systemic indifference to
medical or mental health needs, and dangerous, even life-threatening, housing conditions. A
disproportionate number of these prisoners are from historically marginalized or vulnerable communities the poor, people of color, or individuals with mental and developmental disabilities. Consequently, the need
for prisoners to understand legal issues relevant to their confinement, such as the operations of corrections
facilities, jail and prison conditions, and prisoner health and safety, is essential.
2. Many U.S. prisons, however, have institutional barriers preventing prisoners from receiving such
information. Publishers have their books and magazines censored, and their right to communicate with
prisoners stifled. Under the pretext of enhancing prison security and promoting efficiency, these policies
were crafted to save funds by streamlining the mail screening process and limiting opportunities to
introduce contraband into correctional facilities. However, by censoring prisoner access to information,
these policies in effect further marginalize prisoners from the community at large, obstruct their ability to
stay apprised of their rights and undermine constitutional and human rights norms and standards. Over the
past five years, an increasing number of jails have initiated policies mandating that all personal written
correspondence to or from the jail take place via postcard - radically restricting a prisoner’s ability to
communicate with the outside world. In practice, they have the perverse effect of deterring written
communication between incarcerated people and their communities, straining connections that are essential
for both successful reintegration and for preventing reoffending.
3. The imposition of exorbitant user fees and costs for phone calls underscores the troubling trend within
U.S. prisons to isolate prisoners from their social and familial networks. In the prison phone market, state
and local government entities grant monopolies to telephone companies by entering into exclusive contracts
in exchange for commissions or “kick-backs” from the revenue collected. These commission payments
result in fees and surcharges that can significantly increase the cost of making even a single phone call.
Consequently, prisoners - many of whom are poor and cannot afford to pay these costs - are further isolated
from their families and community. Moreover, for prisoners who are functionally illiterate or suffer from
mental disorders and cannot rely on written correspondence, phone calls are the primary means of
maintaining family ties and parental relationship, or to communicate about issues related to their
The Human Rights Defense Center (HRDC) publishes Prison Legal News (PLN), a monthly journal
of corrections news and analysis, and disseminates books about the criminal justice system, legal reference
books, and self-help books of interest to prisoners. PLN has approximately 9,000 subscribers in the United
States and abroad, including prisoners and law librarians in approximately 2,200 correctional facilities
across the United States, including institutions within the Federal Bureau of Prisons. HRDC is the foremost
advocate on behalf of the free speech rights of publishers to communicate with prisoners and the right of
prisoners to receive publications and communications from outside sources. HRDC's attorneys bring First
Amendment cases against prison and jail officials who use illegal mail policies to censor Prison Legal News
or other literature mailed to prisoners by Prison Legal News such as PLN's books and letters. As a result, it
has been successful in overturning a number of postcard-only policies and other publication bans. Through
advocacy and legislative reform efforts, HRDC also works to lower the costs of prison phone calls and ease
the financial burden on prisoners and their families.
Nevertheless, many U.S. prisons continue to censor books and magazines to prisoners, limit
correspondence to and from prison facilities to postcards, and impose exorbitant and cost-prohibitive fees
and surcharges to phone calls.

a. U.S. Constitutional Framework – The Right to Send and Receive Publications and Other
Correspondence under the First and Fourteenth Amendment to the U.S. Constitution.
“Prison walls do not form a barrier separating prison inmates from the protections of the
Constitution,”i nor do they bar others “from exercising their own constitutional rights by reaching out to
those on the ‘inside.”ii The U.S. Constitution requires government actors to ensure that its policies,
practices, and actions do not violate the First Amendment and the Due Process and Equal Protection Clauses
of the Fourteenth Amendment. While prisoners are not entitled to full First Amendment rights, any
encroachment on their freedom of speech must be “reasonably related to legitimate penological objectives.”
When prisons censor publications and correspondence sent to prisoners, it violates these fundamental
principles.iii Moreover, many prisons fail to provide adequate notice to publishers or other senders of
correspondence that their mail is being censored or provide an opportunity to appeal the censorship.
A publisher’s right to send publications and other correspondence is clearly established. “[T]here is
no question that publishers who wish to communicate with those who…willingly seek their point of view
have a legitimate First Amendment interest in access to prisoners.”iv When the speech covers topics of great
public concern, moreover, it “occupies the highest rung of the hierarchy of First Amendment values, and is
entitled to special protection.”v
In determining whether the free speech rights of publishers have been violated, the U.S. Supreme
Court has set forth a four-pronged balancing test: (1) “there must be a ‘valid, rational connection’ between
the prison regulation and the legitimate governmental interest put forward to justify it.” vi The first factor is
“sine qua non: if the prison fails to show that the regulation is rationally related to a legitimate penological
objective, [the Court] do[es] not consider the other factors.”vii (2) “whether there are alternative means of
exercising the right that remain open,” allowing “other avenues” for the “asserted right.” viii (3) “the impact
accommodation of the asserted constitutional right will have on guards and other prisoners, and on the
allocation of prison resources generally.”ix (4) whether “the existence of obvious, easy alternatives may be
evidence that the regulation is not reasonable, but is an ‘exaggerated response’ to prison concerns.”x
b. The Censorship of Publications and Other Correspondence First Amendment Rights
i. No Rational Relation to Legitimate Penological Objective
Although security concerns can be a valid penological interest, the postcard-only policy or blanket
bans are not rationally related to meeting that penological objective. In fact, cutting prisoners off from
meaningful communications with the outside actually undermines public safety. The U.S. Supreme Court
has recognized that “the weight of professional opinion seems to be that inmate freedom to correspond with
outsiders advances rather than retards the goal of rehabilitation.”xi Such restrictions are harmful because
prisoners are often easier to manage in custody when they are connected with friends and family in the
outside world. Similarly, such a policy undermines public safety because it keeps prisoners from
developing the relationships with the outside world they need to prepare themselves for a productive life
beyond bars.
Additionally, any limited improvements in staff time do not justify the sweeping restrictions on First
Amendment rights caused by such policies. Prior challenges to unduly restrictive correctional mail policies
have held that any minimal savings of staff time here would not be enough to uphold the policy.xii Rather
than demonstrably improving staff efficiency or time management, these policies do little more than limit a
publisher’s First Amendment rights and dissuade outsiders from corresponding with prisoners due to the
extra effort required under the policy.

ii. There Are No Alternative Means of Exercising PLN’s First Amendment Rights
These censorship policies prevent publishers from sending informational brochure packs,
subscription renewal letters, and copies of case law that are relevant to prisoners. It also prevents third
parties from sending copies of articles or legal material to prisoners. Moreover, sending subscription
renewal letters and informational brochure packs to prisoners allows publishers to fulfill their mission by
communicating with prisoners about the services and resources they offer. These communications generate
revenue to allow publishers to further their mission. Similarly, by sending copies of recent case law to
prisoners, publishers further their mission to provide the public with access to important legal materials.
Consequently, publishers have no other reasonable, alternative ways to ensure prisoners receive this
information. As it relates to postcard only policies, it is not feasible for publishers to print an entire legal
decision, or all the information contained in their brochures, forms, and book lists, on postcards. This would
require a large volume of postcards, and a corresponding increase in cost to purchase postcards and have
staff print them.
iii. Accommodating First Amendment Rights by Delivering Publications and Other
Correspondence Would Impose No Significant Burden on Jail Officials, Other
Prisoners, or Allocation of Resources
This factor considers the impact that “accommodation of the asserted constitutional right will have
on guards and other inmates, and on the allocation of prison resources generally.”xiii Because of the high
likelihood that even the smallest changes will have some “ramification of the liberty of others or on the use
of the prison’s limited resources[,]” this factor weighs most heavily when “accommodation of an asserted
right will have a significant ‘ripple effect’ on fellow inmates or on prison staff.”xiv Also, “the policies
followed at other well-run institutions [are] relevant to a determination of the need for a particular type of
Allowing enveloped mail creates no significant burden on jail officials. Numerous prison and jail
systems that do not enforce a publication ban or postcard-only policy, but instead perform general mail
inspections. The prevalence of the alternative policies allowing for enveloped mail among such “well-run
institutions” suggests that these policies do not increase efficiency enough to result in their widespread
adoption. As to the impact on prisoners, censoring publisher’s materials only hinders rehabilitative efforts,
as prisoners are deprived of reading material that would educate them and provide a constructive use of
iv. A Ban on Publications or a Postcard Policy is an Exaggerated Response to Perceived
Security Concerns
Even if a publisher’s material or correspondence presented a genuine threat to institutional security
or staff time management – which most do not – Jail staff could remove the correspondence from its
envelope, review its contents for contraband, and deliver the items to their intended recipients. This
alternative fully addresses a publisher’s First Amendment rights at little to no cost to a prison’s penological
interests in safety and staff efficiency. Moreover, the fact that systems like the Federal Bureau of Prisons
and large county jails all accommodate enveloped mail without compromised security evidences that such
policies are an exaggerated response to the potential dangers that accompany the postal service.xvi
c. The Failure to Provide Publishers with Notice and an Opportunity to Challenge
Censorship Violates the Due Process Clause of the Fourteenth Amendment
The Due Process Clause requires that jails must provide both the prisoner and sender with notice and
opportunity to challenge a correctional facility’s censorship and refusal to deliver an incoming
publication.xvii Providing notice and an opportunity to be heard is important because it allows publishers to

investigate and to challenge violations of their First Amendment rights, as well as to assist subscribers in
filing challenges to such violations within the correctional grievance system.xviii Conversely, if correctional
facilities are allowed to simply throw away items that they choose not to deliver, it is impossible for
publishers and prisoners to know what materials are not being delivered and subsequently challenge the
basis for the refusals.xix Correctional facilities in other jurisdictions provide due process to publishers and
prisoners when refusing to deliver publications and correspondence. For instance, the Federal Bureau of
Prisons promptly notifies prisoners and publishers, identifying the specific articles or materials rejected and
allowing independent review of a rejection decision.xx This policy was upheld by the Supreme Court and
acts as a model for other correctional facilities.xxi
d. Exorbitant Prison Phone Fees and Surcharges is a Financial Barrier that Frustrates
Meaningful Contact with Friends and Family
Up to 70% of the costs of telephone calls from prisons and jails have nothing to do with the cost of
the phone service provided. Detention facilities across the country have exclusive contracts with prison
phone companies like Securus, Global Tel*Link and CenturyLink. Most of these contracts guarantee a
substantial “commission” kickback to the state or county agency that is usually based on a percentage of the
gross revenue from phone calls made by prisoners. As a result, contracts often go to the company that offers
the highest kickback, not the lowest calling rates. Prisoners’ families end up paying inflated rates due to
these unfair contracts. Most states profit handsomely from prison phone kickbacks, receiving around $128.3
million in 2012. Only 8 states do not accept prison phone kickbacks, and they have some of the lowest
phone rates in the nation.
Studies show that prisoners who maintain contact with their families while incarcerated are less
likely to reoffend after they are released; that is, they have lower recidivism rates. Our communities benefit
when prisoners and their families maintain contact that will help them succeed post-release – but inflated
prison and jail phone rates post a financial barrier that frustrates such contact.
The national Campaign for Prison Phone Justice achieved success in August 2013 when the FCC
voted to cap interstate (long distance) prison and jail phone calls to $.21/minute for debit and pre-paid calls
and $.25/minute for collect calls. These rates went into effect on February 11, 2014. While the FCC’s
unprecedented order helps many families, much more remains to be done. An estimated 85% of calls from
detention facilities are made within the same state (intrastate). Thus, the focus must now shift to extending
similar reforms and rate caps to intrastate prison and jail phone calls. Lowering the costs of calls from
prisons, jails, juvenile facilities and other detention centers will ease the burden on prisoners’ families, who
are disproportionately poor, people of color and members of communities already hit hard by mass
a. Recommendations as to censorship of publications and other correspondence to prisons:
i. All jails should allow personal communication via letter and envelope. Jails that currently
enforce postcard-only restrictions should revoke their postcard requirements and instead
use the predominant mail screening methods implemented by prisons and the vast
majority of jails;
ii. State regulatory agencies that are responsible for jail oversight should prohibit postcardonly mail policies;
iii. State and local commission boards should restrict funding to jails and other detention
facilities that continue to enforce unconstitutional mail censorship policies;

iv. Correctional associations should refuse to accredit correctional facilities with
unconstitutional mail censorship policies.
b. Recommendations as to regulating prison phone calls:
i. Prisons or other detention facilities should refuse to accept commissions from contracts
with prison telephone companies;
ii. Prisons or other detention facilities should refuse to contract with any company that is not
fully transparent about how fees and commissions are calculated;
iii. The FCC should impose reasonable rate and fee caps on all prison and jail telephone
iv. The FCC should ban commission payments in all prison and jail telephone contracts;
v. Audit legitimate fee collection by prison and jail phone companies to ensure compliance
with FCC policy.


Turner v. Safley, 482 U.S. 78, 84 (1987).
Thornburgh v. Abbott, 490 U.S. 401, 407 (1989)
HRDC has successfully challenged numerous censorship policies nationally. See e.g., Prison Legal News v. Lewis County, et. al.,
No.: 14-cv-05304 (W.D.Wa. Sept. 10, 2014)(enjoining jail from enforcing post-card only policy); Prison Legal News v. County of
Ventura, et. al., No. cv 14-0773 (C.D. Cal. May 19, 2014)(enjoining jail from refusing to deliver PLN); Prison Legal News v.
Mascara, No. 13-cv-14481 (S.D. Fla., Apr. 8, 2014)(enjoining jail from not delivering PLN’s correspondence); Prison Legal News v.
Columbia Cnty., 942 F. Supp. 2d 1068 (D.Or. 2013); Prison Legal News v. Chapman, 2013 WL 1296367 (M.D.Ga. 2013)(enjoining
jail from refusing to provide PLN’s Prison Legal News periodical to inmates); Prison Legal News v. Betterton, No. 2:12-cv-00699
(E.D. Tex., Sept. 30, 2013)(enjoining jail from publication ban and lack of due process); Prison Legal News v. Jones, No. 2:11-cv00907 (E.D. Cal., Mar. 8, 2012) (enjoining refusal to deliver PLN publications and mailings); Prison Legal News v. Lehman, 397 F.3d
692 (9th Cir. 2005)(granting summary judgment and permanent injunctive relief on prison’s ban of non-subscription bulk mail and
catalogs unconstitutional); Prison Legal News v. Cook, 238 F.3d 1145, 1151 (9th Cir. 2001)(concluding that mail restriction was not
rationally related to a legitimate penological objective and declining to consider the other Turner factors).
Connick v. Myers, 461 U.S. 138, 145 (1983) (internal quotation marks omitted); see also Pell v. Procunier, 417 U.S. 817, 830 n.7
(1974) (“[T]he conditions in this Nation’s prisons are a matter that is both newsworthy and of great public importance”).
Turner, 482 U.S. at 89 (quoting Block v. Rutherford, 468 U.S. 576, 586 (1984)).
Hrdlicka v. Reniff, 631 F.3d 1044, 1051 (9th Cir. 2011) (quoting Ashker v. Cal. Dep’t of Corr., 350 F.3d 917, 922 (9th Cir. 2003));
Prison Legal News v. Cook, 238 F.3d 1145, 1151 (9th Cir. 2001) (concluding that mail restriction was not rationally related to a
legitimate penological objective and declining to consider the other Turner factors).
Turner, 482 U.S. at 90 (internal quotation marks omitted).
Id. (quoting Block, 468 U.S. at 581)
Procunier v. Martinez, 416 U.S. 396, 412–13 (1974), overruled on other grounds by Abbott, 490 U.S. at 413–14.
See Prison Legal News v. Lehman, 397 F.3d 692, 700 (9th Cir. 2005) (rejecting regulation designed to reduce volume of mail);
Cook, 238 F.3d at 1151 (rejecting administrative burden justification where lifting the ban would result only in “the addition of 15 to
30 pieces of mail” each day); Clement v. Cal. Dept. of Corr., 364 F.3d 1148, 1152 (9th Cir. 2004) (prohibiting a certain type of mail to
reduce total volume “is an arbitrary way to achieve a reduction in mail volume”).
Turner, 482 U.S. at 90.
Martinez, 416 U.S. at 414 n.14 ; see also Morrison v. Hall, 261 F.3d 896, 905 (9th Cir. 2001) (citing Martinez, 416 U.S. at 414
See Morrison, 261 F.3d at 905 (finding that alternative “policies followed at other well-run institutions” evidenced that easy and
obvious alternatives existed to the challenged regulation) (citations omitted).
See Procunier, 416 U.S. at 418 (requiring that “an inmate be notified of the rejection of a letter written by or addressed to him, that
the author of that letter be given a reasonable opportunity to protest that decision, and that complaints be referred to a prison official
other than the person who originally disapproved the correspondence”); Cook, 238 F.3d at 1152–53 (violation of due process where
correctional institution “fail[s] to provide notice and administrative review” in rejecting mail); Krug v. Lutz, 329 F.3d 692, 697–98
(9th Cir. 2003) (noting that “this circuit has repeatedly acknowledged … the right to appeal the exclusion of incoming publications.”);
Prison Legal News v. Lehman, 272 F. Supp. 2d 1151, 1159, 1164 (W.D. Wash. 2003) (granting injunction in favor of PLN on due
process issue), aff’d, 397 F.3d 692 (9th Cir. 2005).
See Montcalm Publ’g. Corp. v. Beck, 80 F.3d 105, 108–09 (4th Cir. 1996).
xix 109 (stating that notice to the prisoner alone is insufficient because “[a]n inmate who cannot even see the publication can
hardly mount an effective challenge to the decision to withhold that publication”)
See Abbott, 490 U.S. at 406.