Skip navigation
× You have 2 more free articles available this month. Subscribe today.

Washington DOC Settles Mail Censorship Suit

In early October, 1999, the Wash- ington Department of Corrections settled a wide ranging lawsuit challenging various aspects of its mail censorship policies. PLN reported the filing of the suit in its November, 1997, issue. The lawsuit had publisher plaintiffs Humanists of Washington, the ACLU's National Prison Project and PLN. Prisoner plaintiffs included Jerry Hawkins, Mike Peterson, Randy Tollefson, William Harris, PLN contributing writer Mark Cook and PLN editor Paul Wright. The suit sought only injunctive and declaratory relief. The suit was later amended to raise other issues as the DOC expanded its censorship practices.

"Bulk Mail": The DOC agreed to deliver subscription publications regardless of the postage paid by the publisher, i.e., third or fourth class mail, also known as "bulk mail." The DOC had previously lost this issue in Miniken v. Walter, 978 F. Supp. 1356 (ED WA 1997)[PLN, Feb. 1998]. The settlement does not affect the DOC's practice of destroying, without notice to the sender or intended recipient, mail other than subscription publications sent via third and fourth class mail. That issue remains for further litigation.

Gift Subscriptions: The DOC agreed to allow prisoners to receive books and publications purchased or given to them by anyone except the friends and families of other prisoners. The DOC had previously lost this issue at the trial court level and on appeal. See: Crofton v. Roe, 170 F.3d 957 (9th Cir. 1999)[PLN, July, 1999].

MIM Notes: Since August, 1995, the Washington DOC had banned all issues of MIM Notes, the biweekly tabloid published by the Maoist International movement, claiming it advocated armed struggle. Under the settlement the DOC agreed to review each publication individually and presumably deliver it regardless of the armed struggle claim.

Sexually Explicit Materials: In the initial and amended complaints the plaintiffs had challenged the DOC's de facto ban on all sexually explicit materials. The plaintiffs agreed to dismiss this claim without prejudice since Ninth circuit rulings issued after the suit was filed made this claim unlikely to succeed.

Infractions for Possession of Sexually Explicit Materials: In settling the lawsuit the defendants agreed to amend WAC 137-28-260(728) which allows for the punishment of prisoners who possess sexually explicit materials as defined by the DOC. The amendment to the WAC makes the receipt of such items through the mail a complete defense to the infraction and splits the infraction into major and minor infractions. As part of the settlement plaintiff William Harris had an infraction he had received for possession of sexually explicit materials expunged from his record. Washington readers should note that this issue was never litigated before the case settled. Courts have repeatedly held that prison officials cannot punish prisoners for the exercise of First amendment rights such as possessing various written materials that are themselves not illegal (i.e., child pornography for example). See: Larkins v. Oswald, 510 F.2d 583 (2nd Cir. 1975) and Sostre v. McGinnis, 442 F.2d 178 (2nd Cir. 1971). Thus, while prison officials may be able to censor sexually explicit materials, it is probably unconstitutional to punish prisoners for the possession of non obscene sexually explicit materials. More so when one considers that Washington prisoners have been, and are, punished for writing sexually explicit letters to spouses, girl/boy friends, etc.

Censorship Appeals: The DOC agreed that the person ordering the censorship of an item would not be the same person to hear the appeal of the same censorship. The prisoncrat hearing the appeal will be of higher rank than the initial censor.

Specific Notice of Censored Items: The DOC will tell prisoners when it has censored materials on grounds of being sexually explicit if it was due to pictorial, written, advertising or cartoon content.

The plaintiffs dropped their claim that due process requires that the prisoner be given an opportunity to examine mail censored for reasons other than its content in order to prepare censorship appears. That issue remains for future litigation.

Prisoner to Prisoner Mail: The plaintiffs dismissed their challenge to the Washington DOC's ban on prisoner to prisoner mail. Readers should note that in the context of legal assistance such a policy has already been found unconstitutional See: Storseth v. Spellman, 654 F.2d 1349 (9th Cir. 1981). While the supreme court upheld a ban on prisoner to prisoner mail in Turner v. Safley, 107 S.Ct. 2254 (1987) the court left open the issue of whether such mail could be banned in the context of prisoners assisting each other with legal pleadings.

Receipt of Legal Materials: The DOC agreed to deliver court rulings, briefs, complaints, motions, etc., to prisoners provided they are mailed by a non prisoner and do not "threaten legitimate penological interests." Prior to the settlement the DOC randomly censored legal materials, such as court rulings, by claiming they "belonged to another inmate." This portion of the settlement only applies to the nine Washington prisons that have law libraries. It does not apply to camps and minimum security facilities. Prisoners in camps without law libraries who have such materials censored will presumably have to file suit on this issue as well. Under the settlement prisoners can also mail legal materials to brief banks in other prisons for inclusion.

Stolen PLNs: Prison officials at the Airway Heights Corrections Center stole copies of PLN sent to readers at that prison via first class mail and then introduced the stolen PLNs as exhibits to attempt to defeat the claims made in Miniken. The DOC agreed to replace the PLNs stolen from PLN subscribers Billy Blankenship and Randy Tollefson.

IMU Publication Ban: The plaintiffs dropped their challenge to the ban on publications for prisoners in levels I and II of Washingtons Intensive Management Units (IMU). Under the guise of "property restrictions" the WA DOC bans prisoners in level I and II of IMU (there are four levels) from receiving books, magazines or newspapers). Under the settlement IMU prisoners who have publications withheld will be notified of the censorship. The DOC agreed to hold the publications for 90 days or until the prisoner subscriber is no longer on level I or II of IMU (or gets out of IMU), whichever happens first. The sender is not notified of the censorship. The DOC claims prisoners are never kept in level I or II of IMU for more than 90 days, therefore they should eventually receive their subscriptions and written materials. At this point, Washington is the only prison system in the country which bans all publications in its control units. The practice has been found unconstitutional in other states, by was upheld by the federal district court in Tacoma in a pro se suit filed by PLN subscriber James Koop. Further litigation is needed on this issue.

Copies and Clippings: The DOC agreed to allow prisoners to receive up to ten newspaper articles per envelope (it had been one), up to one magazine article per envelope (it had been none) and all carbon and photocopies that are not multiple copies of the same document (previously all copies had been banned).

Postage Stamp Ban: In September, 1999, the DOC banned stamps in all of its prisons. They had planned to charge prisoners 42¢ for embossed envelopes they were going to peddle in conjunction with their private business partners in "correctional" industries. The plaintiffs challenged this as well. The result was the DOC agreed to sell prisoners embossed envelopes at cost (35¢ each) and it got the legislature to amend RCW 72.09.480, yet again, to allow for a postage account so prisoners can have money sent in by outside parties for the purpose of buying postage without having any of it seized by the state.

After the suit was settled, and acting without any statutory authority, Eldon Vail, assistant DOC secretary, put a $50 limit on the amount the postage account could hold. This more than likely violates the First amendment to the extent it impacts prisoners' ability to send out mail. The DOC has since admitted that its accounting system does not allow prisoners to buy the embossed envelopes from the prison commissary with money from their postage accounts. It violates the First Amendment to charge prisoners more to use the mails. This issue remains for further litigation as well.

The settlement went into effect on January 5, 2000. The defendants agreed not to seek dismissal for at least 30 months at which point they can seek dismissal under 18 U.S.C. § 3626(b)(1) of the Prison Litigation Reform Act. The plaintiffs can oppose such dismissal. The settlement is not a consent decree but a contract that can be enforced as such in state or federal court.

The DOC agreed to pay the plaintiffs $61,541.00 in attorney fees and costs. The plaintiffs were represented by ACLU cooperating attorneys Joseph Bringman of Perkins Coie and Michael Gendler, of Bricklin and Gendler, both Seattle law firms. The lawsuit was sponsored by the ACLU of Washington and the attorney fees recovered in the action were donated to the ACLU to fund future litigation. PLN would like to thank Messrs. Bringman and Gendler and the Washington ACLU for their efforts on behalf of the plaintiffs, Washington prisoners and those who correspond with us. Washington readers should note that the settlement does not bar or preclude other lawsuits on these issues, or lawsuits for damages. The settlement is unpublished. Anyone desiring a copy of it should send $5.00 to PLN and specify what you want. See: Humanists of Washington v. Lehman, USDC WDWA, Case No. C97-5499FDB.

As a digital subscriber to Prison Legal News, you can access full text and downloads for this and other premium content.

Subscribe today

Already a subscriber? Login

Related legal case

Humanists of Washington v. Lehman

The settlement is in the brief bank.