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The Long Silence: Federal Prisoners' Fight to Get the Word Out Reaches Unprintable Extremes
But as U.S. Bureau of Prisons prisoner #48374-066, Jordan has no right to publish anything, anywhere, about any of these matters. According to his keepers, even the act of trying to get his views into print amounts to a violation of prison regulations, subject to disciplinary action. In the past year, Jordan has been punished twice for the crime of "acting as a reporter or publishing under a byline," offenses that have resulted in his losing some of the few privileges he has left as a 23-hour-a-day lockdown prisoner in the highest-security prison in the country.
Jordan's case highlights what has become an increasingly heated and litigious battle over the information flow in and out of the federal prison system. In recent months, federal authorities have drastically tightened the restrictions placed on incoming and outgoing mail at the U.S. Penitentiary Administrative Maximum in Florence (better known as ADX), confiscating a wide range of publications sent to prisoners and taking action against cell-block writers who seek to publish articles about their experiences.
The move appears to be part of a nationwide trend, both in federal and state prisons, to further constrict prisoners' limited ability to communicate with the media. But the crackdown has been particularly harsh at ADX, where Jordan has been placed in isolation for the past three years pending an investigation into an homicide at another penitentiary, a case in which no charges have been filed.
Prison officials say the increased scrutiny of prisoner mail is a necessary security measure at the Florence supermax, which houses many of the most formidable terrorists in the entire federal system, including Unabomber Theodore Kaczynski, Colombian hit man Dandenis Muñoz Mosquera and Ramzi Yousef, convicted of conspiracy in the 1993 World Trade Center bombing. But civil libertarians, prison activists and other critics of the blanket censorship have questioned its legality.
"It's patently unconstitutional," says California author and prison researcher Peter Sussman, who's battled the Bureau of Prisons over its no-byline rule in federal court. "We don't hold prisoners incommunicado in this country but apparently we do now."
"I believe that the recent actions inhibiting my efforts to publish are related to the homicide investigation and to prohibiting prisoners from revealing many of the things that go on here at ADX," Jordan wrote in a recent letter to Westword. "Public scrutiny is the last thing these people would like."
ADX officials review all incoming mail and have traditionally invoked security concerns to ban certain publications, such as racist and anarchist tracts and even Prison Legal News, on the grounds that they could prove "disruptive" to prison operations. Several months ago, though, warden Michael Pugh declared that any article "that contains specific information written by or about an inmate or inmates and their causes" would be subject to confiscation as "third-party inmate-to-inmate correspondence." The new policy has been used to keep prisoners from receiving particular issues of a wide range of mainstream publications, from Westword to the Christian Science Monitor to the New Yorker, simply because that issue contains an article that makes reference to a prisoner somewhere, regardless of whether the reference has any bearing on operations at ADX ("Off Limits," Westword, August 29).
"It could be an article about an inmate, his case, something that could encourage rioting anything that could endanger the security of the facility," says ADX spokeswoman Wendy Montgomery. (Pugh was recently transferred from ADX.)
One item that caught the attention of the prison's mailroom last year was an article Jordan published in Off!, a magazine put out by students at the State University of New York. In "The Social Bonds of the Have-Nots," Jordan wrote candidly about the reason he's been kept in administrative detention at ADX since mid-1999: his refusal to cooperate with FBI agents investigating a fatal stabbing that occurred in the recreation yard at U.S. Penitentiary Florence, across the road from ADX in the four-prison federal complex.
A bank robber serving what amounts to a 25-year sentence, Jordan is considered to be a medium-security prisoner, not a supermax case. But that all changed after another prisoner, David Brian Stone, was found stabbed in the back at USP Florence, one of the most violent federal pens in the country ("Marked for Death," Westword, May 25, 2000). Jordan was moved to ADX shortly afterward as a "temporary holdover," presumably until the murder investigation was completed.
"Although I am the only suspect, I did not commit the crime," Jordan wrote in Off!. "I had been friends with the deceased and the actual offender, and am ruefully familiar with the various intricacies that had brought this killing to its climax."
Jordan has refused to tell investigators what he knows about the murder, citing his own version of the convict code of silence: "The act of informing on another is a taboo that has been ingrained into the social contract of the oppressed." He claims that prison investigators have offered to move him from ADX if he will testify against another suspect in the killing, but he declined. (One official promised so many privileges that "I wouldn't even remember I was in prison," Jordan wrote.)
Jordan's copy of Off! was intercepted in the mailroom; at a disciplinary hearing, he was found guilty of "unauthorized contact with the public." The bureau's ban on prisoners publishing under a byline has existed for decades but has rarely been used; lately, though, it's been getting a workout at ADX. Unabomber Kaczynski has also written for Off! and was recently investigated for another article published in a radical environmental newsletter, Green Anarchy.
Perhaps the most famous use of the no-byline rule was an attempt in the late 1980s to silence Danny "Red Hog" Martin, a federal prisoner who wrote regular dispatches about prison life for the San Francisco Chronicle. Sussman, who was Martin's editor at the Chronicle and later co-authored a book with him called Committing Journalism, says the byline rule was used as a pretext for punishing Martin when his essays hit a nerve with prison administrators. The case turned into a long-running court battle between the newspaper and the bureau that was never fully resolved; the government managed to get the case dismissed as moot after Martin was paroled.
"We were the first case in the fifteen years the regulation had been in existence," Sussman recalls. "The theoretical reason for the rule is that [publishing] gives inmates standing among their fellow inmates; it makes them `big wheels.' But they knew all along that Danny was publishing under a byline. What happened was they put him in the hole, then they went looking for something to hold him on."
Sussman and Martin got around the byline ban by arranging to publish Martin's work anonymously ("By a Federal Prisoner"). Jordan tried a similar strategy, submitting a second article to Off! under a pseudonym. But ADX officials cited him again for violating the no-byline rule, stating that even a pseudonym wasn't permissible. In fact, one officer decided that the mere act of sending out the manuscript "constitutes an unauthorized contact with the public," regardless of whether it's published.
"He can send a letter to anybody," says ADX's Montgomery. "There's a difference between a letter and something written as an article for publication purposes. As long as it's a letter, they can write to anybody."
But the distinction may not be as clear-cut as Montgomery suggests. According to Bureau of Prisons spokesman Daniel Dunne, federal prisoners are still allowed to write letters to the editor, which are clearly intended for publication. What if an editor transforms that letter into a bylined article? If a family member receives a letter from a prisoner and turns it over to a reporter who prints its contents, can the prisoner get in trouble for that?
"Yes, because they're trying to circumvent the policy," Montgomery replies. "I would imagine it would be investigated."
Jordan has filed a series of actions in Denver's federal courts challenging his long "holdover" at ADX and the ongoing interference with his mail and his writings. He claims that the no-byline rule is overly broad and vague and tramples on his First Amendment rights. He argues that he has no control over whether a recipient views his work as a "letter" or an "article" or how it might be presented in a publication, yet he's punished for the result. And he says the possible consequences of being published which could include loss of "good time" that would otherwise shorten his sentence and restrictions on his mail, property, phone and visitor privileges have made him think twice every time he puts pen to paper.
"When I write the media...I am forced to weigh my interest in getting the information out there against the punitive consequences which are sure to follow," he writes. "Even when I write personal letters, I refrain from writing about certain things I would otherwise for fear of less official retaliatory punishment."
Sussman points out that several state prison systems have banned face-to-face interviews with prisoners, contending that prisoners have other means, such as writing letters, to communicate with the public. ADX's increased muzzling of its prisoners contradicts that assumption.
"They say prisoners have other ways to get their views out without being interviewed, but if you can't send mail to the news media, that's an issue in itself," Sussman says. "If you can't do that, there's no way to learn of abuses in the prison system."
Certainly, the blanket ban on articles about "inmates and their causes" could prevent ADX prisoners from reading about abuses in their own prison. Mark Jordan's expected release date is sixteen years away, and it may be that long before he's allowed to read this article.
Reprinted with permission from Westword.
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