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Human Rights Defense Center Litigation Update

This month marks the beginning of my second year practicing law with the Litigation Project of the Human Rights Defense Center. The Litigation Project was envisioned by PLN founder Paul Wright as a complement to HRDC’s principal project, Prison Legal News, for the purpose of engaging in litigation that advances the basic human rights of all prisoners – with the core focus being to ensure that prisoners can actually receive PLN’s books and monthly publication. In recent years, the attempts to censor PLN have increased dramatically and have consumed ever-increasing staff resources.

The number of severe violations of constitutional rights I read about on a daily basis is almost overwhelming. Sometimes I feel like I am standing outside in a thunderstorm trying to catch all the rain in a teacup. Although I cannot respond to every letter we receive, each one is methodically recorded and catalogued in anticipation of future litigation. If specifically requested to do so, I will forward letters to other counsel who may be interested in assisting prisoners with the litigation of their claims.

Since its inception, HRDC has encouraged (through PLN and the books it distributes) individual prisoner self-help as the primary vehicle for improvement of conditions of confinement due to the overwhelming need coupled with a lack of resources, but today HRDC is also positioning itself for direct action. Due to our very limited resources we can only review cases involving the most egregious legal violations and we have limited our representation of individual prisoners to catastrophic injury claims involving those severely injured by the criminal justice system, the estates of prisoners killed by institutional deliberate indifference, and wrongful conviction cases where a court has reversed the conviction. More information about this particular aspect of the Litigation Project will be shared in the coming months.

Together, PLN and its readers continue to expand First Amendment freedoms for all prisoners and those who wish to communicate with them. As many of you know, PLN encounters no difficulty in gaining access to prisoners at professionally-run prisons and jails. Law-abiding wardens and their staff have nothing to fear from a well-informed prisoner population whose members are not only aware of their rights but also know how to get judicial relief when they are wronged.

However, prison and jail officials who habitually break the law are perpetually busy inventing new justifications to try to keep PLN’s publications out of the hands of prisoners. Because PLN’s continued vitality is essential to HRDC’s mission, we have engaged a network of civil rights lawyers across the country to vigorously pursue the enforcement of PLN’s constitutional rights whenever prison or jail officials implement policies that prevent prisoners from receiving PLN literature. As in-house counsel, I am involved in each of PLN’s lawsuits and am responsible for ensuring that outside counsel is apprised of any new evidence relevant to patterns of censorship which are the focus of our First Amendment litigation.

At the moment, county jails are being much more problematic than state prisons. Some sheriffs and other officials in charge of county jails are still trampling on the First Amendment rights of prisoners and their correspondents with wild abandon almost 40 years after the U.S. Supreme Court held that the First Amendment applies to prisoner mail in Procunier v. Martinez, 416 U.S. 396 (1974) (striking down a California prison regulation which declared the use of mail by prisoners to be “a privilege, not a right”).

Indicative of this phenomenon, 7 of PLN’s 9 open and active censorship cases are pending in federal courts against the policy-makers of various jails. PLN needs your help to continue to right these wrongs and I want to encourage you to contact me if you learn about an illegal mail policy at one of these “troubled” facilities where PLN or its books are censored. We generally only have legal standing to act when PLN publications are censored.

Since there are about 3,800 jails in America, it is nearly impossible for us to learn which ones have illegal mail policies unless PLN readers let us know. Typically, a problem jail is brought to our attention by a PLN subscriber who submits a request for a change of address when he or she is transferred to a county jail for purposes of a new trial or some other proceeding that necessitates their presence at the county courthouse. When the next month’s issue of PLN arrives at the jail, it is either returned to PLN after being marked “no magazines allowed” or a similar notation, or it simply gets thrown in the trash.
Especially troubling is the fact that many of the jails engaging in these unlawful practices are very large facilities with sizeable populations where prisoners are housed for long periods of time.

Most of PLN’s subscribers are astute enough to file grievances when they happen to miss a monthly issue. It is critical to document the censorship of PLN materials when that occurs. When PLN’s readers send those grievances to me, I can begin to put together a case to vindicate the First Amendment rights of PLN, its readers, and all other prisoners and their correspondents. As we move on into this next year, I look forward to working with you to expand and solidify First Amendment protections by ensuring that prisoners at all detention facilities are able to receive Prison Legal News and the books and other literature that PLN distributes.

Lance Weber is Chief Counsel of the Human Rights Defense Center’s Litigation Project.

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