CDCR Adopts New Contraband Rules on Obscene, Gang-related Materials

by Michael Brodheim

In the aftermath of a 2013 ruling by the California Court of Appeal that found a book containing sexually explicit content was not obscene and must be returned to the prisoner who ordered it, and following a hunger strike staged in July 2013 by nearly 30,000 state prisoners, the California Department of Corrections and Rehabilitation (CDCR) proposed and adopted new contraband rules governing obscene and security threat group (STG)-related materials.

Critics and prisoner advocacy groups claim the new rules are nothing more than a thinly-veiled attempt to retaliate by further restricting the reading materials that prisoners can receive and possess. Prison Legal News submitted a six-page comment on June 16, 2014 objecting to the proposed rules, which amend Cal. Code of Reg. Title 15, sections 3006, 3134.1 and 3135.

“There’s a lot of non-sexual speech that will be banned if these regulations are put into effect,” said Paul Wright, executive director of the Human Rights Defense Center, PLN’s parent organization. “This isn’t a new tactic, for hundreds of years the guise of ‘obscenity’ has been used to crush political speech; not just among prisoners, originally it was used to punish criticism of the church.”

Under the new contraband rules, subsection 3006(c)(19) provides that prisoners shall not possess or have under their control “written materials or photographs that indicate an association with validated STG members or associates.” According to the CDCR, “This change is necessary to ensure the safety and security of the institutions by disallowing publications that indicate an association with groups that are oppositional to authority and society.”

Further, under amended subsection 3135(d), “Inmates shall not possess or have under their control obscene material and/or mail containing information concerning where, how, or from whom obscene material may be obtained.” The rules define “obscene material” to include “catalogs, advertisements, brochures, and/or material taken as a whole, which to the average person, applying contemporary statewide standards, appeals to the prurient interest. It is material which taken as a whole, depicts sexual conduct, and lacks serious literary, artistic, political, or scientific value.”

The new regulations also provide that “Text-only material shall not be considered obscene unless designated by the Division of Adult Institutions.”

Some advocates, both inside and outside the prison walls, believe the rules are, at least in part, retaliation for the 2013 hunger strike that involved around 30,000 prisoners across the state, which followed an initial strike in 2011. [See: PLN, July 2012, p.32]. One activist noted that in 2013, every monthly issue of the San FranciscoBay View from January to June except one was “disallowed” at Pelican Bay State Prison and withheld until well after the hunger strike began. The issues were replete with letters from prisoners explaining and discussing the reasons for the upcoming protest.

“These prisoners are essentially being punished for trying to alert the media to conditions of extreme solitary confinement inside California’s prison,” said Peter Sussman, a retired journalist who has campaigned for years for media access to prisoners. “The California hunger strike was successful at educating the public because information got in and out – CDCR wants to make sure they cut off every channel of communication, [so] this never happens again.”

Under the CDCR’s new rules, the definition of contraband is expanded to include any “written materials or photographs that indicate an association with validated STG members or associates ....” Possession of contraband is a disciplinary violation that can result in sanctions and lead to a prisoner being validated as an STG member or associate, in turn leading to indefinite solitary confinement.

“CDCR says they are shifting from a system of gang-validation based on mere association to a conduct-based system, where a prisoner actually has to do something to be deemed a dangerous gang member,” said California attorney Charles Carbone. “But they are leaving a pretty big back door open here that will allow them to use the same flimsy evidence – a letter, a photograph, a book or newspaper – to justify placement in long-term isolation.”

“Actually, these regulations are potentially worse,” Carbone continued, “because they can call something a prisoner writes ‘contraband’ and justify sanctioning them as well. There’s no public safety issue being served here.”

Critics also point to a recent California Court of Appeal ruling as another underlying reason for the new regulations. In May 2013 the appellate court ordered the state to deliver to a prisoner a book he had ordered, which had been withheld by prison officials on the grounds that it contained sexually explicit content.

The issue arose in late 2010 when CDCR prisoner Andres Martinez, held in the Security Housing Unit at Pelican Bay State Prison, ordered a copy of The Silver Crown, published by Black Lace Books (a company specializing in erotic books written by women, for women). Prison officials confiscated the book after determining it contained sexually explicit content, including descriptions of sex acts between humans and werewolves.

Martinez filed a petition for writ of habeas corpus in Del Norte County Superior Court, which found that prison officials had acted within their discretion by withholding the book. The court relied on case law defining obscenity as including sexually explicit material “that would generally not be considered obscene outside prison walls.”

In overturning the lower court, the Court of Appeal held The Silver Crown was not “obscene” under the governing statutes and prison regulations even though it contained sexually explicit content – including “intercourse, sodomy, oral-genital contact, oral-anal contact, voyeurism, exhibitionism, and ménage à trois.” Moreover, it was not likely to incite violence among prisoners despite the fact that it included descriptions of “a fair amount” of violent acts; the Court noted that “other more violent books are available to prisoners in the SHU general library.”

In his appeal, Martinez had argued that prison officials who confiscated the book had misapplied the regulatory criteria by failing to apply the third prong of Title 15, subsection 3006(c)(15)(A), namely whether the book, “taken as a whole, lacks serious literary, artistic, political, or scientific value.”

The appellate court rejected the suggestion that the question before it was whether state authorities could lawfully restrict prisoners’ First Amendment rights by limiting their access to sexually explicit but not obscene materials – a constitutional question which would be subject to the deferential-to-prison-officials standard of Turner v. Safley, 482 U.S. 78 (1987) – and instead focused on the state-law question regarding restrictions on reading materials.

Examining the “Inmate Bill of Rights” in Penal Code section 2601, the Court of Appeal concluded that the legislature intended to allow prisoners to receive and read any material that does not qualify as “obscene” under the statewide standard articulated in Penal Code section 311, which requires an assessment of literary value. In making that assessment, the Court found The Silver Crown did not lack serious literary value and therefore was not obscene. Thus, the book was allowable reading material for prisoners. See: In re Martinez, 216 Cal. App. 4th 1141 (Cal. App. 1st Dist. 2013).

According to the CDCR, under its newly adopted rules, at subsection 3006(c)(15)(D), “text-only publications shall not be considered obscene unless designated by DAI [Division of Adult Institutions].” The DIA’s decision is governed by subsections 3006(c)(15)(A)-(C), which set forth the definition and categories of obscene material. “The amended regulations eliminate differences between institutions about whether text-only publications are obscene by referring that decision to the DAI,” the CDCR stated. “This action is designed to avoid erroneous disallowance of text-only material and is consistent with Martinez.”

The CDCR’s new contraband rules concerning obscene and STG-related materials were approved by the Office of Administrative Law and went into effect on April 30, 2015. In addition to PLN, 46 other organizations and individuals had filed written comments, mostly objecting to the rules.

Additional sources: www.cdcr.ca.gov, www.thedailybeast.com

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