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Indiana DOC Settles HRDC Mail Censorship Suit

by Chuck Sharman

On September 21, 2021, the Indiana Department of Corrections (INDOC) agreed to a slate of policy reforms embodied in a consent decree to settle a censorship lawsuit filed by the Human Rights Defense Center (HRDC), publisher of Prison Legal News (PLN)and Criminal Legal News (CLN). In addition, INDOC also agreed to pay HRDC a total of $265,000 in damages and attorney’s fees.

HRDC’s complaint was filed in November 2020 after what it termed “haphazard” censorship of its publications at INDOC prisons, including:

• Twenty-two consecutive monthly issues of PLN published from July 2018 to April 2020, which were confiscated at the state penitentiary;

• A dozen issues of PLN and CLN published from May 2018 to July 2020, along with copies of Prison Education Guide, The Criminal Law Handbook, How to Win Your Personal Injury Claim 9th Edition, the Merriam-Webster Dictionary, Merriam-Webster’s Dictionary of Law, The Best 500 Non-Profit Organizations for Prisoners & Their Families, and Beyond Bars: Rejoining Society After Prison, all of which were seized at Pendleton Correctional Facility;

• Ten monthly issues of PLN and CLN published between August 2018 and March 2020, which were seized at New Castle Correctional Center; and

• Four monthly issues of PLN and CLN published between October 2018 and April 2020, along with copies of the Disciplinary Self-Help Litigation Manual, all of which were confiscated at Miami Correctional Facility.

The problem, the complaint noted, was both an abrogation of HRDC’s free speech rights under the U.S. Constitution and a disruption of its business with dozens PLN and CLN subscribers incarcerated by INDOC.

Worse, those prisoner subscribers were the ones who informed HRDC that its publications had been seized, since INDOC failed to do so, violating the publisher’s 14th Amendment due process rights.

INDOC staff employed a number of excuses for censoring the items they did, marking some “Not approved” and others “duplicate,” while others were stamped “refused” by prisoners who didn’t do so. Still other prisoner recipients were erroneously said to be “no longer here” or “unable to identify,” creating a maddening labyrinth of excuses that was impossible to navigate.

Recognizing the important constitutional issues at stake, the U.S. Court for the Southern District of Indiana granted HRDC a preliminary injunction on January 22, 2021, to keep INDOC from continuing its censorship while the case proceeded. The injunction was later incorporated into the settlement agreement.

INDOC will still be allowed to censor any incoming publications for “a legitimate penological interest.” But it must provide timely notice—within ten days—to the sender, who then has a right to file appeal that will also be heard in a timely manner.

In the settlement agreement reached between the parties, INDOC agreed to pay HRDC $35,000 in damages, plus another $230,000 in attorney fees and costs. Prison officials have 60 days from the date of the settlement agreement to draft new policies to accommodate HRDC and similar publishers, with a one-hour training program to be developed and administered to staff by the end of January 2022.

HRDC, a Florida non-profit, has published PLN since 1990 and CLN since 2017. It was represented in this matter by Richard A. Waples of the Indianapolis firm of Waples & Hangar, along with Kenneth G. Schuler, Marc N. Zubick, Sarah W. Wang, Kirsten C. Lee and Greer M. Gaddie of the Chicago firm of Latham & Watkins, LLP, as well as in-house counsel Daniel Marshall and Jesse Isom. See: Human Rights Defense Center v. Robert E. Carter, Jr., USDC, SD IN, Case No. 1:20-cv-02979-JRS-MJD. 

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Related legal case

Human Rights Defense Center v. Robert E. Carter, Jr.