By Paul Wright
This month’s cover story continues our ongoing coverage of solitary confinement. Since our inception in 1990 PLN has reported on the use and growth of solitary confinement as a means of torture against prisoners. As the physical torture of prisoners was slowly enjoined by the courts in the 1970s (prisoners were still being flogged in the yard of the Tennessee State Penitentiary as recently as the 1970s and Arkansas prisoners were having their genitals electrocuted with the “Tucker telephone” in the same time period), solitary confinement became the preferred means of torture by American prison and jail officials. While the use of beatings, pepper spray, electrical shocks, restraints, etc., never actually went away their routine administrative use declined with the rise of solitary confinement.
The United States has used solitary confinement to torture its citizens for centuries, going back to the early 1800s and since then it has been very well documented that solitary confinement tends to make otherwise normal people mentally ill and the mentally ill even sicker. As we reported at the time, through the 1990s the United States doubled its prison population and at the same time massively increased the use of solitary confinement with “supermax” prisons designed solely to hold large numbers of prisoners in total isolation.
Recent years have seen efforts to curtail the use of solitary confinement and reduce both the numbers of prisoners subjected to it as well its duration. The Human Rights Defense Center, which publishes Prison Legal News, has been one of the longest advocates for this. We have reported on a number of states in recent years enacting legislation to curb the use of solitary confinement and many have significantly reduced the number of prisoners held in isolation. However, much remains to be done and significant criticisms remain on many of the reforms enacted to date, such as prisoners not having a means to challenge segregation placement in the first place, rights without enforcement are not rights at all and one of the biggest issues remains lack of objective criteria before prisoners are placed in isolation.
Since our inception HRDC and PLN have fought to ensure that prisoners can receive our publications. We have litigated First Amendment and censorship issues across the country. In last month’s editorial I mentioned we were beginning our trial in El Dorado, Arkansas against the sheriff and county of Union because the local jail bans all books and magazines. After a two-day trial, a jury of 7 women and one man took an hour to rule against us and find the ban was constitutional and the sheriff’s ban on publications was legal. The trial capped six years of litigation and brought into relief the fact that at least 74 out of 75 jails in Arkansas ban books and magazines despite extensive bodies of case law holding such bans are unconstitutional.
HRDC was ably represented at trial by Paul James, Caesar Kalinowski IV, Hara Fischbein and Loree Stark. Despite a lackluster defense the jail won. HRDC has had around a dozen of these censorship cases go to trial over the past 20 years and I have attended all of them and we usually win. This was our first jury trial. During voir dire it became clear that the jury pool really, really liked the police. At least a dozen jurors stated they could not rule against law enforcement regardless of the evidence and they all “backed the blue.” Several others had to say how much they personally liked and admired the sheriff and the jail administrators. Then others had to say that as tax payers they could not envision awarding damages against the government.
While none of these prospective jurors made it onto the jury, the ones who did apparently shared those sentiments. Our legal team did a great job on both direct and cross examination of the witnesses. They showed the defendants were prone to committing perjury by showing affidavits they had signed under penalty of perjury in a pro se prisoner lawsuit last year where they falsely claimed the jail had no ban on publications.
HRDC will be appealing the verdict, which is contrary to prevailing case law. If the jury system is supposed to be bulwark of constitutional liberty it was in poor shape last month. One thought that struck me as we left the courtroom was if the jury pool is this enamored of the police state in a civil rights case, woe betide the criminal defendants facing trial in that venue.
Our local counsel, Paul James of Little Rock, Caesar Kalinowski IV with the Seattle firm of Davis Wright Tremaine and Hara Fischbein and Loree Stark, HRDC staff attorneys, were exceptionally well prepared and we put on a great case. Alas, it was not enough at this level. The case is Human Rights Defense Center v. Union County, Arkansas, Case No. 1:17-CV-1064 (WD AR).
On March 30, 2023, another judge in Arkansas issued an injunction and ruled in our favor to a challenge to the Baxter County jail’s ban on publications which we also filed in 2017. We will be reporting that decision in an upcoming issue of PLN. That case required a bench trial, which we lost, a successful appeal to the Eighth circuit and yet another bench trial on remand last September. We have been litigating both cases for six years now.
These cases are enormously expensive to bring and litigate. The reality is that in many parts of the country no one has the will, the interest or the resources to challenge these censorship policies and no one cares enough to actually do something about them to ensure that prisoners can receive books and magazines in the mail. Here at HRDC we do but we require your help and support to fight for free speech. We currently have over a dozen censorship cases pending across the country on these very issues.
If you care about free speech and can afford to support our efforts to support it please donate now. Just our out of pocket expenses to show up in court rooms around the country cost thousands of dollars. Sadly, our opponents are bankrolled by the taxpayers and if their resources are not limitless, they are certainly much greater than ours.
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