In December 2013, Prison Legal News settled a federal lawsuit against Upshur County, Texas that alleged unconstitutional censorship when PLN’s publications were rejected by jail officials. The suit, filed in October 2012, named the county, Sheriff Anthony Betterton and Sheriff’s Lt. Jill McCauley as defendants.

According to the complaint, the Upshur County jail’s inmate handbook contained “no written criteria explaining when a publication will be rejected,” and the jail’s mail policy did “not provide a sender any notice or explanation when a book is censored.”

PLN mailed copies of its monthly publication to prisoners at the jail, as well as letters, renewal notices, brochures and copies of a book titled Protecting Your Health and Safety. The jail rejected approximately 90 of PLN’s publications over a one-year period, stamping them “No Newspaper,” “Unauthorized Mail,” “Not Approved” or “Refused.” The jail also rejected legal mail sent to prisoners by PLN’s attorneys. No notice was provided regarding this censorship, and PLN was not afforded an opportunity to appeal the rejection of its publications.

“The purpose of jail is to hold the criminally accused for trial, not to punish them,” said Lance Weber, general counsel for the Human Rights Defense Center (HRDC), PLN’s non-profit parent organization. “Depriving pretrial detainees too poor to afford bail – who are presumed innocent – of access to information that could assist them in enforcing their rights is inexcusable.”

On September 30, 2013, the district court granted PLN’s motion for a preliminary injunction, finding “The evidence suggests that at least some of PLN’s correspondence with prisoners has been withheld from its intended recipients, depriving Plaintiff of its First Amendment rights without due process of law.”

The jail had adopted a new mail policy prior to entry of the preliminary injunction; the court found the revised policy was a “clear improvement,” but “still falls short of establishing the minimum procedural safeguards constitutionally required to protect PLN’s First and Fourteenth Amendment rights.” The district court further held that PLN was likely to prevail on the merits of the case. Upshur County subsequently agreed to settle.

According to the terms of the settlement, entered as a consent decree, the defendants will implement a new Correspondence and Incoming Publications Plan at the jail, to include “disseminating a copy of the New Policy to all employees of the Upshur County Jail and confirming that each recipient has read the same, disseminating the New Policy to members of the general public by posting it conspicuously on a website maintained by or on behalf of the Upshur County Sheriff’s Office, and disseminating a copy of the New Policy to inmates by including it in the inmate handbook and by posting a copy in common areas for at least fourteen days.”

The jail’s new mail policy provides that prisoners can receive periodicals, books, newspapers, brochures, magazines and other correspondence – subject to specified security concerns – and that both prisoners and those who send them mail will receive notification of any censorship by jail staff, and will have the ability to appeal same. The county also agreed to pay $175,000 in damages, costs and attorneys’ fees.

“We are pleased with the outcome of this case, though it could have been resolved much earlier, at much lower cost to Upshur County, had county officials acknowledged that the previous mail policy in effect at the jail was inadequate,” said PLN editor Paul Wright.

PLN was ably represented by attorneys Thomas S. Leatherbury, Sean W. Kelly, Kimberly R. McCoy, and Marissa A. Wilson with the Dallas law firm of Vinson & Elkins LLP; Scott Medlock and Brian McGiverin with the Texas Civil Rights Project; and HRDC general counsel Lance Weber. See: Prison Legal News v. Betterton, U.S.D.C. (E.D. Texas), Case No. 2:12-cv-00699-JRG.

(First published by Prison Legal News and used here by permission)

About Christopher Zoukis, MBA

Christopher Zoukis, MBA, is the Managing Director of the Zoukis Consulting Group, a federal prison consultancy that assists attorneys, federal criminal defendants, and federal prisoners with prison preparation, in-prison matters, and reentry. His books include Directory of Federal Prisons (Middle Street Publishing, 2020), Federal Prison Handbook (Middle Street Publishing, 2017), Prison Education Guide (PLN Publishing, 2016), and College for Convicts: The Case for Higher Education in American Prisons (McFarland & Company, 2014).

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