Month: September 2019

The prison staff carted the books away in late January, removing more than 200 titles from a small library inside the Danville Correctional Center in Illinois.

The library was part of the Education Justice Project (EJP), a college education program for inmates run by the University of Illinois. The prison removed the books without notice; Rebecca Ginsburg, director of the program, says it took weeks to get an answer about why the library had been pillaged. She was eventually told that prison officials had decided the books hadn’t gone through the proper review process. Emails obtained through public records requests later revealed that they had been concerned about “racially motivated” materials in the library.

According to Ginsburg, the removal followed months of increased scrutiny that included rejecting books from the proposed curriculum for the upcoming semester. Among the rejected or removed titles: W.E.B. Du Bois’s The Souls of Black Folks, the autobiography of Frederick Douglass, and Booker T. Washington’s Up From Slavery.

“At one point they actually threatened to throw away the books that they had confiscated, over 200 books,” Ginsburg says. “I’m a professor, so to me books are this magical thing, and to talk about throwing books away…it was extraordinary.”

The censorship drew national headlines and brought embarrassing attention to the state prison system. The Illinois Department of Corrections has since revised its literature policies, although the books taken from EJP were never returned.

The incident at Danville was just one of several stories about prison censorship to make the national news this year, and only a small example of the unmitigated power of prison censors across the country, according to a new report released this week by PEN America.

The report details how U.S. prisons arbitrarily apply book bans in the name of institutional security. Texas, for example, bans The Color Purple but not Mein Kampf. Michelle Alexander’s The New Jim Crow was banned in prisons in North Carolina, Florida, Michigan, and New Jersey, although those bans were reversed after they received media attention. A New York prison tried to ban a book of maps of the moon, claiming it presented an escape risk.

The PEN America report concludes that prison book censorship policies across the country “are almost uniformly overbroad, arbitrary, under-examined, under-challenged, and maximally restrictive well past the point of reason.”

Other state prison systems have tried to ban donations of used books to inmates, citing flimsy concerns over contraband. And publications that report aggressively on the criminal justice system, such as Reason, are often impounded by prison censors. Prison Legal News, a vital source of legal information for inmates, is completely banned in Florida prisons.

“We see over and over again that it’s disproportionately books by or about people of color, books that are critical of the criminal justice system, and books that advocate minority or controversial political or social views,” says David Fathi, director of the American Civil Liberties Union (ACLU) national prison project. “This is the kind of content-based and viewpoint-based censorship that is most inimical to First Amendment values.”

The result is that the hardest place to read about the U.S. criminal justice system—the subject of bestselling books, a glut of podcasts, and prestige television shows and documentaries—is from inside the U.S. criminal justice system.

For example, earlier this year the Arizona’s Department of Corrections (ADOC) banned Paul Butler’s Chokehold: Policing Black Men, a nonfiction book about race and policing. The ACLU sent a demand letter arguing the ban violated the First Amendment. The ACLU was preparing to litigate when the ADOC relented and reversed the ban in June.

In April, the ACLU sent a letter to the Chatham County Sheriff in Georgia urging him to rescind a policy that banned almost all books except for the sparse few already on the jail’s book cart.

Maryland officials also briefly floated a proposal to severely limit from its prisons. They scrapped the idea after receiving a swift public backlash.

Last year, Pennsylvania and Washington both attempted to ban donations of used books to inmates. All books would have to be purchased through approved vendors, which often offer limited selections at high prices or require inmates to purchase electronic tablets. The prisons cited security concerns over contraband, but news investigations showed there was little actual evidence of smuggling via donated dictionaries.

Nonprofit groups like Books to Prisoners, which sends thousands of volumes a year to inmates who request them, say such policies have been getting more restrictive in recent years.

“Prison book programs have been having to deal with this for years and years and years, and it just seems to be getting worse since the end of 2017,” says Michelle Dillon, a board member of Books to Prisoners.

Dillon says Books to Prisoners spends about $70,000 a year sending packages of books to inmates, roughly $45,000 of which goes toward shipping costs. It doesn’t have the money or resources to keep track of shifting mailroom policies and book ban lists. (Kansas prisons, for example, banned 7,000 different titles until recently.)

“We just have to cross prisons off the list at some point and redirect our limited money towards those prisons where we can be assured that we’ll get in,” Dillon says. “It’s unfortunate of course for the people who are incarcerated in that state, because I know they want books, and we want to send them books. But oftentimes you just have to send a little note card back to say, ‘Hey, we’re sorry, but your facility does not allow our program.'”

For inmates, more than 95 percent of whom will be released at some point, books more than just a temporary mental escape from confinement.

“Those books tell people who are incarcerated not to give up,” Jarrett Adams, a formerly incarcerated civil rights attorney, told PEN America. “I would not be where I am today if it weren’t for having been able to read certain books that addressed systemic racism and mass incarceration.”

While what goes on behind prison walls may seem like a distant concern for people on the outside, Fathi says it is quite the opposite.

“Prisoners are the canary in the coal mine,” Fathi says. “When you look at how the government treats prisoners, you see what unchecked, arbitrary government power looks like. And it’s not pretty.”

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Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice.

New on the podcast: A special Ninth Circuit edition recorded before a live student audience at UCLA Law. Featuring UCLA Professors Eugene Volokh and Richard Re as well as Jones Day Associate Robert Everett Johnson. Click here for iTunes.

• Fed up with conditions for laboratory animals at Howard University, attending veterinarian contacts the NIH to let it know about the recent deaths from heat exhaustion of 21 mice. The university responds by shortening her contract by six months. D.C. Circuit: Which may be illegal retaliation against a False Claims Act whistleblower.
• During a criminal trial of four co-defendants, a juror’s wife is diagnosed with a brain tumor. Three of the defendants agree to proceed with a jury of 11. The government agrees to proceed if all four defendants agree to do so. The fourth defendant—who has tried repeatedly to get out of the case—holds out. The court declares a mistrial. Does double jeopardy bar retrial? First Circuit: Not at all. The mistrial was manifestly necessary. (Plus, the defense now has a sneak peek at the prosecution’s case.)
• Allegation: Connecticut voting law counts prisoners in the district where their prison is located rather than their home district—even though most do not have the right to vote and those who do can vote only in their home district. Which artificially inflates voting power in the white rural areas where prisons are located and deflates representation in the majority-minority urban areas of the state. Second Circuit: This should be heard before a three-judge panel at the district court.
• The Mohegan Sun Arena, a publicly owned Wilkes-Barre, Penn. event space, sequesters protestors in a special enclosure near the arena’s entrances. The facility also prohibits protestors from swearing or using megaphones. Animal rights group: Those restrictions violate the First Amendment! Third Circuit: Yes and no. The special enclosure is valid since that’s a reasonable measure to prevent congestion at the arena’s entrances. But singling out protestors for bans on profanity and megaphones? The arena hasn’t come close to justifying those rules.
• When New Jersey repealed its prohibition on sports betting, the NCAA, NFL, NBA, MLB, and NHL sued, arguing repeal violated federal law. The leagues won in the trial court, but racetrack owners who wanted to offer sports betting eventually won before the U.S. Supreme Court. Can the racetrack owners now collect on the $3.4 million the leagues were forced to put up as bond after they won a temporary restraining order in the trial court? Third Circuit (over a dissent): That’s the risk the leagues ran when they asked for a TRO.
• Dallas-area photographer responds to the scene of an overdose, begins photographing victim and paramedics. Transit officer orders him to stop and arrests him when he refuses to do so. Whoops! Transit department guidelines—adopted while the officer was on medical leave—explicitly permit this sort of photography. Fifth Circuit: Reasonable officers know they can’t arrest you for things that aren’t illegal. No qualified immunity.
• This Sixth Circuit opinion (holding that sovereign citizens’ unconventional beliefs are not enough to stop them from representing themselves) contains, in the view of your humble editors, a surprisingly touching tribute to individual autonomy—as well as a narrative menagerie including Batman and 46 quintillion dollars.
• The University of Michigan has established a “Bias Response Team” that responds to student-reported “bias incidents.” Although it lacks any power to impose punishments, it can make referrals to police or the university. Does that unconstitutionally chill speech? A free speech advocacy group whose members attend the school has associational standing to find out, says two-thirds of a Sixth Circuit panel.
• Detroit police raid home. Oops! The owner is—unbeknownst to the officers—a licensed medical marijuana provider, who is not pleased when an officer shoots, kills two of his dogs. Owner: The dogs were calm. Officer: The dogs were aggressive. And one was unlicensed and therefore contraband. Sixth Circuit: No qualified immunity. The owner can sue the officer.
• Sixth Circuit: Getting stinking drunk and then cleaning a gun may be “dumb,” but, without more, it does not justify involuntary commitment. No qualified immunity for cops who committed a woman for doing just that. Dissent: You’d be singing a different tune if the gun owner had actually harmed herself following the text message “Good bye.” The police acted reasonably.
• The U.S. Supreme Court’s decision in Reed v. Town of Gilbert worked a revolution in the First Amendment treatment of content-based regulation of signs. Seventh Circuit: Which doesn’t help the owners of Leibundguth Storage & Van Service in Downers Grove, Ill., whose sign (picture in opinion) is treated just as badly as anyone else’s.
• Allegation: Driver attempts to exit mall parking lot to avoid approaching security guard, an off-duty Little Rock, Ark. police officer. As the car drives away from the officer, he opens fire, hitting the driver in the back four times and a passenger in the face. Excessive force? Officer: The car was actually backing up toward me and other guards when I fired. Eighth Circuit: This goes to a jury. No qualified immunity. (Per The Washington Post, the officer was involved in 69 use of force incidents over six years.)
• Tenth Circuit: There’s chutzpah and then there’s arguing that the guards you employ to provide security to state-legal marijuana businesses can’t avail themselves of federal labor law because they participate in “drug trafficking.”
• State court in Bryan County, Ga. issues man an $895 speeding ticket. Man: I don’t have that kind of cash on me right now. Judge: OK, pay it within two weeks. The man pays the fine the next day. But months later, a probation officer submits a warrant for the man’s arrest for … not paying the fine. And months after that, he’s arrested. And briefly jailed. Which causes him to get fired from his job. Eleventh Circuit: The probation officer enjoys qualified immunity from the man’s federal claims, but she’s not immune from the man’s state-law tort claims.
• Colorado police arrest two men for handing out information on jury nullification outside a Denver courthouse. A First Amendment violation? Colorado Supreme Court (over a dissent): No need to decide that. The statute applies only to efforts to influence a specific case, and these guys didn’t care what cases prospective jurors might sit on.
• And in en banc news, the Fourth Circuit will not reconsider its holding that the feds’ power to regulate interstate commerce permits them to prosecute a man who attacked a coworker out of anti-gay animus. Judge Agee, who dissented from the panel ruling, writes that the issue of when noneconomic activity falls under the scope of the Commerce Clause is one the Supremes should address “without delay.” The Fifth Circuit, however, will reconsider its recent holding that Mississippi’s legislative boundaries (redrawn in 2012) dilute African Americans’ voting strength in the Mississippi Delta in violation of the Voting Rights Act.

Zion, Ill. forces landlords to force tenants to submit to warrantless inspections of their homes. Landlords who refuse may face fines of up to $750 per day or have their right to rent property revoked altogether. Which doesn’t sit right with Dorice and Robert Pierce, who have called their apartment home since 2000. After the Pierces demanded that inspectors produce a warrant before searching their home, officials threatened them with eviction (and their landlord with ruinous fines). Which is unconstitutional, so today the Pierces and their landlord joined with IJ to challenge Zion’s rental inspection ordinance in federal court. Click here to learn more.

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Can a federal judge sentence you for a crime your jury says you didn’t commit? In a sane world, the answer would be “no.” If a prosecutor charges you with five crimes, and the jury finds you not guilty of four of them, the judge who then doles out the sentence should be able to consider only that one guilty verdict.

Yet federal judges can, and often do, use what’s called “acquitted conduct”—charges for which a person has been found not guilty—when sentencing defendants for the crimes the jury says they did commit. It’s a horrifying bug in the federal criminal justice system that doesn’t get nearly enough attention. Until now. 

Sens. Dick Durbin (D–Ill.) and Chuck Grassley (R–Iowa) introduced a bill this week that would expressly prohibit the use of acquitted conduct at sentencing. “If any American is acquitted of charges by a jury of their peers, then some sentencing judge shouldn’t be able to find them guilty anyway and add to their punishment,” Grassley said in a statement released this week. “That’s not acceptable and it’s not American.”

The power of acquitted conduct is a deadly arrow in the prosecutor’s quiver. The fact that a judge will consider at sentencing every offense the prosecutor charges, even if jurors don’t buy the prosecutor’s pitch, essentially allows prosecutors to game the justice system. They can charge a defendant with an offense they know they can prove beyond a reasonable doubt, and then charge more serious offenses, with tougher penalties, that they can’t prove. Even if jurors act responsibly by convicting only on charges proved beyond a reasonable doubt, and refuse to convict on the reach charges, the prosecutor still wins when the judge takes all the charges into consideration at sentencing.  

“Under our Constitution, defendants can only be convicted of a crime if a jury of their peers finds they are guilty beyond a reasonable doubt,” Durbin said in a statement. “However, federal law inexplicably allows judges to override a jury verdict of ‘not guilty’ by sentencing defendants for acquitted conduct.”

A laundry list of criminal justice reform groups supports Durbin and Grassley’s bill, titled the Prohibiting Punishment of Acquitted Conduct Act. The bill would amend the federal criminal code “to preclude a court of the United States from considering, except for purposes of mitigating a sentence, acquitted conduct at sentencing,” and it would “define ‘acquitted conduct’ to include acts for which a person was criminally charged and adjudicated not guilty after trial in a Federal, State, Tribal, or Juvenile court, or acts underlying a criminal charge or juvenile information dismissed upon a motion for acquittal.”

The bill has support from several libertarian and conservative groups, including Americans for Prosperity, the American Conservative Union, Americans for Tax Reform, FreedomWorks, Prison Fellowship, the R Street Institute, Right on Crime, and Koch Industries. 

It’s not hard to see why this bill has bipartisan support. But to understand why the practice exists at all—and why some people will inevitably eventually oppose this bill—it helps to think of the federal criminal code as a choose-your-own-adventure book in which three out of every four narrative choices end in “go to prison.” Police and prosecutors want to keep it that way.

The use of acquitted conduct at sentencing empowers prosecutors at the very early stages of the justice adventure. Upon gathering enough evidence to make an arrest, the prosecutor can file enough charges that, if the defendant is convicted of all of them, he or she will go to prison for a very long time. So the prosecutor encourages the defendant to plead guilty and receive a lesser sentence. Staring down the barrel of 20 years in prison if they lose at trial, versus 10 or five if they plead guilty, more than 95 percent of federal defendants plead guilty.

But what if the defendant didn’t do everything she was accused of, or if the prosecutor’s evidence against her is weak? Well, she can take her case to trial and have it out before a jury. And instead of 20 years in prison, or 10, or five, maybe she is acquitted of all charges and gets no time in prison, or is convicted of only a fraction of the charges and spends only two or three years in prison.

That’s when acquitted conduct comes into play. Prosecutors can lose before the jury and still win at sentencing. 

“Using acquitted conduct to set sentences heightens the temptation of prosecutorial overreach by blunting the downside to the government,” reads an amicus brief filed by FAMM* and the National Association of Federal Defenders in Asaro v. United States, an acquitted conduct case that the Supreme Court has been asked to hear. The authors go on to write: 

If the defendant succumbs to the government’s aggressive charges and pleads guilty, the government wins; if he goes to trial and is convicted on those charges, the government still wins; and if he goes to trial and persuades a jury that he is innocent of them, the government still wins, so long as it secures conviction on a more easily proved offense and persuades the sentencing judge of his guilt by a preponderance of the evidence. When acquittal of certain counts is just a “speed bump at sentencing”…prosecutors have little to lose by larding an indictment with charges they cannot prove beyond a reasonable doubt. The government has conceded as much, acknowledging that punishing acquitted conduct encourages charges prosecutors would otherwise forgo.

This is a bad practice. Thankfully, it’s one Congress appears willing to address without waiting for the Supreme Court.

• Full disclosure: I served as FAMM’s communications director from 2014 to 2016. 

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