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censorship in prisons
This page considers censorship in custodial institutions:
practice that illustrates tension in content regulation
and in the conceptualisation of human rights.
It covers -
It
complements the discussion of crime, justice and human
rights elsewhere on this site.
introduction
Prisoners (including those who are in custody but not
convicted of an offence) are often "out of sight
and out of mind". It is unsurprising therefore that
little of the debate in Australia and elsewhere touches
on questions of free speech by prisoners and restrictions
on the content that can be accessed by prisoners.
For some observers any restrictions are appropriate, given
perceptions that prisoners have surrendered rights by
committing crimes and being duly convicted. Such perceptions
are reflected in rhetoric that custodial institutions
pamper inmates, who should be deprived of access to television,
who are unworthy of access to books and who would be "over-stimulated"
by adult magazines.
Other observers, whether on the basis of principle or
pragmatism ("if they are entertained they are less
likely to riot"), have endorsed less restrictive
regimes and even suggested that censorship might militate
against rehabilitation.
Action by managers of institutions is often reactive,
responding to particular incidents, community anxieties
or political inflection points. In advanced economies
it appears to be predominantly driven by budgets rather
than principles. Prisons for example usually have libraries
... but not very good ones and poor conditions for reading.
Television is a sedative, with little inmate choice regarding
program selection. Prisoners typically have little or
no access to the internet, both as a matter of policy
and because infrastructure is not provided.
Communication may be surveilled and even interdicted,
with punishment of inmates for example through withdrawal
of "letter writing privileges", confiscation
of incoming/outgoing mail and limits on the volume or
format of correspondence (notably restriction to sending
a specific number of postcards per year).
That censorship has been permitted, even endorsed by US,
Australian, UK and other courts.
The US Supreme Court, for example, in Beard v. Banks
(2006) ruled that inmates of the high security unit at
Pennsylvania's state prison in Pittsburgh do not have
a First Amendment right to newspapers, magazines, and
personal photographs.
In Procunier v. Martinez (1974) the same court
held that the First Amendment did not allow administrators
to censor prisoners' personal mail, with Thurgood Marshall
arguing that "prisoners are ... entitled to use the
mails as a medium of free expression not as a privilege,
but rather as a constitutionally guaranteed right"
and that censorship fosters "an artificial increase
of alienation from society", representing an intolerable
affront to human dignity. Affronts were considered quite
tolerable in Turner v. Safley (1987), where the
court articulated a general standard for rules that restrict
rights: "when a prison regulation impinges on inmates'
constitutional rights the regulation is valid if it is
reasonably related to legitimate penological interests".
In Australia s47(m) of the Corrections Act 1968
(Vic) provides
a right to send letters to, and receive letters from inter
alia the Minister, a member of Parliament, a lawyer, the
Ombudsman and the Health Services Commissioner without
that correspondence being opened by prison staff.
Section 47A however provides that "suspected dangerous
letters may be disposed of", 47B that the above "confidential
letters may be inspected" in particular circumstances,
and 47C that "all other letters may be opened and
read" in relation to "the safety and security
of the prison, the safe custody and welfare of any prisoner
or the safety of the community".
Under 47D of that Act where a letter "contains indecent,
abusive, threatening or offensive written or pictorial
matter, or written or pictorial matter that may be regarded
by a victim as distressing or traumatic, or an indecent,
obscene or offensive article or substance" officials
may "stop the letter from being sent or received
by the prisoner" or "cause the relevant part
of the letter to be censored". In theory convicts
thus should not be able to stalk
victims from behind bars.
Some jurisdictions have crimped commercialisation of 'murderabilia',
allowing inmates to create visual art works but not to
sell (or even to convey) those works.
studies
As a point of entry to the Australian literature see Prisoners
as Citizens: Human Rights in Australian Prisons (Leichardt:
Federation Press 2002) edited by David Brown & Meredith
Wilkie
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