Calif. appeals court shows unusual solicitude for prisoner rights

Monday, June 11, 2012

It’s relatively rare for a prison inmate — especially one supposedly to be a gang member — to win a free-speech lawsuit over censored mail. But that’s exactly what happened to James Crawford, an inmate at Pelican Bay State Prison in California.

Crawford had written a letter to the San Francisco Bay View National Black Newspaper, contending that an earlier article in the newspaper had minimized the number of American political prisoners. Crawford said there were many political prisoners like himself in solitary confinement “because of political beliefs as a New Afrikan Nationalist Revolutionary Man.”

Correctional officer J. Silveira intercepted the letter and considered that it promoted gang activity. Silveira, who monitors the mail of Black Guerilla Family members or associates at Pelican Bay State Prison, said the letter supported BGF. It is unclear from the opinion whether Crawford is a BGF member. What is clear is that Crawford insisted that he was not promoting gang ideology or beliefs in his letter.

Crawford first exhausted his administrative appeals, which were unsuccessful, before filing a lawsuit in De Norte County Superior Court. The superior court summarily denied Crawford’s suit, writing that “the Department of Corrections may rely upon the expertise of its staff in recognizing gang-related correspondence.” Crawford then took his case to the California Court of Appeals.

The appeals court reversed the lower court and ruled in Crawford’s favor in its June 4 opinion in In Re James Crawford.

Silveira contended that Crawford’s letter contained coded messages about gang activity and promoted the BGF. He said Crawford’s letter could be used to recruit gang members. Crawford countered that his letter contained nothing about illegal gang activity and was simply urging that “more prisoners in California [be recognized] as political prisoners.”

Crawford also submitted a declaration from James T. Campbell, a professor at Stanford University whose expertise is African-American history. Campbell concluded that Crawford’s letter was “rooted in a political tradition with deep roots in African-American intellectual and political history.” The professor explained that the terms “New Afrika” and “New Afrikan” were related to the movement in the 1960s and 1970s that advocated for African-Americans’ rights of self-determination and ability to form their own republic.

In siding with inmate Crawford, the appeals court observed that “the measure of our resolve as a society to protect free expression must be our willingness to tolerate unpleasant speech by those speaking from the margins of political opinion.” The opinion noted that the U.S. Supreme Court has protected much unpopular speech, including the burning of the American flag as a form of political protest in Texas v. Johnson (1989) and allowing Nazis to march in a predominately Jewish neighborhood in Nationalist Socialist Party v. Skokie (1977).

The appeals court also recognized that there is a greater security risk in prisons caused by incoming mail than outgoing mail.  According to the appeals court, incoming prisoner mail is subjected to the Supreme Court’s deferential standard of reasonableness in Turner v. Safley (1987), while outgoing mail is subjected to the higher standard of Procunier v. Martinez (1974).

Under Procunier v. Martinez, outgoing inmate mail can be censored only if it the prison restriction “furthers a substantial governmental interest unrelated to the suppression of free expression” such as security. Furthermore, under this standard, the restriction must be “no greater than necessary or essential to the protection” of the government interest.

The California appeals court found that prison officials in this case failed to meet this standard, Silveira’s declaration being “incompetent as evidence because it contains no factual allegations” and is “based solely on speculation or conjecture.”

“Silveira does not explain what the so-called BGF ideology is or how that ideology threatens prison security,” the court wrote. “The declaration is devoid of any explanation of BGF ideology or examples of how that ideology has threatened prison security in the past.”

The appeals court concluded that confiscation of the letter “was neither ‘necessary’ nor ‘essential’ to prison security.”

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