Prison Book Bans and Lessons from Attica

by Gloria Kim, Vol. 21 Staff Writer

On March 31st, 2022, the ACLU of New York (NYCLU) and the Civil Rights Clinic from the Benjamin Cardozo School of Law filed a civil suit in the Southern District of New York against a New York State Department of Corrections and Community Supervision (DOCCS) book ban on “Blood in the Water: The Attica Prison Uprising and Its Legacy,” by Pulitzer Prize winning author Heather Ann Thompson. DOCCS banned the book immediately after it was published in 2016. On July 27th, 2022, a New York Assistant Attorney General sent a letter to the District Judge for this case stating that based on the “passage of time,” DOCCS permitted a revised paperback version. The deleted portion is limited to a two-page map of the Attica Correctional Facilities.  

Why are books censored in prisons?

Prisons are given broad discretion to censor books given to incarcerated persons under the First Amendment. The controlling case is Turner v. Safley which held that “when a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.” The court in Turner set out a four-factor test for determining reasonableness:

• [A] ‘valid, rational connection’ between the prison regulation and the legitimate governmental interest put forward to justify it. . . .
• [T]he reasonableness of a prison restriction . . . is whether there are alternative means of exercising the right to remain open to prison inmates . . . courts [being] particularly conscious of the ‘measure of judicial deference owed to corrections officials. . . .
• [T]he impact accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally. . . .
• The absence of ready alternatives [as non-determinative] evidence of the reasonableness of a prison regulation.

According to the National Institute of Corrections, “[t]he Federal Bureau of Prisons (BOP) regulations state that publications can only be rejected if they are found to be ‘detrimental to the security, good order, or discipline of the institution or if it might facilitate criminal activity.” This broad discretion given to prison officials in determining which books to exclude is often challenged as arbitrary, vaguely related to the standards specified (if at all), and harmful to the rehabilitation of imprisoned persons. For example, a New York prison attempted to ban a book containing maps of the moon because the book could “present risks of escape,” and Arizona prisons banning a book on Dragonology.

Further exacerbating the issue is a lack of standardization and transparency. Each prison system varies in their selection of these banned books lists and the information is often not readily available to the public. A 2019 report by PEN America found that “books about racism, injustice, and civil rights have frequently been subject to bans across the country.” They also note that Blood in the Water was banned from New Hampshire state prisons as well. Many books from preeminent authors such as Joyce Carol Oates have been banned as well. Some organizations pushing for change have made their own databases tracking banned books, like the Marshall Project, a nonprofit, nonpartisan organization for criminal law news. Their searchable database includes 18 states, the only ones who publicly post their lists of banned books. Notable titles include:

• Several adult coloring books, both explicit and non-explicit – banned in Florida prisons
• American Gods, a 2001 novel by Neil Gaiman – banned in North Carolina prisons
• Conception pregnancy & birth the childbirth bible – banned in Texas prisons for images of a nude child
• The Redbook, a legal citation guide – banned in Connecticut prisons for its wire binding and “encouraging or instructing on the commision [sic] of criminal activity”
• A Star Wars Role-Playing game manual – banned in Michigan prisons for its “[t]hreat to the order and security of the institution; provides information and guidelines to participate in fantasy role-playing games”

Attica and its legacy

One of the reasons for the Attica Prison Riots was the inmates’ concern that their freedom of self-expression was being impermissibly restricted. Thompson stated in an interview that the imprisoned persons “were often not allowed to read the letters . . . [nor] books that would come to them in the mail. And one of the things they just asked for was a basic recognition that they were human beings, and they had a right to read.” Though allowing an edited version of Blood in the Water may seem to be a small victory, it took six years to achieve, and the vast majority of claims by incarcerated persons fall under the radar of the media and general public.

The main challenge comes from the 1996 Prison Litigation Reform Act (PLRA) otherwise known as 42 U.S. Code § 1997e which requires that “[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” Prisons can implement a laundry list of internal procedurals (hurdles) for the inmates to overcome before they can sue in federal court. This has successfully shut out many claims over the years since PLRA’s enactment. Some examples according to PEN are: “implement[ing] unreasonably short filing deadlines, extend[ing] timelines as a stalling tactic, creat[ing] multiple layers of review, or craft[ing] procedural dead ends.” Some policies were successfully rescinded through public outcry such as New York’s 4911A directive which banned book donations and limited books for purchase-only through a short list of pre-approved vendors, or an Ohio policy restricting used or damaged books. However, this method is not reliable in the long-term “particularly in states without meaningful disclosure or review requirements, many bans may go entirely unnoticed,” according to the PEN report analysis.

Without help from the legislature, more of these policies are likely to pass over the low bar of the Turner test. Studies show that fostering education and free access to prison libraries helps to decrease the recidivism rate by 43%, increase intergenerational literacy, increase employment prospects post-incarceration, promotes a safer environment, and increase literacy rates. Many incarcerated individuals such as Christopher Blackwell attest to the value of reading in prison. With few other activities to keep imprisoned persons intellectually stimulated, access to literature from a cultural standpoint and as a rehabilitative tool is invaluable. Stronger protections and policies that guard against arbitrary evaluation are necessary. These could be in the form of laws which raise the standard by increasing transparency, detailing heightened criteria for banning books, including consideration of literary merit, and implementing occasional review of prison book ban policies.