ACLU calls on Maryland prison officials to rescind new limits on book orders for inmates

The new policy limits book purchases in state-run facilities to two prison-approved vendors and is designed to reduce drug smuggling.

May 31, 2018
Stephen Moyer, Secretary
Department of Public Safety and Correctional Services
Office of the Secretary
300 East Joppa Road, Suite 1000
Towson, MD 21286
VIA EMAIL
AMERICAN CIVIL
LIBERTIES UNION
FOUNDATION OF
MARYLAND

MAIN OFFICE
& MAILING ADDRESS
3600 CLIPPER MILL ROAD
SUITE 350
BALTIMORE, MD 21211
T/410-889-8555
or 240-274-5295
F/410-366-7838
FIELD OFFICE
6930 CARROLL AVENUE
SUITE 610
TAKOMA PARK, MD 20912
T/240-274-5295
WWW.ACLU-MD.ORG
OFFICERS AND DIRECTORS

COLEMAN BAZELON
PRESIDENT
SUSAN GOERING
EXECUTIVE DIRECTOR
ANDREW FREEMAN
GENERAL COUNSEL

RE: New DPSCS Restrictions Denying Prisoners Access to Books, Institutional Bulletin
# 2018-02
Dear Secretary Moyer:
We write in support of the thousands of people in your custody, as well as their families
and other supporters, to urge you to immediately rescind Institutional Bulletin # 2018-02.
Among other things, this bulletin bans third-party book orders entirely, limits individuals
to books from two vendors with extremely limited offerings, and prohibits any individual
from possessing more than ten books.1
These draconian new restrictions, in combination with the numerous other pre-existing
restrictions that curtail access to books, effectively deny more than 20,000 Maryland
prisoners access to the overwhelming majority of books in existence, and prevent those of
us who wish to communicate with them through books from doing so. In our view, these
rules clearly violate the U.S. and Maryland Constitutions, are arbitrary and irrational, and
reflect stunningly poor policy choices. Indeed, the federal Bureau of Prisons rescinded a
similar (but arguably less restrictive) policy only a few weeks ago. See Ann Marimow,
Federal prisons abruptly cancel policy that made it harder, costlier for inmates to get
books, Wash. Post. May 3, 2018.
Maryland should do the same.
The First Amendment encompasses the right to send and receive books
As explained by the 7th Circuit Court of Appeals:
Freedom of speech is not merely freedom to speak; it is also freedom to
read. Forbid a person to read and you shut him out of the marketplace of
1

Likewise, the DOC should rescind any facility-based directive that forbids third-party orders,
limits prisoners to the two vendors, or caps possession of books to 10.

ideas and opinions that it is the purpose of the free-speech clause to
protect.
King v. Federal Bureau of Prisons, 415 F.3d 634, 637 (7th Cir. 2005) (citations omitted)
(reversing dismissal of prisoneras claim that he was denied book in violation of First
Amendment); see also Keenan v. Hall, 83 F.3 1083, 1093 n. 3 (9th Cir. 1996) (noting athe
importance of reading in a civilized society.a). Inherent in this principle is the notion that
freedom to read includes meaningful choice and access to a broad range of options.

AMERICAN CIVIL
LIBERTIES UNION OF
MARYLAND

Moreover, in a variety of contexts, courts have repeatedly reaffirmed the common-sense
notion that there are arecognized rehabilitative benefits to permitting prisoners to receive
educational reading material and maintain contact with the world outside the prison
gates.a Clement v. California Dept. of Corrections, 220 F.Supp.2d 1098, 1109-10 (N.D.
Cal. 2002. Books play an important role in transcending the inherent monotony and
isolation of prison and are frequently recognized for their transformative impact when
people are separated from the outside world. In the words of Reginald Dwayne Betts,
who was once in the custody of the DOC and who has since become a criticallyacclaimed poet and graduate of Yale Law School:
When I got locked up, I think, books became magic. Books weren't really
magic when I was a child, they were just something that I [enjoyed]
reading. I thought it was important, but when I got locked up it became
magic, it became a means to an end. ... It became the way in which I
experienced the world, but more importantly, I think, it became the way in
which I learned about what it means to be human, and to be flawed and to
want things that you can't have.
In 'Bastards Of The Reagan Era' A Poet Says His Generation Was 'Just Lost', NPR, Dec.
8, 2015, available at https://www.npr.org/2015/12/08/458901392/in-bastards-of-thereagan-era-a-poet-says-his-generation-was-just-lost.
Restrictions of the sort at issue here implicate both the First Amendment rights of those
who are incarcerated as well as the families, friends and organizations who wish to
communicate with them. Procunier v. Martinez, 416 U.S. 396, 408a09 (1974). The First
Amendment protection against aunjustified governmental interferencea with
communication applies to both the sender and the intended recipient. Id.(citing Lamont v.
Postmaster General, 381 U.S. 301 (1965)). In communication by letter, athe interests of
both parties are inextricably meshed. The wife of a prison inmate who is not permitted to
read all that her husband wanted to say to her has suffered an abridgment of her interest
in communicating with him as plain as that which results from censorship of her letter to
him." Id. It is no different with books, the gifting of which has communicative intent and
effect. The same principles apply to publishers, authors or organizations who want to
share books, whether to educate, entertain, rehabilitate, or help individuals survive prison.
See, e.g., Thornburgh v. Abbott, 490 U.S. 401, 408 (1989); Montcalm Publishing Co. v.
Beck, 80 F. 3d 105, 109 (4th Cir. 1996) (publishersa First Amendment rights are
implicated where they are denied the right to direct their books to prison audiences).

The new restrictions violate the First Amendment
Although these rights may be more limited in the prison context than in free society,
restrictions impinging upon Constitutional rights will be upheld only if areasonably
related to legitimate penological interests.a Turner v. Safley, 482 U.S. 78, 89 (1987). To
determine whether a regulation satisfies this standard, a court considers: (1) whether there
is a valid, rational connection between the regulation and a legitimate government
interest; (2) the availability of alternate means of exercising the right; (3) the impact
accommodating the right would have upon prison resources; and (4) whether there are
obvious, easy alternatives that accommodate the right at de minimis cost to valid
penological interests. Id. at 89a91.

AMERICAN CIVIL
LIBERTIES UNION OF
MARYLAND

Based on our review of how courts have applied the Turner factors in other cases and our
understanding of DPSCSas rules, we do not believe that restrictions of this breadth and
depth on access to books can withstand constitutional scrutiny. The rules severely and
impermissibly infringe upon prisonersa First Amendment right to read books and on the
rights of third parties a families, friends, organizations, and the like ato reach prisoner
audiences. See, e.g., Crofton v. Roe, 170 F.3d 957 (9th Cir.1999) (categorical ban on gift
orders of books and other publications violated First Amendment). Among regulations
affecting access to publications, a[r]egulations to be viewed with caution include those
which categorically prohibit access to a broad range of materials.a
Ashker v.
Schwarzenegger, 2006 WL 648725, 4 (N.D. Cal. 2006) (citations omitted) (finding ban
on hardcover books for prisoners in special housing unit unconstitutional), affad 339
Fed.Appx. 751 (9th Cir. 2009). Courts have thus more closely scrutinized book
restrictions when they swallow up large swaths of reading material, see, e.g., Ashker v.
California Depat of Corrections, 224 F.Supp.2d 1253 (N.D. Cal. 2002) (vendor label rule
that caused plaintiff denials of access to books failed to satisfy Turner v. Safley); Keenan
v. Hall, 83 F.3d 1083 (9th Cir. 1996) (reversing grant of summary judgment and
emphasizing likelihood of success on remand of prisoneras claim that publisher-only rule
for publications other than hardcover books violated First Amendment); Spellman v.
Hopper, 95 F.Supp.2d 1267 (M.D. Ala. 1999) (rejecting as unconstitutional ban on
subscription magazines and newspapers for individuals on administrative segregation
status), as well as when they cause particular titles to be entirely unavailable. See, e.g.,
Kikumura v. Turner, 28 F.3d 592 (7th Cir. 1994) (reversing grant of summary judgment in
First Amendment challenge to practice of prohibiting prisoners from receipt of any
foreign language book); Figel v. Overton, 121 Fed. Appx. 642, 645-46 (6th Cir. 2005)
(reinstating challenge to denial of book because sending organization was not approved
vendor was arbitrary and violation of First Amendment).
The new restrictions are irrational, arbitrary and an exaggerated response to
security concerns.
It has been reported that the purpose of the new rules is to keep out contraband,
specifically suboxone. Ann E. Marimow, To cut prison drug smuggling, Maryland is
restricting inmatesa access to books, Wash. Post, May 25, 2018. We are sympathetic to

the concerns about drug abuse occurring in DOC facilities. 2
the forest for the trees.

But, the DOC fails to see

The Division of Correction, of course, already forbids receipt of hardcover books, used
books, and books from individuals or private parties. Ostensibly, the purpose of the new
categorical prohibition on all third-party orders of books is to keep out suboxone that
might be hidden in books even when sent from bona fide booksellers. This response is so
broad and so excessive relative to any actual risk that it is irrational. Cf. Jones v. Brown,
461 F.3d 353, 361 (3rd Cir. 2006) (a[W]hile it was true that legal mail conceivably might
contain such plans [to escape] and the opening of it might conceivably thwart those plans,
the risk allegedly addressed was too insubstantial to justify incursion on First
Amendment interests.a).

AMERICAN CIVIL
LIBERTIES UNION OF
MARYLAND

In all but the rarest of cases, attempts to send books or obtain books are innocuous,
genuine attempts at making available books that are otherwise actually or practically
unavailable to people in your custody. Nearly none of them will contain suboxone.
Indeed, for large institutional sellers like Amazon, which sells literally millions of books
per year, there would be no feasible way for someone outside the prison to know which
employees would handle any particular order for a particular prisoner such that they
could be induced to introduce contraband into the book or package. For reasons such as
these, courts confronted with categorical prohibitions on gift books have rejected them on
First Amendment grounds. See Crofton v. Roe, 170 F.3d 957 (9th Cir.1999) (categorical
ban on gift orders of books and other publications violated First Amendment); Jacklovich
v. Simmons, 392 F.3d 420 (10th Cir. 2004) (reversing grant of summary judgment in case
involving categorical ban on gift publications).
Likewise, prohibiting prisoners from ordering books from all sources other than one of
two private vendors with extremely limited selections is equally arbitrary. In the most
simplistic sense, eliminating opportunities for communications and goods from outside
prison walls, whether from vendors, families, or staff, can be said to decrease
opportunities for contraband to be introduced. But this kind of formalistic argument is
not sufficient. See, e.g., Beard v. Banks, 548 U.S. 521, 535 (2006) (aTurner requires
prison authorities to show more than a formalistic logical connection between a
regulation and a penological objective.a). To the extent there is some tiny fraction of
cases in which attempts are made to imitate legitimate sellers, we caution the Department
against making policy based on the rare and exceptional case. Cf. Prison Legal News v.
County of Ventura, 2014 WL 2736103, 5 (C.D. Cal. 2014) (concluding that rather than
arationala relationship between postcard-only policy and reducing contraband, policy
smacked of aarbitrariness and irrationalitya because concerns were largely theoretical and
ano inspection system is foolproofa). More to the point, there is absolutely no basis for
asserting that a package from one of the two vendors selected by DOC is particularly less
susceptible to tampering than any other bookseller.

2

We observe, however, that the Department has done almost nothing to address the demand for substances,
for example by making meaningful substance abuse treatment available consistent with standards of
community care. Indeed, recent legislation has made it harder for individuals in DOC custody to obtain
such treatment, even by order of a court.

In contrast, the restrictions enacted to prevent the remote possibility of suboxone entering
a prison through books mailed by legitimate booksellers effectively eliminate access to
the vast majority of books ever written. Under the new rules, the only way people in
DOC custody can obtain books of their own is by ordering them from one of two
vendors, Edward Hamilton Books and Books n Things, whose selections of books are
extremely limited. By way of example, we list a small sampling of books that we could
not locate in paperback format from either vendor:

AMERICAN CIVIL
LIBERTIES UNION OF
MARYLAND

To Kill a Mockingbird by Harper Lee
Catcher in the Rye by J.D. Salinger
Native Son by Richard Wright
Invisible Man by Ralph Ellison
The Souls of Black Folk by W.E.B. DuBois
Anything written by Langston Hughes
Any Harry Potter books
Brave New World, Aldous Huxley
For Whom the Bell Tolls by Ernest Hemingway
Civil Disobedience and Other Essays by Henry David Thoreau
Any book written by Dr. Martin Luther King Jr.
The Autobiography of Malcolm X by Alex Haley
I Know Why the Caged Bird Sings by Maya Angelou
Between the World and Me by Ta-Nehisi Coates
The limited selections at DOC prison libraries and the challenges prisoners face in
accessing what is available in their respective libraries fail to come close to compensating
for this extraordinary loss of access to the broader world of books. Nor is access to a
library book a which is time-limited, must be returned, and canat be marked-up a
equivalent to possessing it.
Moreover, the 10-book limit, which appears to have been selected out of thin air, is also
completely arbitrary. DOC rules already limit the amount of paper property any
individual can possess, including books. There is no rational reason to further limit books
in this way. All this accomplishes is to turn books into contraband. Surely, the state
prison system can do better.
Any arguable security benefit is offset by the new risks the rules create. Depriving
prisoners of opportunities to read and limiting their ability to do so is fundamentally at
odds with the rehabilitative ideal. Education is widely recognized as one of the most
powerful deterrents of institutional misconduct and recidivism, as are familial and other
community connections. The DOC is creating greater threats to institutional security
each time it further isolates prisoners from the outside worldaas it has, repeatedly, by
prohibiting greeting cards, by forbidding embraces at the beginning of any visit, and the
like. Programming is extremely limited. Reading and staying in touch with the outside
world are one of the few ways individuals can occupy their time in positive and selfdirected ways at virtually no cost to the DOC. Heavy-handed policies that make it
impossible to hire staff, that force staff to enforce arbitrary and senseless rules, and that
dehumanize prisoners and their families create conditions that increase tension and
distrust to the detriment of institutional security.

There are easy alternatives to DOCas virtual book ban that have minimal impact on
prison resources
If a prison regulation fails to satisfy first Turner standard, as we believe is the case here,
no additional analysis required. See, e.g., Hrdlicka v. Reniff, 631 F.3d 1044, 1051 (9th
Cir. 2011) (aThe first Turner factor is a sine qua non: If the prison fails to show that the
regulation is rationally related to a legitimate penological objective, we do not consider
the other factors.a) (citation and quotations omitted). But even assuming for the sake of
argument that some rational relationship exists between the book restrictions and
legitimate penological interests, the new restrictions fail Turneras remaining
considerations.

AMERICAN CIVIL
LIBERTIES UNION OF
MARYLAND

Because of their breadth and the lack of alternatives, the rules adopted in IB # 2018-02
vastly reduce book availability by making most books nearly impossible to obtain. When
book restrictions have been upheld, courts have given great weight to the availability of
alternative means of obtaining a range of books, as well as whether the restrictions were
temporary in nature. See, e.g., Bell v. Wolfish, 441 U.S. 520, 551-52 (1979)
(Emphasizing that ruling decided anarrowa question of constitutionality of rule
prohibiting receipt of hardback books unless they came from any bookstore, book club or
publisher, noting all other books were permitted and stays at the jail in question were
limited to fewer than 60 days). Courts have also been clear that aalternativesa in this
context must be genuine substitutes for the content of the prohibited material. See, e.g.,
Ashker v. Schwarzenegger, 2006 WL 648725, 5 (N.D. Cal. 2006) (In concluding that
prohibition on hardcover books was unconstitutional, observing that aWhile Defendant
states that millions of books are available in paperback, Defendant does not refute that, as
noted in declarations submitted by Plaintiffs and other inmates, many books are not
available in paperback, especially educational, legal and resource books.a); see also
Koger v. Dart, 114 F.Supp.3d 572, 580-81 (N.D. Ill. 2015) (In finding prohibition of
newspapers violative of First Amendment, noting that books and correspondence were
not properly characterized as aalternativea to newspapers due to distinctions in nature and
type of content.).
The new restrictions reduce Maryland prisonersa access on an extraordinarily significant
scale a from the millions of books available in paperback through bookstores and
publishers to the mere thousands of quite random books available from the two chosen
vendors. As noted above, selections in DOC libraries are extremely limited, outdated,
and difficult to access. Moreover, DOC rules forbid prisoners from sharing books with
each other, further limiting access to books. Cf. Keenan v. Hall, supra, 83 F.3d at 1093
(instructing trial court to consider ano-passinga rule prohibiting book-sharing in
determining First Amendment violation and availability of reading material).
The Department already forbids individuals from receiving used books, hardcover books,
free books from book clubs, and also has adopted numerous content-based restrictions.
Prisoners who work in the Division of Correction earn as little as 90 cents per day. From
this income they must pay for their calls, their postage above the allotted amount, and
personal hygiene items and additional food. Further limiting their ability to procure free
or reduced cost books has real impact on the right to read.

And, most critically, the new rules leave family or community members wishing to
communicate through books a to send a loved one a book about grief after the passing of
a family member, to send a self-help book to repair a relationship, or to share the
experience of reading a novel together, or any other number of ways in which people
communicate and associate through books a without any alternative at all.
***
The DOCas senseless and harsh new restrictions on books are utterly inconsistent
with the First Amendment and reflect poor policy. They render Maryland an outlier in
corrections systems in the degree to which our state limits access to books and the ability
to provide prisoners with books. Given the critical importance of these issues, we urge
you to immediately rescind IB #2018-02. Please respond by Monday, June 11, 2018.
AMERICAN CIVIL

Sincerely,

LIBERTIES UNION OF
MARYLAND

Sonia Kumar
Gina Elleby
Deborah Jeon
ACLU of Maryland
kumar@aclu-md.org
David Fathi
ACLU National Prison Project
915 W. 15th Street NW
Washington DC 20005
dfathi@aclu.org