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Dangerous Readers

The November/December 2007 issue of the Boston Review contains an excellent article by Colin Dayan, who discusses the largely overlooked Supreme Court case Beard v. Banks. At issue: do prisoners have the right to read what they want? In the majority opinion of Justices Breyer, Roberts, Kennedy, Souter, Thomas, and Scalia, SCOPUS decided against that right for prisoners on June 28, 2006.

This issue needs to be thoroughly considered by librarians because it cuts so cleanly to the heart of our identity and core values as defenders of open intellectual inquiry and free expression. Should only those considered good or worthy be granted such access or is that right inalienable?

Before you answer, let's ponder a thought experiment. There's a fundamentalist who commits a crime against the United States in the name of his god. He is rightly tried and convicted and incarcerated, but remains completely unrepentant. He believes with all the conviction a human can muster that he did what was right and points to passages in his sacred text that support his position. Should he be allowed access in prison to his sacred text, which he clearly believes tells him to do these things? What if that sacred text is the Bible?

I really want to hear what you think about prisoners' right to read what they choose. So, I'm not going to post tomorrow, and perhaps not Monday, to give you time to read, think, and post comments.

I'll prime the pump by saying that I believe prisoners should be allowed to read whatever they want, provided the reading material is not illegal. Ideologically, I oppose censorship. Sociologically, I think that most criminals turn out that way from lack of an education or intellectual stimulation, so how is preventing them from reading in jail if they want to helping them rehabilitate?


Steve S. said...

The issue in Beard is not whether or not this prison policy violates the prisoner’s constitutional rights. It does. Even the prison officials agree that it does. All the Supreme Court justices agree that it does. The issue is whether or not such a violation is permissible under the standards described in Turner v Safley. The Turner decision points out the obvious – that prisoners are not necessarily entitled to the same degree of rights as nonprisoners. However, Turner is supposed to safeguard against an unreasonable and arbitrary encroachment of those rights. The Turner decision states that a prison policy which impinges upon a prisoner’s constitutional rights is invalid “unless it is reasonably related to legitimate penological interests.” Under the standard outlined in Turner, a prison regulation is not constitutional if “the logical connection between the regulation and the asserted goal is so remote as to render the policy arbitrary or irrational”, or if the regulation represents an “exaggerated response” to legitimate objectives.

In this case, the prison officials claimed that their two objectives were security and rehabilitation. The security objection was almost laughable. It appears to be based primarily on the idea that the prisoners could set fire to newspapers. Under the present policy, the prisoners are allowed access to religious texts freely and at any time. But it appears that religious texts, paper products and linens don’t burn and newspapers do.

The more honest objection was that by depriving the prisoners of something that they wanted, they would be more likely to behave in order to get their privileges reinstated. I don’t necessarily disagree with the reasoning, but the removal of rights cannot be arbitrary and unrestrained. In the extremes, one could argue that all prisoners should be put on bread and water, placed in dungeons and subjected to daily beatings because they would then want to avoid prison. In Kimberlin v US Dept of Justice, Judge Tatel pointed out that “regulations that deprive prisoners of their constitutional rights will always be rationally related to the goal of making prison more miserable.” There have to be limits. According to the Turner decision, the burden of proving the necessity of the policy is on the prison officials. In the Beard case, that was not what happened. The Court of Appeals granted summary judgment on the basis of a deposition by the Secretary of the Dept of Corrections. No hearing, no evidence. Just a sort of “trust us, we know best” kind of thing. Even Justice Thomas, who voted with the majority, seems to agree that the Turner standards were not met. (Although he has no problem with that.)

The PL raises the issue of whether or not sacred texts can or should be banned under the prison policy. Under the present policy in Pennsylvania (the venue of this case), sacred texts are allowed. But what happens when there is a new prison administration? Does the policy change to become more restrictive? And do we once again accept the explanation of the prison officials when we are told that they know best? Honestly, I have had enough of that line of reasoning with the Patriot Act.

I don’t argue that Ronald Banks is a nice guy. He is not. I am glad that he is in prison. I don’t argue against the idea that the prison officials have a difficult job and have legitimate objectives. They do. But I am concerned with the casual way in which basic rights, such as those granted by the First Amendment can be taken away without even the most trivial of safeguards. I do not feel comfortable behind the flimsy assumption that the Court will allow it to happen to prisoners but not to me. We have seen way too much erosion of constitutional rights in the name of “security” and other “legitimate” public goals in recent years for me to feel that I am safe because I am not behind bars. It has become far too easy to whittle away at the edges of the First Amendment. And it really doesn’t surprise me that the present Court continues with its “Govt knows best” series of decisions.

Prison is not really a place of rehabilitation. We may call it that, but not with a straight face. It is a place of confinement and punishment. But most people would agree that in a just and civilized society there are limits to that punishment. Ronald Banks wanted to read the Christian Science Monitor. The CSM! Not even something as subversive as the NY Times, the National Review or USA Today. (Well, okay, maybe it is.) But the prison officials in Pennsylvania have determined that by preventing him from reading the Christian Science Monitor and by preventing him from having family photos, we will make him a better person. I don’t buy it.

Would I want Ronald Banks reading a manual on “How to Escape From Prison”? No. Would I want him passing around kiddie porn? No. But I do believe that Ronald Banks should be entitled to read newspapers. Would such exposure to the outside world help him with rehabilitation? I am a pessimist; I think the odds are small. But I want him to be able to read newspapers because it’s simply the right thing to do, both as a matter of law and as a matter of morality.

librarian@play said...

Thanks for the analysis, Steve S., and particularly loved: "I do not feel comfortable behind the flimsy assumption that the Court will allow it to happen to prisoners but not to me."

I am, on my weakest day, agnostic. So I admit my sacred text example was a rhetorical trick aimed in part at the rehabilitative tale we tell ourselves about prison.

However, equally false is the preventive quality of prison. If you look at the history of incarceration, societies have created some pretty miserable places to keep their criminals. Yet we still have criminals. So, have prisons not been unimaginably horrible enough? Or is it simply that criminals fall in three general categories—desperate enough to commit crime anyway; think they're clever enough to get away with it; or merely offensive enough to some part of society to be deemed worthy of removal—none of which can truly be prevented by the dankest of dungeons.

Anyone else?

porpentine11 said...

It is telling that the article concludes, "As it turned out, the whole affair—from policy formation to litigation in the nation’s highest court—was 'just one more penal experiment.' The experiment did not work. Prisoners were not rehabilitated, or, in Mericli’s words: 'It wasn’t working as a system that changed behavior.'" Apparently the word of an 'expert,' or I guess theorist, provides a more reasonable basis for taking away the rights of prisoners than the outcome of an experiment.