Title 15 Alert: Office of Administrative Law Approves Amendments to Censorship Regulations Proposed by CDCr Last Year

Kim Rohrbach

Prison Focus Issue 46
Summer 2015

On April 30, shortly after the publication of our last issue (#45), the Office of Administrative Law approved amended censorship regulations proposed by the CDCr last year. The amendments, titled "Obscene Materials," are to California Code of Regulations, Title 15, sections 3006 and 3134.1. (All subsequent citations herein are to California Code of Regulations, Title 15.) Now in effect, the amendments are essentially indistinguishable from those initially proposed and published by the Department in April 2014, which drew sharp public criticism.

In response to the public criticism, the CDCr said that the public had misunderstood its intent and announced that it would be going back to the drawing board. Later, on October 20, 2014, the Department re-noticed the public on further changes. Despite talk of going back to the drawing board, the October revisions were minor and were limited to section 3134.1, subdivision (d), and section 3135, subdivision (c). (Section 3134.1, subdivision (d) was non-substantively revised to harmonize language with amendments that had been approved and adopted, on October 17, 2014, concerning "security threat groups." Otherwise, a few words were added to section 3134, subdivision (d) to provide minimal clarification of language initially proposed in April 2014.)

In initially justifying the changes, the CDCr repeatedly raised concerns about publications containing the "propaganda" of groups that are "oppositional to authority and society" and/or "deviant in nature." The Department claimed it necessary to disallow the publications of such groups, as well as publications indicating "association" with such groups, to ensure the safety and security of its institutions.

Many read this as a declaration of the CDCr's intent to ban rights-oriented periodicals that publish articles and letters by incarcerated persons, such as this publication, The Rock or the San Francisco BayView—all of which have been censored or withheld in the past.

In a memo dated April 30, 2015, Mark Storm, Senior Attorney with the Office of Administrative Law, wrote that his agency's action in approving the amendments "eliminates disparity among institutions regarding processing and clarify [sic] existing statutes on obscene materials in institutions." A plain reading of the amended language, though, shows that said "disparity" is not eliminated and ample room is left for ambiguity and abuse.

Granted, pursuant to amended section 3134.1, subdivisions (d) and (e), ultimate authority to place text-only publications on the CDCr's Centralized List of Disapproved Publications rests with the Division of Adult Institutions. However, individual officers ranked Captain or higher may be granted authority to "disallow" correspondence at their personal discretion under (unamended) section 3135, subdivision (a). In addition, amended section 3134.1, subdivision (d), permits institutions to "temporarily" withhold individual issues of periodicals even if those periodicals do not appear on the Centralized List of publications.

Pursuant to section 3135, subsection (b), officers are not supposed to disallow mail due to "disagreement with the sender's or receiver's morals, values, attitudes, veracity, or choice of words." Yet, this is cold comfort given that qualified officers have free reign to disallow mail. This includes personal mail containing materials they consider obscene, and containing materials or photographs they think indicate "an association with validated STG [security threat group] members or associates." (See § 3135, subds. (c)(12) & (14); the latter paragraph which is newly added.)

Newly added section 3135, subdivision (c)(14) dangerously expands the reach of censorship rules because of loose regulations permitting a person's validation as a "security threat group affiliate," and the severe consequences that attach to being validated.

For readers unfamiliar with the term "security threat group" or STG, the CDCr defines it (in section 3000) exactly as it defines "gang." Both are so broadly and vaguely construed as to be applicable to most any "group of three or more people" that can be implicated—however insubstantially, tenuously or inconclusively—in "misconduct" of any type. (See § 3000.) By the same token, "Security Threat Group (STG) Behavior" is circularly defined as conduct "demonstrating a nexus with an STG." (See § 3000.)

As most of our readers are painfully aware, being validated as an STG affiliate is tantamount to a second sentence on top of the underlying (court-ordered) sentence one is already serving. Validation is determined by investigation and affirmative conclusion reached by the CDCr alone. There is no independent review of any kind, much less a judge or jury. Affiliation with a security threat group is based on association with a person, or persons, already or formerly validated; or, with a person not yet validated who later is. (See § 3378.2, subd. (b).) It requires no violent behavior or prohibited conduct of any kind.

Once validated, a person is sent to the SHU, without any further determination of violent or criminal behavior. Individuals are held in isolation on a prolonged or indefinite basis, spending up to twenty-four hours a day in tiny concrete-and-steel box. Such treatment constitutes torture according to internationally recognized standards, and moreover is an affront to commonly held notions of dignity and humanity.

Back to the topic of disallowed mail: As earlier stated, written materials and photographs are subject to being disallowed if they "indicate an association with validated STG members or associates." Practically speaking, this means possession or receipt of disallowed materials can be used to validate or re-validate a person as an STG affiliate. (See, e.g., § 3378.2, subds. (b)(5) & (6) (regarding written materials and photographs).) For example, if your uncle is validated and if you've written down his address next to his name on a scrap of paper, this may be used as a "source item" counting against you. As such, it may be combined with equally flimsy “evidence” to validate you as an affiliate, or to retain you in the SHU if you're already validated.

The most recent Centralized List of Disapproved Publications of which this writer is aware is dated June 1, 2015. It is fourteen pages long. Conspicuously absent from the list are many political works that the CDCr has previously deemed "gang-related" and/or has used as "source material" supporting validation (e.g., The New Jim Crow by Michelle Alexander; Soledad Brother by George Jackson). There is one possible exception here that this writer has noted: The World of Jack L. Morris, a book that apparently features poetry, artwork and writing of a man kept in Pelican Bay's SHU for some twenty-five-plus years.

The bulk of the items named on the list, such as Hustler or On Our Backs, are (or are plausibly named as) sexually explicit publications. The California Penal Code affords prisoners no right to read, purchase or receive "obscene" publications as defined by the Penal Code. Of course, Hustler and similar magazines are legal for sale to adults on the outside who enjoy their full First Amendment rights.

Other titles, although few that this writer has noticed, play into CDCr's interest in maintaining the "safety and security" of its prisons. One example is US Army Special Forces Guide to Unconventional Warfare: Devices and Techniques for Incendiaries. However, if the CDCr were truly concerned about safety and security, whether in its prisons or anywhere else, then it would do best to focus on promoting an atmosphere and culture in which people are treated with dignity and as humans, rather than focusing on censorship or even more coercive approaches.

The numerous other titles named on the June 1, 2015 Centralized List of Disapproved Publications include 500 Fairy Motifs, Basic Drawing, Thirty Something Magazine, Color for Painters: A Guide to Traditions; Complete Anatomy and Figure Drawing; Drawing and Illustrations; Drawing the Living Figure; Felon Fitness: How to Get a Hard Body Without Doing Hard Time; Life Drawing; Martial Arts: Traditions, History, People; The Big Book of Drawing; The Art of Faery; Windows 7 for Seniors for Dummies; Windows 8 Application and Development for Dummies; Window 8 Quick Step; Your Child's Development from Birth to Adolescence.

One might infer from these titles that the CDCr doesn't want those under in its control to be able to communicate their feelings or experiences through artistic pursuit, or to draw any peace from it. One might also infer that the CDCr doesn't want people who've been released after prolonged incarceration and privation to enter the world equipped with basic skills needed to operate the digital technology that permeates our lives; or, to be prepared for parenthood.

Pursuant to former and amended section 3134.1, subdivision (e), a centralized list of disapproved publications "shall" be distributed to each of the Department's institutions. How often such a list must be updated or distributed, and whether or not the list must be provided to all people in custody, is not stated. In any event, this writer was recently unable to locate a copy of any centralized list through the CDCr's website, and only obtained the copy discussed herein as the result of another person's public information request.

This presents an issue for those with family or loved ones inside: How can they know in advance whether or not any given publication (or any other material) that they may want to send in will be rejected? And, how can they know in advance if an item will be deemed obscene and/or used as the basis for disciplinary action against a loved one? The amended section 3134.1, subsection (d), only clarifies that "prisoner addressees" must be notified upon a publication being withheld—i.e., after they have wasted their money buying and shipping the publication.

In June and in November 2014, two vigorous public campaigns were mounted to oppose the censorship regulations now in effect. People on either side of the walls expressed their views in printed periodicals, via the internet and/or directly to the CDCr. During the two campaigns, a total of over five hundred comments were cumulatively submitted to the CDCr through one organization, Californians United for a Responsible Budget. Some percentage of all the comments received by the CDCr, which were overwhelmingly negative and included comments independently submitted by individuals and organizations, have since been "responded" to in digest by the Department. These are included in the Department's Final Statement of Reasons dated April 30 (available at http://www.cdcr.ca.gov/Regulations/Adult_Operations/docs/NCDR/2014NCR/14-05/Adopted%20Regulations%20Effective%204%2030%202015.pdf; last visited August 4). A single concession won through the campaigns can be pointed to: The Final Statement of Reasons, in contrast to the 2014 Initial Statement of Reasons indirectly referenced in the third paragraph of this article, omits all references to "groups deviant in nature, opposed to authority and society."