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Prisoners in South Carolina Can Read Again

South Carolina is in the news right now because it’s presidential primary season – that magical period every four years during which America is reminded that Iowa, New Hampshire and South Carolina exist.

However, South Carolina is in the legal news for another reason: state prisoners in South Carolina are allowed to read again. Basically, jail officials in Berkeley County, South Carolina prohibited inmates from reading any materials bound with staples, or containing any level of nudity whatsoever. This effectively resulted in the banning of a wide range of reading materials, including newspapers that have lingerie advertisements, or almost anything having to do with fine art.

However, after a lawsuit was filed by the ACLU, jail officials reached a settlement with the plaintiffs, and are now allowing inmates access to most reading materials.

One particular point of contention was the fact that some of the reading materials to which prisoners were denied access were meant to provide legal information for prisoners who are not represented by attorneys. If you’re a fan of due process, and the right of criminal defendants to have competent legal representation, this is a major issue. If a prisoner is not represented by a lawyer, but wants to pursue his or her legal rights by proceeding pro se, access to legal information and advice is absolutely essential.

As you might have guessed, I’m pleased that jail officials reached this decision with the ACLU. I believe it’s the right decision, and rights a policy that never should have been implemented in the first place.

I’m aware that prisoners have fewer rights than the general public: when you commit a crime, you surrender certain rights that the rest of us take for granted. You have virtually no reasonable expectation of privacy, your freedom of movement is restricted, and your right to free expression is somewhat limited. However, prisoners do not surrender their right to due process of law, the right to be free from cruel and unusual punishment, or the right to competent legal representation (even if they’re representing themselves). Depriving prisoners of virtually all reading material could arguably amount to a violation of all of those rights, and maybe more.

Note that I’m not saying prisoners are entitled as a matter of right to unrestricted access to all reading materials ever, or that jail authorities don’t have to balance the safety of jail staff and other prisoners against the individual rights of each prisoner. However, it’s pretty obvious that they went overboard with these restrictions.

For example, barring prisoners from access to materials containing any form of nudity whatsoever could prevent them from taking correspondence courses in art, or elementary life sciences (perhaps in preparing to get a G.E.D.). And it’s been well-established for years that giving prisoners the opportunity to pursue education while they’re incarcerated better prepares them to re-enter society when they’re released, thereby reducing the rate at which they re-offend. Obviously, turning criminals into productive members of society (when possible, which isn’t always the case, of course) seems like a far more productive use of prison resources than keeping criminals who could be rehabilitated locked away forever, at taxpayer expense, only to have them re-offend when and if they’re released.

None of this is to suggest that there are not legitimate security concerns that need to be taken into account. If reading material is being mailed to prisoners, guards should be able to inspect it to ensure that it’s not being used to smuggle in contraband like weapons or drugs. And if they’re really concerned that books or magazines bound with staples are a safety issue, why don’t they just remove the staples before giving them to the prisoners?

The fact that this dispute even happened demonstrates that many of our institutions are seriously lacking in common sense. Whether it’s a “zero-tolerance” policy at a school that gets a student expelled for bringing a squirt gun, or, in this case, a blanket policy against certain materials that ends up denying prisoners certain literature to which they’re arguably constitutionally entitled, public institutions need to be flexible and pragmatic.

While it may satisfy some base emotional drive for revenge to lock prisoners up in tiny, dark rooms and throw away the key, the whole reason we’ve formed society and governments is so we can collectively rise above our baser instincts. That’s why we afford criminal defendants and prisoners basic human rights.

Accordingly, we need to think very carefully before instituting “zero-tolerance” policies, like the one at this jail. I’m glad they had the sense to change their policy, but it probably should not have been implemented in the first place.

Ken LaMance


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