ACLU Says New Jersey Prisons’ Banning of “The New Jim Crow” Is Unconstitutional

America’s jails and prisons have long since banned and censored books that the institutions determined posed a material danger to the safety of inmates and employees. There is a logic, at least, to prohibiting how-to manuals on crafting homemade weapons or escaping confined spaces. But at least two prisons in New Jersey have gone a step further, deciding to ban Michelle Alexander’s groundbreaking work on the rise of mass incarceration in America, “The New Jim Crow: Mass Incarceration in the Age of Colorblindness,” according to a letter from the American Civil Liberties Union of New Jersey to the state’s Department of Corrections. The ACLU of New Jersey initially received multiple complaints from incarcerated individuals and their family members concerning the book’s ban. The civil liberties group then filed an Open Public Records Act request, the response to which, according to the letter, “indicated that New Jersey State Prison and Southern State Correctional Facility banned the book as a matter of policy.”

“The New Jim Crow: Mass Incarceration in the Age of Colorblindness” by Michelle Alexander.

The ACLU of New Jersey said the ban violated the Constitution.

“The ban on ‘The New Jim Crow’ violates the right to free speech enshrined in the First Amendment to the U.S. Constitution, and the correlative protection of Article 1, paragraph 6 of the New Jersey Constitution,” ACLU attorneys Tess Borden and Alexander Shalom wrote to Gary Lanigan, commissioner of the New Jersey Department of Corrections. The ban also points to some blood-boiling ironies. “Michelle Alexander’s book chronicles how people of color are not just locked in, but locked out of civic life, and New Jersey has exiled them even further by banning this text specifically for them,” said ACLU-NJ Executive Director Amol Sinha in a statement. “The ratios and percentages of mass incarceration play out in terms of human lives. Keeping a book that examines a national tragedy out of the hands of the people mired within it adds insult to injury.” The ACLU shared a copy of the Department of Corrections’ response to its public records request, which we are publishing exclusively here. The lists of banned publications go on and on — various books and magazines — and two prisons explicitly include “The New Jim Crow.”
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If you know even a little bit about the prison system in New Jersey, this ban is not even mildly surprising. In spite of reducing its overall prison population, New Jersey continues to lead the nation in the racial disparity between black and white inmates. While the disparity nationwide remains large, with African-Americans having a national average of a 5 to 1 incarceration rate to that of whites, in New Jersey the rate was more than double the national average, ballooning up to an outrageous 12 to 1 ratio. What that effectively means is that African-Americans make up less than 15 percent of New Jersey’s overall population, but represent a staggering 60 percent of the state’s prisoners. These types of disparities don’t happen by accident; it didn’t happen as an afterthought. The disproportionality can’t be simply chalked up to poverty. And that’s exactly what Michelle Alexander sets out to explain in “The New Jim Crow.” African-Americans dominate America’s jails and prisons because a deliberate set of complex policies and practices. Often disguised as the war on drugs or even the war on poverty, these policies and practices are actually a war on black people. For instance, studies show that more white people, by both the overall rate and total numbers, sell drugs than African-Americans, but African-Americans are exponentially more likely to be arrested and sentenced for it. The New Jersey Department of Corrections, New Jersey State Prison, and Southern State Correctional Facility did not return requests for comment by press time.
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In their memo, the ACLU attorneys break down the unconstitutional nature of the ban very clearly:
In addressing prisoners’ First Amendment rights, the U.S. Supreme Court has repeatedly clarified that “‘[p]rison walls do not form a barrier separating prison inmates from the protections of the Constitution,’ nor do they bar free citizens from exercising their own constitutional rights by reaching out to those on the ‘inside.'” Because “The New Jim Crow” addresses corrections policy and other social and political issues of public concern, it “occupies the highest rung of the hierarchy of First Amendment values and is entitled to special protection.”

“The banning of a particular book such as ‘The New Jim Crow’ — as compared, for example, to a ban on hardcovers — represents content-based censorship on publications,” the ACLU attorneys wrote. “Such censorship is lawful only upon a showing that the prohibition is ‘reasonably related to legitimate penological interests.’ Moreover, ‘a regulation cannot be sustained where the logical connection between the regulation and the asserted goal is so remote as to render the policy arbitrary or irrational,’ or is an ‘exaggerated response’ to prison concerns in light of available alternatives. The DOC cannot show that the policy to ban ‘The New Jim Crow’ is reasonably related to a legitimate penological interest.”
“The banning of a particular book such as ‘The New Jim Crow’ — as compared, for example, to a ban on hardcovers — represents content-based censorship on publications.”
The lawyers pointed out that the ban may also violate state regulations enshrined in the New Jersey Administrative Code. They pointed out that books with information on drugs can be banned, according to the code, but only when that information “‘is detrimental to the secure and orderly operation’ of the prison. That cannot apply to a general discussion or critique of the War on Drugs.” The ACLU attorneys went on:
Unless the DOC wishes to pretend it can only maintain security and order by depriving prisoners of educational, political, and historical information related to their very situation of incarceration, it cannot be said that this information harms the security or orderly operation of prisons. While “The New Jim Crow” is certainly disturbing and thought-provoking, it is so because of the shocking truth it reveals – the truth New Jersey’s 12-to-1 racial disparity proves – not because it in any way incites violence, disorder, or similar behavior.
On January 16, New Jersey will inaugurate a Democratic governor, Phil Murphy, and its first African-American lieutenant governor, Sheila Oliver. Both campaigned on the promise that they would address and improve these very problems. The Department of Corrections could give them both a head-start by removing this outrageous ban on “The New Jim Crow.”

Top photo: Guard towers loom over the wall of New Jersey State Prison on Dec. 23, 2005 in Trenton, N.J.

The post ACLU Says New Jersey Prisons’ Banning of “The New Jim Crow” Is Unconstitutional appeared first on The Intercept.

Originally posted from The Intercept which can be read here.

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