JDI IN THE NEWS - 2004

Mark Thompson, Internet Access Turns Prisons Into Free Speech Battlegrounds, April 24, 2004.

Jack Trawick makes even staunch defenders of free speech a bit queasy. An inmate on Alabama's death row, he has written stories extolling his criminal exploits -- and taunting by name the mother of one of his victims. And he has found a way to disseminate his gory tales on the World Wide Web, illustrated with his own drawings depicting mutilated women "after a date with me."

In recent years, thousands of other prisoners have found forums for their writing on the Internet. Most incarcerated Web scribes have more constructive intentions than Trawick. But prison authorities in Arizona, California, Florida and several other states have fixated on the abuses -- real and imagined -- and have cast about for ways to choke off inmates' access to the Internet. Their fears have been underscored by a lawsuit filed in January 2004 by a lawyer representing the mother of Trawick's victim. The suit demands $40 million in damages from a shadowy character in New Jersey who maintained the killer's Web site and from the Alabama Department of Corrections for somehow letting the hateful material get out of prison.

Preventing inmates from gaining access to the Internet is easier said than done. Inmates don't have a direct link that could be summarily snipped. They get online with outside help from advocacy groups such as the Canadian Coalition Against the Death Penalty and privately operated, Web-based pen pal services that cover the "last mile" between the prisoner and the Internet with snail mail. The attempts by several states to block Web access by inmates have inevitably muzzled these outside parties, and that is where the state laws and regulations have run into trouble in court.

Arizona was the first and only state to erect a total blockade between its inmate population and the Internet -- and the first state to get trounced in court for trying to keep prisoners offline. The Arizona Legislature was stirred to act on the issue by the anguish and outrage of the widow of a murder victim, who came across a Web page on a pen pal site in which Beau Greene, her husband's killer, portrayed himself as a kindly lover of cats.

The result was a law enacted in 2000 that threatened to strip privileges and possibly lengthen the prison sentence of any inmate in Arizona who gained access to the Internet by any means, or for that matter, merely "corresponds or attempts to correspond with a communication service provider or remote computing service." It would even be illegal, the law brashly declared, if any other person accessed a prisoner Web service "at the inmate's request."

Prison authorities in Arizona asserted that the law not only protected the rights of victims, it also reduced a security risk and a growing administrative burden. "Inmates used to have two or three pen pals," a spokesman for the department complained. "Now they can run it up into the hundreds," thanks to the growing number of Web-based pen pal services for prisoners. The wilier inmates use one of a dozen or more sites such as Prison Pen Pals or Outlaws Online to garner more than mail, officials added. They coax money out of people on false pretenses and lure them into intense but duplicitous personal relationships.

Numerous lonely hearted women initially drawn in by a Web page have flocked from as far away as Belgium and Australia to Florence, Ariz., and its cluster of prisons, officials said. One of them once went so far as to obtain a gun and vehicle that was used in an escape attempt. While inmates can perpetrate scams through the regular mail, it is much easier via the Internet, the department and its lawyers maintained in defense of the law.

Judge Earl Carroll of the U.S. District Court in Phoenix wasn't buying it. In May 2003 he declared the Arizona law unconstitutional. Abusive Web postings that taunt victims, promote crime or attempt to defraud others can be stopped with existing regulations that prohibit inmates from sending or receiving that sort of material through the regular mail, the judge noted.

David Fathi, senior staff counsel for the ACLU National Prison Project, represented the plaintiffs in the lawsuit that toppled the Arizona law -- the Canadian coalition, a pen pal Web service and a Los Angeles-based organization called Stop Prisoner Rape. "We argued that any legitimate interest that the prison system had in keeping inmates off the Internet was already covered by regulating the prisoners' incoming and outgoing mail," Fathi said. "The state doesn't have a legitimate interest in preventing someone from Canada, Sweden or New York from posting material on their Web site."

Besides stopping the occasional abusive posting, the Arizona law shut off Web writing that served an important public purpose, the ACLU noted, citing Stop Prisoner Rape as a case in point. On its Web site, the group, which advocates for changes in the law to address a little-noticed problem, publishes "survivor stories" written by victims of prison rapes. The group aims to "change public attitudes about sexual assault behind bars and put a human face on the issue instead of allowing it to be trivialized and made into a joke," said Alex Coolman, communications coordinator for the advocacy group.

No other state has followed in Arizona's footsteps and attempted an all-out prohibition on Internet access by inmates. "They have wisely realized that is not constitutionally permissible to prevent free people from putting material on their Web site," Fathi said.

Internet printouts banned in California

Other states, however, have adopted somewhat subtler strategies. In 1998 the warden at the California maximum security prison Pelican Bay adopted a rule that prohibited inmates from receiving mail that contains "Internet-generated information." Several other wardens around the state followed the rule. The ACLU quickly pounced on that regulation.

In an early round in the litigation, a California court of appeals upheld the rule after finding that "the unique characteristics of e-mail" pose legitimate security concerns. In February 2001 the appeals court judges deferred to the assessment of the situation by prison authorities, asserting "it was undisputed that prison officials believed the potential high volume of e-mail, the relative anonymity of the senders, and the ability of senders to easily send or attach lengthy articles and other publications would greatly increase the risk that prohibited criminal communications would enter the prison undetected and would make tracing their source more difficult."

The California policy didn't last long. In September 2002 U.S. District Judge Claudia Wilken in San Francisco permanently prohibited prison officials from enforcing it. The state Department of Corrections appealed. On April 20, 2004, the 9th U.S. Circuit Court of Appeals affirmed Judge Wilken's ruling.

Lawyers opposing the California regulation have noted that under its terms, inmates could legally receive newspaper clippings by mail, but they couldn't receive printouts from newspaper Web sites. They argue this makes it very difficult for inmates to access news archives and legal databases on the Internet.

The rule imperiled, among other things, a vital service provided by Prison Legal News, a Portland-based monthly prison rights magazine, according to Hans Sherrer, the publication's circulation manager. "We receive hundreds of letters a week from prisoners," he said. "They often request information about a case or a health issue, and we'll print something off the Internet and mail it back to them."

Sherrer noted there was an easy way to skirt the California rule. "What people typically did was cut off the bottom portion of the page where it has the URL and then it got in," he said. California ceased enforcement of the rule after Judge Wilken shot it down. Mailroom watchdogs in a few other states have occasionally turned away Internet-generated material, Sherrer said, though there doesn't seem to be a problem in most places.

Pen pal ads nixed in Florida

Florida is the latest state to take a crack at inmate Web services. Last summer the Department of Corrections adopted a regulation that prohibits inmates from using the mail to "solicit or otherwise commercially advertise for money, goods or services," a ban that expressly includes "advertising for pen pals." Under the rule, Florida inmates aren't even allowed to "have ads posted with the assistance of another person" or receive "correspondence or materials from persons or groups marketing advertising services."

The Florida Justice Institute, which specializes in prisoner rights cases, represented WriteaPrisoner.com in the administrative hearings that proceeded adoption of the regulation. "We are looking at a direct challenge to pen pal ad prohibition," said Randy Berg, the group's executive director, though no decision about a suit has yet been made.

In the meantime the law is being vigorously enforced, according to Carolyn Flores, of Portland, Ore., who operates a pen pal site called Inmate Connections. She said that since the rule was adopted last summer, "Any time I try to send a brochure [about Inmate Connections to prisons in] Florida, it almost always gets sent back. It's a sad situation. If I get a request from an inmate in Florida, I don't even bother responding. I can't even write them a letter telling them, 'I'm sorry I can't send you a brochure.' That would get sent back."

Like other such pen pal sites, Inmate Connections charges an annual fee to build Web pages with photos, art and text submitted by prisoners. And they print out and mail to their incarcerated customers any e-mails received. It remains to be seen whether an inmate's Web page that avoids a direct plea for pen pals would pass muster with the Florida Department of Corrections. "As I read it, I don't think that would violate the provision," said Berg. "But I have seen the department read rules pretty broadly."

Debbie Buchanan, a spokeswoman for the Florida DOC, lends credence to that fear. "What else are they advertising for out there on the Web if it's not for pen pals?" she said, addressing the case of a page that refrained from a plea for letters. "That's advertising for pen pals and any inmate who does it is subject to disciplinary action."

Buchanan said that the department "can't do anything about" prisoner postings that went up before the new rule took effect, which may explain the healthy representation of missives from behind bars in Florida on many pen pal sites. "But if we can determine that it was put up after the rule took effect, then they're subject to disciplinary action," she said. The department is "actively searching in our mail rooms" for violations, Buchanan added.

Alabama prison officials on trial

Officials with the Alabama Department of Corrections contend that they have been rigorously searching Trawick's incoming and outgoing mail since his Web postings about his crimes were first discovered in late 2002. If they could find it, authorities contend they could stop Trawick from mailing such material under prison rules that in Alabama and in most states prohibit mail that promotes crime, is sexually explicit or is unusually inflammatory.

Through last year, a stream of new material from Trawick continued to appear on a Web site operated by Neil Arthur O'Connor of New Jersey. Officials suspect that it got out of prison before they began subjecting Trawick's mail to close scrutiny. George Jones III, the lawyer for Mary Kate Gach, whose 21-year-old daughter Stephanie was strangled and beaten to death with a hammer by Trawick in 1992, isn't convinced that the department did all it could do to address the problem. "Corrections insists he has no access to a computer terminal, but we're not so sure," he said.

O'Connor, who according to press reports at one time portrayed himself as Trawick's fan, more recently began to defend his site as a way to draw public attention to the killer's claims that he killed more than a dozen women, though he has been held accountable only for two murders. Shortly after Jones filed his suit in January, O'Connor took down the site, though parts of it have been copied elsewhere. He did not respond to e-mails seeking his comment. As of mid-April, Jones was still unsure whether O'Connor had even been served.

"I'm sure he'll claim that his Web site was protected by the First Amendment," Jones said. "But the matter that the inmate is publishing is essentially a manual on how to commit murder. And that is not protected speech."

The ACLU's Fathi, with apologies, begs to differ with Jones's assertion that Trawick and inmates like him can't express themselves on the Internet. "The courts have recognized that prisons have greater authority over incoming mail than outgoing mail for the obvious reason that incoming mail implicates prison security in a way that outgoing mail does not," Fathi explained. "If outgoing mail is not a threat, does not involve planning for a crime, if it's simply a person talking about the crime he committed and how he feels about it, we might all agree that it is tasteless and unfortunate. But that's very different from saying that the state should have a right to suppress that speech. It's pretty well settled that speech may be tasteless or very upsetting to some people but that does not justify its suppression by the state."