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
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
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
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
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
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
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,
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
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,"
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
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."