V. Prisons

Part: 
Four
Chapter: 
8

Seventeen prison systems were polled regarding their policies for the admission of sexually explicit material into their penal institutions for consumption by inmates.[2249] Fifteen of the systems had written policies. All of those with such policies cited state or federal law as the basis for the policies.

The United States Bureau of Prisons (BOP), Arizona, California and Wisconsin all use pertinent state or federal statutes solely as the basis for their written policy. No attempt appears to have been made to interpret or apply the statutes.

Alabama and Nevada have no written policies regarding sexually explicit material distribution in their penal institutions. However, Alabama does not allow the sale of sexually explicit materials within the system, and will allow only Playboy magazine to be received by the inmates. Alabama keeps ten other sexually explicit magazines in the prison libraries. The sole basis for rejection of a publication or materials in the Alabama system is the judgment of the reviewer of this material. The reviewer was not specified in the correspondence from Alabama.

Nevada, on the other hand, indicated that no review of materials occurs because there is no written or unwritten policy on the subject. Prison officials are not allowed to conduct censorship of any type. Anything is acceptable, and no provision is made for restricting obscene or unlawful materials.

All the other systems that had a written policy named either the warden, superintendent or a designee, or a review committee appointed by the warden or other chief administrator, as the reviewing authority. Alabama, Arizona, Michigan, Texas, and Wisconsin do not specify the reviewing authority, but indicate that a review does take place.

In most cases criteria for rejection of sexually explicit material is based on its propensity to be prejudicial to good order and conduct (BOP's only criterion) or if the material is obscene or unlawful. In the case of material being prejudicial to good order and conduct, the decision is made by the reviewing body without much in the way of guidelines.

In the case of material being obscene or unlawful, a variety of definitions arose. "Unlawful" is either left undefined or references state or federal law. The definition of obscene is less consistent among the systems. Where obscenity is defined (in seven out of the seventeen), the Miller definition is either used verbatim or is paraphrased in total or in part. Ten of the seventeen states define the type of material to be restricted by describing the Miller test and/or citing examples. Five of them do both. Washington state is a notable example because the Miller definition of obscenity is used, examples are cited, and, by law, the material in question must not be protected by the United States or Washington State Constitutions.

The sex acts defined by the eight systems which chose to specifically describe sexually explicit depictions prohibited in their institutions were fairly consistent. These acts were generally: intercourse, normal or perverted, anal or oral; interest in excretory functions in a sexual context; or masturbation. Some provisions were also made for the lewd exhibition of genitals.

Michigan appeared to have the most restrictive policy. The restrictions pertain to photos of persons in "see through" garments and provides for a list of restricted publications. However, testimony from a Michigan inmate, named Grant H. Hendrick as part of a Walter H. Annenberg Foundation Criminology Study,[2250] indicates that sexually explicit materials are readily available, sold in prison commissaries, and shown on prison closed-circuit television.

There were three other systems which had a list of permissable publications: Florida, Illinois and New York.[2251] New York's list is the most comprehensive and approves large quantities of sexually explicit materials. The United States Bureau of Prisons and Kentucky expressly forbid the compilation of a restricted publication list.

The only states which stated that sexually explicit materials are provided in prison libraries were Alabama and New York. Six other states specifically said such publications were not provided in the libraries. The rest of the states surveyed did not respond to that question. Finally six of the states responded that no sexually explicit publications were sold in prison commissaries. The remaining states did not comment.

Notes

  1. The seventeen systems included Alabama, Arizona, the United States Bureau of Prison, California, Florida, Illinois, Kentucky, Massachusetts, Michigan, Nevada, New Jersey, New York, Tennessee, Texas, Virginia, Washington, and Wisconsin.
  2. Affidavit of Grant H. Kendrick, Michigan State Prisoner # 131851 (Sept. 9, 1984).
  3. New York also has a list of disapproved publications.