Please ensure Javascript is enabled for purposes of website accessibility
Home / Opinion Digests / WDVA: Jails must deliver nonprofit’s materials to inmates

WDVA: Jails must deliver nonprofit’s materials to inmates

A regional jail authority is preliminarily enjoined from confiscating publications mailed to inmates by the Human Rights Defense Center. The policy banning delivery of such publications is not rationally related to any legitimate purpose identified by the defendants.


Plaintiff Human Rights Defense Center is a non-profit organization that distributes books, magazines, and other information about legal news and prisoners’ rights. It publishes Prison Legal News (PLN), a soft-cover monthly magazine with thousands of subscribers, printed on black and white newsprint. The Center also publishes about 50 soft-cover books designed to educate inmates about the legal system and their rights. In addition, the Center sends inmates annual newsletters. It sends longer-term inmates an initial mail packet and a free six-month subscription to PLN.

Defendant Southwest Virginia Regional Jail Authority operates four jails that house approximately 2,000 inmates, at varying levels of security. The Center has attempted to send its publications to the Jail Authority’s inmates, but the Authority has confiscated them. A policy effective March 1, 2015, bans personal material sent to inmates from outside publishers. According to the superintendent, the policy arose from concerns about inappropriate material; lack of space; fire hazards; safety concerns regarding staples; and the possibility that colored papers and glue could be laced with drugs. However, no written policy addresses staples or glue, and the Jail Authority has confiscated mailings from the Center that do not contain glue, staples, or colored paper.

On June 1, 2016, the Jail Authority amended its policy to allow inmates to order books from publishing companies subject to case-by-case approval. Written policies do not list any criteria for which items will be accepted or rejected. Some inmates are unaware that they are allowed to order books. The delivery and confiscation of mail is inconsistent, and some inmates have not received mail they know was sent to them by family members and friends.

Sometimes prisoners receive confiscation forms for confiscated materials, but sometimes they do not. One inmate filed a grievance regarding the confiscation of his mail but did not receive any response to the grievance.

None of the Jail Authority’s facilities allow inmates to physically access jail libraries. Inmates have sporadic access to book carts, whose books are damaged and rarely refreshed. The Jail Authority provides one local and one national newspaper to be shared among all the inmates in a housing unit. They have access to an electronic kiosk containing certain court opinions, but they are only able to use the kiosk for up to 30 minutes at a time and are not guaranteed access to it on any given day.

Books ordered by inmates must be legal, religious, or educational in nature and cannot have hard covers. Inmates have in the past put staples into toothbrushes and other objects to fashion weapons and tattoo guns. The Jail Authority limits the number of items of personal property each inmate can have in his or her possession. Because of this policy, delivery of the Center’s publications would not contribute to overcrowding of cells or create a fire hazard. Cells are searched daily.

The Center has identified at least 222 items it sent to the Jail Authority’s inmates that were not delivered. In a few instances, these items were returned to the Center. On two occasions, the Jail Authority notified the Center it had confiscated the materials. The notice states that the sender can appeal a confiscation decision within 10 days.

In January 2017, the Center appealed a confiscation decision, but the appeal letter was not received by the Jail Authority within 10 days of the confiscation, so the Jail Authority ignored it. It took four and five days for the Center to receive the confiscation forms, leaving only a few days in the 10-day appeal window for the Center to respond. The confiscation forms do not explain why the issues of PLN were confiscated.

All mail to be delivered to an inmate is opened, scanned, and screened for contraband, escape plans, or other problematic content. The envelope flap, stamp, and any mailing label are removed, as are any staples. When books are donated to the facility libraries, staff remove any mailing labels from the books and check them for contraband. They also remove the spines from any donated hard cover books.

It is significantly more cumbersome for the Jail Authority to reject an item than to accept it. The worker must complete a confiscation form, package the item, log it, and mail the form, and the decision can be appealed. When a magazine or other publication is accepted, it takes only a few seconds for a mail room worker to process the item. A former official with the federal Bureau of Prisons testified that the Jail Authority’s policy of prohibiting staples, colored paper, and glue is highly unusual.

The staples used in PLN are small and flimsy and are unlikely to be used to tamper with restraints or fashion weapons. PLN is delivered to several maximum-security prisons and to all state prisons in Virginia. Giving inmates access to a variety of books, magazines, and newspapers of interest to them serves a rehabilitative function and also helps to prevent the mischief that can proliferate when inmates are idle.

Preliminary injunction

Likelihood of success. Prison authorities are entitled to broad, but still limited, discretion regarding materials coming into the facility. Here, the Jail Authority says that in confiscating the Center’s materials, its objective is to prevent prisoners from obtaining drugs and staples that could be used for tattooing or as weapons. The Jail Authority also alleges that the restrictions are intended to promote fire safety. But the mail restrictions are not rationally related to the prison’s objectives because items sent directly from publishers are unlikely to contain drugs, and other policies are in place to minimize fire hazards. The only policy rationally related to the stated objective is the jail’s apparently unwritten policy of prohibiting publications bound with staples.

It also appears that the jails’ policies are not being applied in a neutral or rational way: A number of confiscated mailings do not contain colored paper, glue, or staples. The few notices that have been sent to the Center have not stated the reasons for confiscation. The Jail Authority also has offered no rationale for the unreasonably short appeal window.

The Center has no adequate alternative means to exercise its First Amendment right to communicate with prisoners. The Authority suggests that the Center should donate its publications to the facility libraries, but it offers no evidence showing that materials so donated would reach the intended recipients in a timely fashion, or at all. By contrast, the Center has shown that library items are distributed to inmates infrequently and that inmates do not always get the materials they request.

Accepting the publications at issue would also have minimal impact on jail staff. They already remove spines from donated books and examine all incoming mail for contraband. Mailroom workers could remove staples from an issue of PLN or remove the colored-ink cover of a book in less time than it would take to complete, log, and mail a confiscation form. These obvious, easy alternatives to rejecting all of the Center’s mailings show that the restrictions are an exaggerated response to the stated concerns.

Irreparable harm. The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury. This element is not undermined by any delayed filing of the Center’s suit seeking preliminary injunction.

Balance of equities. The Defendants’ overbroad policies, applied in an unequal manner that is at best arbitrary and at worst discriminatory, call into question their motives. The Center has attempted to comply with the vague written policies to the best of its ability, despite the Defendants’ lack of communication. Thus, the balance of equities favors the Center.

Public interest. The public has an interest in upholding constitutional rights generally, educating and rehabilitating inmates, and providing inmates with timely information to ensure meaningful access to the courts and vindication of their rights. Preliminary injunctive relief is therefore in the public interest.

Plaintiff’s motion for preliminary injunction granted.

Human Rights Def. Ctr. v. S.W. Va. Reg’t Jail Auth., Case No. 1:18cv13, July 3, 2018. WDVA at Abingdon (Jones). VLW No. 018-3-272, 17 pp.