Judge: New jail policy allowed sheriff to avoid order to distribute prisoner rights journal to inmates

By Scott Holland | Nov 30, 2016

A federal judge has sided with the Cook County Sheriff’s Office and its policy of keeping inmates at the county jail from reading magazines focused on the legal rights of prisoners. 

In a memorandum opinion and order issued Nov. 21, U.S. District Judge Joan B. Gottschall denied a motion for preliminary injunction filed in July by Human Rights Defense Center, of Lake Worth, Fla., which publishes a monthly journal titled “Prison Legal News: Dedicated to Protecting Human Rights.” The agency says Cook County Sheriff Tom Dart and County Jail Executive Director Nneka Jones Tapia have official policies keeping the journal and other such publications from their prisoners, and that such policies violate the publication’s First and 14th Amendment rights. 

Between the July complaint and Gottschall’s opinion, the jail in September instituted a mail room policy change that county officials say makes “Prison Legal News” available to inmates in common areas, law libraries and in some cases by subscription. Gottschall wrote the county has not fully clarified its policy with the court, while Human Rights Defense Center argues the changes do not fully satisfy the constitutional concerns the complaint raised. 

Gottschall’s opinion cited testimony from Daniel Korso, deputy chief of the county’s correctional staff, negating the county’s argument the publication is widely available to inmates, allowing the complaint to survive a mootness claim. She further rejected an estoppel claim the county raised regarding the 2015 federal court opinion in Koger v. Dart, which considered a question of “the constitutionality of a total ban on newspapers,” a question the Human Rights Defense Center complaint does not raise. 

In considering the preliminary injunction request, Gottschall questioned if the First Amendment claim would succeed on its own merits. She cited the 1987 U.S. Supreme Court opinion in Turner v. Safley, which established criteria a prison system must meet to legally restrict prisoner access to certain publications. 

Gottschall determined the jail’s restrictions can rationally be considered legitimate means of preserving security, but also noted there is no alternative means for the publication to exercise its free speech rights. She also said the county fails to prove its argument that allowing the publication would negatively effect inmates and prison staff. 

However, while Gottschall is not satisfied with the jail’s efforts thus far to make “Prison Legal News” available to inmates — notably compared to its availability to inmates at other facilities nationwide — she did find the county’s attempts “indicated a willingness to provide ‘Prison Legal News’ in some capacity at the jail indicates the existence of an easy and obvious alternative to any prior refusal to make this publication available.” That was enough for her to deny the request for preliminary injunction. 

With respect to the due process claim, Gottschall noted the Human Rights Defense Center “hardly elaborates upon specific aspects of defendants’ mailroom policy or practice that it finds objectionable, and provides no specific details regarding the rejection/censorship of its publications in this case.” Likewise, the county has not detailed its policies that would refute the claim, leading Gottschall to suggest the due process claim could succeed at trial. 

In considering the Center’s argument the jail policy has caused irreparable harm, based primarily on the suggestion “Prison Legal News must be delivered to detainees quickly, lest the news become stale or irrelevant,” Gottschall wrote that position was “severely undermined by the fact that plaintiff waited over a year to file its complaint following the first alleged instance of censorship.” 

Ultimately, while Gottschall agreed it is important to determine how the jail is handling the publication, she determined the Center is not entitled to the “extraordinary remedy” a preliminary injunction provides.

Prison Legal News was represented in the action by attorneys with the firm of Loevy & Loevy, of Chicago.

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