Lawsuit alleges N.M. prison mail policy violates inmates’ First Amendment rights

By Phaedra Haywood
The Santa Fe New Mexican

ALBUQUERQUE, N.M. — Gov. Michelle Lujan Grisham is a defendant in a new lawsuit alleging the mail policy in New Mexico’s prisons is unconstitutional because it prevents inmates from receiving books, magazines and newspapers directly from publishers.

The lawsuit — filed recently in U.S. District Court by the Human Rights Defense Center — claims the policy amounts to censorship and violates the First Amendment. It asks the court to order the state to halt enforcement of the prohibition.

“When prison gates slam behind an inmate, he does not lose his human quality; his mind does not become closed to ideas; his intellect does not cease to feed on a free and open interchange of opinions. … It is the role of the First Amendment and this Court to protect those precious personal rights by which we satisfy such basic yearnings of the human spirit,” the lawsuit says, quoting a 1974 opinion by former U.S. Supreme Court Justice Thurgood Marshall.

The mail policy in question dates back to 2021, when the state Corrections Department stopped allowing inmates to receive original copies of mail. Instead, inmate mail was sent to Florida and scanned by a third-party vendor that would then provide photocopies to the inmates. Under a new system implemented earlier this year, mail is now scanned and converted into a PDF format that inmates view on a computer tablet.

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Due to the scanning process, corrections officials said at the time, inmates would no longer be able to receive hard copies of books, magazines or other mail that didn’t fit inside the scanner.

State officials said at the time the policy was needed to reduce the introduction of drug contraband into prisons, but it was criticized by inmates and advocates as both dehumanizing and ineffective at stopping the flow of drugs.

The Human Rights Defense Center — which publishes Prison Legal News and other publications — says the policy violates the First Amendment rights of both organization and inmates.

Since at least February 2022, the state has engaged in “at least 152 separate instances of unlawful suppression of [the center’s] speech without due process,” the lawsuit states, preventing the delivery of 139 publications at state-run prisons and another 13 at prisons run by private prison management company The Geo Group.

The center’s lawsuit says publications addressed to prison inmates have been returned to the organization with “various combinations of handwritten notations” and stamps indicating the publications are “refused,” “denied” or “not authorized.”

Publications the Corrections Department has refused to deliver include: The PLRA Handbook — which provided guidance on filing lawsuits under the Prison Litigation Reform Act — and Protecting Your Health and Safety, which describes the legal rights and remedies available to inmates regarding their health and safety while incarcerated, according to the lawsuit.

In addition to the governor, the lawsuit names Corrections Secretary Alisha Tafoya Lucero , Deputy Secretaries Melanie Martinez and Gary Maciel and The GEO Group CEO Wayne Calabrese as defendants.

The Governor’s Office and the Corrections Department declined to comment on the litigation.

The Geo Group did not respond to a request for comment.

Corrections Department spokesperson Brittany Roembach confirmed in an interview Monday inmates are not allowed to order and receive books, magazines or newspapers directly from publishers.

“This decision is based on safety and us doing whatever we can to keep drugs out of our facilities,” Roembach wrote in an email.

However, the department “actively subscribes to various newspapers and ‘Prison Legal News’ publications” that inmates can view in prison libraries, and “inmates can also request books from approved vendors,” Roembach wrote.

“Beyond the mail services, inmates also have extensive access to ebooks through their tablets, including more than 70,000 ebooks in the ‘Project Gutenberg’ library,” Roembach wrote.

The Corrections Department is currently defending itself against a similar lawsuit filed in 2022 by Bryce Franklin, a state inmate who complained his inability to receive his Prison Legal News subscription, obtain a newspaper subscription or order books directly from publishers violated his constitutional rights.

State District Judge Conrad F. Perea ruled in favor of Franklin, writing in his September 2023 order the new mail procedures “unconstitutionally infringe on the rights of inmates.”

Perea rejected the state’s arguments that the limitations of the scanner justified the prohibition on direct subscriptions.

“This is an unconstitutional ban on magazines which is not related to whether they are detrimental to order and security, but rather because they do not fit through the Securus scanner,” he wrote.

Perea found “no rational connection” between the goal of reducing the influx of contraband and preventing inmates from receiving publications directly from publishers.

The state appealed Perea’s ruling, arguing there wasn’t proper notice of the hearing held prior to his decision, and the state hadn’t been able to present all of its evidence.

The New Mexico Supreme Court issued an order in August sending the case back to the District Court for another hearing but didn’t issue an opinion on the merits of Perea’s ruling.

Perea has yet to set a new hearing in the case.

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