Marc Emery’s US Federal Prison blog #15: Letter to Jodie

Oh Sweet Wife O’ Mine! The Marc Emery Support Day on Saturday was thrilling to know was going on, what little I knew about behind these bars. Some staff at the FDC here however, are have taken a hostile turn against me, I think, as a consequence of all this support and media surrounding my sentencing and my work.

In yesterday’s mail, the Facebook pages I have been regularly receiving since May – printouts of the Marc Emery fan page, and your personal page – were seized by the mailroom staff here at FDC, and I am barred from receiving them further. Plus my 8 pages of photocopies from (DRCNet) that Vanessa Nelson sends each week were looted too, along with two letters from Ken Holland in Michigan. Ken usually sends me a letter everyday which included a newspaper clipping all annotated by Ken’s pithy observations, and a few other cartoons he’s photocopied from newspapers, and some other photocopies of articles Ken thinks are pertinent. So both Ken’s two envelopes were empty with a notice that Ken’s clippings and ephemera have been seized as “contraband”. Vanessa’s letter was still there, but the excellent material from DRCNet were gone because, according to Big Brother in the mailroom, they were from a publication, and any publication has to come from the publisher. Of course, I have been receiving weekly photocopies of these drug war articles since May.

I immediately put in a complaint to the mailroom, the woman came down to speak to me about it this morning. She said I can’t get the Facebook pages any longer because they constitute third party messaging. I asked why that is a rule, and if it’s a rule, why isn’t it in the rulebook? She didn’t really have a good explanation of how me getting Facebook pages constitutes any harm, and she said when the rule book was written, Facebook didn’t exist. My rulebook was updated in January 2010, Facebook started in 2006. So there is a rule that they invented for the occasion of busting my balls. She did confirm that the mailroom let me have them for 14 weeks leading up to yesterday.

On Friday I was called into a Lieutenant’s office and given a charge, or “shot” as its called, a 328, because you sent my cellie JD $75 because he’s poor and you felt sorry for him. This was 4 weeks ago you did that on your own. I was told to report to the Disciplinary office and the man there was quite hostile to me. He mocked me as the FDC’s famous inmate, spent the whole time intimidating me. It’s not against the rules for you to give an inmate money, my dear, for you are such a sweet woman, you’ve given newspaper subscriptions, books, and small amounts of money to fellow inmates of mine before, back at North Fraser Pre-Trial – and as part of Cannabis Culture Magazine, we corresponded with prisoners, printed their artwork and letters in CC, such as prisoner Jimmy Rasta in Texas who even sent you that wonderful oil painting of you that is in the Lounge. You’re the Policing & Corrections critic for the BC Green Party and you talk with prisoner wives on, so this was hardly out of the ordinary for you.

The rule forbids me from giving money to other inmates, but I don’t have any money, nor is cash allowed (or possible) here. The angry man in the Lt’s office told me he reads all my emails and listens to all my calls, including, he added with a disgusted emphasis, “your personal ones”, implying my intimate talks that I get to occasionally have with you or my sign offs on my emails to you. Nothing at all out of the ordinary, considering I’m your husband! But he was contemptible towards me.

Then he said what I write in my emails is lies, and he specifically said my chapter I wrote for Barry Cooper’s book on life here at Sea-Tac FDC was, and I quote, “bullshit”. He further asked me why I felt qualified to write about life here, and I added, though we wasn’t interested in my point of view, “because I’m here.” Then he went on sarcastically saying “You said we tortured you in the Special Housing Unit”. I said “Solitary was a form of torture as far as I’m concerned.” He sneered. In fact, most C.O.’s here have told me I was sent to solitary (SHU) for 21 grueling days in June simply because I was “high-profile” and “famous” and for no other reason at all. Certainly not the stated reason that you recorded my phone call, Miss, that was just their excuse, as there is no rule against recording my phone calls. They brought out that “3rd party” rule which I see they use just to mess with me when they feel like it.

Then his cohort asked how long in was in the solitary confinement, I said “21 days”. “And you feel that qualifies you to write about SHU?” I thought one day in there qualifies an inmate to write about it authoritatively because every day is the same in there, but I said nothing, they weren’t listening. Then this cohort said, “well maybe you ought to spend more time in SHU and see what you think about that.” I felt that was sinister intimidation trying to suppress and silence my writing here, which is protected speech. Especially the Lt boasting he reads all my emails and listens to all my phone calls, including my “personal ones”, like he’s trying to cow me. Notably, he obviously didn’t have any emails or phone calls that provided any support for this charge that I somehow gave my cellie money.

That was a creepy enough experience. I will say, not all the C.O.’s here have this attitude, but enough of them have it, it would appear. I got my verdict after having a second meeting: two months of no commissary for me, and one month of no commissary for my cellie. That means no purchasing anything, like stamps, envelopes, soap, toothpaste, or the nuts, trail mix and other food items I bought that gave me protein and other vitamins I need. Clearly there is some institutional bias going on against me now; I can only conclude as a result of the media attention that has come to my situation in the last few weeks.

Even in the visiting room on Monday, I arrived at 2:45 pm. You didn’t arrive until 3:10 pm, so I asked the C.O. if my 2-hour visitation time started at 2:45 when I arrived or 3:10 when you arrived. It was the C.O. who has reprimanded me twice before and threatened to give me a shot because on two occasions I was touching your arm instead of holding your hands, and it’s the one who also complained that I’m not allowed to kiss you in our photographs like we did once on photo day, and that he’d be watching me in photo days in future. You know whom I’m talking about, Miss, the one you refer to as ” the mean guy”. When I asked about this time question, politely as always, he got all over-sensitive and said “you’ve been here many times Mr. Emery, you know we never short-change your visit times.” I commented that my rulebook, which I’ve memorized, says on page 22,”The time period will begin when the inmate arrives in the visitation room”. Since I had to wait 25 minutes in the room before you were escorted in (you had been waiting 70 minutes in the other part of the building), and according to the rulebook, that would count against our time, and I wanted that clarified. So we got our two hours together, and it was wonderful, but the rules are obviously not very clear, which makes them difficult to follow.

You have my chapter for Barry Cooper’s book, as you are going to be the editor of Barry’s book, Mrs. Emery; a wise move by him, I’m sure. As I’m sure you agree, the “Life in a US Federal FDC” is very fair. It doesn’t criticize any staff here nor even the institution itself, it’s just the way it is. Of course I say the food is terrible, but who can disagree with that?

The rulebook doesn’t prohibit these so-called 3rd party messages in a mailed letter. A 3rd party message could be “The kids want you to know they love you” or “Your mother asked me to pass on her love and her hope that you are eating well” or even “I’m supposed to remind you to call your lawyer, write your mother, etc”. Why I can’t receive my Facebook pages is not rationally explained. The rulebook just says “Unauthorized mail includes musical greeting cards, Polaroid photos, nude personal photos, plant material, non-inspectable items, etc.” Typically, any 8.5 x 11 photocopies or 8.5 x 11 printed pages are considered a “letter” – or were, until yesterday. Today, the mailroom seized a one-page laminated chart for editing my own stories that a retired teacher sent along. Seized because it’s laminated.

I hired a lawyer to help me process my US application for the treaty transfer back to Canada. The process for the US side of things is more complicated so I think a lawyer who specializes in this transfer application business is a good idea. It’s $8,500 and of course I don’t have any money so I hope you can get some donations from our supporters to help me pay for this lawyer. I know you’ll take some of your own pay and help me with this lawyer, but I already use up so much of your income being in here, where phone calls, emails, and everything else that costs money.

I know you received $350 in donations for me last month, so that helped. Loretta Nall is sending $100 to help too, probably just in time to pay the $100 fine I have to pay from the September 10 sentencing. The $8,500 for this new US lawyer will need to be paid soon, at least a good chunk of it, so you should ask our supporters to help out, because we just finished paying my sentencing lawyer Richard Troberman. I will say this for Richard, he is a terrific lawyer and he does great work and would definitely recommend him to anyone who needs a criminal lawyer in the Seattle area. I feel I’ve been fortunate getting excellent lawyers like Ian Donaldson in Vancouver and Richard Troberman here. But now yet another lawyer needs money and I’ll need help to pay her that $8,500. I sure hope she can help with making my application for transfer successful.

I hope this week you can read my 15 stories of my autobiography and begin to edit them for the website, where all my writings will be going. I’d love to have those available to people by mid-October to read. These stories have never been read by any of my supporters before and it will provide insight as to how I became who I am. Plus they are so cute and full of nostalgia and I’m looking forward to the feedback. Tomorrow I’m going to write about Iboga Therapy House, and then the garbage strike in 1986, and then scenes from my travel adventures in India, Indonesia, my trip to the middle east in 1975. I’m going to try to finish a story every day starting tomorrow.

I’ve been reading a lot at night until about 2:30 or 3 am. I finished two graphic novels by Alan Moore, Tom Gordon #2 and Top 10. Alan Moore is a fantastic story-teller. I finished the Cartoon History of the World, Books #1, #2, #4, and #3 just arrived today. Alas, most of the world’s history is a depraved slaughter; militarism & enslavement with genocides, and it’s gotten wearying, since regardless of place (China, Rome, Egypt, India, South America, Europe) it’s the same predictable mass killing, stupid punishing religions, domination and conquest. Even me doing this 5-year sentence in this prison feels like an extension of this sordid history of domination over peaceful, largely powerless people by oppressive governments and institutions. I begin to read Nelson Mandela’s autobiography tonight, on that note.

After writing over 300 letters from May to early September, I’ve gotten burned out writing letters to correspondents, Miss, so I hope they’ll forgive me if I take a break. I spent 3 to 4 hours every day writing 5 or 6 letters to people but in the last two weeks I’m more wanting to spend that time writing stories that everyone will get to read at about my life up to now. The Life in Federal Prison piece for Barry Cooper’s book, Robert’s Vietnam story, my autobiography stories, my Canadian voter’s guide: these are the projects I want to focus on for now. I’ve still got the letters I’ve received stacked up, and I’m going to get to my regulars – Carol in Camino, Vanessa in Sacramento, Daniel in Vancouver, Arlette in Vancouver – but I’ve got to get my stories done while the muse is in me, Miss.

Loretta is sending me photos of her Marc Emery Support Day activity in Montgomery, up Dexter Avenue where Martin Luther King’s church was. And I hope Jeremiah and you can send me photos of the activities you’re aware of, especially since they won’t let me receive copies of my Facebook page anymore.

I haven’t been designated yet, but I’m going to be soon, then I expect I’ll be moving out near the end of October or beginning of November.

I sure loved seeing you Monday in that pretty red dress. You had a great tan from Saturday, standing on the bridge over highway #5 with the FREE MARC EMERY signs and all the Seattle-area activists who were with you. You are the loveliest sight for my lonely eyes Miss. You know how I cry many times on the phone or when I write you, Jodie, and even when I see you, and I’m crying now. This is such a difficult challenge, and I won’t lie, it’s disheartening to think I’ve got years to go. As of today I’ve spent over 194 days in jail, and with good time credit of 232 days on my 5-year sentence, I have no more than 3 years and 10 months to go if I spend every day of it in these United States of America prisons. That’s still very discouraging to think about, Jodie, it really is. I hope people are still contacting Public Safety Minister Vic Toews and the US Department of Justice, asking for them to let me serve my time in Canada.

I really hope people give some money to Proposition 19, and urge everyone in California to vote for it, because it needs 50% plus one of the voters to vote YES, not just enough votes to beat the No side. Lots of voters go to vote but don’t vote on every initiative, and if you go to the polls but don’t vote on Prop. 19, it’s like a no vote. So it’s more challenging than people think to win; it’s not just a matter of getting more votes than the no side. That vote is in just 6 weeks. If it wins, it will be the most monumental thing to happen in North America this year, and it will really help end the marijuana prohibition so much sooner than if it fails. I’m so disappointed that Peter Lewis, MPP, the DPA and other well-financed groups have not contributed the big money they have access to on this great, great opportunity. If Prop. 19 fails, there will be people in our movement to blame for holding back when they should have committed.

I’m very pleased to hear that you have gotten Canadian city councillors, Mayors, MLA’s, numerous Members of Parliament and a Senator so far to sign a letter to the Public Safety Minister urging my repatriation to Canada. That will be impressive. We will need a letter signed by American elected officials for the same purpose to be presented to the US Justice Department regarding my transfer. I’m hoping our supporters can urge Congressman Ron Paul and former New Mexico Governor Gary Johnson to sign a letter like that, along with any other elected official they know who is sympathetic to ending prohibition. These letters do not ask for my clemency, only that I be transferred in accordance with existing law in both Canada and the United States back to the Canadian Corrections system.

I can’t wait, as always, to see you this weekend. Your visits are so precious to me. Since we don’t know when and where I might be sent away to my designated prison, and how long it might be before you can visit me, or even know where I am, I savor these visits. I try to stay strong, sweetheart, and I’m always busy, but I feel I’m not very brave. I miss you tremendously and can get so sad thinking about my loneliness from you. I’m glad no one here razzes me when they see me crying when I write to you, it’s considerate of them, because I am such a wuss. I’m so, so in love with you. Remember when you were sixteen, you predicted to one of your classmates that you would “marry Marc Emery or work for him, or both”, as she reminded you about recently? How perfect that your destiny was fulfilled! You are the best thing that ever happened to me, Miss. We must be meant to be soul mates forever.

Your prince,
Wanting to come home,
Marc Emery

Marc Emery
Marc Emery

Marc Emery is a Canadian cannabis activist, entrepreneur, and politician. Known to his fans as the Prince of Pot, Emery has been a notable advocate of international cannabis policy reform for decades. Marc is the founding publisher of Cannabis Culture and Pot TV.



  1. Anonymous on

    I would just like to say Mr. Jordan is a very smart and strong individual, Many people write for help and I hear stories that if he were to ever be released he would be that ” million dollar lawyer”. He also has a website and another one that has alot of information not only about his case but many federal issues. I know he has been in solitary for I think 10 years in SuperMax (Colorado). Very sad story on how 2 jailhouse snitches got him convicted of murder. Who knows there may be info on there that could help.

  2. Dr. Kenneth Weinstock on

    Yes it’s true, the grate state of “Live Free or Bi” – New Hempshire has now set a trial date for Poet R U Outavit – Pulitzer Prize Nominee – “Harmony Blossoms” – 1989 & Co-founder of “Squawk Coffee House” – 1985 along with being an undefeated Slam Poetry Champion of the movement he founded at “Best Boston” – 1985 – for the vast and dangerously seditious hoard of possibly 1/2 match-head of leafy green vegetable matter state laboratory confirmed to be Marijuana weighing in at the stupendous gram total of ” .12 ” … Anyone left-wing enough to inquire as to further lurid details should contact : [email protected]

    ” Mr. Outavit will presumably fulfill the role of America’s pre-eminent voice of dissent… ” — Allen Ginsberg – Tufts University – WMFO Radio – “Second Silence” – 1985

    ” Poet R U is possibly the heir-apparent to Robert Frost as America’s poetic voice of the approaching age of “Big Brother” which 1984 will surely herald ” — Ed Sanders – The Fugs

    ” In my estimate R U Outavit is our most concise poet on the stage today for if anyone understands my statement that “I hate adjectives unless for fiction” – read “Help Me Go Krazee” – Prestige Publishing – 1977 – not one adjective…” — Vincent Ferrini – “Know Fish”


  3. Anonymous on

    You will not be able to correspond with any other incarcerated person while you are doing your time. A person on the outside is not allowed to forward your mail to another inmate either, according to BOP rules.

    You can receive books if they are sent directly from a publisher or reputable bookstore. Best places to use are or They both are good at following the BOP mail rules.

    If you have other questions about federal prison before you self-surrender, you should go to the Federal forum on Pristontalk Online ( and you will find a wealth of information and folks to answer your questions.

    Jodi – You’re welcome for the case citation. It may not help much, however, as Colorado is in a different federal court circuit than Washington. It’s worth a try but it’s more likely your husband would have to file grievances, go up the grievance system and then file in Court. Not really worth the time and expense because he’ll be gone from SeaTac before getting to the court level. Each institution has their own quirks with the mailroom in that particular facility.

  4. BrandonLowe on

    So this all freaks me out because I am turning myself in on october 5th to Chicago MCC (metropolitan correctional federal), short time, for possession 2c-b (similar to mescaline so to say). Another victimless crime put away! And nothing better than to fully ruin my life. Ive served 10 straight months, and months of probation and house arrested and whatever in the past for crimes that never occured but the cops said it occured (first thing was a family issue, and no warning, they put me right in jail and that ruined my life. I failed a drug test for marijuana and went away for 5 straight months, over a misdemeanor batter without harm, there was no physical violence really. Got out, then i got charged 10 days later for having to force my way into my house to get a job application for an interview, locks were changed and noone was home and I had to have a job. Everybody pleaded for me not to be arrested, they begged, but the cops felt the need to put me away. Keep in mind, at this time, I was an advanced student in school, but this stuff ended up making me a forced dropout. Regardless of innocense, the court aggressivley pushed drug testing on me, after passing four months i started smoking again and randomly was told I was going to have to take one when I went to court, the day I was at court. So, I was forced to plead guilty or go to jail. Now all them fake convictions come back on me, can’t contest them in court, and I have no choice but prison. I have no money, my dad since all this got ran out of town because of these chemicals, went broke, nobody would help him, now hes in jail for going to a gas station and telling them to give them all their money. His cellie is a murderer and a sodomizer. My dad is harmless, in fact everybody at the jail knows him one way or another, a few even partied with him. Instead of sending me close to home, im being sent up north while my grandpa is at great risk of passing away.
    Look, I am an inspiring musician. My use of psychedelic chemicals and the weed itself heavily influences my blues skills, and my music. Without it, I would not be who I am. It goes hand in hand with my musical research, its not a criminal fucking action!!! Now because of all this, if I go in public theres people telling me one day Ill learn, or this or that. I am not violent, and I am not saying this to convince myself. Everybody knows Im harmless, I dont steal, nothing. The laws are wrong, and they are destroying humanity! I will never submit myself to these people, nor adjust. I guess Im not their slave for 6 months. But, compared to what I could have had in life, society has done away with me. Every where I go I get searched (just had to report to the PO how a few weeks ago I was stopped and searched twice within 1 block, my other friend walking the opposite direction said they didn’t even stop for him). These people get OFF on doing this, and its extremely sick. The DEA puts fear in people that they should turn to them for protection against people that pursue chemicals. The government is what is creating all this mess! We should love thy neighbor, and be comfortable with all of society and population, but rather it is divide and conquer.

    I guess I got some of my points out there. I guess they shun on people whom use psychedelic chemicals, I guess the knowledge it holds is absolutely forbidden.

    Hey, would it be alright like if I somehow wrote him or anything, kept up to date with how his time is doing while I am doing mine? Its crap, the judge said he recommends a minimal security like camp, the fbop says we keep them close to home, but yet Im going somewhere as punishment so I won’t have any visitors. And that money rule is absolute bullshit! What the fuck, I am going to be going into this place practically broke because nobody will hire a convicted felon. I guess its too hard to ask these people to let me just stay free for a little while longer if that is the difference of me going to a lower security. I also just found out there are a couple of prisons with guitars, and the judge and fbop knows im heavily into playing my blues guitar as its in my presentence investigation report! Why don’t they send me somewhere that at least has some sort of rehabilitating characteristic to it for me? I was free for a year, had gotten 3X more jobs than I ever had my whole life, and had cleaned up from the opiates. I was settled in. Not now.

    So, any way you could keep me up to date with him and shit while Im in? Another question, do you think they will allow me to get my history books in there (About the new world order, about the bloodlines and what not)? Sent from the publisher.

    Sorry to hear about marc, I am half ass expecting chicago to be the same as Ive been hearing bad shit about their CO’s as well. They want me to be their slave bad enough.

  5. Jodie on

    I found (and cleaned up) the text of the decision! I’m sending it to Marc, so he can use it to argue against the mail seizures.

    Friday, July 17, 2009 

    Court Holds BOP ‘Publishers Only’ Rule Unconstitutional
    Judge Phillip S. Figa
    Civil Action No. 03-cv-02320-PSF-MJW
    MARK JORDAN, Plaintiff,
    ROBERT A. HOOD, Warden, ADX Florence, MARY H. SOSA, Acting ISM, ASX Florence, in their official capacities, and FEDERAL BUREAU OF PRISONS, Defendants.



    Plaintiff Mark Jordan commenced this action on November 20, 2003, seeking declaratory relief, injunctive relief and damages arising out of alleged violations of his First and Fifth Amendment rights. A one-day trial was held on Monday, June 12, 2006. Defendant Mary Sosa gave testimony by video, as did John Loftness, the Assistant Correctional Services Administrator for the Bureau of Prison’s North Central Region. Plaintiff also submitted the deposition of John Lee, the former Inmate Systems Manager. The parties submitted joint exhibits numbered one through seven, consisting of the administrative record, plaintiff’s administrative exhaustion documentation, and information about the prison regulation that plaintiff alleged violated his constitutional rights. The following is the Court’s Final Order and Judgment in this matter.

    Mr. Jordan, an inmate at the United States Penitentiary, Administrative Maximum facility in Florence, Colorado (“Florence ADX”), claims his First and Fifth Amendment rights are being violated as a result of 28 C.F.R. § 540.71(a)(2), which prevents inmates from receiving soft cover publications unless sent directly from the publisher, a
    bookclub, or a bookstore. As a result of the regulation, defendants (named as Robert Hood, Florence ADX Warden, Mary Sosa, Florence ADX Acting Inmate Systems Manager, and the Federal Bureau of Prisons (“BOP”)) refused to deliver to Mr. Jordan a 120-page internet essay series, mail containing photocopies of two magazine articles, and mail containing clippings from articles. None of these materials contained pornography, helpful hints on how to escape from prison, inflammatory gang communications or race-based literature, nor other hate-inducing propaganda.

    It is undisputed that Mr. Jordan exhausted his administrative remedies in connection with each case. Plaintiff filed a motion for summary judgment, seeking an order from the Court holding that 28 C.F.R. § 540.71(a)(2) at least as applied to internet printouts, news clippings and copies and tear-outs from magazines fails the applicable constitutional standards and therefore fails to qualify as a regulation reasonably related to legitimate penological interests. This motion was orally denied by the Court at the Final Trial Preparation Conference, and the case proceeded to trial.


    To prevail on his claim, Mr. Jordan must meet the criteria set forth by the Supreme Court in Turner v. Safely, 482 U.S. 78, 89-90 (1987). In Turner, the Supreme Court established a “reasonableness standard” for analyzing the interaction between prison regulations and constitutional rights. The Court provided four relevant factors for determining reasonableness:
    (1) whether there is a valid rational connection between the regulation and a legitimate and neutral interest put forward to justify it;
    (2) whether there are alternative means of exercising the asserted constitutional right that remain open to inmates, with judicial deference to the correction officials’ expertise;
    (3) whether and the extent to which accommodation of the asserted right will have an impact on prison staff, on inmates’ liberty, and on the allocation of the limited prison resources, again with particular deference to correction officials where there will be a significant effect on inmates and staff; and
    (4) whether the regulation represents an exaggerated response to prison concerns; the existence of a ready alternative that fully accommodates the prisoner’s rights is evidence that the regulation is unreasonable. Id.


    Following a trial to the Court, plaintiff and defendants filed Proposed Findings of Fact and Conclusions of Law (Dkts. ## 102 and 103, respectively). The Court has reviewed these, as well as the trial transcript and submitted documents.

    A. Findings of Fact

    1. Effective January 16, 2003, the BOP amended 28 C.F.R. § 540.71 to include the following language:

    At medium security, high security, and administrative institutions, an inmate may receive soft-cover publications (for example, paperback books, newspaper clippings, magazines, and other similar items) only from the publisher, from a book club, or from a bookstore. Although two other justifications were set forth during litigation–interdiction of coded gang communications and reduction of the impact of mail processing upon prison staffing and resources–such justifications were not set forth in defendants’ Proposed Findings of Fact and Conclusions of Law (Dkt. # 103). Regardless, these two additional justifications do not affect the legal conclusions in part B of this Order.

    28 C.F.R. § 540.71(a)(2).

    2. The regulation’s stated purpose for adopting the regulation was “to reduce the amount of contraband introduced into Federal prisons through materials sent by mail.” Joint Ex. 1 at 741.1

    3. Pursuant to this regulation, defendants rejected and refused to deliver to Mr. Jordan the following incoming mail: 120 pages of an internet-published series of essays entitled “Justice Denied;” photocopies of two magazine articles of unknown length; and clippings.

    4. Mr. Jordan exhausted his administrative remedies with respect to the denial of the materials described in paragraph III.A.3., above, and received no explanation for the rejection other than application of 28 U.S.C. § 540.71 and its implementing Program Statement.

    5. The BOP’s Rules Administrator, on or about July 31, 2002, defined “softcover materials” for purposes of then-proposed 28 C.F.R. § 540.71(a)(2) as “magazines, softcover books, clippings, items in paper folders, pamphlets, catalogs, brochures, and other items of a similar nature.” According to the BOP’s Rules Administrator, “[w]e prefer to leave a specific definition out of the rule so that we may expand the definition as necessary to encompass new forms of incoming publications that we may not have originally contemplated.” See Joint Ex. 1 at 669.

    6. According to the testimony of Defendant Mary Sosa, pursuant to the regulation as applied at the Florence ADX facility, paperback books, magazines, newspapers, articles torn out of or photocopied from a magazine, a clipping or photocopy of a clipping from a newspaper, or a printout off of the internet, mailed to an inmate from a source other than a publisher, book club, or bookstore, would be rejected for delivery to the inmate.

    7. Also according to the testimony of Ms. Sosa, there are no page limits on letters that an inmate may receive, nor are there any limits on the number of pieces of individual mail that an inmate may receive. Limitations on the size of a particular piece of mail are based on thickness, such as one inch.

    8. According to the testimony of John Lee, it is no more likely that contraband would be included in a one-page internet printout or news clipping than in a one-page letter, nor would it take longer to search for contraband in a one-page printout than in a one-page letter.

    9. On January 23, 2006, the Warden at Florence ADX (then R. Wiley) issued a memorandum advising that “guidance was received from Regional Director Nalley stating that due to unsettled judicial issues concerning the receipt of materials from other than commercial sources, the institution was encouraged to consider implementing changes in the processing of incoming correspondence.” Under this guidance, the following policy change was implemented and has been in effect since that time:

    (1) Inmates will be permitted to receive incoming correspondence containing newspaper or magazine clippings from non-commercial sources if, after analysis, it is determined the newspaper or magazine clipping poses no threat to institution security. Inmates will be permitted to receive such clippings in quantities which will not adversely affect the ability of mail room staff to effectively monitor incoming correspondence; and

    (2) Until additional guidance is provided by Central Office, materials printed directly from the internet will be treated as general correspondence, subject to rejection for content unless and until it is determined that the volume of such materials adversely affects staff ability to effectively monitor incoming correspondence for contraband and other threats to institutional security and good order.

    Joint Ex. 7.

    10. No policy change or directive similar to the one issued at the Florence ADX facility on January 23, 2006 has been issued by the BOP’s North Central Regional Office, nor has the BOP suggested or offered any evidence to suggest that the policy reflected in the January 23, 2006 Florence ADX directive is, or is intended to be, in any way a permanent policy change by or within the BOP.

    B. Conclusions of Law

    1. Mr. Jordan’s case has not been rendered moot by the January 23, 2006 adoption of the policy set forth in Joint Ex. 7. The policy states that it reflects guidance received from the Regional Director “due to unsettled judicial issues,” which defendants’ counsel indicates refers to this case. A comparable policy statement has not been issued by the Regional Office itself, nor by the BOP’s Central Office, nor is there any evidence that a similar policy is in effect at any other facility in the federal prison system. Further, the policy set forth in Joint Ex. 7 is at least in part directly inconsistent with the regulation, 28 C.F.R. § 540.71(a)(2) itself. Defendants themselves have not argued for a finding of mootness. Under such circumstances, the Court cannot conclude that “it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur.” Friends of the Earth v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 190 (2000).

    2. The First Amendment “embraces the right to distribute literature . . . and necessarily protects the right to receive it.” Martin v. City of Struthers, 319 U.S. 141, 143 (1943). Materials on the internet, as well as those in print, are included in the First Amendment’s protections. Cf. Reno v. Am. Civil Liberties Union, 521 U.S. 844, 870 (1997) (“no basis for qualifying the level of First Amendment scrutiny that should be applied to [the Internet]”).

    3. However, prison regulations that restrict the receipt of mail by inmates do not violate the First Amendment if they are reasonably related to legitimate penological interests. Thornburgh v. Abbott, 490 U.S. 401, 413-14 (1989).

    4. As noted above, several factors are relevant in determining the reasonableness of such a regulation. There must be a valid rational connection between the regulation and the reason for it, and the governmental objective must be legitimate and neutral. A second factor is whether inmates have alternative means of exercising their First Amendment rights. A third consideration is the impact that accommodating the constitutional right will have on other inmates, guards and the allocation of prison resources. Finally, the absence of ready alternatives is evidence of a prison regulation’s reasonableness. Conversely, the existence of other easy alternatives may be evidence that the regulation is unreasonable. Turner, 482 U.S. at 89-90. All four of these factors must be considered. Jacklovich v. Simmons, 392 F.3d 420, 427 (10th Cir. 2004).

    5. Application of these four factors demonstrates that 28 C.F.R. § 540.71(a)(2) violates the First Amendment and is facially invalid as applied to unbound pages, including internet printouts and clippings.

    6. Specifically, Mr. Jordan has met his burden of refuting the defendants’ contention that a valid, rational connection exists to justify 28 C.F.R. § 540.71(a)(2)’s source restrictions as to unbound items such as newspaper or magazine clippings, photocopies of newspaper or magazine articles, and printouts from the internet to the extent that these items do not exceed limitations on volume otherwise applicable to general correspondence to inmates. The evidence presented establishes that such items are no more likely to serve as vehicles for the introduction of contraband into the prison than handwritten letters of similar length.

    7. With respect to the second Turner factor, the Court finds that reasonable alternative means are not available to inmates to receive items described in paragraph 6, above. The testimony of Ms. Sosa indicates that the internet is not available to Mr. Jordan and other inmates at the ADX facility. Further, as observed by the Second Circuit, application of a publishers-only rule to news clippings “is . . . tantamount to a complete prohibition” as “[n]ewspaper publishers generally do not run clipping services.” Allen v. Coughlin, 64 F.3d 77, 80 (2d Cir. 1995). Subscribing to publications is not an adequate substitute, as “subscribing requires inmates to anticipate which papers might have articles that they like to read and to subscribe to all such papers.” Id. Moreover, copies of articles from publications provided by a professional clipping service has not been shown to be permissible under the regulation. Finally, essentially requiring a sender to rewrite articles and printouts into personal letters to a prisoner serves no penological or security interest and is not an adequate substitute. See supra paragraph III.A.8. (no substantive difference between an internet printout or a personal letter of the same length).

    8. Under the third Turner criterion, there is no basis upon which to conclude that accommodating receipt of unbound items such as newspaper or magazine clippings, photocopies of newspaper or magazine articles, and printouts from the internet will have any material impact upon guards, other inmates, or the allocation of prison resources generally. In fact, testimony by Ms. Sosa and John Loftness, the Assistant Correctional Services Administrator for the BOP’s North Central Region, indicates that 28 C.F.R. § 540.71(a)(2) has had no material effect on the operation or staffing of the mailroom at the Florence ADX facility. Further, if problems arose due to too many pages for mailroom staff to monitor, a constitutionally permissible policy would be to set a reasonable page limit rather than limit the form of communication.

    9. Finally, the Court finds that under the fourth Turner factor, a ready, easy alternative exists to the regulation–namely, the January 23, 2006 interim policy at the Florence ADX facility itself. The policy highlights 28 C.F.R. § 540.71(a)(2)’s overbreadth by exempting from the regulation such items as newspaper or magazine clippings, photocopies of newspaper or magazine articles, and internet printouts.

    10. The conclusions above are supported by case law in this circuit and elsewhere. For example, the Ninth Circuit upheld a district court’s sua sponte grant of summary judgment in favor of a state inmate in a § 1983 action challenging enforcement of a policy that prohibited inmates from receiving mail containing material downloaded from the internet. Clement v. Cal. Dep’t of Corr., 364 F.3d 1148, 1150 (9th Cir. 2004). As in the instant case, inmates in Clement did not have access to the internet. Id. at 1151. The district court had evidence before it that several nonprofit groups such as Stop Prisoner Rape publish information only on the internet, and many legal materials are accessible only on the internet. Id. The Ninth Circuit upheld the district court’s finding that the policy was not rationally related to the legitimate interests of reducing mail volume and lessening security concerns over coded messages. Id. at 1152. The court upheld the statewide injunction on enforcement of the internet mail policy. Id.
    The Seventh Circuit held that application of a publishers-only rule—which stated that inmates may only receive publications directly from the publisher—to publication clippings or photocopies of clippings violated an inmate’s First Amendment rights. Lindell v. Frank, 377 F.3d 655, 659-60 (7th Cir. 2004). Lindell upheld the district court’s granting of injunctive relief, finding that no alternative means of exercising his rights existed for the inmate, accommodation would not unduly burden staff, and “defendants are already screening personal mail, which could just as easily contain hidden messages.” Id. See also Allen, 64 F.3d at 80 (evidence did not establish that “news clippings are as a matter of law so much more threatening to prison security than ordinary correspondence that clippings should be essentially prohibited while correspondence goes largely unread”); Jacklovich, 392 F.3d at 431 (“[T]he ability to listen to the radio or watch television is not an adequate substitute for reading newspapers and magazines. The issue here is whether the regulations and policies here still ‘permit a broad range of publications to be sent, received, and read.”) (quoting Thornburgh, 490 U.S. at 418) (internal citation and quotation marks omitted). Here, a “broad range of publications” are essentially foreclosed.

    11. The Court notes that plaintiff and defendants disagree over the proper scope of review in this case. Defendants contend that this Court is limited to a review of the administrative record, and must process this case as an appeal pursuant to Olenhouse v. Commodity Credit Corp., 42 F.3d 1560, 1579-80 (10th Cir. 1994). Such a review, according to defendants, requires this Court to determine whether the decision was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. 5 U.S.C. § 706(2)(A). On the other hand, Mr. Jordan argues that this Court is not confined to a review of the administrative record, as the waiver of sovereign immunity under the Administrative Procedure Act (“APA”) is not limited to only suits under the APA and this Court has jurisdiction pursuant to 28 U.S.C. § 1331. Simmat v. U.S. Bureau of Prisons, 413 F.3d 1225, 1233, 1236 (10th Cir. 2005). Without deciding, the Court finds that even under the arguably narrower level of review claimed by defendants to apply here, the regulation still does not meet the Turner factors and is thus arbitrary and capricious based on the administrative record. Specifically, the administrative record does not demonstrate that a valid rational connection exists between the regulation and preventing contraband where the regulation is applied to unbound pages such as clippings, photocopies and printouts and not to other personal mail received by inmates. Further, the administrative record does not support a finding of reasonable alternative means under the challenged regulation for inmates to receive such materials. The Court finds that the January 23, 2006 change in policy represents an acceptable and constitutional policy, and apparently meets the BOP’s needs as well.

    12. For the reasons set forth above, the Court concludes that 28 C.F.R. § 540.71(a)(2) is overbroad and fails to satisfy any of the four criteria set forth in Turner, supra, as applied to unbound pages such as newspaper or magazine clippings, photocopies of newspaper or magazine articles and internet printouts, to the extent that these items do not exceed other reasonable length or volume limitations or other restrictions applicable to general inmate correspondence and mail. Such materials should be treated the same as personal letters and other permissible mail received by inmates.

    13. The Court notes the guidance of the Supreme Court in Ayotte v. Planned Parenthood of N. New England, 126 S. Ct. 961, 967-68 (2006), which holds that a district court may, and should, tailor its remedies to “unconstitutional applications” or a defective statute or regulation even in the context of a facial challenge. With this guidance in mind, the Court concludes that 28 C.F.R. § 540.71(a)(2) is unconstitutional to the extent it is applied specifically to unbound printed pages such as newspaper or magazine clippings, photocopies of newspaper or magazine articles, and internet printouts to the extent that these items do not exceed reasonable length or volume limitations or other reasonable restrictions otherwise applicable to inmate correspondence and mail.

    14. Pursuant to and as required by 18 U.S.C. § 3626(a)(1), the Court specifically finds and concludes that the prospective relief granted herein is narrowly drawn, extends no further than necessary to correct the violations of the federal constitutional right asserted by Mr. Jordan, and is the least intrusive means necessary to correct the violation of the federal constitutional right. The Court has, additionally, given substantial weight to any adverse impact on public safety and the operation of the federal criminal justice system caused by the relief.


    Based upon the Findings of Fact and Conclusions of Law set forth above, the Court enters judgment:

    1. Declaring 28 C.F.R. § 540.71(a)(2) to be unconstitutional as to Mr. Jordan as applied specifically to unbound printed pages such as newspaper or magazine clippings, photocopies of newspaper or magazine articles, and internet printouts to the extent that these items do not exceed reasonable length or volume limitations or other reasonable restrictions otherwise applicable to inmate correspondence and mail; and

    2. Permanently enjoining defendants from applying and enforcing 28 C.F.R. § 540.71(a)(2) in such a manner as to prevent Mr. Jordan from receiving such items from sources other than publishers, book clubs or bookstores.

    It is SO ORDERED.
    DATED: October 26, 2006.
    s/ Phillip S. Figa
    Phillip S. Figa
    United States District Judge

  6. Anonymous on

    Check out this case about the BOP and mail restrictions from Colorado:


    C iv il A ctio n N o . 0 3 -c v -0 2 3 2 0 -P S F -M J W

    M A R K JO R D A N ,
    ROBERT A.HOOD,W arden,ADX Florence, MARY H.SOSA,ActingISM,ASX Florence,intheiroficialcapacities, andFEDERALBUREAU OFPRISONS,

    Court ruled that the BOP could not restrict photocopied articles from being delivered to the prisoner.

  7. Roy on

    Forty three years later – from the YMCA to now and stamps still play such a major role in our lives. On The Path. Sorry to be cut off. Received your four letters last week. I’ll keep sending.