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| Suchy Kahlon |
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| Dan Novack |
Keri Blakinger, one of these influencers, notes in the video, "I want people to understand what prisons and prison conditions are actually like, and why that should matter. … You need to care about prison conditions if you want prisons to do what you say you want them to do" — i.e., rehabilitate people.[1]
But it's not just the formerly incarcerated who can draw attention to prison conditions using social media and other technology. Rather, those who are currently incarcerated are in the best position to highlight abusive prison conditions — if only they had the means, as well as the necessary legal protections, to use modern communication technology.
One example shows just how important access to technology can be. In September 2022, the family of Kastellio Vaughan — who is serving a 20-year sentence in an Alabama prison — received photos of an emaciated Vaughan.
Unbeknownst to Vaughan's family, prison doctors had removed part of his intestines as part of an emergency procedure, and Vaughan had lost 75 pounds as a result of poor care after the surgery.[2]
The public outcry caused by those photos — which were taken and sent to Vaughan's family by another incarcerated person who had access to a cell phone — led to immediate action.[3]
As the family's attorney explained, "if it wasn't for these pictures, the media spotlight and the resulting uproar, we might never have known about the neglect and Mr. Vaughan would have died before the public knew anything was happening."[4]
For the most part, people in prison lack the means to detail pervasive negligence on the part of prison guards and government actors.
Despite the Federal Communications Commission's attempts to curb such abuses, telecommunication companies that operate prison phones charge exorbitant rates,[5] making it a financial burden for people in prison to call their family members.
Additionally, every state bars people in prison from possessing cellphones,[6] and some states — such as Texas, New Mexico and South Carolina — ban them from operating social media accounts.[7]
Combined with the COVID-19 pandemic's effect of halting visitations to prisons,[8] people who were incarcerated in 2020 and 2021 were effectively isolated from the outside world.
Consequently, it is exceedingly difficult for people who are incarcerated to communicate with the type of audience needed to effect change in a manner like the life-saving measures afforded to Vaughan.
In an effort to save lives, draw attention to abusive prison conditions, facilitate reentry into society after prison, and give a voice to those whom the criminal legal system most profoundly affects, people who are incarcerated should be allowed to access technology such as social media, and to have increased opportunities to videoconference family members.
Granting increased digital access to people in prison would play a critical role in improving the U.S. criminal justice system by facilitating reentry for those returning home after prison.
People in prison who remain connected with the outside world and who are visited by family members are less likely to reoffend when released.[9]
On a similar note, formerly incarcerated people who were imprisoned in the last two decades consistently remark that they struggled to secure jobs and readjust to society because they were barred from keeping up with technological change while in prison.[10]
A pilot program in Arizona allowed incarcerated people to use tablets that gave them "access to anger management programs, education services, [and] employment training," which, as a corrections official noted, are "all programs that have been proven to reduce the recidivism rate."[11]
Ultimately, the official said, these resources "equip them with the skills needed to face life outside of prison."
Similarly, a 2022 analysis of existing research on the subject published in Cogent Social Sciences confirmed that access to digital technology promotes digital literacy, which is key for social reintegration after prison.
The study noted that "[s]ome of the most essential skills for a successful transition to post-release life, such as those needed for finding a job or housing, are increasingly reliant on digital literacy skills." These skills include "filling out online applications, creating resumes, sending and receiving emails, and conducting effective searches online."[12]
This type of digital access would also improve the criminal justice system by allowing those who are currently incarcerated to draw public attention to rights violations.
The use of social media in support of incarcerated people's rights is not unprecedented: Despite rules against its use, people in prison have employed social media to organize a strike against working conditions,[13] and the family of an incarcerated person who was brutally beaten in prison alerted guards to his serious condition after seeing an image of him on social media.[14]
In addition, it is unjust that people in prison — who are disproportionately people of color[15] — are excluded from engaging in public discourse concerning criminal justice reform when they are the most affected by mass incarceration.[16]
After all, over the past three decades, the U.S. has systematically increased the incarcerated population with so-called tough-on-crime laws — such as mandatory minimums and three-strikes laws — ratcheting up punishments for the convicted.
Consequently, nearly 2 million people in the U.S. find themselves either in jail or in prison,[17] with substantial numbers of these individuals above the age of 55.[18]
Exacerbated by a lack of healthy food options and extracurricular physical activities, the forced proximity of people who are incarcerated makes them especially vulnerable to violence and health issues.[19]
Access to technology would give people who are incarcerated the chance to express their lived experiences with the criminal legal system and to suggest what needs to change for the U.S. to end its crisis of mass incarceration.
Those presently incarcerated have shown a willingness and desire to speak on these subjects: In late September 2022, for instance, people incarcerated in Alabama prisons began a coordinated work stoppage to protest the fact that Alabama remains one of the only states in the country to not compensate people in prison for their labor.[20]
Despite widespread evidence that Alabama's prisons continue to be hotbeds of human rights abuses,[21] Alabama Gov. Kay Ivey insisted that the protestors' demands were unreasonable and refused to compromise.[22]
Pictures and videos from inside the prisons soon proliferated, showing atrocious living conditions and how prison staff were attempting to starve those associated with the strike.[23]
Although the strike eventually paused in late October, its leaders expressed gratitude for the widespread media attention shown to their demands, which included repealing certain mandatory minimums and establishing an oversight board for Alabama's parole system.[24]
Technology may also play an important role in preventing illness-related deaths among people who are incarcerated. At the peak of the COVID-19 pandemic, those incarcerated in the U.S. were infected with the virus at a rate more than five times higher than those who lived outside the prison gates.
At the same time, the reported death rate for people in prison was 39 per 100,000 people, which exceeded the national death rate of 29 per 100,000 people.[25]
Trapped in facilities at or near capacity, incarcerated individuals were initially prohibited from wearing masks,[26] given poor personal protective equipment, infrequently tested, and restricted from accessing proper medical care.[27]
When people in prison were able to access medical care, understaffed facilities[28] and a hesitancy on the part of political actors to provide them with vaccines[29] only stifled their recovery.
Had digital technologies been available to incarcerated people during the pandemic, they may have been used to draw public attention to the above failures and spur life-saving action, as they were for Vaughan.[30]
In the case of future virus spread, the ability to videoconference family members and to post on social media could provide people in prison with the means to quickly disseminate information needed to ensure proper medical care and a change in prison conditions.
While in theory the First Amendment protects people in prison, in its 1987 Turner v. Safley decision the U.S. Supreme Court granted deference to prison officials to determine whether incarcerated people's speech may be limited on safety and security grounds.[31]
Because litigation will be difficult under this interpretive framework,[32] it may be more effective for policymakers and agency officials — i.e., those within the FCC and the Federal Bureau of Prisons — to consider ways to protect the free expression of people who are incarcerated.
It is imperative that free expression be guaranteed within prisons, for as Justice Thurgood Marshall wrote in a 1974 concurrence in Procunier v. Martinez,
when the 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 … nor is his quest for self-realization concluded.[33]
It is time that prison officials and policymakers work to ensure that people in prison have access to technology so that they may exercise their free speech rights.
The ability to access technology would encourage incarcerated people's reentry into society, give them a voice in discourse surrounding criminal justice reform, point attention to abuse, and save lives in the case of a future pandemic.
Suchy Kahlon is a student at New York University School of Law.
Dan Novack is a First Amendment lawyer and chair of the New York State Bar Association Committee in Media Law.
"Perspectives" is a regular feature written by guest authors on access to justice issues. To pitch article ideas, email expertanalysis@law360.com.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of their employer, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] https://www.youtube.com/watch?v=YCBDc-ibZ-g&ab_channel=VICENews.
[2]https://abc3340.com/news/local/lawyer-ben-crump-leads-team-representing-inmate-after-alleged-prison-neglect-in-alabama-malnourished-health-prisoner-alabama-department-of-corrections-kastellio-vaughan-black-man-elmore-correctional-facility-harry-daniels-merritt-law-firm.
[3]https://www.al.com/news/2022/09/alabama-prison-inmate-kastellio-vaughan-refused-medical-care-after-surgery-adoc-says.html.
[4] https://abcnews.go.com/US/family-alabama-inmate-fears-life-alleges-neglect-prison/story?id=90396823.
[5] https://www.eff.org/deeplinks/2016/01/fcc-should-ensure-digital-rights-prisoners-and-their-families.
[6]https://www.pewtrusts.org/en/research-and-analysis/blogs/stateline/2017/01/13/should-social-media-be-banned-in-prison.
[7] https://www.eff.org/files/eff_pandemic_guide.pdf.
[8] https://www.vera.org/news/two-years-of-covid-19-have-fueled-a-crisis-of-isolation-in-prisons.
[9]https://www.prisonlegalnews.org/news/2013/apr/15/minnesota-study-shows-prisoners-receiving-visits-have-lower-recidivism-rates/.
[10] https://www.wired.com/story/inmates-need-social-media-take-it-from-a-former-prisoner/.
[11] http://www.washingtonexaminer.com/how-tablets-are-helping-us-clean-up-our-prison/article/2633199.
[12] https://www.tandfonline.com/doi/full/10.1080/23311886.2022.2116809.
[13]https://www.pewtrusts.org/en/research-and-analysis/blogs/stateline/2017/01/13/should-social-media-be-banned-in-prison.
[14] https://www.nbcnews.com/news/us-news/inmate-beating-was-facebook-guards-knew-n334221.
[15] https://www.aclu.org/report/failing-grades-states-responses-covid-19-jails-prisons.
[16]https://www.prisonlegalnews.org/media/publications/Locked_Up-Shut_Up-Why_Speech_in_Prison_Matters_St_Johns_Law_Review_2018.pdf.
[17] https://www.prisonlegalnews.org/media/publications/Locked_Up-Shut_Up-Why_Speech_in_Prison_Matters_St_Johns_Law_Review_2018.pdf.
[18] https://www.themarshallproject.org/2020/03/19/this-chart-shows-why-the-prison-population-is-so-vulnerable-to-covid-19.
[19] https://www.thelancet.com/journals/lancet/article/PIIS0140-6736(20)30984-3/fulltext.
[20]https://www.newyorker.com/news/q-and-a/the-stunning-neglect-and-racist-politics-behind-alabamas-prison-strike.
[21]https://www.themarshallproject.org/2022/10/01/what-an-alabama-prisoners-strike-tells-us-about-prison-labor.
[22] https://www.nytimes.com/2022/09/28/us/alabama-prisons-strike-protest.html.
[23] https://www.themarshallproject.org/2022/10/06/alabama-said-prison-strike-was-under-control-footage-shows-system-in-deadly-disarray; https://www.motherjones.com/crime-justice/2022/12/heroes-2022-alabama-prison-strikers/.
[24] https://www.vera.org/news/what-you-need-to-know-about-the-alabama-prison-strike.
[25] https://jamanetwork.com/journals/jama/fullarticle/2768249, https://eji.org/news/covid-19s-impact-on-people-in-prison/#:~:text=Incarcerated%20people%20are%20infected%20by,Medical%20Association%20in%20July%202020.
[26]https://www.thecity.nyc/coronavirus/2020/4/3/21211891/state-prisoners-punished-for-wearing-masks-as-city-jails-ok-them.
[27] https://www.thenation.com/article/society/covid-prison-new-york/.
[28] https://nyassembly.gov/write/upload/publichearing/000864/001534.pdf.
[29] https://www.thenation.com/article/society/covid-prison-new-york/.
[30] https://www.aclu.org/issues/prisoners-rights/civil-liberties-prison/free-speech-prison.
[31] https://constitution.congress.gov/browse/essay/amdt1-7-8-4/ALDE_00000758/.
[32] https://www.themarshallproject.org/2016/10/25/does-the-first-amendment-end-at-the-prison-gate.
[33] https://www.ala.org/advocacy/intfreedom/librarybill/interpretations/prisonersrightoread.