America’s jails and prisons have long since banned and censored books that they determined posed a material danger to the safety of inmates and employees. It makes sense to prohibit how-to manuals on crafting homemade weapons or escaping confined spaces, but at least two prisons in New Jersey have decided to ban Michelle Alexander’s groundbreaking work on the rise of mass incarceration in America – The New Jim Crow.
According to a memo obtained by The Intercept from the ACLU of New Jersey (embedded below), both the New Jersey State Prison and the Southern State Correctional Facility of New Jersey have banned The New Jim Crow as a matter of prison policy. The ACLU of New Jersey initially received multiple complaints from incarcerated individuals and their family members concerning the ban of the book, but actually confirmed that the text had been placed on a banned book list through an Open Public Records Act request.
“Michelle Alexander’s book chronicles how people of color are not just locked in, but locked out of civic life, and New Jersey has exiled them even further by banning this text specifically for them,” said ACLU-NJ Executive Director Amol Sinha. “The ratios and percentages of mass incarceration play out in terms of human lives. Keeping a book that examines a national tragedy out of the hands of the people mired within it adds insult to injury.”
If you know even a little bit about the prison system in New Jersey, this ban is not even mildly surprising. In spite of reducing its overall prison population, New Jersey continues to lead the nation in the racial disparity between black and white inmates. While the disparity nationwide is gross, with African Americans having a national average of a 5 to 1 incarceration rate of that of whites, in New Jersey the rate more than doubled the national average and ballooned up to an outrageous 12 to 1 ratio. What that effectively means is that African Americans make up less than 15% of New Jersey’s overall population but represent a staggering 60% of its states prisoners.
These disparities are not accidental. They are not an afterthought. They are not simply a result of poverty. That’s exactly what Michelle Alexander sets out to explain in The New Jim Crow. African Americans dominate America’s jails and prisons because a deliberate set of complex policies and practices, often disguised as the war on drugs or even the war on poverty, were actually a war against black people. Studies show that more white people, by both the overall rate and total numbers, sell drugs than African Americans, but African Americans are exponentially more likely to be criminally arrested and sentenced for it.
But the State of New Jersey clearly feels that such knowledge is dangerous. And for their part, the ACLU of New Jersey has concluded that banning The New Jim Crow is not simply problematic, it’s also unconstitutional.
In their memo to Gary Lanigan, who is the Commissioner of New Jersey Department of Corrections, ACLU attorneys Tess Borden and Alexander Shalom break it all down very clearly.
The ban on The New Jim Crow violates the right to free speech enshrined in the First Amendment to the U.S. Constitution, and the correlative protection of Article 1, paragraph 6 of the New Jersey Constitution.
In addressing prisoners’ First Amendment rights, the U.S. Supreme Court has repeatedly clarified that “‘[p]rison walls do not form a barrier separating prison inmates from the protections of the Constitution,’ nor do they bar free citizens from exercising their own constitutional rights by reaching out to those on the ‘inside’.” Because The New Jim Crow addresses corrections policy and other social and political issues of public concern, it “occupies the highest rung of the hierarchy of First Amendment values and is entitled to special protection.”
The lawyers continued,
The banning of a particular book such as The New Jim Crow – as compared, for example, to a ban on hardcovers – represents content-based censorship on publications. Such censorship is lawful only upon a showing that the prohibition is “reasonably related to legitimate penological interests.” Moreover, “a regulation cannot be sustained where the logical connection between the regulation and the asserted goal is so remote as to render the policy arbitrary or irrational,” or is an “exaggerated response” to prison concerns in light of available alternatives. The DOC cannot show that the policy to ban The New Jim Crow is reasonably related to a legitimate penological interest.
Soo…… some great news…..late last night – we just learned that New Jersey lifted this ban and announced they will revisit their policies on how they ban books.
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