Ban on surrogate social media for inmates a bad idea on many levels

Leave it to TDCJ to do exactly the wrong thing on inmate social media accounts. The Texas Tribune reported today that:

Texas prison inmates shouldn't be allowed to have active social media accounts, even if friends or family on the outside actually run them, the Texas Department of Criminal Justice has decided.

Earlier this month, the department updated its criminal handbook to prohibit prisoners from having personal pages on Facebook, Twitter or Instagram run in their name by others. When pages violating the policy are discovered, the department plans to report the violations to the appropriate social network.

"What really prompted the rule was that social media companies now require some sort of specific rule in place that's going to prohibit offenders from maintaining their social media accounts," said department spokesman Jason Clark. "I can tell you increasingly it has become more difficult to ask those companies to take it down. They would come back to us and say, 'You don't have a specific policy that says they can't have it.'"

But the new rule is eliciting free-speech concerns from civil liberties groups and raising questions about how friends or family can advocate for inmates.

Besides the fact that the new policy will almost certainly prove impossible to enforce, and that it was enacted without legislative authorization or even soliciting stakeholder input, this decision was wrongheaded on multiple levels.

Invites First Amendment kerfuffle
First, it invites litigation. It almost feels like they're trying to pick a legal fight. TDCJ just had to change their policy banning beards for Muslim prisoners because of a recent Supreme Court ruling, so we know SCOTUS thinks inmates don't comprehensively lose their First Amendment rights. And in this case, the rights involved aren't limited to the inmate.

Wayne Krause Yang, an attorney for the Texas Civil Rights Project, suggested "the prison system's reach exceeds its legal grasp" with this rule, reported the Trib. "Typically, prisons control the things inside the prisons. they don't traditionally get to pass prison policies that extend far beyond the bars, and it seems like that's what they're trying to do here," he said. "Those types of policies have a name – they're called laws. They should be considered by the representatives of the people, too, because this policy doesn't just affect the people behind the bars."

IANAL, much less a First Amendment expert. But it's not hard to imagine that maintaining a website in the name of another person, with their permission, is protected speech. In February a district judge ruled Texas' online impersonation statute - outlawing the use of another person's name without their permission - is unconstitutional. How much more protected might the courts consider these consensual arrangements?

Incarceration affects more people than just the person incarcerated and those other folks have free speech rights. TDCJ can't by rule take those away. And it raises serious constitutional concerns to threaten to punish an inmate if someone in the free world exercises their right to free speech by posting excerpts from inmate communications on social media.

Grits expects this to be litigated nearly instantly. I have no inside knowledge, but there are too many examples of inmates' social media sites being maintained by friends or loved ones for this not to be quickly and aggressively challenged, if I had to guess.

Misses reintegration opportunity: Should encourage inmates to connect to family, friends
Beyond civil libertarian concerns, though, TDCJ's ham-handed policy misses an opportunity for rehabilitation and reintegration of offenders into the community.

One often hears the estimate that Texas prisons incarcerate around 150,000 inmates, give or take, but that number is not static. Texas releases more than 70,000 prisoners per year, with local law enforcement sending them a roughly like amount to fill the beds they're emptying. That enormous number remained steady over the prior decade, even as crime dramatically declined, for reasons this blog has frequently discussed..

Most offenders aren't in prison that long and when they get out, having retained connections to friends and family facilitates rehabilitation. Average time served for people leaving TDCJ in 2014 was 2.8 years (0.8 years for those in state jails; 4.2 years for those in regular prison units). And they have to keep releasing that many because, despite the crime decline, county prosecutors keep convicting as many or more people of felony offenses than ever, boosting the ratio of convictions-per-arrest in ways that John Pfaff has shown are part of a national trend.

So the typical offender headed to TDCJ will get out four years hence. If they return having no connection to the folks most likely to help them succeed (TDCJ only gives them $100 and a bus ticket when they get out), how is that helping anybody?

These days, people stay connected to one another over distance through the internet, to which Texas inmates don't have access. To me, the solution here is simple and the opposite of what TDCJ has suggested: Allow inmates limited, regulated internet access and the ability to maintain social media accounts. Establish rules making them private except for approved contacts and monitor (by algorithm and, upon suspicion, by staff) and regulate the content of interactions. Give TDCJ back-end access, a kill switch if inmates don't follow the rules, and give inmates an appeals process if TDCJ abuses its authority.

Recently, following up on last year's coverage on Vice and our pal Maurice Chammah's good work for the Marshall Project, CBS' 60 Minutes had a feature on German prisons. The recurring mantra in that piece was that the overarching goal of Deutchland prisons - beyond retribution or incapacitation - was "being reintegrated into a normal life" as a rehabilitated individual. Here's an exchange between the 60 Minutes correspondent and a German prison official:

Joerg Jesse: The real goal is reintegration into society, train them to find a different way to handle their situation outside, life without further crimes, life without creating new victims, things like that.

Bill Whitaker: Where does punishment come in?

Joerg Jesse: The incarceration, the imprisonment itself is punishment. The loss of freedom, that's it.

Bill Whitaker: I think Americans think crime and punishment. You say punishment is not even part of the goal of the German prison.

Joerg Jesse: No.

Bill Whitaker: At all?

Joerg Jesse: Not at all.

Now, I'm not going to suggest for a moment Texas should model its prisons on Germany. We're about as far away from that as Grits is from a hiking route to Berlin. But would it kill us to pay homage to that "reintegration" goal where it can be done in a reasonable, secure fashion? And must prisons be the ONLY institution in society utterly unaffected by the advent of 21st century technology? Are Texans really so unimaginative that the only thing officials can think to do with the new social media phenomenon is close their eyes and wish it would go away?

We're missing an opportunity here to allow inmates to maintain greater connections to the outside world, connections they're going to need to succeed when they get out. Without them, there's a greater likelihood that, alienated and isolated, they fall back into a life of criminality after their incarceration ends.

19th century thinking bad for 21st century security

Let's be frank. Despite Sen. John Whitmire declaring a "zero tolerance" policy on contraband cell phones in Texas prisons, they're still smuggled in fairly routinely and inmates find ways to rent them if they want them. So right now inmates with sufficient resources can get online, create an account, and say or do whatever they want. Happens all the time.

If motivated inmates can access social media, anyway, then Lyndon Johnson's famous quote about J. Edgar Hoover comes to mind: "It's probably better to have him inside the tent pissing out than outside the tent pissing in." Having been unsuccessful at banning internet access, why not allow it, regulate it, and use it for public-spirited goals instead of relegating it to the black market?

Wouldn't it be a better approach if prison units all had a computer lab where inmates could a) learn skills with which they might support themselves in modern service economy and which b) allowed inmates to have email and social media accounts through which the agency could monitor and regulate their content and connections? If TDCJ allowed inmates email and basic social media access - say a Facebook account - and imposed similar content rules to what it does on outgoing mail, most offenders would just use that service and the market for contraband phones might just dry up. Federal prisons allow inmates limited email access, which is a start. but social media is how a lot of people stay connected, particularly among families.

Heck, one could see cell phones with limited access - the way parents can control contents for kids - that inmates could check out or keep in their cell. Keystroke logging could keep track of how it's used. And restricting access would become a probably-very-effective behavior management tool. (Long-time readers may recall Grits has been calling for some version of this change since at least 2011.)

If phones or computers are being used for criminality, harassing victims, etc., this way you know about them and can easily secure evidence. If they're plotting crimes or harassing victims on a contraband phone, what can you really do? Anyway, TDCJ can't know comprehensively who has a social media presence out in the world, especially if they use pseudonyms. So it's hard to stop that behavior on a contraband phone unless someone informs on them. If inmates are communicating using the agency's tech, by contrast, those sorts of things are a lot easier to monitor.

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Bottom line, TDCJ treats inmate connectivity as something to fear and banish, but in cyberspace as with visits, letters, and phone calls, contact with the outside world is something prisons must manage. Positive communications that support goals of reintegration and maintenance of healthy relationships should be encouraged while negative interactions must be identified and stopped. TDCJ may have justified its new social media policy based on security. But by promoting greater demand for contraband and eschewing avenues for monitoring and regulating social media access, not to mention trampling on the free speech rights of free-world folk in probably-unconstitutional ways, in the medium to long run my guess is that this decision caused more problems than it solved.

MORE: From Maurice Chammah at the Marshall Project.