Developing a policy for internet use in state prisons might appear to be a matter for prison administrators and state officials alone; however, internet access for imprisoned people entails a surprisingly wide body of constitutional law at the federal level as well, balancing the rights of prisoners and the public in complex ways. Much of this law pre-dates the internet itself. Here we examine three areas where federal constitutional law gives shape to internet access for people incarcerated in state prisons.
Before email there was mail—communications and other material delivered by the post office and private services. Do prisoners have a right to send and receive email from outside? What about other forms of internet communication, such as messaging, Facetime, and social media? The First Amendment guides federal jurisprudence on this question, and the key cases are Procunier v. Martinez (1974), which argued that prison officials had to have a “substantial government interest” to censor prisoner mail, and the later Turner v. Safley (1987) decision, which allowed mail censorship if the policy was “reasonably related to legitimate penological interests.” The Turner standard gave prison administrators much more leeway than Martinez and continues to guide prison internet policy today.[1]
A second area of constitutional law is the Sixth Amendment right to counsel. When statutory and case law was written on paper—and not available on continuously updated internet databases like it is now—the Supreme Court ruled in a 1977 case, Bounds v. Smith, that prisons had to provide incarcerated persons with access to legal materials, either by providing access to actual attorneys or through access to law libraries (later technically constrained somewhat in 1996 by Lewis v. Casey). Today, prisoners have a right to access to law libraries and some are available as closed digital databases, either online or through local servers.[2] Unfettered access to search the most up-to-date online scholarly databases is also possible; for example, JSTOR’s widespread adoption across over 1,000 facilities reaches half a million inmates.[3] (Arrman).
A third area of constitutional law concerns reasonable punishment. The Eighth Amendment protects people from excessive bail, fines, or punishments that are “cruel or unusual.” Our team has not found a robust jurisprudence on the internet as a space of freedom and liberty that can be deprived as a punishment solely along Eighth Amendment lines. But a fascinating 2017 paper by legal scholars Babaric, Fischer, and Hunter raises the possibility.[4] The authors argue that internet access is a form of liberty, essential to modern living. Several European courts, for example, have determined that internet access is a human right.[5] Deprivation of internet access, then, should be a deliberate punishment in and of itself, set by the judge at sentencing. In some cases, internet deprivation could be imposed instead of incarceration, or it could be imposed, or not, concurrent with incarceration. But given the unintended costs of internet deprivation to incarcerated people and society at large, ignoring it as a form of punishment is a mistake.
These are not the only kinds of legal issues that arise with regard to internet access in state prisons, of course. State laws concerning victims’ rights, organized crime, and pornography can also give shape to the politics and practice of internet access for inmates. But in a policy context of an increasingly assertive federal government and a rightward shift in the politics of criminal justice, the U.S. Constitution’s role in New Jersey’s prison internet policies may gain even more significance in the near future.
References:
[1] Holtz, Titia A. “Reaching out from behind Bars: The Constitutionality of Laws Barring Prisoners from the Internet.” Brooklyn Law Review 67, no. 3 (2002): 855–898.
[2] Arguelles, Paolo and Arguelles, Paolo and Ortiz-Luis, Isabelle, Bars Behind Bars: Digital Technology in the Prison System (May 2021). Available at SSRN: https://ssrn.com/abstract=3812046 or http://dx.doi.org/10.2139/ssrn.3812046; Brown, Kelsey. “How Twenty-First Century Technology Affects Inmates’ Access to Prison Law Libraries in the United States Prison System.” (2020).
[3] Kyaw, Arrman. “JSTOR’s Digital Archives Reach Over Half a Million Incarcerated Learners.” Diverse: Issues in Higher Education, January 2024.
[4] Mirko Bagaric, Nick Fischer & Dan Hunter, The Hardship That Is Internet Deprivation and What It Means for Sentencing: Development of the Internet Sanction and Connectivity for Prisoners, 51 AKRON L. REV. 261 (2017). Esposito, James L. “Virtual Freedom–Physical Confinement: An Analysis of Prisoner Use of the Internet.” New England Journal on Criminal and Civil Confinement 26, no. 1 (2000): 39–66.
[5] Gergely Ferenc Lendvai & Gergely Gosztonyi, “Access Denied” – Interpreting the Digital Divide by Examining the Right of Prisoners to Access the Internet in the Case Law of the European Court of Human Rights, 17 BALTIC J.L. & POL. 223 (June 2024).