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Inmates on the Internet are a problem Gary Phelps would rather not have to deal with. The state Department of Corrections official was quite happy when House Bill 2376 was passed two years ago. Inmates were already banned from direct Internet access, but the new statute prohibits third parties from posting material to Web sites on behalf of prisoners.
Now, the American Civil Liberties Union is challenging the constitutionality of that bill. And Phelps isn't so happy anymore.
In a lawsuit filed in U.S. District Court on July 18 against DOC Director Terry Stewart, the ACLU contends that the law is an attempt to muzzle anti-death-penalty advocacy groups and a violation of the inmates' constitutional rights.
The statute makes it a misdemeanor for an inmate to send a letter to a Web site, or to a friend who then forwards it to a Web site. It keeps them off sites like prisonpenpals.com, as well as appearing on or contacting sites run by groups like Stop Prisoner Rape and Citizens United Against the Death Penalty, two of the three clients the ACLU is representing in its suit.
The way Phelps sees it, the statute protects innocent people from the unscrupulous machinations of some of his prisoners, particularly those on death row.
"It's a death row subculture," Phelps says, referring to the scams he says many of the 126 inmates currently on the row participate in. "One inmate on death row, who is no longer with us, told investigators that it's a game. [The prisoners] have to get something out of everyone," Phelps says.
Before the law was adopted, Phelps says, inmates would fleece innocent victims out of tens of thousands of dollars by asking for donations to their defense fund on Web sites and seduce lonely women through personal ads. "It's an elaborate matrix," he says.
He tells of one inmate who met a mother and daughter in Virginia through an ad on the Internet and was corresponding with both of them. "One letter would say, I hope my mother doesn't know,' the other would say, I hope my daughter doesn't know.'"
Or the time five women from Belgium, England and Australia all showed up for visitation on the same day. "They all claimed they were engaged to the same inmate. We kind of had a problem."
Anti-death-penalty advocates say the law is unnecessary and a violation of basic civil rights.
"We already have laws against fraud and illegal activities," says Alice Bendheim, an attorney representing the ACLU. "We are concerned because this law applies to prisoners and third parties as well by impeding their right to free speech."
Inmates are being punished, she says, if their name appears on any Web site other than the Department of Corrections site, whether they requested their information be included or not. If the DOC discovers that an inmate's name appears on a Web site, the inmate is provided with a form to send to the site asking to have his information removed. Three weeks later, if the information remains, disciplinary action is taken. As of this May, Phelps says 53 inmates had been disciplined, which could range from revoking privileges to reducing time off for good behavior.
Ironically, the state maintains its own Web site for death row inmates. And on this site, prisoners can't ask to have their pictures and personal information removed.
On the state site, people curious about executions can find photos, case synopses and biographical data on residents of the Florence Death House. Visitors can browse through pictures of the gas chamber, look up data on executions broken down by method, or read extremely detailed accounts of what each prisoner ate for his last meal.
The ACLU argues that prisoners are also not punished for appearing on pro capital punishment sites like Pro-Deathpenalty.com, and the National Organization of Parents of Murdered Children. In a motion filed in federal court last week, the ACLU calls this an example of "viewpoint discrimination in violation of the First and Fourteenth Amendments."
The civil liberties group further argues that the content of anti-death-penalty Web sites is political speech, and deserving of the highest protection under the Constitution, and that advocacy groups are being unfairly singled out because of their content, such as a preface to death row inmate Richard Rossi's book Seventeen Years on Death Row, written by former French Justice Minister Robert Badinter; appeals from Amnesty International in the case of Jose Amaya Ruiz; or postings by Timothy Ring detailing his successful challenge to Arizona's death penalty statute.
The anti-death-penalty advocacy groups have refused to remove the prisoners' names from their sites. "We have an affidavit from a prisoner who wrote to one of these sites asking them to take him offline. They responded saying we can't take you offline, and the prisoner was still punished," says Bendheim. "This statute affects third parties, not just prisoners. The idea of keeping inmates off the Internet sounds good and fairly noncontroversial until you look at the ramifications."
Stop Prisoner Rape communication and development officer Sabrina Qutb says organizations like hers rely on the Internet to reach and counsel victims. "We don't have a large budget; we can't make hard copies and send them out," she says. "The Web has been a way to reach a large audience with a small budget."