A New Prison Policy Blocks Incarcerated Journalists and Artists From Publishing Their Work

New York prisons may have effectively banned journalism behind bars.

Chris Gelardi   ·   June 6, 2023
The new prison policy prohibits incarcerated people from getting paid for their creative work. |

Update: On June 7, one day after this article was published, the Department of Corrections and Community Supervision rescinded its directive blocking the publication of creative work. Read our follow-up story here.

John J. Lennon has built an unlikely career. As a journalist writing from within the prisons he covers, he has spent the last decade offering a rare inside perspective into politics, health, and recreation behind bars. His most recent feature, in The New York Times, illustrated how rising housing prices leave those released from prison with few options to avoid homelessness. He’s landed a book deal and a contributing editor position with Esquire.

“Writing has changed my life,” he told New York Focus in a phone call from Sullivan Correctional Facility. “I’ve been able to grapple on the page with a lot of things.” He also mentors others who’ve found solace writing while imprisoned.

But the agency that runs New York’s prisons is set to block Lennon and countless other incarcerated writers, artists, and poets from getting their work outside prison walls. Last month, the agency quietly handed down new rules severely curtailing what incarcerated writers and artists can publish — and forbidding them from getting paid for it.

The Department of Corrections and Community Supervision’s directive, which went into effect on May 11, establishes a stringent, months-long approval process for people in its custody to publish creative work, including books, art, music, poetry, film scripts, and other writing. It gives prison superintendents the power to block work from publication if it violates any of a number of broad rules — including bans on mentioning the artist or author’s crime and portraying DOCCS in a way that could “jeopardize safety or security.” And it stipulates that incarcerated people can’t be paid for their creative work without permission.

DOCCS didn’t seem to publicize the order: Neither Lennon nor watchdogs who spoke to New York Focus were aware of its existence, and it wasn’t posted to the department’s website until after New York Focus reached out for comment.

“This is going to make prison a black box.”

—John J. Lennon, Sullivan Correctional Facility

The directive is vaguely worded. The text makes no mention of journalism, for instance, but DOCCS confirmed to New York Focus that it applies to features, op-eds, and other works for journalistic outlets.

The rules apply to “all creative art projects,” but also make special reference to work meant for a nonprofit “community agency.” When New York Focus tried to clarify whether all of the restrictions apply to publication in for-profit outlets, like newspapers — for which there are court decisions prohibiting prison censorship and payment-blocking — DOCCS simply referred to an existing directive that bans “mail order or other business.” DOCCS did not respond to further clarifying questions.

“This is going to make prison a black box,” Lennon said.

Like Lennon, Freddy Medina nurtured his passion for writing while in prison. Before his release last September, he wrote an essay and began reporting an article for New York Focus.

Second only to getting his bachelor’s and master’s degrees, “being published while I was incarcerated was one of the single most important things to happen to me,” he said. “I’d been wanting to be a writer since I was a child.”

It’s unclear whether his work — on hunger in prisons and guns in schools — would’ve made it past the new directive. New York Focus definitely wouldn’t have been allowed to pay him for it before his release.

Under the new rules, incarcerated artists and authors must submit all work they wish to publish to prison superintendents for approval, and publishing organizations must clear projects with DOCCS’s central office 60 days before they plan to receive work. The superintendents can then inspect works for violations.

Per the directive, they can block pieces that “promote sexual activity,” depict symbols of “unauthorized group activity,” “advocate rebellion against government authority,” or appear to be “written in code.”

Officials can also forbid publication of work that portrays “law enforcement officers or DOCCS in a manner which could jeopardize safety or security.” When New York Focus asked DOCCS to clarify this point, the department simply repeated it.

The directive also forbids including depictions of incarcerated people’s “crime or crime victims” in published work — an injustice, according to Lennon.

“I’ve worked through what I did — murder a man — on the page,” he said in a message. “In the absence of any restorative justice programming offered by corrections, that would help foster a dialogue between us and our victims, writing was the only opportunity for me to reflect on it at all.”

DOCCS said that, unless a piece violates prison contraband rules, incarcerated people may hold onto creative work the superintendent finds to not be “appropriate for public display.” But that might not mean much in practice, since the directive specifies that creative works that violate its criteria for publication “will be considered contraband.”

“The broader a regulation sweeps, the more latitude it purports to give an agency like DOCCS.”

—Antony Gemmell, New York Civil Liberties Union

New York’s policy is new, but it falls in line with a trend of US prisons aggressively censoring people in their custody. Courts have generally given them leeway to do so: In the 1980s, the US Supreme Court ruled that First Amendment protections extend to incarcerated people, but that prisons and jails can restrict free speech rights over “legitimate penological concerns.” Corrections departments often take that exception to its limits — for instance, by labeling criticism as a security threat.

“Anytime a [corrections department] gets permission to ban something, they will apply it as capaciously as they possibly can,” said Moira Marquis, senior manager of the prison and justice writing department at PEN America’s Freewrite Project. She pointed to prisons’ heavy-handed approach to banning writing coming into prisons as an example. Earlier this year, The Marshall Project obtained lists of books banned by 18 state prison systems: They amounted to more than 50,000 titles.

Antony Gemmell, director of detention litigation at the New York Civil Liberties Union, noted that prison departments often justify such rigorous censorship by making their policies broad and vague.

“The broader a regulation sweeps, the more latitude it purports to give an agency like DOCCS,” Gemmell said. He pointed to the fact that New York Focus had to ask DOCCS whether journalism, not mentioned in the directive, falls under its parameters. “That speaks to its vagueness, and is another red flag, constitutionally speaking,” he said.

“This is just another way to keep voices on the inside invisible,” said Medina.

The new directive also prohibits incarcerated people from receiving any “prize, gift, or proceeds” from publishing their creative work. The only named exception is a participation certificate. If they do receive money, DOCCS will divert it to New York’s Office of Victim Services.

That part of the policy echoes an old New York statute — the nation’s first so-called “Son of Sam” law, passed in the 1970s — which allowed the state to confiscate and offer to victims the income that someone accused or convicted of a crime made from selling work describing the crime. In a near-unanimous 1991 decision, the US Supreme Court struck the law down for violating the First Amendment. (The legislature later passed a version allowing victims to sue for proceeds.)

In justifying the new payment ban, DOCCS pointed to the pre-existing directive barring people in its custody from conducting a “mail order” business. That parallels another legal battle: In 1998, a federal appellate court ruled that a Pennsylvania prison couldn’t use a similar no-business directive to prohibit publishers from paying writer Mumia Abu-Jamal.

“This is just another way to keep voices on the inside invisible.”

—Freddy Medina, writer

It’s yet to be seen whether anyone will challenge the new directive in court. But DOCCS has relented in other First Amendment cases: Last year, after an author sued the department for banning her book about the 1971 Attica prison uprising, officials reversed the decision before litigation got off the ground.

Lennon hopes that something similar happens with the new directive. In a message, he mentioned the imprisoned men he’s been mentoring. “When they get a small stipend for their work, it’s often the first time in their bid that they had money on their books that they earned, that wasn’t from a family member who, more often than not, was struggling enough on their own to make ends meet,” he said.

“Let’s be clear,” he wrote. “This directive will hinder the most creative minds in New York prisons from producing any work.”

Chris Gelardi is a reporter for New York Focus investigating the state’s criminal-legal system. His work has appeared in more than a dozen other outlets, most frequently The Nation, The Intercept, and The Appeal. He is a past recipient of awards from Columbia… more
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