Tuesday, May 10, 2011

Pesky Activist Lawyers

Via Twitter, Atrios highlights an interesting case concerning a jail in South Carolina that has (or perhaps the better term now might be "had), according to an email from a jail staff member, a policy that
our inmates are only allowed to receive soft back bibles in the mail directly from the publisher. They are not allowed to have magazines, newspapers, or any other type of books.

That's right. No Koran. No Pagan Ritual Prayer Book, nada. Just Bibles. Nice First Amendment you've got there, America. The ACLU filed suit and, lo and behold, the federal government sought and was granted permission to intervene in support of the ACLU.

Now, all of a sudden, the jail says that it has a different policy:
Officials at the jail responded to the ACLU lawsuit by saying that they only banned material containing staples and nudity. But the new ACLU motion to block this policy points out that legal pads containing staples were being sold at the jail. It claims that the no staples or nudity policy was "adopted post hoc and in response to this Case", and that it "eliminate[s] access to reading material almost as completely as the 'Bible only' rule".

Anyone who's practiced law for very long has seen this happen. The jail has what it knows is an unconstitutional policy. It doesn't want to give it up, so it looks for some other rationale that will let it achieve the same goal. No explanation for why the staff member seemed to think the policy was rather explicitly different (soft-cover Bibles, direct from the publisher, no magazines newspapers [which don't have staples], or any other type of books"). No, the policy is based on safety and prison control! Staples are dangerous and it's bad to let prisoners see pictures of nudity or bathing suits because, um well, shut up, that's why. One hopes the judge in the case sees this for what it is.

I mention this case because it shows what can be accomplished by the mere filing of a legitimate lawsuit. Once the jail's policies are under scrutiny, jail administrators start scrambling, and scrambling people often look disingenuous. To a judge. We saw a similar case when Pagan activists sued the U.S. Department of Veterans' Affairs over its refusal to allow Pentacles on gravestones. Once you file suit, and get discovery, you find out that the real reason behind the denials and delays and changing requirements is that George Bush doesn't like Witches. And then someone realizes that you'd better settle this case before a judge settles it for you.

All of which is by way of saying that, no, the ACLU doesn't always take all of the cases I might wish that they'd take. But they do manage to do some very good things. And it's important to note that you don't have to be guilty to be in jail. Get arrested and you can get thrown in jail, at least until you make bail or the charges are dropped.

That's why I'm a card-carrying member of the ACLU. Are you?

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