N.Y. Comp. Codes R. & Regs. tit. 7 § 712.3

Current through Register Vol. 46, No. 43, October 23, 2024

Section 712.3 - Procedure

In view of the above considerations, the department specifies the following procedures for the evaluation and approval or disapproval of literature for inmates.

(a)Establishment of Facility Media Review Committee (FMRC).

(1) Each institution will establish a media review committee and designate a Facility Media Review Committee Chairperson, who will be responsible for the oversight of the day to day operations of the FMRC. It is suggested that this committee consist of representatives from program services (for example, representatives from the guidance unit, mental health staff, chaplains' office, education staff, recreation staff, and library staff) and representatives from security staff. All FMRC activities will be reported monthly to the Central Office Media Review Committee (COMRC).

(2) The superintendent will inform the deputy commissioner for program services or his or her designee of the membership of the Facility Media Review Committee. The superintendent will also inform the deputy commissioner for program services or his or her designee of any changes in said membership.

(b)Referral of publications to FMRC, notice to inmate.

(1) Publications properly received at the facility for an inmate in mail or packages shall be delivered to the inmate in the ordinary course of mail or package delivery unless referred to the FMRC upon a reasonable good faith belief that the publication violates one or more of the media review guidelines listed in section 712.2 of this Part.

(2) When there is a good faith belief that a publication already belonging to or in possession of an inmate violates one or more of the media review guidelines, said publication shall be confiscated and referred to the FMRC for review and decision.

(3) Publications referred to the FMRC shall be delivered promptly to the FMRC. Notice to the inmate is made by using Exhibit A (see subdivision [j] of this section) which must be placed in the institutional mail at the same time as the publication is referred, unless doing so would interfere with an ongoing investigation.

(c)Facility Media Review Committee operations.

(1) The FMRC shall meet at least once weekly unless there are no publications for review.

(2) A decision regarding a publication shall be rendered by the FMRC within 10 working days of the publication's receipt at the facility. In the event that an FMRC does not respond to the inmate within 10 working days, the lack of a response shall constitute a constructive denial by the FMRC, and the inmate can appeal such denial, in writing, to the COMRC.

(3) Should the FMRC approve a publication, said publication shall be forwarded promptly to the inmate.

(4) Should the FMRC disapprove a publication, such decision shall be set forth in Exhibit B (see subdivision [k] of this section) and include a brief statement of reasons explaining why the publication is deemed to violate one or more of the media review guidelines and identifying by page number, article title, and location on the page, the contents objected to. (The FMRC shall not state that a publication is unacceptable in its entirety.) An example concerning such brief statement of reasons is set forth below:

(i) The following is an acceptable statement of reasons: "This publication incites inmates to commit assaults on correctional officers in the article 'Prison Rebellion Now' on page 10, near the bottom."

(ii) The following is not an acceptable statement of reasons: "This publication incites disobedience towards law enforcement personnel on page 10."

(5) Notice to Inmate. When the FMRC disapproves a publication or any portion thereof, a copy of Exhibit B (see subdivision [k] of this section) shall be sent promptly to the inmate, unless doing so would interfere with an ongoing investigation.

(6) Notice to sender.

When the FMRC disapproves a publication, or any portion thereof, a copy of the Inmate Disposition Notice, Exhibit B, together with a copy of form #4572C, Sender Disapproval Notice, Exhibit C, notifying the sender of the right to appeal, shall be sent to the sender at the same time that the Inmate Disposition Notice is sent to the inmate, unless doing so would interfere with an ongoing investigation. No notice to the sender is required if the FMRC previously provided notice to the same sender of an identical FMRC decision regarding the same publication, notwithstanding that the intended inmate recipient is not the same. For purposes of this regulation, the term sender shall refer to the person or entity that sent the inmate the publication, if known, or if that person or entity is unknown, then the publisher, if known.

(d)Inmate options regarding appeal or other disposition when notified that a publication has been disapproved by Facility Media Review Committee.

When the FMRC disapproves a publication, the inmate shall be permitted to select one of the following options (see Exhibit B, subdivision [k] of this section):

(1) Appeal to COMRC.

The inmate shall not be entitled to appeal unless he chooses this option within 30 days of the FMRC decision.

(2) Receive the publication with the objectionable matter removed or blotted out.

This option shall be available only if the objectionable portions of the publication constitute eight or fewer individual pages or if they constitute a single chapter, article or section of any length. This option need not be made available if the publication is in a form other then a book, magazine, or newspaper, and if removing or blotting out portions would present physical difficulties. The choice between blotting out or removing objectionable material is made at the discretion of the facility.

(3) Have the publication sent, at the inmate's expense, to a person of the inmate's choice, not another inmate or a Department of Corrections and Community Supervision official, either immediately or after 30 days.

(4) Have the publication destroyed after 30 days.

If the inmate does not make a choice among these options within 30 days of the FMRC decision, the facility may dispose of the publication in any manner.

Note:

If the inmate chooses not to appeal, the publication will be held, as is, for at least 30 days from the date of the Inmate Disposition Notice to allow time for the sender to submit an appeal, if any. If the sender submits an appeal, the publication will be held, as is, pending the COMRC determination.

If neither the inmate nor the sender submits a timely appeal and the inmate has not made a choice among disposal options, disposal of the material(s) will be at the discretion of the superintendent or his or her designee.

(e)Appeals to Central Office Media Review Committee.

When an inmate elects to appeal the FMRC's disapproval of a publication, the inmate shall check the appropriate box on the disposition notice, Exhibit B (see subdivision [k] of this section). The inmate may also, at his or her option, include an appeal letter.

When the sender elects to appeal the FMRC's disapproval of a publication, the sender shall provide a written statement in support of the appeal, a copy of the inmate disposition notice (Exhibit B), and, if available, a copy of the issue of the publication found to be unacceptable.

An appeal by the inmate or sender must be submitted to the FMRC within 30 days of the date of the inmate disposition notice. After 30 days from the date of the inmate disposition notice, the FMRC shall forward any appeal received from the inmate and/or sender along with the Inmate Disposition Notice and the publication in question to the COMRC. Appeals shall be forwarded at facility expense by first class mail or equally prompt means.

(f)Establishment of Central Office Media Review Committee (COMRC).

The Central Office Media Review Committee (COMRC) will consist of representatives of program services, security services, counsel's office and administrative services. The committee will be chaired by the deputy commissioner for program services or his designee.

(g)Central Office Media Review Committee (COMRC) Operations.

(1) The COMRC shall meet at least bi-weekly unless there are no publications awaiting review.

(2) All publications appealed to the COMRC will be reviewed and a decision rendered thereon within three weeks of the date the appeal was received by the COMRC.

(3) THE COMRC in deciding whether to approve or disapprove a publication shall consider any statements submitted in a timely manner.

(4) If the inmate has appealed, he or she shall receive the inmate appeal determination (see subdivision (m) of this section, Exhibit D), which will set forth the COMRC appeal determination along with the reason for the determination. If both the sender and the inmate have appealed the FMRC determination, the sender will be notified by attaching a copy of Exhibit D to the sender appeal determination (see subdivision (n) of this section, Exhibit E). If only the sender has appealed, then the COMRC will notify the sender of its determination via Exhibit E, and set forth the reason for the determination on the form. The COMRC will notify the FMRC chairperson, in addition to the inmate and/or sender. The COMRC shall return its appeal determination (Exhibit D, E or both) and the publication in question to the FMRC chairperson. The inmate will receive a copy of the inmate appeal determination (Exhibit D) only.

Note:

In cases where the COMRC has approved a publication the FMRC shall return material directly to the inmate.

(5) When the COMRC disapproves a publication, the inmate shall have the following options:

(i) Receive the publication with the objectionable portions blotted or cut out. This option is available only if the objectionable portion is eight pages or less, or a single chapter, article, or section of any length.

(ii) Have the publication sent, at the inmate's expense, to a person of the inmate's choice, not another inmate or a Department of Corrections and Community Supervision official, either immediately or after 30 days.

(iii) Have the publication destroyed.

(iv) Have the publication retained at the facility for 30 days while the inmate makes arrangements for its disposition, including being picked up by a visitor during the period. If a choice is not made within 30 days, disposal of the material will be at the discretion of the superintendent or his or her designee.

(h)List of approved publications approved by the Central Office Media Review Committee.

On a monthly basis, the COMRC shall prepare a list of all the publications it has approved and forward a copy of that list to each Deputy Superintendent for Programs. Each Deputy Superintendent for Programs shall share that list with the respective FMRC chairperson.

(i)Action by the Facility Media Review Committee on held items approved by the Central Office Media Review Committee.

The chairman of each FMRC shall determine whether the names of any publications previously disapproved by the FMRC appears on the list, and whether said publication is being held pursuant to inmate choice. Should any such publication be in the possession of the FMRC, it shall immediately be forwarded to the inmate.

(j)Exhibit A.

INMATE REFERRAL NOTICE

FACILITY MEDIA REVIEW COMMITTEE

____ CORRECTIONAL FACILITY

Date: __

Inmate Name: ______

Identification No.: ______

Cell Location: ______

The following publication

(Title)

(Author, Date or Volume and Number)

has arrived at the facility addressed to you and has been held for review by the Facility Media Review Committee. You are invited to submit a written statement in support of the admission of the publication. Address your comments to: ___________, Chairperson of the Facility Media Review Committee, promptly, since the committee must reach a decision usually within ten working days of the date of this notice.

(k)Exhibit B.

INMATE DISPOSITION NOTICE

FACILITY MEDIA REVIEW COMMITTEE

______CORRECTIONAL FACILITY

Date: ______

INMATE NAME NUMBER CELL LOCATION

The publication

(Title)

(Author, Date or Volume & Number)

has been reviewed by the Facility Media Review Committee and the following portions:

(Pages, Articles, or Location of Offensive Portions)

have been found unacceptable for the following reasons:

______

(Guideline Number and Reason)

Do you wish to appeal this disposition?

() No. Choose only one the following disposal options:

() Receive the publication with the objectionable portions blotted or cut out. This option is available only if the objectionable portion is eight pages or less, or is a single chapter, article, or section of any length.

() Have the publication sent to a person of your choice, not another inmate or a Department of Corrections and Community Supervision official, at your expense.

Send to (include name and address): _____________________________________________________________

__________________________________________________________________________________________

() Have the publication destroyed. If the FMRC receives notice that the publication has been approved based upon an appeal by the sender, you will receive it.

Note: If you choose not to appeal, the publication will be held, as is, for at least 30 days from the date of this notice to allow time for the sender to submit an appeal if any. If the sender submits an appeal, the publication will be held, as is, pending the COMRC appeal determination. For the purposes of this notice, the term "sender" shall refer to the person or entity that sent you the publication, if known, and if that person or entity is unknown, then the term "sender" refers to the publisher, if known.

If you do not make a choice and the sender does not submit a timely appeal, disposal of your material will be at the discretion of the Superintendent or his or her designee.

INMATE NAME

DATE

(l)Exhibit C.

SENDER DISAPPROVAL NOTICE

FACILITY MEDIA REVIEW COMMITTEE

[Name and address of the correctional facility should be printed here]

This is to advise you that a publication, or a portion thereof, that was sent to one or more inmates at this correctional facility has been found unacceptable by our Facility Media Review Committee (FMRC) for the reason(s) set forth in the attached Inmate Disposition Notice (IDN). Included in this notice is a listing of the Department's guidelines by which the publication was evaluated.

As sender, you have 30 days from the date of the IDN to appeal the FMRC's decision. The appeal shall consist of a copy of the IDN, a written statement in support of your appeal, and, if available, a copy of the issue of the publication found unacceptable. The appeal must be submitted to the FMRC at the address above. The FMRC will forward your appeal to the Central Office Media Review Committee (COMRC) for a determination.

In the event that the inmate also appealed the decision, you will be provided with a copy of the COMRC decision that was sent to the inmate. If only you appealed the decision, you will be sent the COMRC decision using Attachment E, Sender Appeal Determination Notice.

If your appeal is granted, the inmate will be given the publication still in the FMRC's facilities possession. If the inmate had previously elected to dispose of the publication and the Department does not have a copy of the publication, you may send the inmate another copy.

For purposes of this notice, the term sender shall refer to the person or entity that sent the inmate the publication, if known, and if that person or entity is unknown, then the term sender refers to the publisher, if known.

SENDER DISPOSITION NOTICE - GUIDELINES

The Department adopts the following guidelines by which literature for inmates will be evaluated.

A. In general, the materials must be acceptable for regular mailing according to United States Postal Law and regulations.

B. Publications which contain child pornography or which promote a sexual performance of a child in violation of Penal Law article 263 are unacceptable. Publications in which models of any age are depicted or portrayed as underage persons in sexually provocative poses or engaged in sexual activity are unacceptable. Publications depicting nude children in a non-pornographic context, but which would promote or encourage prurient interest in the sexual performance of children, are unacceptable. Publications which, taken as a whole, by the average person applying contemporary community standards, appeal to prurient interest, and which depict or describe in a patently offensive way sexual bestiality, sadism, masochism, necrophilia or incest, and which taken as a whole, lack serious literary, artistic, political or scientific value are obscene and are unacceptable.

C. The publication should not incite violence based on race, religion, sex, sexual orientation, creed, or nationality. Incite violence, for purposes of this guideline, means to advocate, expressly or by clear implication, acts of violence.

D. Any publication which advocates and presents a clear and immediate risk of lawlessness, violence, anarchy, or rebellion against governmental authority is unacceptable.

E. The publication should not incite disobedience towards law enforcement officers or prison personnel. Incite disobedience, for purposes of this guideline, means to advocate, expressly or by clear implication, acts of disobedience.

F. The publication should not give instruction in the use or manufacture of firearms, explosives, and other weapons, or depict or describe their manufacture. Mere depictions of the use of hunting and/or military weapons which reasonably would not affect the safety and/or security of the facility are not prohibited.

G. The publication should not provide instruction by word(s) or picture(s) regarding martial arts skills. Martial arts include, but are not limited to, aikido, jujitsu, judo, karate, kung fu, and tai chi chu'an. Publications which discuss martial arts without providing instruction are acceptable.

H. The publication should not:

1. Contain information which appears to be written in code; or

2. Depict or describe methods of lock picking; or

3. Depict or describe methods of escape from correctional facilities or contain maps which could aid an inmate in an escape from a correctional facility (i.e. immediate area of the facility, detailed road maps, etc.); or

4. Depict or describe procedures for the brewing of alcoholic beverages or the manufacture of drugs or use of illegal drugs; or

5. Depict or describe methods or procedures for smuggling prison contraband; or

6. Depict or describe techniques or methods for rioting and/or information instructive in hostage or riot negotiation techniques.

7. Depict or describe hand signs, insignias, graffiti, or any other identifiers depicting or pertaining to a gang, or text that describes or depicts gang or other unauthorized group activity in such a way that it would promote or instruct in the formation of such groups inside a correctional facility.

The Department reserves the right to deny the inmate publications which may be held non-inciteful or non-advocative, as the case may be, during the Media Review Process, but which actually result in violence or disobedience after entrance into a facility, as is clearly set forth in guidelines 3 and 6 above. Such items shall be referred to the Facility Media Review Committee (FMRC), and if appealed, referred to the Central Office Media Review Committee (COMRC), for decision.

Publications which discuss different political philosophies and those dealing with criticism of Governmental and Departmental authority are acceptable as reading material provided they do not violate the above guidelines. For Example, publications such as Fortune News, The Militant, The Torch/La Antorcha, Workers World, and Revolutionary Worker shall generally be approved unless matter in a specific issue is found to violate the above guidelines.

The purposes of the foregoing guidelines are to facilitate access by inmates to a wide range of literature.

Superintendents and staff of correctional facilities are urged to use whatever means they have available to provide facility libraries with literature which presents differing points of view relevant to the issues of the day.

(m)Exhibit D.

INMATE APPEAL DETERMINATION

DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION

CENTRAL OFFICE MEDIA REVIEW COMMITTEE

Building 2, Harriman State Campus

Albany, New York 12226-2050

Date: ______

INMATE NAME NUMBER FACILITY

The decision of the __ Facility Media Review Committee denying you the right to receive the publication

(Title) (Author, Date, or Volume and Number)

has been affirmed () reversed () by the Central Office Media Review Committee for the following reason:

___________________________________________________________________________________________

___________________________________________________________________________________________

If the decision was reversed, you should receive the publication with this form. If the decision was upheld, you now have the following options:

() 1. Receive the publication with the objectionable portions blotted or cut out. This option is available only if the objectionable portion is eight pages or less, or is a single chapter, article, or section of any length.

() 2. Have the publication sent to a person of your choice, not to another inmate or a Department of Corrections and Community Supervision Official, at your expense.

Send to:

Name: ___________________________________________________________________________________________

Address: ___________________________________________________________________________________________

() 3. Have the publication destroyed.

If you do not make this choice within 30 days, disposal of the material will be at the discretion of the Superintendent or his or her designee.

Send this form to your Facility Media Review Committee, since all censored publications are returned to this committee.

(n)Exhibit E.

SENDER APPEAL DETERMINATION

DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION

CENTRAL OFFICE MEDIA REVIEW COMMITTEE

Building 2, Harriman State Campus

1220 Washington Avenue

Albany, New York 12226-2050

Date: __

The decision of the __ Facility Media Review Committee (FMRC) that denied the receipt, or portion(s) thereof, of the publication:

(Title) (Author, Date, or Volume and Number)

that was sent to:

Inmate Name Number Facility

has been () affirmed () reversed by the Central Office Media Review Committee (COMRC) for the reason(s) stated on the attached "Inmate Appeal Determination" or, if no inmate appeal was submitted, for the following reason(s):

___________________________________________________________________________________________

___________________________________________________________________________________________

If the denial was also appealed by the inmate, please see the reasons.

If the appeal is granted, the inmate will be given the publication in the FMRC's possession. If the inmate had previously elected to dispose of the publication and the Department does not have a copy of the publication, another copy may be sent to the inmate.

N.Y. Comp. Codes R. & Regs. Tit. 7 § 712.3