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America Is Stuck With the Death Penalty for (At Least) a Generation

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With Justice Anthony Kennedy's retirement, the national fight to abolish capital punishment will have to go local.
When the Supreme Court revived capital punishment in 1976, just four years after de facto abolishing it, the justices effectively took ownership of the American death penalty and all its outcomes. They have spent the decades since then setting its legal and constitutional parameters, supervising its general implementation, sanctioning its use in specific cases, and brushing aside concerns about its many flaws.
That unusual role in the American legal system is about to change. With Justice Anthony Kennedy’s retirement from the court this summer, the Supreme Court will lose a heterodox jurist whose willingness to cross ideological divides made him the deciding factor in many legal battles. In cases involving the Eighth Amendment’s prohibition against cruel and unusual punishment, his judgment often meant the difference between life and death for hundreds of death-row pr…

Texas: Social Media Ban Could Curb Free Speech Behind Bars

Prisoner advocates say they're concerned a new Texas Department of Criminal Justice social media policy could prevent them from relaying information about their clients on the inside.

Prison reform activists are concerned that a new state social media policy could be used to infringe on the free speech rights of both incarcerated people and and those who support them by sharing their stories, thoughts and experiences online.

According to the Texas Department of Criminal Justice's (TDCJ) "Offender Orientation Manual," updated in early April, "Offenders are prohibited from maintaining active social media accounts for the purposes of soliciting, updating, or engaging others, through a 3rd party or otherwise."

Under the updated manual, prisoners can be penalized for infractions in a number of ways, including by receiving extra work duties or being confined to their cells.

Lily Hughes, the national director of Campaign to End the Death Penalty, said that she's concerned the policy could not only infringe on prisoners' rights, but also prevent her group from creating online advocacy pages for their clients.

"The rule is written as to be so broad as to include anything," said Hughes, who fears that prisoners may be punished for online activity that her group has undertaken on their behalf.

In an emailed statement, TDCJ said that the rule was intended to stop prisoners from using "social media accounts to sell items over the internet based on the notoriety of their crime, harass victims or victims' families, and continue their criminal activity."

TDCJ spokesperson Jason Clark said that the primary goal of the policy is to encourage social media networks like Facebook, Twitter and Instagram to shut down prisoners' profiles. "There has been no disciplinary action taken at this time against an offender," Clark told the Observer.

The Electronic Frontier Foundation (EFF), a nonprofit that defends digital civil liberties, called the policy "digital censorship."

"[A] person does not lose all of their rights to participate in public discourse when they are incarcerated," wrote Dave Maas, an investigative researcher at EFF.

Azzurra Crispino, an ethics professor at Austin Community College and an organizer with Prison Abolition and Prisoners Support (PAPS) who tweets on behalf of a man in solitary confinement in Lubbock, echoed Hughes' concerns.

"This is clearly an overreach in terms of the TDCJ trying to limit my ability to speak," said Crispino, who fears her online activity on behalf of prisoners could be prohibited under the rule. "I'm not an inmate, so I should have absolutely no restriction on my free speech, either legally or morally. But most importantly, it makes it harder for prisoners to mount a defense."

Via Twitter

Crispino tweets on behalf of an advocacy group for a man named Xinachtli, who was known as Alvaro Luna Hernandez until his recent conversion to Islam. He has spent almost 14 years in solitary confinement. According to his advocates, he disarmed a West Texas sheriff before fleeing arrest for aggravated robbery, charges which were later dropped. He was taken into custody after a shoot-out and convicted of assaulting the sheriff.

Crispino compared the regulation to Philadelphia's "Revictimization Relief Act," which sought to suppress journalistic efforts by prisoners, including black power activist Mumia Abu-Jamal, a frequent contributor to prison reform newsletters and radio programs. Abu-Jamal is serving a life sentence for the murder of a police officer, though Amnesty International has said his trial "did not meet international standards" for justice. A federal judge struck down the Philadelphia act in April 2015, calling the law "manifestly unconstitutional."

When asked whether Facebook pages like the Inside Books Project, which provides reading material to the incarcerated, would pose a problem for TDCJ, Clark said no. Similarly, he said, both a page operated by the family of death row inmate Rodney Reed and a PAPS tweet soliciting letters on behalf a woman incarcerated in Nevada would be acceptable under the new policy.

As an example of what the policy is meant to address, Clark offered the Facebook page of convicted serial killer Elmer Wayne Henley, Jr. Before Facebook deleted it, the page sparked an international media controversy because of his use of the page to promote a line of jewelry.

Hughes remained unconvinced by the state's assurances. "To have something so broadly written that it could target any of the advocacy pages is definitely abridging our rights," she said. "We have a right to talk about these cases."

Matt Simpson, a senior policy strategist for the ACLU of Texas, told the Observer that he worries about the new social media policy's impact on a prisoner's ability to re-enter society.

"The vast majority of prisoners return to their communities, where they rely on friends and family for support," he said. "This rule clearly fails to acknowledge the critical role of social networks in helping individuals overcome the challenges they face when reentering our communities, such as finding steady and stable employment."

Source: Texas Observer, April 19, 2016

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