Mr. Bishop Robinson
Secretary, Public Safety
300 East Joppa Road
Suite 1000
Towson, Maryland 21286
Re:
Order of the Secretary -- March 21, 1996
IGO #940464 -- Gerald Fuller -- #150-### -- ECI
Dear Mr. Robinson:
I have been furnished a copy of your "Order of the Secretary" in IGO #940464 dated March 21, 1996 through informal channels. As you might recall, the Order relates to an inmate's appeal to the Grievance Office that he be permitted "data diskettes" as part of his allowable property.
I have an interest in this case because I have been following this issue for years and I am in communication with many and several inmates also affected by the prevailing diskette doctrine. These inmates, to a one, proceed pro se and lack the assistance of an attorney. In addition, to obtain copies of the legal references cited in the Order for some is impossible and for others, would take many weeks through the LASI program. It goes without saying that none of these affected parties has the legal expertise and background to fully evaluate the cited caselaw.
Thus, while this Order seemingly relates solely to Gerald Fuller, #150-###, ECI and IGO #940464, and his successful IGO appeal, it has widespread implications for many others, some not yet admitted to the Division of Correction.
For these reasons, I visited a local law library and obtained copies of the citations in the Order myself. I will discuss and distinguish them below:
Bryant v. Muth, 994 F.2d 1082 (4th Circuit, 1993) decides an issue arising in the federal Bureau of Prisons. While it does concern an inmate who had used a computer diskette without authorization, the main thrust of the decision is whether two BOP employees should enjoy qualified immunity with regard to removing the disk from the inmate. Bryant relies on BOP regulations and the BOP Manual. Bryant does not rely on nor take cognizance of State law or regulations of any kind, and does not mention or address issues of comity between the federal courts and the states (or state prisons). I am presuming Bryant was cited in the Order for the reason that it was the only 4th Circuit case dealing with computer diskettes that turned up in the course of your research. I suspect strongly that, if there were any State cases touching upon this topic, they were either unpublished or never got to the Court of Special Appeals or Court of Appeals. This is a significant element given the necessity of exhaustion of issues prior to presentation to a federal forum.
Bryant expressly disclaims comment on inmates' use of allowable property. At 1084, footnotes 3 and 4, BOP regulations 28 CFR 553.10 and 553.12a are quoted. They are inclusive of property an inmate is permitted to retain on admission, issued while in custody, purchases through the commissary or which is permitted to be mailed to or otherwise received. This is a significant element because it is the allowable nature of the disks which is being challenged through DOC, IGO and your office, and not comprehended by the Order. In fact, one of the main reasons for DOC inmates for challenging the negative diskette policy is the restrictive nature of the existing property allowance policy.
As to the Constitutional nature of diskette claims, Bryant explicitly stated at 1087:
It is important, that in Bryant at 1085:
... prison officials presented Bryant with what they believed to be a complete printout of his legal materials.
After much litigation at the federal level during 1988 and 1989 including a Court Order in March of 1989:
Bryant received a complete copy of all the legal materials contained on all of the contraband disks on July 19, 1989. ...
In Bryant's discussion to support its decision on the issue of qualified immunity of employees at 1087, the 4th Circuit Court especially pointed out:
Bryant was not permanently denied his legal materials. Rather, access to his legal materials was delayed while prison officials attempted to retrieve the data from the seized disks. (emphasis added)
Bryant also commented on security aspects of inmate computer use (not necessarily disk possession). It said in footnote 6 at 1084:
In order to access the prison computers, one needs both a disk to store data and a disk to access the internal computer program in the computer terminal. This is a safeguard to control use of computers by inmates for unauthorized purposes. In order to maintain security in the prison computer system, disks used to access the computer system are controlled by the prison staff.
... the potential for abuse is immense. Society is becoming increasingly dependent upon computers in virtually every aspect of daily life. Prisons are no exception. In the future, an inmate engaging in the unauthorized use of prison computers could learn to access prison records and computer monitored security systems. Unauthorized inmate access to computers linked with computers outside the prison could create even greater chaos. It is therefore imperative that the rules pertaining to inmate use of prison computers be vigorously enforced.
Discussion
It is necessary to understand that the disks ("data diskettes") raised in the Fuller Order, the Herman Hardy litigation and elsewhere are not compatible with IBM-design computers presently existing in the Education Departments or, for that matter, the wardens' and administrative offices in DOC facilities.
The devices which would utilize these "data diskettes" are considered relatively primitive. These devices are not capable of reading disks formatted for and created on IBM-type machines. Nor are the disks created on the inmate devices usable without conversion by IBM-type machines. Contrary to the decision of the 4th Circuit Court of Appeals, it is impossible for a person with these devices or with "data diskettes" generated therefrom to access prison records or security systems. The only way inmates could possibly gain access to such records would be if a prison employee permitted the inmate to access the facility's own equipment and/or lead the inmate to IBM-type disks formatted for that purpose. As for security systems throughout the Division, "data diskettes" are woefully dysfunctional. Security systems do not even rely on IBM-technology and passwords and other advanced encryption techniques bar not only the inmates, but most if not all other employees.
As for the 4th Circuit Court of Appeals comment that, "Unauthorized inmate access to computers linked with computers outside the prison could create even greater chaos." This statement may be true, but the inmate would need an available phone line or satellite relay system, a modem (a device that relays electronic information), an IBM or Macintosh fully-outfitted personal computer and a host of sophisticated software. If he or she has all of the above, he or she doesn't need a diskette of any kind and probably would not resort to using the inmate devices in the first place.
Bryant's main issue of qualified immunity was decided solely on the grounds that the employees were "carrying out the clear language of the BOP Manual. ..." Bryant did not explore issues federal/state comity or state prison system regulations. Importantly, Bryant did not contemplate the standalone "word processing" devices incompatible with standard personal computers, lacking modems and having operating systems unable to run even the most primitive auxiliary software. Further, Bryant did not consider or take into consideration situations where prison inmates, State or Federal, were initially permitted to possess the disks or were initially led to purchase devices depending on disks and then by administrative fiat, they were removed.
The Order dated March 21, 1996 also cited Nasim v. Warden, Maryland House of Correction, 64 F.3d 951, 958 (4th Cir. 1995) in the context of one judge's expression of dismay with regard to federal court intervention, to wit, micromanagement, of state prison systems. It is to be remembered, and the point should be made, that these comments were part of a concurring opinion, and not the decision of the federal appellate forum. Though they may be instructive and they may be advisory, they are not controlling, nor are they binding anywhere in the 4th Circuit, in particular, Maryland.
The Order also refers to Taylor v. Freeman, 34 F.3d 266, 268 (4th Cir. 1994) supposedly to buttress the "teaching" of the concurring judge in Nasim. Taylor similarly weighs case after case discussing the problems of prison administration. However, while citing Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973), the Taylor court took pains to retain Preiser's language:
Indeed, intrusive and far-reaching federal judicial intervention in the details of prison management is justifiable only where state officials have been afforded the opportunity to correct constitutional infirmities and have abdicated their responsibility to do so. (emphasis added)
... If petitioners had fully complied with the court's earlier orders, the present time limit might well have been unnecessary. But taking the long and unhappy history of the litigation into account, the court was justified in entering a comprehensive order to insure against the risk of inadequate compliance.
It would appear from the Nasim and Taylor cases cited in the Order dated March 21, 1996 that there may well be grounds for federal redress with regard to "data diskettes". The federal court may "proceed cautiously and incrementally" and the court may give "the State the first opportunity to correct the errors made in the internal administration of the prisons.", but the court is not bound by the Commissioner's Directive and if justified, may impose a de novo determination. The fact that an overwhelming number of the members of the federal judiciary have expressed reticence about State prison matters, does not convey or imply that State administrators are not to be governed by federal principles.
I hereby request that you reconsider and overturn the Order of March 21, 1996, reinstate any diskettes that were removed from any inmate for any reason, permit inmates to purchase and possess devices requiring "data diskettes", and reinstate the Grievance Office's decision in IGO #940-464.
Sincerely,
Nancy Moran
nm
cc:
Mr. Richard A. Lanham, Sr.
Mr. Marvin Robbins
Gerald Fuller - #150-### - ECI
Neil F. C - #147-### - MCIH
Eberle E - #177-### - RCI
Herman W. H - #149-### - MCIJ
Leonard H - #226-### - RCI
Hal B. K - #225-### - RCI
Selvyn T - #163-### - MHCA
David C. T - #190-### - Pen
Addendum to Mr. Robinson, Mr. Lanham and Mr. Robbins:
In the course of preparing my next newsletter, I had written and am intending to include the following on the topic of data diskettes:
Data Diskettes: If I bring this topic up to the Commissioner one more time, he will jump up and down, turn blue and smoke will come out of his ears. Never you mind, I brought it up to Lieutenant Governor Kathleen Kennedy Townsend. If the Commissioner was last year's "Grinch that Stole Christmas", he is this year's "Mr. Crabcake '96". The definitive answer about why you can't have data diskettes - you guessed it - security. Apparently a single inmate of the 1,000,000 incarcerated in the United States in an unspecified Midwest state used a data diskette to utter the word - you guessed it - "escape". The real story is that it makes hundreds of "security" personnel "insecure" if the inmates have better equipment and know how to use it. In fact, at my prompting, the Commissioner went around the Department of Public Safety including the wardens' offices surveying the existing computer equipment. He was heard to say after testing the various machines: "The Department of Public Safety is like a box of chocolates, you press V-E-R at the C-prompt and you never know what you are going to get."
Anybody fluent in Spanish, Greek, Pig Latin, Cantonese or Mandarin is invited to utter "escape" in the language of your choice. Only do it with pencil and paper or toothpaste smeared on your cell wall. Do not do it on a Brother, a Sharp or an XT operating anywhere at or above 8 Hertz.
Like the young man who found himself surrounded by pony doo-doo and said to himself, there must be a pony, DOC Headquarters is saying there must be a security risk somewhere. Meanwhile, the security doo-doo gets deeper every year.
With that, I reiterate my request "that you reconsider and overturn the Order of March 21, 1996, reinstate any diskettes that were removed from any inmate for any reason, permit inmates to purchase and possess devices requiring "data diskettes", and reinstate the Grievance Office's decision in IGO #940-464."
I look forward to hearing from you. ...