"Child Porn" Update 1: The Hearing

Well, it's official, at least as far as the DHO (Disciplinary Hearing Officer) for the U.S. Penitentiary here in Terre Haute is concerned; having «sexually explicit» thoughts is now a punishable offense for «sex offenders». And, as George Orwell so famously predicted, once that happens there is nothing stopping «Big Brother» from punishing whoever it wants. All they have to do is accuse you of a «thought crime» and you are automatically guilty. And so I have been found guilty of «child pornography» in my cell, simply because I am a sex offender, with crimes against children, and have an otherwise perfectly legal picture of a shirtless little girl taken from Vogue magazine's Website (see: "Child Porn" Found In My Cell... Again).

Not only was the picture perfectly legal (by bother B.O.P. policy and Federal Law), but it was actually issued to me in a letter that was opened and inspected by the prison mail room staff. I had no reason to think I wasn't allowed to have it, and even if I did «get off» on the picture (which I don't) then so what? Does «getting off» on a picture of women's shoes for someone with a shoe fetish make such pictures pornographic? It seems the DHO thinks it does. So he found me guilty of «Prohibited Act 205», which according to the official discipline manual is, «Possession of anything not authorized for retention by the inmate, and not issued to him through regular channels.»

But! B.O.P. policy explicitly authorizes inmates to have pictures that comply with very specific and clearly defined limitations, which this picture does; AND, it was issued to me after being inspected through regular channels (i.e. prisoner mail). So, the DHO found me guilty not by facts and policy, but apparently just on «principle»; because he imagined that I «got off» on the picture and thus needed to be punished.

And «punish» he did, severely. Even though a «305» is a low level offense (100 level are the most serious, and 400 level are the least serious) he fined me $75 (I only had $78 in my inmate account, so he obviously just wanted to take all the money from me he could) and took several «privileges» (phone, commissary, visiting, etc...) for 120 days (the most he is allowed to take for even the most serious offenses is 180 days). And this was the first and only time in Federal prison that I've ever been «written up» for anything! I generally follow their rules, and don't get in trouble at all --- not even when they «yank my chain», as they're so obviously doing now.

I can't appeal his decision until I get the official «DHO notice» (paperwork) from the hearing. The hearing was on April 15 (two weeks ago) and the other prisoners on my tier got their «notice» paperwork last week. But, not me. I think maybe the DHO realized too late (i.e. after he found me «guilty» at the hearing) that he couldn't legally find me guilty and then just make up a reason for it later when he filled out the paperwork --- because for once there is no reason! (They know that usually they can always «find a reason» after the fact; but in this case there simply isn't one. The policy and Federal Laws say that the picture is perfectly legal; and it was issued to me. So even if the DHO declares that the picture is somehow a «threat to institution order and security» (a favorite «fall back» that they use for everything from prohibiting dental floss to restricting «R»-rated movies from being shown on the prison movie channel) he can't (at least according to policy) «punish» me for having it, because only the Warden is allowed to make those determinations, and when he does he must let the prisoner know in writing. And since the Warden, nor anyone else, has ever told me I wasn't allowed to have pictures of children, the DHO can't accuse me --- or, find me guilty --- of having something unauthorized ... according to their own policies).

In the meantime, I can't call my mom, or even my attorney (who has agreed to help me appeal this nonsense), who are the only people I ever call regularly. And I can't buy salt or sweetener (to make the food here a little more palatable) or anything else on commissary, not even stamps and paper for letters (because DHO took all of my money). But, worst of all, the DHO has once more created a record of me having «child pornography» in my cell --- something I have NEVER been guilty of, and yet this is the third time (in all my years of living in confinement) that I have been accused of it merely because I am a «sex offender» with «crimes against children» and have a picture of a child with no shirt (in every case a picture that I had never paid special attention to, but even if I had ... so?). And this record «can and will be used against me in a court of law» if I ever end up back in court (and the chances are very good that I will, eventually; especially if my attorneys have their way).

So, if only to expunge the record, I must «fight» this B.S.. And, like I just told my girlfriend in a letter, I resent being forced to play their silly game again! But, if I must play, then I will play hard. I've already filed a complaint to both the Warden and the Regional Director for the «unconstitutional conduct» of the DHO. (2) I don't expect either of them to do anything about it, but by not doing anything they make themselves a part of a «conspiracy to deprive me of my constitutional rights» (1), which is exactly what all this is. (Anyone who reads the Fifth Nail closely might recall that I don't «believe» in legal rights, «constitutional» or otherwise, because I've seen every so-called «right» taken away as soon as it becomes inconvenient for «Big Brother» --- and the present circumstance is a pretty good example of that. So, I'm just playing their silly little game just to get them to leave me alone in my cell while I wait for them to make up their minds about killing me. It's times like this that I often wish they'd just stop playing their games and kill me already --- a sentiment that I've heard shared by many other prisoners here on Federal death row!)

Since there is no fixed limit for how long they can take to give me the official «notice» from the hearing, they can essentially punish anyone they want, for any reason they want, without giving the person a chance to appeal for relief from the punishment until the punishment is over. And by that time it doesn't matter anymore. And the courts won't let a prisoner sue for «emotional distress» or anything else unless there is some kind of physical injury involved. You better believe that the DHO (and all «disciplinary officers» in any prison) know this fact well, which is why (most likely) I haven't received my «notice» yet, and probably won't for a while (assuming the DHO realizes that his decision must be reversed, because if it's not then it becomes a conspiracy, and elevates the seriousness of the «unconstitutional conduct» to a whole new level).

But, maybe the DHO doesn't realize that I can still sue for a «punitive» settlement (i.e. intend to discourage them from ignoring the law and doing whatever they want), or maybe he does realize it and is just hoping I don't realize it before the 20 day time limit for «complaining» runs out. As usual, I'm just guessing the rules as they change them, and just hoping I can convince them to find someone else to «play with» next time.

I'll write another update soon.

[J.D. April 27, 2015]

Notes:

1. The «constitutional» right that I'm referring to here is commonly called the «right to due process» (from the Fifth Amendment), and in particularly, the «right to a fair and impartial hearing», which the courts have recognized for prisoners facing disciplinary proceedings since 1974 (Wolff v. McDonnell, 418 U.S. 539).
2. See "Request For Administrative Remedy" [5NLetters]