"Child Porn" Update 3: Regional Response

On the 23^rd of July I received a response for my Regional Appeal that was dated July 13, 2015. The appeal was denied for nonsensical reasons. The Regional Director gave only one reason for denying the appeal. He claims that; “The photograph you possessed depicted a young girl displaying her breasts, thus meeting the sexually suggestive standard.”

This claim, as usual, is nonsense. The girl in the picture is clearly prepubescent and has no “breasts” to display. Yes, her chest is exposed. But, since when is a flat-chested prepubescent girl's naked chest considered “sexually suggestive”? Apparently since the picture was found in MY cell!

I submitted my appeal to the B.O.P. General Counsel in Washington, D.C., on the same day I got this nonsense denial. I don't expect the General Counsel's response to make any more sense, so I kept it short and sweet, as follows:

DHO Appeal for IR#2682805. I was found guilty for 305, contrary to facts, eveidence, and BOP Program Statements. The Regional Appeal Response also mistates and misrepresent the facts and evidence of my appeal and defense. A 305 is “Possession of anything not authorized […] AND NOT ISSUED THROUGH REGULAR CHANNELS.” The picture found in my cell WAS IN FACT ISSUED THROUGH INMATE MAIL in full compliance with all program statements. Regional claims the picture depicts “a young girl displaying her breasts”. But, the girl in the picture is prepubescent and has no breasts by any standard of definition, legal, social, or biological. The picture was not issued in error, as the evidence shows such pictures (of shirtless prepubescent girls) are routinely authorized for general population in both correspondence and commercial publications. I cannot be held accountable if it is later deemed inappropriate after it was issued to me, especially when I had no reason to think that it was not authorized! I request this incident be expunged and all sanctions reversed. Thank you.

[J.D. July 23, 2015]

P.S.:

On August 1, 2015, I submitted to following “Request for Informal Resolution” 
to Unit Team Staff:

I am requesting an informal resolution in the following matter:

The August 2015 issue of National Geographic Magazine, which I have an authorized subscription to, has a prominent (full page) picture of a “female minor who is shirtless and standing in a provocative pose” (p. 70). Since the DHO has ruled that such images are not authorized (Incident Report #2682805), and the Regional Director has also declared that such a picture is against BOP Program Statements because it depicts “a young girl displaying her breasts,” (Administrative Remedy #821661-R2) I must assume that the August 2015 issue of National Geographic was issued through the inmate mail by “human error” (as suggested by the DHO). So, according to explicit instructions from my attorney, I am seeking written clarification as to whether the above mentioned picture is authorized or not. My request for clarification regarding the authorization of this picture is so that I can comply with the disciplinary sanction that asserts I “will be held responsible” for having such pictures in my possession even when they have been issued to me through regular channels (i.e. inmate mail) in error. I request clarification from someone authorized to do so. Thank you. 

National Geographic - August 2015, page 70

P.P.S: (Appended Sept. 1, 2015)

   On August 4, 2015, I received the following response, (from Supervisory Correctional Systems Specialist, S. Morin; presumably, mailroom staff):

There are instances where National Geographic could have photographs of nudity which are authorized. PS 5266.011, Incoming publication, states, "The following are examples of commercial publications that contain nudity illustrative of medical, educational, or anthropological content, which are allowable: National Geographic and Our Bodies, Ourselves".
Accordingly, the publication should be allowable per policy. However, there is no relation between this publication and other photographs that are not allowed. Also, be advised, if a photo is removed from the publication, it is no longer considered part of the publication and subject to the rules set forth in policy concerning photographs.

   On August 21, 2015, I received a copy of this "Child Porn Update 3" as posted on August 13. The copy included the picture above, now "removed from the publication".

Accordingly I submitted to Unit Team staff on August 24, 2015:

I am at this time seeking further clarification concerning the response I received below. 

On 8-21-2015, I was issued a letter through regular inmate mail that contained a copy described below of a prepubescent girl, posing "erotically" (by the DHO's own definition) and displaying her breasts (according to the Regional Director), which appeared in the August 2015 issue of National Geographic magazine. The girl in this picture is in fact being prepared to attract a husband (according to the caption), which makes it far more "sexually suggestive" than the picture I was recently severely punished for having in my possession. According to the DHO's report, this picture is "Child Pornography" simply if he, or someone else, decides that I am aroused by it. So, I must once more seek clarification since the picture has now been sent to me, and "removed from the publication".

I see no difference in the nature of this picture and the one I was found "guilty" of possessing because the DHO believed I was aroused by it. Both are clearly sexually suggestive and "erotic" (according to the DHO) pictures of a prepubescent girl around the same age. Both girls are "displaying their breasts" (according to the Regional Director). Both pictures were mailed to me unconcealed and unsolicited, and consequently issued to me through regular (inmate mail) channels after being opened and inspected by the mailroom staff. And both pictures have been removed from popular "G-rated" magazines.

Supervisory Correctional Systems Specialist, S. Morin (below), advises that, "if a photo is removed from the publication, it is no longer considered part of the publication and subject to the rules set forth in policy concerning photographs". Accordingly, I must once more assume that this picture has been issued to me by "human error" for which I am responsible.

If the picture IS AUTHORIZED, then I request specific reasons (i.e. other than race and culture, what makes this picture different from the one I was infracted for) so that I can inform my friends, and better protect myself from serious incident reports in the future.

If the picture is NOT AUTHORIZED, then I request an informal resolution/complaint against the staff responsible for continuing to issue me material in the mail that can, and HAS, resulted in my being severely punished.

Thank you.

And, on August 25, someone (?) responded thusly:

Since there is indication from what you've noted in regard to your responsibility, that you may not be authorized the picture that you describe as being sensitive in nature, and questionable in regard to the same, from what you allege that has been mailed to you unsolicited, and for it having been removed from the publication, refer to the aforementioned. Consequently, you are directed to despatch such picture(s) from your person and premise, and dispose accordingly. You may also advise your correspondent the potential conduct code violation trouble hazard, that receiving such unsolicited material(s) in the mail places you in relation to the adorementioned policy, and to refrain from such in the future that you may not avoid adversity concerning your conduct status.

To which I replied on August 31, 2015:

Thank you for your reply.

As I understand this reponse, the picture that was issued to me through regular institutional channels (inmate mail) is in fact unauthorized as described. I will dispose of the picture in question promptly, and inform my friends of the concern as advised.

However, since this is such a serious threat to institutional security that it warrants exceptional punishment when I am found to have such a picture in my possession, I am requestiong an informal resolution to prevent such pictures from being mistakenly issued in the future. My request may be stated as follows:

On 8-21-2015, I was issued a letter through regular instituational channels (inmate mail) that contained a picture, unconcealed and unsolicited by me, that has been determined to be against B.O.P. policy. The picture was of a prepubescent girl, displaying her "breasts" (as defined by the Regional Director in Administrative Remedy 921661-R2). The DHO has severely punished me for having a similiar picture that was also issued to me through the mail in the recent past. So, I requesting that the mailroom policy/procedures be reviewed and revised to prevent this sort of serious incident from occurring so regularly.

Then, on September 1, 2015, a staff member, whom I intentionally will not name here, came to my cell door and essentially "warned" me that if I pursue an official grievance in the above regard that the result would likely be highly detrimental for me. And, because of the respectful way this information was presented to me, I ultimately advised him that I would withdraw my "request for informal resolution", after I spoke to my attorney (I just happened to have a confidential legal call scheduled on the same day so I could consult with the attorney who is helping me on his own time to appeal this "Child Porn" accusation). My attorney and I agreed that "poking the bear" wasn't likely to help matters any.

[J.D. 9-3-2015]