Book bans and censorship battles have garnered considerable attention in recent years, but one of the most critical battlegrounds is kept out of the public eye. Prison officials can ban any book that threatens the security or operations of their facility. This means that the knowledge access rights of incarcerated people are subject to the judgments of the people detaining them. This Note focuses on books about Black people in America and books about the history of and conditions in prisons, which are often banned for their potential to be divisive or incite unrest. The result is that Black people, who are already disproportionately victimized by the criminal punishment system, cannot read their own history and the history of the institution imprisoning them.

This Note examines the legal backdrop enabling these book bans. As an example, it highlights the recent ban of Heather Ann Thompson’s Blood in the Water: The Attica Prison Uprising of 1971 and Its Legacy in the New York State prison system, including at the Attica Correctional Facility. This Note argues that prison book bans are coeval with attacks on Black history in American schools, and labels both practices as attempts to stifle the democratic engagement of Black people and other marginalized groups. As a guiding thesis, it draws inspiration from the organizers of the Attica prison uprising to assert that this fight is best understood from the vantage point of those most impacted by prison book bans: incarcerated people who are denied the right to read.

The full text of this Note can be found by clicking the PDF link to the left.


On September 9, 1971, 1,281 incarcerated men took control of the Attica Correctional Facility in upstate New York. 1 Heather Ann Thompson, Blood in the Water: The Attica Prison Uprising of 1971 and Its Legacy 64 (2016). The takeover of Attica initiated four days of protest and polemics about the politics of mass incarceration in the United States and the basic civil and human rights of people in prison. 2 See Herman Badillo & Milton Haynes, A Bill of No Rights: Attica and the American Prison System 53–89 (1972) (describing the negotiations between the uprisers and state officials). On the fourth day, New York Governor Nelson Rockefeller ordered a retaking of the facility. 3 Thompson, supra note 1, at 155–56. Twenty-nine incarcerated men and nine civilian hostages were gunned down and killed during the ensuing siege. 4 Id. at 187. A tenth civilian hostage was shot during the retaking and died the following month from his injuries. Id. at 249. The Attica uprising and its aftermath sparked a nationwide conversation about what we have come to call “the carceral state.” 5 See id. at 558–62 (recounting the varied responses to the Attica uprising). Some saw the Attica rebellion as a vindication of the politics of “governing through crime”; 6 See, e.g., Jonathan Simon, Governing Through Crime: How the War on Crime Transformed American Democracy and Created a Culture of Fear 3–5 (2007) (describing the concept of “governing through crime” as a lens to look at “the exercise of authority in America”). others argued that it was an indictment of the prison system and the anti-Black violence that defines it. 7 The fight lives on through the Attica Brothers Foundation, which works to support the survivors of the retaking and keep the memory of Attica alive in the present-day struggle against America’s racist and dehumanizing prison system. For more information on their work, see generally Attica Brothers Foundation, https://www.atticabrothersfoundation.​org/ [] (last visited Sept. 9, 2023) (“Today there are only a handful of the Brothers left. Our goal is to support them in their retirement and support their causes in perpetuity.”).

Forty-five years after the Attica uprising, historian Heather Ann Thompson published Blood in the Water: The Attica Prison Uprising of 1971 and Its Legacy. 8 Thompson, supra note 1, at xiii. The book is considered to provide the most comprehensive history of the events leading up to, during, and after the uprising. 9 See Mark Oppenheimer, ‘Blood in the Water,’ A Gripping Account of the Attica Prison Uprising, N.Y. Times (Aug. 18, 2016),​books/blood-in-the-water-a-gripping-account-of-the-attica-prison-uprising.html (on file with the Columbia Law Review) (arguing that Thompson’s in-depth depiction of the events surrounding the uprising distinguishes her book from other pieces of “Attica literature”). In March 2022, Thompson filed suit against New York State officials, challenging the blanket censorship of Blood in the Water in the New York prison system. 10 See Complaint, Thompson v. Annucci, No. 22-CV-02632 (ER)(SN) (S.D.N.Y. filed Mar. 31, 2022) [hereinafter Complaint, S.D.N.Y.]. This struggle was foreshadowed by the original Attica uprisers: Abolishing censorship at the prison was one of their core demands. 11 See infra notes 165–168 and accompanying text. Settlement proceedings between Thompson and the institutional defendants began in October 2022. 12 See Settlement Conference Order, Thompson v. Annucci, No. 22-CV-02632 (ER)(SN) (S.D.N.Y. filed Aug. 23, 2022), ECF No. 20.

The Attica uprisers’ critique extended beyond their facility. They argued that their circumstances were not unique but archetypal: “Attica Prison is one of the most classic institutions of authoritative inhumanity upon men.” 13 The Attica Liberation Faction Manifesto of Demands and Anti-Depression Platform (1971), 53 Race & Class, no. 2, 2011, at 28, 28–29 [hereinafter The Attica Manifesto]. Prison conditions were a focus, but the men of Attica also were intentional in describing the prison system as “the authoritative fangs of a coward in power.” 14 Id. at 29. The mention of fangs implies the existence of a body. Critical to the uprisers’ argument was the idea that prisons are one component of a larger structure, a framing similar to that of scholars who choose to discuss the “carceral state” rather than the “penal state.” 15 Dan Berger, Finding and Defining the Carceral State, 47 Revs. Am. Hist. 279, 281 (2019) (“Identifying the object of inquiry as the ‘carceral state’ rather than, as some in criminology have done, ‘the penal state’ . . . suggests a broader phalanx of institutions than just the prison.” (second quotation quoting Ashley Rubin & Michelle S. Phelps, Fracturing the Penal State: State Actors and the Role of Conflict in Penal Change, 21 Theoretical Criminology 422, 423 (2017))). The “carceral state” encompasses the physical institutions imprisoning people in America as well as the ideologies that fuel investment in those institutions. 16 See Gabrielle French, Allie Goodman & Chloe Carlson, What Is the Carceral State?, U-M Carceral State Project (May 2020),​fbca46c38f0b2496bcaa5ab0 [] (quoting Ruby Tapia, Professor of Eng. & Women’s Stud., Univ. of Mich., Remarks at the “What Is the Carceral State?” Panel of the Carceral State Project Symposium (Oct. 3, 2018)). It is a larger government apparatus that functions as a means of social ordering against targeted groups and profit maximization for others. 17 See id. (“Consider the days of colonization. Black people were brought to be slaves, and this sparked the roots of connecting Blackness to captivity, a carceral condition. These are the roots of the racialized prison industrial complex that looms over Americans in present day.”); see also Aisha Khan, The Carceral State: An American Story, 51 Ann. Rev. Anthropology 49, 50 (2022) (defining the “carceral state” as “governmentality that relies on institutionalized punishment and surveillance (including mass incarceration), particularly of targeted populations”). In recounting the uprisers’ critique, Blood in the Water offered a narrative that would have allowed the people incarcerated in Attica today to understand their history and, through that history, the meaning of their experience. This Note stems from a desire to understand the censorship of Thompson’s book from the vantage point of the people deprived of the right to read it. 18 See generally Mari J. Matsuda, Looking to the Bottom: Critical Legal Studies and Reparations, 22 Harv. C.R.-C.L. L. Rev. 323, 398–99 (1987) (describing the importance of looking to the people most impacted by an oppressive structure to facilitate positive change).

The carceral state and the carceral system are also a racist state and a racist system. The abolition of slavery brought with it a surge in Black criminalization and incarceration. 19 Ruth Delaney, Ram Subramanian, Alison Shames & Nicholas Turner, American History, Race, and Prison, Vera Inst. Just., [] (last visited May 11, 2023) (“The year 1865 should be as notable to criminologists as is the year 1970. While it marked the end of the Civil War and the passage of the 13th Amendment, it also triggered the nation’s first prison boom when the number of [B]lack Americans arrested and incarcerated surged.”). In Alabama, for instance, the prison population shifted from ninety-nine percent white to ninety percent Black after the Civil War. 20 Alabama Begins Leasing Incarcerated People for Profit, Equal Just. Initiative, [] (last visited Aug. 23, 2023). By the 1870s, Black people made up ninety-five percent of the prison population in the South. 21 Delaney et al., supra note 19. In the absence of slavery, incarceration became the container for Black freedom and the vehicle for Black labor exploitation. 22 See id. (“State penal authorities deployed these imprisoned people to help rebuild the South—they rented out convicted people to private companies through a system of convict leasing and put incarcerated individuals to work on, for example, prison farms to produce agricultural products.”); see also Ashley Nellis, The Color of Justice: Racial and Ethnic Disparity in State Prisons, Sent’g Project 11 (2021), https://www.sentencingproject. ​org/app/uploads/2022/08/The-Color-of-Justice-Racial-and-Ethnic-Disparity-in-State-Prisons.pdf [] (“Using proper controls for other possible contributing factors, [University of Illinois at Chicago researchers] found that being charged in a county with a substantial legacy of slavery was associated with increases in pre-trial detention, imprisonment, and length of sentence.” (citing Aaron Gottlieb & Kalen Flynn, The Legacy of Slavery and Mass Incarceration: Evidence From Felony Case Outcomes, 95 Soc. Serv. Rev. 3, 27 (2021))). In state prisons today, Black people are incarcerated at almost five times the rate of white people. 23 Nellis, supra note 22, at 5. While Black people make up thirteen percent of the population in America, they represent thirty-eight percent of the incarcerated population. 24 Mike Wessler, Updated Charts Provide Insights on Racial Disparities, Correctional Control, Jail Suicides, and More, Prison Pol’y Initiative (May 19, 2022), https:// ​ []; see also Inmate Race, Fed. Bureau Prisons (May 6, 2023),​statistics/statistics_inmate_race.jsp []. One in three Black men will be sentenced to time in prison, in contrast with one in seventeen white men. 25 Criminal Justice Fact Sheet, NAACP, [] (last visited May 11, 2023). These disparities make clear that incarceration is simply the latest iteration of racial persecution in America. 26 See Nellis, supra note 22, at 12 (“America’s legacy of white supremacy over Black people has taken many forms over the country’s history from chattel slavery to housing policies that made it impossible for African Americans to buy homes. Mass incarceration can be viewed as the current iteration.”).

Books are central to an analysis of the American prison because of the nexus between race, literacy, and incarceration. Black people are disproportionately imprisoned in America, and rates of illiteracy are disproportionately high among incarcerated people. 27 See Corey Michon, Uncovering Mass Incarceration’s Literacy Disparity, Prison Pol’y Initiative (Apr. 1, 2016), []. Participation in education programs while incarcerated has been shown to reduce recidivism; fewer educated people are reincarcerated upon release. 28 See Hayne Yoon, Back to School: A Common-Sense Strategy to Lower Recidivism, Vera Inst. Just. (Sept. 19, 2019), []. The interests of proponents and opponents of incarceration would seem to converge on reduced recidivism rates, which would mean that fewer people commit crimes and are reincarcerated after release. 29 See, e.g., Our Mission & History, Anti-Recidivism Coal., https://antirecidivism. ​org/who-we-are/mission-and-history/ [] (last visited May 11, 2023) (detailing measures taken by a nonprofit organization to reduce the reincarceration of previously incarcerated people across California); Prison Reform: Reducing Recidivism by Strengthening the Federal Bureau of Prisons, DOJ,​prison-reform [] (last updated Mar. 6, 2017) (showing how the Department of Justice hopes to reduce recidivism in order to prevent crimes). For an elaboration on interest convergence, see generally Derrick A. Bell, Jr., Brown v. Board of Education and the Interest-Convergence Dilemma, 93 Harv. L. Rev. 518 (1980). Nevertheless, battles over the censorship of reading and educational materials rage on in America’s prisons. 30 See Alex Woodward, America’s Book Bans Have Already Come for Prisons, Independent (Apr. 25, 2023),​prison-book-bans-florida-texas-b2324553.html [] (describing the breadth of censorship in prisons and critiques of those policies).

So how does censorship serve, or disserve, the goal of reducing recidivism? Prison officials rely on safety and security concerns to justify banning certain books. 31 See infra notes 57–58 and accompanying text. More specifically, books discussing race or the experience of incarceration might be banned for inciting division or unrest among incarcerated people. 32 See infra notes 88–89 and accompanying text. On the other hand, people focused on reducing prison populations point to the positive benefits that reading offers to incarcerated people, one of which is lowering the rate of recidivism and reincarceration. 33 See Yoon, supra note 28. From this perspective—and factoring in the lack of empirical data showing that books cause disruptions in prisons—maintaining order through censorship makes little sense. 34 See infra note 231 and accompanying text. But at present, the evidence of reading’s benefits, and the absence of evidence of harm, receive little (if any) weight in censorship decisions. 35 See infra section I.B. The fact that decisionmakers don’t consider the real effects of censorship on incarcerated people raises the question whether reduced recidivism can be honestly touted as a goal of incarceration or if book bans are merely one cog in a purely punitive machine. The history of withholding education to oppress freed Black people in America lends credence to the latter understanding of prison censorship. 36 See Colette Coleman, How Literacy Became a Powerful Weapon in the Fight to End Slavery, History ( June 17, 2020), [] (last updated July 11, 2023) (noting that “[a]nti-literacy laws were written in response to abolition in the north”).

This Note uses Thompson’s case to unpack the racialized censorship of reading materials in prisons. Its specific focus is texts about the subjugation of Black people in America, which necessarily discuss the history of prisons and imprisonment. Part I offers a critical assessment of the statutes, administrative regulations, and case law that have shaped the law and policy around prison censorship. Part II revisits the Attica uprising, Thompson’s challenge to the present-day censorship of her book by the Attica Correctional Facility, and the politics of racially motivated book bans in prisons. It also connects Thompson’s prison censorship story to the broader attacks on Critical Race Theory (CRT) and the teaching of Black history outside of the prison system. Part III offers a proposal that rebalances the constitutional interests implicated by the current prison censorship regime. It places racial literacy and the knowledge access rights of incarcerated people at the center of the legal analysis and argues that this issue can only be approached through the eyes of the victims of censorship, not those of its perpetrators. 37 For an elaboration on the victim perspective versus the perpetrator perspective, see generally Alan David Freeman, Legitimizing Racial Discrimination Through Antidiscrimination Law: A Critical Review of Supreme Court Doctrine, 62 Minn. L. Rev. 1049 (1978).