Colorado Department of Corrections employees were correct to withhold published articles sent to an inmate about his own case, a federal judge has ruled, because such materials could cause “strife and unrest” in the prison.

The government had argued that holding onto the mail, which included materials suggesting the inmate was innocent, served to prevent conflict among those in the prison.

U.S. District Court Judge R. Brooke Jackson earlier this month agreed with the department’s justification that “the censorship avoided safety and security risks that could have been caused by their release.”

Hal Herbert is serving a lifetime sentence for the 2001 murder of his wife, Carol, in Denver. In 2010, Westword published an article characterizing Herbert’s trial as “rich in incriminating circumstantial evidence but short on motive.” The article suggested a witness at Herbert’s trial, Richard White – who himself pleaded guilty to serial killings of women – may have been involved in Carol Herbert’s death.

An online petition has gathered over 2,600 signatures asking Gov. Jared Polis to help facilitate a new trial for Herbert to remedy his “false conviction for murder.”

In 2018, Herbert received multiple pieces of mail at the prison that staff withheld. There were a total of four documents: two articles, including one from Westword, that raised the possibility of Herbert’s innocence; a list of names and addresses of supposed jurors; and a court opinion about Herbert’s case.

The Department of Corrections told Herbert in rejecting the mail that the documents contained “numerous accusations about another CDOC offender,” meaning White. The department added that the materials posed “a threat to the safety of offenders.”

Although incarcerated persons still have a First Amendment right to receive correspondence, the U.S. Supreme Court has acknowledged prisons may enact regulations on inmate mail that serve legitimate functions.

“If your incoming mail is censored, both you and the sender are entitled to notice. The notice must explain the reasons for the censorship in enough detail to allow you to challenge it,” the American Civil Liberties Union advises incarcerated individuals.

After Herbert complained that prison officials violated his constitutional rights by censoring the mail, the court deemed the individual employees were entitled to qualified immunity, a judicial doctrine that prevents civil suits against government employees unless they violate a clearly-established legal right.

The attorney general’s office argued to the court that in the Department of Corrections’ experience, mail accusing an inmate of criminal activity “can create serious security concerns.” The articles implying White, the admitted serial killer, had also murdered Herbert’s wife were “scurrilous and defamatory.”

Herbert responded in August of last year that, being 78 years old at the time, he posed no threat. Given the existence of newspapers, legal documents and books about crime in the prison library, “an article that contains an alternate theory of a crime should not pose any risk,” he wrote.

Jackson disagreed, and upheld the decision to censor the mail. “The two articles in which another inmate is accused of murdering plaintiff’s late wife, and the juror address letter, have the potential to cause strife and unrest within the prison,” the judge wrote in a March 12 order.

Jackson reasoned that the articles made “unproven accusations” against White, which would prompt other inmates to “react to the accusations, even if he is not in Mr. Hebert’s same facility. It thus stands to reason that the articles could pose a greater facility security risk than standard criminal reporting in daily newspapers or legal documents.”

The judge further justified the censorship by speculating that allies of White might try to retaliate against Herbert. Regarding the alleged list of juror names and addresses, Jackson believed that other inmates, if they learned about the document, might try to obtain similar information and harass jurors.

However, Jackson did note the prison improperly withheld the court opinion pertaining to Herbert’s case, although it may have been an inadvertent mistake.

“The Court nonetheless respectfully suggests to defendants that they abide by their own policies and censor mail on a document-by-document basis going forward,” the judge concluded.

The case is Herbert v. Ruffini et al.