The U.S. Federal Bureau of Prisons in 2015 finalized a rule prohibiting inmate “possession of smoking apparatus and tobacco in any form.” Nine years earlier, the Bureau had discontinued tobacco sales at prison commissaries.
Announcing the final rule, Bureau officials discounted the issue of black market activity, saying that the agency’s staff was already trained to intercept contraband, so the addition of tobacco involved zero “additional burden.” They promised to increase searches of Bureau employees to assure that they don’t become contraband sources, and to impose “more severe inmate sanctions for violations” to deter “possession of tobacco products.”
Such measures are destined to fail, as the Mississippi Department of Corrections discovered. Three years ago, that agency abandoned its tobacco ban (here), reporting that prohibition had created an underground market that saw inmates paying “as much as $500 a pound” for cigarette tobacco. The new policy, the commissioner said, “will save [them] money and the state will make money,” and, “By selling [cigarettes], we are breaking the contraband tobacco trade, designating smoking areas outside, clearing the air inside for the majority of inmates who don’t smoke, reducing inmate contraband violations, and recouping for taxpayers some of the dollars it takes to run prisons.”
The Federal Bureau of Prisons wrongly claimed that its rule would not affect prisoners with mental illness, citing a 2002 review that it said found, “It was no more difficult for the mentally ill to quit smoking than it was for someone with no mental disorder.” To the contrary, the authors of that study acknowledged, in a gross understatement, that “quit rates of psychiatric populations may be lower than those of nonpsychiatric populations.” There is overwhelming evidence that people with serious psychological disorders smoke more and have great difficulty quitting (here, here, here, here, and here).
Clearly, prison bans of tobacco products ignore both science and economics, but the Bureau’s prohibition, as well as countless local and state prison tobacco bans, would also violate international humanitarian standards if the bans were applied to prisoners of war.
According to Army Lt. Colonel Frank Rosenblatt (Ret), military law expert and Assistant Professor at the Mississippi College School of Law, the Third Geneva Convention of 1949 is an international treaty regarding the treatment of prisoners of war, and it was ratified by nearly every nation, including the United States. Here's what it says about tobacco:
“Canteens shall be installed in all camps, where prisoners of war may procure foodstuffs, soap and tobacco and ordinary articles in daily use. The tariff shall never be in excess of local market prices.”
If enemy combatants are entitled to tobacco as an element of humane treatment, why shouldn't the same standard apply to incarcerated Americans?
A second aspect to the Bureau’s prohibition also violates human rights. The Bureau’s rule banned snuff and chewing tobacco on the grounds that they “are also harmful to health in the same way that ‘lighted’ tobacco products are.” (emphasis added) Not only was this proven false 30 years ago (here and here), but eminent tobacco researcher Lynn Kozlowski demonstrated two decades ago that “no safe tobacco product” themes widely promoted by anti-tobacco extremists “are so uninformative that they constitute a violation of [a fundamental] right to health relevant information on tobacco.”
The sweeping and pervasive prohibition of all tobacco products across federal, state and local penal institutions violates international humanitarian standards and the rights of 1.8 million incarcerated Americans.
