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Victim-notification policy renews debate over prisoner interviews with the news media

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ELG Photo Community members and inmates break into workshops during the ELG’s Peace Initiative Symposium in December 2010. Larry Bratt…

ELG Photo

Community members and inmates break into workshops during the ELG’s Peace Initiative Symposium in December 2010.

Larry Bratt is not ashamed of sharing his story.

Serving two consecutive life sentences for murder at Jessup Correctional Institution in Maryland, Bratt freely admits that he “once was a serious criminal. I did not care for anyone, including myself. I only wanted money and a good time.

“I lived and made decisions impulsively in a multitude of get-rich-quick schemes — most of which were illegal. My crimes provided only momentary gratification and ultimately led to my self-destruction.”

But in prison, Bratt began writing, he said, “as a means to find my voice and what I wanted to do with the rest of my life.” His reflections on the death penalty, prison life, drug and gang violence, the societal pitfalls that induce criminality and various other subjects have appeared in anthologies, The Christian Science Monitor and numerous times in The Washington Post, among other publications.

In fact, it was through Bratt’s publication of a prison newsletter that an award-winning crime-prevention initiative called the Extra Legalese Group Inc. (ELG) and the irony of this story were born: When The (Maryland) Daily Record, a statewide business and legal newspaper, named ELG as a 2011 Innovator of the Year, state Department of Public Safety and Correctional Services officials barred Bratt, who has more than 350 published bylines, and three fellow members from being photographed or interviewed for an article about the organization. Officials allowed only two of the group’s six members to be featured.

The decision — based largely, if not wholly, on a policy that allows the victims of inmates’ crimes to object to their appearance in the media — has led to a legal challenge that pits the prisoners’ First Amendment rights against corrections officials’ discretion to implement procedures to maintain safety and order in the facilities.

Prisoners and the press

Although inmates do not lose all their First Amendment rights, prisons may place some limits on their speech in the interests of prison administration and security. Similarly, the U.S. Supreme Court — in Pell v. Procunier and Saxbe v. The Washington Post Co., a pair of cases decided in 1974 — has upheld restrictions on journalists’ access based on prison officials’ arguments that media attention allowed some prisoners to gain “a disproportionate degree of notoriety and influence among their fellow inmates” and that such notoriety engendered “hostility and resentment among inmates who were refused interview privileges.” Journalists, the Court held, have “no constitutional right of access to prisons or their inmates beyond that afforded the general public.”

More recently, the majority of a federal appellate court relied heavily on the Supreme Court’s rulings that the public and media have only a limited right of access to the prison system to uphold a regulation barring federal prisoners on death row from meeting with reporters. The majority of the U.S. Court of Appeals in Chicago (7th Cir.) said in 2009 in Hammer v. Ashcroft that only a “rational basis” was required to justify the regulation and quoted Pell and Saxbe in asserting that “a no-interview policy is ‘reasonably related to legitimate security interests.’”

The inmate contended that the rule was based on content discrimination, which is prohibited by the First Amendment, but the court held that even if the motive behind the no-interview rule was suspect, that did not spoil its reasonable connection to legitimate security purposes.

The majority in Hammer set a low bar for determining when an infringement on a prisoner’s First Amendment rights is justified, over the objections of several dissenting judges. One, for example, argued that the rule at issue did not meet the standard the Supreme Court established in another of its prison-regulation cases, Turner v. Safley. Decided in 1987, Safley held that a rule infringing a prisoner’s constitutional rights must be “reasonably related to legitimate penological objectives.”

As Hammer demonstrates, prisoners’ rights to talk to the media can be severely restricted if a regulation is implemented to further a legitimate safety or security interest, and courts are highly deferential to prisons in determining how rules serve those interests.

Maryland’s policy

The state Department of Public Safety and Correctional Services’ media relations policy is set forth in Title 12 of the Code of Maryland Regulations, the official compilation of all administrative regulations issued by agencies statewide.

The regulation states that “a representative of the media may visit a correctional facility and an inmate confined there for the purpose of conducting a recorded interview only with prior approval of the warden. . . . An inmate may have a photograph taken, be filmed, or otherwise be interviewed only if the inmate agrees in writing and has the prior approval of the warden.” A victim’s wish regarding an inmate’s appearance in the media is not mentioned in the regulation.

The victim notification policy is based on a directive issued by the agency’s secretary, or highest-ranking official, that the department, “when communicating with media representatives, shall be sensitive to the concerns of crime victims and shall respect and protect their legal rights.”

Both the directive and policy reflect the Maryland constitutional mandate that state officials treat crime victims with “dignity, respect, and sensitivity during all phases of the criminal justice process,” said Russell Butler, executive director of the Maryland Crime Victims’ Resource Center. Some victims become very upset and feel “revictimized” by criminals’ appearance in the media, he said.

According to the policy, the public information officer, upon receiving a media request, must forward it to a victim services coordinator or department supervisor, who “shall attempt to notify [those] victim(s) [who have submitted a crime victim notification request form to the state’s attorney’s office in the jurisdiction where the crime occurred] about the request.”

The policy is not authorized in the Regulations Code and seemingly appears only in a public information manual published by the agency. Specific procedures for implementing the policy apparently do not appear anywhere in writing, but prison officials have interpreted and applied it in the following manner:   If the timeframe of the media request does not allow for victim notification — as is often the case for deadline-driven media organizations — the inmate is not approved for a media appearance. If a victim previously has been contacted and does not wish for the inmate to appear in the media, repeated attempts generally are not made. The policy pertains to formal requests from news organizations to personally interview, photograph or film inmates, as well as agency-hosted media events to highlight a department program, initiative or event. It does not apply when members of the news media contact inmates directly or vice versa.    A victim’s wish is only one factor in deciding whether an inmate may appear in the media. Officials also consider an inmate’s behavioral history in the prison system, as well as his or her criminal history and general demeanor. 

Rick Binetti, the department’s communications director, said that the victim notification policy has been in effect for at least five years and applies to all inmates statewide. Although several factors are considered when evaluating a media request, “victims’ interests are pretty heavily weighed,” he said.

“We want to be sensitive to all the parties involved, especially victims; and not only the victims of these crimes but the victims of crime in general,” Binetti said. “While [information from an inmate interview] may be an interesting story, it could seem insensitive to a lot of people for obvious reasons.”

In the case of The Daily Record’s request to interview and photograph the six ELG members, their criminal history, namely the fact that all are serving long-term or life sentences for violent crimes likely played a large role in the department’s decision, Binetti said.

But advocates for prisoners generally and the ELG members specifically fear that victims’ wishes act not as one consideration among many but rather as an all-out veto of an inmate’s ability to exercise his or her First Amendment right of free speech.

Frank Dunbaugh, executive director of the Maryland Justice Policy Institute, Inc. and a member of the ELG Community Support Coalition, cites his communications with prison officials as strong evidence of this assertion. For example, in response to a September 2011 e-mail message Dunbaugh sent several officials, inquiring about the rationale for the decision to exclude the four ELG members from the article, John Michael Stouffer, then commissioner of the department’s correction division, wrote, “DOC policy regarding the fair treatment for the victims of our incarcerated criminals was followed.” Other factors besides the victims’ wishes were not mentioned nor seemingly considered, Dunbaugh said.

“What we can do for crime victims is good, and that’s wonderful, but it can’t be at the expense of muzzling these men and women,” said Val Hymes, coordinator of the Prison Ministry Task Force of the Episcopal Diocese of Maryland and another ELG Community Support Coalition member.

The efforts of Extra Legalese Group Inc.

ELG was formed in November 2007, when Jessup inmates Robert Morgan, Rashid Salih (whose legal name is Russell Bacon), Ronald Ellis and Bratt, who published a newsletter at the correctional facility in which he formerly was housed, decided to operate one at Jessup to provide legal information to the inmate population. Vincent Greco and Dwight Davis-Bey joined the group later.

Each ELG member has different talents and abilities and is involved in various other prison activities, but all six “are leaders who have worked through decades of confinement to pioneer activities for prisoners to elevate their thinking from criminality to citizenship,” Morgan wrote in a letter, responding to several questions posed to him and the other ELG members in separate letters.

Although ELG sponsors several programs within Jessup — the group’s original members set up a literacy lab to help low-level readers within two months of its formation — ELG’s efforts have culminated in “the desire to find solutions to the sad reality of violence and victimization in our communities,” according to Greco’s description of the group’s goal.

Through legal awareness seminars that bring community leaders and inmates together, the organization developed a coalition of supporters, the most unlikely of whom inspired an initiative that earned ELG its Innovator of the Year title — an annual award designed to honor Maryland businesses and individuals that “have had a positive effect and tremendous impact” in the state, according to The Daily Record’s website.

ELG’s Peace Initiative aims to prevent crime both in the prison and on the street by uniting gang members, at-risk youth, community and religious leaders and inmates to discuss how to stem violence “where it is most likely to transpire and replicate: amongst gangs and prisoners who have engaged in violent crime and who, unfortunately, are emulated by the youth,” Morgan wrote. It is a direct result, he said, of the group’s interactions with Jenny Adkins, whose 14-year-old son was murdered by suspected gang members as he rode his bicycle in May 2009.

“What’s going on in today’s world isn’t working. Bullying and gang violence are plaguing the country,” said Adkins, a member of the ELG Community Support Coalition. “But what [ELG has] come up with is amazing, and it’s something that can save a lot of kids.

“These kids see these prisoners, and they look up to them because they want to be bad and tough and be in a gang, but if these people are willing to help us stop gang violence [by sharing their experiences] so their kids and grandkids are safe, why don’t we let their voices be heard? If they have a message that can save a life, what’s the harm?”

ELG members contend that prisoners can meaningfully contribute to the conversation about crime reduction. But application of the victim notification policy to bar the contributions of all ELG members from being publicized emphasizes inmates’ past wrongs and undercuts the positive effects of their rehabilitative actions, particularly among those individuals most likely to absorb the message and opt for a different way of life, the group members said.

“The efforts to stop any youth from coming into these prisons should be given a chance. . . . The efforts to provide legal awareness of consequences of criminal and gang behavior [should be given a chance],” Salih wrote in his letter.

For that reason, Salih, Bratt, Greco and Morgan decided to challenge their exclusion from the article. After exhausting their appellate remedies with the prison warden and within the agency, the inmates took their case in March to a Maryland trial court, arguing that the victim notification policy not only infringes their First Amendment rights but also is improperly applied as a matter of administrative law because it is not authorized in the Code of Maryland Regulations. The inmates also are currently negotiating with prison officials to allow a filmmaker to interview them at Jessup and share their message through his documentary.

Oral arguments in the case challenging the four ELG members’ exclusion from The Daily Record article were held in early November, and a ruling is pending. The Reporters Committee for Freedom of the Press submitted a friend-of-the-court brief in support of the inmates. But journalists concerned about their ability to cover important events that occur behind bars or that involve prison inmates as newsmakers are not the only ones advocating for less restrictive policies governing prisoners’ rights to speak out.

As Adkins explained the rationale for her support, “if one of the six kids who killed my son were sentenced to life in prison for killing him, you better believe that if he were trying to create a peace initiative to save other kids from what they did, I’d be more than happy with it.”