The news media have no special legal right of access to jails and prisons, but some efforts are underway to change that.
From the Summer 2006 issue of The News Media & The Law, page 18.
By Hannah Bergman
When Mary Beth Pfeiffer, a freelance reporter working on a series for The New York Times, asked to visit California’s Pelican Bay Prison, officials said no — she was researcher, not a reporter, they said.
When the head of New Jersey’s prisons left, his acting replacement stopped letting reporters interview inmates.
When the Federal Bureau of Prisons proposed a rule to limit communications of inmates with alleged ties to terrorists, it included a complete ban on media access.
Critics of access restrictions say coverage of correctional institutions is lacking and that there are important stories inside prisons that warrant reporting.
“There are many, many things we need to know about what goes on inside, in order to make effective public policy and to monitor the function of government,” said Peter Sussman, a former San Francisco Chronicle editor and co-author of “Committing Journalism: The Prison Writings of Red Hog.”
A trilogy of Supreme Court decisions in the 1970s gives reporters no special right of access to jails and prisons. The cases — Pell v. Procunier, Saxbe v. Washington Post Co. and Houchins v. KQED — all say that the right of access reporters have to prison facilities is the same as that given to the public generally.
Pell dealt with state prisons, Saxbe with federal prisons and Houchins with county jails. Each type of institution had somewhat different concerns but the result was the same: no access.
“They have a great degree of confidence based on those Supreme Court opinions that they can lock down access at whim,” said Charles Davis, a journalism professor at the University of Missouri-Columbia and co-chairman of the Society of Professional Journalists’ Freedom of Information Committee. “I think almost everyone is afraid to sue them because the precedent is so bad.”
Prison administrators have almost complete discretion when it comes to access. Restrictions vary by state and range from a ban in California on person-to-person interviews with specific inmates to broad access at Florida’s Orange County Jail. (See sidebar, page 19.)
The Society of Professional Journalists’ Covering Prisons project has information about each state’s access policies. With a few significant exceptions, little has changed since the mid-1990s, Davis said.
Locking out reporters
George Hayman, acting head of the New Jersey Department of Corrections, decided in January to prevent reporters from interviewing inmates.
“The last thing he wanted while the department was in transition [was to] to have some sort of incident,” said Matt Schuman, a department spokesman. During the roughly six months the ban was in place, reporters were allowed to interview inmates only if they were on the approved visitor list, and they could not bring with them pens, pencils, notebooks or tape recorders, he said.
“We didn’t want the rules to be different for reporters than they would be for other people,” he said. During the ban, which never was published as an official administrative policy, reporters were encouraged to write to inmates rather than seek in-person interviews.
Hayman reversed himself within 24 hours of The Star-Ledger reporting the restriction June 14. After the news media complained, the department spoke to the governor’s office and agreed to revert to the original practice of allowing interviews at department discretion, Schuman said. Reporters are now allowed to use a pen and paper or other tools, he said.
New Jersey Press Association Executive Director John O’Brien said he did not learn about the ban until the June story, six months after the change.
“I wasn’t aware that they had changed the policy and I don’t think a lot of journalists were either,” O’Brien said. “It’s not something that journalists do everyday, talk to these guys.”
Schuman said his office receives about 20 requests a month for inmate interviews. That number is high in part because surrounding states, including New York, are more restrictive, he said.
California’s state prison system, second in size only to the entire federal Bureau of Prisons, is infamous for its significant problems. Its health care system was put in receivership by a federal judge last year, and earlier this summer, two reports were issued criticizing the prisons system, including one from court-appointed overseer, Robert Sillen, head of the Santa Clara County public health system, whose report criticized the prison health system.
Sussman said if the media had access, things may not have gotten so bad.
In California, reporters are allowed only to interview inmates selected at random. For example, in a story about a GED program, officials can select inmates for interviews but a reporter cannot request an interview with a specific inmate.
In the last decade, the California Legislature repeatedly has passed bills to give reporters more access. The latest version, Senate Bill 1521, sponsored by Sen. Gloria Romero (D-Los Angeles) is pending. But Republican Gov. Arnold Schwarzenegger has vetoed a similar bill twice in two years. Previous governors Pete Wilson, a Republican, and Gray Davis, a Democrat, also vetoed similar legislation.
Sussman said this year may be different because of the recent reports and outrage toward the administration over prison conditions.
Romero spokeswoman Nicole Winger said the bill has “unprecedented support” this year, may win a unanimous vote in the Assembly, and would likely have the two-thirds majority needed to override a veto.
Such a law would help journalists like Pfeiffer, who was denied access to California prisons in 2004 for a book she is writing on the mentally ill and their encounters with the criminal justice system. In response to her written requests, prison spokesman Steven V. Perez replied in an e-mail message to Pfeiffer and a colleague at the Department of Corrections that he had not received her repeated requests.
“More important is that this sounds more like a research project and publication secondary,” Perez wrote. “If I remember correctly, the department is not authorizing any more research projects. Also I do not believe we can allow PSU [Psychiatric Services Unit] inmates to be interviewed in that it violates there [sic] confidentiality. I am very much opposed to this as the proposal stands.”
A federal prison proposal
In April, the federal Bureau of Prisons proposed a rule that would limit media access, along with restricting inmates’ correspondence, telephone calls, and personal visits when the inmate is held in relation to terrorist-related activity.
The provision would apply regardless of whether the inmate has been charged with a crime or convicted. The proposed rule was published in the Federal Register, but has no effective date.
The bureau said the change is justified because, according to the proposed rule, “Communication related to terrorist-related activity can occur in codes which are difficult to detect and extremely time-consuming to interpret.”
The proposal cites two examples of “imprisoned terrorists communicating with their followers regarding future terrorist activity.”
One involved El-Sayyid Nosair, who assassinated Rabbi Meir Kahane in New York in 1990. According to the proposed rule, Nosair “chided his visitors for doing nothing to further the jihad against the oppressors.” The other example involved Sheikh Omar Abdel Rahman, convicted in the 1993 World Trade Center bombing, who “urged his followers to wage jihad to obtain his release. Violent attacks and murders followed.”
The American Civil Liberties Union, in its comments on the proposed rule, criticized the suggested ban on communications with the media.
“For the first time in modern history, the government proposes to completely bar a class of persons from communicating with the news media in any form,” the ACLU wrote.
The ban is also likely to be unconstitutional, the ACLU argued. The Reporters Committee for Freedom of the Press also objected to the rule in written comments.
While it is likely the proposal would affect a small number of the more than 190,000 inmates in the system, there is no way of knowing how many could be affected since the rule provides so much discretion to individual wardens, said David C. Fathi, senior staff counsel at the ACLU.
The rule does not provide for an appeals process if an inmate’s communication is limited.
Not a new problem
While the focus of today’s access restrictions revolves around security concerns, Sussman, in his book, said the restrictions originated as an attempt to suppress “anti-establishment” speech in the 1970s. He argues that the regulations are impermissible under the First Amendment, but courts have continued to allow the restrictions because of security concerns.
Davis, however, said he thinks that access regulations now may be unconstitutional for a different reason. During the 1970s, he says, when the U.S. Supreme Court said reporters were not entitled to face-to-face interviews with inmates, the Court noted several other options available.
In Saxbe, Justice Potter Stewart wrote for the five-member majority that, “[m]embers of the press are accorded substantial access to the federal prisons in order to observe and report the conditions they find there.”
The Court noted a policy allowing reporters to tour prisons and take photographs, interviewing inmates they encounter. Reporters and inmates also were allowed almost unlimited written correspondence that was not censored. Finally, Justice Stewart wrote, “[p]rison officials are available to the press and are required by Policy Statement 1220.1A to ‘give all possible assistance’ to press representatives ‘in providing background and a specific report’ concerning any inmate complaints.”
Since those options are no longer available in many correctional institutions, Davis said reporters could argue prison administrators have gone beyond the limits of the Court’s rulings.
“I would love to have the exact same court . . . look at prison access today,” Davis said. “They would shake their heads and say, ‘Oh, God. We never meant for this to happen. This is out of control.'”
However, he and others acknowledge the current Supreme Court is not likely to see it that way. Instead, Pfeiffer and Margaret Winter, an attorney with the ACLU’s Prison Project, suggest journalists work to get state legislatures on their side.
Openness as a prerequisite to reform
Advocates of prison reform push for more openness at institutions with the hope that problems will be caught sooner. A recent report from a private group, the Commission on Safety and Abuse in America’s Prisons, recommends allowing reporters into prisons.
“An informed public and, indeed, representative government depend on the watchdog role offered by an independent and objective press. The ability of the press to fulfill this role depends in turn on the broadest possible access to correctional facilities, consistent with valid concerns about security,” the commission report said.
Winter, who testified before the commission, agrees that giving the news media access is crucial.
“I think that the single most powerful thing that could happen to transform the worst conditions would be to get the press in there,” she said. “When a reporter with creditability can report on them, even people who in the abstract will talk tough about prisoners deserving what they get . . . when they find out how barbaric conditions really are in some places, they’re horrified and appalled.”
Sussman said the willingness of reporters to accept no for answer at home effects attitudes of reporters and the public toward places like the U.S. detention center at Guantanamo Bay, Cuba.
“As a result we allow things like Guantanamo and the other post-Sept. 11 abuses, which are really an extension of rights that the prison system has been claiming for itself for years,” Sussman said.
“It’s not a big step to say you haven’t got a right to an interview to say they haven’t got a right to know you’re in here. These are incremental steps in root to alien form of government that’s not a democracy,” he said. “It’s not the democracy that we were promised in the Bill of Rights.”