Watchdogs vs. watchtowers: Journalists seek access to prisons

Wednesday, August 2, 2000

Hard news about hard time is increasingly hard to come by.

The U.S. criminal justice system — characterized by a “war on
drugs,” three-strike laws, and mandatory minimum sentences — incarcerates
more people per capita than any other country in the world except Russia and
consumes a huge share of the federal budget.

Yet, for journalists, gaining access to prisons is harder than

“Access to prisons is one of the most serious problems for working
journalists,” said Kyle E. Niederpruem, president of the
Society of Professional Journalists.

As the number of people behind bars has increased, so have
restrictions on press access to prisons and prisoners. The First Amendment is
teetering on a fulcrum between journalists’ needs for easier and more open
access and trends in prison policies, politics and privatization that restrict

“One extreme is Hawaii,” said Niederpruem, an assistant city editor at
The Indianapolis Star. “Prison staff and inmates are
prohibited from speaking to journalists ‘off the record’ due to a mistrust of
the media.

“California is the worst,” she added, referring to corrections
policies that keep the press away from high-profile criminals like Charles
Manson and the Menendez brothers. Last year California Gov. Gray Davis
vetoed a bill that would have
overturned the ban on one-on-one interviews. In his veto he stated that the
“First Amendment does not guarantee the press a constitutional right of special

Niederpruem said that state officials are getting away with
restrictive access policies because citizens don’t know what is happening, “and
they don’t know because reporters can’t get access.”

Many states bar journalists except as scheduled visitors during
regular visitor hours. Often, reporters can visit, but not conduct interviews,
because tools of the trade — pen and paper or tape recorders — are
not permitted. And, access often is limited to indirect contact via letters,
telephone or inmates’ attorneys.

SPJ documented the country’s confusing maze of restrictions in a 1998
report, “Access to
Prisons.” “Access varies from one warden to the next, from one prison to
the next, and certainly from one state to the next,” Niederpruem said.

Niederpruem and Charles Davis, director of the Freedom of Information
Center at the University of Missouri School of Journalism, are working to
update the survey and provide the first manual of access policies for each of
the 50 states.

Updating the research was an uphill battle, Niederpruem and Davis
agreed. They said they had a hard time getting access to states’ access
policies for the new report.

“Ironically, two states — Utah and Alabama — even refused
to turn over their policies,” Niederpruem said.

Davis said Colorado complied only after officials received his formal
Freedom of Information request. This was “a typical and depressing DOC
(Department of Corrections) position,” he said.

Little has changed in the two years since the 1998 report, they said.
Some states, like Virginia, have lifted the ban on recording devices —
but only at a few prisons. Other states, like Texas, reserve limited times for
press access. Texas allows reporters to have access on Wednesdays from 2-4

“At least Texas has a media day,” said David Protess, a professor at
Northwestern University’s Medill School of Journalism. Known for having his
students involved in some of his investigations, Protess is currently looking
into Texas inmate Henry Skinner’s claim of wrongful conviction for a triple

His work highlights how press access to America’s prisons is an issue
for both journalists and the public. He believes that if Texas prison officials
hadn’t allowed cameras in, NBC might not have wanted to do a story last June on
Skinner’s case.

“Wednesday in Texas is determining what stories get covered,” he said.

Protess said that one of the reasons he was interested in
investigating the Texas death row inmate — his only out-of-state case
— was “because (Gov. George W.) Bush said he doesn’t have a problem with
wrongful convictions or executions. You are fair game to be scrutinized on this
issue when you say things like that and then run for president.”

Protess argues that the discretionary power given to prison wardens
and state legislators to restrict access limits not only the First Amendment
but also the public’s right to know how its tax dollars are spent. The
significance of the stakes — freedom and incarceration, life and liberty
— are at the heart of the Constitution, he says.

Protess uncovered evidence that exonerated Illinois death row inmate
Anthony Porter on Feb. 5, 1999 — just two days before his scheduled

Co-author of A Promise of Justice: The
Eighteen-Year Fight to Save Four Innocent Men
, Protess once sued
the Illinois Department of Corrections because restrictive policies hindered
his investigation. “There are many aspects to the story that can only be told
meeting the prisoner face-to-face,” he said, referring to the state’s ban on
interviews, “especially if they have a claim to innocence.”

“There is a clear trend limiting access,” Protess said. “This is not
just about free speech, but about the ability to cover stories of public

Access advocates say there is often a big gap between an openness
policy and how it is implemented. “Even if a journalist is allowed in, the
inmate is brought out with two beefy guards,” Davis said.

“How free is communication under those circumstances?” he asked.

Davis also sees a troubling correlation between press access and the
political climate. He says content decisions should be made by editors, but
that governors seem to be deciding what the public should know.

“The brothers Bush have been very secretive,” he said, saying that
lawmakers in both Texas and Florida, governed by George W. Bush and Jeb Bush
respectively, have recently proposed re-evaluating media-access policies.

The explosion of private prisons is another trend that has access
advocates concerned. As the work of corrections and punishment is increasingly
done for profit, private-prison officials are not subject to the Freedom of
Information Act, which authorizes the release of data about prisoners,
including offenses, sentences and institutions of confinement.

Additionally, state governments often do not license these prisons,
inspect or monitor them or require reports about their operating procedures or
prison populations.

“It is inevitable that the First Amendment and private prisons are
going to come into conflict,” Davis said.

Prison privatization began in 1982, and there are now 158 corporate
correctional facilities, including jails, prisons and Immigration and
Naturalization Service detention centers, in 31 states. These facilities have
the capacity to hold more than 125,000 inmates. Last June, the Federal Bureau
of Prisons announced a 10-year contract worth $530 million, the most profitable
to date, to Corrections Corporation of America.

Referring to Corrections Corporation of America and Wackenhut Corp.,
the two companies that control more than 75% of the private-prison market,
Davis said, “You can’t talk to them at all. I have never heard of a reporter
who has gotten any information out of private prisons.”

By banning or restricting the access of the press, public and private
prisons are controlling what the public learns about the nation’s primary form
of social control. Some fear that the system is so entrenched that it may be
beyond the checks and balances of the democratic process.

“Restricted access and lack of scrutiny are dangerous to democracy,”
Davis said.

“People don’t want to hear talk about First Amendment rights of
prisoners,” he added, “but they are even less supportive of First Amendment
rights of journalists.” Still, he said the problem of press access to prisons
is “not a popularity contest,” and he encourages journalists to keep trying to
get in. “We are not going away or giving up on this issue.”

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