Amicus Curiae Brief — Hammer v. Ashcroft

Supreme Court, U.S.

FILED

NOV 25 2609

OFFICE OF THE CLEAK

No. 09-504

IN THE

Supreme Court of the Anited States

DAVID PAUL HAMMER, PETITIONER,

VU.

JOHN D. ASHCROFT, ET AL.

ON PETITICN FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

BRIEF AMICI CURIAE OF THE JOHN HOWARD

ASSOCIATION OF ILLINOIS, THE NATIONAL POLICE

ACCOUNTABILITY PROJECT AND THE UPTOWN

PEOPLE’S LAW CENTER

IN SUPPORT OF PETITIONER

Shaena Fazal

Counsel of Record

John Howard Association

of Illinois

300 W. Adams, Suite 423

Chicago, IL 60606

(312)782-1901

1

Table of Contents

PePbeNRE OE AIR os cierssresxccserenaeasesmneeeeee 1

Summary Of ATWUMENL .......00ccccvecneseoosevssecsessccsesavarsces 3

PPT iki dnctesrnssrsesrmneminneemaeeeeeeeee 5

I. Prisoners’ access to media is essential to

uncovering instances of prisoner’ abuse,

mistreatment and other miscarriages of justice.5

II. A national, bi-partisan commission charged

with studying safety and abuse in America’s

prisons finds press access to prisoners a key

recommendation for preventing prisoner abuse

and enhancing prison safety...............0....0..0.0.- 10

Ill. The current policy expressly suppresses

speech based on anticipated offensive content,

and is over inclusive. The policy and the decision

below also assume that the prisoners who sit on

the federal death row are both the most

“incorrigible” prisoners and are most likely to

espouse statements through the press that

glorify their criminal status. .................c0ccc0ee00s 12

IV. The current policy cuts off valuable

communication that can be used to inform

people invested in justice with information

about why people commit certain crimes and

what, if anything, works to rehabilitate people.

Crime PrOVOIIh. 00. cicscicscsscmceneeeeeeee 14

Conclusion ......... scibecdéslisendeweunewiaessedca ee 16

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Table of Cited Authorities

CASES

Turner v. Safely, 482 U.S. 78 (1987)........00006. passim

Saxbe v. Washington Post Co., 417 U.S. 843 (1974)..6

Pell vy. Procunier, 417 U.S. 817 (1974)................008. 6

Procunier v. Martinez, 416 U.S. 396 (1974)........... 13

NEWS ARTICLES

Loretta Tofani, Terror Behind Bars: Most Victims of

the Sexual Attacks are Legally Innocent, THE

WASHINGTON POST, Sept. 26, 1982..............ceceeceeees 5

Loretta Tofani, Jmproved Conditions Reduce

Assaults in P.G. Jail, THE WASHINGTON Post, Dec.

Tee ie. idivecsedavesecsoncvdsiveboensseaveses 5

Loretta Tofani and Tom Vesey, Seven are Indicted in

Sexual Assaults at Prince George’s Jail, THE

WASHINGTON POST, Jan. 14, 1983............ceceeseesceeee 5

Ken Armstrong and Steve Mills, The Failure of the

Death Penalty in Illinois, November 14-18, 2009,

EN recooesty Oe

Gary Marx, /nmate Death Triggers Reform, THE

CHICAGO TRIBUNE, August 28, 2009...................065. 5

Gary Fields, Terminally Ill Raises Tough Questions,

THE WALL STREET JOURNAL, September 29, 2005.....7

ill

Jodi Wilgoren, Panel in Illinois Seeks to Reform

Death Sentence, THE NEW YORK TIMES, April 15,

Dena Potter, Silent DC Sniper Mastermind

Muhammad Executed, THE CHARLOTTE OBSERVER,

PII Se. ic nn détnsdeccncscassscccseueucceceveceuenn 15

OTHER SOURCES

The Department of Justice’s Efforts to Prevent Staff

Sexual Abuse of Federal Inmates, September 2009,

Report Number I-2009-004, at page 1

http://www.justice.gov/oig/reports/plus/e0904.pdf.....9

John J. Gibbons and Nicholas de B. Katzenbach,

Confronting Confinement: A Report of the

Commission on Safety and Abuse in America’s

Prisons, June 2006 (available at

WWW.DPIriSONCOMMISSION.OF)............ccccccccecseseeseeeeeees 10

fra J. Silverman, Corrections, a Comprehensive

View, Second Edition, 2001 ............ccccccscccscscecesees 13

1

Interest of Amici)

The John Howard Association of Illinois

The John Howard Association of Illinois has an over

100-year history of monitoring prisons in Illinois,

advocating for the fair and effective treatment of

prisoners and for sentencing reform that serves the

dual purposes of punishment and rehabilitation.

This case concerns an issue of interest to our

organization and the other amuci as it addresses a

prisoner’s ability to inform the public, policymakers

and corrections official of prison abuses and valuable

information helpful in implementing better

corrections and sentencing policy, and potentially

inform us of ways to prevent crime from occurring in

the future.

The National Police Accountability Project

The National Police Accountability Project (NPAP)

was founded in 1999 by members of the National

Lawyers Guild (NLG) to combat misconduct by

police officers, prison guards and other law

enforcement officers. The project presently has more

! Pursuant to Supreme Court Rule 37, counsel for the amicus

curiae declares that she has authored this brief in total with no

assistance from the parties; that no _ individuals’ or

organizations other than the amici made a monetary

contribution to the preparation and submission of this brief;

that counsel for all parties were given timely notice of the

intent to file this brief; and that written consent of all parties

to the filing of the brief amicus curiae has been filed with the

Clerk.

2

than four hundred attorney members throughout the

United States. NPAP provides training and support

for attorneys and other legal workers, public

education and information on issues related to

misconduct and accountability, and resources for

non-profit organizations and community groups

involved with victims of law enforcement

misconduct. NPAP also supports legislative efforts

aimed at increasing accountability, and appears as

amicus curlae in cases, such as this one, which

present issues of particular importance for lawyers

who represent plaintiffs in law enforcement

misconduct actions.

The Uptown People’s Law Center

The Uptown People’s Law Center (““UPLC”) is a not-

for-profit legal services center serving poor and

working people in Chicago, Illinois. In addition to its

legal work for community residents, UPLC

represents prisoners in challenges to prison

conditions, the parole system, and a variety of other

matters. UPLC receives over 5,000 requests for

representation every year, and has one of the largest

dockets of prison cases in Illinois. UPLC files cases,

and provides advice to prisoners litigating their own

cases, in both federal and state courts. UPLC has a

vital interest in ensuring that prisoners retain

access to the press to expose the unlawful conduct of

prison officials. UPLC has regularly challenged

restrictions on prisoners' communications with those

outside prison, including the press.

3

Summary of Argument

Prisoners lose myriad rights when they are

incarcerated. But they don’t lose all of them. They

should not lose the right to talk to the press simply

because a government official has an objection to the

content of the prisoner’s speech, and has a desire to

suppress the message the prisoner wishes to convey.

Yet, the decision below makes it impossible for

reporters to conduct face-to-face interviews with

federal death row inmates simply because of the

mere potential that the prisoner may say something

the government finds offensive. It also forbids

federal death row prisoners from communicating to

the media any information about other prisoners.

This is the epitome of censorship on free speech

which impinges on a prisoner’s first amendment

rights. At best, the policy in question, and the

decision below are overly broad and restrict not only

potentially harmful speech, but also potentially

helpful speech. At worst, the policy and decision

below unconstitutionally muzzle prisoners on the

basis of one condemned terrorist’s actions. It is yet

another example of an over inclusive government

policy based upon the worst case.

This restriction severely curtails the media

from being able to investigate abuses or miscarriages

of justice on death row. It also inhibits transparency

into a billion dollar taxpayer expenditure. The policy

and decision below ignore the recommendation of the

national Commission on Safety and Abuse in

America’s prisons which recommends that press

4

access be allowed in prisons specifically for the

purposes of transparency and oversight.

Finally, the policy and opinion below assume

that all prisoners on the federal death row are

incorrigible, or likely to say things the government

finds offensive. Muzzling free speech because the

speech could be unfavorable limits the possibilities

for prisoners to contribute useful information to the

public, victims, law enforcement or policymakers.

The rationale for limiting the speech is not

based on a legitimate penological interest, but rather

on an opinion that the language could potentially be

offensive. This is not constitutionally permissible.

For these reasons, amici respectfully request that

this Court grant David Hammer’s Petition for

Certiorari.

5

Argument

I, Prisoners’ access to media is essential to

uncovering instances of prisoner abuse,

mistreatment and other miscarriages of

justice.

Prisoner access to media is a_ critical

component of ensuring prison safety and revealing

prison and prisoner abuses, poor treatment in prison

and miscarriages of justice. Some of the most

notorious prison abuses have come to light because

government officials permitted reporters to visit and

interview prisoners at institutions?. Indeed, many

positive prison reform initiatives result from news

reports about prison abuses?.

It is well-settled that prisoners may lose some

of their constitutional rights simply by virtue of their

imprisonment. Turner v. Safely, 482 U.S. 78, 89

(1987). However, this Court has held that any prison

rule that restricts a prisoner’s constitutional rights

must be “reasonably related to legitimate penological

interests.” Jd. at 84-85. The policy at issue in this

case prohibits federal death row prisoners from

> Loretta ‘Tofani, Terror Behind Bars: Most Victims of the

Sexual Attacks are Legally Innocent, THE WASHINGTON POST,

Sept. 26, 1982; Loretta Tofanmi, /mproved Conditions Reduce

Assaults in P.G. Jail, THE WASHINGTON POsT, Dec. 31, 1982:

Loretta Tofani and Tom Vesey, Seven are Indicted in Sexual

Assaults at Prince George's Jail, 'THE WASHINGTON POST, Jan.

14, 1983.

3 Ken Armstrong and Steve Mills, The Failure of the Death

Penalty in Illinois, November 14-18, 2009, THE CHICAGO

TRIBsNE; Gary Marx, /nmate Death Triggers Reform, THE

CHICAGO TRIBUNE, August 28, 2009.

6

having face-to-face interviews with the press and

from communicating to the press, in writing, in

person or on the phone, any information about

another inmate. The motivation for the policy is to

mute free speech the government might find

offensive. This is an unconstitutional abridgement of

inmates’ First Amendment rights.

Two issues are of concern. The first is the

policy that forbids prisoners from talking about any

other prisoners to a member of the press. It is true

that this Court has in the past upheld restrictions on

an inmate’s ability to communicate with the media.

Saxbe v. Washington Post Co., 417 U.S. 843 (1974),

Pell v. Procunier, 417 U.S. 817 (1974). But in those

instances, other, alternative means of

communicating with the media were available to the

prisoners.

Here, the rule forbidding prisoners to talk to

the press about another inmate provides no

uncensored way for prisoners to convey information

to the press. As Judge Easterbrook noted below, “ [a]

system of rules that permitted prison administrators

to conceal beatings of starvation of prisoners,

violations of statutes and regulations and other

misconduct would be intolerable.” (See App. A 13a)4

Yet, in this case, the rules create exactly that

situation for federal death-row inmates.

Although Judge Easterbrook stated below that

“as far we can tell, this rule applies to interviews (in

4 All citations ending in “a” are to the Appendix filed by

Petitioner.

7

person or by telephone) but not to correspondence,”

Judges Rovner and Wood note in their separate

dissents, that the government conceded that “death-

row inmates are not allowed — through any method

of communication to discuss other inmates with

members of the media.” (See App., 13a, 19a-20a)

Thus, the current policy creates exactly the

“intolerable” system of rules Judge Easterbrook

described. Inmates have no way of communicating

anything about another inmate, even allegations of

prison abuse, to the media.

The second issue of concern is the policy

prohibiting face-to-face interviews with federal death

row prisoners and the press. Face-to-face interviews

with media provide reporters with an opportunity to

observe a prisoner who may allege an injury or

deficiency in medical care and also enable reporters

to develop relationships where they can better

determine a prisoner’s credibility.

In 2005, for example, Wall Street Journal

Reporter Gary Fields, visited Gerald Johnson, a

terminally ill prisoner at the Menard Correctional

Center in Illinois for a story about the growing

population of terminally ill prisoners. He opened the

story by describing what he saw when he visited Mr.

Johnson, stating:

Gerald Johnson rests on a wooden desk that

he built when he was stronger. His piercing

eyes -- the color of his prison-issue blue shirt --

are one of the few reminders of the young

criminal incarcerated in 1977 for participating

in the murder of a prison guard. His cheeks

8

are sunken and Mr. Johnson's bald head gives

his 128-pound frame a_— gnomer-like

appearance. White gauze, spotted with blood,

is taped to his forearm where an intravenous

tube delivers chemicals to fight the cancer in

his throat.” Gary Fields, Terminally I/] Raises

Tough Questions, THE WALL STREET JOURNAL,

September 29, 2005.

This reporter was able to convey a much more

accurate description of the prisoner and his medical

condition than he would have if he and Mr. Johnson

had simply corresponded through the mail or the

telephone.

And in 1999, the Chicago Tribune published

an investigative series about how the death penalty

was administered in Illinois’. The _ reporters

corresponded with and visited with several

condemned inmates, and uncovered stories of

horrific police and _ prosecutorial misconduct

resulting in several wrongful convictions. The series

ultimately led to a statewide moratorium on

executions and 17 exonerations. The state

legislature responded by enacting meaningful

reforms®,

The face-to-face visit is also important for

prisoners who may find it difficult to talk about any

abuse they suffer in prison. Earlier this year, the

> Ken Armstrong and Steve Mills, The Failure of the Death

Penalty in Illinois, THE CHICAGO TRIBUNE, November 14 — 18,

2009.

6 Jodi Wilgoren, Pane/ in Illinois Seeks to Reform Death

Sentence, THE NEW YORK TIMES, Apri! 15, 2002

9

Department of Justice Office of the Inspector

General issued a report on sexual abuse in prisons’.

Like many states, the Federal government

recognizes in cases of custodial sexual misconduct,

“consent by a prisoner is never a legal defense

because of the inherently unequal positions of

prisoners and correctional and law enforcement staff

who control many aspects of prisoners’ lives.” The

Department of Justice’s Efforts to Prevent Staff

Sexual Abuse of Federal Inmates, September 2009,

Report Number I-2009-004, at page 1.

Thus, the inherent relationship between

prisoners and officers or other prison staff is one

which makes it difficult for prisoners, who are by

definition subordinate, to communicate abuses to

others. It is even less likely that a prisoner would

communicate evidence or information of abuse

through the mail subject to review by the alleged

abusers, or through a phone call monitored by the

alleged abusers. It is only in a_ face-to-face

communication where the fear of someone

intercepting the message is alleviated.

In addition, face-to-face meetings engender

trust and enable reporters to better determine

credibility by observing eye contact, listening for

intonation and observing body language. Trust is

particularly important in situations of abuse

generally, but even more so in situations of abuse

7 The Department of Justice’s Efforts to Prevent Staff Sexual

Abuse of Federal Inmates, September 2009 Report Number I:

2009-004, available at

http://www.justice.gov/oig/reports/plus/e0904.pdf

10

where the abuser remains in control of everything,

including communication.

Ul. A national, bi-partisan commission charged

with studying safety and abuse in America’s

prisons finds press access to prisoners a key

recommendation for preventing prisoner

abuse and enhancing prison safety.

In 2006, a bi-partisan group of judges,

lawyers, policymakers, law enforcement officials,

professionals, and advocates created the National

Commission on Safety and Abuse in America’s

Prisons (The Commission)§. The Commission’s sole

task was to investigate, over the course of a year,

and through public hearings, safety and abuse in

American prisons. It held four hearings in different

parts of the nation, one of which focused exclusively

on the issues of accountability, oversight and

transparency.

The Commission’s report made several

findings. Key amongst them was the need for

transparency, oversight and accountability in the

prisons. Specifically, the report recommends that

governments should “strive for transparency” and

“felnsure media access to facilities, to prisoners, and

to correctional data.” Confronting Confinement: A

Report on Safety and Abuse in America’s Prisons,

p.16. In support, the Commissioners write that,

8 John J. Gibbons and Nicholas de B. Katzenbach, Confronting

Confinement: A Report of the Commission on Safety and Abuse

in America’s Prisons, June 2006 (available at

www.prisoncommission.org)

11

“,.-every prison and jail should allow the press to do

its job.” Jd. The current BOP policy instituted by

then-Attorney General Ashcroft ignores this

recommendation. Instead, it expressly inhibits a

prisoner's ability to report abuse of prisoners by

other prisoners or officers.

In fact, the current policy makes it impossible

for a member of the press to observe a federal death

row prisoner at all. Personal observation is critical to

describing circumstances and conveying a story to

the public. It is also essential to describing injuries.

It is, after all, one thing to receive a letter from a

prisoner complaining of a beating. It is quite another

to actually observe whether any injuries exist and

document what they look like.

Furthermore, incarceration takes a toll on

inmate relationships with family and friends who

could otherwise be advocates in instances of abuse,

poor treatment or miscarriages of justice. In some

instances, prisoners do not have any friends and

family on whom to rely.

Because of the remoteness of prisons, families

and friends of prisoners, especially those with long

or terminal sentences, are less likely to visit. The

remoteness is only exacerbated by the fact that the

vast majority of prisoners and their families are

impoverished, and thus unlikely to keep in touch via

the telephone. It is axiomatic that visits from family

and friends, and on occasion, attorneys and

journalists, actually contribute to a safer prison

environment. Thus, the lack of social interaction for

12

prisoners in remote locations enhances the need for

transparency and oversight.

Finally, a great percentage of prisoners come

to prison with little or no education. They may thus

be inhibited from communicating effectively any

complaints of abuse in writing, and perhaps even

through a 15-minute phone conversation.

Ill. The current policy expressly suppresses

speech based on anticipated offensive content,

and is over inclusive. The policy and the

decision below also assume that the prisoners

who sit on the federal death row are both the

most “incorrigible” prisoners and are most

likely to espouse statements through the press

that glorify their criminal status.

In the decision below, judge Easterbrook

states that “lilt is easier to justify limiting press

contacts at the few places holding the most

incorrigible prisoners (USP Florence and the Special

Confinement Unit at Terra Haute) than at ali

medium- and maximum<security prisons.” (See App.,

5a) Yet, this assumption is flawed. Prisoners housed

on Federal Death Row are at the Special

Confinement Unit because that is where the BOP

has designated the condemned unit will be. They are

housed there regardless of their behavior. The fact

that they have committed crimes for which they

were sentenced to death is separate from an

assessment of their prison behavioral record. Mere

placement at the SCU because one is a death row

inmate is not indicative of the security threat posed

by any particular inmate. Corrections experts agree

13

that some prisoners who have committed the most

egregious crimes can be the most well-behaved

prisoners, and vice versa’.

Secondly, the policy is over inclusive, and

assumes that Timothy McVeigh’s behavior, which

was the impetus for then-Attorney General

Ashcroft’s policy announcement, is indicative of all

death row prisoners’ behavior. This is not the case.

As is noted in the decision below, Hammer wishes to

have access to the media to discuss prison conditions

and other issues, but not to promote murder.

But even if it was the case that death row

prisoners wanted to say something the government

deems offensive, instituting a policy that would

prohibit them from saying something on the basis

that it would be offensive, is not constitutional. Our

First Amendment is the hallmark of our freedom

and.’guarantees even those who have ugly things to

say the right to say them. Prison administrators can

only curtail free speech if the motivation behind it is

reasonably related to a_ legitimate penological

interest. Jurner, 482 U.S. at 84-85. As Judge Rovner

stated in the decision below, “{s]luppressing speech

because government officials find the content

offensive is not a legitimate penological interest.”

(See App. 15a) This court has wisely given great

deference to prison officials, who possess a unique

expertise in how to handle prisoners and maintain

safe and secure prisons. Procunier v. Martinez, 416

U.S. 396, 405-406 (1974); Turner, 482 U.S. at 84-85.

9 [ra J. Silverman, Corrections, a Comprehensive View, Second

Edition, 2001, p. 147.

14

In this case, however, the right the government

seeks to abridge is based on content, a rationale this

Court should not accept.

IV. The current policy cuts off valuable

communication that can be used to inform

people invested in justice with information

about why people commit certain crimes and

what, if anything, works to rehabilitate

people. Crime prevention.

The reason behind the ban in the current

policy is that terrorists or serial killers should not be

allowed a podium in which to express their beliefs,

beliefs many of us may find offensive. This Court’s

jurisprudence reveals a _ strong adherence to

knocking down government censorship of free speech

based solely on content. In this case, the censorship

is even more egregious because it could prevent

prisoners from articulating serious prison abuses.

However, another important policy reason to find the

ban unconstitutional should inform the court.

While it may be true that in some cases,

prisoners enjoy celebrity-style media attention, it is

equally true that in other cases, prisoners may have

something constructive to offer. They may have

something to offer victims, social scientists and law

enforcement officials that help inform us about what

leads one to commit heinous, atrocious acts. They

may provide some semblance of closure for victims

through the media, in a way they are not otherwise

able to. For example, a prisoner might express to a

reporter that he or she is remorseful and express

15

some explanation for his actions but be prohibited

from directly contacting the victim or victim’s family.

Victims families have expressed a desire to

hear from those who cause them and their families

harm. In November 2009, John Allen Muhammad,

better known as the DC Sniper, was executed

without ever saying a word to the media about his

crimes. He did not seek out media interviews, and he

said nothing immediately preceding his execution.

Some of the victims’ family members noted their

disappointment that Mr. Muhammad died quietly,

lamenting that he never took _ responsibility,

explained why he killed or showed remorse. Dena

Potter, Silent DC Sniper Mastermind Muhammad

Executed, THE CHARLOTTE OBSERVER, November 10,

2009.

Media access to prisoners may also better

inform policymakers and the public about how to

implement more effective laws. Perhaps it is the

public’s best interest to have a_ greater

understanding of why people commit crimes. It is

well-accepted that after time, prisoners go through a

sort of “criminal menopause” in which they mature

and reflect on their actions. They are often helpful in

explaining what lead them to make the choices they

made. By curtailing their ability to speak based upon

a fear that all prisoners may say something a

government official finds offensive limits prisoners

from providing us with helpful information.

16

Conclusion

Prison abuse is a serious issue. Access to the

press can be critical to revealing prison abuses,

miscarriages of justice and other types of

mistreatment of prisoners. The sheer nature of

prisons — banishment to a place out of sight and out

of mind, and_ prioritizing security, make

transparency more difficult. But it is no less

important.

Reporters are in a unique position to ask

prisoners, “why?” They are disinterested advocates

of information. The stories journalists ultimately

produce arm the _ public, policymakers, law

enforcement officials and the judiciary with

information which guides us in administering justice

and informing the public. The ability to physically

observe someone is critical to gauging credibility,

observing features to convey the story better and

provide oversight of the prison environment.

Perhaps most importantly, prisoners should

not be muzzled because the government dislikes

what they may say. Absent a reasonable relation to a

legitimate penological interest, this Court cannot

allow Hammer’s first amendment rights, or those of

other death row inmates, to be abridged because of

the content of their speech.

Therefore, amici respectfully request that the

Court accept review of the decision below.

17

Respectfully submitted,

Shaena M. Fazal

Counsel of Record

The John Howard Association

300 W. Adams St.

Suite 423

Chicago, IL 60606

(312)782-1901

November 25, 2009