Amicus Curiae Brief — Hammer v. Ashcroft

Supreme Court, U.S.

FILED

NOV 25 2009

No. 09-504 CAFICE OF THE CLERK

Jn The Supreme Court of the Anited States

DAVID PAUL HAMMER,

Petitioner,

V.

JOHN D. ASHCROFT, ET AL.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

BRIEF OF AMICUS CURIAE NATIONAL

LAWYERS GUILD IN SUPPORT OF PETITIONER

PROF. ZACHARY WOLFE*

THE GEORGE WASHINGTON

UNIVERSITY

801 22ND STREET, NW

ROME HALL 557

WASHINGTON, DC 20052

(202) 994-3053

HEIDI BOGHOSIAN

NATIONAL LAWYERS GUILD

132 NASSAU STREET, ROOM 922

NEW YORK, NY 10038

*Counsel of Record

rire

LEGAL PRINTERS LLC, Washington DC e 202-747-2400 e legalprinters.com

TABLE OF CONTENTS

TABI, OF AUTHORS Caled csccovcersssosversnnsnsereeseonersens ll

SUMMARY OF ARGHUBEGIN | ocisssscsessvsscovssiuescsevensssons 1

STATEMENT OF INTEREST OF AMICUS

COEFFI sassosesorssesssnnscennessnivvacdnertacenenanneNeaennananee 2

PAS IEEE © cnn ssensscennisnssissitoessteetienaueneee 3

T, SIP RBIs Re vcintiadsisencacnseeseptsansenee 3

Il. THE GOVERNMENT MAY NOT SHROUD

THE REALITIES OF THE SYSTEM IT

CPE EE EO ve cssaisinsiracnionsncrneceeanslaneneapee eee 5

A. Death Row Interviews Are an Important

Part of a Variety of Discussions "that Are

Deserving of First Amendment Protection ........ 7

B. Media Coverage Increases the Rate of

Exonerations of Innocent Death Row

TORII oo. oicce onavvncdecesktssenseue eee 11

C. The Rules at Issue Effectively Eliminate a

SARSUAT VWOGING ns secsvissssiccssammaraneaee 13

Ill. THESE RULES ARE NOT BASED ON

LEGITIMATE PENOLOGICAL INTERESTS.... 15

CONTIN ov evisinnssctivcesiscceknavecaness sania 18

TABLE OF AUTHORITIES

CASES

Abrams v. United States, 250 U.S. 616 (1919).............. 8

Beard uv. Banks, 548 U.S. 521 (20086) ..................cesecees 16

Cox Broadcasting Corp. v. Cohn, 420 U.S. 469

il cksacsssedesoveseesessosnnvancervevesorecesess 5

Gregg v. Georgia, 482 U.S. 153 (1976).............c eee eceeees 11

Hammer v. Ashcroft, 570 F.3d 798 (7th Cir. 2009) .... 17

Inmates of the Attica Corr. Facility v. Rockefeller, 453

EE ROPE DD... ccncccnccccrccescccscssccvsessevesevesess 3

Neal v. the Michigan Department of Corrections, 232

Mich. App. 730, 592 N.W.2d 370 (Mich. Ct. App.,

ss cocasusvesenessevescneesenartnepessecess 3

New York Times Co. v. Sullivan, 376 U.S. 254

a cccousrdcvnesensacossbecneseseeorese 4,8

Overton v. Bazzetta, 539 U.S. 126 (2008).................4. 16

Pratt v. Attorney General for Jamaica, (1994) 2 A.C. 1

(Privy Council 1993)(Jamaica) ..........ccccceeseseeeesseeserees 6

RAV. v. City of St. Paul, 505 U.S. 377 (1992)........... 17

Regan v. Time, Inc., 468 U.S. 641 (1984)... 17

Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555,

65 L. Ed. 2d 973, 100 S. Ct. 2814 (1980)........0. 5)

ll

Soering v. United Kingdom, App. No. 14038/88, 11 Eur.

ee es Us Sr CE ccesiunersesncocssersecmushimceveuracancenon 6

Terminiello v. Chicago, 337 U.S. 1 (1949)... ee 8

Texas v. Johnson, 491 U.S. 397 (1989) ..................2008 15

Turner 0. Satiay, 488 U.S. TO OGRE) vveviceevetsesescsncerseess 17

U.S. v. Burns, [2001] 1 8.C.R. 283 (Canada)................ 6

Wilson v. Layne, 526 U.S. 603 (1999)............ccc ee eee eens 5

OTHER AUTHORITIES

Amy Smith, Not ‘Waiving’ But Drowning: The

Anatomy of Death Row Syndrome and Volunteering

for Execution, 17 B.U. Pub. Int. L.J. 237 (2008)..... 10

Avi Salzman, Killer's Fate May Rest on New Legal

Concept, N.Y. Times, Feb. 1, 2005, at B6.................. 7

Dennis L. Peck, Book Review, 11 Crim. Just. Rev. 59

COE iin icanseansacenrsenne tian es ee eee 10

Department of Justice, Bureau of Justice Statistics,

http://www.ojp.usdoj.gov/bjs/cp.htm...........:ccccecceee wees 1

Doug Magee, Slow Coming Dark: Interviews on Death

Row (Pilgrim Press, 1980) .........:ccscsccsessssssrsccsesessees 10

Jeremy A. Blumenthal, Law and the Emotions: The

Problems of Affective Forecasting, 80 Ind. L.J. 155

ENED si.asc0ssavenugangaicugasrcotcerstsdsaesaseneeetaaaedaconeeene 10

il

Jeremy Peters, Revisiting Violent Past on Eve of New

Jersey Death Penalty Vote, N.Y. Times, Dec. 10,

BUNT Ansaa vac tiensassiecdunassbacciunkuaracecasatela nantes 9,10

John J. Gibbons and Nicholas de B. Katzenbach,

Confronting Confinement: A Report of the

Commission on Safety and Abuse in America’s

Prisons (Vera Institute of Justice, 2006)................. 14

Jon Whiten, Enabling False Convictions: Exoneration

Coverage Overlooks Media Role, Fairness &

Accuracy in Reporting, November/December

BN cpecccancsnivacsanerne siege atendinecandtn wecudensciameceisntegsoosen 12

Michael L. Radelet, Given That We Know We

Sometimes Convict Innocent People, What, If

Anything, Does That Say About the Death Penalty?:

The Role of The Innocence Argument in

Contemporary Death Penalty Debates, 41 Tex. Tech.

Si MIE covcsessucdecasnduainneintsdsswsareceothseceucdenes 12

Michael L. Radelet, Families, Prisons, and Men with

Death Sentences: The Human Impact of Structured

Uncertainty, 4 J. Fam. Issues 593 (1983)................ 10

Mirna E. Adjami, African Courts, International Law,

and Comparative Case Law: Chimera or Emerging

Human Rights Jurisprudence?, 24 Mich. J. Int'l L.

ods i) en Sirens eta aterietesiecceetramtent aie cance 7

Mumia Abu-Jamal, All Things Censored (Seven Stories

a rrr oars aa ouaGesdeaes dies eerstia ers 14

Mumia Abu-Jamal, Live from Death Row (Harper

I CD ee see pea uit unk vsudunnesnengaaorsewcunanas 9

Natalia Schiffrin, Current Development: Jamaica

Withdraws the Right of Individual Petition Under

the International Covenant on Civil and Political

Rights, 92 Am. J. Int'l L. 563 (1998) .......... ee 7

Patrick Hudson, Does the Death Row Phenomenon

Violate a Prisoner's Human Rights Under

International Law?, 11 Eur. J. Int'l L. 833 (2000).... 7

Richard B. Lillich, Harmonizing Human Rights Law

Nationally and Internationally: The Death Row

Phenomenon as a Case Study, 40 St. Louis U.L.J.

EE SI EE wccnsdasuscendassancgueiabadseinceoaucarenaasmanseanteeet aa 7

Robert Blecker, Current Issues in Public Policy: But

Did They Listen? The New Jersey Death Penalty

Commission’s Exercise in Abolitionism: A Reply, 5

Rutgere J. L. & Pub. Pol'y 9 (2007) ......60ccecccsesecsesosess 9

Staff Report, Subcommittee on Civil and

Constitutional Rights, Committee on the Judiciary,

103d Cong. (issued October 21, 1993) ...............00.... 12

Stanley Cohen, The Wrong Men: America’s Epidemic of

Wrongful Death Row Convictions (Da Capo Press,

WI sai cavicscocevassxsancvessisciortvsatnsecee eee 13

Udani Samarasekera, Theatre: Surviving Death Row,

Be SS re Ce itavikicccecsversccigtetsien 10

Writing for their Lives (Marie Mulvey-Roberts, Ed.,

NI ic ccvaicsvcssininecsdeto cnn ctnccdc ee 9

SUMMARY OF ARGUMENT!

Proscription of in-person communication

between death row inmates and members of the

press is an affront to the First Amendment of the

U.S. Constitution where, as here, the proscription is

based either on the anticipation that the speech will

be offensive to government officials or on a

generalized desire to keep certain viewpoints out of

the public discourse. The Bureau of Prisons’ interest

in preserving security within the penal system does

not permit it to censor speech absent a legitimate

concern requiring the restriction of this fundamental

right to free speech and free association.

The speech silenced here is at the core of what

the First Amendment is designed to protect, and is

essential to the proper functioning of our system.

The general public has a right to hear, through the

media, first-hand accounts of current conditions in

prison, whether they reveal unsafe and abusive

behavior or simply the banal realities of life on death

row and what brought them there. In-person

communication also affords the wrongly accused a

forum to proclaim their innocence — a message that

public officials are loathe to hear. Failure to provide

direct media access to these inmates reduces the

chance that their claims of innocence will be heard

and investigated. Each of these essential

communications reveal facts unlikely to be brought

! Pursuant to Rule 37, counsel for all parties received timely

notice of the intent to file this brief and letters of consent from

counsel for all parties are being filed contemporancously with

this Brief. No counsel for any party authored this brief in

whole or in part or made any monetary contribution for the

preparation or submission of this brief.

l

to light otherwise, deprecating the ongoing review

and debate of controversial public policy. As such,

the Court owes not deference but the most exacting

of First Amendment inquiry.

STATEMENT OF INTEREST OF

AMICUS CURIAE

The National Lawyers Guild, Inc. is a non-

profit corporation formed in 1937 as the nation’s first

racially integrated voluntary bar association, with a

mandate to advocate for fundamental principles of

human and civil rights including the protection of

rights guaranteed by the United States Constitution.

Since then the Guild has been at the forefront of

efforts to develop and ensure respect for the rule of

law and basic legal principles.

The Guild is the only bar association in the

United States that includes in its membership

Jailhouse Lawyers, including those on death row. As

the progressive arm of the legal profession, it has

argued on behalf of prisoners’ rights for over 70

years. Guild members have brought litigation aimed

at raising awareness of and_ correcting

unconstitutional practices in correctional facilities.

Amicus is. co-author, with the Center for

Constitutional Rights, of The Jailhouse Lawyer's

Handbook, an updated version of the Jailhouse

Lawyer’s Manual, originally published by the Guild

in 1974.

Guild attorneys defended inmates in lawsuits

arising from the 1971 Attica prison uprising in New

York State, the most violent uprising in American

2

history that resulted in the deaths of 39 men on

September 13, 1971. Inmates of the Attica Corr.

Facility v. Rockefeller, 453 F.2d 12 (2d Cir. 1971).

More recently, Guild attorneys exposed a pattern of

abuse of over 450 female inmates who alleged that

they had been sexually assaulted by male employees

of the Michigan Department of Corrections over a

five-year period. The trial team provided litigation

and social services to the inmates for over 12 years.

Neal vu. the Michigan Department of Corrections, 232

Mich. App. 730, 592 N.W.2d 370 (Mich. Ct. App.,

1988), appeal after remand, 2009 Mich. App. LEXIS

182 (Jan. 27, 2009).

Amicus submits that its intimate familiarity

with the United States criminal justice system, and

its decades of representing death row inmates,

renders its perspective on the issues of inmate

communications with members of the press of value

to the Court in evaluating the issues presented.

ARGUMENT

I. INTRODUCTION

This Court should accept review of this matter

in part because the stakes are so high. The curtailed

speech is essential to creating the sort of robust

exchange of ideas that our system relies upon to

ensure a democratic check on policies in the

extremely delicate area of capital punishment. By

denying death row inmates uncensored access to the

press, the general public is denied access to accurate

information about the conditions inside prisons.

Issues such as guard brutality against inmates,

inadequate health care, sexual harassment of

inmates and inmate-on-inmate violence should

necessarily be of concern to the public, including

legislators and government officials. Without media

coverage of such issues, there can be no effective

watchdog role by outsiders and_ interested

organizations. Thus, inmates, reporters, and the

public as a whole are denied essential rights under

the First Amendment.

Moreover, this Court should accept review in

order to clarify that its rulings granting deference to

prison authorities in some respects is not to be read

as circumventing the most fundamental free speech

guarantees in our system — namely, that viewpoint

discrimination and the purposeful shutting down of

the marketplace of ideas is unconstitutional. The

decision below represents a departure from the

judiciary’s longstanding respect for free speech and

association, the bedrock on which representative

democracy is built. See New York Times Co. uv.

Sullivan, 376 U.S. 254, 270 (1964) (noting our

“profound national commitment to the principle that

debate on public issues should be uninhibited,

robust, and wide-open”).

In denying certain inmates face-to-face access

with members of the press, the government relies

upon its caricature of a “jailhouse-celebrity” seeking

a public forum and celebrity status and — most

essentially — espousing viewpoints the government

finds distasteful. The government provides no

evidence of actual danger. Rather, its sole basis

seems to be then-Attorney General John Ashcroft’s

concern that death row inmates’ speech will have a

negative effect on society.

Il. THE GOVERNMENT MAY NOT SHROUD

THE REALITIES OF THE SYSTEM IT

OPERATES

An essential purpose of the First Amendment

is to allow for an informed public that can serve as a

democratic check on the judiciary and criminal

justice system. As this Court has noted regarding its

own precedent:

There is certainly language in our

opinions’ interpreting the First

Amendment which points to. the

importance of “the press” in informing

the general public about’ the

administration of criminal justice. In

Cox Broadcasting Corp. v. Cohn, 420

U.S. 469, 491-492, 43 L. Ed. 2d 328, 95

S. Ct. 1029 (1975), for example, we said

“in a society in which each individual

has but limited time and resources with

which toobserve at first hand the

operations of his government, he relies

necessarily upon the press to bring to

him in convenient form the facts of

those operations.” See also Richmond

Newspapers, Inc. v. Virginia, 448 U.S.

555, 572-573, 65 L. Ed. 2d 973, 100 S.

Ct. 2814 (1980). No one could gainsay

the truth of these observations, or the

importance of the First Amendment in

protecting press freedom from

abridgement by the government.

Wilson v. Layne, 526 U.S. 603, 612-13 (1999).

Perhaps the most’ controversial power

exercised by this system today is the sentence of

death and process of execution. For the government

to deny reporters and their viewers first-hand

accounts of a death row inmate’s conditions of

confinement and mental and physical condition

while awaiting execution is to create an

unconstitutional shroud, hiding essential

information about the exercise of the state’s ultimate

power over its citizens.’

If the reactions of jurists around the world

and commentators in this country are any

indication, a public that fairly and impartially

considered the real conditions of death row would

demand change. Scholars and advocates are

increasingly concerned with the real effects of death

row, and several nations have refused to extradite

persons to the United States, not because they

ultimately would be put to death, but because the

mental and other tortures of awaiting death in our

system are so horrific as to violate basic human

rights. Soering v. United Kingdom, App. No.

14038/88, 11 Eur. H. R. Rep. 439 (1989); Pratt v.

Attorney General for Jamaica, (1994) 2 A.C. 1 (Privy

Council 1993)(Jamaica); U.S. v. Burns, [2001] 1

S.C.R. 283 (Canada) (noting “the death row

2 The United States correctional population has skyrocketed

over the past two decades, with a record number of Americans

serving time in corrections systems in 2007. One in every 31

adults is serving time in jail or prison and is on probation or on

parole. In 1982, one in 77 adults was in the system. At year

end 2007, 35 states and the federal prison system held 3,220

prisoners under sentence of death. Department of Justice,

Bureau of Justice Statistics, http://www.ojp.usdoj.gov/

bjs/cp.htm. Given these numbers, it is in society's best interest

to have access to information about prison conditions

6

phenomenon”); Mirna E. Adjami, African Courts,

International Law, and Comparative Case Law:

Chimera or Emerging Human Rights

Jurisprudence?, 24 Mich. J. Int'l L. 103 (2002);

Patrick Hudson, Does the Death Row Phenomenon

Violate a Prisoner's Human Rights Under

International Law?, 11 Eur. J. Int'l L.- 833, 846

(2000); Natalia Schiffrin, Current Development:

Jamaica Withdraws the Right of Individual Petition

Under the International Covenant on Civil and

Political Rights, 92 Am. J. Int'l L. 563, 565 (1998);

Richard B. Lillich, Harmonizing Human Rights Law

Nationally and Internationally: The Death Row

Phenomenon as a Case Study, 40 St. Louis U.L.d.

699, 704 (1996); Florencio J. Yuzon, Conditions and

Circumstances of Living on Death Row - Violative of

Individual Rights and Fundamental Freedoms?:

Divergent Trends of Judicial Review in Evaluating

the "Death Row Phenomenon", 30 Geo. Wash. J. Int'l

L. & Econ. 39, 57 (1996); Avi Salzman, Killer's Fate

May Rest on New Legal Concept, N.Y. Times, Feb. 1,

2005, at B6.

This case calls upon the Court to ensure

transparency and public oversight. In order to

inform the public about conditions in correctional

facilities, it is essential that inmates are afforded the

opportunity to communicate directly with members

of the media, without prison intervention and

censorship. Prison bureau regulations that are not

related to valid penological concerns should not be

permitted to stand as a barrier to a transparent

system.

A. Death Row Interviews Are an

Important Part of a Variety of

Discussions That Are Deserving of

First Amendment Protection

The former Attorney General’s basis for

imposing these restrictions is anathema to core

Constitutional values. Rather than keeping

offensive views out of the public discourse, it is

axiomatic that the First Amendment ensures an

open marketplace of views and ideas* and may “best

serve its high purpose when it induces a condition of

unrest, creates dissatisfaction with conditions as

they are, or even stirs people to anger.” Terminiello

v. Chicago, 337 U.S. 1, 4 (1949).

The government itself notes that persons

sentenced to. death and their advocates frequently

seek out media attention in hopes of creating public

discussion about their case and the legitimacy of the

death penalty as a whole. That in-person interviews,

as a critical means of allowing the public to see

death row inmates as real human beings, are an

important aspect of one side’s arguments is perhaps

too obvious for comment. See e.g. Writing for their

3 The principle that ideas should be tested in an open

marketplace rather than deemed unacceptable by the

government is traceable to a dissent by Justices Holmes and

Brandeis. Abrams v. United States, 250 U.S. 616, 630 (1919)

(Holmes, J., joined by Brandeis, J., dissenting) ("The ultimate

good desired is better reached by free trade in ideas — the...

best test of truth is the power of the thought to get itself

accepted in the competition of the market .. ."). This would

become one of our most widely accepted values. New York

Times Co. v. Sullivan, 376 U.S. 254, 270 (1964) (noting the

“profound national commitment to the principle that debate on

public issues should be uninhibited, robust, and wide-open”).

8

Lives (Marie Mulvey-Roberts, Ed., 2007); Mumia

Abu-Jamal, Live from Death Row (Harper Perennial

1996).

But supporters of the death penalty also seek

out personal interviews with death row inmates, and

use these interviews in the ongoing public debate

over capital punishment. See e.g. Robert Blecker,

Current Issues in Public Policy: But Did They

Listen? The New Jersey Death Penalty Commission’s

Exercise in Abolitionism: A Reply, 5 Rutgers J. L. &

Pub. Pol’y 9 (2007) (relying on personal interviews

with death row inmates to argue for the death

penalty, and complaining of lack of access to the New

Jersey death row and the resulting lack of specific

information for his testimony before the legislature,

which ultimately eliminated the death penalty).

Just outside the debate over the ultimate

legitimacy of capital punishment, the extreme

circumstances under which people on death row live

need to be explored — fully, openly, and in a manner

befitting a free and democratic society — so the

public can consider its impact on other important

public pelicy questions. The case of Ambrose Harris

is instructive in this regard. No opponent of the

death penalty would ever use Mr. Harris as its

poster boy. He was “[s]o remorseless... . for raping

and shooting a young Pennsylvania woman in the

back of the head that he mockingly dabbed his eyes

with a handkerchief as the victim's father sobbed on

the witness stand.” Jeremy Peters, Revisiting

Violent Past on Eve of New Jersey Death Penalty

Vote, N.Y. Times, Dec. 10, 2007. Yet as people

learned of his abusive upbringing, mental condition,

and the system’s failure to deal with him despite

9

multiple encounters with him when he was young,

his story became a significant touchstone as the

public considered these factors in broad discussions

about personal accountability, social services, and

the importance of good early intervention in child

abuse cases. Id.

Even apart from any political agenda,

criminologists and sociologists rely upon personal

interviews with death row inmates in order to

advance scientific understandings. See eg. Amy

Smith, Not ‘Waiving’ But Drowning: The Anatomy of

Death Row Syndrome and _ Volunteering for

Execution, 17 B.U. Pub. Int. L.J. 237 (2008); Jeremy

A. Blumenthal, Law and the Emotions: The

Problems of Affective Forecasting, 80 Ind. L.J. 155

(2005); Michael L. Radelet, Families, Prisons, and

Men with Death Sentences: The Human Impact of

Structured Uncertainty, 4 J. Fam. Issues 593 (1983);

Doug Magee, Slow Coming Dark: Interviews on

Death Row (Pilgrim Press, 1980) (one sociology

professor reviewing the book noted that, “the author

does not excuse the inmates for crimes committed,

[but] the interviews do provide an interesting,

humanistic perspective generally absent’ in

discussions of capital punishment among _ both

learned and lay persons,” Dennis L. Peck, Book

Review, 11 Crim. Just. Rev. 59 (1986)).

Often, the arts dramatize real events in

socially valuable ways that cannot be accomplished

absent access to death row inmates. See Udani

Samarasekera, Theatre: Surviving Death Row, 367

Lancet 894 (2006) (theater review in the renowned

medical journal of the play “The Exonerated [which]

tells the true stories of six innocent survivors of

10

death row; the words are taken verbatim from legal

documents, personal interviews, and newspaper

articles. The dramatization reveals the human

consequences of gross miscarriages of justice, and

exposes the disturbing flaws in the USA's legal

system.”)

Thus, interviews with death row inmates are

important to a variety of socially valuable

discussions. By and large, the public relies upon the

media to bring this information to them. The

elimination of journalistic interviews with death row

inmates would harm the civic discourse as well as

remove a wealth of material worthy of scientific

study. legislative consideration, and critical artistic

exposition.

B. Media Coverage Increases the Rate

of Exonerations of Innocent Death

Row Inmates

It is an undeniable fact: innocent people are

languishing on death row, and the media has played

an intractable role in investigating and publicizing

erroneous convictions. From when the Supreme

Court reinstated the death penalty in 1976, Gregg v.

Georgia, 482 U.S. 153 (1976), until November 2009,

some one hundred thirty-nine former death row

prisoners have been exonerated. Death Penalty

Information Center, www.deathpenaltyinfo.org; see

also Michael L. Radelet, Given That We Know We

Sometimes Convict Innocent People, What, If

Anything, Does That Say About the Death Penalty?:

The Role of The Innocence Argument in

11

Contemporary Death Penalty Debates, 41 Tex. Tech.

L. Rev. 199 (2008).

It has long been recognized that “an

unpredictable element which can affect whether an

innccent person is released is the involvement of the

media.” See Staff Report, Subcommittee on Civil and

Constitutional Rights, Committee on the Judiciary,

103d Cong. (issued October 21, 1993).

The sources that members of the press rely on

can greatly shape public perception, and even the

legal outcomes, of capital defendants’ cases. Many

reporters depend on the police and prosecutors’

versions of events, giving virtually no coverage of the

defense attorneys or defendants. Dramatic coverage

from the victim’s perspective often obscures

reporting on problematic witness identification. See

Jon Whiten, Enabling False Convictions:

Exoneration Coverage Overlooks Media _ Role,

Fairness & Accuracy in Reporting,

November/December 2007.

On the other hand, investigative journalism

that relies upon in-person interviews can not only

bring injustices to light but provide a _ sufficient

“public face,” so as to move lawyers and others to

action. Thus:

- In 1988 the television program 60 Minutes

featured a segment on the case of Walter

McMillian, who had _ been _ erroneously

convicted of murder on the basis of perjured

testimony of three eyewitnesses even though

the defense produced two witnesses placing

him at a church fundraiser when the murder

12

—

occurred. The news report was central in

securing McMillian’s 1993 exoneration and

release from prison. Stanley Cohen, The

Wrong Men: America’s Epidemic of Wrongful

Death Row Convictions (Da Capo Press, 2003)

at 185, 187.

* Film producer Errol Morris uncovered

evidence of prosecutorial misconduct in the

case of Randall Dale Adams. A year after he

presented Adams’s story in the 1988 film The

Thin Blue Line, Adams was freed. Id. at 51-

53.

- Investigations by the Detroit News about a

key prosecution witness’s lies contributed to

the dropping of charges and death sentences

in 1976 against Thomas Gladish, Richard

Greer, Ronald Keirie, and Clarence Smith. Id.

at 90.

Limiting journalists’ in-person contact with

death row inmates renders it difficult for reporters to

engage in true investigative journalism and to

evaluate a case from all perspectives, not just that of

the prosecution or victim. In this respect the prison

regulations at issue serve to impede fair reporting on

death row cases, including those involving the

possibility of innocence and exoneration.

C. The Rules at Issue Effectively

Eliminate a Singular Viewpoint

Given the heightened security concerns and

olitical context of death row, information comin

p £

13

directly from death row is already highly restricted.

See e.g. Mumia Abu-Jamal, All Things Censored

(Seven Stories Press, 2003) (documenting political

pressures that led to cancellation of NPR radio

broadcasts from death row). A _ recent study

documented several impediments to journalistic

access, including denial of face-to-face interviews

with certain inmates (even with the inmates’

permission), virtual lack of access to maximum

security prisons and segregation units, lack of

confidentiality for inmate and staff interviews,

inability to shield inmates from retaliation for

speaking to members of the press, limitations to

using cameras and audio records and even paper and

pens, and “a sense that responses to their requests

are arbitrary rather than reflecting a thoughtful,

consistently-applied policy.” John J. Gibbons and

Nicholas de_ B. Katzenbach, Confronting

Confinement: A Report of the Commission on Safety

and Abuse in America’s Prisons (Vera Institute of

Justice, 2006) at 97-98.

The absolute prohibition on _ in-person

accounts from inmates and the other obstacles

created by the policies at issue in this case go too far.

In denying face-to-face visits, the Bureau of Prisons

denies the public and government of its oversight

role. Id. at 98. In order to facilitate this role, the

media must have as wide access as possible to

prisons, constrained only by reasonably tailored

measures based on valid security concerns.

II. THESE RULES ARE NOT BASED ON

LEGITIMATE PENOLOGICAL

INTERESTS

Attorney General Ashcroft said that the ban

on one-on-one interviews was to prevent death row

inmates from influencing our “culture” by in effect

glamorizing a culture of violence. (App. 90a.) He is

not the first government official to associate public

cominunication or broadcasting of death row inmates

with “glamorization.” Yet, just because some in

society may deem death row inmates heinous

criminals and their speech unpopular does not mean

that this Court can permit the government to inhibit

their speech. As Justice William Brennan said, “If

there is a bedrock principle underlying the First

Amendment, it is that the government may not

prohibit the expression of an idea simply because

society finds the idea _ itself offensive or

disagreeable.” Texas v. Johnson, 491 U.S. 397, 414

(1989).

The rule at issue in this case contravenes the

Amendment’s protection of unpopular speech. Time

and time again this Court has reaffirmed the need to

protect unpopular speech. This case presents the

Court with the chance to uphold the heart of the

4 For example, in 2000 United Colors of Benetton featured an

advertising campaign featuring interviews with and pictures of

death-row inmates. Response from the public and from

advertisers was immediate and negative. Sears pulled all

brands owned by global parent company Benetton in response.

The California Assembly called the ads a_ “pathetic

glamorization of heinous criminals," House Leader Scott Baugh

(R-67th district) drafted a resolution, which passed by an

overwhelming 59-8, urging all California State residents to

boycott Benetton until they killed the campaign.

15

First Amendment in a situation in which society’s

least popular — death row inmates — seek to

communicate in person and without censorship to

members of the press, thereby showing that

fundamental protections apply equally to all in

society. As Justice John Paul Stevens wrote, the

isolation of inmates in strict confinement situations,

and the severity of constitutional deprivations,

should cause the Court to ensure that a prison

regulation complies with “the sovereign’s duty to

treat prisoners in accordance with ‘the ethical

tradition that accords respect to the dignity and

worth of every individual.” Beard v. Banks, 548 U.S.

521 (2006) citing Overton v. Bazzetta, 539 U.S. 126,

139 (2003).

The dissent in the court below made clear that

there is ample evidence that that the rationale for

these rules is to silence unpopular viewpoints, in

violation of longstanding and_ essential First

Amendment values:

[The majority ignores} Attorney

General Ashcroft’s statement that “as

an American who cares about our

culture” and is “concerned about the

irresponsible glamorization of a culture

of violence,” he wanted to prevent

death-row inmates, and only death-row

inmates, from engaging in face-to-face

interviews with the media on any

subject. This rationale for censorship

assumes that what death-row inmates

have to say, if broadcast outside the

prison, necessarily corrodes American

culture. But First Amendment

16

jurisprudence is grounded in the idea

that the government may not prevent a

person, including a prisoner, from

speaking merely because it disapproves

of the speaker or what the speaker

might say. See, e.g., RA.V. v. City of

St. Paul, 505 U.S. 377, 382 (1992)

(noting that “content-based restrictions

are presumptively invalid”); Turner [v.

Safley], 482 U.S. [78,] 90 [(1987)]

(stating that prison regulations that

infringe on inmates’ First Amendment

rights must operate “in a _ neutral

fashion, without regard to the content

of the expression”); Regan v. Time, Inc.,

468 US. 641, 648-49 (1984)

(“Regulations that permit the

Government to discriminate on the

basis of the content of the message

cannot be tolerated under the First

Amendment.”).

Hammer v. Ashcroft, 570 F.3d 798, 806 (7th Cir.

2009) (Rovner, J., joined by Bauer, J., dissenting).

This Court has the opportunity to uphold the

fundamental right to free speech and to afford

transparency to the penal system’s workings by

reversing a recent trend of curtailing inmate's rights.

This Court’s past decisions granting deference to

corrections officials are premised upon a _ limited

judicial role in policymaking. But the wisdom of the

Constitution in leaving policy decisions to the more

democratically responsive branches is undermined if

this Court does not uphold First Amendment

principles that ensure an informed public, able to

17

serve as a meaningful check on those branches and

the danger of policymaking based on prejudice

rather than facts. By permitting one-on-one access

between death row inmates and members of the

media, the Court will restore a foundational right in

our system.

CONCLUSION

For the foregoing reasons, Amicus urges the

Court to grant certiorari in this matter and reverse

the decision below.

DATED: November 25, 2009

Respectfully submitted,

Prof. Zachary Wolfe*

The George Washington University

801 22nd Street, NW, Rome Hall 557

Washington, DC 20052

Heidi Boghosian

National Lawyers Guild

132 Nassau Street, Room 922

New York, NY 10038

*Counsel of Record for

National Lawyers Guild