Media hoping governor will loosen prison interview restrictions
STEVE LAWRENCE
Associated Press
SACRAMENTO - News organizations are hoping that a string of prison scandals
and Gov. Arnold Schwarzenegger's talk about a more open government will
translate into fewer restrictions on interviews with inmates.
The groups are backing bills by Sen. Gloria Romero, D-Los Angeles, and
Assemblyman Mark Leno, D-San Francisco, that would overturn 8-year-old
regulations that prevent reporters from arranging interviews through the
Department of Corrections with specific prisoners.
Critics say the regulations have made it tougher for the news media
- and the public - to learn what goes on behind prison walls. Recently,
California's prison system has come under serious scrutiny after a series
of riots, reports of secret organizations among guards and deaths of inmates.
"This will just bring further transparency to the department, and given
that we are talking about the fastest growing department in state government
... more transparency is better," said Leno.
Department officials say reporters have plenty of access to work on
their stories, despite the limitations.
"In practice, the media are in our prisons nearly every single day,"
said spokeswoman Terry Thornton.
To obtain a face-to-face interview with a particular inmate, the regulations
require a reporter to write and ask the prisoner to send a form the journalist
must fill out to get on the inmate's list of authorized visitors.
Once a reporter has been placed on the list, a process that takes about
30 working days, the reporter can visit the inmate during regular visiting
times. But visiting hours are generally limited to weekends and reporters
must compete for time with the inmate's family, friends and attorneys,
critics say.
And the rules bar reporters from bringing tape recorders and cameras.
Spiral notebooks with wire that could be turned into a weapon can be turned
away, but paper, pens and pencils are allowed, said Thornton.
The prison will also provide paper and pencils, according to the department's
media policies.
Reporters can write and request that a prisoner call them collect, although
those conversations are limited to 15 minutes and can be recorded by prison
officials.
Reporters are also allowed to interview prisoners they encounter at
random during prison tours.
Critics of the rules say they are so limiting that many news organizations
have cut back on their prison coverage.
"It's not that there isn't any access whatsoever," said Jim Ewert, an
attorney for the California Newspaper Publishers Association. "It's just
that it's so diminished now that it's nearly impossible to conduct meaningful
interviews."
Romero's bill would let reporters again arrange face-to-face interviews
with a particular inmate through department media officers, although officials
could limit the number of interviews a prisoner could have, set reasonable
limits on time and place and bar interviews that would pose a threat to
public safety. The bill also notes that interviews have been arranged in
the past without any safety problems and there is "no legitimate reason
for a blanket ban on media interviews with specific prisoners."
The legislation would permit the department to set up a pool interview
arrangement if officials received a large number of requests for interviews
with the same prisoner.
Leno's bill, as now written, wouldn't go that far. It would expand the
current interview policy by letting a reporter who got on one prisoner's
visitation list also visit any inmate at the same facility during regular
visiting hours if the prisoner was allowed to have visitors and was willing
to be interviewed. That arrangement would be good for a year and could
be renewed.
Both bills would require prison officials to continue to allow journalists
to interview prisoners at random while taking a prison tour or doing a
story on a prison activity, program or event.
And both bills would allow reporters to receive confidential mail from
prisoners unless it posed a threat to public safety - as well as let reporters
bring tape recorders, cameras, pens, pencils, paper and other material
needed to conduct the interviews.
Hoping to avoid a veto, Leno said he hopes to get some signal from Schwarzenegger's
staff about how the governor feels about the bills before considering any
changes.
The regulations the bills target were developed under Republican former
Gov. Pete Wilson, who argued they would reduce the chance that media coverage
would turn inmates into celebrities.
"Interviews with prisoners about their crimes tend to glamorize criminal
activity and criminals at the cost of pain to crime victims," Wilson said
in vetoing 1997 legislation that would have overturned the new rules.
Former Democratic Gov. Gray Davis, using some of the same arguments
as Wilson, twice vetoed bills that would have scrapped the regulations.
Backers of the two bills hope Schwarzenegger, who advocated more open
government during the recall campaign that ousted Davis, will be willing
to change.
Easing access to prisoners could make it easier to uncover, or head
off, prison scandals, they say.
Schwarzenegger spokeswoman Terri Carbaugh said "open government is of
importance to this administration," but she also said the governor wouldn't
take a position on the bills until he sees them in their final form.
Even as the state Legislature was
passing a new law, AB 2101, to reverse regulations promulgated by the California
Department of Corrections five years ago that severely restricted the ability
of reporters to interview most prisoners in California's prison system,
the department has been seeking to make its restrictions even tighter.
Governor Davis should sign AB 2101, and the proposed changes to Section
3261.1 of Title 15 of the California Code of Regulations should be rejected.
The regulations written five years
ago allowed reporters to see prisoners only if they were on that specific
prisoner's visitor's list and barred the use of notebooks, pencils, cameras
or tape recorders. The news media have been upset ever since, and everybody
knew the Legislature supported new laws to make media access easier and
more realistic.
On Sept. 6, however, the Department
of Corrections closed public comment on a set of changes to media access
regulations that were purportedly only to clarify grammar but, in fact,
restricted access further. They would allow media access "only with the
prior approval of the institution head" and would allow officials to discriminate
in favor of reporters "on news assignments, as opposed to those on feature
stories without deadlines."
As the Society of Professional Journalists
noted, in objecting to the regulations, "Those of us who work in the field
know of no generally accepted distinction" between feature stories and
breaking news and, "In any case, government has no authority to control
access based on its characterization of the content of the ensuing news
stories."
The California Newspaper Publishers
Association also filed a powerful objection, contending the proposed regulations
violate the First Amendment and the California Public Records Act. There's
another problem with the proposed regulations, as the prison activist organization
UNION (United for No Injustice, Oppression or Neglect) pointed out. "Stories
frequently feature the very people who would be given control over whether
or not a journalist can enter prisons. "Department officials have no business
dictating or prioritizing which news can or can't be disseminated to the
public," said the UNION.
The Department of Corrections is
a government agency funded by your tax dollars whose activities should
be subject to public scrutiny. These unseemly efforts to restrict media
access to taxpayer-funded institutions should be ended immediately.
#1 newspaper in Orange County, California
---------------------
September 6, 2000
Bonnie Garibay, Chief
Regulation and Policy Management
Branch
California Department of Corrections
P.O. Box 942883
Sacramento, California 94283-0001
Re: Oppose Changes to Title 15 CCR,
Section 3261.1
Dear Ms. Garibay:
I am writing on behalf of United
for No Injustice, Oppression or Neglect, (U.N.I.O.N.) an organization of
approximately 4800 teachers, social workers, doctors, nurses, college professors,
journalists and families of prisoners to oppose the Department of Corrections'
proposed changes to Title 15 of the California Code of Regulations, Section
3261.1.
The U.N.I.O.N. believes the proposed
regulations would place journalists in a position where they would be unable
to their jobs. Stories frequently feature the very people who would be
given control over whether or not a journalist can enter prisons. Department
officials have no business dictating or prioritizing which news can or
can't be disseminated to the public. This flies in the face of basic democracy
and allows cover-up of important emergencies, such as riots, disease quarantines
and mistreatment of prisoners.
These regulations are a direct violation
of the Constitution. Many of the records furnished to our organization
show a pattern of medical neglect, physical and psychological abuse, rape,
murder and torture of inmates. This is, under the terms California Public
Records the Act (CPRA), public information which is vital to the public
safety. Proposed section 3261.1(b) states, "No . . . records under control
of the department shall be used in conjunction with film making, radio
or television programs, or the writing of books magazine articles or syndicated
stories without prior approval of the director."
Inmates and their families send
us hundreds of documented cases every week. This information is on CDC's
own forms. We in turn furnish this information to our members who are journalists
within the media. There is no way to control records and it is a violation
of the First Amendment to attempt to do so.
Moreover, the Department's Initial
Statement of Reasons regarding the amendment of Section 3261.1(a) states
this section is being amended for "clarity and grammatical correctness."
The Statement of Reasons is weak and there is no excuse to discriminate
against journalists in particular. The exclusion of freelance journalists
is very disrespectful because the more successful journalists are usually
freelance and working on books instead of being tied into a media outlet.
The Department clearly doesn't know the news business.
Wardens should not be given power
over the press since their careers and "image" with their superiors is
often more important than humane treatment of prisoners.
The CPRA, established by Chapter
3.5 (commencing with Section 6250) of Division 7 of Title 1 of the California
Government Code, provides that access to information concerning the conduct
of the public's business is a fundamental right of every person in this
state. This statutory presumption of access to public records applies to
all state and local agencies, including the Department of Corrections.
Nowhere does the CPRA, even under
a skewed interpretation allow an agency to deny access to a public record
based on the intended use of the information.
The department in a footnote to
proposed Section 3261.1(b), cites as legal authority for implementing the
proposed regulation, Civil Code Sections 1798.20, 1798.30 and 1798.40-42
(commonly known as the Information Practices Act). However, in its citation
of the Information Practices Act the department failed to include Civil
Code Section 1798.75, which states, "This chapter shall not be deemed to
supercede Chapter 3.5 (commencing with Section 6250) of Division 7 of Title
1 of the California Government Code, except as to provisions of Sections
1798.60 and 1798.70."
Thus, Civil Code Section 1798.75
expressly prohibits the department from relying on provisions of the Information
Practices Act as a legal basis for adopting a regulation that allows the
director to arbitrarily usurp the department's statutory obligation to
provide access to public information.
The First Amendment was written
to prevent powerful government officials from being able to conceal information
about unbearable incompetence within their own ranks. The United States
Supreme Court requires a very good reason for violations of the First Amendment.
In this instance, there is every reason for controls not to be in place
for the good of the public safety and no valid reason for these regulations.
The public has a right to know,
and when the news comes strictly from inmates and their families, the Department
is more at risk than if professional journalists are welcomed inside to
give accurate coverage. However, our organization will continue to keep
the media fully informed on conditions and the medical crises now in full
bloom inside all 33 prisons regardless of any stops that are imposed. There
is no reason for these regulations other than to cover up wrong-doing in
our view.
We are not going to sit idly by
and be the pawns of the Governor and the legislators any longer without
protest. We will make certain that the news gets out to the media, one
way or another.
We should all remember history when
the first thing Hitler did was to suppress the journalists.
For all of these reasons, the UNION
strongly urges the department to reject adoption of the proposed changes
to Section 3261.1
Sincerely,
B. Cayenne Bird, Director
-------------------
Dear Editor:
Who owns California's multi-million
dollar state prisons? The Governor? The wardens? The prison guards' union?
Or we taxpayers? A taxpayer may not wish to head for the closest prison
and personally step into the warden's shoes, but he or she certainly should
wish to know how such a huge tax bite is being chewed.
As your 9/11/00 editorial pointed
out, Gov. Davis has a bill on his desk right now, AB 2101, which would
restore the right of journalists to do a very natural thing--take a notebook,
pencil, camera, or tape recorder inside to conduct interviews. That's the
only way we the public can learn what goes on and how our money is being
spent. Doesn't shining the light of day inside encourage better conditions
for those who work there as well as those who live there?
Deborah D. Jimenez
------------------------
September 5, 2000
Bonnie Garibay, Chief
Regulation and Policy Management
Branch
California Department of Corrections
P.O. Box 942883
Sacramento, California 94283-0001
Re: Oppose Changes to Title 15 CCR,
Section 3261.1
Dear Ms. Garibay:
I am writing on behalf of the California
Newspaper Publishers Association (CNPA), an association of approximately
500 daily and weekly newspapers, to oppose the Department of Corrections'
proposed changes to Title 15 of the California Code of Regulations, Section
3261.1.
CNPA believes the proposed regulations
would place journalists in an inferior position to the general public.
Specifically, as amended, Section 3261.1(a) provides, "Media representatives,
as defined in section 3000, may be authorized access to a department facility
or contract facility only with the prior approval of the institution head."
The use of the word "may" in this
context, would vest wardens at each California prison with unfettered discretion
to deny access to a journalist solely on the basis of his occupation. However,
a warden who attempts to deny access to a family member of an inmate or
any other member of the public based on what the individual does for a
living would have no statutory or regulatory authority to do so. For example,
a warden would have difficulty, legally denying a father the ability to
visit with his inmate son solely because the father is a janitor.
Moreover, the Department's Initial
Statement of Reasons regarding the amendment of Section 3261.1(a) states
this section is being amended for "clarity and grammatical correctness."
The Statement of Reasons is silent as to the policy justification for potentially
denying access to one small segment of the public based on a person's occupation
as a journalist while continuing to allow access to the rest of the public.
The proposed regulation also attempts
to thwart the department's clear obligation to provide public information
pursuant to the California Public Records Act (CPRA). Proposed section
3261.1(b) states, "No . . . records under control of the department shall
be used in conjunction with film making, radio or television programs,
or the writing of books magazine articles or syndicated stories without
prior approval of the director."
The CPRA, established by Chapter
3.5 (commencing with Section 6250) of Division 7 of Title 1 of the California
Government Code, provides that access to information concerning the conduct
of the public's business is a fundamental right of every person in this
state. This statutory presumption of access to public records applies to
all state and local agencies, including the Department of Corrections.
While the CPRA recognizes certain
exemptions to the presumption of open access to public records, nowhere
does the CPRA, even under a tortured interpretation of statutory construction,
allow an agency to deny access to a public record based on the intended
use of the information.
The department in a footnote to
proposed Section 3261.1(b), cites as legal authority for implementing the
proposed regulation, Civil Code Sections 1798.20, 1798.30 and 1798.40-42
(commonly known as the Information Practices Act). However, in its citation
of the Information Practices Act the department failed to include Civil
Code Section 1798.75, which states, "This chapter shall not be deemed to
supercede Chapter 3.5 (commencing with Section 6250) of Division 7 of Title
1 of the California Government Code, except as to provisions of Sections
1798.60 and 1798.70."
Thus, Civil Code Section 1798.75
expressly prohibits the department from relying on provisions of the Information
Practices Act as a legal basis for adopting a regulation that allows the
director to arbitrarily usurp the department's statutory obligation to
provide access to public information.
CNPA also opposes Section 3261.1(c).
Subsection (c) provides, "Reporters on news assignments, as opposed to
those on feature stories without deadlines, shall be given preferential
access in the event of a breaking news story."
This proposed language is problematic
for several reasons. The greatest concern, is that department officials
would be able to exercise discretion now performed by newspaper editors
when determining what constitutes breaking news versus feature stories.
Furthermore, the regulation fails to define the meaning of the terms breaking
news or feature stories or provide guidance to the potentially regulated
community as to how these decisions would be reached. Arbitrary decisionmaking
by a government official in denying access to a facility based on the content
and the purpose for which information would be used is contrary to traditional
democratic principles and long standing constitutional interpretation.
The wellspring for speech and press
protections set forth in the First Amendment was the overriding fear of
powerful government officials using their power to suppress and conceal
information about government activities. In furtherance of these constitutional
protections, the United States Supreme Court created a strict scrutiny
test for courts to use when balancing the need for government regulation
against a constitutionally protected activity. This strict scrutiny test
requires the government to show it has a compelling need to limit a constitutionally
protected activity.
The department, in its Initial Statement
of Reasons, claims the need to amend the regulations is to accommodate
media who operate under deadlines. Under a strict scrutiny analysis, the
department must show that it has a compelling need to accommodate journalists
with deadlines that is far greater than the need to protect a newspaper's
ability to decide how breaking news or feature stories will be defined.
The reasons for the proposed regulations offered by the department, in
CNPA's view, fall far short of being compelling.
Besides promoting suspicion and
mistrust of the department and its motives, the proposed policy of excluding
journalists who otherwise have an equal right of access to a prison facility,
due to the timing and content of their newsgathering efforts, diminishes
the importance of the public's right to obtain and understand information
relating to the operation of its prisons.
For all of these reasons, CNPA strongly
urges the department to reject adoption of the proposed changes to Section
3261.1
Hal Fuson, V.P. and Chief Legal
Officer, The Copley Press, Inc.
Jack Bates, CNPA Executive Director
Thomas W. Newton, CNPA General
Counsel
Department of Corrections
Regulation and Policy Management
Branch
P.O. Box 942883
Sacramento, CA 94283-0001
RE: CDC Notice of Rules Change,
Number 00/08
The Society of Professional Journalists,
the nation’s oldest and largest association of journalists, opposes the
amendment of Sections 3261.1, Media Access to Facilities, and 3261.2, Authorized
Release of Information, Title 15 of the California Code of Regulations,
as issued June 23, 2000.
These amendments are a direct violation
of the First Amendment because they give the Department of Corrections
discretion to control access to its facilities based on the content of
news stories and the nature of the medium in which those stories are reported.
Such content-based regulation is forbidden by the Supreme Court as a violation
of the First Amendment.
The department proposes to distinguish
between "feature" and "breaking news" stories without ever defining those
terms. Those of us who work in the journalism field know of no generally
accepted distinction. In any case, government has no authority to control
access based on its characterization of the content of the ensuing news
stories or its interpretation of the priority that a news organization
places on its stories.
Furthermore, the department seeks
to set higher entry requirements to its institutions based on the type
of medium involved (books, film makers, etc.). Again, those distinctions
are unconstitutional, and in any case modern media technology has blurred
the lines between media in so many ways that the categories are no longer
meaningful. The format in which their news stories are disseminated is
the business of journalists and not of the Department of Corrections.
Finally, access to public records
is governed by law specifically devoted to that subject. The power to make
determinations on what is or is not a public record is not vested in the
director of the department, and to the extent that that power is bestowed
on the director in these regulations, these amendments violate the will
of the Legislature. For all the aforementioned reasons, these regulations
are illegal; they are violations of the Constitution. They should be rejected
outright and in toto.
Sincerely,
Tim Graham, President
Northern California Chapter
California Society of Professional
Journalists
--------------------
Published: Thu, Sep 9, 1999
Vacaville Reporter
Prison building a failing 'quick
fix'
Reporter Editor:
According to Lance Corcoran, vice
president of the California Correctional Peace Officers Association, California
"can't build its way out" of the overcrowding problem. And yet we have
just approved $5 million to do what already has been declared futile.
The prison inmate code of ethics
provides advanced training in the art of antisocial mentality and criminal
behavior. The correctional officer code of ethics renders to inmates a
message of worthlessness in actions that are sometimes cruel, always dehumanizing.
The system represents injustice,
inequity and ultimate hopelessness. We lock them up thinking the problem
will go away. Then we release them back into society more damaged, more
self-defeated and self-loathing, unprepared for re-entry, unsupported by
the community, unskilled, uneducated, drug-addicted, criminally trained
and isolated from family and friends.
Society's popular lock-em-up mentality
represents nothing more than a "quick fix" for today that reaps increasing
devastation for tomorrow.
Decarceration must begin with the
nonviolent offenders and with those who have served their time successfully
(SB 128). Restorative justice principles offer alternatives that protect
our communities, allowing healing from the ravaging effects of crime.
Rose Mary
http://www.thereporter.com/Current/plet.html
Published: Thu, Sep 16, 1999
Why no unfeigned prison policy?
Reporter Editor:
Gov. Gray Davis just loves to continue
the secrecy that surrounds what goes on inside California's prisons. This
has to be so or he would not have vetoed the bill which the Legislature
passed allowing media access once again inside the prisons.
What is he afraid the media will
find? Abuse, neglect, rapes, lack of medical care, violence because of
Draconian laws, such as "Three Strikes" law, which allow no hope for a
person?
Taxpayers need to know what goes
on inside those hellholes called prisons. For what goes on inside will
affect what happens in our communities when the men and women imprisoned
there are released.
Violence begets violence. Abuse
begets abuse. The governor needs to wake up.
Dear Sac Bee Editor,
The prison guards do need to be
monitored to ensure reforms. I was very disappointed in Gov. Davis when
he vetoed the bill to let the media have interviews with inmates. I was
also disappointed that the legislature did not override the veto. The votes
were there.
Hopefully the Inspector General
will monitor the prisons well and maybe next year Davis will sign a bill
to let the media in the prisons.
