Articles

Prisoners Claim Punishment for Media Exposure
Inmates Brought Illegal Sweatshops To Light

By: Peter Blumberg
Daily Journal Staff Writer

SACRAMENTO -- Two inmates plan to allege in a lawsuit to be filed today that state corrections officials violated their civil rights by punishing them for helping the news media expose a prison labor program as an illegal sweatshop, according to their lawyers.

The potentially politically explosive allegations against the California Department of Corrections are the latest in a series of inmate suits claiming unlawful retaliation for exercise of First Amendment rights.

The suit will say the two prisoners at Richard J. Donovan Correction Facility near San Diego were disciplined with more than six weeks of solitary confinement and ultimately transferred to other facilities because prison officials suspected the inmates had tipped a television reporter to broadcast a story alleging that prisoners were being exploited by a garment company that paid them sub-minimum wages to tag imported clothes with phony "Made in U.S.A." labels.

Legislative Action

Prisoner and media advocates say the spate of inmate litigation gives the Legislature good reason to relax tight restrictions on media access to prisoners imposed by former Gov. Pete Wilson.

A bill that would repeal Wilson's regulations banning one-on-one interviews and confidential correspondence between inmates and reporters is poised to clear to the Senate this week and move to the desk of Gov. Gary Davis, who has not publicly taken a position on the measure.

Proponents of AB1440 by Assembly-woman Carole Migden, D-San Francisco, say the cases demonstrate a pattern on CDC's part of punishing inmates to squelch adverse publicity about problems inside the state's sprawling correctional system.

CDC officials have vigorously contested such allegations in public statements and in court, denying any conspiracy to silence inmates. Under Wilson, the department defended its inmate interview restrictions as a reasonable safeguard against inmates turning themselves into celebrities and asserted that the restrictions have not hampered media scrutiny of the penal system.

Extreme Sensitivity

But to Peter Y. Sussman, a former Northern California Society of Professional Journalists president who has written extensively about the media access to prisons, the CDC's insistence that it honors free speech is harder to believe with every new complaint that lands in court.

"I think all of these cases show the extreme sensitivity of the Department of Corrections to what the press reports -- sensitivity to the point of punishing people for their contacts with the media," Sussman, now a Berkeley-based freelance writer, said last week when asked for comment on the new lawsuit.

An inmate suit recently filed in U.S. long-running retaliation campaign against Leslie Vernon White, who gained national attention from a 1989 CBS "60 Minutes" interview detailing his activities as a jailhouse informant.White contends in his July 28 pro se civil rights complaint that he has been subject to "seven years of unlawful and discriminatory conduct" -- including trumped-up disciplinary charges and threats to his life -- for his outspoken criticism of the prison system's treatment of Robert F. Kennedy assassin Sirhan Sirhan and other matter.

Most inmate free speech cases are thrown out before they come to trial because they require plaintiffs to demonstrate that prison officials took active steps to stifle and punish them that were not justified by a legitimate penological interest. , and often, retaliation claims come down to the word of convicted felons against that of the state authorities who are incarcerating them.

Last week, however, a federal district judge in Los Angeles made a rare exception in allowing a case to proceed to trial in which inmate Robert Boston Woodard alleges he was unfairly removed from his job as editor of the prison newspaper at California Men's Colony in San Luis Obispo. Woodard v. Duncan, CV96-4182ABC.

Judge Audrey B. Collins found sufficient evidence that prison officials circumvented their own rules in disciplining Woodard for his journalistic activities to deny summary judgment to half a dozen prison officers and supervisors, while releasing four other defendants from liability. It was the state's second attempt to dismiss the case.

"Very few First Amendment retaliation claims survive to this point," said Woodard's San Francisco attorney, David Newdorf of O'Melveny & Myers, who is handling the case pro bono.

The state's attorney handling the case, Deputy Attorney General Jane Catherine Malich, referred questions to office spokesman Nathan Barankin, who declined to comment on the merits but downplayed the significance of the judge's ruling.

"It's not particularly remarkable for this office to have cases proceed to trial," he said. "It happens every day." Newdorf was hard-pressed to name any recent case where an inmate plaintiff prevailed in a case alleging improper retaliation for speaking to the media.

The case of former Black Panther leader Elmer "Geronimo" Pratt went all the way to the 9th U.S. Circuit of Appeals -- which four years ago rejected his free-speech retaliation claim -- before he reportedly reached a confidential settlement with correctional officials. Pratt, who recently was released after 27 years behind bars, had conducted a high-profile media campaign to assert that he was framed by the FBI and wrongly convicted in the 1972 robbery and murder of a school teacher in Santa Monica.

None of the currently pending retaliation suits directly challenges the Wilson policy prohibiting media access to specifically named prisoners for interviews -- a policy implemented in the early 1970's and upheld in Pell v. Procunier, 417 U.S. 817 (1974), as serving a valid penological purpose before it was abandoned in 1975. Wilson reinstated the rule in 1996.

But advocates and plaintiffs' attorneys say that lifting Wilson's regulations and allowing inmates to meet face-to-face with outside journalists to air their complaints publicly would curb retaliation rather than promote it.

"Given the track record of the CDC, inmates have to have a certain amount of courage to speak out and write about the prison system," Newdorf said. "However, one would hope that letting in a little sunshine will afford some manner of protection for inmates. If the media can go in and talk with prisoners, perhaps prison officials will exercise more restraint."

Under the policy imposed by Wilson in 1996, the department does not arrange one-to-one interviews. A reporter must write to the prisoner, asking the inmate to either call collect, or put the reporter on a visitation list. Visitation restrictions allow prison officials to bar cameras and tape recorders in interviews.

The department still allows reporters and camera crews to visit prisoners to do issue stories and to interview prisoners they encounter at random.

In Sacramento, critics of the policy have generated a legislative groundswell to return to the more liberal access rules that were in effect from 1975 to 1996.

In vetoing a bill two years ago that would have undone his policy, the Republican Wilson dismissed assertions that the policy limits the public knowledge of what goes on inside prisons.

Since then, however, the prison system has been under harsh media scrutiny stemming from concerns about overcrowding and allegations of inmate abuse by guards.

And media frustration with the restrictive CDC news-gathering rules grew this year when Justice Department lawyers repeatedly subpoenaed Sussman for his confidential notes and other journalistic materials in connection with the Woodard case. Attorney General Bill Lockyer ultimately halted the subpoena efforts while insisting they were never intended to chill freedom of the press.

Shortly after the Democrat Davis took office in January, his office indicated that he would carry on Wilson's policy for now but that he was not ready to take a position on a legislative repeal. A CDC official said this week the agency has taken no position on AB1440, but its supporters, among other groups, include the 27,000 member prison guards union, a big campaign supporter of Davis.

Meanwhile, Migden's bill has garnered overwhelming bipartisan support in the Legislature and seems certain to reach Davis' desk.

Proponents hope that today's retaliation lawsuit will lend additional urgency to the measure and pressure the governor to sign it.

In papers to be filed in Los Angeles Superior Court, inmate plaintiffs Charles Ervin and Shearwood Fleming say the CDC threw them into solitary confinement for 45 days after a San Diego TV station broadcast allegations that inmates were being ordered to remove "Made in Honduras" labels from finished garments and replace them with "Made in U.S.A." labels.

Spearheaded by the Law Offices of Robert Berke, a Santa Monica civil rights firm, and Bahan & Herold, a labor law firm in Pasadena, the suit names as defendants not only the CDC and CMT Blues, the garment firm alleged to have engaged in the unlawful label-switching, but also several well-known garment retailers alleged to have sold deceptively labeled garments.

"These inmates were punished for no other reason than blowing the whistle on their employer's far-reaching scheme to defraud California's consumers," said lead counsel Joseph Pertel.

The suit says the charges that landed Ervin and Fleming in solitary confinement were later dismissed, but that the inmates were subsequently transferred to more restrictive facilities with less access to their families and the media. CDC documents obtained by the plaintiff's attorneys say the transfers were "due to the sensitive nature of the Joint Venture Program (with CMT Blues) and the negative impact the news media placed on this program."

Noting that similarly explicit documentation has been introduced in other pending retaliation suits to try to establish CDC's motives for disciplining outspoken inmates, Pertel commented: "They were brazen in the way they felt they could act with impunity."

CDC and CMT Blues have denied any wrongdoing in the garment sewing program, with CDC asserting in a 1997 letter to the San Rafael-based Prison Law Office that the program provides valuable work experience for inmates and complies with state labor laws and federal guidelines.

CDC's chief spokeswoman was unavailable to comment on the retaliation lawsuit, but the agency generally declines comment on pending litigation.