Impugning: a crime against the state

BY PETER Y. SUSSMAN

`YOU ARE being placed in Ad/Seg pending investigation of a conspiracy to
mastermind a sabotage effort to discredit a joint venture project at
this institution. Allegations have arisen to effect several inmates in
Fac. 1 and possibly some employee's. Hence, you are deemed a threat to
the safety and security to the institution and are ordered to Ad/Seg.''

With those chilling and portentous words, a prisoner at Richard J.
Donovan Correctional Facility in San Diego was dispatched to what we
colloquially call ``the hole'' to await his fate.

What was the sabotage that this prisoner is suspected of masterminding,
with such grave consequences to prison safety and security? It is
described in another paper the same inmate was handed by prison
officials:

``Inmate Fleming was placed in Ad Seg after it was discovered that he
attempted to impugn the credibility of [a prison industry program] by
contacting the news media . . .''

Translated from Prisonspeak to English, the sabotage this prisoner was
suspected of masterminding was criticizing a prison program to the news
media felonious impugning, as it were.

It's not known if the prisoner ever did, in fact, contact the news
media, but it is known what he is suspected of telling a San Diego
television station: that prisoners in a prison factory, a joint venture
between a private company and the California Department of Corrections,
were ordered to remove ``Made in Honduras'' labels from Tshirts and
replace them with ``Made in USA'' labels before the shirts were sold.

Both the private business and the prison system, pressed by the news
media, deny the charge. The most recent defense is that it was all part
of a training program for new industry workers, though what they were
being trained to do is not altogether clear.

Maybe it was a training program, or maybe it was something more
nefarious, with important policy implications for the increasingly
common practice of allowing private companies to do competitive
manufacturing through the use of prison labor. But we will have to leave
the dispute indecisively where it is now for two reasons:

First, the prisoner has been transferred to another prison, presumably
because, like a second prisoner who was also transferred, ``Committee
has determined that due to the sensitive nature of the Joint Venture
Program and a negative impact the news media placed on this program, [a
transfer] is in [his] best interest.''

This is another job for our Prisonspeak translator. What those words
mean is that prison officials consider the news story broadcast on KGTV,
Channel 10, to be ``negative,'' so the prisoner is out of here.

Second, the news media have no effective means of following up this
potentially important story and separating fact from fiction. That's
because, by California Department of Corrections edict, for the past two
years the news media have been forbidden to interview specified
prisoners facetoface, using what the department somewhat sinisterly
refers to as ``the tools of the trade'' pencils, paper, audio and
video recording devices.

The department unilaterally ended the practice of 20plus years of
permitting such interviews. They did so first by secret orders and then
by emergency (``operational necessity'') regulations that, the
department has admitted, were not occasioned by any emergency that one
could point a finger at.

Public comment ignored

When the regulations were finally subjected to a public comment period,
100 individuals and organizations commented on the regulations.
Ninetynine commenters argued against the new rules; one supported them.
But the CDC forged ahead, without in any way modifying the regulations
to reflect the public opposition.

Maybe the department felt that there was just too much felonious
impugning going on among the inmates of our increasingly crowded state
prisons. That would be an understandable reaction. The department has
been the focus of a lot of negative news stories and adverse court
rulings in recent years.

The stillpending scandals include unresolved charges from some guards
and convicts that the department ran a deadly shooting gallery at
Corcoran state prison, in which eight prisoners have been shot dead and
more than 50 wounded by guards' gunfire the highest such toll of any
prison in the nation.

It's easy too easy to be glib about those ``impugning'' charges,
but stakes are high both for prisoners and for those of us on the
outside.

Criticizing, or impugning, public programs is a right guaranteed under
the Constitution both to the free and the incarcerated, and the ability
to exercise that right effectively is the bedrock of our social
contract.

Practical consequences

Our constitutional rights have practical consequences, whether we are
consumers buying Tshirts of dubious origin or citizens trying to
determine the nature and effect of the punishments we mete out to
offenders. It is our right to hear from prisoners about how prisons
operate, just as it is their right to tell us. The two are inseparable.

That's why the Society of Professional Journalists, supported by many
other journalism and citizen organizations including California's
prison guards union sponsored a bill in Sacramento to overturn the
Department of Corrections' ban on facetoface news media interviews
with specified prisoners. The bill, SB 434, authored by state Sen.
Quentin Kopp, ISan Francisco, cleared its final legislative hurdle last
week and is on its way to Gov. Wilson's desk.

The bill passed the two houses of the Legislature by bipartisan votes
and overwhelming margins 238 in the Senate; 5419 in the Assembly;
and 278 in the final Senate vote on amendments.

What was never fully expressed during the justcompleted legislative
debate was the accumulating record of censorship exhibited by the
embattled Department of Corrections.

The transferred inmates at Richard J. Donovan are not the first to be
punished for their suspected contacts with the news media.

Outlaw letters

When a prisoner at California Men's Colony wrote a letter to a
journalist explaining the rules for conducting media interviews and
passing along the name, phone number and office hours of the prison's
public information officer, he was busted for ``circumventing
policies.''

When a parolee wrote an OpEd essay for the Los Angeles Times a few years
ago, opposing three strikes legislation, parole authorities initially
refused him permission to publish the article because it was, they told
his attorney, ``inflammatory'' and ``contrary to the best interests of
the state.''

``Circumventing policies,'' ``impugning'' prison programs, ``contrary to
the best interests of the state'' these are Prisonspeak for ``Shut
up.'' Is that any way to run a democratic government? In all three of
the above cases, contact with the news media was considered a prison or
parole offense.

If there was malfeasance at Donovan prison, the offense was in the
misdeeds themselves and not in the fact that the public was told of
them. And if there wasn't malfeasance, why not take the shackles off the
media and let them fully explore the accusations and expose them as
frauds?

To the governor

Gov. Wilson has been portrayed in some media reports as leaning toward a
veto of SB 434, despite the fact that amendments were passed in an
attempt to address all of his expressed concerns about the bill.

The governor needs to hear from all of us in support of SB 434. He needs
to know that we are unable to perform our duties as citizens when it is
a punishable offense for those on the margins of society yes, even
felons to criticize government programs or when prisoners are
isolated from effective press scrutiny.

He needs to hear that state Sen. Ross Johnson, a Republican, was
speaking for us when he said, in support of SB 434, ``A free society has
nothing to fear from a free, unfettered press.''

And the governor needs to hear the ringing words of another fellow
Republican, conservative Assemblymember Tom McClintock of Simi Valley,
also in support of this bill:

``Free nations don't hold prisoners incommunicado. Louis Brandeis said
it best when he noted that sunlight is the best disinfectant. People are
capable of sorting out fact from fiction. In order for citizens to
exercise their powers, it's important for them to know the truth, and
the current department policy shuts out the ability of the public to
exercise its responsibility.''

Published Sunday, September 14, 1997, in the San Jose Mercury News