Many states make it extremely difficult for journalists to visit their prisons, interview inmates and report with any regularity or authority on what goes on inside America's prison system.
Take the case of Illinois.
In March, after hearing reports of black mold, insect and vermin infestations, and busted-out windows in Vienna Correctional Center, a minimum-security prison in the southernmost tip of Illinois, criminal justice and courts reporter Rob Wildeboer of Public Radio station WBEZ in Chicago began trying to arrange a tour of the facility.
His request was denied by the Illinois Department of Corrections' public information officer, the commissioner of the department and even the governor's office. He reported on his efforts regularly in an effort to exert pressure on the state, but to no avail.
“It isn't Club Med,” Illinois Governor Pat Quinn told reporters. “Prisons are not country clubs. They're not there to be visited, and looked at, and toured by this, that and the other.”
It wasn't until after lawyers took up WBEZ's case pro bono and met with the state's attorneys that the state caved—sort of.
It announced that “due to increased interest,” there would be media tours at a later date, although no cameras or recording devices would be allowed.
Then, before scheduling the media event, they allowed 25 community college students inside to tour one of their maximum-security facilities.
While the showdown in Illinois was particularly public and well-documented, it is nothing new.
Quieter battles are waged as a matter of course by reporters throughout the country attempting to report on how their states address criminal behavior, treat inmates, work to preserve public safety, and spend the roughly $74 billion allotted annually to the state and federal prison systems every year.
I recently completed a comprehensive study of state media access laws as part of my graduate work at the Missouri School of Journalism. I interviewed dozens of reporters, corrections officials and media liaisons.
What I found was a wide range of approaches to press inquiries, but one underlying theme: individual public officials, not laws or official policies, have the final word on how much the media—and thus the public—know about what happens inside America's prisons.
And too often those individuals deny journalists access not because of security concerns, but because they fear the anticipated content of a story.
“These PIOs [public information officers] are exercising unconstitutional control over access to prisons and to prisoners themselves,” says Charles Davis, a media law expert and professor at the University of Missouri School of Journalism. “At some point, I think there is a very real First Amendment and Fourteenth Amendment due process argument to make.”
The chief of state departments of corrections (DOCs) govern media access policies during their administrations, and some prefer to simply keep the doors shut.
Brian Corbett, public information officer at the Alabama Department of Corrections, has served under four different commissioners. He says that the level of access they grant has “varied from personality to personality.”
And while about a dozen states have explicit policies regarding what constitutes grounds for a denial, the majority simply leave it to the ill-defined “discretion” of an individual prison's warden.
Wall Street Journal reporter Gary Fields, who has covered prisons for many years, puts it this way: “Each prison has a fiefdom and the warden is at the top of the feudal system and the warden can actually reject your request to try to get in.”
While security is typically the stated justification for a denial of access, other factors are often considered.
“I know that a lot of departments or agencies get burned by the media or have some bad reporting by the media—sometimes deservedly so and sometimes not so deservedly so,” said Brian Corbett of the Alabama Department of Corrections. “And because of that, they have become very gun-shy and skeptical and not trusting; and, yes, that can shape policy,”
In 1972, the Supreme Court, invoking the equal protection clause in the 14th Amendment, ruled that there is an “equality of status in the field of ideas,” meaning that government agencies cannot discriminate in practice or policy against groups or individuals whose points of view it disagrees with.
In 2001, Tori Marlan, a reporter with the Chicago Reader, a weekly alternative newspaper, tried to observe a program for incarcerated mothers at the Cook County jail, just weeks after she published an article about a lawsuit filed against the department that runs it.
Although she had been granted access in the past, this time she was denied. Lawyers for the Reader argued that the decision violated the 1972 Supreme Court case and the equal protection clause.
“A reporter might well tone down a critical article if she feared that jail officials might terminate, or even restrict, her future access,” the ruling reads. “That is exactly the type of chilling effect the First Amendment guards against.”
The ruling continued: “The DOC may not have had a legal obligation to admit Marlan. But it may not refuse to do so because she exercised her First Amendment rights.”
Radio reporter Wildeboer's attorneys invoked the same arguments to challenge his denial.
But several public information officers argue that security is a real concern. Given the limited resources they are working with, they see few alternatives.
“We're only at about 65 percent of our [full] staffing levels,” said Corbett in Alabama. “We're pushing 200% over capacity. We're holding almost double the number we were designed to hold. And then really it becomes an issue just from a security standpoint.”
No Reality Shows
Almost every state spokesperson said that they have effectively banned reality shows from coming inside their facilities.
“There's no real value in that,” said Tim LeMonds, then-spokesperson for the Wisconsin Department of Corrections.
“To have somebody set up shop for two whole days and we're paying the staff (or rather) taxpayers are? It isn't going to happen.”
He said that the BBC proposed a more educational show that would have served a public safety purpose and the department “gave it serious consideration.” Ultimately, however, it was denied due to staffing shortages.
Current law of the land, as decided by the Supreme Court in Branzburg v. Hayes and then later in Pell v. Procunier and Saxbe v. The Washington Post establishes that “[T]he First Amendment does not guarantee the press a constitutional right of special access to information not available to the public generally.”
It should be noted that the court's opinion suggests that those cases were decided in a very different climate, in which reporters were given broader access overall.
But the exact language of the ruling is often invoked by state prison officials to mean that the press has no right to enter a prison beyond the visitation room, no right to bring a pen and paper or recording devices and no right to have such visits facilitated by prison personnel.
In 2000, Bill Martin, then-director of the Michigan Department of Corrections, wrote in Quill magazine, a journalism trade publication, that when suicide-assisting doctor Jack Kevorkian came under his department's custody, the state was flooded with about 100 interview requests.
For fear of being sued for allowing access to some and not others, Martin wrote, he opted to close the door completely.
State Limits on Access
While at least five states (Arizona, Alabama, Georgia, Louisiana and Michigan) make any access the exception to the rule, several others limit the media in ways that make it extremely difficult to report on anything beyond news releases.
California, Kansas and Michigan, for example, do not arrange interviews with specific inmates.
Florida, Kansas, Michigan and New Hampshire all require inmates to put reporters on their visitation or phone call list if they wish to speak to them, thus forfeiting a visit or call with family or friends.
Wyoming, meanwhile, reserves the right to screen all potential questions before a media interview, and to end an interview if it strays off of the approved subject matter.
(A complete collection of media access policies is available on the Society of Professional Journalists' website although Wyoming explicitly did not give permission to share their policy online.)
The University of Missouri's Charles Davis calls that and several other current restrictions “patently unconstitutional.”
“The reporter must go before a government office and submit the idea of their writing for “approval' from the government office they are covering in order to get access to the citizens who are incarcerated in the system,” he explains.
“Let's not forget that these people are citizens still. They haven't lost their citizenship just because they are incarcerated.”
“There is nothing in those Supreme Court decisions that gives those officials the right to predicate access on the basis of whether or not they approve of the story. There is just nothing in there that says that. But that's what is happening over and over again.”
When Restrictions Backfire
Some prison officials find the restrictive approach to work against them.
“Our experience is that if people don't see what is really happening inside prisons, the imagination fills the void and people get pretty distorted ideas,” said A.T. Wall, director of the Rhode Island Department of Corrections.
Wall says his typically errs on the side of granting reporters' requests, although he shuts the door to reality shows.
He also said that he limits access to cell blocks where there are disciplinary problems, since just the presence of reporters might incite the inmates to act out.
“It's that phrase that studying something changes it,” he said. “People working inside might grumble about the amount of effort it takes, but we know that people outside want to understand, want to get a window of what goes on inside correction agencies.”
Alaska department of corrections spokesperson Richard Schmitz organizes regular “media academies,” in which he invites reporters to tour facilities and learn about specific topics.
“Everyone agrees that they are off the record. We can say what we want and they can ask what they want,” he explained. He said that they can then follow-up for more details and on-the-record quotes.
“There is a responsibility to the public and we have a unique situation because what we do is hidden by its nature. There are people from the public who can't come by and see how the prisons are doing. And as a result the media has a role in providing a public window on the prison activities and what goes on because it is taxpayer funded,” he said.
The more open approach isn't popular with just small agencies.
Even Texas, one of the largest correctional systems in the country, has gotten more transparent in recent years, in an effort to educate the public about reforms.
Vienna Prison Opens Up
In Illinois, eight months after Rob Wildeboer's request, he was allowed to tour the Vienna Correctional facility with about a dozen other reporters, multiple security guards and the warden.
He was not allowed to bring any audio recording equipment or a camera.
He said that, as he arrived, workers were still busy putting a fresh coat of paint on a lamppost towards the front of the grounds.
He was able to walk inside one particularly notorious housing unit, where he had previously read of more than one hundred men in one room, spending their days and nights in bunkbeds tightly packed together. The unit's broken windows were simply boarded up last winter, making it so that the men couldn't see outside for months, until spring finally arrived. But now the windows were repaired.
The warden admitted that the grounds were hastily improved before the tour. “You put your best foot forward,” he told reporters.
To Wildeboer, that was enough proof that the small amount of sunlight was a good thing. “It's a step, but a step in the right direction,” he said.
“These men were stuck in these rooms all day with nothing to do and no windows to even look out of. Now they actually, in the last couple months, have started replacing the broken panes of glass so that birds can't fly in there any more.”
“That is an improvement that will last even after the reporters have left for the day,” he said.
Jessica Pupovac recently completed her master's degree in investigative journalism at the University of Missouri, where she conducted a national study of media access to prisons. She recently began working as digital and data coordinator at NPR's StateImpact project, where she helps train and guide reporters in finding and sharing the untold stories of state government using data and public records. She welcomes comments from readers