Appeals court weighs whether SC death row inmate can give interview • SC Daily Gazette

COLUMBIA – Three federal appeals judges will decide whether a civil rights group can release interviews conducted with two South Carolina prison inmates, one of whom is on death row.

A federal judge in September initially dismissed the American Civil Liberties Union's lawsuit challenging a South Carolina Department of Corrections policy that prohibits “news media, lawmakers and others” from recording and publishing conversations with inmates, except for interviews that too for law enforcement purposes. The judge ruled that constitutional freedom of expression does not extend to prisoners.

The ACLU appealed and a federal appeals court heard arguments virtually Tuesday.

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It's a case that took on new urgency when the state resumed executing death row inmates in September, breaking a 13-year pause after the state Supreme Court ruled against the electric chair and firing squad are constitutional methods of capital punishment.

This gives the ACLU limited time to record an interview with death row inmate Marion Bowman, who was convicted by a jury in 2002 of shooting a woman and burning her body. ACLU lawyers argued that publishing Bowman's story in his own voice could spark more conversations about the death penalty and potentially garner more support for his clemency bid.

While the ACLU argues that an interview is more persuasive than a letter, that may not be enough to free Bowman from death row. Since executions resumed nationwide in 1976, no state governor has commuted a death sentence.

Gov. Henry McMaster has denied clemency to the first two inmates facing execution. One of them had the support of the former head of the prison system, the trial judge who oversaw his case and three jurors who recommended his conviction.

It is still uncertain when the state might schedule Bowman's execution. The state Supreme Court had originally said it would set the 44-year-old's execution date on Friday, but no death sentence was handed down.

Lawyers for death row inmates are asking the Supreme Court to wait until January to issue further arrest warrants.

Regardless, Bowman is “next in line,” ACLU attorney Allen Cheney told the justices on Tuesday.

Why the policy exists

For its part, the state prison system argues that its policies serve to prevent inmates from revealing information that would pose a security risk, becoming famous through an interview or directing conspirators outside prison to commit crimes on their behalf. It also prevents victims from having to see someone on the news who has harmed them or their loved ones, the department's court filings say.

“Many correctional facilities face serious disciplinary problems as unfettered media access to inmates has created 'virtual public figures' within prison society,” Corrections Department attorneys wrote in a court filing. “Inmates who achieve ‘celebrity status’ within the prison system gain a disproportionate level of notoriety and influence among their fellow inmates.”

The only people who can speak to an inmate by phone are pre-approved friends, family members, spiritual leaders and attorneys, Hall said. No one may record or publish the inmate's conversations.

The policy prevents even the most innocuous recordings, Cheney said Tuesday. For example, a family member who recorded an inmate singing “Happy Birthday” and posted it on Facebook would be in violation, the ACLU argued in court filings.

The prison system allows inmates to write letters to whomever they want, a department spokeswoman said previously, and news reporters have used letters from inmates to report on incidents in the state's prisons.

The agency also sometimes conducts tours of the state's 21 prisons and allows reporters to interview inmates there. However, discussions are limited to the reason for the tour, such as the inmates' participation in a work or study program.

Inmates who violate the policy, whether through telephone conversations with members of the media or through recorded interviews that are later used for publication, may lose certain privileges.

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Susan Smith lost access to her phone, tablet and prison cafeteria last month because she spoke to a filmmaker about the 1994 murder of her two young sons. Alex Murdaugh, whom a jury convicted last year of killing his wife and son, also lost his phone and computer access after he read portions of his diary to his lawyer, who recorded the call for use in a documentary.

The agency releases recordings of telephone conversations in response to a Freedom of Information Act request. Because this law includes an exception for security breaches, it suggests that at least some conversations do not pose a real threat, Cheney said.

Politics “promotes too little and suppresses too much,” he said.

The Department of Corrections often reviews phone calls before releasing them upon request, said Kevin Hall, a Department of Corrections attorney. If anyone could record and broadcast every call, the department would have to hire staff to monitor every single call inmates make as they make them, he added.

“Imagine the demands on prison resources if that were the case,” Hall said.

“Access versus publication”

While the First Amendment's guarantees of free speech and free press give people the right to record audio in public, this does not extend to government-controlled places to which the public does not have access, such as prisons, US wrote -District Judge Jacquelyn Austin in her September: dismissal of the case.

Previous federal cases “make clear that not even the media has a special right to such access under the First Amendment,” Austin wrote. The ACLU “has no constitutional right to the access it demands.”

The ACLU has said it already has access. On the legal side of the organization, members can speak with Bowman and Sofia Cano, a transgender inmate who is representing the group in a lawsuit alleging the prison system is not allowing her access to hormones.

Austin ruled that the ACLU is seeking a “different kind of access” that goes beyond attorney-client privilege.

The question the organization wants the appeals court to answer is whether non-lawyer members of the organization can record and publish these conversations.

“The tug-of-war we seem to be having is a battle between access and publication,” Hall said.

The ACLU's reasons for requesting an interview and the department's reasons for not granting an interview both appear to be legitimate, Fourth Circuit Court of Appeals Judge Paul Niemeyer said at Tuesday's hearing. It is unclear when the court might issue its opinion.

“Your organization makes no secret of it. They want to raise the issue of the death penalty and increase public debate, which is all very legitimate,” Niemeyer told Cheney. “But the question is whether this runs counter to the prison’s criminal justice interests.”