In the United States, we like to believe that everyone has equal rights protected under the Constitution. Unfortunately, this is not always the case. Prisoners in the U.S. penal system have been deprived of their fundamental right to protection under the First Amendment.
The Supreme Court has created a pattern in recent decades of giving deference to the rights of prison officials over the prisoners. In the most recently decided case of Beard v. Banks the Supreme Court goes too far in restricting the rights of prisoners and instead deprives them of their First Amendment rights.
In the first significant decision regarding prisoners’ rights by the Supreme Court in the case of Procunier v. Martinez, the issue at hand was the censorship of inmate mail. The prison officials set up rules that banned any mail in which the officials believed the prisoners “unduly complain” or “magnify grievances.” Furthermore, the letters were also regulated on the basis of obscenity or lewdness. In this decision, the Supreme Court ruled with the prisoners and declared that censorship of inmate mail is unconstitutional. While this decision appropriately ruled in favor of the prisoners’ rights, it would be the last time before the Supreme Court began its tradition of deference to prison officials rather than prisoners. It would in fact be overturned by a later Supreme Court decision.
In 1979, the case of Bell v. Wolfish was brought before by the Supreme Court. The Court ruled in favor of prison officials by permitting the regulation of mailed hardcover books to inmates due to security threats. This case started a legal precedent that allowed for prisoners constitutional rights to be limited based on the “legitimate goals and policies” of prison authorities, including prison safety and order. This case also set the precedent of the Court ruling in favor of prison officials, excepting cases in which the regulation was too exaggerated for the needs of the prison.
The next significant case on prisoners’ rights decided by the Supreme Court in which the Court deferred to the prison officials is Turner v. Safely in 1987. The case regarded the issue of correspondence between inmates held in separate prisons, which prison authorities had banned. In this case, the Court clarified the jurisdiction set in Bell v. Wolfish and stated that, “when a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.” The Turner test created a four-point test of reasonableness to be applied to more prisoners’ rights cases. These four points included the following requirements:
(1) “There must be a valid, rational connection between the prison regulation and the legitimate governmental interest put forward to justify it.”
(2) “Whether there are alternative means of exercising the right that remain open to prison inmates.”
(3) The Court should give deference to the prison officials when ruling in favor of prisoners’ rights in cases where ruling in favor of the prisoners could have a negative ripple effect on the inmates and the prison employees.
(4) “Easy alternatives” that accommodate prisoners’ rights “ may be evidence that the regulation is not reasonable, but is an ‘exaggerated response’ to the prison concerns.”
In the most recent 2006 case of Beard v. Banks, the Supreme Court ruled with the prison officials again by declaring the constitutionality of regulating Level 2 inmates’ access to newspapers, magazines, and personal photographs. Level 2 inmates are the highest security level prisoners, deemed the “most incorrigible, recalcitrant inmates.” In addition to a large number of highly strict limitations placed on the prisoners, this ruling allowed prison officials to deny these inmates access to any newspapers, magazines, and personal photographs.
In the Beard v. Banks case, the Level 2 inmates are put in solitary confinement for twenty-three hours a day, they are denied visitation rights of family and friends, and they are kept in this confinement for a bare minimum of ninety days. Most do not graduate into the less restrictive Level 1 status. I believe that the right to access print materials should not be denied by the federal government for these inmates.
The Supreme Court incorrectly applied the Turner test to the Beard v. Banks case. Regarding the second point, there are not alternative ways for the inmates to access this information. These inmates do have access to religious and legal periodicals, as well as one library book. But they are denied access to the vast amount of information and news available in secular, non-legal newspapers and magazines. For this reason there are no alternative methods for the inmates to have access to these sources and information.
In addition to the ruling on prisoner correspondence in the Turner case, there was a second decision by the Supreme Court. In this case, the issue of allowing inmates to get married was another topic that was decided upon. The Court ruled against the prison officials by saying that the right to marriage is a fundamental right of United States citizens and it cannot be restricted for the reasons given by the prison officials. I would argue that the first amendment and specifically the right to freedom of speech is an even greater fundamental right that should be protected by the Court in its decisions regarding prisoners’ rights.
As an arm of the US government, when prison authorities create policies of censorship and restriction of access, there is no question that there is an issue regarding prisoners’ First Amendment rights. In this controversial topic, there are strong reasons both for and against the limitation on prisoners’ rights.
The most salient reason for the restriction of the rights of inmates is for security concerns. Prison officials maintain that certain allowances and materials may endanger themselves and the safety of the prison, including other inmates. On the other side, the most prominent reason against the limitation on prisoners’ rights is the belief that inmates should not be stripped of their constitutionally guaranteed rights like the First Amendment.
Although these prisoners have surely committed very serious crimes, I do not believe that this warrants having their right to freedom of speech being deprived. In the case of Beard v. Banks the Supreme Court incorrectly applied the Turner test, and in my opinion made the wrong decision in restricting these inmates to the fundamental right of freedom of speech. I take the more risk acceptant side of this argument and I believe that these inmates should have the ability to receive the messages put out by these media sources. In this case, the “lock ‘em up” mentality of the prison officials, and the complicity of the Supreme Court to this regulation, has unjustly denied the prisoners’ protected rights under the First Amendment.
1. ACLU http://www.aclu.org/prisoners-rights/restriction-rights
2. Mary C. Meixner, LOCKING THEM UP AND THROWING AWAY THEIR CONSTITUTIONAL RIGHTS: THE COURT'S DECISION IN BEARD V. BANKS DEPRIVED PRISONERS OF FIRST AMENDMENT PROTECTION, 57 DePaul L. REV. 793 (2008).
3. Beard v. Banks http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=04-1739
4. Procunier v. Martinez http://www.bc.edu/bc_org/avp/cas/comm/free_speech/procunier.html
5. Turner v. Safely http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=482&invol=78
Wednesday, March 31, 2010
Wednesday, March 17, 2010
Public Release of Crime Scene Photos Depicting Mutilation
On January 7, 2008, investigators searching in the mountains of northern Georgia found the nude and decapitated body of 24-year-old Meredith Emerson. Emerson had disappeared six days earlier, and her body was found after admitted killer Gary Michael Hilton bargained for a life sentence in exchange for leading investigators to her body.
Two years following the discovery of her body, a writer for Hustler magazine requested copies of the crime scene photos depicting Emerson’s naked and dismembered body. Emerson’s family in turn sought a temporary restraining order on the photos, which was granted by DeKalb Superior Court Judge Daniel Coursey on March 10, 2010. This order prohibited the Georgia Bureau of Investigation from releasing “any and all photographs, visual images or depictions of Meredith Emerson which show Emerson in an unclothed or dismembered state.”
The same day this order was granted by Coursey, the Georgia House Governmental Affairs Committee unanimously passed "The Meredith Emerson Memorial Privacy Act.” This legislation prohibits the public release of photographs and video recordings “which depict or describe a deceased person in a state of dismemberment, decapitation, or similar mutilation including, without limitation, where the deceased person's genitalia are exposed.”
The question at stake in this case is over the privacy right of the victim and her family, and the public’s right to access these photographs. The passage of this new legislation has sparked debate among first amendment lawyers and free speech advocates over the effect that this kind of ban could have.
The reporter for Hustler, Fred Rosen, is a journalist, historian, and true-crime book author. In defense of his request for the crime scene photographs, Posen states, “the reason I'm looking for [the crime scene photos] is to find the best obtainable version of the truth." While Rosen justifies his need for access to these photos, he does not explain why he must have his own copies of the photos in his possession. The bill passed allows credentialed journalists, lawyers, and law enforcement agents access to these photographs at the Georgia Bureau of Investigation Headquarters, even though they are not allowed to produce copies of the photos.
Furthermore, Posen does not address how these photos would be used in the pornographic magazine Hustler. It is not unreasonable to presume that the crime scene photos of Meredith Emerson’s mutilated body would be exploited by Hustler to conflate sexuality and brutality against women.
First amendment lawyers have expressed concern that this ban “could have a chilling effect on open records requests,” according to the CNN article. The Freedom of Information Act allows for exceptions that permit certain documents to be exempt from public release. These exceptions include autopsy photos, medical records, personnel records, and other documents of a private nature. This new legislation is an attempt to add crime scene photos as another exception to the Freedom of Information Act. Free speech advocates argue that further restrictions limiting the release of information to the public is a step backwards and is not in the public’s interest.
On the other side of this issue, the Emerson family argues that these photographs should not be released to the public to respect the privacy and integrity of the Meredith and of future victims. Victims of these crimes do not give their consent for the crime scene photos to be released, and the family thus argues that the victim’s right to privacy be respected.
In response to this argument, free speech advocates have argued that there should not be a censor on these photos due to their awfulness, as photos equally terrible, such as pictures of soldiers and victims of war are openly displayed to the public. Furthermore, people photographed suffering from problems like starvation or national disasters do not give their consent for photographs. Their choices may not be respected, and advocates say that there should be no reason for the crime scene photos to be special exceptions.
In my opinion, the harm that the release of these photos would cause seems to outweigh the benefits. To the family and friends of the victim, their public release would cause extreme pain and unnecessary stress. I feel as if there is not a strong enough public interest in this case to warrant the release of these photographs.
I understand the danger in suppressing information to the press, and as a general rule all information should be made available to the press. However, exceptions exist for a reason, and in this particular case I believe that the harm to the families outweighs the interest of the public in regards to the release of these photographs.
1. http://chronicle.augusta.com/news/metro/2010-03-08/hustler-wants-crime-scene-photos-
slain-hiker
2. http://www.cnn.com/2010/CRIME/03/10/meredith.emerson.photos/index.html
3. http://www.legis.ga.gov/legis/2009_10/search/hb1322.htm
4. http://www.righttohikeinc.com/
5. http://www.rcfp.org/newsitems/index.php?i=11315
6. http://en.wikipedia.org/wiki/Freedom_of_Information_Act_(United_States)#Scope
Two years following the discovery of her body, a writer for Hustler magazine requested copies of the crime scene photos depicting Emerson’s naked and dismembered body. Emerson’s family in turn sought a temporary restraining order on the photos, which was granted by DeKalb Superior Court Judge Daniel Coursey on March 10, 2010. This order prohibited the Georgia Bureau of Investigation from releasing “any and all photographs, visual images or depictions of Meredith Emerson which show Emerson in an unclothed or dismembered state.”
The same day this order was granted by Coursey, the Georgia House Governmental Affairs Committee unanimously passed "The Meredith Emerson Memorial Privacy Act.” This legislation prohibits the public release of photographs and video recordings “which depict or describe a deceased person in a state of dismemberment, decapitation, or similar mutilation including, without limitation, where the deceased person's genitalia are exposed.”
The question at stake in this case is over the privacy right of the victim and her family, and the public’s right to access these photographs. The passage of this new legislation has sparked debate among first amendment lawyers and free speech advocates over the effect that this kind of ban could have.
The reporter for Hustler, Fred Rosen, is a journalist, historian, and true-crime book author. In defense of his request for the crime scene photographs, Posen states, “the reason I'm looking for [the crime scene photos] is to find the best obtainable version of the truth." While Rosen justifies his need for access to these photos, he does not explain why he must have his own copies of the photos in his possession. The bill passed allows credentialed journalists, lawyers, and law enforcement agents access to these photographs at the Georgia Bureau of Investigation Headquarters, even though they are not allowed to produce copies of the photos.
Furthermore, Posen does not address how these photos would be used in the pornographic magazine Hustler. It is not unreasonable to presume that the crime scene photos of Meredith Emerson’s mutilated body would be exploited by Hustler to conflate sexuality and brutality against women.
First amendment lawyers have expressed concern that this ban “could have a chilling effect on open records requests,” according to the CNN article. The Freedom of Information Act allows for exceptions that permit certain documents to be exempt from public release. These exceptions include autopsy photos, medical records, personnel records, and other documents of a private nature. This new legislation is an attempt to add crime scene photos as another exception to the Freedom of Information Act. Free speech advocates argue that further restrictions limiting the release of information to the public is a step backwards and is not in the public’s interest.
On the other side of this issue, the Emerson family argues that these photographs should not be released to the public to respect the privacy and integrity of the Meredith and of future victims. Victims of these crimes do not give their consent for the crime scene photos to be released, and the family thus argues that the victim’s right to privacy be respected.
In response to this argument, free speech advocates have argued that there should not be a censor on these photos due to their awfulness, as photos equally terrible, such as pictures of soldiers and victims of war are openly displayed to the public. Furthermore, people photographed suffering from problems like starvation or national disasters do not give their consent for photographs. Their choices may not be respected, and advocates say that there should be no reason for the crime scene photos to be special exceptions.
In my opinion, the harm that the release of these photos would cause seems to outweigh the benefits. To the family and friends of the victim, their public release would cause extreme pain and unnecessary stress. I feel as if there is not a strong enough public interest in this case to warrant the release of these photographs.
I understand the danger in suppressing information to the press, and as a general rule all information should be made available to the press. However, exceptions exist for a reason, and in this particular case I believe that the harm to the families outweighs the interest of the public in regards to the release of these photographs.
1. http://chronicle.augusta.com/news/metro/2010-03-08/hustler-wants-crime-scene-photos-
slain-hiker
2. http://www.cnn.com/2010/CRIME/03/10/meredith.emerson.photos/index.html
3. http://www.legis.ga.gov/legis/2009_10/search/hb1322.htm
4. http://www.righttohikeinc.com/
5. http://www.rcfp.org/newsitems/index.php?i=11315
6. http://en.wikipedia.org/wiki/Freedom_of_Information_Act_(United_States)#Scope
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