Jandos Rothstein
Jimmy Jenkins, a reporter for Arizona NPR affiliate KJZZ, has covered the state’s criminal justice system for the past four years. He’s built a strong relationship with the state Department of Corrections and liaised with communications officials to interview more than 20 inmates without incident. That changed suddenly in July, when, after making a series of standard requests, he was stonewalled.
He subsequently learned that, as of July 9, the Arizona Department of Corrections had changed its media policy, drastically restricting inmate and staff communications with the press, with the threat of disciplinary action for prison personnel who disobey. Although media were previously allowed to interview inmates in person, by phone, or by mail, journalists can now only send questions and receive answers through the mail. According to Jenkins’s longstanding media contact, spokesman Bill Lamoreaux, the changes were implemented without his knowledge while he was out for a weeklong vacation.
“I’m a radio reporter, so getting the audio is invaluable,” Jenkins said in an interview. The new policy came amid a spike in COVID-19 cases inside Arizona prisons. In a state with one of the highest incarceration rates in the country, Corrections Department data indicated that 1 in 5 Arizona inmates had tested positive for COVID-19 by July 15. “It was issued under the guise of ‘The pandemic is taking hold, and we have all this extra pressure,’” Jenkins said. “But it’s clear that an emergency is being used to take away the right to communicate and get stories out to the press. When we see what is happening—that, in some jails, half of the units are infected with the virus—I could see why you wouldn’t want inmates talking to the press.”
The draconian shift in Arizona is rooted in decades of restrictive state or federal communications policies that have made the incarceration system a black box. The COVID-19 pandemic, which has ravaged U.S. jails and prisons, has heightened the stakes of that opacity. Inmates have sued over lack of access to basic supplies such as soap or paper towels, and there is extensive evidence that many facilities are not following necessary health protocols. The very design of prisons makes social distancing a fantasy, and overcrowding makes that worse.
In many cases, prison authorities have responded to increased scrutiny by making it more difficult for the press to illuminate the conditions and policies that have made more than two million incarcerated people so susceptible to the virus’s spread. Inmates have faced harsh disciplinary action for speaking to the media. But as cellmates die around them, many feel it’s worth the risk to inform the public of what’s taking place behind bars.
According to the Marshall Project, at least 102,494 people had tested positive for COVID-19 inside prison by August 18, and at least 889 incarcerated people had died. According to the ACLU, 1,000 incarcerated people and staff have died from the disease as of August 26. Advocates say official data on infections and deaths likely represent a serious undercount due to testing shortages and checkered reporting.
“At a time where families are dying for information, it’s a really odd moment to be clamping down on the only ways information is leaking out,” said Kevin Ring, president of the FAMM Foundation, a nonprofit that advocates for criminal justice reform.
THE TRUTH ABOUT what’s going on behind bars remains murky. “The problem is that prisons in the U.S. are not accustomed to oversight and transparency,” said David Fathi, director of the ACLU’s National Prison Project. In other advanced democracies, such as Canada and the U.K., “there’s a dedicated oversight body, so prisons in those countries are used to a certain level of scrutiny and oversight, and it becomes incorporated into their everyday operations.” In contrast, Fathi explained, American prisons are “used to operating in the shadows.”
Without a formal oversight system, “what oversight we have is provided in large part by the media, so it’s essential that prisoners be able to communicate,” he added.
Tenuous media access to prisons stems from a web of constraints formed long before the pandemic. In 1974, the Supreme Court ruled that the First Amendment does not guarantee the press access rights that exceed those given to the public, including the ability to interview specific inmates, and argued that media attention could stoke disciplinary problems inside prisons. Lower courts have overwhelmingly upheld access restrictions, too. According to David L. Hudson Jr., a First Amendment scholar, prison officials are often given deference in cases where an incarcerated person alleges their rights have been violated.
Federal law, such as the 1996 Prison Litigation Reform Act, also limits prisoners’ ability to challenge these violations of their rights—such as their ability to communicate with the media, or even their families. Prior to 2007, the Bureau of Prisons did not allow prisoners to publish using their own names, until a federal court ruled this was unconstitutional. And the incarceration system is highly decentralized, making it easier for individual wardens to dictate regulations. “It really is a constant struggle,” Fathi said. “Their rights are regularly violated with impunity.”
The draconian shift in Arizona is rooted in decades of restrictive state or federal communications policies that have made the incarceration system a black box.
RESTRICTING MEDIA ACCESS to only written letters—as Arizona has done—is a “huge barrier to communication,” Fathi added, pointing out that many prisoners are not literate or have poor English skills.
Since the coronavirus began spreading inside prisons in March—generating increased scrutiny from media, politicians, and communities—some authorities have attempted to go even further. New Jersey, which took sweeping action in March to reduce overcrowding, attempted to bar released inmates from speaking to the press, instructing them not to “engage in any public activities, meetings, discussions or demonstrations, or give interviews/opinions to the press, radio, or television media.” The ban was lifted under pressure from the American Civil Liberties Union of New Jersey and other advocates. (There is some precedent for this: Halfway houses have long kept strict media policies for formerly incarcerated people.)
Although the Bureau of Prisons has not made any official, written changes to its media policy or announced new restrictions on its website, reporters—particularly in broadcast media—have faced unusual difficulties. In late May, Stephanie Coueignoux, a reporter for Spectrum News 13, a local Florida channel, reported that the Bureau of Prisons had “implemented a new policy, barring inmates from speaking out publicly about health conditions” and was “suspending all inmate interviews indefinitely”—information she only obtained after months of attempts to reach inmates at the Sumter County Coleman Federal Correctional Complex, the largest in the country.
Justin Long, a spokesperson for the Bureau of Prisons, attributed the new restrictions to safety measures related to COVID-19. “In an effort to do everything we can to mitigate the spread of the virus, including limiting access to high-touch areas like phones and suspending visitation, we are not coordinating interviews at this time,” he wrote by email to the Prospect, adding that “there have been no other changes made that are specific to media access.” He declined to comment on how other pandemic-related changes to phone usage—notably, making phone calls free across the federal system—have affected the volume of outgoing calls.
Advocates question the notion that reduced media access is driven by public-health concerns. In Arizona, for example, officials argued that prison staff no longer had the time to coordinate press phone calls, because, with in-person visits suspended, attorneys can only speak to their clients by phone. “Looking at it dispassionately, most courts would say that sounds like a reasonable, valid reason. That’s the problem for reporters, it’s extraordinarily difficult to challenge these policies,” said Corene Kendrick, an attorney at the Prison Law Office. “But that doesn’t mean it’s a reasonable justification. The vast majority of people in prison don’t have attorneys. And it’s not as if there are 25 reporters demanding on a regular basis to talk to people, either.”
Long declined to say whether there had been any increase in media requests for phone interviews with inmates that would have justified the new restriction.
“It’s clearly an attempt to choke off information to the public about what’s going on in prisons,” said Dan Barr, an expert on media and constitutional law, who has worked with the ACLU and other groups on cases regarding health care access inside Arizona prisons. In Arizona, “the Department of Corrections wants to present its own worldview of what’s going on in prisons. But the Department is also one of the largest parts of the state’s budget. So there’s an obligation to let the public know what’s going on in prisons.”
Advocates question the notion that reduced media access is driven by public-health concerns.
Journalists have done their best to work within current restrictions. Keri Blakinger, who covers Texas prisons and the Bureau of Prisons for the Marshall Project, has been able to communicate with some incarcerated sources by phone and letter. But not being able to conduct in-person interviews has hurt her reporting abilities. “There is something lost when you can’t lay your eyes on someone,” she said. In one instance, a reliable source who is incarcerated told her that corrections officers had slammed him against a grate, cutting off two of his fingers. Despite knowing he’s been reliable in the past, she can’t see him to verify his story. “That’s a huge problem in terms of oversight,” she said.
FOR MANY INCARCERATED people, the pandemic has given new urgency to media visibility. In some cases, that has meant violating prison policy.
Lockdown measures and staffing shortages have significantly reduced contact between prison staff and incarcerated people, contributing to the wider use of contraband cellphones, possession of which is a felony offense, said Blakinger, of the Marshall Project. More people are willing to write letters and put their names on things, she added. “We’re seeing more prison videos in which you can actually see the person’s face,” Blakinger said. In one video that went viral in April, a man incarcerated at Federal Correctional Institution, Elkton used Facebook Live to describe conditions inside, where case numbers were ballooning. For this, he was held in isolation for weeks.
More than six months after she spoke to the press, Denise Bonfilio is still experiencing repercussions. The 62-year-old was halfway into a ten-year sentence at Coleman Federal Correctional Complex, in Florida, when, just before Christmas, inmates started displaying symptoms of Legionnaires’ disease, a type of pneumonia caused by bacteria in water systems. Even as women around her were getting sick, prison authorities did not inform inmates of the outbreak, Bonfilio told the Prospect. “Their initial reaction was to hide it from us, and so for weeks they did nothing to treat us or fix it,” she said. In late January, prison officials finally announced that there was indeed a Legionnaires’ outbreak. (The case is currently the subject of a class action lawsuit.)
In February, Bonfilio discussed the situation in interviews with the Miami Herald and Brian Ross Investigates, accusing prison authorities of negligence. Several days later, she was transferred from Coleman, the debut of a retaliatory process known as “diesel therapy,” in which inmates are shackled and moved to different facilities—and often between federal, state, and county systems—as punishment for bad behavior. In Bonfilio’s case, this meant first arriving at Tallahassee federal prison, where she was placed in isolation, before being transferred to Lovejoy County Jail, where she spent two weeks and, since March 13, to Oklahoma Federal Transfer Center. (When an inmate is transferred between systems, for example from a federal to a county facility, they lose access to funds in their account and to their contact list; in many cases, their loved ones cannot locate them for days.)
“I’ve been in solitary confinement for 120 days,” Bonfilio said in early August, stressing that she has “no doubt that it’s in response to speaking to the media.”
Bonfilio believes that Coleman’s opacity surrounding the Legionnaires’ outbreak not only fueled the spread of that disease, but made Coleman inmates particularly susceptible to COVID-19, which arrived weeks later.
“There’s a causal link between the two outbreaks, and between their handling of the two,” she said. “You would’ve thought they would have learned something about COVID, from their mismanagement of Legionnaires’. But the only thing they learned is how to cover up better, to make sure they had no accountability.” Bonfilio added, “Of course everyone was going to get COVID, when people there already have an upper respiratory illness.”
Bonfilio understood the risks of going to the press, but didn’t expect such serious retaliation. “It has to be done. Sometimes you have to do the right thing, so I did, and obviously I will continue to do it,” she said.
Since the pandemic began, other women at Coleman have faced similar retaliation for speaking to journalists, according to interviews the Prospect conducted with current and past inmates. “People are at the point where they don’t care about what will happen to them,” a former Coleman inmate who requested anonymity due to her halfway house’s media policy, said. “People are screaming to the outside world to talk to anyone, because they feel like things can’t get any worse. My feeling is, absolutely, the prison’s goal is to cover things up and hide their own inaction,” she said. “They’re reactive instead of proactive. That’s true of the [Bureau of Prisons] in general.”
Prison and jail authorities often undermine incarcerated people’s access to outside news—or even to what’s taking place behind bars—by withholding information about outbreaks. Kiara Yarbrough, who was held at Dallas County Jail, wrote in an op-ed that jail officials did not tell them there had been a coronavirus case in the jail until several days after that inmate had been removed. “Jails lock down information tighter than they lock down inmates,” she wrote. Nineteen women in a 24-person tank tested positive, and at least three people died.
“We’re hearing reports of prisoners being forbidden to watch the news when there’s coverage of COVID issues,” the ACLU’s Fathi said.
That’s what happened at Coleman. “As soon as things started happening with COVID, Coleman put us on a total lockdown, meaning you can’t leave your unit, access your email, or even do video visits,” the former inmate said. “Then they took away the TV, too. How we took it was, it was to prevent us from understanding what was happening on the outside. They of course never explain why they do things, because they think they don’t have to.”
Prison and jail authorities often undermine incarcerated people’s access to outside news—or even to what’s taking place behind bars—by withholding information about outbreaks.
Protocols to slow the spread of coronavirus inside prisons also impact inmates’ ability to contact the press and even their families. When an incarcerated person tests positive, they are sometimes isolated in the Special Housing Unit, known as the SHU, where they are subject to the same communication restrictions as someone being isolated due to punishment.
At Federal Medical Center, Carswell in Texas, inmates were placed on a COVID-related lockdown from April to July. Reality Winner, who is incarcerated there for sharing national-security documents with the press, told her sister Brittany that she was limited to one ten-minute call per day with no guarantee. Her email access was also reduced to just five minutes per day. “Not hearing from Reality for an entire day, knowing that she’s in lockdown and is COVID-positive was extremely distressing,” Brittany Winner told the Prospect, adding that, after her sister told her family about the conditions, corrections officers retaliated by refusing to let her clean her unit.
Prisons have also retaliated against inmates when protests take place outside facilities. In early August, family members of the incarcerated and activists demonstrated outside of Carswell, where cases were rising. The facility had gained national notoriety after an inmate, Andrea Circle Bear, died of coronavirus in April, shortly after giving birth. Immediately after the protest, the facility put inmates on lockdown, according to attorney Alison Grinter, whose client, Reality Winner, is incarcerated at Carswell. “Were they afraid the protesters were going to get in?” she said. “There’s a feeling that information and access to the outside is going to lead to things like that—dissent and protest.”
When COVID-19 started spreading in prisons in the spring, Grinter was heartened to see a flurry of media attention. Coverage has since waned, falling into its old pattern. “The public and the media have so often taken a really hard pass on what happens to people who are behind bars,” she said.
In early August, a group of Democratic lawmakers introduced legislation that would require state and federal agencies to be more transparent in reporting infections and deaths inside prisons and jails, notably citing a lack of oversight of the Bureau of Prisons. “I’d certainly hope that this will draw more attention to the conditions in which we incarcerate people,” said Kendrick, of the Prison Law Office, referring to the pandemic’s toll on the incarcerated. “We’re seeing more people, regardless of political affiliation, demanding transparency, and that’s something.”
This story was supported by the Economic Hardship Reporting Project.
