[The original was on the letterhead of Martin Kassman, Attorney at Law.]

June 26, 1997

By Fax and Mail

Hon. Robert M. Hertzberg, Chair, and Honorable Members

Assembly Public Safety Committee

1021 O St., Room A-198

Sacramento, CA 94249

Re: SB 434

Dear Assembly Member Hertzberg and Members of the Committee:

This letter is written on behalf of the Northern Pacific Region of American Jewish Congress ("AJCongress").⁽¹⁾ We write in strong support of SB 434, Senator Kopp's bill (with Assembly Member Migden as principal coauthor) that would remove certain impediments to news media coverage of criminal justice issues in California. We understand that your Committee will take up the bill on July 1, 1997, and we urge a favorable vote.

By way of background: AJCongress is a national, nonprofit organization, founded in 1918. We work to protect Jewish interests in a variety of ways. One of the most important ways is doing what we can to safeguard American democracy and the basic freedoms enshrined in the Bill of Rights.

As you know, SB 434 would reverse the effect of new California Department of Corrections ("CDC") policies that (1) prohibit the news media from conducting face-to-face interviews with inmates and (2) eliminate the former confidential, uncensored status of correspondence from inmates to news reporters. AJCongress opposes those policies⁽²⁾ -- and thus supports the legislation that would eliminate them -- because of their negative impact on freedom of the press, the public's right to know, and the ability of inmates to redress violations of the limited civil liberties the law affords them.

The state prison system is one of the most extensive, and most expensive, parts of our state government. It has been growing dramatically, consuming an ever-increasing share of taxpayers' money, and will continue to grow. The "Three Strikes" laws enacted in 1994 are regularly sending recidivist offenders to prison for indeterminate terms, with a minimum of 25 (or more) years to be served.⁽³⁾ As of last year, CDC's own projections showed that it would need ten new prisons in the next four years.⁽⁴⁾

Such a huge government agency cannot legitimately hope to escape intense scrutiny by the public it serves and by the news media whose job is to keep the public informed. As the United States Supreme Court has stated, "the conditions in this Nation's prisons are a matter that is both newsworthy and of great public importance."⁽⁵⁾ The public has a right to hear about prison conditions -- not just from the jailkeeper's point of view, but from the inmate's point of view, as communicated through the news media.⁽⁶⁾

CDC apparently disagrees; by way of its new policies, it seeks to eliminate or severely reduce news coverage about prisons that includes the inmate's point of view. In our view, the purpose -- and the effect -- of these policies is not to improve prison security or rehabilitation but to silence news coverage that CDC believes is bad for society at large (either because it reflects negatively on CDC or for other reasons). CDC is entitled to its opinion, but neither prison officials nor any other government officials are entitled to use their power to silence voices that they would prefer the public not to hear.

That this is CDC's purpose is apparent from its public pronouncements in support of the new policies. For example, in its written Initial Statement of Reasons for the regulations reflecting the new policies, CDC complained about inmates' obtaining, through the media, "a public forum in which they can espouse their often sociopathic philosophies."⁽⁷⁾ The corrections department also opined that so-called "random" interviews of inmates (the only kind allowed under the new policies), as opposed to interviews with inmates selected by the media (which SB 434 would require CDC to allow), "make it less likely that a publicity-conscious prison would be undermined."⁽⁸⁾ In other words, if an inmate reveals an inhumane or wasteful practice to a journalist and the prison gets some bad publicity, the CDC wants to be certain that there are no follow-up interviews with the complaining inmate.

One of the primary justifications offered by CDC for the ban on interviews is that crime victims and their families can become upset when they see inmates being interviewed on television.⁽⁹⁾ We at AJCongress are second to no one in our concern for crime victims and their families. A few years ago, we were shocked and saddened by the murder of our beloved former president, Jack Berman. He was one of the eight victims who died at the hands of the madman who went on a shooting spree at 101 California Street in San Francisco. Shortly after that tragedy, AJCongress launched the Jack Berman Advocacy Center ("JBAC"), which works to reduce violence in our society. Examples of JBAC's activities are teaching children how to resolve problems without violence, publishing a booklet on ways to reduce gun violence, participating in gun exchange programs, and supporting legislation that prohibits the sale of assault weapons.

Notwithstanding our concern for crime victims and their families, we do not believe that such concern justifies government action designed to curtail news coverage that might offend such persons. The interests of other viewers, who may find that interviews with inmates provide useful or interesting information, must not be ignored. Moreover, CDC's rationale of protecting victims' feelings could, if carried to its logical extreme, be used to justify drastic censorship, such as a general prohibition on any coverage of crimes or of criminal trials. The remedy for a viewer who finds a news program offensive is to change the channel or turn off the television, not to have the government act to control the program's content. SB 434 would restore decisions about newsworthiness to the persons who should make them: journalists and their viewers, listeners and readers.

AJCongress also deems it appropriate, if perhaps impolitic, to express some concern for the civil liberties of the human beings incarcerated in California's prisons. We recently launched a Religious Liberty Behind the Walls Project, aimed at ensuring that inmates who are Jews, Muslims or members of other minority religions have reasonable access to religious materials and activities. The news media are an important means of bringing to light infringements on prisoners' religious freedom and other civil liberties. We at AJCongress are concerned that CDC's new policies will result in more violations of prisoners' rights going unreported and unredressed. SB 434 would prevent that.

For all these reasons, American Jewish Congress urges the passage of SB 434. If we can be of assistance to the Committee in further explaining our views or in any other way, please do not hesitate to contact us at our San Francisco office (415-974-1287) or to contact the author of this letter.

Thank you for your attention.

Sincerely,

MARTIN KASSMAN

Member, Board of Directors

Northern Pacific Region

American Jewish Congress

cc:

Committee Members (Hon. Robert M. Hertzberg, Hon. Jan Goldsmith, Hon. Larry Bowler, Hon. George House, Hon. Kevin Murray, Hon. Grace F. Napolitano, Hon. Don Perata, Hon. Carl Washington)

Robert F. Kane, Esq. (AJCongress president)

Ms. Tracy Salkowitz (AJCongress executive director)

1. The author of this letter serves AJCongress as a regional board member.

2. We previously expressed this opposition in live testimony at a CDC hearing on June 13, 1996, concerning then-proposed regulations (already in effect on an "emergency" basis) that reflected the new policies. The regulations have since taken permanent effect.

3. If there is more than one current felony conviction, the minimum term can be much longer than 25 years. For example, the author of this letter, an attorney, currently represents a convict who was sentenced, under one of the "Three Strikes" laws, to an indeterminate term with a minimum of 131 years to be served.

4. Bill Ainsworth, "Prison Guards Union Shows Who's the Boss," The Recorder, June 10, 1996, at 1, 2.

5. Pell v. Procunier, 417 U.S. 817, 830 n.7 (1974); see id. at 840 (Douglas, J., dissenting): "Prisons, like all other public institutions, are ultimately the responsibility of the populace."

6. Nolan v. Fitzpatrick, 451 F.2d 545, 547-48 (1st Cir. 1971) (ban on inmate letters to news media about prison affairs violated First Amendment).

7. Initial Statement of Reasons at 6. Of course, "[t]he fact that society may find speech offensive is not a sufficient reason for suppressing it. Indeed, if it is the speaker's opinion that gives offense, that consequence is a reason for according it constitutional protection." FCC v. Pacifica Foundation, 438 U.S. 726, 745 (1978).

8. Initial Statement of Reasons at 11.

9. Initial Statement of Reasons at 3.