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DANNIE MARTIN

“I committed bank robbery and they put me in prison, and that was right. Then I committed journalism and they put me in the hole. And that was wrong.” So said Dannie Martin, a convict’s convict. A longtime heroin addict and alcoholic, Martin knew jails inside and out, mostly from the insider’s point of view. Caught red-handed in a bank robbery in a little town in Washington, Martin was sentenced to 33 years in federal prison.

Prison gave Martin plenty of time to complete the education he never got in the “free” world, and he was an avid reader. He started to write, and it turned out that he had a remarkable gift: the ability to write clearheadedly, honestly, and affectingly about life in prison. No self-pity here, no claims of innocence, no macho braggadocio, no prisoner clichès.

In July, 1986, while in the federal prison at Lompoc, California, Martin mailed off to the San Francisco Chronicle an article he wrote on AIDS in prison. It vividly revealed for the public how serious the epidemic was among prisoners. It landed on the desk of Peter Sussman, editor of the Chronicle’s Sunday Punch section. Sussman liked the piece, determined to publish it, added Martin’s byline, and sent a check for $100 as the standard freelancer’s fee. The article ran on Sunday, August 3, 1986, and readers liked it. Martin continued to submit articles, all first-person essays and vignettes of prison life, and Sussman continued to publish them. They covered diverse facets of prison life that captured the imagination of Chronicle readers and made Martin the most popular regular contributor to the Sunday Punch. One of my personal favorites was “Requiem for Mr. Squirrel,” a poignant story of how Martin alleviated boredom and the lack of meaningful relationships by feeding a grateful and friendly squirrel, whom the prison officials soon poisoned.

Over the course of about two years, the Chronicle published 18 of Martin’s articles. His writing won a Scripps Howard Foundation’s National Journalism Award and the Society of Professional Journalists’ First Amendment Award. One of the articles resulted in freeing a young prisoner who had been improperly sentenced. The San Francisco Board of Supervisors passed a resolution praising Martin because his “unique and eloquent portraits of prison life have won him a large and devoted following in San Francisco.”

Federal Bureau of Prisons officials knew of Martin’s writing and the fact that he was paid a modest fee for each article, but they did nothing about it. Then, on June 19, 1988, the Chronicle published Martin’s “The Gulag Mentality,” a piece critical of the new Lompoc warden R. H. Rison and his newly instituted policies such as closing down the recreation yard in the morning, confiscating prisoners’ personalized chairs, and having guards listen in on counseling sessions with the prison’s only psychiatrist. Some prisoners were quoted as being worried about a riot. Martin knew this piece was closer to the edge. But he also knew that the first demand of rioting prisoners is to talk to the press, and his view was that they should not have to wait until after the riot to get their complaints heard.

Rison’s new policies seemed petty, unnecessary, and designed to make some prisoners unhappy. The article made Rison unhappy. Martin was rounded up by guards and taken to “administrative detention” (known to prisoners as “the hole”). He was charged with violating Bureau of Prisons rules prohibiting a prisoner from conducting “a business” and from receiving compensation “for correspondence with the news media,” acting as “a reporter” or publishing under a byline. These regulations had never before been enforced against a prisoner writing for newspapers.

When Rison had Martin locked up after the Gulag article, Martin was able to telephone Sussman (their calls were always recorded by prison officials) and, after Sussman protested to Rison, Martin was released from detention. But he was then promptly transferred to a federal prison in Arizona, far from the environment he had been writing about so well. The prison rules remained the same, a cloud over Martin’s ability to continue writing. When Sussman asked Martin if he wanted to continue to write, Martin said, “They can put chains on my body but not on my tongue.”

Martin, joined by the Chronicle, filed suit against warden Rison. On July 14, 1988 (Bastille Day!), Judge Charles Legge issued an order temporarily stopping the officials from enforcing the Bureau’s rules against Martin while the lawsuit was pending. He then wrote another 20 articles for the Chronicle while the case worked its way through pretrial proceedings and came to trial. During the trial various prison officials, including Warden Rison and outside experts, testified about the need for the rules in question, and their rationality, or lack thereof. On June 26, 1990, Judge Legge handed down a surprising, confused, and disappointing decision; he ruled against Martin and the Chronicle on every point, dissolved the interim order permitting Martin to write, and dismissed the case. However, he granted Martin’s application to appeal, finding that the appeal “presents substantial questions.”

I represented Martin on the appeal. We argued that the Constitution does not stop at the prison gates, and that prisoners retain at least some First Amendment rights. Clearly, prisoners may be restricted from climbing on mess hall tables and making inflammatory speeches to their brethren about lousy food and mistreatment. But there is no reason why prisoners should not be able to communicate with people outside the prison, at least where the officials cannot show that speech restrictions are necessary for prison security.

Martin was still in the Arizona prison when the case came up for argument on August 23, 1991, in the United States Court of Appeals for the Ninth Circuit in San Francisco. I began the argument by noting: “The broad issue before the court is whether the government can effectively prevent publication of prisoner writings by outside mainstream newspapers.” I had to concede that restrictions could be imposed where prison security would be threatened but pointed out that the rules in Martin’s case applied “regardless of whether there’s any effect on prison security.” Of the three judges on the panel, two were fairly conservative Republicans, Ferdinand Fernandez and Cynthia Hall.

Judge Fernandez asked, “What about the effect [of a prisoner writing] on the other prisoners? A prisoner says, ‘You know, every time that jerk [Martin] publishes something, I lose my Sunday Punch and that just really upsets me; I’m gonna’ get that Martin guy.’”

I replied, “That’s a fair question, but I think in the balancing that the court must do of the constitutional interests here you ought to find that it’s better to black out the handful of prisoners, if any, who read the Sunday Punch than it is to black out the hundreds of thousands of people in the general public who read the San Francisco Chronicle and for whom Dannie Martin writes.”

The Bureau’s rules were incoherent and irrational, and the government lawyer, William C. Brown of the Justice Department, had difficulty defending them. At bottom, he had to persuade the court that a logical connection existed between the Bureau’s rules and genuine concern for prison security. Judge Fernandez’s questioning of him gave us some cause for optimism. He got Brown to admit that there was no restriction on television or radio interviews of a prisoner, even on a weekly basis. Then the judge followed up: “Why is it such a wonderful [logical] connection if it’s in a newspaper and there wouldn’t be if it’s a weekly radio or weekly television broadcast? The broadcaster comes in and says, ‘I’d like to interview you, Mr. Martin. What can you tell us about conditions in the Gulag today?’ and Mr. Martin starts reading his article.” Similarly, Brown was forced to say that a prisoner was permitted to write a signed letter to the editor every week, but he could not have a byline on any article because this “increases his power within the prison.”

Judge Fernandez then zeroed in on whether it made sense to allow a prisoner to have a byline in the New Yorker magazine (not considered the “news media” under the rules) but not in Time magazine.

BROWN: With all due respect to the New Yorker, it’s a less influential publication.

Brown tried to explain that prisoners “might get mad” at something in a news publication that “normal” people would not get mad at.

FERNANDEZ: But they wouldn’t get mad if it were in the New Yorker, only in the newspaper?

BROWN: They had to draw a line somewhere.

FERNANDEZ: Little newspapers are worse than big magazines, correct?

BROWN: News-based publications are worse than non-news publications.

FERNANDEZ: So a very little newspaper circulating in a local area is a bigger danger to the prison than a national magazine which is not a news magazine. Correct?

BROWN (for the fourth time): They had to draw a line somewhere.

After hearing argument, the court took the case under sub-mission, to be decided in due course.

I was particularly invested in the issues in Dannie Martin’s case because I did the first prisoner First Amendment case actually argued in the United States Supreme Court: Procunier v. Martinez, a class action on behalf of all California state prisoners, decided in 1974. The case challenged Department of Corrections rules governing prisoner mail, rules that had been authorized by Director Raymond K. Procunier. The rules made it a disciplinary offense for prisoners in their letters to family to “unduly complain,” “magnify grievances,” express “inflammatory political, racial, religious, or other views or beliefs,” or say anything “defamatory” or “otherwise inappropriate.” The evidence showed that officials had censored letters for “criticizing policy, rules, or officials,” and for “belittling staff or our judicial system or anything connected with the Department of Corrections.” The censors used checklists that, as Director Procunier testified on deposition, allowed them to “fill in the blanks” whenever they thought a letter was inappropriate. The rules were explicitly premised on the proposition that mail is a “privilege,” not a “right,” that prison officials may grant or withhold in their discretion.

Indeed, until Martinez, many courts took a hands-off approach to prisoners’ rights cases, deferring completely to the discretion of prison officials and refusing to examine the officials’ justifications for denying rights enjoyed by all other citizens. But sometimes, as in Martinez, the prisons’ policies were so arbitrary and irrational that the courts could not stay their hand. At the argument of Martinez, for example, California Deputy Attorney General Eric Collins, a patrician Australian with a plummy accent, urged the Court to find that prisoners had no First Amendment rights: “We wish the right to follow what we [state prison officials] conceive to be correct penological concepts.” So he argued that the “underpinning of those First Amendment rights does not exist.” The “underpinning” was that the First Amendment is meant to facilitate a “marketplace of ideas” among free people (an echo of Justice Holmes’s Abrams opinion discussed in Chapter 2), and “persons who have been convicted and imprisoned have selected themselves out of a free society.” This provoked Justice Thurgood Marshall, a genuine First Amendment hero, to go on the attack:

MARSHALL: When did they [select themselves out], when they committed the crime?

COLLINS: Yes.

MARSHALL: Well he can still write letters, couldn’t he? And you couldn’t stop him, can you?

COLLINS: Yes.

MARSHALL: You could?! ... When did the state first get that right to stop him from writing a letter—the moment he is arrested?

COLLINS: ... When the person is finally imprisoned within this controlled environment ...

MARSHALL: And the next question is why? ... It’s because he gave it up when he committed the crime?

COLLINS (rattled): No, not. Yes. Yes, that’s true.

MARSHALL: He gave up his First Amendment rights when he committed the crime?

COLLINS: He gave up these particular First Amendment rights when he committed a crime because the underpinning disappears—

MARSHALL: Did he also give up his right to a trial?

COLLINS: No, Your Honor.

MARSHALL: Well, why do you pick out just one right he loses? Did he give up his right to vote?

COLLINS: No, Your Honor.

MARSHALL: He only gave up his right to write a letter?

COLLINS: Yes, sir.

Other justices were more skeptical about declaring that prisoners had First Amendment freedoms and fearful that we were asking the Court to grant prisoners the full panoply of First Amendment rights. Justice Harry Blackmun, then new to the Court, wanted to be assured that prison officials had the right to read prisoner mail (presumably to discover escape plots, drug smuggling, and the like) and asked about other First Amendment rights we were seeking.

I replied, “What we are dealing with here is just expression. It’s not obscenity, not libel, not fighting words. We’re not talking about conduct; we’re not talking about demonstrations, or circulating anything within the prison. Moreover, this is expression contained in letters that are addressed to people who are approved by the Department of Corrections [and on the prisoner’s approved correspondent list].”

In other words, we were not seeking a First Amendment charter of liberty for prisoners, only a constitutional minimum—a right not to be punished for criticizing prison officials or saying things that officials might consider otherwise “inappropriate.”

The decision in Martinez was authored by Justice Lewis Powell for a unanimous court. Clearly chary of opening the courts to a deluge of prisoner complaints, Powell began by noting the traditional “broad hands-off attitude toward problems of prison administration.” But hands off means that prisoners have no enforceable rights. Justice Powell declared that this policy of restraint “cannot encompass any failure to take cognizance of valid constitutional claims.” And Powell recognized that the California mail rules restricted the rights of nonprisoners: the prisoners’ wives’ or mothers’ right to read what the prisoners had to say. They hadn’t been convicted of anything. The Court had no difficulty in concluding that the rules were not necessary to protect any interest in prison security. Rather, the rules “fairly invited prison officials and employees to apply their own personal prejudices and opinions as standards for prisoner mail censorship. Not surprisingly, some prison officials used the extraordinary latitude for discretion authorized by the regulations to suppress unwelcome criticism.” The Court declared the California rules unconstitutional under the First Amendment.

Justice Marshall, joined by other First Amendment heroes, Justices William Brennan and William Douglas, wrote separately to emphasize that a prisoner does not forfeit basic First Amendment rights and is “entitled to use the mails as a medium of free expression not as a privilege, but rather as a constitutionally guaranteed right.” Marshall, Brennan, and Douglas went on to conclude that prison officials should not be allowed even to read prisoner mail: “A prisoner’s free and open expression will surely be restrained by the knowledge that his every word may be read by his jailors and that his message could well find its way into a disciplinary file, be the object of ridicule, or even lead to reprisals.” The majority, however, was reluctant to declare that prisoners enjoyed rights of free expression and emphasized the rights of the outside recipients of prisoner communication.

After the argument in Dannie Martin’s case had gone well, I was hopeful that the Court of Appeals would follow the lead of Martinez and throw out the rules that outlawed Martin’s writing. The Bureau of Prisons must have made a similar assessment, as shortly after the argument and before any decision came down, Martin was released on parole, and the Bureau’s lawyers then asked the court to dismiss the appeal as “moot.” Since Martin was no longer a prisoner, they said, the prison rules did not apply to him and he had no standing to ask that the court rule on hypothetical questions that no longer affected him. We opposed the government’s request, pointing out that Martin was still subject to unclear parole restrictions and could summarily be jerked back into prison for a variety of reasons. But the court, probably relieved that it did not have to decide knotty questions about whether responsible federal prison officials had acted unconstitutionally, summarily dismissed the case as moot. All the expense and effort of trial and appeal came to nothing.

The outcome reminded me of former bureau director Norman Carlson’s testimony at the trial. He testified about the origin of the Bureau’s rules. They had been promulgated in 1977 at the same time as the Bureau abandoned its previous prohibition on press interviews of individual prisoners. The Bureau had vigorously defended that rule, which forbade reporters from singling out individual prisoners for interviews. Carlson testified that the purpose of both sets of rules was to muzzle “anti-establishment” prisoners. He referred specifically to the Berrigan brothers, Jesuit priests who became federal prisoners because of their anti–Vietnam War activities. Carlson testified that “there were a number of inmates in custody who were extremely anti-establishment ... and we felt that there was a need to tighten up to ensure that they did not have access to the media on a regular basis while they were incarcerated. Again, we felt that that was one of the punishments that is intended when people are incarcerated.”

The Washington Post had challenged the no-interview rule in court. Bureau officials testified back then, as they did in Dannie Martin’s case, that their rule was necessary to prevent prisoners from becoming media darlings, “big wheels” who could develop their own power base and challenge the authority of the guards. But unbeknownst to the courts struggling to decide the constitutionality of the no-interview restriction, the officials had already determined, before the case was decided, to change the rule. Testifying in Martin’s case, Carlson said, “We felt that [press interviews] should be a privilege which was extended and not a constitutional right on the part of the inmates, so we purposely waited until that case had gone all the way through the court process before we [abandoned the restriction].” They won that case in the Supreme Court. The restriction was unneeded, but they had made their point, gaining the Court’s imprimatur for restrictions on communication from prisons. They pulled off much the same result in Martin’s case. Though one may credit Carlson’s candor (or naïveté) in confessing the strategy, he earned First Amendment villain status.

When government deceives and manipulates courts, the result is not pretty. And judges are not doing their job unless they are skeptical of government excuses proffered for restricting individual rights. The First Amendment means little if courts simply give government the benefit of the doubt.

After his release Martin continued to write. He collaborated with Peter Sussman on Committing Journalism, a compilation of his prison essays connected by Sussman’s narrative about Martin’s life and his First Amendment case. (He made only one correction in Sussman’s manuscript: he had not “spurned” society’s values in his outlaw days; he had “ignored” them.) Sent back to prison five times on parole violations, Martin was in jail when Committing Journalism came out. He published a few essays from jail, critical of private for-profit operations (“Private Jailer Reaches out to Gouge Convicts”) and of charging prisoners exorbitant fees for basic services such as being booked and visiting the nurse (“Jail Fees a Cruel Twist to ‘Paying Your Dues’ ”). When he was out, Martin also managed to publish two novels, The Dishwasher and In the Hat. But his unique voice as the wise and observant convict was lost, a loss to the many readers whom he educated, entertained, and provoked, in the best tradition of the First Amendment.