It's hard to get on Texas's death row these days if you want to interview an inmate there.
According to regulations that cover death row visitations including those by news media almost any news organization that isn't considered mainstream is barred from getting face-to-face with inmates at the Ellis Unit near Huntsville, home of death row.
Although guidelines have been in place since 1985, a recent attempt to codify them is drawing protests. The stipulations on the news media, as well as a new provision that allows for a 70-day suspension of all visitation, were published in the Texas Register on June 4 as a prelude to possible action by the Texas Board of Criminal Justice at a meeting later this month.
However, the regulations drew the wrath of some lawyers and members of the press nervous about limiting access to inmates. In fact, so many people complained about various aspects of the proposal that it was withdrawn last week for more revisions.
Carl Reynolds, general counsel for the Texas Department of Criminal Justice, discovered last month that the department regulations may not comply with the state Code of Criminal Conduct. The code assigns responsibility over visitations to the criminal justice board, which oversees the prison system, so the department believes a formal board policy is needed.
"We don't want to be in violation of our own code," says Glen Castlebury, the TDCJ public information officer who helped pen the regulations.
Castlebury says the proposal is just a bureaucratic formality and that critics are overreacting. Reynolds agrees, saying, "It has been blown out of proportion, since there's no change in practice or policy."
Not so, says defense attorney Maurie A. Levin, director of the Austin-based Texas Capital Defense Project, a nonprofit organization that represents indigent capital defendants. The fact that the regulations are being elevated to state board policy is in itself significant, she says. "If this is passed in the public lawmaking process, that gives them the authority to say no."
On the banned list is almost any media outlet that isn't mass-market news. The regulations read, "News media does not include broadcast programs syndicated by independent producers, or television stations or networks devoted primarily to advocacy purposes or to a particular point of view." Castlebury says the rule aims to sort legitimate news from entertainment and tabloid types.
"Not legitimate" would include Pat Robertson's Christian News Network. According to Castlebury, that network misrepresented itself as a bona fide news service in order to interview Karla Faye Tucker last year, shortly before she became the first woman executed in Texas in more than 130 years. The banned list would also include shows such as those hosted by Montel Williams and Oprah Winfrey, as well as the Discovery Channel and Hard Copy.
But the regulations' definition of what's news and what's not is vague and arbitrary, says Paul Watler, former president of the Freedom of Information Foundation of Texas, a statewide organization headquartered in Dallas that is dedicated to educating the public about First Amendment rights.
"There's a basic principle in First Amendment law that a governmental organization cannot discriminate among persons on the basis of the content of speech," Watler says.
"Damn right it's based on content," Castlebury says. "We're not singling out anyone except those who are advocates."
But even advocates have a right to free speech, Watler says. "The legitimate concerns of prison authorities are safety and security, and the fact that a journalist or news organization advocates a particular point of view is unrelated to security issues."
An advocate, by Castlebury's definition, is someone like Ray Hill, an ex-convict who has a weekly Houston radio show on prison issues.
And Hill says the regulations are the definition of censorship, meant to stifle opposing voices, such as his. "Texas's killing machine is getting increasingly embarrassing on an international scale," he says. "The first people they eliminate access to is the European press, who come from countries without capital punishment and who bad-mouth Texas."
Hill says it's no coincidence that the proposal is being pushed now, while Governor George W. Bush is on the campaign trail. "Texas's death row is a political handicap to George W. Bush. He wants to eliminate it from public discussion."
But discussion is hard to avoid, especially by the foreign press corps, which has been fascinated with the fact that Texas executes more people than any other state. There are now 465 inmates awaiting execution in Texas; almost a third of them, 143, are convicts from Harris County.
"[The foreign press] has a morbid sense of curiosity about Texas inmates, the death penalty and Texas in general," says Larry Todd, a prison-system public information officer.
If the foreign press has any problems getting access to inmates, they stem from practical limitations on the three information officers, Todd says. The staff has to set priorities with the deluge of interview requests, which means that international media has to get in line behind national media, which in turn has to wait behind Texas news organizations.
Besides, Castlebury emphasizes, the only major change to the regulations is a provision that the department's executive director can suspend death row visitations for up to 70 days "for security reasons." But that change is also drawing fire.
Attorney Levin worries that the rule does not specify the kind of risk that would warrant a 70-day moratorium. Castlebury says lockdowns happen frequently and that the only time the Ellis Unit was shut down for more than a day was last Thanksgiving, when seven inmates escaped. Reporters still got interviews with death row inmates, he says, "simply because we didn't want to do a damn thing that could be a potential legal claim."
Levin acknowledges that the department has been accommodating, but she is concerned that, as written, the rule would bar attorney visits during such a lockdown.
The lack of mention about attorney-client privileges is a flaw that will be amended, Reynolds says. The 70 days was put in the regulations just because that is the maximum number of days between board meetings, he says.
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The proposal has been put on hold because of opposition and technicalities involving the upcoming move of death row from the Ellis Unit to the Terrell Unit, Reynolds says. "One problem is that we have bits and pieces touching on death row procedures in different places," he says. "It'd be worthwhile to pull it together into one document."
That could take several months, he says.
In the meantime, the access issues continue to generate interest. More than 1,000 letters of comment have arrived in Reynolds's office since the proposal was first made public last month.
"It's ironic somewhat, in that it is a status quo proposal," Reynolds says. "That tells us about the level of emotion of anything having to do with death row. There's a lot of raw distrust with the way the state handles these men on death row."