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USA: Prisoners Who Speak Out Receive Punishment, Suit Says

by Peter BlumbergSan Francisco Daily Journal
August 23rd, 1999

Two inmates allege in a lawsuit to be filed today that state corrections officials violated their civil rights by punishing them for helping the media expose a prison labor program as an illegal sweatshop, according to their lawyers.

The potentially explosive allegations against the California Department of Corrections are the latest in a series of inmate suits claiming unlawful retaliation for exercise of First Amendment rights.

The state superior court suit says the two prisoners at Richard J. Donovan Correctional Facility near San Diego were disciplined with more than six weeks of solitary confinement and ultimately transferred to other facilities because prison officials suspected the inmates had tipped a television reporter to broadcast a story alleging that prisoners were being exploited by a garment company that paid them sub-minimum wages to tag imported clothes with phony "Made in U.S.A." labels.

In papers to be filed in Los Angeles Superior Court, inmate plaintiffs Charles Ervin and Shearwood Fleming say the CDC threw them into solitary confinement for 45 days after a San Diego TV station broadcast allegations that inmates were being ordered to remove "Made in Honduras" labels from finished garments and replace them with "Made in U.S.A." labels.

Spearheaded by the Law Offices of Robert Berke, a Santa Monica civil rights firm, and Bahan & Herold, a labor law firm in Pasadena, the suit names as defendants not only the CDC and CMT Blues, the garment firm alleged to have engaged in the unlawful label-switching, but also several well-known garment retailers alleged to have sold deceptively labeled garments.

"These inmates were punished for no other reason than blowing the whistle on their employer's far-reaching scheme to defraud California's consumers,'' said lead counsel Joseph Pertel.

The suit says the charges that landed Ervin and Fleming in solitary confinement were later dismissed, but that the inmates were subsequently transferred to more restrictive facilities with less access to their families and the media.

CDC documents obtained by the plaintiff's attorneys say the transfers were "due to the sensitive nature of the Joint Venture Program (with CMT Blues) and the negative impact the news media placed on this program.''

Noting that similarly explicit documentation has been introduced in other pending retaliation suits to try to establish CDC's motives for disciplining outspoken inmates, Pertel commented: "They were brazen in the way they felt they could act with impunity.''

CDC and CMT Blues have denied any wrongdoing in the garment sewing program, with CDC asserting in a 1997 letter to the San Rafael-based Prison Law Office that the program provides valuable work experience for inmates and complies with state labor laws and federal guidelines.

CDC's chief spokeswoman was unavailable to comment on the retaliation lawsuit, but the agency generally declines comment on pending litigation.

Prisoner and media advocates say the spate of inmate litigation gives the legislature good reason to relax tight restrictions on media access to prisoners imposed by former Gov. Pete Wilson. A bill that would repeal Wilson's regulations banning one-on-one interviews and confidential correspondence between inmates and reporters is poised to clear to the Senate this week and move to the desk of Gov. Gray Davis, who has not publicly taken a position on the measure.

Proponents of AB1440 by Assemblywoman Carole Migden, D-San Francisco, say the cases demonstrate a pattern on CDC's part of punishing inmates to squelch adverse publicity about problems inside the state's sprawling correctional system.

CDC officials have vigorously contested such allegations in public statements and in court, denying any conspiracy to silence inmates. Under Wilson, the department defended its inmate interview restrictions as a reasonable safeguard against inmates turning themselves into celebrities and asserted that the restrictions have not hampered media scrutiny of the penal system.

But to Peter Y. Sussman, a former Northern California Society of Professional Journalists president who has written extensively about media access to prisons, the CDC's insistence that it honors free speech is harder to believe with every new complaint that lands in court.

"I think all of these cases show the extreme sensitivity of the Department of Corrections to what the press reports -- sensitivity to the point of punishing people for their contacts with the media," Sussman, now a Berkeley-based freelance writer, said last week when asked for comment on the new lawsuit.

Editors note: Governor Davis vetoed the bill and let the Wilson ban on media interviews with prisoners stand.

A longer version of this piece originally appeared in the San Francisco Daily Journal. Reprinted with permission.





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