By Skylar Laird
COLUMBIA — The state’s prison system does not have to allow interviews with inmates, a federal appeals court decided, echoing a decision from a lower court.
Three federal judges dismissed a lawsuit by the state’s American Civil Liberties Union, upholding a Department of Corrections policy prohibiting in-person and phone interviews with inmates.
The ACLU wants to publish interviews with two prisoners: Death row inmate Marion Bowman, whose execution warrant is expected in January, and Sofia Cano, a transgender woman who the ACLU represents in a separate lawsuit claiming the corrections department illegally declined to give her hormone treatment.
The ACLU can speak to the inmates through its legal team, but the organization wanted an employee who is not an attorney to conduct the interviews and publish them on the group’s blog, an attorney for the group argued last month. Attorneys, law enforcement and investigators are allowed to interview inmates.
Not allowing that violates the group’s First Amendment right to free speech, the ACLU argued.
In their decision, the three appeals judges pointed to past court cases saying reporters, or anyone else conducting interviews, do not have the right to more access or information than the general public. Because members of the public can’t walk into a prison and talk to inmates, neither can anyone looking to interview inmates for publication, the order reads.
Whether an interview is to be conducted in person or over the phone, SCDC’s policy applies equally to the media and the general public,” the appeals judges wrote.
Inmates can write letters to anyone they’d like, including reporters, giving them an acceptable alternative to phone calls and in-person visits, the judges wrote.
Corrections staff also give reporters tours of the state’s 21 prisons, and reporters can sometimes interview inmates, though the topics are limited to the reason for the tour, such as the inmate’s participation in a certain program.
The department has said its policy is in place for safety reasons. Inmates could divulge information that creates a security risk, get famous from an interview or use code words to get a message to someone outside, attorneys told the court last month and have written in legal filings.
Prisoners who violate the policy can lose certain privileges.
That was the case for Alex Murdaugh, who a jury convicted last year of killing his wife and son, and Susan Smith, who was convicted of killing her two young sons in 1994. Both lost phone and computer access after giving out information for documentaries, Smith to a filmmaker and Murdaugh to his attorney, who was recording the call.
Sofia Cano’s case
Cano’s case arguing the state should provide her hormones as a method of gender transition is ongoing. The ACLU asked a judge in October to make a decision without going to trial in an effort to speed along a decision.
Attorneys for the corrections department argued against that request, saying the judge did not have the facts required for a judgment.
The federal lawsuit, which the ACLU filed in 2022, argues the corrections department is illegally denying Cano access to hormone therapy.
The human rights group also wants the court to guarantee that Cano has access to makeup, nail polish and razors to shave her face; that staff will use Cano’s preferred pronouns and legal name; and that she will be able to choose her roommates or have a room to herself, according to legal filings.
Cano currently has razors to shave her face, and she is in a room with another transgender inmate, who she has said she feels safe around, the corrections department said in response.
Cano had access to nail polish and makeup until recently, when the warden of the prison where she is housed decided the products were creating a security risk because inmates could use the makeup to cover bruises and cuts in order to hide fights from officers, or to dress up pillows like people in escape attempts, the department’s filing continued.
Transgender inmates can access hormones if they pay for the treatment, as well as the hourly rates of the officers transporting them to a medical facility, out of their own pocket, the ACLU said in legal filings.
Cano, who is 22, pleaded guilty but mentally ill to voluntary manslaughter in 2019 for fatally stabbing her mother 28 times four years earlier, when she was 13 years old. She was diagnosed with autism during evaluations while awaiting trial, which her attorneys said made her unable to process her emotions, the Greenville News reported in 2019.
She was 17 when she was sentenced and sent to Kirkland Correctional in Columbia as Miguel Cano.
While in prison, Cano began to experience gender dysphoria, an extreme form of distress that happens when a person’s outward gender presentation differs from how they see themselves. She legally changed her name to Sofia, but her prison record still uses her prior name.
And department staff declined to give her hormone therapy, which causes a person to appear more like the gender with which they identify, the lawsuit claims. Department policy is to give a person gender-transition hormones only if they started treatment before entering the prison, the ACLU said in legal filings.
The department’s policy came from a directive first included in the 2014 fiscal year budget and adopted every year after. The budget clause prohibits the department from using state taxpayer dollars to pay for sexual reassignment surgery and directs the department to continue providing hormones to inmates who were using them before their arrest. But the budget clause does not address whether the public should pay for hormonal treatments for inmates diagnosed after they’re imprisoned, a judge pointed out in an order directing the corrections department to evaluate Cano for gender dysphoria.
After hiring a doctor to evaluate Cano, the corrections department is arguing that she does not have gender dysphoria or need hormone treatments, and that Cano should first undergo intensive therapy about her crime, which she has resisted in the past, according to legal filings.
Earlier this year, legislators passed a ban on state tax dollars going toward any gender transition procedures, including hormones. But that state law won’t have any bearing on the case, which argues a ban would violate the U.S. Constitution, an attorney for the ACLU said, adding that if a federal judge agreed, that would supersede any state law.
The ACLU wants to interview Cano to give the public a firsthand account of what it’s like to struggle with gender dysphoria behind prison walls, the organization said in its First Amendment lawsuit.
“To make an informed decision about the propriety of transgender healthcare bans, the public has a right to hear about the devastating physical and emotional costs of denying medical care to individuals with gender dysphoria,” the lawsuit reads.
Marion Bowman
The ACLU’s case gained speed after executions resumed in September, giving the group a deadline to interview Bowman before he faces the state’s death chamber.
Bowman, 44, was convicted of shooting a 21-year-old Orangeburg mother to death in 2001. Claiming the woman, Kandee Martin, owed him money, Bowman got in her car and instructed her to drive to a rural part of Dorchester County, where he shot her repeatedly, according to court testimony.
After unsuccessfully trying to sell Martin’s car, Bowman returned to the scene of the killing, put her body in the trunk, and set the car on fire, court documents read. He was convicted in 2002 of arson and murder.
Based on a schedule the state Supreme Court released in August, Bowman will be the next inmate up for execution. The earliest he could receive a death warrant would be Jan. 3 after judges on the state’s high court agreed to pause executions until after the winter holidays.
As Bowman applies for clemency, the ACLU wants to publish him telling his story in his own words, according to court filings.
This article originally appeared in South Carolina Daily Gazette on December 16th, 2024
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