The Seventh Circuit Court of Appeals has held that a jury could conclude the Bureau of Prisons’ (BOP) ban on face-to-face interviews with death row prisoners was not based on security threats related to such prisoners becoming jailhouse celebrities and inflaming tensions with other prisoners, but because policymakers did not want death row prisoners to promote a “glamorization of violence.” The appellate court found the BOP’s policy could eliminate any meaningful access to the media, in violation of the First Amendment and the Equal Protection Clause.

Before the Seventh Circuit was the appeal of federal death row prisoner David Hammer. That appeal ensued after an Indiana federal district court granted summary judgment to the BOP and prison officials on a challenge to the media interview ban.

Hammer was among the first prisoners incarcerated at the Special Confinement Unit (SCU), which houses federal death row prisoners in Terre Haute, Indiana. When Hammer gave three face-to-face interviews with media agencies between August and December 1999, there were no security problems. In late December 1999, Hammer was instructed by prison officials not to provide the media with any information about other prisoners.

A month later Hammer was disciplined for giving a reporter information about another death row prisoner, but he was not barred from giving face-to-face interviews. After CBS aired a national broadcast of 60 Minutes in March 2000 that featured an interview with Oklahoma City bomber Timothy McVeigh, politicians began clamoring for the BOP to prevent a “convicted killer” from “intrusion into our lives through television interviews and from using those forums to advance his agenda of violence.”

On April 12, 2001, then-Attorney General John Ashcroft announced a BOP policy that prohibited face-to-face media interviews with death row prisoners on any subject at any time. Hammer sued, and obtained a reversal of an initial dismissal by the district court. See: Hammer v. Ashcroft, 42 Fed.Appx. 861 (7th Cir. 2002).

On remand, Hammer filed three requests for discovery. Rather than reply, the government defendants moved for summary judgment and objected to the discovery requests. Hammer filed a motion for a continuance that was denied by the district court, which then entered summary judgment for the defendants.

The Seventh Circuit applied the four-prong test of Turner v. Safley, 482 U.S. 78 (1987). Hammer’s evidence suggested the driving force behind the interview ban was not security concerns, “but rather outrage over McVeigh’s message and a desire to prevent death row [prisoners] from expressing their views about themselves or their fates and thereby influencing ‘our culture.’”

Prior to the McVeigh interview there were no security concerns about such interviews. Yet after the 60 Minutes interview aired, all media requests for face-to-face interviews with Hammer were denied. Most significantly, when the new policy was announced, Ashcroft explained he wanted to deny death row prisoners a platform to spread their “irresponsible glamorization of a culture of violence.” That, the Seventh Circuit held, was evidence of the government’s actual motivation, which created a jury question.

In addition, the appellate court questioned whether the BOP policy left available any meaningful way for Hammer to discuss his case, which involves prisoner witnesses to the murder of his cellmate. That issue involves the prohibition on Hammer talking to the media about other prisoners. Thus, the Court of Appeals found that the district court improperly granted summary judgment on Hammer’s First Amendment claim.

The Seventh Circuit likewise found in favor of Hammer’s equal protection claim, as the BOP policy does not apply to all SCU prisoners, only to those on death row. The appellate court further held it was improper to deny Hammer’s motions for appointment of counsel and a continuance.

The district court’s summary judgment order was reversed and remanded for further proceedings. Note that the Seventh Circuit has agreed to rehear this case en banc, and the full court decision is still pending. See: Hammer v. Ashcroft, 512 F.3d 961 (7th Cir. 2008), rehearing en banc granted.

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