Pell v. Procunier – Oral Argument – April 16, 1974

Media for Pell v. Procunier

Audio Transcription for Opinion Announcement – June 24, 1974 in Pell v. Procunier

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Warren E. Burger:

We’ll hear arguments in 73-754, Procunier against Hillery and 73-918, Pell against Procunier.

Mr. Murphy, you may proceed whenever you are ready.

John T. Murphy:

Mr. Chief Justice, may it please the Court.

This case is here on cross-appeals from a decision of a three-judge District Court for the Northern District of California.

And I’m representing Raymond Procunier, who is the Director of the California Department of Corrections and several of his subordinate officials who have been sued in this particular action.

Now, the facts are — are essentially these.

On August 21, 1971, Mr. Procunier based upon his knowledge of the California prison system and based on the sad experience of events concluded that he could no longer permit press and other media interviews with specific individual inmates, and he issued a — a regulation to this effect.

Now, a civil right suit was bought — was brought and the — the plaintiffs in this civil rights suits — suit were news media representatives and were also prisoners.

On November 1, 1972, the District Court single judge acting issued a temporary restraining order which enjoined the operation of Mr. Procunier’s regulation.

As a result of this injunction, interim procedures were adopted by the Department of Corrections and those interim receipt — procedures remain in effect at this time.

On August 16, 1973, the three-judge District Court issued its order in this particular case, the order which is before the Court.

The District Court found that the regulation unnecessarily restricted the First Amendment rights of the inmate plaintiffs in the action.

However, the District Court also concluded that the complaint brought by the media plaintiffs was properly dismissed on the grounds set forth in the motion of the defendants to dismiss the complaint.

Now, the point of Mr. Procunier’s appeal is this.

The California Department of Corrections has a — a real and demonstrated need for the regulation which has now been struck.

The absence of this particular regulation then and now is causing a hazard as far as the care and custody of inmates and the prison situation generally in California.

And furthermore, the decision of the Court as a president tends to undercut the ability of Mr. Procunier to operate his prison system as he thinks it should operated most effectively.

William O. Douglas:

Is it the entire regulation on page 2 of your brief?

John T. Murphy:

Yes, Your Honor.

That is California Department of Corrections Administrative Manual Section 415.071.

William O. Douglas:

Just that once sentence –?

John T. Murphy:

Yes, Your Honor.

Now, this regulation was generated by an emergency situation, namely the killing of three guards and the killing of three inmates and the wounding of others on August 21, 1971.

But aside from having been generated by this particular incident, it involves something more — more deep, it involves an underlying and persistent problem recognized earlier and still recognized today in the operation of the penal system.

So, we are not necessarily treating this as being an emergency regulation, but an important regulation which the Department of Corrections is urging that it could institute or reinstitute today.

William J. Brennan, Jr.:

Mr. Murphy, how is it now been suspended

John T. Murphy:

Since November 1, 1972, Your Honor, by reason of the temporary restraining order.

William J. Brennan, Jr.:

And there have been interviews over that period — since that time?

John T. Murphy:

Yes, Your Honor, pursuant to interim procedures.

William J. Brennan, Jr.:

And have — have there been any difficulties within the prisoners?

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John T. Murphy:

This record would not indicate any specific situations since that period of time, since November 1st?

William J. Brennan, Jr.:

Does the record tell us what — is there any — anything in the record about the experience since that time?

John T. Murphy:

Yes.I could go outside the record.

I —

William J. Brennan, Jr.:

There is nothing in the record?

John T. Murphy:

No, there is nothing in the record, which would indicate what the experience has been of the Department since November 1, 1972.

Warren E. Burger:

What was the date of the three-judge Court to —

John T. Murphy:

August 21st — excuse me, August 16, 1973.

The case had been submitted in February of 1973 and was not decided until August of 1973.

Now, the problem as seen by Mr. Procunier and the other defendants in — in this particular action is what to do about the inmate who has, in the past, or the inmate who will in the future, use the press as a vehicle for promoting his own personal ambitions or leadership in disruptive forces within the prison.

This is what it has been characterized in — in various cases, not just this case, but in another cases, as the big wheel syndrome or the celebrity syndrome.

Now, courts that have looked at this judgment, this administrative judgment, this administrative consideration, have recognized it as a good faith advancement made by prison officials, yet there has been a tendency to put this aside, cast it aside very lightly.

However, it is a very important consideration and it’s a very real consideration, it’s is a very troublesome consideration and that’s why I think this case is here and why Mr. Procunier has brought this — this particular case.

Now, the impact of the press on — on individuals has not gone unnoted by this Court before.

In Estes versus Texas, this Court had the occasion to consider in-depth what the impact of one form of the media would be on witnesses, on jurors, on judges, and attorneys.

Not just in the court group — room setting, but also in their behavior patterns and if you could take that analysis from — from the Estes case and apply it to a prisoner setting, you would come up with — with this result.

When the press attention focuses on an individual inmate, this attracts interest in the prison community from staff and from inmate alike.

As the publicity increases, the status of the inmate within the prison increases accordingly.

It becomes more important.

With the increase in publicity comes increases in tensions.

Now, if the views, if what the inmate is trying to communicate arouses the hostility of others within the prison setting, you have considerable problems.

If that particular inmate is preaching a doctrine of noncooperation, a doctrine of disruption, then those consequences are going to become even more serious.

Thurgood Marshall:

But does this regulation also apply to an inmate who wants to preach Jesus Christ Superstar?

John T. Murphy:

I think it would be clear, Your Honor, that if an inmate were to preach within a prison and he were to preach —

Thurgood Marshall:

— preach into the press?

John T. Murphy:

Oh, preach into the press.

Thurgood Marshall:

Well, suppose he wants to preach in the words of a wonderful man, would that be all right?

But he’d be barred from doing it, wouldn’t he?

John T. Murphy:

He certainly would, Your Honor.

Thurgood Marshall:

It is not the harm and the whole thing, everything is barred.

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John T. Murphy:

Your Honor, we would not advocate a one-sided regulation which would allow those inmates who have something favorable to say to the — to the press about the institution, to speak to the press and yet at the same time —

Thurgood Marshall:

So, you just stop it —

John T. Murphy:

— or bar — bar other inmates who —

Thurgood Marshall:

So, you just stop it all?

John T. Murphy:

— may have something unfavorable.

Thurgood Marshall:

So, you just stop it all?

John T. Murphy:

That’s is right, Your Honor — with alternatives — or whether the inmate is not denied access to the press as a general proposition.

What is the concern here is the press interview, the face-to-face interview.

There is other avenues available and are used and have been used in the past and are being used now for the inmate to communicate to the press.

He can communicate through the mail.

He can communicate through third persons.

Now the record here is very clear and is very substantial.

Thurgood Marshall:

What third persons does he communicate with the press?

John T. Murphy:

What type of —

Thurgood Marshall:

Third person.

John T. Murphy:

What third persons.

Your Honor, he would have the opportunity to talk to members of his family or other people who would be on his visitor’s list.

Thurgood Marshall:

Or his ministers.

John T. Murphy:

Yes, Your Honor.

They are on his visitor’s list.

Thurgood Marshall:

Good, but not the press?

John T. Murphy:

No, he has no right to demand —

Thurgood Marshall:

What makes the press bad people?

John T. Murphy:

The press are not bad people, Your Honor.

The record —

Thurgood Marshall:

Well, what would make the interviewing press may have been?

John T. Murphy:

Because, Your Honor, the problem that has caused on the inmate himself.

This is the situation where the inmate becomes a focus of attention within the prison setting.

Thurgood Marshall:

And aren’t you trying to rehabilitate it?

John T. Murphy:

Yes, Your Honor.

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Thurgood Marshall:

Can you rehabilitate person without paying attention to it?

John T. Murphy:

No, Your Honor.

Thurgood Marshall:

And the more attention you pay — doesn’t that help him in rehabilitation?

John T. Murphy:

Not necessarily, Your Honor.

Potter Stewart:

(Voice Overlap)

John T. Murphy:

It would depend upon the type of attention that was —

Potter Stewart:

Well, it depends upon you and more attention you pay.

Whether it’s the press paying attention to him or whether the prison authorities or whether it’s his minister, his doctor, or whether some — (Voice Overlap) influence.

John T. Murphy:

Yes, Your Honor.

Thurgood Marshall:

But the only bad influence is the press.

John T. Murphy:

No, Your Honor, that’s —

Thurgood Marshall:

(Voice Overlap)

John T. Murphy:

The record here is — is very clear — very clear that a — affirmative and aggressive effort is made by the California Department of Corrections to provide the press with access to the prisons.

In their access to the prisons, they have the opportunity to confront and to meet with inmates.

This is the random process in which many, many excellent press stories have been developed this way.

Both from the point of view of the administration of the prisons and also from the point of the view of the prisoners themselves, it’s not an attempt to cut off all access of the inmate to the outside world through the — through the press.

The problem is with the press interview.

Now, if there were a problem with the family interview or if there was a problem with a clergymen interview, then remedial action would have to be taken, now inmates are allowed to see members of their family because it has been determined that this has a remedial effect in the rehabilitation of the inmate.

However, the same individuals who have made this decision that the family has access to the inmate do not find the same rehabilitative effects to the innate by the face-to-face press interview.

Thurgood Marshall:

And that person is who?

Who makes that decision?

If one is rehabilitative and the other is not and (Voice Overlap) when you do, will you also give me his qualification as a psychiatrist, a psychologist or what are his qualification to make such a determination?

John T. Murphy:

The law of California best seen control and the management and the care of prisoners in the hands of my client, Mr. Procunier and he is the one that is ultimately responsible for making the decisions.

His qualifications have been set out in the — in the record, in the testimony which he gave here in Washington D.C. and the Washington Post case which is going to follow this case, where he was a witness and he — he set forth there what his qualifications were almost 30 years of experience in the correctional field beginning with a custodial officer who will also at one time had been administrators in the State of Utah in the correctional system in the State of Utah.

His experience in rehabilitation is what?

John T. Murphy:

His experience in rehabilitation is through very qualified staff — technical staff which includes psychiatrists, psychologists and correctional experts which he relies upon in making his decision.

He makes his decisions in three steps in effect, you have the correctional problem which is concerned with security and rehabilitation, you have the administrative problem in which he has to think ahead, he must anticipate what the future is going to be as far as his institutions go and he has to take into consideration the legal problems as well.

Because in making his decision without some information is what the legal ramifications of those decisions are, he would not be able to make the right decision.

Now, his testimony in the Washington post case I think is a very illustrative of what the situation was.

As he indicates and this testimony was made a part of the record here, as he indicates in his testimony, that this decision was made with great reluctant, considerable amount of reluctance after much agonizing but he was confronted with a problem, a problem that he, under the Law of California, had to make a decision on and that problem was the effect that these interviews were having on inmates within the institutions.