Federal Judiciary

John Ashcroft To Stand Trial for Death Row Media Policy?

By Robert Loblaw

Hammer v. Ashcroft, 06-1750 (7^th Cir., Jan. 15, 2008)

In a major prisoner appeal, the Seventh Circuit has revived a federal death row inmate?s lawsuit over the Bureau of Prison?s ban on in-person media interviews. The high profile defendants include former Attorney General John Ashcroft and former BOP director Kathleen Hawk-Sawyer, both of whom are sued in their individual capacity.

Plaintiff David Hammer lives in the Special Confinement Unit at the federal prison in Terre Haute, where all federal death row inmates are held. Hammer was sent to the SCU for killing his cellmate; although his death sentence has since been vacated, he was unable to participate in several interviews due to the SCU?s strict rules regarding media interviews.

One such rule is a ban on in-person media interviews that was enacted after 60 Minutes broadcast Timothy McVeigh?s interview with CBS. The interview provoked outcry over whether death row inmates should have a platform for their “agenda of violence.” In response, Ashcroft announced plans to put new limits on SCU inmates contact with the media. With Hawk-Sawyer at his side, Ashcroft held a press conference to announce the new policy, referring repeatedly to McVeigh and his victims.

Hammer sued, arguing that the new rules violated his First Amendment and Equal Protection rights. The district court dismissed his suit at the pleading stage, but the Seventh Circuit reversed in an earlier decision. On remand, the district court denied each of Hammer?s three motions to have an attorney appointed, denied Hammer?s motion to postpone summary judgment so that he could complete discovery, and ultimately granted summary judgment to the defendants.

On appeal a second time, the Seventh again reverses. The Court explains that Hammer has raised a genuine issue as to whether the BOP?s policy is necessary for safety and security. Based on the timing and circumstances of the SCU ban, a jury will get to resolve Hammer?s claim that the policy was a result of public pressure arising from the McVeigh interview and not any legitimate penological concerns. The Court also concludes that Ashcroft and Hawk-Sawyer are proper defendants based on their prominent role in announcing the new policy. Finally, the Court holds that the district court abused its discretion by denying Hammer?s request for counsel.

Will Ashcroft really stand trial? This could get interesting.

Full post as published by Decision of the Day on January 15, 2008 (boomark / email).