How Washington State Weaponizes Victim’s Rights to Silence Prisoners

This article is supported by a grant from The Ridgeway Reporting Project, managed by Solitary Watch with funding from The Vital Projects Fund. 

In February 2021, Washington State Representative David Hackney invited me to testify in support of legislation reforming the state’s use of convictions in juvenile court to increase adult sentences and requiring courts to consider the science around brain development for young adults when deciding on punishments. I was excited to share my story. Given I had entered the juvenile system for the first time at 12 years old, I had a lot to share. I was also with my wife, Chelsea Moore, one of the key authors of the bill.

But when Hackney’s office asked the Department of Corrections to allow me to testify over Zoom, they denied the request saying that, based on contact with Victim Services, my victim’s next of kin “would likely not be okay.” (DOC did allow another person to testify because the mother of their victim “was okay with possible clemency for him.”

I take full responsibility for my choices and the harm I have caused. The last thing I would ever want to do is cause harm to my victims’ loved ones. But I couldn’t understand how my testimony in a legislative hearing would be harmful. I wrote directly to the DOC’s Victim Services Department and asked what policy they were using to block my voice from public forums. I received no response. So, I decided to dig deeper, spending hundreds of dollars and dozens of hours filing public records requests. 

I discovered hundreds of pages of emails and text messages from DOC administrators looking for ways to block me from participating in legislative hearings, a Washington State Supreme Court task force, and a symposium on investigative reporting. The emails show that DOC repeatedly involved Victims Services, a DOC program responsible for working with crime victims, as a reason to restrict me from participating in public events, despite there being no indication that my victims’ loved ones had made such a request.

I’ve been incarcerated for more than two decades in the Washington State prison system. Before that, I spent three years in the juvenile carceral system. I’m used to restrictions on my basic freedoms. But the Supreme Court has ruled that prisoners retain the right to free expression under the U.S. Constitution—with an asterisk: Prison officials can impose significant constraints on the basis of safety or security concerns. Washington DOC, however, is weaponizing a nebulous policy to silence incarcerated people under the guise of victim’s rights.

When I learned DOC’s reason for not letting me testify, I wanted to know whether my victims’ families had actually contacted Victim Services. A public records request I filed shows DOC has no record of any contact between outside parties and Victim Services about my case.

Instead, it seems DOC is making assumptions about victims’ desires—and using those to quash free expression.

In an email exchange I obtained via a public records request, after Sheila Lewallen, the head of DOC’s Victim Services program, told DOC’s Executive Policy Director Melena Thompson I couldn’t testify, Thompson wrote back, asking for more information. “I understand you have had contact, does that mean that you are recommending this individual be excluded from testifying? In other cases you provided more context for the exclusion.” 

Hours later, Lewallen responded, “If someone has enrolled with us for notifications and we have had contact with them and there isn’t anything specifically saying that they aren’t concerned about the person, I am assuming that such testimony would be traumatizing to them.” 

After I was denied, Hackney requested the presence of another incarcerated person, who was also denied due to “victim concerns,” Thompson said. She did not specify what those concerns were. What was clear, neither of us would be testifying in front of the legislature.

Later in 2021, Washington State Supreme Court Chief Justice Steven González requested in a letter to DOC Secretary Cheryl Strange that I speak in front of a task force on racial disparities in the criminal legal system.

“Mr. Blackwell’s perspective as a person who is currently incarcerated would be a valuable addition to this discussion,” González wrote.

At first, Daniel White, the superintendent at the prison where I was incarcerated, told Strange he could arrange for me to participate. But days later, DOC Deputy Secretary Sean Murphy wrote González saying that although they supported including “the voice of someone with lived experience of communities directly affected by racial disparities in the criminal justice system,” they would not be able to accommodate his request. Murphy claimed that a recent rise in COVID cases had resulted in short-staffing, making it impossible for them to make me available for this event. 

At the time, we were quarantined due to a COVID outbreak. But the quarantine was scheduled to end on Sept. 19, ten days before the event was scheduled to occur. 

When my wife told González about the quarantine timeline, he reached out to the DOC again. This time, prison officials had a different reason. They claimed that because the event would be televised, it would constitute a violation of the “no contact” order I had with my victim’s family.  

This made no sense. In Washington State, no-contact orders are a routine sentencing condition in cases involving crimes against another person, including my own case. But my no-contact order makes no mention of televised appearances—nor have I ever heard of any other no-contact order with such a restriction. 

Almost every incarcerated person has a no-contact order. Such a sweeping interpretation of the order would restrict almost every prisoner from speaking in any public forum—even publishing this article. 

Nevertheless, DOC denied González’s request again.

In a 1987 Supreme Court case known as Turner v. Safley, the justices ruled that people in prison keep their right to free expression. “Prison walls do not form a barrier separating inmates from the protections of the Constitution,” Justice Sandra Day O’Connor wrote in the majority opinion. To restrict our freedom of speech, prison officials must have a “legitimate governmental interest.” In other words, they have to have a good reason for prohibiting acts protected by the First Amendment.

I have a hard time believing that the restrictions the DOC has placed on my First Amendment rights—and potentially anyone with a no-contact order—are connected to a “legitimate governmental interest.” In no way are my words used to harm. They are and have continuously been used to humanize the people who reside behind prison walls while working to educate society on topics that help incarcerated people return to our communities far better off than when we entered the system.

It seems clear that Washington State is violating my First Amendment rights, along with those of other incarcerated people who might wish to make their voices heard in public debates. But proving that in court is a challenge. 

“The United States Supreme Court has not overturned any prison policy limiting speech of incarcerated people since Turner was decided in 1987,” said Adrien Leavitt, a staff attorney at the ACLU, in an email. 

The most recent case to reach the Supreme Court over free speech rights was Beards v. Banks in 2006. In that case, the court upheld a prison’s policy of denying access to newspapers, magazines, and personal photographs—supposedly intended to incentivize better behavior—was a legitimate reason to restrict free expression. In case after case, lower courts give prison officials the benefit of the doubt in restricting freedom of speech.

“Nonetheless, incarcerated people can and should challenge prison policies and decisions that infringe on their freedom of speech. The deferential treatment given to prisons regarding speech does not give prisons unfettered discretion in limiting the speech and expression of incarcerated people,” Leavitt added.

Incarcerated people like me do not wish to participate in public forums to harm our victims or their loved ones. Quite the opposite. We are fighting to be in these spaces to share our firsthand experience in hopes of reducing harm. We are fighting to expose the harms taking place in an environment—prison—that, more often than not, operates in complete darkness.

By weaponizing its Victims Services Program, DOC has effectively created a way to select which incarcerated people will and will not speak in public forums. Unsurprisingly, DOC has repeatedly silenced people who are outspokenly critical of their practices. This is a disturbing infringement on incarcerated peoples’ First Amendment rights, but perhaps more importantly, it deprives the public of the opportunity to learn from our experiences with crime, violence, and our broken punishment system.

Incarcerated people have a vital perspective on public safety and the criminal legal system. I have personally used my platform to spread awareness about the circumstances that lead people to commit harm—hurt people hurt people. My partner, Chelsea Moore, and I co-founded an organization, Look2Justice, that works to empower system-impacted people in the legislative arena. We have helped pass bills and change policies that help incarcerated people get relief from excessive sentences around juvenile justice issues and reduced restrictions related to visiting with loved ones by the DOC.

Across the country, incarcerated people have used our voices to call out inhumane prison conditions and advocate policy changes to reduce recidivism and improve public safety. In Texas, for instance, Kwaneta Harris wrote articles documenting the impact of extreme heat on her and other prisoners, which helped prompt officials to install air-conditioning in her unit. Here in Washington, Raymond Williams wrote an op-ed for the Seattle Times that helped convince officials to restore peer-led rehabilitative programs in state prisons.

Incarcerated people must lead the discussion in advocating for change in the legislative process and places where policies are discussed. We must have a space to tell our truths. Through these spaces, we will educate society on the mistreatments that continue to take place in our communities and the carceral system. Without the ability to do this, not only are our constitutional rights blocked, but so are chances to bring change to a system that has far too often functioned in the shadows.

If we are held in the shadows, the harms we suffer from will also remain there.