Journalists Must Report on Prisons — But We Need to Protect Incarcerated Sources

I first encountered Ivan Kilgore in the spring of 2020. He was fighting a prison transfer, and the organization I was working for at the time, Legal Services for Prisoners with Children (LSPC), was assisting in his legal case. As a content strategist, I put out a call for members of the organization’s grassroots branch, All of Us or None, to write letters to the warden and governor demanding Kilgore remain at his current facility.

The transfer came on the heels of a Vice News video about conditions inside prison during the pandemic. A reporter had reached out to Kilgore to attain footage he had captured on a contraband cellphone. (While cellphones are considered prison contraband, hundreds of thousands are smuggled inside, usually by guards.) The grainy video showed prisoners in large groups huddled together in the dormitory (yard time had been limited with the facility in lockdown) without any protective measures. Vice not only aired the cellphone footage, but the reporter recorded a video interview with Kilgore for the piece, blurring his face but not disguising his voice or any distinguishing body features. The video went viral, with over a half million views. This was a real problem for the California prison department — and they knew exactly who to blame.

Kilgore’s cell was searched. When guards couldn’t find the phone, they ransacked the cells of other men in the prison, telling them that Kilgore was the cause of the intense search and lost privileges. When retribution proved an unlikely solution to the administration’s PR problem — the prisoners were more swayed by the soap and masks that were suddenly available after the video aired — the department attempted to initiate a transfer, a common but wildly disruptive occurrence in the world of a prisoner. Ultimately, the transfer was quashed.

I start here not because it’s where my and Kilgore’s story begins, but rather to illustrate the severity of consequences that prisoners risk when they collaborate with journalists outside prison walls, and how a reporter’s ignorance of these consequences increase that risk significantly.

Protecting the safety of sources has been a staple of journalistic ethics since journalists began using confidential sources centuries ago. In fact, individual reporters have opted to be incarcerated themselves over outing a source. After then-New York Times reporter Judith Miller spent 85 days in jail for not revealing the sources in her coverage of the 2005 Plame Affair, Bill Keller, the executive editor at the time, was quoted as saying, “The law presented Judy with the choice between betraying a trust to a confidential source or going to jail [and] the choice she made is a brave and principled choice, and it reflects a valuing of individual conscience that has been part of this country’s tradition since its founding.”

Sources trust reporters to keep them out of trouble — and prison in many cases — in exchange for information of public interest. But what happens when the source is already imprisoned? The bottom has fallen out. The parameters are different. In prison, “trouble” is defined and punished by people who control every aspect of a prisoner’s life. In that environment, consequences exist in an ever-expanding hall of trap doors. The most consequential thing about prison is that everything has consequences.

Perhaps I was at somewhat of an advantage when I began to interview Kilgore, having only known him from LSPC’s amici curiae and an old photograph we were using in the newspaper to spread the word about his case. The prison administration’s response to the Vice video had both of us on high alert, so before anything, we had to inventory exactly what we were up against.

The first thing you’re aware of when you talk to someone in prison on the phone is that this is more than a two-way conversation. About every three minutes, a cold, robotic voice interrupts the flow of ideas with the standard “This call may be monitored or recorded” disclosure. Those seven words send a message far beyond the obvious: Not only are prisoners under constant surveillance but their environment is designed to be disruptive and disorienting. This applies to telephone communications as well as text messaging, which California has made available via providing prison-issued tablets. To add to the disorientation, the tablets are janky, spasmodic and constantly breaking down.

Over the three years we’ve known each other, Kilgore and I have learned to tune out the recording and we’ve developed a language that allows more delicate topics to be discussed at a surface level but understood on a deeper level. This is not an uncommon phenomenon: Have you ever been at a bar with a close friend, laughing wildly at something the other person said and no one else gets it? Language develops its own rhythm in each relationship, be it a friendship, partnership, or a journalist and a source. What sets prison communication apart is how long and tedious a process it takes to develop that language.

This is likely due to the absence of certain things we take for granted as people who are not living in that environment. In prison, there is no right to privacy, no freedom of speech or consistent contact. While some of these things may exist de facto, everything in prison comes at a cost.

Another incarcerated activist I profile in my book, Reimagining the Revolution, was sent to the security housing unit — known colloquially as the SHU or “the hole” — after our final interview. We communicated indirectly after that through mutual acquaintances. Earlier this year, Kilgore won a summary judgment against correctional officers at Salinas Valley State Prison — the facility that imprisoned him before his last transfer — and he has now begun losing telephone privileges and receiving a higher than normal amount of harassment from the guards at California State Prison Solano, where he is currently incarcerated. These consequences aren’t explicitly associated with being outspoken, but the connection is never subtle.

Some readers will detect a hierarchy in the latter anecdotes and, yes, there is technically a scale for in-custody offenses. Someone involved in a violent act may end up in solitary confinement, while someone who doesn’t make their bed may simply temporarily lose yard time. However, there is a long-term consequence to any infraction that evens out that scale. Infractions or disciplinary “shots” are consistently used as reason to keep someone in prison. Kilgore, for example, became eligible for resentencing under new criminal justice reform legislation, but his disciplinary record, which includes minor infractions, has caused his petition to be denied over and over again. Even though he has dedicated his time in prison to giving back to the society that locked him up — fundraising for a youth basketball team, creating a nonprofit that seeks to advance poor, rural communities and offering college students challenging yet rewarding internship experiences, just to name a few examples — he continues to be defined as someone lacking rehabilitation.

Through much trial and error, Kilgore has identified some concrete adjustments outside organizers and journalists can take to safeguard lines of communication. He encourages the people he works with to secure a “confidential mail” or “legal mail” status, which protects some communications under privilege laws (at least in theory). This can be accomplished by collaborating with a prisoner rights attorney, for example. In-person visits can also make conversations more intimate. While recording devices are not allowed in many prisons, you can take notes. Incarcerated people may also want to take steps to protect their identities when publishing their own writing. When I edited the All of Us or None newspaper, I had incarcerated writers who opted to use pseudonyms.

I would add one additional suggestion: Know before you go. Journalists are trained to be a “jack of all trades,” to know a little bit about everything so you can jump in and cover anything. Hopefully by now you’ve realized that a surface understanding of prison will not suffice. If you intend to embark on one of these painstaking but essential conversations, know your rights; know their rights; know how the prison department in that particular state is supposed to function and how it actually functions (most prisons function with very little oversight). Learn as much as you can about the person you’re talking to before you actually talk to them. See if they’ve written articles, or books, or have been interviewed before. Put all the cards on the table: Define what you are working on, how your interaction may impact them and what options they have to safeguard themselves.

The stories of inhumane prison conditions and injustices inflicted upon the people locked up in the most incarcerated nation in history need to be told, but not at the cost of journalistic integrity, and certainly not at the cost of the people willing to tell those stories.