Sunshine filters in to Mass. jail with gloomy history

Bristol County, Mass., Sheriff Paul Heroux is seeking to close a jail with a gloomy history, and last week he gave journalists a look inside.

Built in 1888, the Ash Street Jail in New Bedford, Mass., housed Lizzie Borden during the 1893 trial in which she was acquitted of killing her father and stepmother. The "Lizzie Borden House" is a tourist attraction in nearby Fall River, Mass., today. Undoubtedly the site of executions in Bristol County, Ash Street is often said to be the site of the last public hanging in Massachusetts, in 1898. Records conflict (compare O'Neil with O'Neill, and see Barnes), but if it's not, it's close enough. The commonwealth changed its method of execution to the electric chair in 1900.

Purchase St., New Bedford, Mass., 1888.
Whaling Museum photo via New Bedford Guide.

One of the oldest jails in continuous operation in the United States, Ash Street gained new notoriety beginning in the late 20th century, especially after 1997 during the tenure of Sheriff Thomas Hodgson. In 25 years of service as sheriff, after prior service in local politics, Hodgson earned national press for hardline measures such as the removal of televisions and gym equipment from the jail, the imposition of room-and-board charges for detainees, the institution of chain gangs, and an offer of detainee labor to the Trump Administration to help build the border wall.

Meanwhile, Hodgson was unapologetic for conditions within the jail. Former detainees complained of uncontrolled mold, uncontained sewage, and intolerable cold and heat (WBUR). The complaints have been controverted. A former jail official lauded staff and facility in a 2022 letter to the New Bedford Guide, for example, and a news reporter, upon a tour of the facility in 2016, wrote favorably of a modernized interior.

When Heroux toppled Hodgson in the 2022 election, closing the Ash Street Jail was part of his platform.

President Trump and Sheriff Hodgson at the White House, 2019.
Trump White House Archives via Flickr (public domain)

Former Sheriff Hodgson is reminiscent of an infamous character in the annals of freedom of information law, Sheriff Thomas Lafayette Houchins, Jr., of Alameda County, California. Houchins lent his name to Houchins v. KQED, Inc., a 1978 U.S. Supreme Court case regarded generally as standing for the proposition that the First Amendment does not articulate a right of access to public places, if not more broadly foreclosing use of the First Amendment as any kind of freedom of information act.

In my 2012 casebook, Law of Access to Government, I contextualized Houchins with some biographical information about the sheriff (relying on sources such as the East Bay Times).

Thomas Lafayette Houchins, Jr., was a leader in the sheriff 's department in the 1960s and earned a reputation for uncompromising law enforcement. A veteran law enforcement officer, Houchins had joined the department in 1946 after serving in World War II as a Marine Corps fighter pilot. He was elected sheriff in 1975 and retired in 1979. In 1969, Houchins commanded a force of sixty or more deputies in crowd control at what became an infamously tragic concert headlined by the Rolling Stones. He recounted thirty years later: "Some guy jumped off an overpass because somebody told him he could fly. They lied. Another jumped into the [Delta Mendota Canal] because they told him he could swim. They lied to him, too.... I think we had five deaths and five births, so we came out even." Houchins died at his California home in 2005.

The Houchins case centered on news media investigation of the Santa Rita jail. Reporters wanted to tour "Little Greystone," a part of the jail in which "shocking and debasing conditions" were alleged to have caused inmate illnesses and deaths.

Houchins is one of a family of First Amendment access cases in which the Burger Court put the brakes on the liberal interpretations of the First Amendment that characterized the civil rights era. However, to the dismay of President Richard Nixon, who appointed him, Chief Justice Warren Burger was only marginally effective in rallying the Court to reverse the civil rights direction of the predecessor Earl Warren Court.

Houchins reflects that equivocation. Though Houchins's bar review flash card might read simply "no 1A access to public places," the decision came from a fractured Court of only seven justices and an opinion of only three. Harry Blackmun and Thurgood Marshall did not participate, the former having had recent surgery and the latter recusing. Burger was joined by only two others, including his successor as Chief Justice, William Rehnquist, in the opinion of the Court. They formed a majority of four with the addition of Justice Potter Stewart. (Read more about the fracas behind the scenes from Matthew Schafer.)

Concurring, Stewart joined Burger's conclusion on the facts of the case; he had been the author of two prior Court decisions, in 1974, rejecting press access to prisons or prisoners. Yet in his opinion in Houchins, he speculated that media might articulate a First Amendment claim on better facts. With three dissenters arguing at least as much, thus outnumbering the Burger contingent, Houchins arguably left the jailhouse gate open to a First Amendment theory, if you'll forgive the metaphor. Media law aficionados will recognize a pattern akin to Branzburg v. Hayes (1972), in which similar equivocation on the Court, aided later by clever advocacy from media lawyers, left the problem of constitutional reporter's privilege in disarray.

Much of the dispute in Houchins can be characterized as a frame-of-reference problem. In its broadest frame, Houchins is about public access to places to hold public officials accountable. That seems reasonable. But when I teach Houchins, students are quick to find the media position untenable, reading the case more narrowly as about reporters demanding access to any part of the prison, perhaps even with minimal advance notice.

That dichotomy in framing plays out in the public protests and media frustration over access to the Ash Street Jail in recent decades. There were tours; the writer who toured Ash Street in 2016, cited above, was then a reporter for public radio WBUR. Just like in Houchins, protestors and former detainees of the facility complained that public tours were limited and staged, showing reporters only what officials wanted them to see. Officials said that wider public access would jeopardize the security of the facility and the people inside, both detainees and workers.

The theoretical solution that emerged from Houchins, such as the case held, is that supervision of "non-public public places" should be accomplished not through the free press of the First Amendment, but through political accountability at the ballot box. To some degree, that's what happened when Heroux became sheriff in 2022. At the same time, prison conditions raise a peculiar problem in majoritarianism, familiar in criminal justice and civil rights contexts, and resonant in debate today over policing: The political system is not a reliable way to protect the rights of jailed persons, a minority class widely regarded with little sympathy.

On balance, I don't know whether the truth of the Ash Street Jail is closer to the horrifying complaints of former detainees or to the confident assurances of public officials. Whether constitutionally or statutorily, sunshine must be allowed to penetrate prison walls.