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Filed 6:00 a.m.
08.19.2019

In Sickness, In Health—and In Prison

A Nebraska couple fighting to marry behind bars wouldn’t be the first: Three decades ago, two prisoners took their bid to marry all the way to the U.S. Supreme Court.

Najeebah Al-Ghadban for The Marshall Project

Niccole Wetherell and Paul Gillpatrick were engaged in 2012. The state of Nebraska has prevented their wedding ever since.

Wetherell is serving a life sentence for first-degree murder, housed in a prison about 50 miles away from her fiance, Gillpatrick, who is serving a 55-to-90-year sentence for second-degree murder.

This story was published in collaboration with Longreads.

The pair, who met in 1998 prior to their incarceration, have come to accept they cannot marry in person. Instead, they want to wed via video conference, and they want an end to a prison policy that forbids Nebraska inmates from marrying each other except in “special circumstances.” Wetherell and Gillpatrick argue they have a “fundamental right to marry.”

In June, U.S. District Judge Robert Rossiter affirmed that right. The case is now in appeal. But the legal precedent Rossiter cited has a quirky history that involves an infamous co-ed prison, an impromptu wedding, a soon-to-follow divorce and a U.S. Supreme Court decision.

That decision, Turner v. Safley, established how courts should weigh the constitutionality of prison regulations and has formed the legal basis for prison weddings across the country—most often between one incarcerated person and someone on the outside. It opened the doors for a niche industry of officiants who specialize in prison weddings. And its clear articulation of marriage as a fundamental human right was even cited in Obergefell v. Hodges, the landmark Supreme Court decision that in 2015 affirmed the right to marriage for same-sex couples.

It all started in 1980 at a prison in Missouri.

Renz Correctional Center was a three-story white building nestled in the Missouri River bottoms north of Jefferson City, about 120 miles west of St. Louis. Designed as a minimum security prison farm for men, by the 1980s Renz had turned into what corrections officials called a “complex prison”: one that housed both women and men.

Renz Correctional Center in March 1986. The prison closed after being destroyed by flooding in 1993.

The women were mostly medium- and maximum-security inmates. Many had been convicted of killing abusive husbands or boyfriends, and were sent to Renz after an inmate stabbed the superintendent of an overcrowded and violent women’s prison in Tipton, Missouri, in 1975.

By 1982, Renz housed 138 women and 90 men, according to reporting from the Kansas City Star at the time. That created a “mixture of security problems and volatile problems, such as rivalries between competing suitors” involved in love triangles, prison officials said then. Attorney Henry Herschel, who represented Renz superintendent William Turner on behalf of Missouri’s attorney general, remembers male inmates passing soda bottles containing semen to try to impregnate female inmates.

“Superintendent Turner was constantly trying to stop women from getting pregnant,” Herschel said.

State officials also worried that Renz lacked adequate security features, so to keep order Turner turned to regulation: He implemented a strict “no touching” rule. Male and female inmates interacted only for about an hour each day. Turner also implemented strict policies to regulate mail and marriages between inmates.

That was the situation at Renz in 1980, when Leonard Safely, who was serving a short sentence for writing bad checks, met Pearl Jane “P.J.” Watson, there on a 23-year sentence for killing a former boyfriend.

The two got to know each other in the prison’s exercise yard—and, the Kansas City Star reported, “romance seemed to blossom.”

But a romance novel it was not. Shortly after they began a relationship, Safley and Watson had what court documents describe as a “noisy lovers quarrel.” Safley was sent to a different prison and later to a halfway house. The two tried to stay in touch via letters.

Trades, such as sewing, were taught in the educational wing at Renz Correctional Center in August 1978.

Missouri, however, mostly allowed letters between inmates only if they were immediate family members. Safley did his best to get around mail restrictions at Renz. He opened a post office box under the fake name “Jack King,” and recruited his mother and friends to mail letters for him. Some made it to Watson, but many were refused. When Safley went to Renz to see Watson on a weekend pass from his halfway house, his visit, too, was refused.

Safley and Watson also wanted to get married. At the time, the Missouri Division of Corrections was not required to help an inmate get married, but also was not specifically authorized to prohibit inmate marriages. At Renz, however, marriage requests were often denied.

Fed up, Safley sued prison officials in 1981, challenging the marriage, mail and visitation rules.

“I’ve never fought for anything so hard or wanted anything so much as to marry P.J.,” Safley told Richard M. Johnson, a staff writer at the Kansas City Star, in 1982.

Leonard Safley in his room at the Kansas City Honor Center, in a 1982 clipping from The Kansas City Star.

Watson seemed to feel similarly.

“I love Lenny. I’m going to marry Lenny,” she told the newspaper. “To me, it’s wrong for them to do this. I sit in here, wondering how he is, and when he writes me I don’t get it. I was just really getting depressed.”

Shortly after filing the lawsuit, Safley and Watson found a workaround. At a preliminary injunction hearing in March 1982, Safley’s attorney Floyd Finch offered Judge Howard Sachs the opportunity to resolve the case quickly.

“We've got an officiant here, and we've got the wedding ring and a marriage license. So if you wouldn't mind letting us use your courtroom, we can go ahead and get this case resolved right now,” Finch remembers telling Sachs.

The attorney for the state objected. But Sachs told The Marshall Project he remembers being surprised and amused by the marriage proposition, and saw no “substantial state interest” in preventing it.

In that courtroom in Missouri, with Finch serving as the best man and giving away the bride, Safley and Watson wed.

“Those whom God has joined together, let no man put asunder,” said the Rev. Johnny Blackwell, a Methodist pastor who officiated the wedding, as Safley placed a ring on Watson’s finger, according to the Kansas City Star.

They exchanged vows and a kiss—it all lasted about five minutes. Afterward, Finch remembers the couple was allowed to sit together for about 10 minutes. There was no honeymoon.

Not long after the wedding, Finch and attorney Cecelia Baty visited Renz. They wanted to see if other inmates had complaints about the marriage and correspondence rules. What they found helped them construct a class action case.

Inmates told the attorneys their letters had been returned, and several women had been denied permission to marry because Turner believed it was not in their best interest or because of their relationship history. One woman’s request was denied “because she did not know enough about” her fiance, according to court documents from the state. Another inmate couple was denied in part because the woman had “an extended sentence for her crime and was from an abused situation which contributed to her imprisonment for murder.” One woman was denied permission “because she was in protective custody and could not identify any of her enemies.”

In December 1983, in the middle of the class action lawsuit, the Division of Corrections changed its policy on inmate marriages. Whereas the old policy did not require the division to facilitate marriages but didn’t give specific permission to prohibit them, the new policy required a superintendent’s approval for inmates to marry. Prison officials were only supposed to approve marriages “where there are compelling reasons to do so.”

The new regulation did not define what would constitute a “compelling reason.” But testimony made the definition clear: pregnancy or a child born out of wedlock.

The trial on the class action suit began Feb. 23, 1984 and lasted five days.

Representing Safley and the other inmates, Finch and Baty argued that the regulations at Renz were an unreasonable restriction on inmates’ fundamental First Amendment and marriage rights. Turner’s rules, they argued, were born out of a protective attitude toward the women under his custody.

Herschel, representing the state, argued that the restrictions were necessary for Turner and the Renz staff to fulfill their obligations to rehabilitate inmates and keep the facility secure.

A few months after the trial, Judge Sachs used a legal standard known as “strict scrutiny” to rule the marriage regulation unconstitutional, calling it “far more restrictive than is either reasonable or essential for the protection of any state security interest, or any other legitimate interest, such as the rehabilitation of inmates.”

Standard living quarters for female inmates at Renz Correctional Center resembled college dormitory rooms in August 1978.

Sachs’s ruling said the decision by two adults to marry was a personal and private one. “Even inmates have the right to make their own mistakes,” he wrote.

Case in Point

An examination of a single case that sheds light on the criminal justice system

Sachs also ruled the prohibitions on inmate-to-inmate correspondence were “unnecessarily sweeping” and had been “applied in an arbitrary and capricious manner” that infringed on First Amendment rights.

The state appealed to the Eighth Circuit, which upheld Sachs’s rulings that the mail and marriage prohibitions were unconstitutional. So Herschel petitioned the Supreme Court to hear the case. At oral argument in January 1987, Justice Antonin Scalia questioned the value of a prison marriage in the first place, citing what he called the attributes of an “ordinary marriage” that are missing in prison.

“Well, Justice Scalia, if you asked the inmates here why they want to get married, they give, in my opinion, a compelling response,” Finch answered. “Because they want to spend their life with someone, even if it’s only by mail.”

Scalia wasn’t satisfied.

“Couldn’t they make that commitment just as well by sending them a fraternity ring?” he asked.

There was laughter in the courtroom before Finch was able to respond.

“I don’t think that the religious attributes of a marriage ceremony can be fairly equated with a fraternity ring,” he said. “...the important thing about the marriage decision is that the inmate is standing up and saying, hey, while I may be incarcerated, I’ve got a right to look forward to a better life. I’ve got a right to plan on something after this institution.”

The justices decided the case in June 1987. In the majority opinion written by Justice Sandra Day O’Connor, the court upheld Missouri’s mail regulations because they were “related to legitimate security concerns,” not restrictive of “all means of expression” and content neutral.

On the other hand, the “almost complete ban on marriages,” the court found, was not “reasonably related to legitimate penological objectives.”

The justices acknowledged that the right to marry “is subject to substantial restrictions as a result of incarceration,” but determined that many benefits of marriage—emotional support, religious significance, legal and property rights—were “unaffected by the fact of confinement.”

Herschel wasn’t particularly surprised by the ruling on marriage, which he acknowledged was the state’s less compelling argument.

“It was weak,” Herschel remembered, “because we were telling adults, however many mistakes they have made, what to do.”

But the most significant part of the Turner v. Safely decision was the Supreme Court’s determination that prison regulations that infringe upon inmates’ constitutional rights must be “reasonably related to legitimate penological interests.”

The court laid out a test to assess reasonableness, including considering whether the rules are rationally connected to a legitimate government interest and whether inmates have alternative ways to exercise their constitutional rights.

Opening Statement

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Justices John Paul Stevens, Thurgood Marshall, William Brennan and Harry Blackmun concurred with the majority striking down the marriage restriction, but dissented on the approval of the correspondence regulation and the application of the reasonableness standard.

“Application of the standard would seem to permit disregard for inmates' constitutional rights whenever the imagination of the warden produces a plausible security concern and a deferential trial court is able to discern a logical connection between that concern and the challenged regulation,” Stevens wrote. “Indeed, there is a logical connection between prison discipline and the use of bullwhips on prisoners.”

The decision was in some ways a pyrrhic victory for Safley and Watson. Sometime between the Supreme Court’s oral argument and when the ruling was issued, they were divorced. The legal precedent their marriage set would last for decades, but the marriage itself only a few years.

“These marriages may not all work out,” Finch had told the justices during oral argument. “But at least they’ve got a right to try to make a better life for themselves.”

Gillpatrick and Wetherell, the two Nebraska inmates, are still waiting to be married.

The Nebraska attorney general is appealing the district court’s decision that prohibits prison officials from denying the couple’s request for a e-wedding ceremony, according to a spokesperson who offered no comment on the case when reached by The Marshall Project. The Nebraska Department of Correctional Services also said it could not comment on pending litigation, but confirmed that the policy preventing marriages between inmates except in special circumstances is still in place.

That’s the policy the district judge declared “facially unconstitutional under Turner v. Safley.”

The department has thus far refused to facilitate an e-wedding ceremony based on its interpretation of a state law that it believes requires couples be physically present during wedding ceremonies, according to court documents.

Prison officials are not alone in their opposition to the marriage.

“I live with my son’s death every day, and don’t think anyone that lives with a life sentence deserves this right,” said Denise Abts, the mother of Wetherell’s victim, in a 2014 statement to KETV in Omaha.

“I don't think we need to spend a lot of money litigating this for these people…” said former CNN host Ashleigh Banfield in a 2014 Legal View segment discussing the case. “You lost your liberty. Deal with it. So did your victims, for a lot longer and a lot more painfully.”

Gillpatrick and Wetherell did not respond to a request for comment sent via their attorney, Amy Miller of the ACLU of Nebraska.

Miller said that while the couple was happy with the June ruling in their favor, they “also had the tempered awareness that the state was probably going to continue to fight them.”

Three decades after Safley sat in the Supreme Court and 25 years after flooding closed the prison where his love story started, “this isn’t an issue that’s going to go away,” Miller said. ”Especially in a country that continues to have a mass incarceration problem.”