By Tate McCotter, NIJO Executive Director
According to the Supreme Court, one of the elements necessary to assist inmates’ access to courts is prohibiting jail staff from actively interfering with prisoners’ attempts to prepare legal documents1 or otherwise interfering with access by imposing unconstitutional barriers to access courts and counsel.
Written correspondence represents one of the ways those who are incarcerated can effectively communicate with their attorneys for legal assistance. Such written correspondence, both incoming and outgoing, should be considered “privileged” and designated as legal or confidential. Having been designated as such, privileged mail should not be read by jail staff. If mail could be read by the staff, the court reasonably declared it could possibly “chill such communications”2 perhaps making attorney interaction and representation to their inmate clients difficult.
However, the courts have also clearly explained a “privileged” mail designation does not exclude the correspondence from being subject to inspection by staff.
In the case Wolff v. McDonnell3, the Supreme Court stated “The possibility that contraband will be enclosed in letters, even those from apparent attorneys, surely warrants corrections officials’ opening the letters.”
Anyone who has worked with mail in a correctional setting knows inmates and those who send inmates correspondence have tried to sneak in items such as drugs or nude photos under the “privileged” or legal mail umbrella, hoping it will not be inspected at all or less than regular personal mail. For example, a package sent to an inmate marked as “legal” from the law firm of “Jones & Jones” turned up 3 oz of marijuana while being inspected for contraband. Upon further investigation, it turned out the sender ordered a stamp online and selected Jones & Jones because “it sounded very official.” It is also not unusual to find practicing attorneys sending non-privileged correspondence, such as birthday cards, to inmates. Thus, it is important that policies and procedures address associated issues governing the inspection of privileged mail.
- Policies, procedures and operational practices should ensure that inmates can litigate without fear of unlawful retaliation4. Access to courts and counsel should be provided for inmates, including those that may be placed in segregation (administrative or disciplinary).
- Policies and procedures should require the inspection for contraband should only occur in the presence of the inmate to whom the privileged correspondence was addressed. Line level officers or any others involved in inspecting privileged mail should receive proper training reiterating the purpose of the inspection is to discover contraband. They should not read the contents and should be careful the inspection is not perceived as a spy hunt. Making inappropriate comments to the inmate about the contents during the search may open the door to potential litigation and should be avoided.
- Definitions should make it clear in policy (for staff) and clear in the inmate handbook (for inmates) what is considered to be privileged mail status. Those responsible for opening the mail when it enters the facility will not know what is considered privileged or not unless it is marked. This requires the jail to define those requirements and processes. Considerations for such requirements might include the following:
- Envelopes from attorneys should show in the upper left-hand corner the name of the attorney and/or the law firm, and the address of the law firm.
- The sender of the mail should cleary identify and mark the correspondence as privileged by labeling it “PRIVILEGED” or “CONFIDENTIAL LEGAL MATERIAL.” This will notify the staff that the contents of it should be handled as privileged communication.
- The courts have defended jails making such identification requirements of the senders and inmates.5
- One consideration when examining policies is whether the privileged status should be granted to all attorneys or just specific roles, such as the attorneys of record. Some jails and prisons have by policies extended the privileged status to inmate correspondence with courts, the office of the Attorneys General, Department of Justice, facility administrators and even public officials.6 Without clear definitions, a policy may allow, for example, an inmate to receive privileged mail from the county dog catcher. It should be noted that a recent 2015 court decision out of the 6th Circuit Court of Appeals defined all correspondence from the ACLU as “privileged mail.”7 While other courts have not considered ACLU correspondence to be legal mail because it neither contains privileged content nor implicates an attorney-client relationship, especially as mass mailing solicitations, the decision may prove influential if a similar case appears in the future among other circuit courts.
- While jails can have a solid policy on inspecting privileged mail, it should be practiced. Many jails correctly use resources daily to search personal mail but fail to search privileged mail, randomly or routinely, because they simply don’t have the time, staffing or resources. The more alert, consistent and dedicated the staff is in discovering contraband using inspections in the presence of the inmate the more deterred the inmates will be to pass contraband. As aware as the officers may be of whether or not ongoing inspections with privileged mail occur, the inmates are equally aware of what is and isn’t happening. Having a proactive approach to discover contraband pays enormous dividends to enhance the overall safety and security of the jail for inmates and staff alike.
- Lewis v. Casey, 518 U.S. 343 (1996).
- Wolff v. McDonnell, 418 U.S. 539, 577 (1974)
- Wolff v. McDonnell, 418 U.S. 539, 577 (1974).
- Penrod v. Zavaras, 94 F.3d 1399 (CA10 1996); Goff v. Burton, 91 F.3d 1188 (CA8 1996).
- See generally Wolff v. McDonnell, 418 U.S. 539, 579 (1974); S. v. Stotts, 925 F.2d 83 (CA4 1991); Gerrish v. DeLand, 89-C-1084 W (D. Utah 1989); Boswell v. Mayer, 169 F.3d 384 (CA6 1999); Martin v. Brewer, 830 F.2d 76, 78 (CA7 1987)
- See Boswell v. Mayer, 169 F.3d 384, 389-390 (CA6 1999); Moore v. Schuetzle, 486 F.Supp.2d 969 (D. N.D. 2007)
- ACLU v. Livingston County, 14-1617, et. al. (CA6 2015)