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States Capitulate on Reading Legal Mail

by John E. Dannenberg

The disturbing trend of several states to inspect legal mail outside the presence of the prisoner [see PLN Mar. 2002 "State Prisons Abrogate Attorney Client Privilege"] has begun to crumble under court challenges. Begun under the pretext of postSeptember 11, 2001 security concerns, Massachusetts, Virginia, New Jersey, Vermont and Michigan suspended existing regulations requiring inspection of such mail only in the presence of the prisoner.

Vermont's practice was commenced by Correctional Commissioner John Gorczyk early in November 2001, allegedly to curb the threat of biological terrorism. But two weeks later, White River Junction District Court Judge Paul Hudson granted a motion by attorney Kirk Williams not to open the attorney mail of his jail client, Max Emery, until Emery physically receives it. The judge found that there was no evidence of any threat. Vermont Department of Corrections (DOC) Deputy Commissioner Hartman indicated DOC would not appeal.

Virginia DOC Deputy Director Gene Johnson announced their policy to inspect all legal mail on Nov. 19, 2001. State ACLU Director Kent Willis had protested this action. "Nothing happened on September 11 or afterwards to justify the reversal of prisoners as observers of the opening of their legal mail," he said. In early March 2002, the Nov. 19 policy was quietly suspended.

In Michigan, a DOC memorandum dated Oct. 24, 2001 announced that "legal mail . . . will no longer be opened in the prisoner's presence." Unfortunately, this violated a longstanding consent decree to the contrary. ( Hadix v. Johnson , No. 4:92CV110, USDC (W.D. Mich. 1992).) The issue had been discussed in Knop v. Johnson , 667 F.Supp. 467, 472 (W.D. Mich. 1987) and on appeal, 977 F.2d 990, 1012 (6 t" Cir. 1992), and was settled. Upon challenge, District Judge Alan Enslen agreed with the Magistrate's findings, holding that "skimming" [i.e., visual scanning] of legal mail outside the presence of the prisoner was a new policy, and was inconsistent with the law of the case. "Neither Anthrax threats nor the other evidence offered by defendants is sufficient to justify reading of legal correspondence since contraband such as Anthrax could be discovered by inspection not involving reading." The Court further found that such reading violates First Amendment rights of access to the court by thus voiding the guarantee of confidential attorneyclient communications. The Court cited Kensu v. Haigh , 87 F.3d 172 (6th Cir. 1996) for the proposition that the policy of opening legal mail only in the presence of the prisoner was designed to protect "the content, . . . and not the method of delivery." The Court ordered DOC to submit a plan within 20 days, if it persisted in this new policy that was consistent with existing case law. See: Hadix v. Johnson , 4:92CV110, Order, Jan. 2, 2002; Order, Feb. 14, 2002.)

Effective Feb. 20, 2002, Massachusetts DOC Commissioner Michael Maloney terminated his emergency suspension order of Oct. 24, 2001 and reinstated the original procedure to open legal mail only in the prisoner's presence. But he had pressure to do so.

Massachusetts Correctional Legal Services attorney James R. Pingeon filed a motion for a preliminary injunction on behalf of prisoner Jeffery Cashman and five others in Suffolk Superior Court on Nov. 20, 2001. While the Court's Dec. 17, 2001 Order denied the preliminary injunction, the language of the opinion, referencing emergency authorizations, led Commissioner Maloney to eventually restore the old rules. See: Cashman v. Maloney , Suffolk Superior Court No. 0105238C, Dec. 17, 2001 Opinion, Cratsley, J.

Additional Sources: Rutland Daily Herald ,Newport Daily Express ,Burlington Free Press, Richmond Times Dispatch

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Related legal cases

Hadix v. Johnson

Cashman v. Maloney