Skip navigation
× You have 2 more free articles available this month. Subscribe today.

State Prisons Abrogate Attorney-Client Mail Privilege

Just as the federal government has seized on the events of September 11, 2001, to push for a long list of previously desired powers and restrictions on civil liberties, state prison systems have done the same. Several states, including Massachusetts, Virginia, New Jersey, Vermont and Michigan, have enacted rules or policies, which eliminate the right to confidential attorney client correspondence. The general practice, since the U.S. Supreme Court's 1974 decision in Wolff v. McDonnell , 94 S. Ct. 2963 (1974), has been for prison employees to open legal mail from courts and attorneys in the presence of the prisoner to assure the prisoner it has not been opened or read. Likewise, outgoing mail to lawyers and courts is inspected and sealed in the prisoner's presence before it is mailed out.

On October 24, 2001, Michael Maloney, commissioner of the Massachusetts Department of Corrections (DOC), announced that he was suspending 103 CMR 481.12 (2001), a rule which requires that mail from attorneys be opened in the prisoner addressee's presence, and which prohibits the opening of outgoing legal mail unless a fluoroscopic exam revealed the presence of contraband. The purported basis for the policy change is "recent world events." Presumably, Maloney seriously believes that lawyers or judges are going to send Massachusetts's prisoners anthrax via privileged mail.

Attorneys at Massachusetts Correctional Legal Services have filed suit in Suffolk County Superior Court seeking to enjoin the rule change as unconstitutional under the Massachusetts and U.S. constitutions. Courts have long recognized that prisoners have a right to confidential communication with attorneys. The six prisoner plaintiffs challenging the rule allege that it has chilled their communication with counsel and, despite the DOC's claim that legal mail will not be read, has in fact been read by prison employees. A preliminary injunction has been sought in the case. PLN will report its outcome. See: Cashman v. Maloney , Suffolk County Superior Court, Case No. 01-05238-C.

Massachusetts is not alone in exploiting the events of September 11. On November 29, 2001, the Virginia DOC announced that it was abrogating the right to attorney/client privilege and that henceforth legal mail from lawyers would be opened, but not read, outside the prisoner addressee's presence. Virginia prisoners have been given the option of "agreeing" to this process, and getting their legal mail, or not agreeing, in which case the legal mail will be returned unopened to sender, thus leaving them unable to communicate by mail with their lawyers.

The Michigan DOC has also begun opening legal mail outside of prisoners' presence, despite an injunction from previous litigation forbidding the practice and requiring that legal mail be opened only in the prisoner's presence. Contempt proceedings are pending and PLN will report the outcome.

New Jersey and Vermont also made similar changes, however, Vermont rescinded its policy within a month of enacting it.

As a digital subscriber to Prison Legal News, you can access full text and downloads for this and other premium content.

Subscribe today

Already a subscriber? Login

Related legal case

Cashman v. Maloney