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New Jersey "Anthrax" Legal Mail Policy Unconstitutional; Count Condemns Opening Outside Prisoner's Presence

The Third Circuit Court of Appeals has held that a New Jersey Department of Corrections' (NJDOC) policy of opening prisoners' legal mail outside their presence is unconstitutional. That policy was enacted by a NJDOC memorandum dated October 19, 2001. The memo came on the heels of five people dying after mail processed at a Hamilton, New Jersey mail processing center contained anthrax, infecting those who died.

That incident caused prison officials to take advantage of September 11, 2001, executive order issued by New Jersey's acting Governor, who declared a state of emergency that allowed state agency heads to "waive, suspend, or modify any existing rule the enforcement of which would be detrimental to the public welfare during this emergency."

The state of emergency was still in effect in August 24, 2006, as was NJDOC's new legal mail policy. That mail policy resulted in the filing of two civil rights actions by NJDOC prisoners. These suits resulted in differing opinions. In one, injunctive relief was denied while the other resulted in the policy being found unconstitutional, warranting injunctive relief. The losing parties in those cases appealed, and the Third Circuit consolidated them.

First, the Third Circuit noted that it is well settled that a "pattern and practice of opening properly marked incoming legal mail outside a prisoner's presence ... chills protected expression and may inhibit the inmates ability to speak, protest, and complain openly, directly, and without reservation with the court." The Court reaffirmed its previous ruling that an explicit policy such as here "impinges upon the inmate's right to free speech." This is so because "the only way to ensure mail is not read when opened ... is to require that it be done in the presence of the inmate to whom it may be addressed." Thus, rejecting NJDOC's position it did not read such mail, only inspected it.

The Court rejected, immediately, a suggestion that prisoners must prove "some injury-in-fact beyond the infringement of constitutionally protected speech." When a prisoner claims a free speech violation for opening legal mail outside his presence, he need show no injury, "aside from the violation itself."

With that settled, the Court then applied the test in Turner v. Safely, 482 U.S. 78. 84 (1987). Prison officials asserted a penological interest of protecting the safety and security of NJDOC prisons through the reduction of the risk of anthrax contamination in prisons. They relied upon the September 11, 2001, events and the letters with anthrax posted in October 2001 that contained anthrax spores.

It was believed by the Court that those events could "justify a temporary, emergency measure involving the opening of a prisoner's legal mail in his absence." Yet, those events are years past without any other such events.

Moreover, there is no reasonable basis to conclude that a prison would be the subject of an anthrax attack; nor is there "a reasonable basis for believing that risk would be materially reduced by opening letters from lawyers and courts." The Court found no reasonable connection between NJDOC's arrested interests and the policy of opening legal mail in the absence of the prisoner addressee.

Therefore, the Court affirmed the finding that NJDOC's anthrax legal mail policy is unconstitutional and order granting injunctive relief to remedy that violation. It ordered an identical order being entered in the action holding otherwise. Prison officials, however, were entitled to qualified immunity from money damages. See: Jones v. Brown, 461 F.3d 353 (3rd Cir. 2006).

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Related legal case

Jones v. Brown