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06-28-2004, 12:42 AM
November 13, 2003 ACLU
http://www.aclu.org/Prisons/Prisons.cfm?ID=14391&c=26
MAIL IN PRISON
The Supreme Court has held that the First Amendment of the Constitution entitles prisoners to receive and send mail, subject only to the institution's right to censor letters or withhold delivery if necessary to protect institutional security, and if accompanied by appropriate procedural safeguards.[1] (http://www.aclu.org/Prisons/Prisons.cfm?ID=14391&c=26#_ftn1) Thus, institutions should have a rational security reason for every restriction placed on the receipt or sending of correspondence – be it the limited number or length of letters received by inmates or what cannot be sent to the inmates.
If the institution cannot present a rational security reason for a restriction, then the restriction should be challenged. However, an institution may have the authority to read certain inmate's mail if it has probable cause to believe the inmate is conspiring with persons outside the prison to traffic in contraband or to arrange a breakout.
It is important to remember that any “arbitrary opening and reading of . . . mail [with] no justification--other than harassment" may violate the First Amendment.[2] (http://www.aclu.org/Prisons/Prisons.cfm?ID=14391&c=26#_ftn2) Prison officials' ability to inspect and censor mail depends on whether the mail is non-privileged (commercial mail), "privileged" (attorney-client mail), or "general" correspondence (letters from family members, friends, and businesses).
Non-Privileged Mail
The Constitution permits incoming non-privileged mail to be opened outside the inmate's presence.[3] (http://www.aclu.org/Prisons/Prisons.cfm?ID=14391&c=26#_ftn3) Prison officials can read non-privileged mail for security or for other correctional purposes without probable cause and without a warrant.[4] (http://www.aclu.org/Prisons/Prisons.cfm?ID=14391&c=26#_ftn4) Business and commercial mail may be treated as non-privileged; disagreements exist, however, regarding whether or not mail to and from the media is privileged.
Some courts restrict the reading of outgoing mail.[5] (http://www.aclu.org/Prisons/Prisons.cfm?ID=14391&c=26#_ftn5)
Although some prisons have sought to restrict inmates’ access to downloaded information from the Internet, courts have held that inmates can receive snail mail that contains Internet-generated information.[6] (http://www.aclu.org/Prisons/Prisons.cfm?ID=14391&c=26#_ftn6)
Privileged Mail
"Privileged" mail is entitled to greater confidentiality and freedom from censorship. Privileged mail may be briefly held to verify the identity of the addressee.[7] (http://www.aclu.org/Prisons/Prisons.cfm?ID=14391&c=26#_ftn7) In order for mail to be treated as privileged, it must be clearly marked.[8] (http://www.aclu.org/Prisons/Prisons.cfm?ID=14391&c=26#_ftn8) Privileged mail may be checked for contraband but cannot be read in the ordinary course of prison routine.[9] (http://www.aclu.org/Prisons/Prisons.cfm?ID=14391&c=26#_ftn9) The “contraband” check must be conducted in front of the inmate.[10] (http://www.aclu.org/Prisons/Prisons.cfm?ID=14391&c=26#_ftn10) Outgoing privileged mail may generally be sent unopened.[11] (http://www.aclu.org/Prisons/Prisons.cfm?ID=14391&c=26#_ftn11)
Some courts have also accorded privileged status to mail to and from various public officials and agencies of state, local, and federal government.[12] (http://www.aclu.org/Prisons/Prisons.cfm?ID=14391&c=26#_ftn12)
What Can a Prisoner Do If Privileged Mail is Opened Outside an Inmate’s Presence?
An inmate may choose to file an action in federal court concerning a single piece of legal mail that was opened outside his/her presence; however, a court will probably dismiss the case. This is not because an inmate's rights were not violated, but because a federal court may rule that a prison receives a large volume of letters each day and may make a mistake once in a while. On the other hand, a court may not dismiss the lawsuit if there is a showing that the inmate was actually harmed by the opening of the letter outside the inmate's presence. Examples of actual harm would be if the prison official's policy is to open all privileged mail outside the recipient's presence, if the letter is copied, or if information contained in the letter is used against the inmate.
When an inmate receives a piece of privileged mail that has been opened outside his/her presence, s/he should file a grievance. It is difficult for prison officials to deny that this error did not happen since most prisons require an inmate who receives privileged mail to sign for it or a guard to sign a book to acknowledge that the inmate received the mail. Usually, prison officials will admit that they erred, and that such accidents will not occur in the future. The inmate should keep a copy of this grievance in case this act happens again. If the error happens again, the inmate should file another grievance, mentioning the previous one and the prison official's response. If s/he can establish that the prison has a policy to open privileged mail outside the recipient's presence, then the inmate may win a lawsuit.
Last updated 6/03.
[1] (http://www.aclu.org/Prisons/Prisons.cfm?ID=14391&c=26#_ftnref1) Hudson v. Palmer, 468 U.S. 517, 547 (1984).
[2] (http://www.aclu.org/Prisons/Prisons.cfm?ID=14391&c=26#_ftnref2) Parrish v. Johnson, 800 F.2d 600, 604 (6th Cir. 1986).
[3] (http://www.aclu.org/Prisons/Prisons.cfm?ID=14391&c=26#_ftnref3) See Martin v. Tyson, 845 F.2d 1451, 1456-57 (5th Cir. 1988), cert. denied, 488 U.S.
863 (1988).
[4] (http://www.aclu.org/Prisons/Prisons.cfm?ID=14391&c=26#_ftnref4) See Smith v. Boyd, 945 F.2d 1041, 1043 (8th Cir. 1991).
[5] (http://www.aclu.org/Prisons/Prisons.cfm?ID=14391&c=26#_ftnref5) See Wolfish v. Levi, 573 F.2d 118, 130 (2d Cir. 1978), rev'd in part on other grounds sub nom. Bell v. Wolfish, 441 U.S. 520 (1979).
[6] (http://www.aclu.org/Prisons/Prisons.cfm?ID=14391&c=26#_ftnref6) Clement v. Cal. Dep’t of Corr., 220 F. Supp. 2d 1098 (N. Cal. 2002).
[7] (http://www.aclu.org/Prisons/Prisons.cfm?ID=14391&c=26#_ftnref7) See Guajardo v.Estelle, 580 F.2d 748, 758-759 (5th Cir. 1978) clarified on other grounds by McFarland v. Leyh (In re Texas Gen. Petroleum Corp.), 52 F.3d 1330 (5th Cir. 1995).
[8] (http://www.aclu.org/Prisons/Prisons.cfm?ID=14391&c=26#_ftnref8) See O'Donnell v. Thomas, 826 F.2d 788, 790 (8th Cir. 1987).
[9] (http://www.aclu.org/Prisons/Prisons.cfm?ID=14391&c=26#_ftnref9) See Reneer v. Sewell, 975 F.2d 258, 260 (6th Cir. 1992).
[10] (http://www.aclu.org/Prisons/Prisons.cfm?ID=14391&c=26#_ftnref10) Id.
[11] (http://www.aclu.org/Prisons/Prisons.cfm?ID=14391&c=26#_ftnref11) See Davidson v. Scully, 694 F.2d 50, 53 (2nd Cir. 1982).
[12] (http://www.aclu.org/Prisons/Prisons.cfm?ID=14391&c=26#_ftnref12) See Muhammad v. Pitcher, 35 F.3d 1081, 1083-86 (6th Cir. 1994).
http://www.aclu.org/Prisons/Prisons.cfm?ID=14391&c=26
MAIL IN PRISON
The Supreme Court has held that the First Amendment of the Constitution entitles prisoners to receive and send mail, subject only to the institution's right to censor letters or withhold delivery if necessary to protect institutional security, and if accompanied by appropriate procedural safeguards.[1] (http://www.aclu.org/Prisons/Prisons.cfm?ID=14391&c=26#_ftn1) Thus, institutions should have a rational security reason for every restriction placed on the receipt or sending of correspondence – be it the limited number or length of letters received by inmates or what cannot be sent to the inmates.
If the institution cannot present a rational security reason for a restriction, then the restriction should be challenged. However, an institution may have the authority to read certain inmate's mail if it has probable cause to believe the inmate is conspiring with persons outside the prison to traffic in contraband or to arrange a breakout.
It is important to remember that any “arbitrary opening and reading of . . . mail [with] no justification--other than harassment" may violate the First Amendment.[2] (http://www.aclu.org/Prisons/Prisons.cfm?ID=14391&c=26#_ftn2) Prison officials' ability to inspect and censor mail depends on whether the mail is non-privileged (commercial mail), "privileged" (attorney-client mail), or "general" correspondence (letters from family members, friends, and businesses).
Non-Privileged Mail
The Constitution permits incoming non-privileged mail to be opened outside the inmate's presence.[3] (http://www.aclu.org/Prisons/Prisons.cfm?ID=14391&c=26#_ftn3) Prison officials can read non-privileged mail for security or for other correctional purposes without probable cause and without a warrant.[4] (http://www.aclu.org/Prisons/Prisons.cfm?ID=14391&c=26#_ftn4) Business and commercial mail may be treated as non-privileged; disagreements exist, however, regarding whether or not mail to and from the media is privileged.
Some courts restrict the reading of outgoing mail.[5] (http://www.aclu.org/Prisons/Prisons.cfm?ID=14391&c=26#_ftn5)
Although some prisons have sought to restrict inmates’ access to downloaded information from the Internet, courts have held that inmates can receive snail mail that contains Internet-generated information.[6] (http://www.aclu.org/Prisons/Prisons.cfm?ID=14391&c=26#_ftn6)
Privileged Mail
"Privileged" mail is entitled to greater confidentiality and freedom from censorship. Privileged mail may be briefly held to verify the identity of the addressee.[7] (http://www.aclu.org/Prisons/Prisons.cfm?ID=14391&c=26#_ftn7) In order for mail to be treated as privileged, it must be clearly marked.[8] (http://www.aclu.org/Prisons/Prisons.cfm?ID=14391&c=26#_ftn8) Privileged mail may be checked for contraband but cannot be read in the ordinary course of prison routine.[9] (http://www.aclu.org/Prisons/Prisons.cfm?ID=14391&c=26#_ftn9) The “contraband” check must be conducted in front of the inmate.[10] (http://www.aclu.org/Prisons/Prisons.cfm?ID=14391&c=26#_ftn10) Outgoing privileged mail may generally be sent unopened.[11] (http://www.aclu.org/Prisons/Prisons.cfm?ID=14391&c=26#_ftn11)
Some courts have also accorded privileged status to mail to and from various public officials and agencies of state, local, and federal government.[12] (http://www.aclu.org/Prisons/Prisons.cfm?ID=14391&c=26#_ftn12)
What Can a Prisoner Do If Privileged Mail is Opened Outside an Inmate’s Presence?
An inmate may choose to file an action in federal court concerning a single piece of legal mail that was opened outside his/her presence; however, a court will probably dismiss the case. This is not because an inmate's rights were not violated, but because a federal court may rule that a prison receives a large volume of letters each day and may make a mistake once in a while. On the other hand, a court may not dismiss the lawsuit if there is a showing that the inmate was actually harmed by the opening of the letter outside the inmate's presence. Examples of actual harm would be if the prison official's policy is to open all privileged mail outside the recipient's presence, if the letter is copied, or if information contained in the letter is used against the inmate.
When an inmate receives a piece of privileged mail that has been opened outside his/her presence, s/he should file a grievance. It is difficult for prison officials to deny that this error did not happen since most prisons require an inmate who receives privileged mail to sign for it or a guard to sign a book to acknowledge that the inmate received the mail. Usually, prison officials will admit that they erred, and that such accidents will not occur in the future. The inmate should keep a copy of this grievance in case this act happens again. If the error happens again, the inmate should file another grievance, mentioning the previous one and the prison official's response. If s/he can establish that the prison has a policy to open privileged mail outside the recipient's presence, then the inmate may win a lawsuit.
Last updated 6/03.
[1] (http://www.aclu.org/Prisons/Prisons.cfm?ID=14391&c=26#_ftnref1) Hudson v. Palmer, 468 U.S. 517, 547 (1984).
[2] (http://www.aclu.org/Prisons/Prisons.cfm?ID=14391&c=26#_ftnref2) Parrish v. Johnson, 800 F.2d 600, 604 (6th Cir. 1986).
[3] (http://www.aclu.org/Prisons/Prisons.cfm?ID=14391&c=26#_ftnref3) See Martin v. Tyson, 845 F.2d 1451, 1456-57 (5th Cir. 1988), cert. denied, 488 U.S.
863 (1988).
[4] (http://www.aclu.org/Prisons/Prisons.cfm?ID=14391&c=26#_ftnref4) See Smith v. Boyd, 945 F.2d 1041, 1043 (8th Cir. 1991).
[5] (http://www.aclu.org/Prisons/Prisons.cfm?ID=14391&c=26#_ftnref5) See Wolfish v. Levi, 573 F.2d 118, 130 (2d Cir. 1978), rev'd in part on other grounds sub nom. Bell v. Wolfish, 441 U.S. 520 (1979).
[6] (http://www.aclu.org/Prisons/Prisons.cfm?ID=14391&c=26#_ftnref6) Clement v. Cal. Dep’t of Corr., 220 F. Supp. 2d 1098 (N. Cal. 2002).
[7] (http://www.aclu.org/Prisons/Prisons.cfm?ID=14391&c=26#_ftnref7) See Guajardo v.Estelle, 580 F.2d 748, 758-759 (5th Cir. 1978) clarified on other grounds by McFarland v. Leyh (In re Texas Gen. Petroleum Corp.), 52 F.3d 1330 (5th Cir. 1995).
[8] (http://www.aclu.org/Prisons/Prisons.cfm?ID=14391&c=26#_ftnref8) See O'Donnell v. Thomas, 826 F.2d 788, 790 (8th Cir. 1987).
[9] (http://www.aclu.org/Prisons/Prisons.cfm?ID=14391&c=26#_ftnref9) See Reneer v. Sewell, 975 F.2d 258, 260 (6th Cir. 1992).
[10] (http://www.aclu.org/Prisons/Prisons.cfm?ID=14391&c=26#_ftnref10) Id.
[11] (http://www.aclu.org/Prisons/Prisons.cfm?ID=14391&c=26#_ftnref11) See Davidson v. Scully, 694 F.2d 50, 53 (2nd Cir. 1982).
[12] (http://www.aclu.org/Prisons/Prisons.cfm?ID=14391&c=26#_ftnref12) See Muhammad v. Pitcher, 35 F.3d 1081, 1083-86 (6th Cir. 1994).