The ACLU is taking Pennsylvania’s corrections department to court over copy-and-save legal mail policy

By: - February 18, 2019 11:56 am

In September, the Pennsylvania Department of Corrections announced sweeping policy changes in response to what it called a “growing drug crisis” in its facilities.

One major target was mail, which officials claimed could be tainted by illicit substances.

Personal letters are now sent to a Florida company that scans the original so a copy can be delivered to an incarcerated person. Privileged mail, like a letter from an attorney to her client, is still sent to state prisons.

But how that kind of correspondence is handled after it arrives is the subject of a legal challenge that heads to federal court Tuesday.

The Pennsylvania chapter of the American Civil Liberties Union is suing the Corrections Department, accusing it of violating incarcerated persons’ First Amendment right to confidential correspondence with their attorney.

“This new policy disregards the privileged nature of attorney-client communications and irrevocably compromises the confidentiality of those communications,” the ACLU said in its initial court filing.

Under current policy, a prison worker opens legal mail in front of an incarcerated person, “inspect[s] [it] for contraband,” then makes a copy for the recipient. The original copy is put in an envelope that’s stored for at least 45 days in a “locked/secured receptacle” that can only be opened by an outside vendor. 

According to the ACLU, “Pennsylvania is the first and still only state prison system in the country to copy and store legal mail.”

Three groups that represent and advocate for incarcerated persons — the Pennsylvania Institutional Law Project, Abolitionist Law Center, and Amistad Law Project — are also bringing the suit. 

“The organizations — and many other lawyers — contend that their professional responsibility to safeguard attorney-client communications prohibits them from sending mail under the new process because the act of prison guards copying the mail and storing it out of the prisoners’ presence fails to assure confidentiality,” the ACLU-PA said in a statement. 

The groups are seeking a preliminary injunction to block the policy. 

A spokesperson for the Department of Corrections said it “will defend its policy through the judicial process.”

Corrections officials have argued that keeping paper out of prisons “is essential to shutting down the drug flow.” In August, the DOC instituted a 12-day lockdown of prisons statewide after a number of workers reported feeling ill after possible exposure.

“Remember, we can’t stress this enough, books/mail are really the leading way drugs get into the system. With synthetic drugs in odorless, liquid form, applied to paper, they are virtually impossible to be detected,” a spokesperson told The Incline.

A $15.8 million policy change

The lawsuit does not target the personal mail policy, although there have been plenty of complaints about it as well.

The executive director of the Pennsylvania Prison Society, a nonprofit that advocates for “sensible criminal justice policies,” wrote in the Philadelphia Inquirer that mail can take weeks to arrive, if it arrives at all. “Inmates are getting letters addressed to other inmates. Pictures are coming out blurry or just aren’t scanned at all,” Claire Shubik-Richards wrote.

Sean Damon has been hearing similar issues.

As an organizer with the Philadelphia-based Amistad Law Project, Damon — as well as members of the Coalition to Abolish Death by Incarceration — have been lobbying the Wolf administration to end its contract with Smart Communications, the Florida company that processes prison mail.

The goal is to have the personal mail policy overturned or changed, Damon told the Capital-Star. The “mail policy is straining family connections,” he said, a point family members of incarcerated people have stressed in meetings with state officials.

Some incarcerated persons have told family members to no longer send mail, according to Damon, because the mail is scanned and stored by Smart Communications. There’s a concern, he said, that personal or intimate details could be affected by a data breach or misused by the company.

The new mail policy has had a “chilling effect on people’s abilities to communicate with each other,” Damon said.

Damon described conversations with the Wolf administration as “ongoing,” adding that officials have listened to advocates’ concerns and promised to look into things like examining the cost of processing mail in a state corrections facility.

“We’re hopeful that over time we can make some progress,” he said.

The Corrections Department did not solicit bids for the prison mail contract. Instead, it contracted with Smart Communications through an emergency procurement process, reserved for urgent situations.

Emails obtained through a Right-to-Know request show Corrections Secretary John Wetzel received a list of Smart Communications’ clients on August 13. State officials had a conference call with the Florida company on August 20, nine days before the statewide prison lockdown began.

Wetzel and Smart Communications CEO Jon Logan signed a $15.8 million contract for services through 2021 on September 4, one day before the policy changes were announced.

Updated, 4:18 p.m.

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Sarah Anne Hughes
Sarah Anne Hughes

Associate Editor Sarah Anne Hughes covers the governor and Pennsylvania's agencies. Before joining the Capital-Star, she was the state capitol reporter for Billy Penn and The Incline, and a 2018 corps member for Report for America. She was previously managing editor of Washington City Paper, editor-in-chief of DCist, and a national blogger for The Washington Post.