Attorneys say state prison policy on legal mail has stymied communication with clients

By: - February 19, 2019 2:21 pm

A lengthy back-and-forth on copiers and paper jams isn’t the most compelling courtroom drama, but it gets to the heart of a lawsuit against the state Corrections Department and its new legal mail policy.

After a statewide prison lockdown last fall, the Department of Corrections instituted sweeping changes designed to keep drugs out of its facilities. At the moment, a prison worker inspects mail from attorneys and courts, makes copies for prisoners, then seals the original documents in an envelope.

Envelopes are stored in a secured receptacle that is controlled by an outside vendor then destroyed after 45 days, according to the state.

The ACLU of Pennsylvania, alongside groups that advocate for and represent incarcerated persons, argued in federal court Tuesday that this new policy violates the First Amendment by not guaranteeing attorney-client confidentially.

Davon R. Hayes, a plaintiff who is incarcerated at the Smithfield correctional facility in Huntingdon County, testified via video that he believes his legal mail has been read by the prison worker who makes the copies and stores the original documents.

Hayes can see the prison worker open his mail through a metal gate, he told U.S. District Court Judge John E. Jones III, but cannot clearly witness his documents being copied. He said the prison worker holds his confidential documents up to a light and flicks the paper, presumably to check for contraband.

On one occasion, the prison worker apologized to Hayes for opening his mail outside of his presence, he told the court.

ACLU-PA, the Pennsylvania Institutional Law Project, Abolitionist Law Center, and Amistad Law Project are seeking a preliminary injunction to block the policy.

READ MORE: The ACLU is taking Pennsylvania’s corrections department to court

Mary Catherine Roper, deputy legal director at ACLU-PA, and Leane Renee of the Office of the Federal Public Defender said they no longer send confidential mail to clients in state prisons.

Before the 2018 lockdown, Roper said ACLU-PA sent legal mail on official letterhead in envelopes marked with state-provided stickers that feature a unique attorney ID number. Renee followed the same process, sending mail through FedEx.

That changed after September 2018, when the lockdown ended and the Corrections department put new policies in place.

Both Renee and Roper said attorneys from their organizations visit incarcerated clients when they can, but long drives make that prohibitive. Neither was contacted by the state before the lockdown about issues with drugs entering facilities through legal mail.

Roper described the new policy as a “complete loss of control” — neither she nor her clients know definitively what happens to the original legal documents after the prison takes custody.

This is especially concerning, she said, when the legal mail may contain allegations or complaints leveled at a corrections officer. Hayes testified that a prison worker once read his legal mail during a cell search and called him a “rat.”

In addition, ACLU-PA is no longer sending information about referrals to incarcerated persons seeking their help, Roper testified. She estimated that the organization gets hundreds of requests a year.

An attorney for the Corrections department asked both Renee and Roper if reading mail is a violation of the October mail policy, which it is. The attorney also asked Roper where the attorney stickers used on envelopes are stored; Roper testified they are in an unlocked drawer in an office.

The trial is expected to continue for several days.

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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.