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AZ Dept. of Corrections caught reading private inmate-lawyer mail

In 2011, an Arizona state prison inmate was infuriated when corrections officers read his confidential correspondence with his attorney, even though it was marked "legal mail." He sued the Department of Corrections for violating his Sixth Amendment right to counsel, among others.

A federal district court judge dismissed the lawsuit as stating no valid claim. The Ninth Circuit Court of Appeals reversed that ruling and ordered the judge to rehear the case.

He did, but next ruled that the Department of Corrections had not violated any rights. The inmate appealed again, and now the Ninth Circuit has found the inmate's Sixth Amendment right to counsel had indeed been violated. They also found that the Arizona Department of Corrections' policy was an exaggerated response to nonexistent security concerns.

Page-by-page review of inmates' mail meant to detect contraband

The department's legal mail policy says that corrections officers must inspect -- but not read -- inmates' outgoing legal mail in their presence, but "only to the extent necessary to determine if the mail contains contraband, or to verify that its contents qualify as legal mail and do not contain communications about illegal activities."

That seems reasonable enough, until you read the broad definition they're using for "contraband," which seems to require officers to read, not just inspect. According to the DOC, contraband is "[a]ny non-legal written correspondence or communication discovered as a result of scanning incoming or outgoing legal mail."

That policy results in every inmate's confidential attorney mail being read by corrections officers -- even though there was no evidence outgoing legal mail had ever posed a security risk.

"Because there is no evidence that legitimate outgoing legal mail has posed a security threat, a readily available alternative means suggest that ADC's policy is an 'exaggerated response' to prison concerns."

That's a violation of the inmates' Sixth Amendment rights. "At most," reads the opinion, "a proper inspection entails looking at a letter to confirm that it does not include suspicious features such as maps, and making sure that illegal goods or items that pose a security threat are not hidden in the envelope."

The case is being sent back to that original trial judge for a system-wide determination of the risks to inmates' Sixth Amendment rights. Since he seemed unaware of the problem, the panel included a recommendation:

"ADC could use procedures to ensure that outgoing legal mail is sent to a licensed attorney, rather
than inspecting the contents to make sure that the letter concerns legal subject matter."

In other words, the prison can inspect -- but not read -- legal mail.

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