Severe Restrictions on Mail to PA’s Prisons Harm People Inside — And Undermine Attorney-Client Privilege

by Sara Rose

Imagine that you’re incarcerated in a Pennsylvania prison. Your primary means to connect with the world outside — your loved ones, your friends, and your attorneys — is the mail.

But under a new DOC policy, the only mail you receive are photocopies. Birthday cards signed by your family or a drawing sent by your child — you only get the photocopy. Legal correspondence that may or may not include sensitive information or grievances against employees of the prison — you only get the photocopy.

In August, the Pennsylvania Department of Corrections (DOC) locked down every prison in the state, returning all mail received during the two-week period to its sender. After the lockdown ended in September, the DOC began confiscating all incoming legal and personal mail, only allowing prisoners a photocopy of their correspondence. The DOC holds the original copies of legal mail for 45 days. All other mail is destroyed after it’s scanned it, but searchable digital copies are maintained for seven years. According to the DOC, the intent of the new mail policy is to prevent “unknown substances” from entering DOC facilities. But the result of the policy is to undermine prisoners’ relationships with their families, friends and attorneys.

Attorneys representing individuals in Pennsylvania’s state prisons have no faith that their correspondence with their clients will be kept confidential under this new policy, and experts in legal ethics have recommended that lawyers with clients in the state prisons should stop communicating by mail. But the other options lawyers have for communicating with clients in state prison — in person or by phone — are not feasible. The state prisons where their clients are housed are often hours away from the lawyers’ offices and setting up confidential phone calls is often difficult. Mail is the only option most lawyers have to communicate regularly and securely with clients who are in prison.

Even in the most incarcerated nation on the planet, this policy is without precedent in any jail or prison from coast to coast.

That’s why the ACLU of Pennsylvania is part of a lawsuit filed last month challenging the new policy’s restrictions on legal mail and demanding that the DOC identify alternative methods to prevent contraband from entering its prisons. In an interview after the lawsuits were filed, the DOC secretary admitted that contraband entering the prisons via legal mail is rare and that the policy is a preemptive move. The DOC is severely compromising attorney-client confidentiality with no real evidence of a problem.

Depriving attorney-client communications of confidentiality chills prisoners’ constitutionally protected expression under the First Amendment. This violation of the First Amendment is the basis of our litigation.

This is a crucial test-case for jails and prisons nationwide whose administrators may be watching the outcome of this case to determine the future of their own mail policies. In this sense, Pennsylvania is ground-zero for protecting the rights of prisoners in accessing their mail and confidential attorney-client correspondence.

Certainly, the DOC should take the necessary steps to ensure the safety of its employees. Safety of DOC employees, however, cannot and must not infringe on the First Amendment protections of prisoners or their attorneys.

Joining the ACLU of Pennsylvania in the litigation are the Pennsylvania Institutional Law Project, the Abolitionist Law Center, Amistad Law Project, and Schnader Harrison Segal & Lewis LLP.

Sara Rose is Senior Staff Attorney at ACLU of Pennsylvania.