PHOENIX — A federal appeals court has ruled that the Arizona Department of Corrections violated an inmate’s constitutional rights after an officer read his outgoing legal mail, a practice legal experts say is common across the state.
In an opinion released by the 9th U.S. Circuit Court of Appeals, Judge Milan D. Smith Jr., wrote that the department’s mail inspection policy interferes with the confidential relationship between a criminal defendant and his or her attorney guaranteed by the Sixth Amendment. The ruling said the department’s policy improperly “calls for page-by-page content review of inmates’ confidential outgoing legal mail.”
Corene Kendrick, a staff attorney for the nonprofit public interest law firm Prison Law Office, said Friday that the 9th Circuit’s decision will apply to all states under its jurisdiction.
“It’s a problem for attorneys because we have certain ethical obligations to ensure confidentiality and that puts us in a bind if we know that our mail to and from our client is actually being read versus just scanned,” Kendrick said.
Prisons across the country routinely inspect incoming and outgoing mail for contraband, but legal mail is considered to be sacrosanct because of its constitutional implications. A long series of federal court decisions over several decades have clarified the rights of prisoners to send and receive legal mail without undue interference.
Kendrick said Arizona got around that by saying it officers had to read the legal mail to ensure that there wasn’t any non-legal content that might be deemed “contraband.”
Thursday’s 9th Circuit ruling also held the department didn’t prove its policy is justified by a threat to prison security.
The court was considering a legal challenge by death row inmate Scott Nordstrom for the second time. Nordstrom most recently said an officer read his confidential letter to his attorney rather than simply scan it. He first appealed to the 9th Circuit in 2013 for the same reason and won, but decided to take up the case again after claiming the district court did not follow the appeals court’s instructions.
Nordstrom is on death row for six murders committed during two Tucson robberies in 1996.
Arizona Department of Corrections spokesman Andrew Wilder referred questions about the ruling to the state’s attorney general’s office. The attorney general’s office declined to comment.
Stephen Pevar, a senior staff attorney at the American Civil Liberties Union, questioned what prisons could possibly fear from inmates sending out letters to their attorneys.