As part of a legal settlement expected to be finalized in March, Pennsylvania’s state prisons will rescind a six-month-old policy lawyers said made it impossible for them to communicate confidentially with clients.
The controversial policy, under which legal mail was intercepted, photocopied, and then destroyed, had been announced last September as one of a series of new security measures — many without precedent in a state prison setting — intended to prevent the smuggling of drugs into the prisons. Four civil rights groups and a state prison inmate had filed suit in federal court seeking an emergency injunction.
Beginning April 6, the prisons will revert to some variation on the previous system, which did not involve photocopying and relied on individual attorney-identification numbers to track legal mail.
Bret Grote, a Pittsburgh-based lawyer with the Abolitionist Law Center, said the prisons’ policy of copying legal mail had presented a clear First Amendment violation, effectively prohibiting inmates’ access to the courts.
“For us, it was a problem right from the jump,” he said. “We are pleased that they are now being responsive to the need to protect attorney-client confidentiality and recognize that the photocopying policy was untenable.”
The state Department of Corrections had announced that policy at the end of a two-week-long lockdown, along with other new security protocols it said were needed to prevent drugs, in particular the synthetic cannabinoid K2, from infiltrating the prisons via the mail. Other measures included the diversion of all non-legal mail to a contractor in Florida to be scanned and digitally forwarded under a nearly $16 million, three-year, no-bid contract, and the installation of drone detection devices and body scanners in all prisons. A further policy prohibiting friends, family, and book donation organizations from shipping books to inmates was rolled back in November after advocates protested.
According to the DOC, the policies have been successful at reducing drugs in the prisons. Its published metrics indicate the number of drug finds is down, but other measures, such as the percentage of inmates who test positive in random drug tests and the number of inmate overdoses, continue to fluctuate.
Corrections Secretary John Wetzel acknowledged the lawyers’ concerns over the legal mail policy and said he expected a new procedure would address both security and confidentiality.
"The DOC respects the right of attorney-client privilege, and recognizes the importance of attorney-client relationships,” said Wetzel. “At the same time the DOC has a responsibility to ensure that prisons are safe for those who work and live in them. We feel the plan agreed to by the parties meets both of those objectives.”
Jason Bloom, president of the Pennsylvania State Corrections Officers Association, had not been informed about the new procedures Friday, but said the policies the DOC adopted to eliminate drugs from entering the prisons should serve as a national model.
"I’ll say this: If the new procedures being put into place put any corrections officer in danger, the department will have another legal fight on its hands,” Bloom said in a statement.
Over the last six months, lawyers, including the federal public defenders in Pennsylvania, had stopped sending mail to the state prisons altogether, because they believed doing so would constitute a breach of attorney-client privilege.
Witold Walczak, legal director of the Pennsylvania ACLU, said lawyers had described the situation as “stifling our ability to do our work.”
The ACLU, along with the Abolitionist Law Center, Amistad Law Project, and Pennsylvania Institutional Law Project, had sought an injunction in federal court. But after just one day of hearings on Tuesday at U.S. District Court in Harrisburg, they began working toward a settlement.
In the run-up to the hearing, the Department of Corrections had fought to keep documents about the policy and what led to it confidential. Settlement talks began hours before Department of Corrections staff were to testify. The resolution effectively ensures those documents and depositions will remain sealed by the court.
Grote said the settlement will likely be formalized in a few weeks; questions including the recovery of legal fees and an agreement to monitor implementation have not been resolved.
Carrington Keys, a paralegal at the Abolitionist Law Center who has been logging reports from prisoners, said implementation of new policies often varies widely from one prison to the next. Some inmates described being shackled when they went to collect legal mail. Others reported waiting for hours, only to be told they’d have to return the next day.
“The most delays we heard of were during the lockdown,” he said. “Some people missed [court filing] deadlines because of it.”
Nonetheless, the practice of scanning mail appears to be a popular correctional trend, according to DOC spokesperson Amy Worden.
“Eight county jails in Pennsylvania are now scanning mail, and two others are considering it,” she said.
It’s unclear how many legal cases have been delayed because of the prison policy. But Marianne Sawicki, a lawyer based in Huntingdon, said one of her cases has been stayed because of it. Her concerns with the process included both the violation of confidentiality and the limitations of photocopiers, which are known to jam or skip pages.
“From my point of view, practically speaking, I can’t be sure the men I’m writing to are getting everything,” she said.
Keys said he has also received complaints related to regular incoming mail, which is scanned by St. Petersburg, Fla.-based Smart Communications. He’s received copies of photographs that had been scanned and shrunk down to 16 per page, newspaper pages crunched into a few illegible inches, and reports of mail that went missing or was delivered to the wrong person.
Others noted problems that appeared to arise from the Department of Corrections' new secure book-processing center, which was created after the prohibition on book deliveries was rolled back.
Keir Neuringer, a member of Philadelphia’s Books Through Bars collective, said his group has resumed shipping donated books to prisoners, but it’s unclear how many books are actually reaching inmates and how long they’re taking to get there.
“We are certainly not where we want to be as far as getting books to people in a timely way,” he said.
He said the organization has begun sending out follow-up surveys on book deliveries. Inmates reported a handful of books had been delivered, but many more had never arrived.
Worden denied there were problems.
“Book shipments are moving through the security processing center every day and book deliveries are being made at the prisons on a daily basis," she said. "There are cases where books are being returned because they are not properly labeled or have been sent out for drug testing.”