ACLU Welcomes Michigan Prisons’ New Policy On Privileged Prisoner Mail

May 1, 2002

WASHINGTON-The American Civil Liberties Union’s National Prison Project welcomes a new policy instituted today by the Michigan Department of Corrections that bans prison staff from reading or skimming privileged prisoner legal mail. 
 

Statement of Elizabeth Alexander, 
Director, ACLU National Prison Project 

FOR IMMEDIATE RELEASE

WASHINGTON-The American Civil Liberties Union’s National Prison Project welcomes a new policy instituted today by the Michigan Department of Corrections that bans prison staff from reading or skimming privileged prisoner legal mail. 

Earlier this year U.S. District Court Judge Richard Alan Enslen ordered the Michigan Department of Corrections to institute a new policy after the agency was found to be in violation of two court orders. 

Shortly after the anthrax scares that followed the terrorist attacks of September 11th, the corrections department altered its mail protocol and allowed prison staff to open and read prisoners’ privileged legal correspondence outside of the prison facility and outside of the presence of the prisoner. This move violated two long-standing federal court orders established in Hadix v. Johnson and Knop v. Johnson which prohibit the reading of prisoners’ legal mail. 

The National Prison Project represents Michigan prisoners in the Hadix and Knop litigation and late last year filed objections to Michigan’s revised legal mail policy. Judge Enslen granted the NPP’s objections. 

As Judge Enslen said in his order, "Neither the Anthrax threats nor the other evidence offered by Defendants is sufficient to justify reading of legal correspondence since contraband such as Anthrax could be discovered by inspection not involving reading…Furthermore, the Court reiterates that the First Amendment right to access to the courts guarantees confidential relations between attorney and client against decisions by prison administrators to read such correspondence when those intrusions are unsupported by probable cause." 

The new corrections department policy also requires prison staff to log all legal mail opened outside of the presence of the addressee. Log entries indicate the date the mail was received, when it was inspected and processed, the name of the prisoner to whom the mail was sent and the name of the sender. The log also notes whether any physical contraband was confiscated and, if so, what was confiscated. 

The Michigan Department of Corrections is entitled to take reasonable security precautions in light of the recent terrorist attacks and anthrax threats through the mail, but a wholesale disregard for what one court called "the oldest of the privileges for confidential communication known to the common law" is unacceptable. Michigan’s new policy protecting the attorney-client privilege is an important victory for its prisoners and sets a meaningful precedent for prisoners’ rights nationwide.