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Guard Can't Read Legal Mail From Prisoner to Attorney: 9th Cir.

By Mark Wilson, Esq. | Last updated on

Prisoners' mail is almost always subject to being opened and read thoroughly by prison officials looking for contraband, which can include attempting to exchange information between gang members, for example. Legal mail, on the other hand, is supposed to be sacrosanct: Guards aren't supposed to open mail marked "legal mail" unless they suspect it's not legal mail; and even then, they can't read it that thoroughly.

Last week, the Ninth Circuit allowed a case to proceed in which a guard went well beyond scanning legal mail to make sure it's really legal mail. In a dissent, Judge Jay Bybee said that a single instance of a prisoner's mail being read one time doesn't amount to a constitutional injury.

Keep Your Eyes to Yourself

Arizona death row inmate Scott Nordstrom alleged that a prison guard not only "scanned" his letter to his attorney for contraband, but outright read the whole thing. When he objected, the guard "told him to go pound sand." He filed numerous grievances, all of which were denied on the ground that, according to the prison, prison guards can read even legal mail.

The Sixth Amendment right to counsel protects the confidentiality of communications between a criminal defendant and his attorney. This holds true even in prison, where an inmate would not feel able to candidly communicate with his attorney if he knows prison officials are going to be reading -- and potentially reporting on -- the content of the communication. (It's not like prisons go out of their way to respect attorney-client privilege.)

This case came to the Ninth Circuit on a motion to dismiss, not -- as normal for these situations -- summary judgment. The Ninth Circuit found that Nordstrom had stated a claim for a constitutional violation under 42 USC Section 1983 and remanded to the district court for more proceedings.

Judge Bybee Dissents

Predictably, Judge Jay Bybee -- who, in his previous life as a lawyer for the Justice Department under President George W. Bush, proved no fan of prisoners -- dissented in this case. Bybee would have dismissed the case because Nordstrom couldn't prove that the guards' reading of his mail prejudiced his death penalty appeals. "The touchstone of Wolff's analysis is censorship and the chilling of legal communications, not reading," Bybee wrote.

Bybee seems to believe that a practice of reading inmates' legal mail won't have a chilling effect -- or at least, not now. Perhaps it would be better to wait until the communications have been chilled several times -- impacting several cases -- before a claim can even be brought in the first place.

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