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When Guards Can Search Attorney-Client Privileged Prison Mail for Contraband

If you walk down to your friendly neighborhood law office, and hire an attorney to handle some kind of legal problem, you can tell your lawyer just about anything even remotely related to your case, and your attorney can’t tell anyone (and I mean anyone) what you told them, even if you confessed to having committed a major crime. There are very, very few exceptions to this rule, mostly having to do with cases where the client reveals to the attorney their intent to commit a major crime in the near future. But all in all, you can be very sure that your attorney is absolutely bound to keep what you tell them secret.

This privilege applies to all communications, whether they’re made in person, over the phone, through email, fax, or snail mail. This attorney-client privilege is very similar to the doctor-patient privilege, and both are recognized for the same reason: in order to receive competent legal or medical advice, the client/patient must be absolutely candid with their doctor/lawyer. If they can be assured that whatever they say won’t leave the room, they’re less likely to hold back on crucial, but perhaps sensitive or embarrassing, pieces of information.

If you happen to be in prison, you still have a right to confidential communication with your attorney. It’s often necessary for communications between inmates and their attorneys to take place through (the horror!) ordinary mail. That’s fine, except for one thing: letters go in envelopes, and envelopes are perfectly capable of holding things besides letters. Sometimes, they can hold both at the same time!

If you’re a prison official who doesn’t want things like drugs or razor blades getting into your institution through the mail, what do you do about inspecting mail that may contain privileged communications?

Well, the U.S. Court of Appeals for the 7th Circuit has tried to answer that question (also seen here), holding that mail containing privileged communications between inmates and their attorneys can be inspected by guards for contraband, but such inspection must be in the presence of the inmate. This allows guards to search the envelope for contraband, and allows the inmate to ensure that the guards merely “glance at” the documents, rather than read them thoroughly.

Furthermore, the court noted that a prisoner’s mail, even if it contains privileged communications, is not absolutely sacrosanct. Guards can conduct a quick inspection of the actual contents of the letter to ensure that it is actually from the inmate’s attorney, and that it discusses a real legal matter. In theory, they should be able to do this without reading the whole thing in detail, or gleaning much, if any, confidential information.

This is very important, because every criminal defendant has a constitutional right to effective assistance of counsel. And, as discussed above, it’s impossible for the assistance of a lawyer to be effective if they don’t have all the facts. And they can’t get all the facts if the client isn’t confident that their communications will be kept confidential.

This ruling seems to strike a good balance. However, we must always be on our guard that government officials might attempt to cross constitutional lines which are designed to protect all of us. This isn’t out of some nefarious conspiracy, it’s just that government officials are human beings, and they are trying to do their jobs. Like most people, the temptation to cut corners is always there.

And while I strongly believe in protecting the constitutional rights of everybody, including prisoners, I recognize that the safety of prison staff and other inmates is also an extremely important consideration. An envelope is very thin and light, so one would think that there aren’t a lot of objects which would make effective weapons that could be slipped into an envelope without anybody noticing. But if the TV show Oz has taught me anything, it’s that prison inmates can get really creative when coming up with ways to harm one another. A clever person wouldn’t have much trouble coming up with a weapon that could be hidden in an envelope, I’d wager.

When it comes to protecting constitutional rights, especially in prison, balances need to be struck. But more importantly, legislatures and courts need to create clear rules on how to strike these balances. For example, this court laid out a clear rule on how mail between prisoners and lawyers should be inspected.

Whether or not this rule strikes the perfect balance of confidentiality and security is less important than the fact that a rule on the subject exists. When government officials (such as prison guards) are clear on what is and is not permitted of them, they can spend more energy focusing on doing their jobs, and the court system will be slightly less clogged with cases dealing with the issue of whether or not some vague rule has been violated.

Ken LaMance

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