What is Legal Mail to Inmates?
The definition of legal mail can be stated as mail sent to or from an inmate that has been processed through the prison’s mail room with the necessary documentation to indicate the correspondence is privileged. Privileged correspondence can be defined as communication with an inmate’s attorney as protected by the Prison Litigation Reform Act ("PLRA") and recognized as protected by the attorney-client privilege.
The aforementioned act requires that inmates exhaust their administrative remedies regarding constitutional issues before bringing suit, and the attorney-client privilege is enumerated among these issues . However, in order for an inmate to receive legal mail, it must be with the judge assigned to his case. This is no small distinction, as many inmates attempt to obtain legal mail stamps for correspondence that may not be privileged. This is usually in an attempt to circumvent prison policy and have all manner of legal correspondence sent at the prison’s expense.
Such attempts can include letters to credit card companies in an attempt to dispute charges, or letters to other various offices such as the Better Business Bureau. In short, legal mail must be privileged correspondence, and it must generally go to or from the inmate’s attorney.
Prisoner Legal Mail Rights
Federal and state law provides for certain rights when it comes to inmate legal mail. Inmates have the right to send and receive legal mail sealed in its original envelope. Moreover, legal mail is not supposed to be opened and inspected by corrections officers. Correspondence between an inmate and his/her attorney is presumed to be legal mail and corrections officials are required to follow certain protocols. In essence, the law mandates that legal mail be treated differently than other types of regular mail.
This concept makes sense because the Supreme Court has held that inmates do not lose all of their constitutional rights just because they are incarcerated. Further, inmates must be afforded due process rights – in order for the legal mail system to be effective (and in part it is because inmates fear that letters will be confiscated or otherwise altered), the aforementioned legal mail protocols must be followed.
As such, an attorney who sends and/or receives legal mail from his/her client inmate should be aware of the following:
An attorney is required to put his/her law firm name on the legal mail being sent to an inmate client. State law requires that attorneys must receive properly marked legal mail in sealed envelopes, and staff may not open this mail outside of the inmate’s view. Corrections officers will open legal mail in front of the inmate to inspect for any contraband. If legal mail is not properly marked, the corrections officer may send that legal mail back without opening it. An attorney must also sign the legal mail and include his/her NYS Bar identification number along with the mailing address and/or fax number. This information is required by the Department of Corrections for the purpose of maintaining the list of recognized concerned legal organizations and attorneys. Correction officers must not interfere with attorneys’ duties. Corrections staff are only authorized to enforce the rules and regulations of the New York Department of Corrections concerning an attorney conducting business within correctional facilities.
Purpose of Legal Mail Stamps
The purpose of a legal mail stamp is to place the correctional staff on notice that the mail is to be treated as legal mail. The use of a legal mail stamp or sticker also helps to ensure that bad correctional officer behavior will be curbed. This is because prisoners can sue for damages if their legal mail, with its critical deadlines, is delayed or what we call "tampered" with.
The main purpose of the legal mail envelope is to segregate legal mail from ordinary mail. The importance of a legal mail, and the protection it grants a prisoner, was nicely summed up as follows by the federal court in Taylor v. Rice, Civil Action No. 1:11cv988, 2011 U.S. Dist. LEXIS 87981 (M.D. Pa. June 6, 2011): "Legal mail may be defined, for purposes of notification and protection against infringement, as correspondence between an inmate and his attorney, or correspondence which is specially protected by law from interference. To this end, upon written request, [institutional] authorities are required to open and inspect for contraband, but not interfere with, legal mail only in the presence of the inmate. Legal mail may be sent, upon written request, via regular postage or Government Franks, and shall not be disposed of or otherwise destroyed." (Emphasis added).
It is thus critical that a prisoner send his legal mail out with postage or a stamp that includes "FRANKED MAIL" language.
Prisoner Legal Mail Regulations
Prison Regulations Governing Legal Mail
In the wake of these court rulings, states have modified their regulations governing inmate legal mail. Most state regulations are fairly broad and simply provide inmates with the right to send and receive legal mail as an exception to the rules prohibiting inmates from writing to or receiving mail from non-legal entities. Some state regulations, however, have expressly incorporated Title 18 U.S.C. ยง 3624. For example, New Hampshire provides that inmates can "write to any source outside of the correctional facility where such inmate is confined for the purpose of pursuing a legal remedy". New Hampshire Department of Corrections Inmate Records Manual, Section 1111.06. New Hampshire has further specified that such correspondence need only be "reasonably related to a legal claim" and will not be reviewed if it is "posted promptly" and other provisions of the department regulations are followed. The regulations do not specify whether or not commercial envelopes will be treated as legal mail; however, the regulations apply only to correspondence sent to the prosecutors and courts explicitly listed in Section 1111 . 06(a). Given that the statute does not reference the Federal Bureau of Prisons, presumably the use of commercial envelopes would be acceptable under the New Hampshire regulations. An additional caveat in the New Hampshire regulations applies to all Department of Corrections staff. Section 1111.06(12) provides that:1. It is the responsibility of the staff of the DOC to confiscate any offending or otherwise abusive mail piece to ensure that it is not actually processed within the DOC system.2. Staff shall note the date and source of the offending piece by keeping a simple log without any details of the offending mail.3. Staff shall provide the validation information noted in item 2 above to the unit commander of the unit in which the inmate is housed without elaboration or comment.4. The unit commander shall maintain documentation of the time and date of receipt as well as add any other supporting documentation found in the action taken items.5. Staff shall not provide any details to inmates or other visitors as to any mail piece confiscated as described above.6. Staff shall give no details to the inmate as to what happened or how the mail is being handled.
Prisoner Issues with Legal Mail or Lack Thereof
Despite the fact that the BOP has made this policy for legal mail very accessible and easily accessible, there are still numerous ways in which the policy can be misused to make it more difficult for the inmate to communicate with his/her attorney in a timely way. One way to accomplish this is to purposely delay the delivery of the inmate’s legal mail by the prison staff. The staff can simply ignore the inmate’s legal mail or not deliver it in a timely manner. Prison staff can also purposely or inadvertently mislabel legal mail so that it will be opened and inspected by the staff before being sent on to the attorney. Often the prison staff will improperly tell the inmate that he does not need to send stamps with the legal mail he wishes to send to his attorney, and that the Bureau of Prisons will pay for the postage itself. This practice often results in the legal mail being delayed or not delivered at all. The bureau then refers the error to the institution’s mail room staff, who do not send the legal mail if it is not brought to them by the prisoner in a timely fashion. There are many instances in which an inmate will plead with prison staff to change their legal mail policy and allow inmates to have the ability to send legal mail in the way that they had done prior to the imposition of the policy. Staff members will simply deny the request, without making any effort to understand the extreme importance of accurate and timely legal mail in the context of someone incarcerated, who is desperately trying to get legal assistance and clarification of legal issues. The prison staff will disallow legal mail for a variety of reasons, and not take the legal mail sent by the inmate to its proper destination. Although most prisons and BOP facilities maintain some sort of tracking system of the inmate’s correspondence, there is no real consequence if the legal mail is mishandled by the prison staff. Since the staff members frequently argue that there was never any legal mail sent to the attorney at all, the attorney has no opportunity to present such a claim to a court. In addition to delays and denial of legal mail, prison staff have frequently been known to engage in censorship of legal mail for a variety of purposes. It is implied that having these types of restrictions in place could cause a prisoner to think twice about following the procedure. However, this is simply not enough to interrupt the policy of inmates trying to send legal correspondence. One of the biggest challenges that inmates face is that when their letters are returned to them un-mailed, they do not know why. Although the inmates have the right to know why their letters were not sent on to their attorney, they are not usually provided with an explanation. There are no requirements made to the staff to tell the inmate why legal mail was not allowed to be sent. Inmates are simply left to re-compile their letters and re-try the legal mail strategy in a short time. Often, the inmate is frustrated and simply waits until the next correspondence that they are able to compile.
Steps for Using Legal Mail Properly
Ensuring the appropriate handling of inmates’ legal mail requires diligence and a proactive approach when engaging with a correctional facility. As an inmate or an individual advocating for an inmate, there are several important steps you can take to help ensure that legal mail is handled appropriately.
The first step is to make sure you familiarize yourself with all of the applicable regulations and requirements the correctional facility must abide by to allow inmates’ legal mail to be processed properly. The specifics will vary somewhat by jurisdiction, but there are laws at both the federal and state levels regarding inmate mail, including rules and guidelines pertaining to legal mail.
On the correctional facility’s part, there may be a general process for handling legal mail , including a specific process for returning it to the inmate in the event that it is sent without identifying information. The following tips can help regular individuals or inmates strengthen their case that appropriate procedures have not been followed:
The most important thing an inmate can do is to read carefully the rules regarding mail and legal correspondence when he or she comes into the correctional facility. If you are incarcerated, you should be aware of the basic rights you possess regarding legal mail, including any responsibilities you have to confirm a particular sender’s identify or that you have previous approval to correspond with a particular attorney or a family member. If you have questions or concerns, you should speak with your legal representative about them.