State Dept. of Corrections must foot the bill for legal oversight of mail program

Lindsey O'Laughlin
York Dispatch
Some district judges and court officials argue that jailing people over unpaid fines is within the confines of the law, but the ACLU believes that such practices are illegal, harm those jailed and waste public dollars by arresting and imprisoning people who can’t pay. (Dreamstime/TNS)

The state Department of Corrections must pay the cost for four public interest law groups to monitor its compliance with a settlement agreement addressing the department's handling of inmates' legal mail.

According to the settlement agreement filed Monday, March 25, the DOC must end its practice of opening and storing copies of inmates' correspondence with their attorneys.

"In anticipation of this final, signed agreement, DOC officials have been working toward implementing the agreed-upon attorney-client system," said Susan McNaughton, spokeswoman for the DOC. "This new system will become operational April 6, 2019, and will be monitored by both sides for its efficacy."

Four civil rights groups filed a lawsuit against the DOC on Oct. 30, alleging the practice of opening and storing inmates' legal mail violated inmates' First Amendment rights and attorney-client privilege.

Those groups were the Pennsylvania Institutional Law Project, the Abolitionist Law Center, the Amistad Law Project and the American Civil Liberties Union of Pennsylvania.

Another plaintiff, state prison inmate Davon Hayes, filed his own lawsuit over the legal mail policy, but a judge consolidated the two cases in December.

"We’re very optimistic moving forward that under the new policy changes, the rights of our clients to have access to confidential legal mail are going to be protected," said Alexandra Morgan-Kurtz, a staff attorney at PaILP.

More:ACLU accuses York County of trampling inmates' rights

More:Deal near in civil rights lawsuits over prison mail policy

ACLU is in negotiations with York County Prison over similar legal mail practices. It was unclear as of Tuesday afternoon how the state's settlement would affect the discussions between ACLU and York County.

York County Prison has until Friday, March 29, to respond to the ACLU's complaint requesting the prison cease its practice of copying inmates' legal mail and opening the mail without having the inmate in the room. The inmates instead watch the process remotely via video.

Donald Reihart, solicitor for the York County Prison Board, said the county is interested in protecting the constitutional rights of inmates, but that the law also compels the county to protect the security of everybody at the prison.

"We are going to comply with the law and we are going to ensure that the prison’s security is maintained," Reihart said. "Where that’s going to take us in terms of an eventual policy, only time will tell."

The ACLU has not yet taken legal action against the prison.

Vic Walczak, legal director for ACLU of Pennsylvania, said the courts have ruled for more than 20 years that legal mail must be opened in the presence of the prisoner to whom it was sent.

"If you’re videoing the opening, the prisoner has no way of being able to ensure that it’s not read from the time that they turn off the camera until they deliver the product to them," Walczak said.

Verification: Under the new system at the state level, attorneys representing inmates at state correctional institutions must apply for a new attorney control number.

All verified attorneys with an ACN on the DOC's email list will receive a secondary verification code that will be refreshed and sent out each week. All mail sent from an attorney's office must have the attorney's ACN and one of the two most recent secondary verification codes printed on the outside of the envelope.

The new system will have a nine-month trial period, and the DOC will be required to provide relevant data to the four plaintiff organizations for a monitoring period of two years.

That data includes the number and type of any contraband found in legal mail, the amount of legal mail sent without proper verification, the amount of legal mail rejected by the prison and the total amount of legal mail sent to state prisons.

The information must be listed for the overall state prison system and also broken down by institution.

More:Prisons say changes after guards fell ill have cut smuggling

More:Contraband concerns prompt York County Prison move to digital mail

DOC will be billed a maximum of $250 per hour for attorneys from the civil rights organizations to monitor data and compliance, with a maximum charge of $10,000 per month and $50,000 per year.

The four plaintiff organizations agreed to waive the first $10,000 in fees each year.

In addition to paying for monitoring costs, the DOC must pay the plaintiffs' attorneys fees and costs. That total was not listed in the settlement.

Background: The DOC implemented the procedure of copying and storing inmates' legal mail after corrections officers at several state prisons fell ill in August 2018 and were treated in hospitals.

DOC reportedly suspected the officers were exposed to letters or books that had been soaked in a liquid form of synthetic marijuana in order to be smuggled into the prison via the mail system.

Non-legal mail sent to state prisons is now forwarded to a digital vendor that scans and emails a digital copy of the correspondence to the appropriate institution for delivery.