Mail Regulation in the Jail

linkedin
Share on Google+
Share on Reddit
Share on Tumblr
Download PDF

Handling mail to and from inmates is a challenge for jail administrators. Of course they want to enable inmates to handle their legitimate business (including pending legal matters) and maintain family and community ties. On the other hand, they must be on guard against contraband or inappropriate materials coming into the jail, or inmates participating in crimes or planning an escape from within. Inmates have a constitutional right to communicate with others and to access the courts, but those rights are limited by the jail’s obligation to preserve security, good order, and discipline. This post collects some of the basic legal principles that should be incorporated into the jail’s policy on mail regulation. By state administrative regulation, every jail must have a written policy on handling inmate mail.

A starting point in the analysis of how a jail should handle inmate mail is identifying what sort of mail it is. There are two broad categories: privileged mail and general mail. As you might imagine, privileged mail is entitled to greater protection than general mail in terms of the inmate’s rights to privacy and prompt delivery.

What inmate mail is privileged? Without question, mail between the inmate and his or her attorney is privileged. That status extends beyond the inmate’s personal lawyer to other persons working for the lawyer, such as investigators, law clerks, and paralegals. In general, mail to the court system, judges, consular officials, and other government officials, like the attorney general or the Post-Release Supervision and Parole Commission, should also be considered privileged. (Note, however, that the North Carolina Department of Public Safety explicitly excludes the governor, the president, and members of the General Assembly and Congress from its privileged mail category.) It is not clear in North Carolina whether mail addressed to members of the news media should be considered privileged; many courts say that it is not, but the safer practice is probably to assume that it is. Mail related to medical issues is not privileged in the same way that legal mail is, but jail officials should be mindful of the inmate’s privacy and the jail’s obligation to provide adequate medical care. Mail that does not fall into the privileged category may be treated under the heading of general mail.

Handling privileged mail. Incoming privileged mail may be opened and inspected for contraband only in the presence of the inmate. It may not be read. Wolff v. McDonnell, 418 U.S. 539 (1974). A jail could have an exception to this rule for mail that has clear signs of contamination or other indications of danger. Outgoing privileged mail should be sent unopened and unread by jail staff.

Identifying privileged mail. In general, mail need not be considered privileged unless the outside of the envelope gives some indication of its status, such as LEGAL MAIL or ATTORNEY MAIL. But no particular words are required. For example, if the return address on a letter suggests it is from a lawyer, law firm, or the court system, jail officials should treat it as privileged and err on the side of inspecting it only in the presence of the inmate. If jailers suspect that mail marked as privileged is from a nonprivileged source, they may make a prompt investigation of its source. The delay should not extend beyond 48 hours.

Occasionally a jail will open and inspect privileged mail outside of an inmate’s presence by mistake. So long as the intrusion is the product of an honest mistake and not indicative of any pattern or practice, it will not rise to the level of a constitutional violation. See, e.g., Bryant v. Winston, 750 F. Supp. 733 (E.D. Va. 1990). The best practice in those situations is to hand-deliver the opened mail to the inmate and acknowledge the mistake. Any effort to hide it promotes mistrust and invites litigation.

Handling general mail. Jail officials may open and inspect incoming general mail outside of the presence of inmates. They may also read it—although many jail administration experts recommend doing so only when there is some reason to believe that it contains information relevant to institutional security. As a practical matter, jailers are unlikely to have time to read all incoming mail, and doing so rarely uncovers genuine threats to security. Some jails briefly scan incoming mail and then read further if they notice anything troubling. Others have a policy of random inspection, which is also permissible.

As for outgoing general mail, jail staff may inspect and read it outside of an inmate’s presence. Altizer v. Deeds, 191 F.3d 540 (4th Cir. 1999). Even if that is constitutionally permissible, though, many jail administration experts recommend against reading outgoing mail, given the broader demands on officers’ time and the small likelihood of uncovering legitimate security concerns.

Any information discovered during a proper inspection of incoming or outgoing general mail is fair game for a subsequent criminal prosecution. For example, a correctional officer did not violate an inmate’s rights when he forwarded an incoming letter to police after seeing the words “twenty gauge shotgun loaded” at the top of one of the pages during his inspection for contraband. State v. Kennedy, 58 N.C. App. 810 (1982). Likewise, a deputy did no wrong when he gave to investigators a copy of a letter from an inmate to his father that included information suggesting the inmate was attempting to manufacture an alibi. The letter was not marked “legal mail,” the inmate knew that nonlegal mail was inspected, and thus the inmate had no reasonable expectation of privacy in the letter’s contents. State v. Wiley, 355 N.C. 592 (2002).

Censorship. In general, jail officials should not censor incoming or outgoing mail. Content-based restrictions on speech raise some of the most challenging questions under the First Amendment, and they can be a recipe for liability. That said, jail officials may censor or reject content that presents a legitimate threat to security or inmate rehabilitation. Procunier v. Martinez, 416 U.S. 396 (1974). For example, a jailer may permissibly reject mail that is written in code, makes a direct threat to someone, or includes things like escape plans or instructions on how to make a weapon. Thornburgh v. Abbott, 490 U.S. 401 (1989).

Unfortunately, those are the easy issues. Censorship of things like sexually explicit, religious, or racially-sensitive content are of course much more difficult, as they involve personal experiences, perceptions, and biases.  Mere insults to jail staff (sometimes directed at the “nosy” officers whose job it is to inspect the mail) should not be censored. Ultimately, the touchstone of permissible censorship is whether the content presents a genuine threat to security. When a letter is censored or rejected, the jail must give notice to the sender and the inmate, and provide the sender an opportunity to protest the ruling before an official other than the one who made the initial decision. The jail should create a standard form for such notifications.

Postage and writing materials. Indigent inmates who cannot afford writing materials or stamps must be provided a reasonable supply of materials at state expense whenever they wish to send mail to their lawyers or the courts. Bounds v. Smith, 430 U.S. 817 (1977). That rule should probably also extend to other privileged correspondents. As for general mail, an inmate does not have a right to unlimited free postage, but most experts recommend providing a small number of stamps and writing materials at facility expense. A jail might consider providing postage for a certain number of letters each week, with a process to request more with administrator approval. For comparison, the state prison system allows for 10 free stamps per month, while the Federal Bureau of Prisons allows for five each month.

Postcard-only policies. Some jails have considered or adopted a policy of allowing inmates to send and receive general mail only by postcard. The policy has some appeal, as it virtually eliminates the possibility of contraband being sent through the mail, and also allows for a quick inspection of the content of the correspondence. Nevertheless, some courts in other jurisdictions have concluded that postcard-only policies violate inmates’ First Amendment rights. In Prison Legal News v. Columbia County, 942 F. Supp. 2d 1068 (D. Or. 2013), for example, a federal judge in Oregon concluded that the jail’s postcard-only policy was not related to a legitimate penological interest. The policy placed too great a barrier between inmates and their unincarcerated correspondents by preventing the sharing of “photographs, children’s report cards, and drawings,” and the small space available on a postcard “creates a hurdle to thoughtful, personal, and constructive written communication.” Meanwhile, the policy did not respond to a documented problem, and less severe measures (simply opening envelopes and visually inspecting their contents) were effective and did not take much more time than inspecting a postcard. Other courts have upheld such policies. See, e.g., Prison Legal News v. Chapman, 44 F. Supp. 3d 1289 (M.D. Ga. 2014). The issue is being actively litigated around the country, but there is not yet any controlling case law in North Carolina.

Conclusion. As with many matters of jail administration, mail regulation involves a balance between the jail’s institutional interests and inmates’ general well-being and constitutional rights. The discussion above provides a basic framework for a written policy on mail management, but is by no means comprehensive. Sheriffs and jail administrators should consult with legal counsel to create or update a lawful policy tailored to the needs of their particular facility.

Today’s post is based on an article I wrote for the North Carolina Jail Administrators’ Association Newsletter

2 comments on “Mail Regulation in the Jail

  1. NCCIW (NORTH CAROLINA CORRECTIONAL INSTITUTION FOR WOMEN) IN RALEIGH NC DOES NOT ADHERE TO POLICIES, PROCEDURES, RULES, LAWS, ETC.. IN REGARDS TO THE HANDLING, CENSORSHIP, DELIVERY, ETC.. OF MAIL AND/OR PACKAGES SENT TO INMATES. NC DOC OFFICERS/STAFF AT NCCIW FAIL TO COMPLY WITH THE POLICY & PROCEDURE WRITTEN BY NC DOC. Chapter: D
    Section: .0300
    Title: Inmate Use of the Mail
    .0310 PROCESSING INCOMING AND OUTGOING MAIL
    (a) Delivery
    (1) The Facility Head will ensure that except for weekends, holidays, and emergency
    situations all incoming and outgoing mail is held no more than 24 hours and no
    more that 48 hours for packages. For the purpose of this policy emergency
    situation refers to any significant disruption of normal operation due to riot, fire,
    natural disaster or other serious incident. (4495)
    **NCCIW OFTEN HOLDS INCOMING LETTERS FOR INMATES UP TO 21 DAYS BEFORE DELIVERING. SOME MAIL IS NEVER DELIVERED, NOR IS ANY NOTICE GIVEN TO SENDER OR INTENDED RECIPIENT AS TO THE REASON FOR THE FAILURE TO DELIVER. DELIVERY OF PACKAGES INTENDED FOR INMATES IS OFTEN DELAYED FOR WEEKS, OR NOT DELIVERED AT ALL. AGAIN, NO NOTICE IS GIVEN TO THE INMATE OR THE SENDER IN REGARDS TO THE REASON FOR THE DELAY, OR THE FAILURE TO DELIVER. AN EXAMPLE: I ORDERED 3 BOOKS VIA “BARNES & NOBLE” WHICH TRACKING SHOWS WAS DELIVERED 06/23/2017, HOWEVER AS OF 07/04/2017 PACKAGE HAS NOT BEEN RECEIVED BY INMATE, NOR HAS INMATE BEEN ADVISED OR NOTIFIED AS TO THE DELIVERY OF SAID PACKAGE. DURING THE LAST 6 MONTHS I HAVE ORDERED 5 PACKAGES OF BOOKS THAT WERE TRACKED & CONFIRMED DELIVERED TO NCCIW, YET HAVE NEVER BEEN RECEIVED BY INMATE, NOR HAS ANY NOTICE BEEN GIVEN AS TO THE DELIVERY OF SAID PACKAGES. OVER THE LAST 6 WEEKS I HAVE SENT 7 LETTERS TO INMATE, YET ONLY 2 OF THE 7 HAVE BEEN DELIVERED TO THE INMATE. NO NOTICE HAS BEEN GIVEN TO THE INMATE, OR MYSELF, AS TO THE DELIVERY OF SAID LETTERS. OUTGOING MAIL IS ALSO OFTEN DELAYED. MANY LETTERS I HAVE RECEIVED HAVE BEEN HELD UP TO 14 DAYS BEFORE BEING MAILED OUT. ONE LETTER I RECEIVED HAD AN ENTIRE PARAGRAPH HEAVILY MARKED OUT. THE INFO THAT HAD BEEN CENSORED WAS INFO AS TO TIMES & DATES & INCIDENTS WHEN MY DAUGHTER’S RIGHTS HAD BEEN VIOLATED. SHE ALSO SENT OUT NUMEROUS LETTERS TO “PRISONER LEGAL SERVICES” WHICH APPARENTLY WERE NEVER MAILED OUT BY STAFF AS THEY WERE NEVER RECEIVED BY PLS. ON AT LEAST ONE OCCASION I SENT PHOTOS AND 2 WERE DEEMED INAPPROPRIATE AS THEY SHOWED CANS OF BEER. SHE WAS TOLD THAT BECAUSE ALCOHOL WAS SHOWN THEY CONSIDERED THEM “GANG RELATED”. I FAIL TO SEE HOW THAT IS GANG RELATED. I WAS NEVER NOTIFIED IN ANY WAY OF THIS EXCEPT VIA MY DAUGHTER.

    Disapproval letters must be sent to both the inmate and the outside
    addressee/sender. Both the inmate and the outside addressee/sender will have
    appeal rights. Using the Disapproval Letter at the end of this policy (attachment
    #1), a letter must be sent to the inmate and one to the outside addressee/sender
    informing them of the reason for censorship as listed in .0310 (c)(1) in writing
    within twenty-four (24) hours. The inmate and outside addressee/sender shall be
    informed that he or she may appeal the decision to withhold correspondence by
    presenting written arguments to a committee appointed by the Director of ???? to
    resolve the issue. The inmate and outside addressee/sender shall be allowed ten
    (10) days from the date he or she receives written notice of the correspondence
    being prohibited in which to appeal to the Director’s Correspondence Review
    Committee. The inmate and outside addressee/sender are given the notice of the
    decision and appeal rights. (4491)

    WHEN WILL NCCIW BE HELD ACCOUNTABLE? WILL THE OFFICERS & STAFF AT NCCIW BE ALLOWED TO CONTINUE TO MISHANDLE, DELAY, ILLEGALLY CENSOR, & FAIL TO DELIVER INCOMING & OUTGOING MAIL? THEIR ACTIONS ARE A BLATANT DISREGARD OF NC DOC POLICIES & PROCEDURES, NOT TO MENTION ILLEGAL VIA FEDERAL LAWS REGARDING USPS MAIL.

  2. I am currently having a major problem regarding this issue. I have been sending letters to a family friend on a regular basis. She is currently serving a 6 month sentence in a county jail instead of a prison. I am quite familiar with NCDPS restrictions on ‘inmate mail’, mostly because they are accessible online. This particular jail does not post any information regarding inmate mail (or any other information about inmate rules and restrictions), but has rejected several of the letters I have sent without any explanation. Because the letters are usually delivered to my friend at a later time (when the other ‘shift’ is on duty), it does not appear that there is a policy in place. When I called last night, the officer who answered the phone stated that letter must be handwritten and that ‘copies’ of any reading material are not allowed (newspaper articles, single page articles on topics of interest such as ‘braiding hair’, meditation, yoga poses). I’m going to call today to speak with the ‘chief jailer’, but I would appreciate any information that might help me figure out the best person to contact if a call to the jail is unsuccessful.

Leave a Reply