Prisoners have the right to legal mail. Lawyers are concerned about a new Iowa policy that threatens this.
Editor’s Note: After IPR published this story, a spokesperson for the Iowa Department of Corrections announced that the legal mail photocopying policy had been “put on hold for further consideration.” Our original story appears below.
The Iowa Department of Corrections has started photocopying all legal letters sent to inmates, fearing the original documents may be infused with drugs. Some lawyers and advocates fear the policy violates detainees’ constitutional right to counsel.
Under the new policy, inmates’ legal mail will be opened and photocopied in front of them, if they choose to be present, and the originals will be shredded.
The DOC says the policy change is needed due to an increase in the number of people sending bogus legal mails who have been soaked in the synthetic drug K2. The drug-infused paper can then be smoked or ingested, with “serious medical implications” for some Iowa inmates, according to DOC.
“The reason for the new legal mail process is not that there are unscrupulous lawyers in Iowa,” read a statement on the DOC website. Unfortunately, individuals seeking to smuggle into Iowa jails have forged return address labels and letterheads of attorneys established in Iowa in an attempt to evade the detection.”
The right of detainees to confidential correspondence with “almost sacrosanct” lawyers
Erica Nichols Cook, who heads the wrongful convictions division in the state’s public defender’s office, wrote a letter this week calling on the department to repeal the policy, which she says has “outraged” her clients.
“[T]its policy in which you open legal mail, make copies and then shred or destroy the originals is a violation of every incarcerated person’s right to a Sixth Amendment lawyer, ”she wrote in a September 7 letter. .
“Censorship as provided for in your policy violates the civil rights of every incarcerated person: it deprives each person of their confidential lawyer-client relationship and effective legal assistance and thus denies meaningful access to the courts,” the letter continued.
“I correspond regularly as a lawyer for prisoners in prisons ranging from Florida and Alabama to the West Coast and have never encountered this scenario.”
-Gregory Sisk, Professor of Law, University of St. Thomas
Gregory Sisk is a professor of law at the University of St. Thomas who represents incarcerated clients and has written on prisoners’ rights to legal mail. Sisk reviewed the policy at IPR’s request and says he’s never encountered one like this.
“I correspond regularly as an attorney for prisoners in prisons ranging from Florida and Alabama to the West Coast and have never encountered this scenario,” Sisk said.
In an academic article published in 2019, Sisk and his co-authors wrote that “[n]o someone in our society has a greater need to communicate confidently with a lawyer than with a prisoner. He is concerned that Iowa politics threaten that right.
“In general, state correctional systems have been very protective of legal mail and recognize that the right to confidentiality in correspondence between a prisoner and his lawyer must be protected,” Sisk told IPR. “The Ninth Circuit called this right almost sacrosanct. “
DOC Says Policy Needed to Address “Devastating Impact” of Drugs Smuggled Into Prisons
The DOC says that while officers will examine the documents for contraband, they will not read them and that confidentiality will be maintained.
“The changes initiated will preserve the protected status of this legal mail while replacing only the paper on which the communication is to be delivered to the addressee,” read a statement on the DOC website.
“The changes initiated will preserve the protected status of this legal mail while replacing only the paper on which the communication is to be delivered to the recipient.”
– Statement from the Iowa Department of Corrections
The department says action must be taken to deal with the “devastating impact” that K2 is having on state prisons. Correctional facilities across the country are grappling with an increase in drug overdoses and deaths.
But Sisk wonders if photocopying legal mail, on the order of hundreds of pages at a time for appeals, is the most effective way to track down contraband.
Inmate’s family member asks for more evidence of K2 incidents
Kelly, whose brother is incarcerated at Fort Dodge Correctional Facility, wonders whether the scale of the problem justifies what she sees as a serious violation of inmates’ civil rights. IPR withholds her last name because she fears a relationship with her brother.
“One of our strongest and most sacred rights to both privacy and adequate legal defense is now offered as a sacrifice for protection against an alleged threat that is frequently cited, but seldom verified,” he said. Kelly said.
“One of our strongest and most sacred rights to both privacy and adequate legal defense is now offered as a sacrifice for protection against an alleged threat that is frequently cited, but rarely verified.”
-Kelly, sister of an incarcerated Iowan
Kelly and relatives of other inmates say they have a series of questions about how prisons will ensure copies are not stored internally on digital copiers, as well as steps taken to provide treatment against drug addiction.
“If this is really that bad, we need to do more than copy and shred mail, we need a fundamental change in the way incarcerated people can communicate with their lawyers in private in the future,” said Kelly.
In a statement released in April, the DOC reported that approximately 60 inmates were involved in the “consumption, possession or introduction” of K2 into state prisons.
Reports say other states are also struggling to deal with an increase in K2 incidents, although a trial in Massachusetts alleges flawed drug tests there have significantly distorted the scale of the problem.
New: The Iowa Corrections Department implemented a new policy this month prohibiting family, friends and others from sending books to jails.
Advocates say it undermines the civil rights of incarcerated people and their rehabilitation efforts. #Iowahttps://t.co/8pb0ChN9yG
– Kate Payne (@hellokatepayne) April 29, 2021
Law professor fears politics will force lawyers to drop cases over ethical concerns
Nichols Cook, the attorney for the Public Defender’s Office, argues that the policy prevents him from fulfilling his duty to protect the confidentiality of the attorney-client relationship, as outlined in the Iowa Rules of Professional Conduct.
“I must make all reasonable efforts to prevent inadvertent or unauthorized disclosure or unauthorized access to information relating to a client representation,” the letter read. “Your policy prohibits me from fulfilling my ethical duties and denies any incarcerated person access to a lawyer and the courts.”
Sisk, the law professor, agrees with Nichols Cook and fears the lawyers will drop cases over politics.
“Setting up a system like this where confidentiality could be severely compromised puts lawyers in a position where they might not be able to continue their representation,” Sisk said. “It could end up having a very negative effect and result in a dismissal because the state interfered with the rights of Sixth Amendment prisoners to have legal assistance.”
A DOC spokesperson did not respond to questions about whether the department would change or revoke the policy in response to Nichols Cook’s complaint.