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Third Circuit Upholds Pennsylvania DOC Policy Requiring Control Number for Legal Mail
by David M. Reutter
Finding that no legitimate penological interest existed to support a Pennsylvania Department of Corrections (PDOC) policy that requires a PDOC-issued control number on correspondence for it to qualify as legal mail, a U.S. District Court issued an injunction prohibiting enforcement of the policy. However, that ruling was later reversed by the Third Circuit Court of Appeals.
Prior to October 2002, any mail that indicated it was from a court or attorney, or otherwise marked as legal mail, was opened in a prisoner’s presence. The new policy, however, PDOC policy DC-ADM 803, disregarded the source listed on the return address. Instead, prison officials relied only on whether there was a control number on the envelope when determining if the mail constituted legal mail that should be opened in the prisoner’s presence.
There are two methods by which a PDOC prisoner can receive legal mail. One allows for legal correspondence to be hand-delivered unsealed, which provides for inspection, sealing and then delivery to the prisoner without further interference by prison staff. The other method is via postal mail.
When legal mail is sent through the postal service, the new PDOC policy requires that such mail include a control number issued by the PDOC’s office of Chief Counsel. To obtain such a control number, the sender has to submit an application for anything sent by mail other than “essential, confidential, attorney-client communication.”
If the legal mail includes a registered PDOC control number it is opened in the prisoner’s presence. Mail without a control number, regardless of how clearly marked that the sender is an attorney or court, is treated as regular mail and opened in the mailroom outside the prisoner’s presence.
The district court noted that this case had a long procedural history, with over 300 docket entries. The court commended the work of attorneys Stephen D. Brown and Teri B. Himebaugh of the Prisoner Rights Panel for taking the case pro bono and developing a record that allowed it to rule on the parties’ motions for summary judgment.
In its motion, PDOC argued that the policy requiring a control number met the reasonableness test set forth in Turner v. Safely, 482 U.S. 78 (1987). PDOC asserted its penological interest for the policy was to address safety and security concerns; prison officials said experience had shown that legal mail could be used to introduce contraband into the prison system.
To support its position, PDOC relied on an Escape Report issued in November 1999, as well as a September 1999 Privileged Correspondence Inspection and Contraband Report. The Escape Report concerned an investigation into a prisoner’s escape from SCI Huntington on August 2, 1999. That report concluded, “substantial evidence shows that [the prisoner] was able to introduce contraband into the institution through legal mail.”
The court, however, found there was no discussion of what that evidence was, and no link between the prisoner’s escape tools and legal mail.
The September 1999 report detailed less than a dozen cases since 1986 in which contraband was sent to prisoners through legal mail. None involved escape tools. The court stated that not all contraband, as defined by PDOC, poses a significant security and safety risk that can justify infringement on a prisoner’s First Amendment rights.
PDOC Secretary Jeffrey A. Beard acknowledged that the policy change requiring control numbers was motivated by the 1999 escape. The district court found the change “was an overreaction to a single escape incident and a few isolated violations of the contraband policy involving legal mail that may or may not have occurred.”
Further, the “policy and its purported rationale overlook the obvious. All legal and court mail, with or without a control number, is still opened and inspected by the staff. If there is contraband, it will be discovered,” the court wrote. “The difference is where – in the mailroom if there is no control number, or on the housing units if there is a control number. In either event, a proper inspection is conducted.”
The district court also rejected the PDOC’s argument that court mail is not privileged because the contents of pleadings and orders are docketed in the court and thus available for public inspection. Although the court found there was no penological interest for the policy, it still addressed the other Turner factors.
The court noted a prisoner can only ask an attorney to obtain a control number, not demand it. Thus, if counsel fails to do so, the prisoner has no other alternatives to comply with the policy. Prisoners are unable to require courts or court staff to obtain control numbers. There is no burden on prison staff beyond what already exists; in fact, the policy requires staff to verify the control number if present on the envelope, which takes additional time, and after verification the mail is opened in the prisoner’s presence. The court found that about one percent of prison mail was legal mail, and opening each piece of legal mail in the prisoner’s presence entailed “no real burden.”
The district court declined to order the PDOC to resume its policy of maintaining a log system to track receipt of legal mail. It did, however, find the control number requirement for legal mail unconstitutional, entered injunctive relief prohibiting enforcement of the policy, and ordered that “all legal and court mail shall be opened in the presence of the inmate to whom it is addressed.” The defendants were granted qualified immunity with respect to the plaintiffs’ damages claims. See: Fontroy v. Beard, 485 F.Supp.2d 592 (E.D. Penn. 2007).
Both parties appealed, and on March 10, 2009 the Third Circuit reversed the district court and upheld the PDOC’s control number policy for legal mail. The appellate court considered the Turner factors and found the legal mail policy was “reasonably related to legitimate penological interests.”
The Court of Appeals determined that there was “ample support for the DOC’s belief that its old legal mail policy was being abused,” including the testimony of Beard and other PDOC employees, the two escape reports, and evidence that prison staff had discovered purported legal mail with fake attorney return addresses.
Further, the Third Circuit held “the District Court [had] erred in downplaying the implications of changing the location in which certain mail is opened and inspected for the first time,” noting that fewer security issues were implicated when legal mail was opened off-site before it entered the prison housing units.
The appellate court likewise found that the remaining Turner standards favored the PDOC, and that the defendants’ cross-motion for summary judgment should have been granted. Although acknowledging the new legal mail policy “does place an additional burden on the inmates’ First Amendment rights,” the Third Circuit held the policy was “reasonably related to legitimate penological concerns,” and thus reversed the district court. See: Fontroy v. Beard, 559 F.3d 173 (3d Cir. 2009).
At least one state court had previously embraced the Third Circuit’s reasoning. The Commonwealth Court of Pennsylvania acknowledged the adverse district court ruling in Fontroy regarding the PDOC’s restrictions on legal mail, but held it must defer to the professional judgment of prison officials. See: Brown v. PA Department of Corrections, 932 A.2d 316 (Pa. Cmwlth 2007).
Finding that no legitimate penological interest existed to support a Pennsylvania Department of Corrections (PDOC) policy that requires a PDOC-issued control number on correspondence for it to qualify as legal mail, a U.S. District Court issued an injunction prohibiting enforcement of the policy. However, that ruling was later reversed by the Third Circuit Court of Appeals.
Prior to October 2002, any mail that indicated it was from a court or attorney, or otherwise marked as legal mail, was opened in a prisoner’s presence. The new policy, however, PDOC policy DC-ADM 803, disregarded the source listed on the return address. Instead, prison officials relied only on whether there was a control number on the envelope when determining if the mail constituted legal mail that should be opened in the prisoner’s presence.
There are two methods by which a PDOC prisoner can receive legal mail. One allows for legal correspondence to be hand-delivered unsealed, which provides for inspection, sealing and then delivery to the prisoner without further interference by prison staff. The other method is via postal mail.
When legal mail is sent through the postal service, the new PDOC policy requires that such mail include a control number issued by the PDOC’s office of Chief Counsel. To obtain such a control number, the sender has to submit an application for anything sent by mail other than “essential, confidential, attorney-client communication.”
If the legal mail includes a registered PDOC control number it is opened in the prisoner’s presence. Mail without a control number, regardless of how clearly marked that the sender is an attorney or court, is treated as regular mail and opened in the mailroom outside the prisoner’s presence.
The district court noted that this case had a long procedural history, with over 300 docket entries. The court commended the work of attorneys Stephen D. Brown and Teri B. Himebaugh of the Prisoner Rights Panel for taking the case pro bono and developing a record that allowed it to rule on the parties’ motions for summary judgment.
In its motion, PDOC argued that the policy requiring a control number met the reasonableness test set forth in Turner v. Safely, 482 U.S. 78 (1987). PDOC asserted its penological interest for the policy was to address safety and security concerns; prison officials said experience had shown that legal mail could be used to introduce contraband into the prison system.
To support its position, PDOC relied on an Escape Report issued in November 1999, as well as a September 1999 Privileged Correspondence Inspection and Contraband Report. The Escape Report concerned an investigation into a prisoner’s escape from SCI Huntington on August 2, 1999. That report concluded, “substantial evidence shows that [the prisoner] was able to introduce contraband into the institution through legal mail.”
The court, however, found there was no discussion of what that evidence was, and no link between the prisoner’s escape tools and legal mail.
The September 1999 report detailed less than a dozen cases since 1986 in which contraband was sent to prisoners through legal mail. None involved escape tools. The court stated that not all contraband, as defined by PDOC, poses a significant security and safety risk that can justify infringement on a prisoner’s First Amendment rights.
PDOC Secretary Jeffrey A. Beard acknowledged that the policy change requiring control numbers was motivated by the 1999 escape. The district court found the change “was an overreaction to a single escape incident and a few isolated violations of the contraband policy involving legal mail that may or may not have occurred.”
Further, the “policy and its purported rationale overlook the obvious. All legal and court mail, with or without a control number, is still opened and inspected by the staff. If there is contraband, it will be discovered,” the court wrote. “The difference is where – in the mailroom if there is no control number, or on the housing units if there is a control number. In either event, a proper inspection is conducted.”
The district court also rejected the PDOC’s argument that court mail is not privileged because the contents of pleadings and orders are docketed in the court and thus available for public inspection. Although the court found there was no penological interest for the policy, it still addressed the other Turner factors.
The court noted a prisoner can only ask an attorney to obtain a control number, not demand it. Thus, if counsel fails to do so, the prisoner has no other alternatives to comply with the policy. Prisoners are unable to require courts or court staff to obtain control numbers. There is no burden on prison staff beyond what already exists; in fact, the policy requires staff to verify the control number if present on the envelope, which takes additional time, and after verification the mail is opened in the prisoner’s presence. The court found that about one percent of prison mail was legal mail, and opening each piece of legal mail in the prisoner’s presence entailed “no real burden.”
The district court declined to order the PDOC to resume its policy of maintaining a log system to track receipt of legal mail. It did, however, find the control number requirement for legal mail unconstitutional, entered injunctive relief prohibiting enforcement of the policy, and ordered that “all legal and court mail shall be opened in the presence of the inmate to whom it is addressed.” The defendants were granted qualified immunity with respect to the plaintiffs’ damages claims. See: Fontroy v. Beard, 485 F.Supp.2d 592 (E.D. Penn. 2007).
Both parties appealed, and on March 10, 2009 the Third Circuit reversed the district court and upheld the PDOC’s control number policy for legal mail. The appellate court considered the Turner factors and found the legal mail policy was “reasonably related to legitimate penological interests.”
The Court of Appeals determined that there was “ample support for the DOC’s belief that its old legal mail policy was being abused,” including the testimony of Beard and other PDOC employees, the two escape reports, and evidence that prison staff had discovered purported legal mail with fake attorney return addresses.
Further, the Third Circuit held “the District Court [had] erred in downplaying the implications of changing the location in which certain mail is opened and inspected for the first time,” noting that fewer security issues were implicated when legal mail was opened off-site before it entered the prison housing units.
The appellate court likewise found that the remaining Turner standards favored the PDOC, and that the defendants’ cross-motion for summary judgment should have been granted. Although acknowledging the new legal mail policy “does place an additional burden on the inmates’ First Amendment rights,” the Third Circuit held the policy was “reasonably related to legitimate penological concerns,” and thus reversed the district court. See: Fontroy v. Beard, 559 F.3d 173 (3d Cir. 2009).
At least one state court had previously embraced the Third Circuit’s reasoning. The Commonwealth Court of Pennsylvania acknowledged the adverse district court ruling in Fontroy regarding the PDOC’s restrictions on legal mail, but held it must defer to the professional judgment of prison officials. See: Brown v. PA Department of Corrections, 932 A.2d 316 (Pa. Cmwlth 2007).
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Related legal cases
Fontroy v. Beard
| Year | 2009 |
|---|---|
| Cite | 559 F.3d 173 (3d Cir. 2009) |
| Level | Court of Appeals |
| Injunction Status | N/A |
Fontroy v. Beard
| Year | 2007 |
|---|---|
| Cite | 485 F.Supp.2d 592 (E.D. Penn. 2007) |
| Level | District Court |
| Injunction Status | N/A |
Brown v. PA Department of Corrections
| Year | 2007 |
|---|---|
| Cite | 932 A.2d 316 (Pa. Cmwlth 2007) |
| Level | State Court of Appeals |
| Injunction Status | N/A |