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Inmates Have A Right To Legal Mail. Lawyers Worry A New Iowa Policy Threatens That.

Lt. Keith Immerfall walks past prison cells at Waupun Correctional Institution, a maximum security prison in Waupun, Wis. If the more than 1,200 prisoners at the facility are still incarcerated there on April 1, the next Census Day, the Census Bureau will officially consider them residents of Waupun for the 2020 national head count.
Lauren Justice for NPR
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Lt. Keith Immerfall walks past prison cells at Waupun Correctional Institution, a maximum security prison in Waupun, Wis.

Editor’s Note: After IPR published this story, an Iowa Department of Corrections spokesperson announced the policy of photocopying legal mail has been “paused for further review." Our original story appears below.

The Iowa Department of Corrections has begun photocopying all legal mail sent to inmates, due to concerns that the original documents could be infused with drugs. Some attorneys and advocates fear the policy may violate inmates’ constitutional right to legal counsel.

Under the new policy, inmates’ legal mail will be opened and photocopied in front of them, if they chose to be present, and the originals shredded.

The DOC says the policy change is needed because of an increase in people sending in fake legal mail that’s been soaked in the synthetic drug K2. The drug-infused paper can then be smoked or ingested, which has resulted in “serious medical implications” for some Iowa inmates, according to the DOC.

“The reason for the new process as to legal mail is not that there are unscrupulous lawyers in Iowa,” reads a statement on the DOC’s website. “Unfortunately, individuals who seek to introduce contraband into Iowa prisons have forged the return addresses labels and letterheads of established lawyers in Iowa in order to try and evade detection.”

Prisoners’ right to confidential correspondence with attorneys “nearly sacrosanct”

Erica Nichols Cook, who directs the Wrongful Conviction Division within the Office of the State Public Defender, penned a letter this week calling on the department to rescind the policy, which she says has “outraged” her clients.

“[T]his policy in which you open legal mail, make copies of it and then shred or destroy the originals is a violation of each incarcerated person’s Sixth Amendment Right to Counsel,” she wrote in a letter dated Sept. 7.

“Censorship as provided for in your policy violates every incarcerated person’s civil rights: it deprives every person of their confidential attorney-client relationship and effective legal assistance and thereby denies meaningful access to the courts,” the letter continues.

"I am regularly in correspondence as counsel for prisoners in prisons running from Florida and Alabama to the West Coast and I have never encountered this scenario."
-Gregory Sisk, law professor, University of St. Thomas

Gregory Sisk is a law professor at the University of St. Thomas who represents incarcerated clients and has written about prisoners’ rights to legal mail. Sisk reviewed the policy at IPR’s request and says he has never encountered another like it.

“I am regularly in correspondence as counsel for prisoners in prisons running from Florida and Alabama to the West Coast and I have never encountered this scenario,” Sisk said.

In an academic article published in 2019, Sisk and his co-authors wrote that “[n]o one in our society has a more compelling need to communicate in complete confidence with a lawyer than a prisoner." He worries Iowa’s policy may threaten that right.

“In general, the states’ correctional systems have been very protective of legal mail and recognize that the right to confidentiality in correspondence between a prisoner and a prisoner’s lawyer is to be protected,” Sisk told IPR. “The Ninth Circuit has described this right as nearly 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 won’t read them, and that confidentiality will be maintained.

“The changes initiated will preserve the protected status for such legal mail while only substituting the paper on which the communication is to be delivered to the recipient,” reads a statement on the DOC website.

"The changes initiated will preserve the protected status for such legal mail while only substituting the paper on which the communication is to be delivered to the recipient."
-Iowa Department of Corrections statement

The department says steps must be taken to address the “devastating impact” K2 is having on the state’s prisons. Correctional institutions across the country are struggling with an increase in overdoses and drug-related deaths.

But Sisk questions whether photocopying legal mail, on the order of potentially hundreds of pages at a time for appellate cases, is the most effective way to screen for contraband.

Family member of inmate calls for more evidence of K2 incidents

Kelly, whose brother is incarcerated at the Fort Dodge Correctional Facility, questions whether the scale of the issue justifies what she sees as a serious violation of inmates’ civil rights. IPR is withholding her last name because she fears relation against her brother.

“One of our firmest and most sacred rights to both privacy and adequate legal defense are now being offered up as sacrifices for protection from an alleged threat that is frequently cited, but rarely verified,” Kelly said.

"One of our firmest and most sacred rights to both privacy and adequate legal defense are now being offered up as sacrifices for protection from an alleged threat that is frequently cited, but rarely verified."
-Kelly, sister of an incarcerated Iowan

Kelly and other inmates’ loved ones say they have a slate of questions about how the prisons will ensure that copies are not stored internally on digital copiers, as well as what steps are being taken to provide drug treatment.

“If this really is that bad, we need to do more than copy and shred mail, we need a fundamental change with how people who are incarcerated can communicate with their lawyers privately going forward,” Kelly said.

In a statement released in April, the DOC reported that approximately 60 inmates had been involved in the “consumption, possession or introduction” of K2 in the state’s prisons.

Reporting indicates other states are also struggling to handle an increase in K2 incidents, though a Massachusetts lawsuit alleges that faulty drug tests there have significantly distorted the scale of the issue.

Law professor worries policy may force attorneys to drop cases due to ethical concerns

Nichols Cook, the lawyer in the public defender’s office, argues the policy prevents her from fulfilling her duty to safeguard the confidentiality of the attorney-client relationship, as outlined under the Iowa Rules of Professional Conduct.

“I must make all reasonable efforts to prevent inadvertent or unauthorized disclosure or unauthorized access to information related to the representation of a client,” her letter reads. “Your policy prohibits me from fulfilling my ethical duties and denies every incarcerated person access to counsel and the courts.”

Sisk, the law professor, agrees with Nichols Cook and fears that attorneys may drop cases due to the policy.

“Setting up a system like this in which confidentiality could be severely compromised puts lawyers in the position where they may not be able to continue representation,” Sisk said. “It could end up having a very negative effect of resulting in cases being dismissed because the state has interfered with the Sixth Amendment rights of prisoners to have the assistance of counsel.”

A spokesperson for the DOC did not respond to questions on whether the department will amend or rescind the policy in response to Nichols Cook’s complaint.