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Iowa Prisons Pause Legal Mail Policy That Raised Constitutional Concerns For Attorneys

An officer stands at the Fresnes Prison in France in September 2016. Fresnes was the first French prison to separate radicalized inmates from the general prison population.
Patrick Kovarik/AFP/Getty Images
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The Iowa Department of Corrections is pausing a policy that required legal mail sent to incarcerated individuals to be photocopied. Some attorneys and advocates had raised concerns the rule threatened inmates' constitutional rights.

The Iowa Department of Corrections has pressed pause on a new policy that required legal mail sent to inmates to first be photocopied. The policy was enacted due to concerns that the original documents could be infused with drugs, but the rule raised constitutional concerns for some attorneys.

Under the policy, correspondence sent by attorneys to Iowa inmates was being photocopied and the originals shredded, due to concerns some people were forging legal mail and soaking it in the synthetic drug K2. The paper can then be smoked or ingested, which the DOC says is becoming an increasingly serious issue in the state’s prisons.

But some attorneys and advocates have raised concerns about the rule, which they said threatens inmates’ constitutional right to legal counsel.

Gregory Sisk, a law professor at the University of St. Thomas who represents incarcerated clients and has written about prisoners’ rights to legal mail, reviewed the policy at IPR’s request and said he has “never encountered this scenario” before.

“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.”

Lawyers are ethically bound to ensure their communication with clients is confidential, and some felt they couldn’t do that under the policy.

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.

Shortly after IPR published a story detailing the constitutional concerns around the new rule, a DOC spokesperson alerted IPR that the photocopying policy had been “paused for further review."

“Over the course of the last several months, staff have identified paper mail itself as being a dangerous vehicle for supplying drugs to inmates,” DOC spokesperson Sarah Fineran told IPR in an email. “A process for providing photocopies of legal mail was enacted to ensure inmate safety, however, it has been paused for further review.”

Kate Payne was an Iowa City-based Reporter