By Bob Egelko
San Francisco Chronicle
SAN FRANCISCO, Calif. — Prisons can inspect inmates’ mail to their lawyers for evidence of illegal activity, like escape plans, but can’t read the letters because of attorney-client confidentiality, a divided federal appeals court ruled Monday.
“A criminal defendant’s ability to communicate candidly and confidentially with his lawyer is essential to his defense,” the Ninth U.S. Circuit Court of Appeals in San Francisco said in a 2-1 ruling.
The court reinstated a suit by an Arizona Death Row inmate, Scott Nordstrom, whose letter to his lawyer was seized and read by a prison guard in his presence in May 2011.
The guard cited the Arizona prison director’s policy of allowing officers to read outgoing mail to make sure it contains no contraband and “is of legal subject matter.”
In California, by contrast, prison officials prohibit guards from reading inmates’ mail to their lawyers, said attorney Donald Specter of the Prison Law Office, which filed arguments supporting Nordstrom’s suit.
A federal judge in Arizona dismissed the suit, but the appeals court said the U.S. Supreme Court had implicitly ruled in a 1974 Nebraska case that officials could inspect, but not read, inmate mail.
While guards can examine outgoing mail to see if it contains a map of the prison, escape plans or other incriminating content, inmates would be chilled from discussing essential information about their cases and their backgrounds if they knew guards would read the letters, said Judge Barry Silverman in the majority opinion.
In dissent, Judge Jay Bybee questioned how guards could determine whether a letter contained escape plans without reading it. He said the court majority made an already tough prison environment “a little tougher.”