On March 3, 2017, the Ninth Circuit Court of Appeal held, in the cases of Hayes v. Idaho Corr. Ctr., 2017 U.S. App. LEXIS 3851 and Mangiaracina v. Penzone, 2017 U.S. App. LEXIS 3851 that a correctional institution can violate an inmate’s First and Sixth Amendment rights by opening properly marked legal mail outside the inmate’s presence.
In both cases, inmates filed suit against their respective correctional institutions, alleging that correctional staff opened mail from their attorneys outside their presence on several occasions. The district courts dismissed both cases for failure to state a claim, reasoning in the Mangiaracina case that the inmate failed to allege that the mail was marked as “legal mail” and that he failed to explain how he knew the mail was opened outside his presence. In the Hayes case, the district court reasoned that the opening of legal mail by corrections staff was isolated and insufficient to state a claim for a constitutional violation.
Both inmates appealed, and the Ninth Circuit reversed the dismissals and ruled that the cases could proceed because the inmates adequately alleged violations of the First and Sixth Amendments to the United States Constitution.
Hayes v. Idaho Corr. Ctr.
The Ninth Circuit held that the First Amendment protects an inmate’s right to be present when legal mail is opened by correctional staff, and that even isolated violations of this right are sufficient to state a valid claim for judicial relief. The Court reasoned that when properly marked legal mail is opened by correctional staff outside an inmate’s presence, the inmate may “understandably be wary of engaging in future communication about privileged legal matters.” Also, the Court noted that, because inmate communications often relate to lawsuits challenging prison conditions or the conduct of prison staff, inmates may “justifiably be concerned about retaliation from the very officers the prisoner has accused of wrongdoing.” Further, opening of legal mail outside the presence of the inmate may reveal the prisoner’s legal strategy, particularly because there are no other methods of confidential communication available to inmates. Accordingly, the Court determined that such a practice could violate the inmate’s First Amendment rights.
Mangiaracina v. Penzone
In a companion case with similar facts, the Ninth Circuit held that the Sixth Amendment right to counsel may have been violated when county jail officials opened two properly marked pieces of legal mail concerning a criminal matter outside the pre-trial detainee’s presence. The Court noted that a criminal defendant’s ability to “communicate candidly and confidentially with his lawyer is essential to his defense[,]” and that the jail did not offer any legitimate penological interest that would be served by opening legal mail outside the inmate’s presence. The inmate adequately alleged that the envelopes in question were properly marked as legal mail, and the “natural corollary is that a prisoner whose mail is opened outside his presence has no way of knowing whether it had been (permissibly) inspected or (impermissibly) read.”
HOW THIS AFFECTS YOUR AGENCY
These cases provide that an inmate’s First Amendment and Sixth Amendment rights would be violated if correctional officers intentionally open that inmate’s clearly marked legal mail outside the inmate’s presence. Even isolated instances of doing so can violate the inmate’s First Amendment right to free speech and the Sixth Amendment right to counsel and may provide a basis for legal liability. Accordingly, law enforcement agencies operating jail facilities may wish to examine their policies and practices to determine if they comply with the holdings of these cases.
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 The Sixth Amendment right of the “accused” to assistance of counsel in “all criminal prosecutions” is limited by its terms: “it does not attach until a prosecution is commenced.” McNeil v. Wisconsin, 501 U.S. 171, 175, 111 S. Ct. 2204, 115 L. Ed. 2d 158 (1991); see also Moran v. Burbine, 475 U.S. 412, 430, 106 S. Ct. 1135, 89 L. Ed. 2d 410 (1986). The Supreme Court has stated, “We have, for purposes of the right to counsel, pegged commencement to “‘the initiation of adversary judicial criminal proceedings–whether by way of formal charge, preliminary hearing, indictment, information, or arraignment. ‘” United States v. Gouveia, 467 U.S. 180, 188 (1984) (quoting Kirby v. Illinois, 406 U.S. 682, 689 (1972)).