9th Circuit Dings Arizona for Reading Inmate’s Legal Mail

(CN) – The Arizona Department of Corrections unconstitutionally allows prison guards to read mail that inmates send to their attorneys, the Ninth Circuit ruled Thursday.

Death-row inmate Scott Nordstrom sued Arizona Department of Corrections Director Charles Ryan in 2011, claiming his Sixth Amendment right to confidential correspondence with his counsel and his First Amendment right to free speech was violated when a prison guard read a letter Nordstrom had written to his lawyer marked as “legal mail.”

U.S. District Judge David Campbell initially dismissed Nordstrom’s lawsuit for failure to state a valid claim, but a divided three-judge panel of the Ninth Circuit reversed the decision in 2014 and remanded the case.

Campbell then found the department’s policy did not violate Nordstrom’s constitutional rights. The Ninth Circuit disagreed Thursday, for the second time in three years.

Circuit Judge Milan Smith found that while the department has the right to allow prison guards to review outgoing mail for contraband, its definition of “contraband” is so broad that it amounts to a “page-by-page content review” that violated Nordstrom’s First and Sixth Amendment rights.

“At most, a proper inspection entails looking at a letter to confirm that it does not include suspicious features such as maps, and making sure that illegal goods or items that pose a security threat are not hidden in the envelope,” Smith wrote for the three-judge panel.

The department’s policy does not meet this standard though, since it requires officials to verify that a letter’s contents amounts to legal mail, Smith found.

“Due to the more limited threat that outgoing mail poses to prison security, and ADC’s inability to proffer evidence to show that such mail poses a threat, the ends do not justify the means,” Smith wrote. “Moreover, there are readily available, less restrictive alternatives that are unlikely to have an adverse effect on prisons.”

Smith suggested prison officials only scan letters for contraband and check a state bar’s list of licensed attorneys to confirm the recipient. The case now returns to Campbell to craft a decree of actual risks in Arizona state prisons.

Nordstrom received a death sentence in the 1996 shooting deaths of two men during a robbery at the Moon Smoke Shop, and four people during a robbery at the Tucson Firefighters’ Association Union Hall.

The Arizona Department of Corrections said it is reviewing the ruling.

Nordstrom’s attorney was not immediately available to comment.

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