Sixth Circuit affirms injunction against Michigan jail's confiscation of ACLU mail

ACLU Fund of Mich. v. Livingston Cnty., No. 14-1617 (6th Cir. Aug. 11, 2015).

 A fragment from Philemon, which, like some of the other authentic Pauline letters, was written from prison.

A fragment from Philemon, which, like some of the other authentic Pauline letters, was written from prison.

The Livingston County Jail allows only white 4x6 inch postcards to be sent to or from inmates. No other kind of mail is allowed. The one exception to this postcard-only policy is “legal mail,” which in practice the warden defines as mail from an attorney to a client, or vice versa. Prison Legal News sued the Jail over this postcard-only policy. As that litigation was proceeding, the ACLU sent letters in envelopes to 25 inmates at the Jail. The letters expressed concern about the postcard-only policy, and asked whether the inmates would be interested in meeting with an ACLU attorney “for the purpose of obtaining legal advice or assistance”—although the letters also made clear that the ACLU wasn’t guaranteeing that it would represent the inmates.

The evidence suggests that the Jail confiscated the letters, opened them, and never delivered them to the inmates. The ACLU never got a single response from the inmates. And the Jail actually filed one of the ACLU’s letters—a letter addressed to somebody who was no longer an inmate—in the Prison Legal News litigation against the Jail. 

This suit alleges that the Jail’s confiscation of the letters violated the First Amendment as well as procedural due process. The ACLU sought a temporary injunction that would order the Jail to deliver the ACLU’s letters to the inmates, to stop confiscating or reading further legal letters, and to give inmates notice and an opportunity to be heard when their legal letters were confiscated. 

The district court granted the injunction, and the Sixth Circuit now affirms. The Jail’s restrictive definition of legal mail—a definition that requires an existing attorney-client relationship between the correspondents—very likely violates the First Amendment, which protects an inmate’s right to unimpaired communication with an attorney. After all, it’s pretty hard to form an attorney-client relationship in the first place without some preliminary correspondence and investigation. And the Jail’s proffered justifications for its mail policy are either fanciful or insufficient to sustain so broad a ban on legal mail. 

The Sixth Circuit concludes that the ACLU is likely to succeed on its due-process claim, too. The Jail concedes that if the ACLU’s letters count as legal mail, procedural-due-process protections attach to them. 

Congratulations to my friend Dan Korobkin, and the rest of the ACLU of Michigan, on this victory.