A panel of the US Court of Appeals for the Ninth Circuit [official website] on Friday ruled [Opinion, PDF] that the Arizona Department of Corrections‘ (ADC) [official website] outgoing mail policy calling for a “page-by-page content review” of inmates’ confidential outgoing legal mail violated the First and Sixth Amendments of the US Constitution. In reaching this conclusion, the panel applied Nordstrom I standard for Sixth Amendment Right to Counsel, which states: “The right to counsel is violated when 1) ‘the government deliberately interferes with the confidential relationship between a criminal defendant and defense counsel’ and 2) the interference ‘substantially prejudices the criminal defendant.'” The panel concluded: “We have recognized a defendant’s ‘ability to communicate candidly and confidentially’ with defense counsel as ‘essential to his defense’ and ‘nearly sacrosanct’ … Thus, prison officials may not read an inmate’s ‘outgoing attorney-client correspondence.'” However, the panel added that prison officials can “inspect” an inmate’s outgoing mail, in his presence, to ensure that it does not contain such items as a map of the prison yard, details of guards’ shift changes, escape plans, or contraband. As to the First Amendment, the panel applied the four-factor Turner tests which asks:

(1) whether there is “a valid, rational connection between the prison regulation and the legitimate
governmental interest put forward to justify it”; (2) “whether there are alternative means of exercising the right that
remain open to prison inmates”; (3) what “impact accommodation of the asserted constitutional right will have
on guards and other inmates, and on the allocation of prison resources generally”; and (4) whether there is an “absence of ready alternatives.”

The panel concluded that the outgoing legal mail policy failed the four-part test, and thus violated the defendant Scott Nordstrom’s First Amendment rights “due to the more limited threat that outgoing mail poses to prison security,” ADC’s inability to make a sufficient showing that such mail poses a threat, and because “there are readily available, less restrictive alternatives” to ADC’s policy. The case has been remanded back to the lower court.

Prisoner issues have been prominent across the world. In January, the UK Ministry of Justice released figures demonstrating a record number of suicides and other deaths [JURIST report] in prisons in England and Wales in 2016. Many experts and politicians have attributed the findings to overcrowding and a cut in funding and staffing. Following a clemency order issued by President Pierre Nkurunziza, Burundi’s government began releasing [JURIST report] scores of prisoner earlier in January. The American Civil Liberties Union of Hawaii (ACLU of Hawaii) [Advocacy website] filed a complaint [JURIST report] with the US Department of Justice [official website] in January, stating that overcrowding in the state correctional facilities is resulting in violations of the prisoners’ Eighth and Fourteenth Amendment rights.