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Three state prisoners are challenging a policy adopted after the 2001 anthrax attacks of opening mail from their lawyers – and allegedly reading and copying it – before delivering it to them. While prison officials have always inspected legal correspondence for weapons and contraband, mail from lawyers has traditionally been opened in the presence of the prisoner so the client knows it isn’t being copied or monitored. After the anthrax attacks, however, the Department of Corrections instituted a new policy to guard against mail threats: The mail would be inspected in a separate facility at the prison, resealed with evidence tape and signed by an inspector, and delivered and unsealed again in the prisoner’s presence. The policy’s most significant impact is on public defenders, who form the major contingent of counsel to convicted criminals. In a case awaiting a decision from U.S. District Judge William Walls, Allah v. Brown, No. 02-5298, three prisoners at the Eastern Jersey State Prison in Rahway claim that the policy is an unconstitutional chill on lawyer-client communications. According to the suit, one of the plaintiffs – convicted drug dealer Jamaal Allah – came to suspect his lawyer’s mail was being monitored in February 2002. On the 18th of that month – a federal holiday on which no mail is delivered – Allah was called to the mailroom to receive a letter. The unsealed envelope contained two yellow notes. They said, “[m]ake a copy for classification file” and “[a]ll of this mat’l [sic] goes to Mr. Allah,” according to the suit. Allah claims that other letters were slid under his cell door, rather than unsealed in his presence. The evidence tape and the signature were often missing. Since September 2002, Allah’s suit says, he received 29 pieces of legal mail. Only 10 letters were re-sealed with evidence tape and only one was signed by an inspector, the suit states. Allah is serving a five-to-10-year sentence that started in 2001. Two other inmates tell similar stories in the suit: � Lennie Kirkland, serving five to 10 years for assault, weapons possession, possession of drugs and escaping, has received “scores” of pieces of legal mail, but not one has been signed by the inspector, who handed it to him unsealed, he says. � Kevin Jackson, a murderer serving a life term, claims he received seven letters from lawyers since November 2002. Only one was properly resealed and none were signed, he says. The trio’s lawyer, associate Shavar Jeffries of Newark’s Gibbons, Del Deo, Dolan, Griffinger & Vecchione, claims the notes in Allah’s envelope indicate that the mail is not merely inspected but actively monitored by prison staff. “One of our clients called us in another matter and said, ‘hey they’re reading my mail. My mail is coming opened,” Jeffries says. “His [prison] status was changed and some other privileges were changed and he believes it’s because he brought these challenges.” That client was Allah, whom Gibbons, Del Deo also represents in A.A. v. Attorney General of the State of New Jersey, a challenge to a new law requiring DNA sampling from all convicts. Deputy Attorney General Christopher Josephson, who is representing the Department of Corrections, declines to comment, as does the department. Josephson’s defense brief, however, points to an unpublished decision from August 2003 in a similar case before Judge Garrett Brown Jr. In Jones v. Brown, 02-3045, the plaintiff alleged that his mail was routinely copied, delaying its delivery by 10 to 14 days, and that the monitoring was in retaliation for his complaints about guards at New Jersey State Prison in Trenton. Brown dismissed the case because the anthrax policy was not about “the content of incoming correspondence, but the content of the incoming envelopes.” The policy placed only “minor burdens” on inmates, and the new rule expressly prohibited legal mail monitoring. The policy was therefore a valid exercise of administrative discretion, Brown concluded. Jeffries believes the dismissal was partially the product of a deficient pro se challenge, and partially just plain wrong. He proposes a solution that would satisfy the Department of Corrections’ anthrax fears and the prisoners’ confidentiality requirements: opening the mail with the prisoner on the other side of a pane of glass. Josephson, in response, said that such a solution would be logistically impractical. A summary judgment motion in the case has been briefed and the parties await Judge Wall’s decision.

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