By Christopher Zoukis
A federal three-judge appeals panel unanimously ruled on May 18 that Arizona corrections officials were illegally monitoring mail state prisoners send to—or receive from—their lawyers. It was the third time in three years judges from the 9th Circuit had rebuked Arizona law enforcers on the issue.
In a 2014 case (Nordstrom v. Ryan), the appeals court held that state corrections officials exceeded their proper authority in checking mail sent by inmates to counsel to ensure it is free of contraband—either forbidden items or information that could undermine prison security. Instead, the court found, prison staff were improperly reading incoming and outgoing correspondence with inmates’ lawyers in detail.
The case was brought by Scott Nordstrom, a death row prisoner convicted of killing six people during two robberies in Tucson in 1996. Nordstrom claimed a prison duty officer insisted on reading—not merely doing a quick check for contraband — a letter he wanted to send to his counsel.
After the initial federal appeals court ruling, his case was sent back to a state trial judge, who nonetheless declared the state’s actions didn’t violate Nordstrom’s constitutional right to counsel under the Sixth Amendment.
An appeal of that ruling argued Arizona prison officials may lawfully only briefly peruse inmates’ correspondence to counsel to check for contraband, and may not insist on in-depth reading of such letters.
Nordstrom’s appeal of the state judge’s ruling brought his case back to the 9th Circuit, which made short work of quashing the state judge’s position. In the most recent ruling, a three-judge panel emphasized prison staff can only inspect inmates’ correspondence to or from lawyers briefly, to detect whether any contraband is present, but may not undertake a more thorough examination.
The panel hearing Nordstrom’s second appeal struck down the state’s current “inspection” policy, which called for detailed page-by-page review, as out of step with the ruling from his first appeal. In addition, the panel found the state judge had not found evidence of a serious enough threat to prison security, or the infeasibility of less drastic measures, to justify its policy, as a 1987 Supreme Court decision required.
A few months before the latest Nordstrom decision, another 9th Circuit three-judge panel in Mangiaracina v. Penzone reached a similar conclusion, finding another Arizona judge had wrongly dismissed a section 1983 civil-rights lawsuit brought by a pre-trial detainee being held in a county jail in Phoenix. The inmate’s lawsuit attacked prison staff’s practice, contrary to the jail’s stated procedures, of opening and reading mail from the inmate’s lawyers outside his presence. The panel held the inmate had the right to be present when a properly designated letter to or from counsel was inspected.
That panel cited both the holding in Nordstrom’s first appellate court decision and earlier decisions in the 9th Circuit and other federal appeals courts as making it a violation of the inmate’s right to counsel under the Sixth Amendment to open mail to or from counsel outside the inmate’s presence. The court also allowed the civil-rights case by the inmate to go forward, though one panel member separately stressed that merely negligent actions by prison staff would not be enough to support an inmate lawsuit.
Christopher Zoukis is the author of Federal Prison Handbook: The Definitive Guide to Surviving the Federal Bureau of Prisons, College for Convicts: The Case for Higher Education in American Prisons (McFarland & Co., 2014) and Prison Education Guide (Prison Legal News Publishing, 2016). He can be found online at ChristopherZoukis.com, PrisonEducation.com and PrisonerResource.com.