via PLAP blog

On February 5, 2021, PLAP Policy Directors Joan Steffen and Sheridan Cunningham submitted written testimony on proposed changes to the regulations governing mail procedures in Massachusetts prisons, 103 CMR 481. Joan also provided oral testimony at a public hearing on January 29, 2021.

Sheridan and Joan began by emphasizing PLAP’s familiarity with the Department of Correction (DOC) mail process. PLAP student attorneys interact with hundreds of people incarcerated in Massachusetts via mail each year. PLAP student attorneys have also represented incarcerated clients in disciplinary hearings who have been accused of misusing the mail process, including allegations of introducing illicit drugs via mail. PLAP has observed an increase in such allegations in recent years, including many allegations based on unreliable field tests that are ultimately proven to be specious.

In what it describes as an effort to prevent the introduction of illicit drugs into DOC facilities, DOC has proposed several changes to 103 CMR 481. These proposed changes include photocopying all incoming legal and non-legal mail, as well as eliminating time limits on mail processing. Joan and Sheridan’s testimony emphasized the burdens that these proposed changes would place on PLAP’s clients and all people incarcerated in DOC facilities, as well as their loved ones.

First, Joan and Sheridan argued that photocopying all incoming legal mail would pose “an unacceptable risk of breaching the confidentiality of attorney-client communications.” The proposed photocopying system cannot ensure full confidentiality because modern copiers have internal memory that allow documents to be printed again later, and there is an increased risk that DOC employees will inadvertently read privileged materials. As Joan and Sheridan emphasized, “The right to confidential attorney-client communications is essential and must be preserved, particularly in an environment where the person in custody may well be involved in legal proceedings with the Commonwealth regarding his underlying conviction, or with the Department that has him in custody.” Joan and Sheridan argued that DOC could adopt alternative provisions to prevent introduction of illicit drugs without infringing on attorney-client privilege, such as adopting a mail authentication system to distinguish authentic legal mail from counterfeit mail.

In addition to posing a threat to attorney-client privilege, the proposed changes would hinder the ability of people in prison to communicate with their loved ones. DOC has proposed using a third-party photocopying vendor to copy all incoming non-legal mail; incarcerated people would then be provided only with the photocopies of the original letters. As Joan and Sheridan emphasized, people in prison “are separated from their families and other loved ones for incredibly long periods of time, and often the only physical connection they are able to have with them is to be able to touch the same handwritten card that they touched, or the drawing that their child drew them.” This separation is particularly acute during the COVID-19 pandemic, given the restrictions on in-person visits. The proposed changes would also likely lead to delays in mail delivery; as Joan and Sheridan note, the adoption of a similar system in Pennsylvania has led to an increase in complaints about lost and delayed mail.

DOC’s proposal to eliminate time limits on mail processing would also undermine the ability of incarcerated people to communicate with their loved ones, as well as their attorneys. DOC has proposed eliminating the requirement that outgoing mail be delivered to the post office within 24 hours of collection and that incoming mail be delivered to incarcerated persons within 24 hours of receipt by DOC. As Joan and Sheridan emphasize, incarcerated people “rely on timely mail processing for a host of reasons, including compliance with external deadlines, and providing assurances and updates to loved ones about their status and wellbeing.” Such mail communication is especially crucial given the restrictions on in-person communication due to COVID-19; PLAP has also relied more heavily on mail to communicate with clients during the pandemic.

DOC’s proposed changes, Joan and Sheridan conclude, are costly, fail to address DOC’s goals, and undermine the ability of people in prison to communicate with loved ones during a global pandemic. Joan and Sheridan encourage DOC to study the implementation of photocopying systems in other states before asking Massachusetts taxpayers to pay for a similar system here. They emphasize that DOC could better achieve its aims of reducing drug use and recidivism “by expanding access to substance use therapy, mental health care, and medically-assisted treatment; and improving access to programming.” Finally, they argue that the proposals will hinder communications between incarcerated people and supporters beyond the prison walls, and would thus, “in large part, punish prisoners, spouses, children, pen-pals, and other loved ones who have done nothing wrong.”

You can read Joan and Sheridan’s full testimony here.

Filed in: In the News, Legal & Policy Work

Tags: Harvard Prison Legal Assistance Project, Joan Steffen, PLAP, Prison Legal Assistance Project, Sheridan Cunningham

Contact Office of Clinical and Pro Bono Programs