Representing Michigan prisoners, the American Civil Liberties Union’s National Prison Project filed objections to MDOC’s legal mail policy that was revised shortly after the Anthrax threats that followed the attacks of September 11, 2001.  

The Michigan DOC is entitled to take reasonable security precautions in light of the recent terrorist attacks and Anthrax threats through the mail, but a wholesale disregard for “the oldest of the privileges for confidential communication known to the common law” is unacceptable,” said Elizabeth Alexander, Director of the ACLU National Prison Project.  

Earlier this year, U.S. District Court Judge Richard Alan Enslen ordered the MDOC to institute a new policy after the agency was found to be in violation of two court orders that prohibit the reading of prisoners’ legal mail, MDOC staff continued to open and read prisoners’ privileged legal correspondence outside of the prison facility and outside the presence of prisoners.  (Hadix v. Johnson and Knop v. Johnson) 

"This is one more illustration that we don’t have to sacrifice our constitutional rights to ensure safety in a post 9-11 world," said Kary Moss, Michigan ACLU executive director.  "As the judge recognized, the government can guard against the possibility of anthrax in prison mail without reading confidential letters between inmates and their attorneys." 

In his court order, the judge wrote,  “Neither the Anthrax threats nor the other evidence offered by Defendants is sufficient to justify reading of legal correspondence since contraband such as Anthrax could be discovered by inspection not involving reading.  Furthermore, the Court reiterates that the First Amendment right to access to the courts guarantees confidential relations between attorney and client against decisions by prison administrators to read such correspondence when those intrusions are unsupported by probable cause.” 

The new DOC policy also requires staff to log all legal mail opened outside of the presence of the addressee.  Log entries indicate the date the mail was received, when it was inspected and processed, the name of the prisoner to whom the mail was sent and the name of the sender.  The log also notes whether any physical contraband was confiscated and, if so, what was confiscated. 

The new policy protecting the attorney-client privilege is an important victory for its prisoners and sets a meaningful precedent for prisoners' rights nationwide.