ACLU-NJ Hails Court Decision Protecting Confidential Communications

NEWARK, N.J. -- Citing in part the American Civil Liberties Union of New Jersey's legal brief, the U.S. Court of Appeals for the Third Circuit ruled last week that the New Jersey Department of Corrections could not open letters from inmates' attorneys or from the courts without the inmates present.

"This ruling affirms the basic right of Americans to engage in confidential communications, including a client's right to communicate privately with his or her lawyer," said Mary Beth Hogan of Debevoise & Plimpton, who acted as cooperating attorney for the ACLU-NJ. "It is reassuring that the court upheld that basic right and recognized that policies that infringe constitutional rights must be periodically re-examined to ensure that they are not predicated on obsolete or improbable concerns."

The court held the Department of Corrections' policy of opening letters outside inmates' presence infringed on the right to confidential communications and to free speech. It further held that the Department of Corrections failed to demonstrate a valid, rational connection between its policy and a legitimate government interest.

The department had adopted the policy as a safety measure in the wake of the anthrax scare, but the court said that, while it may have been appropriate at that time on an emergency basis, it is no longer appropriate and can no longer be supported. The court cited in part the ACLU-NJ's amicus brief that discussed the likelihood (or lack thereof) of anthrax being sent in a letter to a prisoner, especially in legal mail (i.e., a letter from an attorney or from the courts), and discussed the Postal Service policies now in place that further reduce that risk.

The case was captioned Allah v. Brown.

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