The policy, outlined in a memo sent to inmates on November 19, 2001, allowed all mail to be "routinely opened and inspected prior to delivery" and was the result of "the national alert on terrorism and the recent events [the anthrax scare] surrounding the U.S. Postal Service."
The ACLU of Virginia sent a letter to the Department of Corrections on November 28, opposing the new mail opening policy and seeking clarification regarding its implementation.
In the letter, addressed to Department of Corrections Deputy Director Gene M. Johnson, ACLU of Virginia executive director Kent Willis wrote: "Please clarify for us whether the new policy allows prison officials to read the contents of legal mail sent to prisoners. If it does, the policy is clearly unconstitutional and must be rescinded immediately. If it does not, please indicate to us how and when you intend to communicate that message to prison officials. We would also like to know what safeguards will be put in place to make certain that prison officials do not read the mail of prisoners."
In a memo, dated February 1, 2002, Johnson informed all wardens and superintendents that the policy initiated on November 19 was suspended. "Legal and special mail," Johnson wrote, "will be opened and inspected for contraband in the presence of the inmate."
"The simplest constitutional safeguard was the one that was already in place prior to the policy change in November and the one that is again in place." said Willis. "Nothing happened on September 11 or afterwards to justify the removal of prisoners as observers of the opening of their legal mail. Having them watch the process does not make it less effective nor undermine prison security."
"The policy change in November was an irrational overreaction to September 11 and the anthrax scare that followed," added Willis. "The important thing is that is was short-lived, and prisoners are again assured that they will have confidential communications with their attorneys."
A copy of the February 1 Department of Corrections memo rescinding the November 19 policy follows.
Contact: Kent Willis, Executive Director, ACLU of Virginia, 804-644-8022