Opening a Prisoner's Legal Mail Outside His Presence May Violate the Sixth Amendment

"Prisoners have a Sixth Amendment right to be present when legal mail related to a criminal matter is inspected," the U.S. Court of Appeals for the Ninth Circuit held in March 2017. See Mangiaracina v. Penzone, No. 14-15271 (9th Cir. 2017).

The Sixth Amendment protects your right to a lawyer in a criminal case, and that includes being able to communicate with your lawyer without the government reading along. The decision binds federal courts in the Ninth Circuit, which covers Arizona, California and seven other western states and territories.

The case

Nick Mangiaracina, held at a jail in Arizona, sued jail officials after his properly marked legal mail was opened outside his presence twice. He filed grievances, and he said staff told him they "can open legal mail outside our presence if they want to," that "there is no law against it," and that "they just do it in our presence as a courtesy."

What the court held

Even though it happened only twice, the court held that "even isolated incidents of improper mail opening may, in appropriate circumstances, be sufficient to allege a Sixth Amendment violation."

Jail officials argued he also had to show that guards actually read his mail. The court disagreed. If mail is opened in front of a prisoner to keep guards from reading it, then a prisoner whose mail is opened outside his presence has no way to know whether it was read. So he could not be expected to allege that it was. The court wrote:

If the practice of opening legal mail in the presence of the prisoner is designed to prevent correctional officers from reading it, then the natural corollary is that a prisoner whose mail is opened outside his presence has no way of knowing whether it had been (permissibly) inspected or (impermissibly) read. In other words, Mangiaracina could not in good faith have alleged that jail employees had read his mail since he had no basis for knowing what had happened to his mail prior to delivery.

The court also found that officials could not "identify any legitimate penological interest" for opening his legal mail outside his presence. The jail's own policy required opening legal mail in front of the prisoner. The court said: "Defendants have identified no reason in their briefing for deviating from this policy. No special deference is therefore required."

The court reversed the dismissal of these claims and sent the case back for further proceedings. (Other claims were dismissed because the mail was not properly marked as legal mail.)

Practical tip: make sure legal mail is marked

That last point matters. In federal prison, the BOP treats mail from a lawyer as "special mail" only if the envelope identifies the sender as an attorney and is marked "Special Mail – Open only in the presence of the inmate" (28 C.F.R. § 540.19). If you are writing to a loved one's lawyer about the case, ask the lawyer to send legal papers to the prison that way.

For more recent criminal cases, see our Supreme Court Case Roundup.

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