The Michigan Department of Corrections (MDOC) has recently seen multiple instances of contraband attempting to be smuggled through legal mail, including legal documents on drug-laced paper.1 MDOC has also seen a rise in contraband being sent through the regular mail and has taken steps to combat the issue such as photocopying mail and delivering the copies to prisoners instead of the originals.2 Of course, contraband being smuggled into prisons poses a serious safety and security risk for prison staff and incarcerated individuals alike.
In order to prevent the introduction of contraband into prisons, strict rules and procedures are applied regarding incoming mail.3 However, due to the nature of legal mail and the sanctity of the attorney-client relationship, incoming legal mail from a prisoner’s attorney is treated differently and subject to special handling.4 Unlike regular mail, legal mail is ordinarily not read by prison staff and prisoners can typically receive the original documents instead of just copies.5 This difference in treatment between regular mail and legal mail has led to some individuals attempting to smuggle contraband through legal mail.
Often, the attorney is not intentionally trying to smuggle contraband but has instead been given the documents by someone else and unknowingly sends the contraband to prison. It is vital that attorneys be cognizant of attempts to use them as conduits to smuggle contraband and take appropriate measures to avoid any participation in it. Attorneys should also ensure that any document sent as legal mail actually qualifies as legal mail.
Attorneys may face professional discipline, as well as potential criminal charges, for taking part in smuggling contraband into prisons. Other individuals involved, including the incarcerated client, could be exposed to criminal charges. In addition, your client will likely be subject to prison discipline for abusing the legal mail system and/or contraband rules even if the conduct does not result in criminal charges.
It is therefore important for attorneys to be wary of acting as conduits for documents and other items from outside sources to their clients. Before forwarding any document to an incarcerated client given to them by a member of the public, including family members and friends of the client, the attorney should review it to verify that it truly qualifies as legal mail.6 If there is any doubt that the document is legal mail, the attorney should decline to provide it to his client and instead advise the person who gave them the document to send it through regular mail. If the attorney determines that the document is indeed legal mail, they should refrain from sending the original document and instead send a photocopy to avoid unwittingly sending drug-laced paper into the prison. Similar precautions should obviously also be taken when delivering anything to an incarcerated individual by hand.
Similar precautions should also be taken when sending mail to jails. Jails are not centrally operated like Michigan’s prisons and have rules that vary from jail to jail. Attorneys should familiarize themselves with a particular jail’s rules before transmitting any documents to a client.
MDOC has also reported issues with attorneys making calls to clients that are actually three-way calls involving non-lawyers. This violates MDOC’s policies and presents a security risk because calls with prisoners are subject to monitoring and recording for security purposes, but legal calls are treated differently and are not recorded in order to protect the lawyer-client relationship.7 Much like violations of mail rules, prisoners can be subject to discipline for these violations. Also, the involvement of an unnecessary third party can result in the loss of attorney-client privilege over the call. Furthermore, knowingly assisting a prisoner in circumventing prison rules like this could subject an attorney to professional discipline.
In conclusion, in order to avoid unintentionally sending contraband to incarcerated clients, it is of the utmost importance that attorneys exercise due caution and remain aware of any developments or changes in prison policies.