Key Points: 

• New prison mail barcode policy sparks concerns from inmates, attorneys

• Advocates warn changes will hinder self-represented litigants’ access to the courts 

• Corrections officials defend the policy as lawful, necessary to curb contraband

Advocates are flagging constitutional and confidentiality concerns over a new state prison policy requiring specialized bar codes and additional scrutiny over inmates’ legal mail. 

The Arizona Department of Corrections, Rehabilitation and Reentry maintains the policy change to legal mail processing will help prevent the introduction of illicit drugs and contraband banned by the department — items like sexually explicit materials and descriptions or depictions of drugs, violence and criminality.

It also claims it will do so while keeping the confidentiality of legal mail intact. 

But those advocating for incarcerated individuals see it differently, with a national and state group now considering legal challenges against the order. 

“The state and the Department of Corrections are very vulnerable to litigation,” Corene Kendrick, deputy director of the American Civil Liberties Union National Prison Project, said. 

Kendrick said the ACLU National Prison Project was reviewing the policy internally and contemplating the best path forward for legal challenge. Donna Hamm, executive director of Middle Ground Prison Reform, said the organization was in the process of securing attorneys to take the case. 

The ADCRR maintains the new policy is legally sound.

“ADCRR is fully confident in the appropriateness, legality, and constitutionality of the changes being made,” a spokesperson for ADCRR said in a statement. 

In December, the department took its first step toward implementing the new policy by redirecting all general mail to a facility in Texas tasked with digitally scanning and uploading inmates’ letters to the tablet system. A month later, all packages, publications and official government mail started going straight to a central address for security scanning. 

With the dawn of digitization, the department signaled future change to legal mail, too. And on June 8, the department fulfilled its promise, laying out the new system and a new definition for the term “legal mail.” 

Beyond correspondence from an inmate’s attorney, a judge or the court, the definition of legal mail accounted for pro se or pro per litigants, or people representing themselves. 

But in the new order, the department cut out those who assist pro se litigants in making their case, and are now sending letters from paralegals, private investigators and private process servers through digitization.

Hamm said by limiting the legal mail definition, the department has “completely decimated the ability for proper inmates, of whom there are thousands within the Department of Corrections, to appropriately and effectively litigate their claims.” 

Those claims can include inmates pursuing criminal appeals, post-conviction relief petitions, medical claims dealing with gross negligence and deliberate indifference and mistreatment inside prison walls. 

She noted the lack of confidentiality in the digitization process, the delays in receiving mail and the instances where mail heads to the wrong inmate’s tablet. 

“I can list a dozen potential problems with that, and they’re all directly related to access to the court,” Hamm said. “That is supposed to be sacrosanct.” 

She added that inmates have limited access to law libraries and legal assistance under the U.S. Supreme Court decision Lewis v. Casey. The case, which originated out of Arizona, affirmed inmates’ right of access to the courts but found that unless the inmate is substantially harmed by the deficiency, that right is not violated by a lack of access to legal research or help. 

“It’s long been said that rights without remedies are no rights at all, and so there has to be a remedy for a pro per inmate who has an equal right to access the court as one who’s represented by a lawyer,” Hamm said. 

John Fabricius, executive director of Praxis Initiative who was formerly incarcerated in ADCRR, echoed the same, noting the existing difficulties in litigating sans an attorney. 

He noted troubles in navigating short deadlines set in the grievance process and getting a claim in front of a court in the first place. 

“The courts are the only and last remedy that inmates have in there when the state is oppressing them and harming them and hurting them,” Fabricius said. “Now what the director has done is he has effectively shut the door to the courthouse.” 

Beyond violations of right of access to the court, Kendrick claimed the policy raised potential violations of the First Amendment rights of attorneys as well. 

As one of the attorneys leading on the ongoing healthcare class action lawsuit against the department, Kendrick said she and her co-counsel receive and respond to hundreds of letters from incarcerated people reporting problems related to compliance with the healthcare injunction. 

“We can’t use the tablet system because those emails are all scanned and read and cataloged by the department. Ethically, we cannot communicate with our clients in a way that is not confidential,” Kendrick said. “This is just creating huge burdens on us as advocates, but also on incarcerated people who are trying to provide information to us or to the court.” 

In a statement provided by a spokesperson, Dave Byers, director of the Administrative Office of the Courts, said the judiciary would not be able to implement the policy as proposed by ADCRR.

“ADCRR just recently contacted AOC to inform us of their new policy. We explained that we would need to discuss with our 180 trial courts and have been coordinating with them. We are meeting with the presiding judges,” Byers said. “In addition, we have offered alternative means to help accomplish their goal as we would not be able to meet or execute their policy as proposed.”

The Clerk of the Court for the federal court in the District of Arizona did not respond to inquiries regarding input and implementation of the legal mail policy.

The department maintains it “will continue its regular, transparent, and collaborative communication with Arizona’s legal community, various court systems, and judicial stakeholders to ensure a smooth transition as these updates go into effect.”

Per the department, the policy will take effect July 13 with a 30-day grace period. After the 30 days, though, all mail missing a barcode or sent directly to a prison complex instead of a central facility will be returned to sender.