Inmates Can Receive Direct Mail in 9th Circuit

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The 9th Circuit Court of Appeals in San Francisco on Tuesday affirmed a 2003 federal court decision that said it is unconstitutional for the Washington state Department of Corrections to throw away an inmate's mail because it was sent by bulk rate or because it offers something for sale.


In 1999, the state Department of Corrections banned all catalogs and non-subscription bulk mail from its prisons.


The case stems from a lawsuit against the department in 2001 by Prison Legal News, an independent 48-page monthly publication that reports, reviews and analyzes court rulings and news related to prisoner rights and prison issues.


Paul Wright, a former inmate at Monroe (WA) Correctional Complex, who completed a 17-year sentence for murder in December 2003, started the Seattle-based publication. Wright still edits PLN, which has about 4,000 subscribers nationwide and features the writings of many prisoners.


The suit claimed that the prison system violated its First Amendment right to distribute political speech. Prison staffers, the suit said, were throwing away PLN subscription-renewal notices and notices for supplemental materials, such as book-order forms and surveys.


Prisons never discarded actual issues of PLN, but the publication argued that if its subscribers did not get supplementary materials or did not know when to renew, this could have the same effect as censorship.


In addition, "an important part of the argument is that they have no business throwing out [this] mail, even if it's not the publication itself, because these are solicited publications," said Jesse Wing, an attorney with Seattle-based MacDonald Hoague & Bayless, who represents Prison Legal News. "These are people who requested correspondence whether they already were a subscriber or they contacted the PLN to become a subscriber. PLN doesn't send out mass mailings; it sends out correspondence to people [who] request it."


The suit also said that the ban interfered with PLN getting subscriptions and that the ban occurred without notifying PLN or the prisoners.


In 2003, the U.S. District Court in Seattle agreed with PLN, but the Department of Corrections appealed. The 9th Circuit Court, which has jurisdiction over nine states, including Washington, rejected the appeal Tuesday.


The department argued before the appeals court that allowing bulk mail and catalogs would mean more work for the prison's mailroom staff and increased opportunities for delivering contraband. It also argued that extra mail is a fire hazard.


"Publishers have a First Amendment right to communicate with prisoners by mail, and inmates have a First Amendment right to receive this mail," wrote judge Arthur Alarcon for the three-judge panel in the ruling. "[The] ban on non-subscription bulk mail and catalogs is not rationally related to a legitimate penological interest and is therefore unconstitutional."


The court also said contraband was more likely to be stored in First-Class mail than bulk mail.


PLN had asked for damages, but the court denied that request.


As a result of the ruling, "bans on mail based on the postal rate are unconstitutional in all of the states under the jurisdiction of the 9th Circuit. If you are doing this, you've got to change it," Wing said. "If you are banning items that offer something for sale -- also called a catalog -- that's unconstitutional. This affects everyone, not just Prison Legal News. [This ruling] is the very first ruling which held that a catalog ban is unconstitutional, so it presumably could be a basis for publishers or inmates in other states to challenge catalog bans."


Wing was unaware of any other similar bans, however.


Melissa Campanelli covers postal news, CRM and database marketing for DM News and DMNews.com. To keep up with the latest developments in these areas, subscribe to our daily and weekly e-mail newsletters by visiting www.dmnews.com/newsletters


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