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A challenge to Pennsylvania prisons’ legal mail policy

What you’ll read today

  • Spotlight: A challenge to Pennsylvania prisons’ legal mail policy

  • Man exonerated in murder but diagnosed with terminal cancer as he awaited freedom

  • I am a human and I just ask to be treated as one’

  • Unanimous Supreme Court says 8th Amendment’s protection against excessive fines applies to states

  • Eliminating cash bail delivers positive results in Philadelphia

  • LA County will phase out use of of pepper spray in juvenile facilities

  • Texas prisons say a death in custody on a 103-degree day was not from heat stroke

In the Spotlight

A challenge to Pennsylvania prisons’ legal mail policy

In October, Lori Robinson told the Philadelphia Inquirer about a stack of her child’s drawings building up at home. Her 7-year-old was making the pictures to send to his father, serving a life sentence in Pennsylvania prisons. Under new prison mail policies, the boy’s drawings could not be sent directly to his father. They would instead have to be mailed to a processing facility in Florida, where they would be “scanned, digitally forwarded to printers at each state prison and stored indefinitely for ongoing surveillance purposes.” Hakeem Robinson would receive printouts of a scan of his son’s drawings and the drawings themselves would remain in storage at the Florida plant. Lori Robinson couldn’t reconcile herself to that process. “It’s good for him to develop those skills, and he would always mail them to his dad. … But I’m not comfortable with that anymore. I don’t want my 7-year-old autistic child’s stuff to be able to be searched in some database in Florida.” [Samantha Melamed / Philadelphia Inquirer]

Under the policy that the corrections department adopted in September, people in prison can receive no drawings or cards or photographs or letters from their families and friends, only black and white copies of them, while the originals remain in that faraway Florida plant; they cannot receive books, whether from individual senders or directly from Amazon; and prison staff will make copies of their legal mail to give them, while originals are stored at the prison for 45 days. These restrictions, in effect nowhere else in the country, complicate the already herculean task of staying in touch with an incarcerated loved one, limit access to books, and erase the right to confidentiality in attorney-client communication. [Victoria Law / Bloomberg Businessweek]

Immediately after the policy went into effect, several legal organizations instructed their attorneys to stop sending mail to clients. The Abolitionist Law Center, the ACLU of Pennsylvania, and the Pennsylvania Institutional Law Project wrote a letter addressed to the chief counsel of the Department of Corrections. Referencing a meeting with him the previous week, they said, “The procedures you describe simply do not reasonably protect the rights of the men and women incarcerated within DOC.” Furthermore,  “experts in professional ethics have advised us that the DOC’s new process for handling legal mail raises sufficient confidentiality concerns that we should not continue to communicate privileged information with clients incarcerated in state prisons via mail.” Although they hoped it would not be necessary, the organizations were preparing a federal challenge. [Raven Rakia / The Appeal]

The harsh, even life-altering, and constitutionally suspect restrictions on mail, including legal mail, were implemented in response to concerns that drugs were being sent into prisons. The clampdown was announced after 58 corrections staff members fell ill after handling mail that contained synthetic cannabinoids. But medical toxicologists were skeptical of the connection between the illnesses and exposure to the cannabinoids. A more likely explanation, they hypothesized, was “mass psychogenic illness,” or symptoms more consistent with anxiety.

Others questioned why the department was more focused on preventing the entry of drugs than providing treatment in prisons. Abraham Gutman of the Philadelphia Inquirer pointed out that “without access to effective addiction treatment, which includes medications that are not accessible in Pennsylvania prisons, people in addiction turn to drastic measures such as smuggling drugs.” In some cases “the drugs smuggled are actually medications” for the treatment of substance-use disorders. The medication-assisted treatment (MAT) program’s statewide coordinator for the corrections department told Gutman, “If you would treat individuals for their substance-use disorder, you would likely reduce the black market.” [Abraham Gutman / Philadelphia Inquirer]

In October, as the Pennsylvania corrections department continued with its new mail policy, the advocacy organizations sued, seeking an injunction. Two lawsuits were filed, one on behalf of an individual in prison and the other for four organizations, claiming that the policy undermines attorney-client privilege in violation of the First Amendment rights of people and their attorneys. The lawsuits are part of broader challenges to the mail policy. Yesterday was the first day of a hearing in federal court in Harrisburg. Among those who testified was an assistant federal public defender who said she is now unable to write to her 15 clients on Pennsylvania’s death row. The effect on her representation, she said, has been “stifling.” [Katie Meyer / WITF]

Kerry Marshall, who is in prison in Pennsylvania, is one of the people expected to testify. Marshall has three cases underway, one regarding his religious rights, a federal appeal, and a state court case. “The policy has interfered with his ability to have substantive conversations with his attorneys on all of his cases,” his civil rights attorney told the Inquirer. In her case with Marshall, she was unable to communicate via mail about a proposed settlement and could not arrange a sufficiently long phone conversation to discuss it. “The alternatives available to communicate with clients in the DOC really aren’t reasonable alternatives at all,” she said. [Samantha Melamed / Philadelphia Inquirer]

Stories From The Appeal


A prisoner walking to his cell at California Men’s Colony prison in San Luis Obispo, California.
[Photo illustration by Anagraph. Photo by Andrew Burton/Getty Images]

Man Exonerated in Murder But Diagnosed With Terminal Cancer as He Awaited Freedom. William J. Richards was cleared in the death of his wife. But he says he was the victim of medical neglect while behind bars, which led to a cancer diagnosis becoming terminal. Now he’s suing. [Erika Stallings]

‘I Am a Human and I Just Ask to Be Treated As One.’ A lawsuit challenging cash bail in St. Louis could help close a notorious jail. [Kira Lerner]

Stories From Around the Country

Unanimous Supreme Court says 8th Amendment’s protection against excessive fines applies to states: In a 9-0 decision, the Supreme Court has held that the Eighth Amendment’s protection against excessive fines applies to state and local governments. [Robert Barnes / Washington Post] The decision came in Timbs v. Indiana, the case of Tyson Timbs, who pleaded guilty to a drug sale involving $225 in 2012, and challenged Indiana’s seizure of his Land Rover, worth $42,000. Writing for seven of the justices, Justice Ruth Bader Ginsburg discussed the ugly history of states imposing excessive fines: “Following the Civil War, Southern States enacted Black Codes to subjugate newly freed slaves and maintain the prewar racial hierarchy. Among these laws’ provisions were draconian fines for violating broad proscriptions on “vagrancy” and other dubious offenses. … When newly freed slaves were unable to pay imposed fines, States often demanded involuntary labor instead.” [Timbs v. Indiana] See also Writing in November, Amy Howe noted that Timbs, who was represented by the libertarian Institute for Justice, “came to the Supreme Court with one of the most diverse collections of allies in recent memory,” including the ACLU and the U.S. Chamber of Commerce.

Eliminating cash bail delivers positive results in Philadelphia: Last February, Philadelphia District Attorney Larry Krasner announced that his office would stop requesting cash bail as a condition of release for people charged with certain misdemeanors and nonviolent felonies. The 25 listed charges made up 61 percent of all cases prosecuted by the DA’s office. A study published this week, by Aurelie Ouss and Megan Stevenson, examines the effects of Krasner’s office’s bail policies. [Samantha Melamed / Philadelphia Inquirer] They found a 23 percent increase in the number of people released on their own recognizance, or without paying cash bail, and a 21 percent decrease in the number of people held in jail for at least one night (though no impact on longer jail stays). There was no detectable effect on failure-to-appear rates, pretrial rearrest rates, or rearrests on serious charges. Stevenson distilled its findings on Twitter:

LA County will phase out use of of pepper spray in juvenile facilities: The Los Angeles County Board of Supervisors has approved the “phased elimination” of oleoresin capsicum, better known as pepper spray, by the end of the year. In a report issued this month, the county’s office of the Inspector General noted a recent spike in the use of pepper spray in juvenile facilities. According to the Los Angeles Times, the Inspector General’s office “found a pattern of inappropriate and avoidable uses of the spray, part of a broader culture of punishment in some of the facilities.” Investigators found that facility staff used pepper spray to subdue youth, in violation of the department’s use-of-force manual; “engaged in an over-reliance on OC” including “where there does not appear to be actual or potential threat of harm”; and failed to allow youth to decontaminate their eyes and skin. [Matt Stiles / Los Angeles Times] See also Our Oct. 4 newsletter looked at the harmful effects of OC spray, particularly when sprayed multiple times and when victims had no opportunity to decontaminate, and the trends in its use in jail and prison systems across the country.

Texas prisons say a death in custody on a 103-degree day was not from heat stroke: Last July, Robert Earl Robinson died in a Texas prison from “environmental hypothermia,” or fatal heat stroke. This was the verdict of an in-custody death report sent to the state attorney general office’s in December. Robinson died at the beginning of a statewide heat wave, on a day when the temperature in the area reached a high of 103 degrees. The prison system disputes the report’s findings, saying they were preliminary, and says Robinson was housed in an air conditioned unit. Months before his death, the state settled a years-long lawsuit over the lack of air conditioning in the Wallace Pack Unit prison. Since the settlement, the corrections department has reported heat-related minor illnesses, but no deaths from heat stroke. According to the Texas Tribune, “plaintiffs and the judge in the Pack lawsuit have noted that heat stroke deaths are ‘vastly underreported,’ with heat sometimes being overlooked when determining a cause of death.” [Jolie McCullough / Texas Tribune]

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