ACLU-KY, Department of Public Advocacy Settle with Commonwealth to Protect Confidental Legal Mail
The ACLU of Kentucky and the Kentucky Department of Public Advocacy recently settled a lawsuit regarding the way Kentucky Department of Corrections (DOC) handles incarcerated persons’ legal mail.
Under the settlement, DOC has agreed to use a new system for processing privileged legal mail. It requires lawyers to register with DOC and receive a unique identification number. When attorneys send privileged mail, they will obtain a secondary code for each piece of mail. If the codes are used properly, DOC will not copy the mail, and will deliver the original legal mail to the recipient. This was first rolled out as a pilot project on August 1. Assuming there are no issues with the pilot project, the system will be in place permanently as of January 1. Regardless, DOC will stop copying mail as of January 1. The agreement also includes stricter requirements for how DOC copies mail in the event lawyers choose not to use the new system.
For nearly 50 years, the Kentucky Department of Corrections’ policy was to open incoming privileged legal mail in the presence of the recipient, inspect it for contraband only, and deliver it to the recipient. Without formally changing this policy, several facilities in 2020 began confiscating all incoming legal mail, photocopying it, and then delivering only the photocopy to the recipient. Often photocopies were not complete, and the original mail was often not secured, meaning other people could read this confidential mail. We filed a lawsuit on behalf of organizational and individual clients alleging this practice violated the First and Fourteenth Amendments of the United States Constitution, as well as several Kentucky statutes.
“We are pleased with the outcome of the settlement. Our clients should be able to communicate with legal counsel without barriers, as is their constitutional right,” said Corey Shapiro, legal director for the ACLU of Kentucky. “We have confidence the new program will be successful in Kentucky.”
“There are enough existing barriers in Kentucky’s criminal legal system for attorneys and their clients,” said Rachael O'Hearen, president of the Kentucky Association for Criminal Defense Lawyers. “This settlement will help criminal defense attorneys communicate with their clients as effectively as possible.”
“This is a meaningful moment for our clients,” said Damon Preston, head of the Department of Public Advocacy. “DOC’s informal change to policies surrounding legal mail was inappropriate, and we are glad to see our clients’ unfettered access to privileged legal communications restored.”
You can view the settlement in the PDF at the bottom of this page or here.