Inmates prevail in mail-opening suit

A federal judge ruled that legal and court mail must be opened in front of the inmate it is addressed to.

By Nancy Petersen
Inquirer Staff Writer

A group of jailhouse lawyers who argued that the state's mail policy violated their constitutional rights have won their case.

In a decision handed down yesterday in U.S. District Court in Philadelphia, Judge Timothy J. Savage ruled that the policy infringes upon an inmate's First Amendment right to be present when their legal and court mail is opened.

He ordered the staff of the state Department of Corrections to stop opening such mail outside the presence of the inmate.

"The Department of Corrections has not demonstrated a sufficient factual basis for concluding that legal and court mail opened in the presence of an inmate presents a risk substantial enough to warrant circumscribing inmates' First Amendment rights," said Savage in his opinion.

The three plaintiffs in this case, Derrick Dale Fontroy, Theodore B. Savage (no relation to the judge) and Aaron Christopher Wheeler, were all inmates at Graterford state prison when the case was filed in 2002. They could not be reached last night.

"This decision is a long-awaited victory for a group of individuals who have historically not been victorious in holding the government to the constitutional line," said attorney Teri B. Himebaugh of Schwenksville, who represented the plaintiffs from May 2004 to March 2005.

John Snellenberger, who argued the state's case, said an appeal to the U.S. Court of Appeals for Third Circuit is likely. He noted that two similar cases were won by the state, and are now on appeal to the Third Circuit.
Prior to October 2002, all legal mail was opened in front of the inmate.

But following the notorious escape of Norman Johnson in 1999, the state Department of Corrections (DOC) changed that policy, assuming that the tools Johnson used to aid his escape came through the mail. Savage noted the state never proved that to be the case.

Himebaugh said that at the urging of attorneys, the department established a control number that lawyers could use when corresponding with their clients. Mail that came with that control number was opened in their presence, but all other mail was opened in the mailroom, checked for contraband, resealed, and then delivered to the inmate, she said.

This included mail from lawyers that didn't have the control number, mail from courts, and regular mail. The system offered no protection for confidentiality, she said.

Throughout much of the case's five-year history, the plaintiffs represented themselves except for brief periods when they were represented by court-appointed attorneys, including Himebaugh.
But that time was well-spent, according to Savage.

"Without the pro bono contributions of attorneys like them, prisoners with legitimate issues would not have the opportunity to have their cases fully developed and argued," said Savage in his opinion. "We owe our gratitude to them."