A lawsuit filed today by ACLU of Rhode Island cooperating attorneys alleges that the R.I. Department of Corrections (RIDOC) is interfering with the rights of ACI prisoners and their attorneys to share information confidentially and, in the process, violating their constitutional rights, state laws requiring the adoption of rules through a public process, and basic principles underlying the confidentiality that is inherent to the attorney-client privilege. The suit, filed in R.I. Superior Court, seeks both a declaration that the RIDOC practices are unlawful and a court order halting their continued use.
For some time, RIDOC has had in place formally adopted policies governing attorney mail and visits. Those policies, adopted after public notice and input, acknowledge that “privileged mail, whether it is incoming or outgoing, cannot be read by RIDOC staff,” and that incoming privileged mail can only be opened and inspected for contraband “in the presence of the inmate.” Privileged mail includes correspondence between ACI prisoners and attorneys, court officials, elected officials, and the ACLU.
However, today’s lawsuit, filed by ACLU cooperating attorneys Sonja Deyoe and Lynette Labinger, alleges that in the past year, RIDOC has informally adopted new practices in violation of those policies, which have allowed RIDOC staff to “repeatedly take[] custody of written communications between prisoners and their legal representatives and subject[] them to inspection and copying out of the presence of the prisoner and/or the legal representative.” The suit further alleges that the “new protocols and practices are not uniform, are not consistently applied by RIDOC correctional staff, and fail to accord prisoners and their legal representatives” the protections that their formally promulgated policies guarantee.
The suit cites various examples of these violations, including in the preparation for this lawsuit. Attorney Deyoe, for example, visited a client at the ACI to review the papers in this case, but staff at Maximum Security required her to first give the legal documents to them, where they were taken outside of her presence before being returned to her. The lawsuit also cites to an incident involving state Rep. David Morales, who mailed letters to prisoners at Maximum Security with a survey asking about their experiences with solitary confinement. Although it too was privileged mail, RIDOC staff intercepted all the letters the state legislator sent, inspected them outside the presence of the intended addressees, and withheld them for about two weeks before distributing them to the prisoners.
The lawsuit notes that attorneys “have an ethical and legal obligation to their prisoner-clients to maintain the confidentiality of written communications that they intend to present to or discuss with their clients in face-to-face visits,” and that RIDOC’s new, improperly adopted course of conduct “contravenes the ethical and legal obligations of legal counsel” and violates the constitutional rights of their prisoner-clients.
The suit also argues that RIDOC’s new practices violate the Administrative Procedures Act (APA), a state law requiring state agencies to adopt rules and regulations only in accordance with a public-involved rulemaking process. The complaint points out that almost 40 years ago, RIDOC entered into a settlement agreement acknowledging that any changes to visiting and mail rules were subject to public notice under the APA.
In a similar vein, the lawsuit challenges another recently adopted practice, also not adopted in accordance with the APA, requiring visitors to submit to periodic photographs that are maintained in a RIDOC database. Some visitors have expressed concerns to the ACLU about those photos might be used and shared. The suit seeks a court order declaring all these new practices null and void and barring their continuation.
ACLU attorney Deyoe said today: “We, as lawyers, have an obligation to maintain privileged communications with our clients. The fact that some bad actors may be trying to smuggle drugs into the prison does not excuse the actions of RIDOC which make it impossible for us to exercise those privileges. The attorney-client privilege is vital to providing a proper legal representation to any client. It is the bedrock on which our system is formed.”
