U.N.I.O.N.
United for No Injustice, Oppression or Neglect

Mail Obstruction


 

April 2, 2002 
 

Thom McConnell 
Executive Director 
State of California – Board of Corrections 
600 Bercut Drive 
Sacramento, California 95814 

Re: Obstruction of mail 

Dear Mr. McConnell 

This letter is about the serious problem with the mail in both prisons and county jails.  I started writing to prisoner Jerry Wayne Morgan in 1997 who was a stranger to me, but a cellmate in county jail of a neighbor and he asked if I would write to him as he had no one at that time to do so. 

My first experience with Obstruction of Justice was in March of 1999, when the Court appointed Appellate Attorney in her Wende brief, couldn’t find any appealable issues.  In the letter she sent to Mr. Morgan, she stated that he had 30 days in which he could file a Supplemental Brief.  Being a former legal secretary I knew that was his only chance for his side of the story to be told having received a 25 to life sentence for a minor altercation.  A Request for Extension of Time was sent to inmate, and a copy was received back with Morgan’s original signature on it and submitted to the Third Appellate District.  On March 29, 1999 the court granted an extension of time and the Supplemental Brief needed to be submitted by April 28, 1999. 

Knowing of the Obstruction of Mail I had encountered with the Request for Time, I wrote letters to Warden Roy A. Castro, and CDC Director Cal Terhune about the problem, and spoke to one of his assistants, who told me on the phone that since I was not an Attorney they would not give Jerry the legal documents I submitted for his signature.  So I never did receive the originals back, and who knows where they are, but a copy was received and it did come back with an original signature, this was submitted to the Third Appellate on time and was accepted.  On July 16, 2001 the Third Appellate District ruled in favor of Mr. Morgan and reversed his sentence and set aside his plea.  The Attorney General asked for a rehearing, and on August 30, 2001 the Third Appellate wrote an even stronger Opinion on Rehearing, and both Opinions were published. 
Of course that is not the end of the story as Mr. Morgan is now in the Shasta County Jail while they try to put together another case against him, and they act like he never won at all.  The Attorney General asked the Supreme Court to review the case, they let it stand as written, but did allow that it be depublished.  (Depublished Opinion People v. Morgan, (2001) 91 Cal.App.4th 1324 [111 Cal.Rptr.2d 502].) 

Recently I received a letter from Mr. Morgan about his not receiving any mail from me, and I have been writing to him 2-3 times a week and did enclose some material of a legal nature, copies of codes off the Internet, and things for him to read.  His being in the “hole” he was not getting his mail.  Also another prisoner did not receive his mail from his mother for the same reason, it contained some legal material. 

So I have researched the Law on this issue, first is the Federal Law. 
 
 


18 United States Code Section 1702. Obstruction of correspondence 

Whoever takes any letter, postal card, or package out of any post office or any authorized depository for mail matter, or from any letter or mail carrier, or which has been in any post office or authorized depository, or in the custody of any letter or mail carrier, before it has been delivered to the person to whom it was directed, with design to obstruct the correspondence, or to pry into the business or secrets of another, or opens, secretes, embezzles, or destroys the same, shall be fined under this title or imprisoned not more than five years, or both.

This states that all mail in the custody of authorized person, before it is delivered, is guilty of obstruction if they pry into the business or secrets of another, opens or destroys correspondence.  In other words mail is sacred, and it not to be tampered with by any person who has custody of the letter until it has been delivered to the person it was directed. 

Now to California code, and the only authority granted is that prison authorities may open and inspect incoming mail and search for contraband.  This does not include legal papers, sent by family or friends, which Johnson v. Avery, 393 U.S. 483 (1969) specifically protects that non-attorneys can help prisoners with their legal work. 
 
 


   Penal Code §2601 (b) To correspond, confidentially, with any member of the State Bar or holder of public office, provided that the prison authorities may open and inspect incoming mail to search for contraband.
   (c) (1) To purchase, receive, and read any and all newspapers, periodicals, and books accepted for distribution by the United States Post Office.  Pursuant to this section, prison authorities may exclude any of the following matter:
   (A) Obscene publications or writings, and mail containing information concerning where, how, or from whom this matter may be obtained.
   (B) Any matter of a character tending to incite murder, arson, riot, violent racism, or any other form of violence. 
   (C) Any matter concerning gambling or a lottery. 
   (2) Nothing in this section shall be construed as limiting the right of prison authorities to do the following:
   (A) Open and inspect any and all packages received by an inmate.
   (B) Establish reasonable restrictions as to the number of newspapers, magazines, and books that the inmate may have in his or her cell or elsewhere in the prison at one time.

So now I went to the Code of Regulations to see what they had to say about mail, and found the following: 
 
 


Title 15, Article 6, §1063.  Correspondence. 

The facility administrator shall develop written policies and procedures for inmate correspondence which provide that:
(a) there is no limitation on the volume of mail that an inmate may send or receive;
(b) inmate mail may be read when there is a valid security reason and the facility manager approves;
(c) inmates may correspond, confidentially, with state and federal courts, any member of the State Bar or holder of public office, and the State Board of Corrections; however, jail authorities may open and inspect such mail only to search for contraband, cash, checks, or money orders and in the presence of the inmate;
(d) inmates may correspond, confidentially, with the facility manager or the facility administrator; and,
(e) those inmates who are without funds shall be permitted at least two postage paid letters each week to permit correspondence with family members and friends but without limitation on the number of postage paid letters to his or her attorney and to the courts.

No where in this Regulation does it say that an inmate cannot receive legal mail from non-Attorneys, what is says is that an inmate may correspond confidentially with a member of the State Bar, and not fear that his mail is being read by non-Attorneys called guards who are making legal decisions when they have no training in these matters.  They have no authority to obstruct the mail of inmates except for those items listed in Penal Code §2601. 

Also discovered that this matter had already been decided by the United States Supreme Court in the case of Procunier v. Martinez, 416 U.S. 396 (1974), a Northern California case.  “The court required that an inmate be notified of the rejection of correspondence and that the author of the correspondence be allowed to protest the decision and secure review by a prison official other than the original censor.”  Now I have never been notified of the rejection of correspondence, therefore my First Amendment rights have been violated in not allowing free speech in writing to an inmate.  Also stated in the opinion, was the fact that, “These regulations fairly invited prison officials and employees to apply their own personal prejudices and opinions as standards for prisoner mail censorship.”  This has been done by both prison guards and and employees of Shasta County Jail. 
 
 


A state court interpretation of §2600 (4) would not avoid or substantially modify the constitutional question presented here. That statute does not contain any provision purporting to regulate censorship of personal correspondence. It only preserves the right of inmates to receive "newspapers, periodicals, and books" and authorizes prison officials to exclude "obscene publications or writings, and mail containing information concerning [416 U.S. 396, 404] where, how, or from whom such matter may be obtained . . ." (emphasis added).  Procunier v. Martinez, 416 U.S. 396 (1974)

In the above opinion it quotes the case of Johnson v. Avery, 393 U.S. 483 (1969), many times and this case was the authority I used to prepare the Supplemental Brief for Mr. Morgan, which was granted by the Third Appellate when they approved the extension of time for the preparation of the Supplemental Brief.  The High Desert State Prison did everything they could to obstruct justice and the mail, and the Good Lord overruled them and the signed Supplemental Brief was completed on time and filed with the Third Appellate in spite of their efforts to obstruct. 
 
 


The interest of prisoners and their correspondents in uncensored communication by letter, grounded as it is in the First Amendment, is plainly a "liberty" interest within the meaning of the Fourteenth Amendment even though qualified of necessity by the circumstance of imprisonment. As such, it is protected from arbitrary governmental invasion.  Procunier v. Martinez, 416 U.S. 396 (1974)

Based on the above, I find that in practice that the State Prisons and County Jail are in violation of established law in the use of mail as punishment, and which is strictly forbidden by the Procunier case.  Employees are making legal decisions in not allowing legal material to be received by prisoners if it does not come from an Attorney, when the only law is that mail from an Attorney is not to be opened or read by personnel.  It has nothing to do with the content of the mail, or preventing inmates to receive legal mail from other sources. 

I would request that the practice of Prisons and Jails be brought into line with established law and case code, and not be used as punishment, and that they receive all mail in a timely manner and that it only be opened for inspection for contraband, and that prisoners have a First Amendment right to receive their mail without obstruction or censorship except for those things listed in the regulations.  That those writing to prisoners also have the First Amendment right to not have their mail obstructed or used as punishment, as receiving mail is the only thing that prisoners have to look forward to and keep them sane when they are on lockdown for such long periods of time. 

Thanks you for your attention to this matter. 

Sincerely yours, 
 

Janice D. Crumley 

Enclosures 

cc:  Sheriff Jim Pope 

E-Mail: 
 [email protected]
Various Interested Parties 
 

 Obstruction of Correspondence - Letter to Warden Calipatria
 

 Mail Obstruction Index
 

 U.N.I.O.N. Home


1
Hosted by www.Geocities.ws

1