Newark, NJ – Reaffirming the First Amendment right of prison inmates to confidential legal communications, the U.S. Court of Appeals for the Third Circuit has struck down a New Jersey prison regulation directing the opening of inmates’ legal mail outside of their presence.

In its ruling, the court unanimously rejected the state’s claim that the regulation is needed to forestall an anthrax attack against New Jersey prisons. “[W]hile the health and safety of inmates and staff are legitimate penological interests, if there is no information suggesting a significant risk of anthrax attack, there is no reasonable connection between those interests and the policy of opening legal mail in the absence of the inmate addressee,” noted the court.

“This important ruling protects the right of inmates to communicate openly and confidentially with courts and counsel,” explained Shavar Jeffries, associate professor and supervisor of the Center for Social Justice at Seton Hall University School of Law, which represented one of the groups of inmates challenging the regulation. “The court correctly rejected the state’s flimsy rationale – not only is there an infinitesimal risk of anthrax contamination, but indiscriminately opening legal mail is an insensible way of addressing that risk.”

The court held that the state’s policy “interferes with protected communications, strips those protected communications of their confidentiality, and accordingly impinges upon an inmate’s right to freedom of speech.” Even if prison officials insist that they do not read the mail when they open it, the court explained, the opening of legal mail outside of an inmate’s presence “may inhibit the inmate’s ability to speak, protect, and complain openly, directly, and without reservation to the court.” The only way to assure inmates that the contents of their legal mail are not being intercepted by prison officials is to open the mail in their presence, the court concluded.

The court noted that the state had continued to adhere to its policy even thought it has been several years since the 2001 anthrax mailings took place.

Along with Professor Jeffries and Professor Jessica A. Yager, clinical fellow at the Center for Social Justice, Thomas Dyas, Richard Giordano, Risa David, and Kelly Day, all students in Professor Jeffries’s Civil Litigation Clinic, worked on this case.

Judge Walter K. Stapleton, who was appointed to the court in 1985 by President Ronald Reagan, authored the opinion for the unanimous three-judge panel. The case is Jones v. Brown, No. 03-3823; the court’s opinion simultaneously decides the consolidated case of Allah v. Codey, which concerns the same issue. The court’s opinion can be accessed at http://www.ca3.uscourts.gov/opinarch/033823p.pdf.



The only private law school in New Jersey, Seton Hall University School of Law was founded in 1951, and is located in the city of Newark. Seton Hall Law School offers both day and evening programs leading to the Juris Doctor (J.D.), Master of Laws (LL.M.) and Master of Science in Jurisprudence (M.S.J.) degrees. For more information on Seton Hall Law School, visit law.shu.edu.