Shredding of Mail by Wisconsin Prisons Worries Legal Advocates

Attorney Steve Hurley with documents of the type Wisconsin prisons are shredding. | Photo by Erik Gunn/Wisconsin Examiner

The Office of the Wisconsin State Public Defender and other attorneys are expressing concerns over attorney-client confidentiality and the timely and accurate delivery of legal mail for clients incarcerated in state prisons.

On Sept. 10, the Wisconsin Department of Corrections (DOC) adopted a new policy for external paperwork sent to prisons. The protocol calls for incarcerated residents to watch the copying of their legal mail and allows them to review the copies; then the original mail is shredded.

Mail covered under the policy includes letters from an attorney, law office, clerk or judge of any state or federal court, court staff or tribal court. It also covers correspondence with federal and state elected or appointed officials including the governor, Wisconsin legislators, the secretary of the DOC and others.

The process of opening and photocopying the mail, providing the copy to the incarcerated person and shredding the original mail is documented with the facility’s camera system, the DOC policy states.

The policy’s general guidelines allow staff to inspect legal documents “to the extent necessary to determine if the documents contain contraband or if the purpose is misrepresented.” If staff have reason to believe a letter is not a legal document “and the safety and security of the institution is implicated,” the policy allows them to read legal documents.

The DOC’s protocol has garnered criticism from the Wisconsin public defender’s office. Public defenders’ primary concerns are timely delivery of information to clients, the accuracy of the copying and protecting attorney-client confidentiality.

“Unfortunately, with DOC’s new mail policy we have experienced significant delays with mail delivery, compromised confidentiality, and in some cases legal documents have been lost,” said Deputy State Public Defender Katie York. “This has impacted our ability to develop trusting attorney/client relationships and has caused unnecessary delays for our clients and others impacted by the legal system. However, in our continuous efforts to provide the highest quality defense for our clients, we will keep doing everything we can to maintain communication with our clients.”

The Wisconsin American Civil Liberties Union (ACLU) has also raised concerns about how the DOC’s handling of legal mail is affecting incarcerated people and the legal process.

“Alarmingly, the DOC continues to introduce new restrictions that have made it increasingly difficult for people in DOC custody to receive legal mail and books,” Emma Shakeshaft, senior attorney for the ACLU of Wisconsin said in an October statement, “and we are very concerned about how these policy changes are negatively impacting those in custody. Legal mail is essential to incarcerated individuals’ ability to access the courts and to communicate confidentially with their legal counsel.”

Beth Hardtke, director of communications for the DOC, said the department was not aware of any recent concerns from the Office of the State Public Defender about the DOC’s legal mail policy, and that the DOC would follow up with them to learn more.

Hardtke said the public defenders’ office had input into the development of the policy, and that the policy was revised based on the office’s feedback before it went into effect in September 2024. The DOC is not aware of any significant delays regarding legal mail, she said.

She said the postal service delivers legal mail directly to facilities, “where it is promptly processed in front of the individual to whom the mail is addressed.”

“The policy also details a number of steps that are taken to protect the confidentiality of the process including having the process take place in front of cameras placed so that writing is illegible, special copiers just for this purpose and ensuring that the person in our care is part of the process,” Hardtke said.

Drug concerns

DOC’s goal with the legal mail policy was to prevent intoxicating substances from entering facilities through legal mail, Hardtke said.

In November2021, the DOC announced that it would start partnering with a company to photocopy the personal mail of all incarcerated adults in an attempt to keep drug-laden mail out of prisons. The department began giving residents photocopies of their mail instead of original letters.

In a 2021 press release about the new policy, the DOC said that despite its previous efforts, in September 2021 alone there were 182 drug incidents within Wisconsin prisons, with 16 people needing emergency medical treatment.

The department said it had seen an increase of drug incidents among incarcerated people. This included the use of synthetic cannabinoids, which can cause violent behavior or a need for emergency medical treatment, the department said. The DOC said paper and envelopes could be sprayed with or soaked in the drugs and sent into prisons through the mail.

In August 2022, the agency said it had seen a decrease in the total number of drug incidents at adult facilities between November 2021 and February 2022. The agency attributed the decrease to its new policy of photocopying mail. The DOC also said it saw a decrease in overdoses requiring transport to a medical facility.

After receiving inquiries about the department’s controversial ban on used books, the department sent data to reporters in late September. DOC staff reviewed contraband incident reports that facility staff had flagged as drug-related between 2019 and Sept. 18, 2024.

The department said some drug-related incidents recorded through a medical record or conduct report may not be reflected in their numbers. The DOC also said not all incident reports flagged as drug related turn out to actually be drug-related.

The DOC said legal mail tested positive in five incidents in 2021, and in 2022, there were 10 instances of material “purporting to be legal mail” that tested positive for drugs.

Six incidents in 2023 involved legal mail, the department said. The DOC said legal mail tested positive for drugs in at least seven incidents in 2024, as of Sept. 18.

When it comes to mail or donations that tested positive for drugs, the department said it is “often unable to say” whether they are from a legitimate entity, or from someone impersonating another person or organization.

In an email to the nonprofit Wisconsin Books to Prisoners in August, then-Administrator of the Division of Adult Institutions Sarah Cooper spoke about impersonation. She said “bad actors” impersonated agencies to send drugs into prisons.

“To provide some examples, there have been many instances of drugs coming in via mail (and publications/books) which appear to be sent from the Child Support Agency, the IRS, the State Public Defender’s Office, the Department of Justice and individual attorneys,” Cooper said.

In the August email, Cooper said the DOC had had to “implement a whole new process” for handling mail from the entities she mentioned.

The number of drug incidents involving legal mail has fallen to zero, according to a review of contraband incident reports that facility staff flagged as drug-related, Hardtke said. She said between Sept. 19 and Feb. 28, there were no incidents documented in those reports of legal mail testing positive for intoxicants.

She said these records may not include all incidents, since some incidents may be documented in conduct reports, other types of incident reports or medical records.

“The most important thing to know about the legal mail policy is that it works,” Hardtke said.

But York said she also knows there have been instances of false positive tests.

“I know it has happened because I’ve talked to both staff and private bar attorneys where the institution has sent back materials because they tested positive,” York said. Transcripts that were not drug-laced have been returned after positive tests, she said. She could not provide a number of such incidents and said she also believed some documents that were confiscated after positive tests were not sent back.

Hardtke said the DOC uses the IONSCAN 600 testing technology to test books, packages and other materials coming into DOC facilities. She said the technology was chosen in consultation with the Wisconsin Department of Justice and the Wisconsin State Crime Laboratories “in part because its results have held up to court scrutiny.”

Some family members of incarcerated people in Canada expressed concern that ion scanners yielded false positive test results, and some experts have raised questions about ion scanners’ ability to distinguish between banned drugs and everyday chemicals.

Steve Hurley, a defense attorney at Hurley Burish, S.C. in Madison, told the Examiner about a case a few years ago in which his firm represented a lawyer who was accused of sending drugs to a client.

He said their investigation used the test used by the DOC and got a false positive, and that the department relied on a presumptive test that was not intended to give a conclusive result.

This test was not the IONSCAN 600. The DOC did not say whether it currently uses other tests as well as the IONSCAN 600.

“They didn’t charge him criminally because I think they knew that they had misused the [drug] test,” Hurley said. “So when I called them on it, eventually, they just dropped the whole thing and reinstated his ability to communicate with his client.”

Attorneys suggest creating a verification method for legal mail

Shakeshaft said attorneys attempting to communicate with their clients are not the source of drugs in prison. She thinks there should be an alternative method of getting legal mail to clients without having all the documents copied and the originals shredded.

“To the extent that third parties are attempting to disguise contraband as legal mail, there’s a lot of less restrictive ways to address that, to ensure that legal mail is coming from licensed attorneys… [Methods that] are not nearly as much of a threat to attorney-client confidential communications,” she said.

York said her office asked about creating a process that would certify the mail was from the assigned attorney and not from an impersonator.

“We asked if there was some sort of system, if it was like, some sort of changing numbering system, or something that we could put on the envelopes that would ensure that they knew that it was coming from our office,” she said.

York said her office also made an offer to reach out to a facility beforehand when they’re sending a client their file. The public defender’s office would let them know how many boxes they would be sending with a client file, so the facility would know in advance that the documents were coming from their office. She said the offer was not accepted.

York said her office used to receive calls seeking to verify that her office had sent mail to a resident. She didn’t think this was consistent across all facilities.

“They would call our office and ask, ‘Did you send mail to this person?’ when they got letters,” said York. “I used to get those calls when I was the appellate division director. So that was another way that they used to try to kind of validate the fact that it came from an attorney.”

Confidentiality concerns

Hurley said that as a defense lawyer, it’s his job to not trust the government when it comes to his clients. He believes his clients should receive their legal mail unopened.

“The minute you open a lawyer’s mail, somebody is going to look at it,” Hurley said. “I don’t care what they say about their policies, somebody’s going to look at it. And you can’t do that.”

If others know what someone is convicted of, it could lead to a more difficult time in prison, Hurley said. He also said information in an incarcerated person’s legal mail isn’t necessarily about their criminal record.

“If you were getting divorced, do you want your neighbor to know what you’re arguing with your spouse over about what the extent of your property is?” Hurley said. “No, and you don’t want a guard to know that either.”

Nicole Masnica, an attorney with Gimbel, Reilly, Guerin & Brown LLP in Milwaukee, said prison staff reviewing privileged communications and legal mail from counsel creates a concern about the safety and security of incarcerated people in the DOC.

Legal correspondence and materials “may very well contain” information detailing a person’s cooperation with authorities against other incarcerated people “and even sometimes staff employed by the Department of Corrections,” she said in a statement emailed to the Examiner.

“I have represented individuals who have expressed concerns about confidential information from legal correspondence getting into the wrong hands at the prisons, and policies like those currently in place with the DOC that permit the reviewing of confidential information by DOC staff only amplifies those risks to individuals assisting law enforcement investigations,” Masnica said.

Shakeshaft said there are opportunities during the copying and shredding of legal mail for someone to view the documents. She also raised the question of how the process would be filmed without the camera viewing information in the legal mail.

“There’s a number of different parts of the policy where confidentiality is threatened overall,” she said.

Attorney Lonnie Story sent the Examiner a conduct report from when an incarcerated man, Justin Welch, was written up by a DOC staff member in February 2024. The report indicates a staff member read a letter from Welch that was “addressed to Story Law Firm Attorney Lonnie Story.”

According to the report, in the letter, Welch referenced a recent assault he was involved in with another person. Welch said that he was going to be placed by this person and “will have no choice but to fight him again. This is what the WCI does this time I will hurt him.” The staff member wrote the conduct report, saying Welch was making direct physical threats to the other person.

Story said he contacted Department of Justice attorneys, who called the warden. Story sent the Examiner a letter from the warden on which Welch was copied, dated March 25, 2024. The letter said the warden had initiated a review of the incident, and the hearing officer’s decision and the punishment of 30 days in restrictive housing were reversed.

Welch sent the Examiner a complaint he made to the DOC about a prison denying three of his emails, preventing them from reaching the intended recipients. (Electronic correspondence is not treated as legal mail under DOC policy.)

Two emails were intended for a reporter, while the third was sent to Story. According to Welch’s complaint, a staff member told him that emails were not for legal communication and an attorney call should be set up instead. Welch’s complaint was successful, leading to a ruling that his emails should not have been denied.

Devin Skrzypchak, a resident of Oshkosh Correctional Facility, said he has concerns that the prison staff have had access to his legal mail for up to three days while the prison was setting up a time for the copying and shredding when he could be present. He has concerns that his legal mail could have been read during that wait time.

Not all legal mail involves physical documents, according to Masnica. If there are large files, it’s cheaper to send a hard drive or USB. In one case, Masnica said she sent documents related to potential jurors and received an email from the prison.

The person from the prison who contacted Masnica didn’t necessarily think the documents were related to litigation, she said. To her, it was clear that the prison had reviewed the mail in detail.

“They had made remarks that it was not just the jurors in the case, but all jurors potentially that were going to be called that week, or that month,” Masnica said.

Masnica said she complained and was sent a policy. DOC policy says that when a facility receives new digitally formatted legal material, it shall assign staff to review the content with the incarcerated person present to make sure it is “legal in nature.”

The policy states that “if any file is found to contain contraband, the data storage device may be subject to disposal” in accordance with the DOC’s contraband policy after consultation with the Office of Legal Counsel.

Timeliness concerns

“We’ve heard of attorneys having to push back court deadlines and delays because they can’t continue that communication [with clients],” said Shakeshaft. “They can’t get the legal documents to clients in time, or clients aren’t getting the correct legal documents.”

The Examiner asked York about specific situations that make it critical for the incarcerated person to have the legal mail for the case to proceed in court.

“There is not a super clean answer to this, but there are some situations, for example, we need clients to sign documents,” said York. “One example of that is notice of intent to appeal in a termination of parental rights case; we have to have a wet signature from the client on the notice before we file it, and it’s a pretty tight turnaround. It’s 30 days.”

York said there’s also a problem when clients don’t accept their mail due to the policy of copying and shredding. This leaves the attorney with the option of meeting in person to get a signature on a form, which can be time consuming.

Lost in the mail

Masnica recalled her firm having to send mail multiple times because a client didn’t receive it.

“If we’re sending something to a client on the street who is living in their home, we never really have issues,” Masnica said.

Story said he’s had an issue with not receiving mail that a client said they sent to him.

“Most disturbing is when my clients have part of their case record from their legal materials disappear,” Story said. “Their file doesn’t follow them to the next institution, or part of it is mailed to me and not the whole of it.”

Dorin Ferguson, who is incarcerated at the Wisconsin Secure Program Facility in Boscobel, said he has sent mail to Story that didn’t arrive, including mail that was returned to Ferguson.

DOC policy allows the resident to check the copied legal documents and request two rescans. York said sending large files poses a risk of miscopying.

Shredding of legal mail by Wisconsin prisons worries advocates was originally published by the Wisconsin Examiner.