Several circumstances over the last few years have changed the way the Indiana Department of Correction now handles legal mail. In the past, when an attorney sent correspondence to an IDOC inmate the legal mail was delivered to the inmate unopened or was opened only in the inmate’s presence, due to the confidential nature of the correspondence.

However, the D.O.C. discovered inmates were receiving mail that was laced with fentanyl or other controlled substances. Eventually the laced letters were disguised as if they were legal mail to avoid heightened scrutiny by the D.O.C. Consequently, the D.O.C. implemented a verification process with attorneys. Upon receipt of a piece of legal mail, the D.O.C. contacted the attorney to verify the attorney had indeed sent the mail.

This process was cumbersome for all involved, but it worked for a while. Then the pandemic happened, and the D.O.C. suspended visits with inmates. This no doubt increased the volume of mail inmates received. Consequently, the D.O.C. has created a new policy for legal mail. When a piece of legal mail arrives at a facility, the mail is opened and copied by staff before it is given to the inmate. The original is then destroyed. If the legal mail contains color photos, they are reproduced in black-and-white only.

While it will be nice to no longer have to verify every piece of legal mail sent to a D.O.C. facility, this new procedure means that legal mail is no longer confidential. This is a huge change that has not been announced to the legal community and has significant ramifications. The D.O.C.’s other methods of communication with inmates (GTL messaging, video conferencing, telephone conferencing, etc.) are not confidential. Until this new change in policy, in-person conferences and legal correspondence were the only two forms of communication with incarcerated clients that were confidential. With in-person visits suspended and legal mail now being opened and copied outside the inmate’s presence, attorneys are effectively unable to have a confidential communication with an incarcerated client.