You can go ahead and read the dispute between Judge Silverman (who writes the majority opinion) and Judge Bybee (who dissents) about whether it's a violation of the Sixth Amendment right to counsel for a prison guard to open and read a letter containing privileged communications between a prisoner and his attorney. Judge Silverman says "Yes." Judge Bybee disagrees.
Both sides have their points. Which is in part why the opinion and dissent top out at 34 single-spaced pages.
My own reaction to the dispute is exactly the opposite of Judge Bybee's. He ends his dissent by saying:
"The majority is correct that prisons are a tough place. Maj. Op. at 4. And because of the majority’s decision today, they are about to get a little tougher. Prison officials are 'responsible for maintaining internal order and discipline,' as well as 'securing their institutions against unauthorized access or escape.' Martinez, 416 U.S. at 404. To protect individuals in and outside the prison, prison officials must be allowed to read legal letters to the extent necessary to detect illegal conduct. By preventing reading in this limited sense, the majority has hamstrung prison officials’ ability to do their job."
With respect: Poppycock.
Everyone concedes that prison guards are allowed to "scan" letters for contraband or other illegal plans and the like. The dispute's simply about whether they're allowed to "fully" read the letters. The only reason this case got to court was because the guard here was so pissed off by the prisoner's claim that his legal mail was private that the guard essentially read the letter in detail in front of the guy.
The stark reality is that -- contrary to Judge Bybee's excited claim in dissent -- the Ninth Circuit's opinion in fact means absolutely nothing. Absolutely. Nothing. Yeah, doctrinally, there's a distinction between a guard "scanning" mail and "reading" it. I get it. The Ninth Circuit says a guard's allowed do the former but not the latter. I get it. And, yes, I totally know the difference between "scanning" a letter and "reading" it. Just like I daily know the difference between "scanning" an opinion and "reading" one. They're distinct.
But we're in a real world, folks. And in the real world, guards who are allowed to "scan" a letter can -- and hold on if this shocks you -- "read" it whenever they feel like it. And there's absolutely, totally nothing that a federal appellate court can do about it. The difference is perhaps meaningful on a doctrinal level, but in terms of practical enforcement, the difference is zero. Once you let the guard open the letter and take a look at it, the game's over. Whether it's a "scan" or a "read" is, for all practical purposes, entirely up to the guard. As it's not like the Ninth Circuit, or anyone else, is looking over the guy's shoulder. True, if the guard admits that he fully read the letter, instead of scanning it, he's in trouble. I'm sure those concessions are going to happen all the time. Not. Absent a confession, it's a distinction without a practical difference. At all.
The majority opinion doesn't "make prisons harder" or "hamstring" guards in any material way. At all. It just tells them what they need to say. And/or pretend to do. That's it. It's a kabuki show. Nothing more.
Which doesn't mean the majority opinion is valueless. We care about the Sixth Amendment. We want to get it right. We want to make the appropriate legal rules.
But let's not pretend we're doing more than we are.
On either side.
The real world impact of this decision is zero. Guards will scan letters when they feel like it. And will read letters when they feel like it.
And there's not a thing this opinion can do about it.
