This is а jail inmate mail case. Victor James Harrod, Jr. argues that the mail policy which allows jail officials to open legal mail outside his presence if it is not markеd privileged, or with similar markings, violates his first, sixth and fourteenth amendment rights. The district court 1 held that the mail policy was not unconstitutional, and since the letters involved in this dispute werе not properly marked there was no violation of Harrod’s rights. We affirm.
*235 Harrod was incarcerated in the Lancaster County Intake and Detention Facility as a рre-trial detainee from September, 1983 until March, 1984. While he was in jail he received numerous pieces of mail. The mail policy states that general mail will be opened outside the inmate’s presence and searched for contraband, but will not be read. Letters from designated sources (legal mail), such as attorneys, courts and government officials, which are marked confidential, attorney/client privilege, or with some similar marking, are opened only in the presence of the inmate, but again are not read by jail officials. Harrod appears to have received eight pieces of mail from the clerk of the district court, one frоm a district judge, four from a magistrate, one from the United States Department of Justice, three from the Lancaster Corrections Department, one from the Bureau of Community Correctional Services, and five from a law firm. Each letter was clearly marked with a return address from a legal source, but none was stamped confidential. (Three were marked “priority mail.”) Communications from federal court officials were mailed in franked envelopes which under the respective return addresses bore in small print the legend “Official Business — Penalty for Private Use $300.” In conformity with the mail policy, jail officials opened the letters outside Harrod’s presencе to inspect for contraband. Har-rod argues that opening these letters outside his presence violated his constitutional rights.
He argues that since the letters wеre clearly from legal sources the requirement that the letters be specially marked "confidential” or with similar markings is an unnecessary burden on his constitutional rights. He alleges that it interferes with the sender’s intended communication, in violation of his first amendment rights, and that it is an unnecessary burden on his sixth and fourteenth amendment rights to effective counsel and access to the courts. Harrod does not dispute that the jailers have the right to open his letters to look for contraband. He argues only that mail from a legal source is almost always confidential, and therefore requiring special markings is an unnecessary burden on his constitutional rights.
The purpose of opening mail in the inmate’s presence is to protect his attorney/client privilege and to protect the confidentiality of other legal matters. The inmate is assured that his mail has not been read when the letters are opened in his presence. Jailers are not required to take the extra time and effort to open mail in the inmate’s presence when the mail is not confidential.
The leading case in the law of prisoner mail is
Wolff v. McDonnell,
In
Jensen v. Klecker,
The requirement that letters be marked confidential is a lighter burden on Harrod’s constitutional rights than is the requirement that a writer send a cover letter identifying himself and his client. The defendants’ mail policy requirement serves a valid purpose since not all letters from legal sources are confidential, and, as the testimony showed, letters marked confidential were unlikely to contain contraband such as checks from attorneys. We also note that under the mail policy it is the writer who determines whether the legal mail is confidential or privileged, not the jail authorities. The burden placed on Harrod’s constitutional rights is well within acсepted bounds and indeed the mail policy is fully consistent with the judicial observation that “... a rule could be promulgated that any correspondence from legаl counsel which is marked ‘Privileged’ will be opened and inspected for contraband, but only in the presence of the inmate.”
Moore v. Cic-cone,
Finally, we hold that the word “priority” stamped on the letters was insufficient to give the jail officials notice that the letter was confidential. It is commonly understood that ■ the word “priority” stamped on mail means the letter is to go by the fastest mail route. The letters did not comply with the mail policy and therefore the jail officials did not violate Harrod’s rights by opening the letters outside his presence to search for contraband. 1
Affirmed.
Notes
. The Hоnorable Warren K. Urbom, Chief Judge, United States District Court, District of Nebraska.
. While we have not seen fit on the record now before us to strike down on constitutional grounds the present mail policy of the defendants, we observe that administration of the policy produces errors, and that for practical administrative reasons аs well as future constitutional safeguards the defendants may wish to consider whether, absent unusual circumstances, incoming mail marked as “Official Business" from a federal or staté court or envelopes bearing the return address of a court clerk or judicial officer should only be opened for contraband inspection, assuming other means to inspect the contents of sealed envelopes is unavailable,
see Moore v. Ciccone,