A test of new technology for scanning incoming prison mail identified drugs in fake legal documents, confirming suspicions that confidential communications between inmates and their attorneys or the court system can be exploited to smuggle contraband.

The timely discovery at Halawa Correctional Facility in February reflected the delicate balance the correctional system faces in trying to prevent drug use among inmates without violating their rights.

The screening equipment detected paper that had been soaked in “illegal substances,” according to procurement records. The state Department of Corrections and Rehabilitation did not identify the type of drug involved or say whether anyone was arrested or charged for sending or receiving the material.

Halawa staffers have reported cases in which inmates eat paper or inhale smoke from burning paper treated with a dangerous synthetic drug known as “spice” to get high. Two inmate deaths at Halawa in 2021 were blamed on toxic reactions to spice.

Prisons routinely search or screen incoming mail, but confidential legal mail has special protections to safeguard inmates’ constitutional right to access the courts.

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The 9th U.S. Circuit Court of Appeals went so far as to rule in 2014 that prisoners have a right to be present to when corrections officers open their legal mail to ensure it is not being read.

According to state procurement documents, Hawaii corrections officials allowed vendor RaySecur to demonstrate its MailSecur terahertz or “T-ray” imaging technology” at Halawa during the last three days in February. The machines scan for contraband without opening envelopes or packages.

During that demonstration, the system detected two instances in which paper marked as legal mail had been saturated with illegal substances, according to state records.

The state later agreed to purchase nine of the MailSecur machines for nearly $970,000. It plans to deploy them at eight in-state correctional facilities, including Halawa, this fall, according to a statement from the Department of Corrections and Rehabilitation. The ninth machine will be used at the DCR headquarters mailroom in downtown Honolulu.

Hawaii holds about 1,000 prisoners at Saguaro Correctional Center, a private prison in Arizona. Its operator CoreCivic said MailSecur machines are already used to screen mail there.

The official confirmation that legal mail is being used to smuggle drugs comes as no surprise to some Honolulu lawyers, including Myles Breiner.

Breiner said that during the height of the pandemic someone attempted to smuggle paper soaked with spice into Halawa, the Hawaii Community Correctional Center on the Big Island and the Oahu Community Correctional Center in items labeled as legal mail from his office.

Two of the envelopes had handwritten return addresses indicating they were from Breiner’s office, and another envelope featured a “cut-and-paste” of printed lettering that used Breiner’s office as the return address. That one was “clearly a hack job,” and was intercepted by staff at HCCC, he said.

Breiner said the DCR declined to provide him with the laboratory analysis of the chemicals, or identify which inmates were supposed to receive the packages, which were sent during the height of the coronavirus pandemic. Breiner said there was an arrest and a conviction in the case, but declined to say who was convicted.

“I haven’t had any problem since then brought to my attention,” he said.

Hawaii News Now reported on another unsuccessful smuggling attempt via mail last summer in which the return address was listed as a Honolulu lawyer.

Wookie Kim, legal director for the American Civil Liberties Union of Hawaii, said the state correctional system has the task of balancing security concerns with the need to ensure prisoners can continue to use legal mail to communicate with their lawyers and the courts.

“The right to legal mail is part and parcel of the constitutional right to have access to the courts,” he said. “So there’s a strong presumption under case law that legal mail should not be tampered with unless there is a clear, documented indication that it’s being abused or it’s being used for contraband.”

Kim said he would be quite concerned if the state began opening and flipping through all legal mail.

“Under the law, legal mail is treated differently, that’s just the reality,” he said. “It’s not that legal mail can never be searched, but there have to be articulable reasons why a given piece of mail is being searched.”

But if the new machines can scan mail without allowing staff to open each item and review the written text, that is less troublesome, he said.

He said it is critical that the department be transparent about exactly how it will handle legal mail once it has the new technology because people need to have trust in the system. “If people don’t have trust that mail won’t be read by prison staff, then they’re not going to be able to exercise their rights,” he said.

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This story was originally published by Honolulu Civil Beat and distributed through a partnership with The Associated Press.