Washington v. Meachum

• Decision Date: 06 August 1996
• Docket Number: No. 15281,15281
• Citation: 680 A.2d 262,238 Conn. 692
• Court: Connecticut Supreme Court
• Parties: Kenneth WASHINGTON et al. v. Larry R. MEACHUM, Commissioner of Correction.

Page 262

680 A.2d 262

238 Conn. 692

Kenneth WASHINGTON et al. v. Larry R. MEACHUM, Commissioner of Correction.

No. 15281.

Supreme Court of Connecticut.

Argued March 26, 1996.

Decided Aug. 6, 1996.

Philip D. Tegeler and Carl Riehl, New York City, pro hac vice, with whom were Brett Dignam, New Haven, and, on the brief, Martha Stone, Hartford, and J.L. Pottenger, Jr., New Haven, for appellants-appellees (plaintiffs).

Stephen J. O'Neill, Assistant Attorney General, with whom were Henri Alexandre and Steven R. Strom, Assistant Attorneys General, and, on the brief, Richard Blumenthal, Attorney General, and Jane R. Rosenberg, Assistant Attorney General, for appellee-appellant (defendant).

Norman B. Teague and Syrie Davis Fried, Meriden, filed a brief for Connecticut Criminal Defense Lawyers' Association et al. as amici curiae.

CALLAHAN, BORDEN, BERDON, NORCOTT and PALMER, JJ.

CALLAHAN, Associate Justice.

This appeal arises from a class action lawsuit filed by the plaintiffs, ¹ inmates of Connecticut correctional institutions, against the defendant, Larry R. Meachum, the commissioner of the department of correction (department), ² in his individual and official capacities, challenging certain department regulations governing inmate use of the telephone and mail systems within Connecticut correctional facilities. The plaintiffs appeal, claiming that the trial court improperly concluded that: (1) the department regulations permitting the monitoring and recording of nonprivileged inmate telephone calls (a) do not violate either the "eavesdropping statutes"; General Statutes §§ 53a-187 through 53a-189; or the "wiretapping statutes"; General Statutes §§ 54-41a through 54-41t; (b) do not violate the "HIV confidentiality statutes"; General Statutes §§ 19a-581 through 19a-592; and (c) do not violate article first, § 7, of the state constitution; and (2) the department regulations permitting the review of nonprivileged outgoing inmate mail do not violate the first and fourteenth amendments to the federal constitution. The defendant cross appeals, claiming that the trial court improperly ordered specific modifications to department practices regarding inmate telephone calls to attorneys.

On the appeal, we reject the plaintiffs' claims. On the cross appeal, we agree with the defendant. We therefore reverse the judgment in part.

The facts are undisputed. In the early 1990s, the defendant found that the "collect call only" telephones ³ in department facilities were periodically being used to further a variety of illegal activity including inmate escapes, drug trafficking, gang activity and assaults. In 1993, in order to detect and deter some of these activities, the defendant adopted the regulations that are now codified at §§ 18-81-28 through 18-81-51 of the Regulations of Connecticut State Agencies. ⁴ The regulations pertaining to telephone use provide that nonprivileged inmate telephone calls from collect call only telephones may be listened to and recorded with the authorization of the unit administrator ⁵ or higher authority when there is reason to believe that the surveillance is "reasonably related to the maintenance of the security, good order or discipline of the facility or the prevention of criminal activity either within the facility or without," ⁶ and as long as the following methods of providing notice to the inmates, and to those parties whom the inmates call, are employed: (1) signs written in both English and Spanish must be posted at each telephone location notifying the inmates of the monitoring and recording of calls; (2) each inmate must read and sign a form before he or she uses the collect call only telephones that discloses that his or her conversations may be monitored; and (3) an automatic tone that can be heard at fifteen second intervals shall be used when an inmate's call is being recorded. Regs., Conn.State Agencies § 18-81-44. The regulation pertaining to outgoing mail provides that all outgoing "general correspondence" ⁷ may be read on a targeted or random basis "if the Commissioner [of Correction] or the Unit Administrator has reason to believe that such reading is generally necessary to further the substantial interests of security, order or rehabilitation." Regs., Conn.State Agencies § 18-81-31(a). These provisions are modeled after similar regulations in effect in at least thirty-one other states as well as the District of Columbia, and also in federal prisons.

The trial court also found the following facts pertaining to telephone monitoring. ⁸ "As of April 27, 1994, the [department] had trained and authorized ninety persons to listen to monitored telephone calls. Eighty-nine of these were correctional personnel and one was a state trooper. In practice, however, monitoring is primarily done by only a few people at each facility. At [the Connecticut Correctional Institution, Somers (CCIS) ], for example, the bulk of the listening is done by William Grady, the CCIS Intelligence Coordinator. Mr. Grady, who testified at some length, impressed me as a decent and honest person who took his job seriously and had no interest in listening to purely personal [tele]phone calls. He estimated that he devotes four or five hours a day to listening, primarily to target recorded listening. In addition, however, he does some random live listening every day. In his experience, the vast majority of calls that inmates make are normal calls. Depending on the luck of the draw, he can happen on a call that may appropriately be listened to--i.e., a call that affects prison order or security or involves criminal activity--on his first attempt or he can go for days without hitting one. He estimates that in the average month he comes across ten to twenty calls that are appropriate to listen to. Of these latter calls, the vast majority yield information that may appropriately be turned over to ... correctional or law enforcement authorities, but a few do not. Target monitoring yields dramatically better results than random monitoring.... All persons authorized to listen to inmate telephone calls have been trained in the governing standards as required by § 18-81-45 [of the Regulations of Connecticut State Agencies]. They are emphatically instructed that it is inappropriate to listen to purely personal telephone calls. Mr. Grady takes this responsibility seriously. The [department] personnel who testified in this case exhibited a great deal of professionalism. In addition, there is no evidence either that any purely personal conversation has been listened to after being identified as such or that any purely personal information overheard has been inappropriately disclosed."

The trial court also found the following facts regarding the effect of the telephone regulations on institutional security. "The Connecticut correctional officials who testified were unanimously of the opinion that the monitoring done pursuant to the [r]egulation[s]--and especially the telephone monitoring--had made a unique contribution to institutional security. In their opinion, institutional disruptions had been deterred, law enforcement had been assisted, and contraband had been intercepted because of the monitoring. Copious reports have been submitted that leave no doubt that the monitoring has periodically resulted in the apprehension of criminals and of persons planning to violate institutional rules. In addition, although it cannot be proven, there can be little doubt that the highly publicized existence of the monitoring program has deterred other persons from using the collect call only telephones for illegal purposes."

I The Plaintiffs' Appeal

The plaintiffs claim that the department regulations permitting department officials to monitor and record nonprivileged telephone calls between inmates and various members of the public violate both the eavesdropping statutes; General Statutes §§ 53a-187 through 53a-189; ⁹ and the wiretapping statutes. General Statutes §§ 54-41a through 54-41t. ¹⁰ The plaintiffs concede however, that the activities permitted by the regulations are fully consistent with the more recent recording statute, General Statutes § 52-570d. ¹¹

Before addressing the plaintiffs' claims, it is useful to trace the history of the legislation regarding the monitoring of telephone conversations. In 1969, the legislature enacted as part of our Penal Code; Public Acts 1969, No. 828; the eavesdropping statutes, now codified at General Statutes §§ 53a-187 through 53a-189. General Statutes § 53a-189(a) provides: "A person is guilty of eavesdropping when he unlawfully engages in wiretapping or mechanical overhearing of a conversation." The definitional section, § 53a-187, provides that listening to or recording a conversation constitutes "wiretapping" or "mechanical overhearing" only when it is done without the consent of one of the parties to the conversation. General Statutes § 53a-187(a)(1) and (2). Section 53a-187(a)(3) provides that such conduct is "unlawful" only when it is not specifically authorized by law. Section 53a-187(b) contains an exemption for criminal law enforcement officials acting in the lawful performance of their duties.

In 1971, the legislature, in seeking to regulate the conduct of the law enforcement officials whom it specifically had exempted from the eavesdropping statutes two years earlier, enacted the wiretapping statutes. Public Acts 1971, No. 68. General Statutes § 54-41b provides that "[t]he chief state's attorney or the state's attorney for the judicial district in which the interception is to be conducted may make application to a panel of judges for an order authorizing the interception of any wire communication by investigative officers having responsibility for the investigation of offenses as to which the application is made when such interception may provide evidence of the commission of offenses involving gambling bribery, violations of section 53-395, violations of ...