180
Ginsburg, J., dissenting
mission, that assertion is groundless, for the Government carried no burden whatever. It introduced nothing to show the reasonableness or reliability of the mailroom to cell delivery at FCI Milan at the time of the forfeiture in question. See supra, at 174.
Beyond doubt, the Government can try harder, without undue inconvenience or expense. Indeed, it now does so: As the Government informed the Court on brief, prison employees currently "must not only record the receipt of the certified mail and its distribution, but the prisoner himself must sign a log book acknowledging delivery." Brief for United States 24 (citing BOP Program Statement 5800.10.409, 5800.10.409A (Nov. 3, 1995)). If a prisoner refuses to sign, a prison officer must document that refusal. BOP Operations Memorandum 035-99 (5800), p. 2 (July 19, 1999). The Government noted additionally that administrative forfeiture notices, along with "appropriately marked congressional, judicial, law enforcement, and attorney correspondence," are now marked "special mail," to be "opened only in the inmate's presence." Brief for United States 29, n. 19 (citing 28 CFR § 540.12(c) (2001) and BOP Program Statement 5800.10.35).
The Government, of course, should not be "penalized" for upgrading its policies. See ante, at 172. It would be improper to brand the BOP's 1988 procedures deficient simply because those procedures have since been improved. Nevertheless, the new rules show that substantial improvements in reliability could have been had, in 1988 and years before, at minimal expense and inconvenience. Nor will it do to label these efforts a matter of executive grace. They undeniably provide a "feasible" means "substantially [more] likely to bring home notice" than FCI Milan's prior uncertain mail-room to prison cell practice. See Mullane, 339 U. S., at 315.3
3 The majority suggests that it is necessary to "explain" how "requiring the end recipient to sign for a piece of mail substantially improves the reliability of the delivery procedures leading up to that person's
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