Proposal for Future Study
PROPOSAL:
TO ENGAGE IN A NATIONWIDE STUDY OF ATTORNEY-CLIENT PRIVILEGED COMMUNICATION PRACTICES BETWEEN ATTORNEYS AND INCARCERATED INDIVIDUALS TO IDENTIFY WHETHER EXISTING MODES OF COMMUNICATION ARE ADEQUATE TO PROTECT DEFENSE REPRESENTATION AND, IF NOT, WHAT POLICY CHANGES ARE REQUIRED TO DO SO.
ISSUE:
Attorney-client communication is a protected constitutional right that is unduly hindered by U.S. prison policies. These policies provide for such communication by physical visits, phone and regular mail, but the administrative burden associated with these methods substantially undercuts their viability and hinders adequate representation. Hitherto, this burden has solely been shown by anecdote. This study seeks to quantify that burden, to demonstrate nationwide the cost, uneven implementation, and negative impact on defense representation of current practices. Such evidence can then support specified policy changes – including privileged use of email where available, and consistent and more liberal use of established methods. As well, consistent policies can be developed to limit prosecutorial access to prisoner communication data (currently an accepted, widespread practice).
NATURE OF STUDY:
1. Define constitutional minimum. Theory of protection (constrain prosecutor or facility).
2. Identify existing policies and practices.
A. Collate published policies
B. Gather data as practiced
3. Analyze data as against constitutional norms. Identify variances.
4. Analyze impact on ability of counsel to provide adequate representation.
5. Propose changes.
METHODOLOGY:
1. Develop attorney/inmate survey. ABA, NACDL, FPD. Random inmate surveys nationwide. Gather broad array of substantiated examples from both attorneys and incarcerated clients to demonstrate inadequacies of
existing processes. Seek research assistance of institutions where available. See, e.g., https://www.bop.gov/resources/research_and_reports.jsp.
2. FOIA requests to fed/state prison systems. Identify number of requests inmates have made for privileged phone calls, requests granted, staff hours allocated and length of time to implement, method of making phone call. Similar data for visits: how many requests for a/c visits, how many granted, in what manner, length of time between request for contact and actual contact. For physical mail, what precise marking is required, is there any variance among institutions, what is log-in method, how is a/c mail distributed, in how many instances has contraband been discovered in an opened a/c letter. What is data as to availability of expedited mail? Is privileged communication limited to attorneys of record, and if so, how is that showing made? [FOIA request to central offices or to individual prisons? Won’t get institutional disparities if only to central]. Identify instances in which inmate communication has been provided to US Atty and when a/c communication has been included.
3. Defense counsel charged hours. Gather and review Criminal Justice Act data to identify hours submitted by court-appointed counsel to organize a/c contact. Gather same data from public defenders.
4. US Attorney data. Request each US Attorney district to identify number of times it receives BoP-provided email traffic or transcribed calls, and extent of any a/c communication in such material.
5. Other privileged communication methods. Identify any existing practices
for other privileged phone communication (e.g., witness segregation units).
OTHER ISSUES:
1. Scope. Either a) fed only, b) fed and majority inmate pop states, or c) all.1
2. Email. Other than TRULINCS, what states offer email communication?2 What is written policy? What waiver language is present?
3. Software consult. Given structure of TRULINCS, what adaptation could be made to filter a/c communication?
4. Use of Special Administrative Measures in BoP. Number of times asserted, when has Chinese Wall been breached?
5. Pre- v. post-trial differences. Local jail practices? Pre-registered attorney list (active? Bar number only?)
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PARTIAL BIBLIOGRAPHY:
Two Congressmen Propose Barring U.S. Prosecutors From Reading Inmates’ Emails to Lawyers, NY Times, by Stephanie Clifford, Oct. 29, 2015. https://www.nytimes.com/2015/10/30/nyregion/congressmen-plan-bill-barring-us-prosecutors-from-reading-inmates-emails-to-lawyers.html
H.R.3864 - Effective Assistance of Counsel in the Digital Era Act https://www.congress.gov/bill/114th-congress/house-bill/3864/text
ABA Resolutions with Reports for the 2016 Midyear Meeting, Res. No. 10A, ., Criminal Justice Section, Feb. 8, 2016.Text of Resolution and Accompanying Report at https://www.americanbar.org/content/dam/aba/administrative/house_of_delegates/2016_hod_midyear_meeting_electronic_report_book.authcheckdam.pdf
Transcript of Corrlinks waiver hearing in , 14-CR-00277(DLI) (EDNY 2014), before Chief Judge Dora L. Irizarry wherein she barred U.S. Attorney from viewing attorney-client email communication notwithstanding TRULINCS waiver. http://www.kmbllaw.com/wp-content/uploads/CorrlinksPrivilegeHearing.pdf
Should the Medium Affect the Message? Legal and Ethical Implications of Prosecutors Reading Inmate-Attorney Email, by Brandon P. Ruben, Fordham University School of Law Review, 83 Fordham L. Rev. 2131 (2015). http://ir.lawnet.fordham.edu/flr/vol83/iss4/15
When Prisoners Email Their Lawyers, It's Often Not Confidential, NPR All Things Considered, Nov. 18, 2015, http://www.npr.org/sections/alltechconsidered/2015/11/18/456496859/when-prisoners-email-their-lawyers-its-often-not-confidential
Prosecutors Are Reading Emails from Inmates to Lawyers, by Stephanie Clifford, Jul. 24, 2014 https://www.nytimes.com/2014/07/23/nyregion/us-is-reading-inmates-email-sent-to-lawyers.html?_r=0
Inmates’ E-Mails With Their Attorneys, Off-Limits For The Government? by Amelia H. Barry, Catholic University Law Review, Nov 2014, Vol. 64:753 http://lawreview.law.edu/res/docs/Barry%20753-776.pdf
You’ve Got Mail:The Promise of Cyber Communication in Prisons and the Need for Regulation. Prison Policy Initiative Report, by Stephen Raher, January 2016. https://www.prisonpolicy.org/messaging/report.html
Judge Orders End to Recording of Attorney-Client Meetings at CCA’s Leavenworth Detention Center, Prison Legal News, Vol 24, No. 10, Oct. 2016.
“Prisoner Mail Legal Issues” 2007 (6) AELE Mo. L. J. 301 Jail & Prisoner Law Section, June 2007.
Coalition Comments Regarding Eavesdropping on Confidential Attorney-Client Communications, 66 Fed. Reg. 55062 (October 31, 2001).
Courts Divided on Confidentiality of Attorney-Prisoner Email, Prison Legal News, Vol. 27, No. 7, July 2016. https://www.prisonlegalnews.org/news/2016/jul/6/courts-divided-confidentiality-attorney-prisoner-email/
The Curious Case of Legal Mail, by Christopher Zoukis, Huffington Post, Dec. 1, 2014, http://www.huffingtonpost.com/christopher-zoukis/the-curious-case-of-legal_b_6344904.html
Government Surveillance Undermines Attorney-Client Privilege, by Faiza Patel, Brennan Center for Justice at NYU Law School, August 26, 2014 https://www.brennancenter.org/analysis/government-surveillance-undermines-attorney-client-privilege
U.S. Attorney’s Office Under Investigation After 700 Lawyers Were Spied On in Prison, by Justin Glawe, Daily Beast, Mar. 27, 2017. http://www.thedailybeast.com/us-attorneys-office-under-investigation-after-700-lawyers-were-spied-on-in-prison
https://cpoa.org/correctional-officers-violate-inmates-first-sixth-amendment-rights-opening-legal-mail-outside-presence/ law firm blog examining recent 9th Circuit decisions.
DOJ Says They Can No Longer Afford To Respect The Attorney-Client Privilege, by Matt Kaiser, July 24, 2014, Above The
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[1] Ten states – AZ, CA, FL, GA, IL, MI, NY, PA, TX and VA – account for about half of the 2.173
million persons in state prisons and jails (1,005,862 of 2,173,000). The Sentencing Project,
www.sentencingproject.org/the-facts.
[2] It appears 19 states offer some form of email access to incarcerated persons: PA, ND, MN, IA,
OK, CO, IN, KA, LA, MI, GA (women only), MO, NV, NH, OH, TN, TX, WA, and VA. Rates, of
course, are often prohibitive and in some instances private companies push for use of paid
electronic contact, including video, as mandatory substitutes for contact visits, including with
counsel.