Attorney-client privilege is an important part of the American criminal justice system. Under this privilege, a defendant is supposed to be able to communicate freely with his or her lawyer without the attorney being forced to share what was said with prosecutors or law enforcement. The concept works, essentially as an extension of the Fifth Amendment’s right to be free from self-incrimination and the guarantee of due process, the Sixth Amendment’s right to an attorney, and the right to privacy promised by the Fourth and Ninth Amendments to the U.S. Constitution.
In most situations, maintaining confidentiality under the attorney-client privilege is fairly straightforward. Prosecutors, law enforcement, and the government at large do not have the authority or the ability to record or request records of communications between criminal defendants and their lawyers. The situation changes dramatically, however, for those who are already in correctional facilities, including jails and prisons.
Emails Are Convenient but Monitored
A person who is incarcerated can communicate with his or her attorney in four basic ways. The prisoner can schedule an in-person visit or a phone call that is not monitored. Either of these two options could take several weeks to make happen, not to mention travel costs for the attorney. Traditional postal mail is a choice as well, but again, time may be a factor. Finally, the prisoner could send his or her attorney an email.
Prisoners in the federal prison system—presently totaling about 150,000 individuals—send and receive emails through a Bureau of Prisons system called the Trust Fund Limited Inmate Computer System or TRULINCS. While TRULINCS is effective enough for communicating with family members or loved ones, the main problem with the system is that it is monitored, and communications are not treated as privileged. This means that prison officials—and by extension, prosecutors—have access to the content of any email sent or received on the system, including emails between inmates and their lawyers. There have been cases in which such emails have been used against the inmates in future court proceedings.
Following Up on Ignored Requests
In an effort to determine just how big the problem really is, the National Association of Criminal Defense Lawyers (NACDL) filed requests for related records from the Bureau of Prisons and other government entities under the Freedom of Information Act. According to the NACDL, their requests have been ignored. As a result, the NACDL recently filed a lawsuit in federal court against the Bureau of Prisons and the Department of Justice asking the court to compel the release of records related to inmate email monitoring.
The NACDL says that electronic communication has largely replaced telephone communication and postal mail for the average person. For an inmate, email is likely to be the most reasonable way to communicate with the outside world, the suit claims. The lawsuit also points out that allowing inmates to have privileged email communications with their attorneys is more cost-effective for the public at large, as a majority of inmates are represented by tax-payer funded public defenders.
It is important to recognize that this lawsuit only applies to the release of government records. It does not seek policy changes or challenge an existing statute. Upon review of the records, however, future suits may be necessary to prompt changes to the rules.
Call a Hartford Defense Lawyer Today
If you or a member of your family is facing criminal charges, contact an experienced Connecticut criminal defense attorney to discuss your available options. We will review your case and ensure that your rights are protected at all times—including your right to privileged communication with your lawyer. Call 860-290-8690 for a free consultation today.