Op-Ed: Lawyers can’t visit clients in prison, so quit monitoring their emails

As concern over the impact of COVID-19 on prison populations began to mount, the federal Bureau of Prisons implemented a ban in March that prohibits lawyers from visiting their incarcerated clients. However justifiable the ban may be, it compounds the challenges lawyers face representing those held in custody, a crucial tool lawyers rely on to gather the facts they need to mount an effective defense.

While nothing can replace the way face-to-face interactions help build trust, the bureau should at long last end its unjust policy of requiring inmates to “voluntarily” waive privilege in emails they send to their attorneys through the bureau-provided email system.

A bipartisan group in Congress that includes two California Democrats — Reps. Karen Bass of Los Angeles and Anna G. Eshoo of Menlo Park — sponsored legislation that would do just that. The Effective Assistance of Counsel in the Digital Era Act would prohibit the Bureau of Prisons from monitoring emails between inmates and their attorneys except in certain limited cases. The act passed the House as part of a COVID-19 relief package and awaits action in the Senate.

In our deeply divided times, the fact that the legislation is being co-sponsored by 25 members — 11 Republicans and 14 Democrats — is a sign of its urgent need.

The Bureau of Prisons houses some 163,000 inmates. To encourage them to maintain contact with members of the community, the agency provides most inmates with access to an email system. They are allowed to contact approved individuals who are not in the bureau’s custody if the recipient has agreed to receive messages. But as a condition of using the system, inmates must waive their right to confidentiality in the messages they send and receive.

This requirement means that lawyers cannot ethically use the email system to communicate with their clients about substantive and important aspects of their cases because it requires them to violate their obligation to maintain their clients’ confidences. The risks to the inmates are not merely hypothetical. Federal prosecutors have, in fact, used emails sent through the system against defendants in court.

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Even in the best of times, the bureau’s monitoring would be bad policy and of dubious constitutionality. Federal circuit courts have held that the Constitution prohibits prison officials from reading mail between inmates and their attorneys that has been sent through the U.S. Postal Service, some grounding their decision in the 1st Amendment right to free speech and others in the 6th Amendment right to assistance of counsel. Given that email has become an essential form of business communication, that constitutional protection should extend to email as well.

Federal prosecutors have argued that inmates do not need email to communicate with their clients because alternative methods such as postal mail, unmonitored phone calls and in-person visits are available. But email has become an essential business communications tool because what it offers is nearly instantaneous and it is free.

These are particularly useful qualities given that it can take weeks for an inmate to receive a letter sent via old-fashioned mail, and arranging an unmonitored phone call is an administrative headache that can take as long as a month. When available, an in-person visit may require an attorney to travel a significant distance and wait for hours to meet with their client.

Now, of course, even in-person visits are unavailable.

In addition to requiring the Bureau of Prisons to stop monitoring email between inmates and their attorneys, the legislation under consideration in Congress creates sensible exceptions to its prohibition on monitoring. For example, the emails would not be privileged if the inmate is obtaining advice from the attorney for the purpose of furthering a crime or fraud. The bill also would require law-enforcement agents to secure a warrant to access any email sent through the prison email system, just as they have to do to access email sent through a private provider such as Google.

The Bureau of Prisons email monitoring policy was out of step with constitutional values even before COVID-19. The pandemic has only emphasized the need to reform a system that unnecessarily interferes with attorney-client communications and thus with effective representation.

Catherine Crump is director of the Samuelson Clinic for Law, Technology and Public Policy at UC Berkeley Law School. She co-represents the National Assn. of Criminal Defense Lawyers in a lawsuit seeking records about the Bureau of Prisons monitoring policy. Ken White, a former federal prosecutor, is a criminal defense attorney at Brown, White & Osborn LLP in Los Angeles.