The ability to speak frankly with one’s attorney without threat of being monitored is a cornerstone of the attorney-client relationship. The inability to confer confidentially with counsel will deter clients from relaying sensitive but crucial information, thus preventing them from receiving legal representation’s full benefits. The Supreme Court recognizes attorney-client privilege as belonging to all clients, even the dead.
Yet, the 2.3 million incarcerated people in our country remain deprived of what has become, in the Digital Age, a crucial aspect of this privilege: the exchange of confidential emails between attorneys and clients. To ensure that those in prison have equitable and fair access to representation, both the legislature and courts should direct the Bureau of Prisons (BOP) to revise this system. Prisoners should be legally entitled to maintain confidentiality in their communications with attorneys.
Federal prisoners receive access to email through a system called TRULINCS, which allows electronic correspondence with members of an approved contact list. To participate in TRULINCS, prisoners must consent to monitoring of all messages, including those to and from their attorneys. In January, Rep. Hakeem Jeffries introduced a bill in the House of Representatives that would require the Bureau of Prisons to create an email system that allows for attorney-client privilege.
As time passes and technologies around electronic communication become more sophisticated, such a system is increasingly attainable. In 2006, when BOP began piloting TRULINCS, the bureau may have had a credible argument that it did not have the technology to filter out privileged emails from the rest of prisoners’ emails. More than a decade later, however, it strains credulity to think that no feasible technical solutions are available. The New York County Lawyers Association has suggested that TRULINCS could be reconfigured to support an encryption or filtering system in “a matter of months” and at a cost of only $100,000.
Even in the absence of a legislative mandate, federal prisoners have grounds for arguing that BOP’s email monitoring policy interferes with their constitutional rights. The district courts that have considered this issue have come to different conclusions on whether email monitoring unconstitutionally interferes with a defendant’s Sixth Amendment right to access counsel. In United States v. Asaro, a case in the Eastern District of New York, Judge Allyne R. Ross found that the government’s TRULINCS policy did not “unreasonably interfere” with the defendant’s ability to consult with counsel because he could maintain privileged communication with his attorney via phone calls, mail, and in-person visits.
This analysis fails to contemplate the full extent to which incarcerated defendants are burdened by practical limitations on their ability to communicate with counsel. Attorneys may need to travel several hours and undergo time-consuming security measures to visit their clients in prison, and mail usually takes days to arrive. According to BOP policy, prisoners are entitled only to the “occassional unmonitored call” to their attorney, with the burden on the prisoner to show that their current level of phone access is inadequate. These complications and delays compound the difficulties already faced by federal public defenders, who represent more than half of defendants in the federal court system and have been devastated in recent years by steep budget cuts.
To evaluate whether a prison rule is constitutional, the Supreme Court put forward a test in Turner v. Safley (1987) that considers four factors: 1) whether there is a rational connection between the prison regulation and the governmental interest justifying it, 2) whether alternative means of exercising the right remain available, 3) the impact that accommodating the asserted right will have on guards and other prisoners, and 4) the absence of ready alternatives to the regulation.
Although this post will not endeavor to conduct a full analysis of these factors, it bears mentioning that the government has little unique interest in maintaining the monitoring of emails between attorneys and prisoners. Generally, courts agree that prisoners have a right to confidentiality in their legal mail, insofar as prison staff may search such mail for contraband in the prisoner’s presence, but may not read its contents. These parameters balance the prisoners’ rights and the government’s interest in mitigating risks in its prisons. Unlike unmonitored legal mail, unmonitored emails don’t have the potential to harbor contraband. Although they do pose other risks—for example, the possibility that a deviant attorney sends messages to aid in criminal activity—these are no different from the dangers of physical mail.
One might argue that the task of reconfiguring TRULINCS to filter out legal emails from monitoring, while technically feasible, shouldn’t be a financial priority for the government. Federal prisons already suffer from overcrowding, and the money spent on electronic messaging could be spent on hiring more corrections officers. Furthermore, some courts have characterized access to TRULINCS as a “special privilege”1FTC v. Nat’l Urological Grp., No. 1:04-CV-3294-CAP, 2015 LEXIS 192546 (N.D. Ga. Nov. 19, 2015) —a far cry from a constitutional right.
In the long term, however, allowing prisoners to communicate confidentially with their legal representation would benefit both incarcerated defendants and the justice system as a whole. The availability of privileged electronic correspondence could cause a reduction in the use of legal mail and unmonitored phone calls, both of which require staff time (and its consequent costs) to facilitate. TRULINCs, in contrast, is funded solely by profits from prisoner purchases, including fees for using the service. Any measure that improves the efficiency of representation for prisoners could also help reduce the United States’ overall incarceration rate, which is still the highest in the world.
Improving incarcerated people’s access to email, both privileged and otherwise, should not end with revising the TRULINCS policies in federal prisons. Currently, only a handful of state prisons provide email access. Expanded access to email as a tool for communicating with incarcerated clients could help state public defenders manage their immense caseloads. More broadly, providing incarcerated people with opportunities to communicate via modern technology allows them to maintain a support network outside of prison. Ideally, such services—if designed to be financially and practically accessible—can make prison more humane and more conducive to rehabilitation.