From crime shows to movies, the idea of attorney-client privilege is one most people are at least familiar with. However, a recent look into the correspondence between prisoners and their legal representatives points to a different conclusion altogether.
The Right to Privacy
In a nutshell, attorney-client privilege is the right to privacy between legal representatives and their clients. The government cannot monitor the correspondence between attorneys and their clients even if their clients are currently incarcerated.
As technology continues to develop, in-person visits become less necessary for attorneys. In fact, not only is it easier to communicate virtually but scheduling a visit to a jail or prison is complicated and may take hours to arrange. Email is an essential tool for criminal defense attorneys to reach their clients, and with the continued spread of Coronavirus, it is one of the only ways to communicate with a prisoner.
Unfortunately, many prisons require inmates to "voluntarily" waive their right to privacy to communicate with the outside world at all. The National Association of Criminal Defense Lawyers points out that exchanging privacy for human rights isn't voluntary at all.
"BOP [Federal Bureau of Prisons] reading inmates' email was concerning even before the pandemic, but now email is one of the few ways attorneys can reliably communicate with their clients when they're in custody," says Catherine Crump, director of the Samuelson Law, Technology & Public Policy Clinic at Berkeley Law.
Peter Goldberger, a criminal defense attorney from Pennsylvania, has seen firsthand what this violation of privacy can do. In a case several years ago, his client was convicted of conspiracy, fraud, tax violation, and obstruction of justice.
The prosecution used their emails as evidence against his client, resulting in an additional six months in prison.
Time for Action
Many have expressed outrage over the gross violation of privacy by the Federal Bureau of Prisons and have pushed Congress to take action. In February of 2021, Congress approved the Effective Assistance of Counsel in the Digital Era Act.
Essentially, this bill would require the attorney general to restrict the BOP from monitoring prisoners' emails to ensure that attorney-client privilege remains protected. The only exception is when there is sufficient evidence that the attorney and their client are working together to commit or cover up a crime.
The bill would cost the Federal Bureau of Prisons over $52 million to build a new email system and a registry of approved lawyers.
Attorney-client privilege is one of the few freedoms awarded to those behind bars. While the violation of the right to privacy is not new or limited to the prison system, it is still unacceptable. Prisoners can indeed call or mail their lawyers, but supporters of the Effective Assistance of Counsel in the Digital Era Act say that email should be a protected form of communication regardless of any alternative options.
As the bill moves into the Senate, it is unclear how other parts of the government will view the cost of protecting prisoners' privacy. However, the Act is an important step in the right direction.
The Law Offices of Jacqueline Goodman will continue to follow this topic as it develops.