By Shana-Tara O’Toole | Due Process Institute | President and Joe Luppino-Esposito | Director, Rule of Law Initiatives
Among the most essential rights of defendants is the right to confidential and privileged communication with their attorney. The Supreme Court explained in Upjohn Co. v. United States that the reason for this confidentiality is “to encourage full and frank communication between attorneys and their clients, and thereby promote broader public interests in the observance of law and administration of justice.” Without this ability, it would be difficult for an attorney to give effective counsel to his or her client. Though few question the soundness of the attorney-client privilege, those in the custody of the federal Bureau of Prisons (BOP) do not have their electronic communications protected.
The Effective Assistance of Counsel in the Digital Era Act will ensure that attorney-client confidentiality is preserved in the federal prison system no matter the form of communication. The bipartisan bill, sponsored by Reps. Hakeem Jeffries (D-NY) and Doug Collins (R-GA), mandates a logical update to how the Bureau of Prisons handles privileged communications between incarcerated individuals and their lawyers. Currently, there are already necessary procedures in place to prevent BOP from monitoring contact between attorneys and those individuals in BOP’s custody when the communication takes place via a letter, a phone call, or a personal visit. When it comes to e-mail, however, there is no such protection.
That is a serious gap considering our modern communications systems. In many ways, e-mail may be the most effective way that information can be exchanged between attorneys and their clients. This needs little explaining: very few of us could get by without having access to e-mail. For those behind bars, whose contact with the outside world is already restricted, any further limitation is a major detriment—never mind that the issue at hand is that person’s liberty.
The current state of BOP’s e-mail system is constitutionally compromised and has already resulted in miscarriages of justice. For example, in United States vs. Fumo, e-mails between a prisoner and his attorneys were unfairly used by government prosecutors when appealing the prisoner’s sentencing.
The bill specifically addresses this problem by requiring BOP to create a filter through its current e-mail system that would permit privileged communications between clients and their attorneys to be excluded from monitoring. This is a reasonable solution that mirrors the ways in which the BOP currently monitors other communication between those who are incarcerated and those outside the prison walls.
We support this commonsense bipartisan reform to protect confidential communications between clients in federal custody and their attorneys and will engage in efforts to support its passage.