Starving the Defense

You may not know it, but inmates in the federal system can email. The government has an email system that it’s rolled out across federal prisons for the past decade. The Bureau of Prisons contracts for the system with a private company called CorrLinks, and the BOP’s overall program is called TRULINCS, or the Trust Fund Limited Inmate Computer System. As the name suggests, the program is funded entirely by inmate trust funds, which are funded in turn by two things: fees that inmates must pay to use the email program and profits from their purchase of other things like telephone services or commissary products. In other words, the program takes no tax dollars. The inmates pay for it themselves.

The problem is, to use the system, inmates must consent to have their emails monitored, and that policy includes emails to or from their attorneys. Indeed, the system specifically advises all participants, including everyone on an inmate’s contact list, which must be approved beforehand, that all emails are monitored and none is confidential or privileged.

Recently, the New York Times reported on an issue that naturally has bubbled up with the advent of TRULINCS: prosecutors are reading emails between inmates and their lawyers and using it against them.

In fact, this June, federal prosecutors from the Eastern District of New York, which covers Brooklyn, Queens, Staten Island, and Long Island, wrote to the defense bar to advise candidly that they would review all emails from inmates on TRULINCS, including attorney-client emails. The letter advised that emails on the system could not be privileged because they were not confidential and, besides, that inmates had “adequate alternative means” to communicate in unmonitored settings. Given these adequate alternative means, the government concluded, its policy of monitoring all emails, including attorney-client emails, still satisfied a “suggestion” in the case law (as the letter referred to it) that an inmate must have the means to communicate with his or her attorney in an unmonitored setting.

I suppose one man’s suggestion is another’s Sixth Amendment, but since the government’s policy turns on the adequacy of alternative means—as it should—then it’s fair to ask, what are those? How can an inmate communicate privately with his or her attorney?

Well, inmates can still have unmonitored conversations with their lawyers during in-person visits; they can arrange for unmonitored legal telephone calls; and they can send and receive legal snail mail that is not to be read by prison officials.

Each of these alternative means, however, has problems. An in-person visit is ideal in a lot of cases but requires the greatest outlay of time, energy, and resources to make it happen. That problem is exacerbated if the inmate is housed in a faraway jail or prison, which is often the case. Likewise, unmonitored telephone calls must be approved and arranged in advance, sometimes with difficulty, and they lose the benefits of talking face to face or being able to review documents together. Snail mail is especially slow and cumbersome, and it’s not entirely unmonitored. Although such mail must be opened in the presence of the inmate and should be inspected only for security reasons or the presence of contraband, one suspects that the lines between inspecting, scanning, and reading something can be thin.

Just last week, in fact, a federal court of appeals for California and eight other states had to reverse the dismissal of a lawsuit in which an inmate alleged that prison officials read his legal mail. The inmate claimed that when he protested the intrusion, he was told to pound sand. Although the court of appeals agreed that prison officials had a right to scan or inspect his mail for contraband, escape plans, or other mischief, it held that they had no right to read it. Therefore, if the allegations were true, the inmate had properly stated a Sixth-Amendment violation.

And so the issue continues to effervesce. Interestingly, that prosecuting office from the Eastern District of New York once had a “filter” team in place to set aside any attorney-client emails they came across, but budget cuts eliminated that. There are many ways, you see, to tip the scales of justice. There are many ways to starve the defense.