Should U.S. Attorneys Have Access to Inmates’ Emails to Lawyers?

In an article in this morning’s New York Times, Bill Seeks to Bar U.S. Prosecutors From Reading Inmates’ Emails to Lawyers, Stephanie Clifford wrote of federal prosecutors in Brooklyn who last year alerted defendants that their emails would be monitored. The U.S. Attorneys Office argued that prisoners had agreed to terms that advised them that their emails could be monitored by the Bureau of Prisons. They argued that the BOP system could not distinguish emails to lawyers from other emails. The U.S. Attorney determined it would no longer appoint “taint teams” to sort through the emails. Defense lawyers in Brooklyn filed objections, citing the attorney-client privilege and federal judges have split on the issue.

On Thursday morning, October 29, 2015, a bill was introduced in Congress to bar federal prosecutors from reading emails between inmates and their lawyers. In Clifford’s article, she quoted two members of NAFUSA:

Doug Jones, a former United States attorney for the Northern District of Alabama who is now in private practice, said the legislation was sensible.


“It’s a very difficult representation to represent a client who is in custody,” Mr. Jones said.


He gave the example of Birmingham defendants who were kept at a county jail three blocks from him. “You wouldn’t think that would be a problem, but it’s an itty-bitty room; it’s hard to bring tapes and transcripts and other things,” he said, adding that it was also difficult to contact a client with a quick question.


Donald K. Stern, a former United States attorney for Massachusetts, said that while there would no doubt be some cost to overhauling the email system, there was also a cost to the current setup. Court-appointed defense lawyers who have to spend several hours trying to visit their clients are ultimately paid by the government, he pointed out.


“You have to balance the cost of doing that with the importance of permitting the ability of counsel to communicate freely with a client,” Mr. Stern said. “The lawyer ought to be able to have very free access to their clients — not only for the right to counsel and the Sixth Amendment, but also to provide a more efficient and fair criminal justice system.”