Washington, DC (Dec. 11, 2020) – Today, the National Association of Criminal Defense Lawyers (NACDL) and the Samuelson Law, Technology & Public Policy Clinic at UC Berkeley School of Law (the Samuelson Clinic) released a critically important report – Preserving Incarcerated Persons’ Attorney-Client Privilege in the 21st Century: Why the Federal Bureau of Prisons Must Stop Monitoring Confidential Legal Emails.
Incarcerated individuals in the federal criminal legal system are uniformly denied the ability to have privileged communications with their lawyers through TRULINCS, the Federal Bureau of Prisons (BOP) email system and the only email system accessible to them. This report details the unacceptability of this situation, one made even worse during the COVID-19 pandemic.
This report by NACDL and the Samuelson Clinic makes the case for Congress to act immediately to protect the attorney-client privilege in emails sent through the BOP system. It also calls for the BOP to stop its practice of requiring incarcerated clients to "voluntarily" agree that their email will be monitored and that attorney-client privilege will not apply to legal emails. And it implores the BOP to respect attorney-client privileged legal email, just as the government is required to in other contexts.
Earlier this year, the U.S. House of Representatives passed the Effective Assistance of Counsel in the Digital Era Act, H.R. 5546. If passed by the Senate and signed into law, this legislation would prohibit the BOP from monitoring legal emails between individuals incarcerated in the federal system and their attorneys, with certain limited exceptions. It currently awaits action by the Senate Judiciary Committee. This report underscores the need for immediate action by the Senate to protect the attorney-client privilege.
"The sanctity of the attorney-client privilege is a core feature of the criminal legal system established by the U.S. Constitution," said NACDL President Chris Adams. "Without the attorney-client privilege, the constitutional right to counsel under the Sixth Amendment quickly erodes. A lower standard for protecting attorney-client communications for people in prison undermines our adversarial legal system."
"In other types of client relationships, attorney-client privilege adapts as technology changes and communication happens in new ways," said Megan Graham, Clinical Supervising Attorney at the Samuelson Clinic. "But the BOP’s and Justice Department’s policies have frozen communication with incarcerated clients in the 20th century. It’s time for the federal government to move into the 21st century and acknowledge that attorney-client privilege should apply to incarcerated individuals’ emails with their lawyers."
NACDL and the Samuelson Clinic have worked together for years on this issue, including collaborating to gather information about BOP monitoring of legal email via the Freedom of Information Act and ensuing federal litigation. After a great deal of study and research, including interviews with leading experts in the field as well as criminal defense practitioners, the Samuelson Clinic and NACDL produced this important report.
Many UC Berkeley School of Law students, under the direction and supervision of Samuelson Clinic Director Catherine Crump and Clinical Supervising Attorney Megan Graham, contributed to this report. Evan Enzer, Nopporn Ganthavee, and Saroop Sandhu drafted the report. Diane Aguirre-Dominguez, Mariam Azhar, Alex Barata, Katie Burkhart, Nomi Conway, Meghan Fenzel, Vanessa Ing, Ernan Kiselica, Dan Luecke, Anna Schneider, Schuyler Standley, and Melody Wong contributed research or helped to litigate NACDL’s Freedom of Information Act case against the Bureau of Prisons and Department of Justice.
This report is available at www.nacdl.org/preservingprivilege.
Ivan Dominguez, NACDL Senior Director of Public Affairs and Communications, (202) 465-7662 or idominguez@nacdl.org
The National Association of Criminal Defense Lawyers is the preeminent organization advancing the mission of the criminal defense bar to ensure justice and due process for persons accused of crime or wrongdoing. A professional bar association founded in 1958, NACDL's many thousands of direct members in 28 countries – and 90 state, provincial and local affiliate organizations totaling up to 40,000 attorneys – include private criminal defense lawyers, public defenders, military defense counsel, law professors and judges committed to preserving fairness and promoting a rational and humane criminal justice system.
