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Protecting the Right to Counsel: Lessons from New Orleans

Many assume that communications with a lawyer are confidential, protected by the Sixth Amendment right of access to legal counsel. The truth, however, is far more complicated.

June 14, 2018

New Orleans made the news this past May when a local nonprofit, Court Watch NOLA, repor­ted that all calls pris­on­ers make to their attor­neys are recor­ded and made avail­able to the district attor­ney to be used in prosec­u­tion.

The story quickly gained national trac­tion, as most people assume that commu­nic­a­tions with a lawyer are confid­en­tial, protec­ted by the Sixth Amend­ment right of access to legal coun­sel. The truth, however, is far more complic­ated.

Over the last few decades, pretrial deten­tion rates in the United States have skyrock­eted. As a result, the number of people whose consti­tu­tion­ally protec­ted right to coun­sel is controlled by their jail­ors is both very high and on the rise. As the popu­la­tion of persons held in pre-trial deten­tion has swelled, the infra­struc­ture support­ing the attor­ney-client rela­tion­ship has come under increas­ing stress. The result is an array of new legal chal­lenges around the coun­try about the diffi­culties of lawyer­ing in jails. These cases chal­lenge the lack of private space for legal visits, lengthy wait times, remote carceral place­ments, inter­fer­ence with legal mail, and monit­or­ing of legal phone calls and legal email.

Courts have struggled to deal with this influx of cases, which pit the consti­tu­tional rights of detained crim­inal defend­ants against the chal­lenges of jail admin­is­tra­tion in facil­it­ies that are often over­ca­pa­city and under­staffed. The result is a hodge­podge of incon­sist­ent reas­on­ing and outcomes.

Today, the law in most juris­dic­tions provides that the Sixth Amend­ment protects the right to confid­en­tial visits with coun­sel, but very few courts have been will­ing to strike down jail or prison policies that make these visits chal­len­ging or time-consum­ing. Simil­arly, the law gener­ally protects pris­on­ers’ right to receive mail from their attor­neys, although in many places, its confid­en­ti­al­ity is not ensured. Finally, the law in most places does not guar­an­tee a right to consult with an attor­ney by phone, nor does it provide a remedy for unau­thor­ized monit­or­ing of attor­ney-client calls in most instances. 

The impact of this chip­ping away at the Sixth Amend­ment is very hard to meas­ure in indi­vidual cases, since it’s hard to prove how more regu­lar visits, easier commu­nic­a­tion, and improved trust between the client and the lawyer impact the outcome in a partic­u­lar case.

But the results are much easier to see in the aggreg­ate. Detained defend­ants are far more likely to end up convicted and incar­cer­ated in part because it’s so hard to mount a defense from jail. A study of over 150,000 defend­ants booked into a Kentucky jail over a one-year period found that defend­ants who are detained pretrial are much more likely to be sentenced to more incar­cer­a­tion and for longer sentences.  Addi­tion­ally, jailed defend­ants often chose to take a plea bargain rather than wait­ing in jail for trial. Of course, lack of access to coun­sel is only one factor in these cases, but it is one of the ways in which our national over-reli­ance on incar­cer­a­tion is perpetu­at­ing itself. 

So what can be done to protect the Sixth Amend­ment rights of pretrial detain­ees?

First, stra­tegic litig­a­tion could help to draw atten­tion to the incon­sist­en­cies in the case law. The basic source of the confu­sion in the lower courts is around the ques­tion of whether legally inno­cent pretrial detain­ees should be subject to the same limits on their consti­tu­tional rights as convicted pris­on­ers. In Turner v. Safley, the Supreme Court held that “a prison regu­la­tion impinging on inmates’ consti­tu­tional rights ‘is valid if it is reas­on­ably related to legit­im­ate peno­lo­gical interests.’”

Some lower courts have relied on this Turner stand­ard and its progeny to uphold limits on coun­sel access for detained defend­ants. This is a mistake. As the Second Circuit Court of Appeals has explained, the Turner Court was concerned with protect­ing the state’s, “peno­lo­gical interests,” punish­ment, deterrence and rehab­il­it­a­tion, which aren’t relev­ant to people who are incar­cer­ated but legally inno­cent. Legal chal­lenges to coun­sel access barri­ers could help to clarify that the consti­tu­tional coun­sel access rights of detained crim­inal defend­ants receive more protec­tion.

And, in the mean­time, a robust right to coun­sel is still visible in some states’ jail stand­ards. Forty states have some form of statewide stand­ards, whether mandat­ory or volun­tary; almost all include at least some rules to protect access to coun­sel for people in jail.  In states where these rules are robust, they can be invoked by lawyers and clients to demand improved condi­tions.              

But while we’re work­ing towards improv­ing access to pretrial detain­ees, we should­n’t forget the real end game. Build­ing more robust regu­lat­ory protec­tions and chal­len­ging unful­filled consti­tu­tional commit­ments will help draw atten­tion to the unful­filled Sixth Amend­ment rights of incar­cer­ated defend­ants.  

Yet, these guar­an­tees will be impossible to fulfill in jails that are chron­ic­ally under-resourced or oper­at­ing well over capa­city. The ulti­mate goal of expos­ing these wide­spread prob­lems with coun­sel access should not be to direct more resources into build­ing renov­a­tions or jail staff­ing, but rather to decrease the number of people whose rela­tion­ships with coun­sel are controlled by their jail­ors. 

Access to coun­sel advocacy should be used not only to improve condi­tions for lawyers and their incar­cer­ated clients, but also to push for ending our over­use of pretrial deten­tion.

This post draws on research from Johan­na’s article, Gideon Incar­cer­ated: Access to Coun­sel in Pretrial Deten­tion (forth­com­ing (9)(1) UC Irvine Law Review (2008))

The views expressed are the author’s own and not neces­sar­ily those of the Bren­nan Center for Justice.