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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.