When Prisoners Email Their Lawyers, It's Often Not Confidential

At least once a week, federal defender Deirdre von Dornum travels across Brooklyn to meet with her incarcerated clients. The round trip takes three hours, on a good day.

First von Dornum rides the subway. Then she walks half a mile to the Metropolitan Detention Center, a pair of nondescript high-rise buildings on the Brooklyn waterfront. At this point, she still has to wait — sometimes for hours — for guards to bring her client down from his cell.

"It's time that I'm not able to spend on other portions of the case," says von Dornum. "I have to use the hours to travel back and forth to the jail."

But as cumbersome as this is, defense lawyers say it's often the only way to talk with their clients that is both timely and confidential. Phone conversations with attorneys are private, but there aren't always enough phones. The post office is too slow. Many federal inmates have access to email. But defense attorneys say they don't trust it, because prosecutors have used those emails as evidence in court. Now defense lawyers and elected officials want to change that.

"These conversations are fundamental to the attorney-client relationship," says E.G. Morris, president of the National Association of Criminal Defense Lawyers. "They're fundamental to the Sixth Amendment right to counsel."

These restrictions on email aren't merely inconvenient, according to Morris. He argues they're preventing defense attorneys from doing their jobs effectively. But prosecutors insist that's not the point at all.

"We don't want to read attorney-client communications," says James McGovern, a prosecutor with the United States Attorney's Office for the Eastern District of New York in Brooklyn. "We are not doing this for some strategic advantage."

McGovern takes a very different view of the inmate email system.

"Nobody ever intended the system to be confidential," he says. When you log in to the prison email system, McGovern points out, there's a clear warning that the email will be monitored. So he says defense lawyers should act accordingly.

For a while, prosecutors in Brooklyn assigned an extra lawyer to separate out emails between inmates and their defense attorneys. But "it became really too much of a burden," McGovern says, "to go and constantly have to review thousands of pages and try and remove attorney-inmate emails."

So last summer, the office sent a letter warning defense lawyers it "intends to review all email" sent to or from federal inmates. Several federal judges have ruled that's OK. But at least one judge has expressed misgivings.

U.S. Rep Hakeem Jeffries (D-NY) is going even further: he introduced a bill that would forbid prosecutors from reading email between defense lawyers and their clients.

"No other form of communication is treated in this fashion," Jeffries says. "Email communication in the 21st century should be given the attorney-client privilege protection that it deserves."

For Jeffries, it strains credibility that the Bureau of Prisons can't find a way to keep these emails hidden from prosecutors, as it does for phone calls and regular mail. The Bureau of Prisons declined to comment for this story. But critics say it's missing a big opportunity to make the entire justice system work better.

"We have chosen the least efficient way to actually run the criminal justice system," says Laurie Levenson, a former federal prosecutor who teaches at Loyola Law School in Los Angeles. "We're operating in the same manner we did half a century ago: come on in and see your client."

Levenson thinks this is one more area where the law needs to catch up with technology. Though she doesn't think that will happen until everyone agrees that it should.