Attorney-Client Privilege Rights In Federal Bureau Of Prisons Come Under Fire Within the Federal Bureau of Prisons, inmates are asked to "voluntarily" agree to electronic monitoring in order to use the bureau's email system. But critics say there's nothing voluntary about it.
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When It Comes To Email, Some Prisoners Say Attorney-Client Privilege Has Been Erased

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When It Comes To Email, Some Prisoners Say Attorney-Client Privilege Has Been Erased

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When It Comes To Email, Some Prisoners Say Attorney-Client Privilege Has Been Erased

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RACHEL MARTIN, HOST:

All right. Communications between defendants and their lawyers are protected by the attorney-client privilege. Anyone who's ever watched an episode of any crime show knows this. But it's a bit more complicated in practice, especially when it comes to email correspondence between federal prisoners and their attorneys. NPR's Carrie Johnson reports.

CARRIE JOHNSON, BYLINE: The Federal Bureau of Prisons offers email to the 150,000 people locked up in the system, but defense attorneys say there's a big catch. Jumana Musa works at the National Association of Criminal Defense Lawyers.

JUMANA MUSA: The whole system is completely coercive because there's only one email system that you can possibly use. And if you want to use it, you have to sign a waiver.

JOHNSON: That waiver allows authorities to monitor messages even between clients and their lawyers. Musa says there is a way for the prisons to filter out those attorney-client emails, but it's not clear how often the Justice Department actually does that. Defendants only find out if those messages get used against them in court. That happened to a client of a Pennsylvania lawyer Peter Goldberger.

PETER GOLDBERGER: I will say the client did in one message criticize the jury that had convicted him for being stupid, I think was the word he used. And that was very offensive to the judge.

JOHNSON: A spokesman for the Bureau of Prisons says lawyers who worry about the surveillance can schedule a phone call or make a visit to the prison. But California defense lawyer Ken White says it's not that easy.

KEN WHITE: It's extremely time-consuming and burdensome to visit somebody in jail. It's often a multi-hour prospect just to go see someone, even if it's for five minutes.

JOHNSON: Things only got worse during the coronaviruses pandemic, which ravaged prisons and sometimes put a stop to visits altogether. Catherine Crump runs a legal clinic at the Berkeley law school.

CATHERINE CRUMP: BOP reading inmates' emails was concerning even before the pandemic. But now email is one of the few ways attorneys can reliably communicate with their clients when they're in custody.

JOHNSON: The issue has attracted attention in Congress. Last month, the House of Representatives overwhelmingly voted to give prisoner emails with their attorneys more legal protection. Congressman Hakeem Jeffries, a Democrat from New York, sponsored the bill.

(SOUNDBITE OF ARCHIVED RECORDING)

HAKEEM JEFFRIES: The time has arrived for us to address this egregious practice, lift up the presumption of innocence, facilitate due process and allow fundamental fairness to permeate all aspects of our judicial system.

JOHNSON: The Senate needs to act before the bill could become law.

Carrie Johnson, NPR News, Washington.

(SOUNDBITE OF LIAM THOMAS' "BITTER FEELING")

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