Are Prison Emails Private?

A recent article in the New York Times shows how prosecutors are reading emails between prisoners and their lawyers. I’m not going to say this practice “encroaches on” the attorney-client privilege – it all but eliminates it. Effectively, in order to ensure a discussion with a client in prison is confidential, a lawyer now has to do that in person.

The attorney-client privilege is essential for people, especially those accused of crimes, to have adequate legal representation. Without it clients would not be able to adequately communicate with their attorneys about the details of their cases for fear that information would later be used against them at trial. It doesn’t matter if these clients are guilty or innocent – remember our justice system makes a very important presumption about criminal defendants, that they are innocent until proven guilty beyond a reasonable doubt. It’s the prosecutor’s job to prove the defendant guilty, not the defendant’s job to prove he is innocent. This is why defendants plead “not guilty” instead of “innocent.” By reading attorney-client emails and then using them in court, prosecutors are effectively depriving the accused of the right to assistance of counsel in the Sixth Amendment, and compelling the accused to testify against himself.

Keep in mind that there is no attorney-client privilege if the attorney is assisting the client in perpetrating a crime or fraud (there are other exceptions, which aren’t really relevant here). So this isn’t about the prosecutors or police preventing future crimes, this is about letting a prisoner assume his emails are confidential and then using them against him.

Also, all phone calls from jails and prisons (not to a lawyer, maybe) are recorded. Anything a prisoner tells a cellmate is fair game for a prosecutor to use at trial (remember Chicago? Lincoln Lawyer? Ryan Leaf?). But these aren’t the issues here.

The real issue is the seemingly constant encroachment by the government on private communication, and now the certainty that the government is willing to violate the rights of the accused.