A bipartisan piece of legislation that would stop federal prosecutors from reading attorney-inmate emails has a strong chance of reaching President Barack Obama’s desk this year, the bill’s co-sponsor Rep. Hakeem Jeffries (D-New York) said during the “Attorney/Inmate Email Monitoring” panel held March 24 at the New York County Lawyers’ Association (NYCLA).
All major stakeholders, including prosecutors and defense attorneys, agree emails between inmates and attorneys should be protected the same way legal snail mail, phone calls and in-person visits are. Still, isolating privileged emails from non-privileged emails remains a significant time and resource burden, explained James McGovern, chief of the Criminal Division of the U.S. Attorney’s Office, Eastern District of New York.
Stein Scholar Brandon Ruben ’16 organized and co-moderated the panel, which he based off an award-winning note he wrote in Professor Bruce Green’s Ethics in Criminal Advocacy seminar. His note, “Should the Medium Affect the Message?: Legal and Ethical Implications of Prosecutors Reading Inmate-Attorney Email,” won the Dean John D. Feerick Student Writing Award for the Fordham Law Review’s best note in March 2015.
At the recommendation of a recent NYCLA report, which relied heavily on Ruben’s research, the American Bar Association adopted a formal resolution in February urging the Bureau of Prisons and Department of Justice to provide inmates with confidential legal email, as they do phone calls, snail mail, and in-person meetings.
Ruben’s co-moderator, Cardozo Law Professor Ellen Yaroshefsky, praised his work on the subject and noted the panel marked the first of its kind on email monitoring.
“He’s done a stellar job of promoting this issue both in New York and around the country,” Yaroshefsky said of Ruben, who she described as the “rare person who moderates a panel while still in law school.”
The panel discussed the impact of email monitoring, whether it is legal, whether it should be legal, and the ethical implications of reading such correspondence. It also heard from Jeffries and Elliot Dolby-Shields, one of the authors of the NYCLA report, about the projected cost of the BOP creating a system that could separate inmates’ legal emails from their personal emails.
Protecting attorney-client emails is integral to the criminal justice system’s ability to offer effective assistance of counsel, Jeffries said. Jeffries’ bill, co-sponsored by Rep. Doug Collins (R-Georgia), is pending floor action in the House of Representatives, as part of a larger proposed action for sentencing and prison reform.
“I don’t think this is a particularly controversial issue,” Jeffries noted.
BOP officials point to cost prohibitions as the reason for continued legalized monitoring of attorney-client emails. Jeffries suggested during the panel that resource allocations tied to new legislation on sentencing and prison reforms could potentially pay for the email system upgrades, if the legislation is passed. Creating such a system would cost an estimated $250,000, according to estimates from Dolby-Shields.
“The BOP should see it as being in their best interests,” said David Patton, executive director of the Federal Defenders of New York, about privileging attorney-inmate emails. “It’s safer and more cost effective to have fewer in-person visits.”
While reading attorney-inmate emails is not against the law, McGovern made clear that his office has no desire to read them. However, picking through thousands of pages of emails to determine who is sending what to whom creates a resource drain for his office.
“I hope this bill gets passed,” said McGovern, who sat next to Jeffries. “That would be a perfectly good resolution to this.”
Walt Pavlo, founder/president of Prisonology LLC, an educational software program that educates lawyers, defendants, and family members on the federal prison experience, also participated in the panel. Yaroshefsky noted attempts to include a BOP official on the panel were unsuccessful.
