The Maine legislature is considering changes aimed at better protecting prisoners’ rights to private attorney-client communications in jails and jails — including a proposal that would eliminate charges for phone calls incarcerated defendants make to their attorneys.
Two separate bills, due for review by the state Judiciary Committee this year, address how incarcerated defendants can contact their attorneys and their privacy expectations during those conversations. People in prison have a constitutional right to privately consult an attorney to prepare a defense, but recent revelations from The Maine Monitor found numerous instances where that right was compromised.
Jails in Androscoggin, Aroostook, Franklin, Kennebec, Penobscot and York counties recorded nearly 1,000 phone calls made by incarcerated defendants to their lawyers between June 2019 and May 2020, according to an investigation by the Monitor. Some confidential recordings were later shared with police or prosecutors, who listened to parts of the recordings, records showed.
RELATED: Incarcerated defendants awaited private lawyer calls. You didn’t always get them.
Rep. Tavis Hasenfus (D-Readfield) is sponsoring one of the bills that would require prisons to call attorneys for free and be specifically protected by attorney-client privilege.
“Having the state listening and listening seemed so at odds with our system of what it means to have attorney-client relationships that I’m surprised it happened at all,” Hasenfus said. “And my reaction is that we need to find a way to make sure this doesn’t happen again, because you can’t have an effective conversation with a customer if you think someone else is listening and could use that in a variety of ways.” ”
A second bill is also being considered. In response to the Monitor’s reporting, state lawmakers last year formed a study group of criminal defense attorneys, law enforcement, prosecutors, victim advocates and civil rights attorneys, which produced a report recommending 14 changes to state law.
The study group did not agree on their recommendations.
Proposed changes in the second bill include improving the registration of attorneys’ phone numbers in prisons, writing procedures for state agencies to report attorney and client records if found, and adding training for law enforcement . The study group also recommended that the state plan how confidential legal materials are kept in prisons and prisoners’ ability to review audiovisual evidence.
The legislature unanimously agreed to draft most of the recommendations before the end of this year.
Civil and prisoner rights advocates said they were concerned whether the study group’s bill would provide enough incentives for prison officials and prosecutors to follow the new standards if the bills become law.
“We are dealing with a criminal justice system where the prosecutors and the police talk a lot about there having to be consequences for people’s actions and that there should be consequences if you break the law. What we’ve found throughout the discussion of this topic is that the people who enforce the law are really reluctant to take any action if they don’t follow the law,” said Meagan Sway, political director of the ACLU of Maine and Member of the study group.
One possible incentive is the study group’s proposal to prevent “any person who accesses, monitors, records, copies, transmits or receives recordings of attorney interviews” from participating in an investigation or judicial proceeding if the attorney can show that she gave her phone number to the jail. The ACLU refuses to criminalize wiretapping of confidential recordings, which was part of a bill proposed last year.
The study group’s bill gives the Maine Department of Justice responsibility for setting the standards for confidential phone calls in prisons. Any privacy standards for attorney-client phone calls should be mandatory so counties can’t opt out, said Joseph Jackson, executive director of the Maine Prisoner Advocacy Coalition, which works with people in prisons and prisons.
Jackson said there is little oversight of the prisons and prisoners do not have consistent expectations of county jail rights.
“I feel like the Department (of Corrections) needs to have more authority. I think there needs to be a central place that governs county jails and the policies or practices within them. The problem is that the last time we tried that, the prisons were adamantly against it,” Jackson said.
Bill suggests calling lawyers free of charge
According to Hasenfus, while the state is investigating records of attorney calls, it’s also a good time to investigate other potential obstacles, such as costs, that prevent incarcerated defendants from contacting their attorneys.
A 15 minute call can cost a prisoner $3.15. This does not include possible connection fees or tariffs in excess of 21 cents per minute that some prisons charge inmates.
For comparison, a 15 minute call using a typical phone plan that costs 3 cents per minute would cost 45 cents.
“Having money in a phone account shouldn’t be a barrier to speaking to your attorney, nor should it be an inconvenience,” said Hasenfus, who is a lawyer.
He is sponsoring a bill that would require Maine County prisons to allow people in prison to call attorneys free of charge during normal business hours and those calls be protected by attorney-client privilege. Prisons would also be responsible for drafting, publishing and implementing policies to implement the new rule.
Hasenfus’ suggestion is based in part on his own experience working with incarcerated clients through the Maine Commission on Indigent Legal Services (MCILS), which provides legal services at state expense to adults accused of crimes who cannot afford their own attorneys . Hasenfus said he received group calls from prisons from people he represented in court.
News reports of police and prosecutors listening to recordings of some phone calls made by lawyers and clients in the jails provided another impetus for the bill to be submitted, he said.
RELATED: A Maine jail recorded hundreds of calls from a lawyer. He wants to know why.
Hasenfus said he plans to seek opinions from correctional officers or county jail officials on the feasibility of the proposal.
The Maine Sheriffs Association did not respond to the Monitor’s emailed request for comment on the bills.
Jackson described the cost of a jail call as exorbitant, particularly for those on lower incomes.
“Most people in county jails haven’t even been convicted of a crime, so their stays in those county jails are because they can’t afford bail. Now we’re beginning to understand that this is some of the poorest people in our community and if they can’t afford bail how are they going to afford those phone calls to keep in touch with family and with lawyers? Jackson said.
Maine is following the national trend toward cost-cutting
States and cities across the country have enacted legislation in recent years to reduce or eliminate inmate call charges. Connecticut and California have free calls for some prisoners.
President Joe Biden signed the Martha Wright-Reed Just and Reasonable Communications Act of 2022 on Jan. 5, legislation passed by Congress that allows the Federal Communications Commission (FCC) to set just and reasonable charges for inmates’ phone and video calls . Sen. Angus King of Maine co-sponsored the legislation.
Last year, the Maine legislature capped the per-minute rate that local jails could charge prisoners to make a call in the state, the Monitor reported. However, the law only applies to rates negotiated between counties and their phone providers after October 2022.
Maine County Jails contract with one of two private telecommunications companies specializing in prison phone systems – Securus Technologies and GTL.
Prisons earn a commission from revenue from prisoners’ phone calls. Profits cannot be used to pay for the prisons to run and must be paid into an “inmate money fund” used to pay for newspaper subscriptions, cable, fitness equipment, seasonally appropriate clothing upon release, and to help inmates in need.
Counties have sometimes been sitting on hundreds of thousands of unspent dollars in these accounts, the Monitor found.
The Maine Department of Justice has negotiated a call rate of 9 cents per minute with its telephone company for people serving sentences in state prisons. The cost of calling prisons is often much higher.
Clearing some jail calls could be part of solving the Maine mystery, Sway said.
“Having access to both lawyers and the outside world when you’re incarcerated is so important to people’s rights and their humanity and I don’t know we talk about it often. be cut off. Not being able to afford to communicate with the outside world isolates and really keeps people disconnected from their community,” Sway said.
Samantha Hogan covers criminal justice for The Maine Monitor. Reach her with other story ideas by email: [email protected]
