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Unanimous agreement is not always so easy to come by, particularly in matters of public policy. But last week, a state committee working to ensure that people in Maine jails and prisons have proper access to their legal representation proved it is possible.
That group, the Committee to Ensure Constitutionally Adequate Contact with Counsel, showed unanimous but unofficial support on Oct. 5 for the idea that jails, state correctional facilities, law enforcement, prosecutors and other state agencies need to adopt clear policies for protecting confidential communications between attorneys and their clients.
Based on legal precedent and state law, we frankly feel this has long been an obvious conclusion. But as reporting from Samantha Hogan and the Maine Monitor for more than two years has shown, some jails have still been listening to and recording some of these calls. So there is a demonstrated need for more clarity and consistency in these policies.
The Maine Monitor reporting played an instrumental role in the creation of this committee in the first place (just look at how prominently its stories are featured in committee background materials), and the committee now looks poised to make official recommendations soon that lawmakers will hopefully take up in the next Legislature.
As part of the committee’s work, a helpful but eye opening spreadsheet has detailed how jail facilities across the state handle inmates’ access to legal representation. Thirteen of the 15 jails say they “distribute written policies, procedures, or guidance related to confidentiality of attorney communications with inmates,” for example. And 11 out of 15 “possess written materials that are provided or available to inmates regarding recording of telephone calls.” All jails should be doing these things.
Most alarmingly here, eight of the 15 jails do not “provide forms to detainees or inmates that are used by the inmate to provide the telephone numbers of their attorneys for the purpose of ensuring confidentiality of attorney calls,” which is unacceptable. It is not particularly surprising that jails are recording some attorney calls when they aren’t providing clear ways to flag those phone numbers.
There was a particularly instructive and productive exchange about these numbers at last week’s hearing, between committee members Rep. Thom Harnett and Maine Sheriffs’ Association President Dale Lancaster. As law enforcement officials have said in the past, Lancaster emphasized that sheriffs don’t want to capture these calls in the first place.
“I understand and I take them at their word — I’ve heard from the sheriffs, I’ve heard from corrections, I’ve heard from the offices of the district attorneys — that nobody wants to hear these calls, nobody wants them intercepted. You know, we all recognize the constitutional rights of both persons in custody and not in custody,” Harnett responded. “But I’m still struck by the fact that you’re not telling the person who’s incarcerated how to do this, or what the policy is. I mean, there is no policy [in some jails]. So how are people supposed to know what they are supposed to do to protect their calls if there aren’t any policies in place [for inmates to provide their attorney’s phone number] in the majority of the county jails in the state?”
Lancaster, who is the Somerset County Sheriff, said he doesn’t “necessarily disagree with that, of having the policy, but I don’t want you to think just because there isn’t a policy that that is not happening.”
The Somerset County Jail that Lancaster oversees, according to the spreadsheet, does have policies and procedures related to the confidentiality of attorney communications and does provide the opportunity for inmates to give the jail their attorney’s number to help make sure those calls aren’t monitored.
“Given the significance of the constitutional rights that we’re talking about here, don’t you think that every jail should have a policy, and every jail should give that policy to persons who are incarcerated so they’re not deprived of those constitutional rights?” Harnett then asked him.
Lancaster agreed. “Sure, that is a legitimate request,” he responded.
It absolutely is a legitimate request. As this back and forth shows, along with the preliminary agreement among commitment members, consensus is possible on this issue. That agreement must carry over to the committee’s final report, due Nov. 2, to work in the Legislature next session, and to day-to-day operations in Maine jails and prisons. There are clear, actionable areas of agreement that can help protect the constitutional right to counsel across the state.
