ACLU Files Amicus Brief on Attorney-Client Confidentiality

CCA Prison Guards Listen to Prisoners’ Privileged Conversations

The American Civil Liberties Union of Hawai‘i Foundation (“ACLU”) has filed an amicus curiae brief (also known as a “friend of the court” brief) in United States District Court supporting the Constitutional rights of attorneys and their clients to speak privately, without monitoring and eavesdropping by prison personnel.

The Corrections Corporation of America (“CCA”) is a for-profit company that has a Hawaii government contract worth roughly $60 million a year to house approximately 1,600 Hawaii prisoners on the mainland. CCA maintains a practice of having a guard stand right next to a prisoner when he speaks on the phone with his attorney(s) – a practice which violates the prison industry’s own standards.  CCA says that this practice does not violate attorney-client privilege because – in their own words – “[a]ny conversation overheard is one-sided and only the inmate’s part of the conversation, not the attorney-client communications.”  In other words, because CCA personnel only listen to one side of the conversation, CCA claims to have not interfered with the attorney-client privilege.  CCA’s other proposed option is for prisoners to make their confidential attorney calls with other prisoners listening to the calls.  This practice poses constitutional concerns as well, and further violates American Bar Association guidelines concerning privacy in phone calls.  The ACLU contends the practice of requiring prisoners to reveal confidential information to other prisoners (or to prison staff) is both unconstitutional and a threat to public safety.

CCA is under fire for its onerous cost, geographical isolation and its numerous civil rights violations. The new ACLU amicus brief comes in the context of a lawsuit by the Native Hawaiian Legal Corporation (“NHLC”) against CCA for CCA’s interference with prisoners’ Hawaiian religious practices.  NHLC was forced to make a formal request to the court to prohibit CCA from monitoring their phone calls; a hearing on that motion is scheduled for November 8, 2012.

Senior Staff Attorney Daniel Gluck said: “Due process includes the right to privacy in communications with legal counsel. Simply put, government officials are not allowed to eavesdrop on private conversations with your lawyer. When I personally visited the Saguaro facility in 2009 to meet with prisoners, a CCA lawyer expected to sit four feet away from my interview table and monitor my conversations. Hawaii officials, aware of the phone-monitoring practice, tried to justify it rather than correct it. CCA’s and the State of Hawaii’s disregard for this fundamental right is unacceptable.”

The amicus brief is offered in the case of Davis (et al.)  v. Abercrombie (et al.).

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