It began last year during an investigation of contraband smuggling into the Leavenworth Detention Center, a privately run federal prison in Kansas operated by CoreCivic, formerly known as the Corrections Corporation of America.
During that investigation, a federal prosecutor in Kansas City told a private defense lawyer she could not lawfully represent a Leavenworth inmate, since doing so would create a conflict of interest with another inmate the lawyer already represented.
And just how did the prosecutor know what the private lawyer was discussing with the potential new client, which the lawyer-client privilege is supposed to keep strictly confidential? Because the prison had monitored the lawyer-inmate discussions through its security cameras and helpfully passed on what it learned to the prosecutor’s office. That’s how the private lawyer learned the prison’s camera monitoring system routinely recorded lawyer-inmate conferences.
Before long, criminal defense lawyers through the Kansas City area were up in arms, and the local Federal Public Defender alerted a U.S. District Court judge, who promptly held a public hearing on whether the prison was violating inmates’ due process and Sixth Amendment right to counsel by monitoring lawyer-inmate conferences and sharing tapes with federal prosecutors. The court also ordered the prison to turn over the tapes for review by a special master that it appointed to look into and report back on the extent of the taping.
The special master’s report, filed Jan. 31, revealed only seven of Leavenworth’s nine inmate-lawyer meeting rooms are equipped with security cameras, and only five of those were used for that purpose during the previous three months. Even so, the special master calculated, by spot-checking DVR drives and DVD discs on which the videotapes were stored against times the prison’s visitor logs indicated inmate-lawyer conferences had been scheduled, more than 700 attorney-client conferences had been videotaped during that 12-week period.
Although the videotapes did not include audio, the district court received evidence Leavenworth records phone calls from inmates to their attorneys, unless the inmate notifies the prison that the call is going to counsel. In an earlier report, the special master noted, of the over 48,000 phone calls recorded there by Securus Technologies, more than 200 went to numbers identified as belonging to attorneys.
The district court judge also heard that, beyond what was happening at Leavenworth, other prisons and jails holding inmates facing charges in the district may also record phone, video or in-person lawyer-inmate communications. So the judge issued a district-wide injunction against those practices, reserving the right to modify the order if shown that detention facilities can perform safety monitoring without also capturing audio or video from attorney-inmate communications.
As you might expect, a group of Leavenworth inmates last month filed a class-action lawsuit against the CoreCivic and Securus, claiming the taping of their communications with attorneys violates state wiretap laws in Kansas and Missouri.
That wasn’t the first such lawsuit: last May, two former inmates in San Diego jails and a criminal defense lawyer filed a class-action lawsuit against Securus over recording of their lawyer-inmate phone conversations. A federal judge denied Securus’s bid to dismiss the case, rejecting its argument the plaintiffs lacked standing to sue. The company also settled a case brought against it for recording inmates calls in Austin, Texas in 2015.
Christopher Zoukis is the author of the Federal Prison Handbook (Middle Street Publishing, 2017), Prison Education Guide (Prison Legal News Publishing, 2016) and College for Convicts(McFarland & Co., 2014). He regularly contributes to The Huffington Post, New York Daily News and Prison Legal News. This article is partially adapted from the Federal Prison Handbook. He can be found online at PrisonerResource.com