Last week the Department of Justice announced some seismic changes around the federal prison system. Obama’s DOJ said it would stop contracting with private prisons, a decision that will reduce and eventually phase out the federal government’s reliance on these facilities.
The move was based largely on an inspector general’s report that found that private prisons are more costly and lead to more violence than federal prisons. Among other problems, the IG report noted that disturbances in private prisons have led to “extensive property damage, bodily injury, and the death of a Correctional Officer” in recent years, making specific reference to a riot in a Mississippi facility in 2012 in which 20 people were injured and a guard was killed.
Amid this news, it was easy to miss the story out of the Leavenworth Detention Center in Kansas, in which a private prison system appears to have been committing a broad and systematic violation of the constitutional rights of its inmates. That federal private prison, operated by Corrections Corporation of America, was secretly videotaping conversations between prisoners and their lawyers and also allegedly recording audio of some phone calls between prisoners and their attorneys, then handing over some of the information from those recordings to state prosecutors. Corrections Corporation of America, which manages 85 facilities all over the country, appears to have basically been engaging in a widespread fishing expedition for evidence gleaned from secret videotapes—evidence they then handed off to prosecutors without the knowledge of prisoners nor their lawyers.
The startling existence of the video recordings surfaced earlier this month in connection with seven people charged in a sprawling contraband meth ring within the prison. The prison turned over some tapes to comply with a grand jury subpoena.
A private attorney, Jacquelyn Rokusek, with a client implicated in that case was shown the taped conversations by federal prosecutors seeking to prove she had a conflict of interest. She then reported the tapes to the Federal Public Defender’s office, which represents about 75 clients at the Leavenworth facility. In July, the U.S. attorney’s office said that the surveillance footage they’d obtained showed some attorney-client meetings but that audio had never been recorded. The public defender’s office disputes that. But even if there were no audio, Rokusek noted in a motion to halt the recordings, “documents we review with our clients, how our clients react to those documents, and the notes taken by client and counsel are open to government inspection and review.” This in and of itself would violate attorney-client privilege, she contends.
Peter Joy, who teaches criminal law and legal ethics at Washington University in St. Louis, says that for constitutional purposes it wouldn’t matter that the video recordings may not in fact contain any sound. He noted that confidential communications between a client and her attorney are not limited to verbal discussions; they can include written statements and even those acted out in silence. “Even if the tape showed only the back of the prisoner and the lawyer’s face, it can still be confidential,” Joy told me. “Confidential communications can include a client’s demeanor and just the fact that he appears very upset may violate confidentiality.”
CCA takes the position that this kind of video recording is “commonplace at detention facilities across the U.S.” The company told the Associated Press that the recordings didn’t contain audio and that the monitoring videos were taped for the safety of inmates, attorneys, and the facility. That wouldn’t explain why they were recorded, preserved, and shown to prosecutors.
Additional evidence has since surfaced regarding taped phone calls at the prison (CCA said it does not record phone calls). Dan Margolies reported for the Kansas City, Missouri, NPR affiliate that the prison has allegedly been recording multiple calls between prisoners and their attorneys. At a hearing, defense attorneys alleged that taped phone recordings were also turned over to the U.S. attorney’s office and submitted a list of nine inmates whose calls they say had been recorded. (The Intercept has done a series of damning investigative reports on widespread recording of telephone calls in prisons).
On Aug. 10, U.S. District Judge Julie Robinson entered an order directing prosecutors to turn over to the court all of the video they had obtained and to halt any video or audio recordings at prisons in her district, which includes the states of Kansas and Missouri. She also stated that she plans to appoint a special master to investigate the collection and distribution of the recordings. Late last week another federal judge, U.S. District Judge Stephen Bough, entered a similar order halting all facilities in the Western District of Missouri from recording any meetings, video conferences, or phone calls between attorneys and their clients, unless authorized in advance by a federal judicial officer.
The Sixth Amendment protects the right to counsel and that right turns on the confidentiality of a client’s communications with his or her attorney. Anything that might chill the candor of such communications could be a serious violation of the Sixth Amendment. On its website, CCA announces that it protects the confidentiality of attorney-client visits—but that did not seem to be the case here. Professor Joy says that if what’s alleged has been happening, that would be a substantial constitutional violation.
While CCA may take the position that everyone knows most facilities videotape all attorney-client meetings, the facts of the Leavenworth scandal suggest otherwise: “Nobody knew,” Joy said. “The public defenders didn’t know; the judge didn’t know. Even some of the people in the U.S. attorney’s office didn’t know.” He added that even if only some of the conference rooms were taping attorney-client conversations, there were no signs posted anywhere suggesting that such monitoring was taking place at all.
When push comes to shove, noted Joy, not every country is dedicated to the proposition that protecting attorney-client confidentiality truly matters. “There are countries that have no respect for the accused’s privacy and confidentiality,” he noted, “countries where someone on behalf of the government can secretly film interactions between clients and their lawyers and then secretly turn it over to the government.
“But this is so far outside of what’s expected and allowed in the constitutional democracy we have,” he added. “That’s what’s so shocking.”
The federal prosecutors in the Leavenworth case have taken the position that any special master investigation will be costly and lengthy (there are hours of tapes) and that there is simply no evidence that any wrongdoing has happened. Perhaps the greatest worry for those concerned with civil liberties is the fact that CCA seems to have taken the “everybody does it” defense to mean that it did nothing wrong. The fact that nobody knew that everybody does it? That may well prove the most worrisome part of all.