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If you’re like us, you’re wondering why there continue to be stories about Maine jails recording and listening to inmates’ calls with their lawyers. Not because this issue is unimportant — it looks like a pretty clear violation of attorney-client privilege to us — but because it seems so cut and dried.
Inmates have a right to attorney-client privilege. State law protects this right, even as it allows the interception of wire and oral communications by jail officials in other cases. So why, then, have some of these calls with attorneys been recorded and listened to?
Reporter Samamtha Hogan has chronicled this issue in detail at the Maine Monitor. After a months-long investigation, that news organization outlined in January how “Maine jails recorded nearly 1,000 calls from inmates to their attorneys at the Aroostook, Androscoggin, Franklin and Kennebec county jails” between June 2019 and May 2020. In some instances, attorney calls have been shared with police and prosecutors.
“The law hasn’t caught up with the facts,” defense attorney John Tebbetts told Hogan. “I don’t think anyone contemplated that there could be endemic levels of listening to phone calls.”
Prosecutors and law enforcement officials have said they don’t want information from these attorney calls. County officials who oversee the jails have said they haven’t intentionally recorded these calls. Gov. Janet Mills’ office has said she “believes that Maine state prisons and county jails must protect the confidentiality of privileged communications between an inmate and their legal counsel, a right afforded to them under the Constitution.”
And yet, this improper call monitoring still seems unresolved. Something needs to change to ensure that attorney-client privilege is protected in correctional facilities across the state, and to ensure there are consequences if that right is violated.
Rep. Thom Harnett, a Democrat from Gardiner, proposed a bill this past legislative session that would have taken several steps including establishing that detention facilities “may not intercept, record, monitor, disseminate or otherwise divulge any oral, written, telephone, video or electronic communication between a resident and the resident’s counsel” and creating a new Class C crime of unauthorized eavesdropping. It was amended, however, to instead create a 16-member “Committee to Ensure Constitutionally Adequate Contact with Counsel.”
“Privilege is a fundamental constitutional right and it is absolutely the responsibility of state government to ensure that those rights are protected and carried out. Those rights exist today. They exist whether this bill is enacted or not,” Harnett said in March as the bill was being amended, according to Hogan’s reporting.
That state should make sure there are sufficient and uniform processes in place to prevent violations of attorney-client privilege from happening in the first place in jails and other detention facilities across the state. And it should establish clear and meaningful penalties for when it happens.
“We can all agree that finding a balance between protecting attorney-client confidentiality and appropriate monitoring to ensure safety is key,” Maine Department of Corrections Commissioner Randall Liberty said while testifying neither for nor against Harnett’s original bill, noting the department felt some of it was overly broad and could have unintended consequences.
Finding a better balance might be complicated work, but the need for such a balance is clear. Most people seem to be in agreement on the end goal, the question is how to achieve it. That is where the committee comes in.
“Maine sheriffs are committed to identifying problems in any jail-related system and working with legislators to find solutions that protect the rights of our inmates, but in a way that does not jeopardize their fellow inmates and/or victims who deserve protection from additional harm,” Maine Sheriffs’ Association president and Somerset County Sheriff Dale Lancaster t estifi ed at the time against Harnett’s initial bill.
This new committee is an opportunity, for sheriffs and for all parties involved, to find a solution to this issue of phone calls and attorney-client privilege, and to ensure that the rights of inmates are protected. Through collaborative engagement, we’re confident this can be done in a way that doesn’t limit other permissible monitoring not involving attorney communications.
The question before the committee should be how to take action, not whether to take action. Because the need to do more to keep these communications between inmates and their lawyers private is obvious.