Even after incarceration, lawyers and prisoners may maintain correspondence. This communication often means phone calls or lawyers visiting their clients in person. Some correspondence has even taken place via sending letters though for sensitive matters the post office is often too slow to be practical. Though there are other methods of communication, many prisoners opt to email their lawyers.
Email is a popular method of contacting lawyers from prison. Phone conversations are common though phones are rarely available for the length necessary for a conversation with a lawyer. Mailing letters by hand is both slow, and not secure enough for many legal matters. As far as in-person visitation is concerned, it may make sense for a lawyer to visit a client in the local prison, but when clients are incarcerated far away, visiting becomes not feasible.
Though email sounds like a great reconciliation between all the issues with phone calls, post, and visiting, emailing presents its own issue. Email may solve the time and distance issue of post mail and visiting, along with the accessibility issue of phone calls, emails between lawyers and their incarcerated clients have been used in court.
In 2009, Vincent Fumo, a Pennsylvania state senator was sentenced to prison on federal corruption charges. After two years, Fumo’s emails sent out of prison were seized and used to extend his sentence. Initially, Assistant U.S. Attorneys John J. Pease and Robert A. Zauzmer argued for Fumo’s sentence to be tripled to 15 years. Pease and Zauzmer obtained Fumo’s emails, many slandering the jury that first convicted him, calling them "dumb, corrupt and prejudiced." Though the full sentence increase was not met, the emails were used to testify to Fumo’s character and lack of remorse, helping achieve a six-month extension on his sentence.
Defense attorneys and elected officials disagree with lawyer-client emails being subject to scrutiny: "These conversations are fundamental to the attorney-client relationship," says E.G. Morris, president of the National Association of Criminal Defense Lawyers. "They're fundamental to the Sixth Amendment right to counsel." Supporters lobby that emails should be included under client confidentiality though the opposition has concerns.
Many prison officials point out that prisoners are clearly warned that any email sent in or out of the prison are not private. James McGovern, a prosecutor with the United States Attorney's Office, says that defense attorneys should act according to the non-confidential email system, rather than demand the system be changed. In some cases, attorneys have been assigned to filter out emails to and from legal counsel from the oversight system. This proved to be too much of a burden to maintain and was quickly disbanded.
As email confidentiality is an issue of accessibility to legal counsel, client confidentiality should be extended to cover emails sent in or out of prison. As most other methods of communication are either impractical or inaccessible, email remains one of the most popular forms of correspondence. Restricting the methods of communication with their lawyers affects an inmate’s ability to seek legal counsel. The justice system is already broken; not keeping emails confidential perpetuates the barely functioning criminal justice system and hinders any hint of progress.
