According to a 100-day review of practices related to access to counsel at federal pretrial facilities that the DOJ published July 20, detained defendants face hurdles in communicating with their attorneys, particularly in arranging meetings with their lawyers and in getting access to discovery material.
The internal study focused on the 10 stand-alone federal pretrial detention facilities that the Bureau of Prisons operates nationwide. Based on the findings, the DOJ recommends that BOP administrators enhance processes by which detainees and their attorneys can arrange in-person visits, conduct confidential calls and exchange written correspondence. Recommendations also aim to improve detainees' computer access to discovery records, as well as access to counsel in emergency situations and for needy populations.
Colin Fieman, the federal defender for the Western District of Washington, which includes one of the audited federal facilities, called the recommendations "very helpful" and said the review was a well-meaning effort to engage with the federal defense bar on access issues. Fieman was one of the public defenders consulted as part of the study.
"I think the recommendations are going to be well received and appreciated by the defense community," Fieman told Law360 by phone. "But, of course, you know what remains to be seen is how quickly and how effectively those recommendations will actually be implemented."
Bureau of Prisons Director Colette S. Peters told Law360 in a statement that the report signals the bureau's commitment to ensuring access to counsel.
"As we move forward with operationalizing the recommendations outlined within the report, we do so knowing we need consistency and clear direction for our employees, those in our care and custody, and counsel," Peters said.
The review, led by officials with the BOP and the DOJ's Office for Access to Justice, involved external stakeholders, including formerly incarcerated individuals and the offices of federal defenders such as Fieman. The findings identify areas where inconsistent policies have hindered defendants' ability to consult their attorneys.
For instance, the review found incorrect application of facility dress codes has delayed and, at times, prevented attorneys from visiting clients. Attorneys were denied visitation for not wearing a suit jacket, and a female attorney was prohibited from visiting clients because she had a white T-shirt under her suit jacket. Suspects in custody described unpredictability and delays that harmed the attorney-client relationship and discouraged them from seeking in-person visits, the report says.
To address those issues, the advisory group that conducted the review recommended standardizing in-person visit policies. It also advised piloting a calendaring system that would allow attorneys to schedule visits in advance, starting with one detention center and possibly extending the system to all facilities.
In pushing for the calendaring system, defense attorneys emphasized that it should not eliminate unscheduled in-person visits, but should rather offer an additional option for arranging meetings between attorneys and clients at critical moments, such as when they review plea deals.
While eight out of the 10 BOP facilities provide confidential telephone lines that detainees can use to call federal defenders, the advisory group recommended allowing the lines to be used to contact private attorneys, as well.
The report also recommended an overhaul of the BOP's systems for letting detainees access discovery material. During meetings with officials as part of the review process, attorneys complained that their clients faced obstacles in obtaining discovery material that is essential to their defense.
All BOP pretrial detention centers have discovery computers available in visiting rooms, but sometimes the computers don't work, and only five facilities allow attorneys to bring in their laptops, the report says.
For example, issues with computer hardware and software at Metropolitan Detention Center in Brooklyn, New York, arise so frequently that judges have increasingly issued orders for the facility to allow laptops containing discovery review programs and discovery material, according to the report.
The advisory group recommended changing the current laptop policy, under which wardens "may permit" the use of laptops when in-house computers don't work properly, to one where wardens "shall" permit use. The recommended policy also would prohibit blanket bans on laptops. The report also advises upgrading and maintaining the facilities' existing discovery equipment through a process that would include conducting a regular inventory of each device.
Fieman told Law360 that access to medical services and accommodations for populations in need is another challenge.
"We have clients, for example, who are having difficulty getting prescription glasses. They can't review the discovery that we're sending to them," Fieman said. "That is directly an access-to-counsel issue because it makes it very difficult to consult about their cases."
In some districts, eyeglasses are taken away from defendants at the time of their arrests, and getting the glasses back or obtaining new ones requires legal intervention, several attorneys who took part in the review said, according to the report.
The advisory group urged wardens to consider allowing detained people to receive eyeglasses from outside sources and to "enhance" access to prescription and reading glasses where necessary to review discovery.
U.S. Deputy Attorney General Lisa Monaco ordered the review in March, on the 60th anniversary of the U.S. Supreme Court's decision in Gideon v. Wainwright
, which recognized the constitutional right to legal counsel for people charged with felonies."I am grateful to the advisory group for the time and expertise that it dedicated to this work," Monaco said in a memo July 20 that embraced the report's recommendations last week.
Monaco said all BOP facilities have returned to regular attorney visiting hours, dropping limitations adopted in response to the COVID-19 pandemic. She gave BOP's director 45 days to come up with a work plan to implement the recommendations and ordered the advisory group to report to the Justice Department every 90 days.
Rachel Rossi, director of the DOJ's Office for Access to Justice, told Law360 in a statement and by phone the review was "historic" because it marked the first time the BOP and her office had partnered in assessing access to legal representation.
"As a former county and federal public defender, I've seen the impact of barriers to access to counsel and the importance of meaningful access to clients in fulfilling the promises of the Sixth Amendment," Rossi said in a statement. "Improving access to counsel helps to reduce court delays, helps to ensure that people's rights are protected, and promotes the integrity and accountability of the criminal justice process."
Monaco said in her memo that the Office for Access to Justice will designate an adviser within BOP's central office to serve as a point of contact on issues related to access to counsel. The report also called for BOP to partner with ATJ to establish points of contact inside individual detention centers who would have full-time responsibility for monitoring access-to-counsel practices inside the facilities.
Fieman said severe and persistent understaffing is a critical hurdle to accessing legal representation for detained suspects. Staffing issues were not within the scope of the review, but the report acknowledged them as a major challenge.
High turnover among staff and a lack of personnel have ripple effects on other aspects of access to counsel that ultimately impact people who are detained, Fieman said.
BOP staffers who have been assigned to their facility's front desks for some time know defense attorneys, their clearance and what equipment they can bring in when they meet with their clients, Fieman said, adding that visits go smoothly in most cases. However, he said, when knowledgeable staffers leave and others who are less familiar with protocols are brought in, attorneys face barriers.
"You have situations where the rules are being applied inconsistently. We've had difficulty getting people in at times," Fieman said. "The underlying complication of staffing and training is not something that I think there's going to be a short-term solution to."
Rossi of the DOJ said understaffing "is a huge piece of what we have to solve," but she pointed to some of the recommendations in the report as signals that the Bureau of Prisons is working to recruit more personnel in an industry where there's great competition for staff coming from other detention centers, both state and local.
Currently, the bureau offers an onboarding bonus of $10,000 or 25% of the initial salary, whichever is greater, to attract new recruits. The Justice Department has requested funding from Congress to hire 2,250 new BOP staff members through the end of fiscal 2024, including $109 million for new hiring and retention, the report says.
Meanwhile, as a result of the debt ceiling bill that President Joe Biden signed in June, federal defender offices across the country face budget cuts that could lead to the shedding of about 800 attorneys, about 10% of the lawyer head count.
"We are bearing the brunt of these budget cuts, certainly, compared to the Department of Justice, which is continuing to hire and, as far as we can tell, is not facing any significant funding adjustments," Fieman said. "It's really pretty dramatic."
In a letter last week to U.S. Sen. Patty Murray, D-Wash., who chairs the U.S. Senate's committee on appropriations, Fieman said the funding shortfall could "erode justice" by diminishing the quality of representation for both innocent and guilty defendants in federal court.
On Wednesday, 14 civil rights and prisoner advocacy groups urged congressional leaders to increase funding for the federal indigent-defense system, saying the budget cuts will have a ripple effect across the federal criminal legal system and pointing out that 90% of people charged with federal crimes are too poor to hire a private attorney.
"These proposed budget cuts will simply create chaos. Federal defender offices will be forced to turn down cases that they would ordinarily accept," said the letter, signed by the American Civil Liberties Union, the NAACP and The Innocence Project, among other organizations. "The human and administrative impacts of this would be severe."
--Editing by Amy French.