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What the hell is a Scalawag?
Jails and prisons are among the least visible, most vulnerable frontlines of the COVID-19 crisis.
Incarcerated people are particularly at risk, as they live in close quarters and can't limit their interaction with staff who travel in and out of the facility each day. Facility conditions are often unsanitary and basic hygiene supplies are scarce, making it impossible for prisoners to protect themselves from the virus.
But within this public health crisis, a deeper crisis is emerging: the erosion of constitutional rights of accused and incarcerated people.
In New Orleans, the parish jail has been one of the hardest hit facilities in a city at the epicenter of the pandemic. The Orleans Justice Center, run by the Sheriff's office, confines over 800 people in custody. Many are only there awaiting trial and unable to afford bail. In late March, two people at the jail tested positive for the novel coronavirus. By the end of April, 125 detainees, 70 staff members, and 13 of its healthcare workers had tested positive, and two staff members had died.
As prisoners fall ill, they are simultaneously losing access to legal support, one of their most important lifelines.
"It's all a disaster, really," said Lindsey Hortenstine, Director of Communications and Development at the Orleans Public Defenders office.
According to Hortenstine and defense lawyers, some public defenders are struggling to communicate with their clients inside the Orleans Justice Center because of restrictions imposed by the Sheriff's office.
This could be a violation of the Sixth Amendment.
The Sixth Amendment guarantees accused people the right to legal counsel and a speedy, public trial. This is the amendment that drives the work of public defenders who serve clients who can't afford a lawyer on their own. It also makes court proceedings public and ensures that juries are part of the judicial process.
"Many, if not most prisons and jails have ended in-person visiting and that's probably a good idea from a public health perspective," said David Fathi, Director of the National Prison Project at the ACLU.
"But the fundamental right to communicate with counsel still has to be accommodated. And we've been hearing a lot of complaints about attorneys across the country having difficulty communicating with their clients in this current environment."
Beginning mid-March, the Orleans Justice Center prohibited on-site visitation. Prisons like the Louisiana Correctional Institute for Women adopted similar policies.
This policy is in line with a lot of public health measures taken by similar institutions, but it also means that communication with inmates is now exclusively facilitated through phone calls. (Teleconferencing on-site may become available as the city phases into re-opening.)
Regular phone calls to and from prisoners are usually recorded. But defendants have a right to confidential communication with their attorneys, so jails and prisons have had to adapt. Some are failing to effectively make that change.
Attorneys had to contact the Sheriff's office, fill out an affidavit, and provide a landline number–mobile phones were not permitted.
"It takes so much for you to actually find how you can have this attorney visitation without it being recorded," said Sade Dumas, executive director of the Orleans Parish Prison Reform Coalition (OPPRC).
"You dig through the website, and go through the sheriff's legal counsel, and it's on the very last page, actually at the bottom of this page."
In order to call clients on a secure line at the Orleans Justice Center, attorneys had to contact the Sheriff's office, fill out an affidavit, and provide a landline number–mobile phones were not permitted. Since many attorneys are required to work from home while sheltering in place, they are away from an office landline, meaning they only have access to their cell phones.
Hortenstine said the Public Defender's Office worked with the Sheriff's office to change the existing protocol to accommodate for situations complicated by the growing pandemic, and by the end of March, cell phones were permitted. But documentation obtained by Scalawag shows that some attorneys were still required to sign affidavits that said only landline phone numbers would be allowed for confidential communication as late as April 27. It appears that while the Sheriff eased this restriction, the change was not consistently enforced.
Dumas said that OPPRC is now collecting data on whose requests are being accepted and denied.
"The program can only be used by attorneys, not paralegals, not investigators or anyone else," Dumas said. That flies in the face of legal precedent; paralegals also have the right to confidential communication with clients.
Orleans Public Defenders set up a forwarding hotline to help avoid complications as more lawyers started working from home.
Several lawyers shared private email correspondence with Scalawag showing that wardens of Louisiana prisons rejected their requests to speak with clients.
"We have accounts with Securus so clients can call the office and we pay for them," Hortenstine said. Securus is the platform which facilitates paid phone calls at the jail for those incarcerated. Public defenders pay for these calls on their accounts so that their clients can contact them from inside the jail at no personal cost.
"And now we have a hotline that we've put up and it's manned every day from nine to five, but then it was like trying to get that to go through and be approved was a whole ordeal."
Even when they meet all of the requirements, some attorneys' requests to speak with clients are still being denied.
Several lawyers shared private email correspondence with Scalawag showing that wardens of Louisiana prisons rejected their requests to speak with clients. They asked to keep their names private for fear of retaliation. Hortenstine confirmed this had been an issue for some public defenders.
The Louisiana Correctional Institute for Women declined repeated requests for comment.
Phil Stelly, public information officer at the Orleans Parish Sheriff's Office, said that no attorney had brought the issue of phone call denials to his attention. He said that while phone calls are typically monitored, there are processes in place for lawyers to seek confidential communication. He added that the jail was giving inmates within the facility two free phone calls because of the crisis.
When pressed about the onerous process to approve secure phone calls, Stelly said he would look into it.
Even when phone calls are approved, attorneys may be wary of discussing sensitive information with their clients over the phone for fear that it could impact their client's case. Though the jail is supposed to provide a secure and confidential line, in 2018, Court Watch NOLA found that the Sheriff's office had been recording and archiving phone calls between jailed people and their lawyers, then sharing those recordings with prosecutors.
The Orleans Sheriff's office also has a contract with Securus Technologies which provides phone and messaging capabilities to the jail. The contract with Securus, as reporting in The Appeal revealed, allows for the Sheriff's office to track the location of the phones people used to call jailed friends, family members or clients.
Lack of confidential communication with clients is an immediate concern for public defenders not just because it is a violation of a constitutional right and could have long-term adverse effects on the outcome of their clients' trials, but also because it limits insight into what is happening inside jails and prisons.
"Prisons are black boxes," Fathi said. "They're not subject to the kind of transparency and oversight that other government agencies are. Contact with attorneys is an important form of oversight because attorneys, unlike most other people, have the right to communicate confidentially with incarcerated people. And they can learn very important things about misconduct, neglect, and abuse."
Fathi's comments show that the crisis response to COVID-19 presents myriad challenges to the Sixth Amendment, which ultimately seeks to ensure a free and fair justice system. Adaptations made during this pandemic could threaten that.
Court proceedings have either been halted for the time being, preventing promised expediency, or moved onto private platforms like Zoom, prohibiting the public from witnessing these cases. And state budget cuts in response to the crisis have threatened the funding of the Orleans Public Defenders' office which has been forced to furlough staff until mid-summer.
"What becomes clear is the inequities in our system, the legal system and in our larger community."
"The fact remains [that] we are the only entity within [Louisiana's] criminal legal system that is in this situation right now," Hortnestine said. "No one else is facing an almost million dollar funding shortfall. No one else is furloughing their staff."
Though everyone interviewed acknowledged that the public health crisis demanded immediate adaptations, they also all worried that changes made without appropriate care and thoughtfulness might have longterm effects on the rights of detained people.
"What becomes clear [are] the inequities in our system, the legal system and in our larger community," Hortenstine said.
"What we're thinking about and planning for, is how do we make sure that the things that are necessary now, but ultimately not ideal, don't remain so. How do we prevent a constitutional crisis?"
This article has been updated to reflect the fact that in March, The Orleans Parish Sheriff's Office made a policy change to allow the use of cell phones in confidential calls between lawyers and clients, and that after the policy change went into effect some lawyers were still required to sign affidavits stipulating that only landlines are allowed.