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Texas Extends 6th Amendment Right to Prisoners: Confidential Attorney Calls Allowed

On December 14, 2001, Texas finally released its stranglehold on the right to confidential phone calls between prisoners and attorneys. Texas had been the only state that monitored attorney phone calls. Even then the American Civil Liberties Union had to pry every last finger off the receiver.

In a letter dated October 16, 2001, Yolanda Torres, Litigation Director for the ACLU of Texas, pointed out that when questioned about its abusive policy regarding the confidentiality of phone calls between prisoners and their attorneys TDCJ had dodged the issue for over a year. She outlined in depth the various ways in which Texas was out of step with the rest of the nation's state and federal prisons. Even conservative states like Florida, Louisiana, Oklahoma, and Oregon have long forbidden prison officials to monitor properly placed phone calls between prisoners and their attorneys.

Carl Reynolds, Esq., Special Counsel to the Executive Director of TDCJ, tried to justify the draconian practice under the thin guise of prison security. His arguments included the need to verify an attorney's identity; the need to guard against non-legal conversation; and the danger that an attorney might engage in criminal activity.

However, Ms. Torres quickly pointed out that Texas' exaggerated response was a violation of Constitutional safeguards guaranteed under Turner v. Safely, 482 U.S. 78 (1987) and that methods were already in place to prevent these security concerns. She also pointed out that the role of attorney is considered an office of the court, bound by professional standards." Texas policy was tantamount to treating lawyers as criminals.

Ms. Torres maintains that Texas' antiquated policy adversely affects the timeliness, effectiveness, and quality of communication between prisoners and their attorneys. [C]onfidentiality is a bedrock of the attorney-client relationship," she said. In order to represent a client effectively he needs to know that our communications are going to stay between us.

Eventually, Reynolds and Texas relented under Ms. Torres' barrage. However, even the new policy demonstrates the State's reluctance to comply. One clause of the newly revised policy gives the warden discretion to deny confidential phone calls if it appear[s] to be an abuse of TDCJ policy by the attorney requesting the communication." Ms. Torres worries that the wording is designed to give wardens enough wiggle room to deny phone calls." Reynolds agrees. If there's going to be an issue, that's going to be it," he said.

Sources: Prison and Jail Accountability Project, Dallas Morning News

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