More on phone profiteering at county jails and the right to counsel

I've been especially pleased with the progression of the debate begun in the comments to this Grits post, and continued here and here, on the subject of inmates' access to phones in prisons and jails.

Yesterday I asked if jail profiteering on phone calls to attorneys retards offenders' right to counsel? Blogging at the Austin Criminal Defense Lawyer, Jamie Spencer responded,

I dare say he’s right, but unfortunately, it probably falls into the “there’s not much a lawyer can do about it” category. Trust me, no Texas Appeals court will ever reverse a conviction based on it. Perhaps a class action lawsuit on behalf of those families being bilked would be the right tack. But, bearing in mind that I don’t practice civil law, I doubt they would have the equivalent of standing to assert their incarcerated family member’s criminal procedure rights.

I'm no lawyer, but I agree with Jamie that Texas courts are unlikely to overturn any individual conviction based on such a cause of action. Like him, I have to wonder if some sort of class action lawsuit, probably under federal law (Section 1983), might get the issue into court?

Probably jail inmates themselves, not family members, would be the clients that attorneys would try to certify as a "class." Given many counties' regressive bail policies, it'd be easy to find clients who could only communicate to their lawyers via collect phone calls. You wouldn't have to limit the judgment to the cost of the phone calls, because the real harm is the denial of the constitutionally guaranteed right to counsel: What's the price tag on that?

What we need is some Big Gun trial lawyer to test the case out, maybe in Dallas or Houston another large city (see update below), where jail inmate populations are big enough - and potential judgments high enough - to make it worth their while. (John O'Quinn, Fred Baron, are you out there?)

Counties have plenty of discretion to solve this problem before a civil rights lawsuit orders them to. An email from Russell Hunt, Jr., president of the Austin Criminal Defense Lawyers Association, brings the news that Travis County is pioneering a new system to allow jail inmates free phone calls with their lawyers. Wrote Hunt:

I read the comments about counties' profiteering on collect jail phone calls, which I think are spot on. ...

But the real reason I'm writing is to brag on the Travis county sheriff's office. We have worked with Major David Balagia to set up a free attorney phone call list. The way it works is that I have provided the office numbers of about 250 local criminal lawyers, mostly ACDLA members, and Securus, the jail phone provider, has put those numbers on the "free call list." Calls from jail to those numbers are free and unrecorded, but limited to 10 minutes duration, and can be declined by the attorneys' offices. Attorneys can call up to the jail and leave call-backs for inmates as well.

I am sure that Securus is not happy about the lost income, but the sheriff's department hopes to save substantially in transportation and visitation personnel costs. Not to mention the fact that attorneys should be able to more efficiently move cases and clients out of jail.

I am enthused about the program because any measure that increases the likelihood that attorneys will communicate more with their clients is a good thing in my book. Makes for happier clients, saves money for my ACDLA members, and helps to work out cases. Additionally because the calls are not recorded, there is even less of a dis-incentive to discuss the case on the phone.

If Travis County can implement that system, there's no reason others couldn't too. This whole issue of phone use by prison and jail inmates seems ripe for revisiting across the board.

UPDATE: I've not confirmed it, but an anonymous commenter on another string says Harris County has abandoned this practice: "Harris County had to kill this cash cow, probably due to lawsuit. All local calls are free from the jail now." If you know more details or have information about other counties' collect call practices, please let me know in the comments.