Jail Policies Restrict Legal Representation in North Carolina

Public defenders in North Carolina’s most populous county say recent jail reforms have serious effects on legal representation. They say formal policy changes to phone calls and in-person visitation have rendered communication with incarcerated clients — the majority of whom have not been convicted of a crime — more difficult, and impeded relatives and attorneys’ ability to build the strongest cases possible.

The trend began unexpectedly in October 2016, when the Mecklenburg County Sheriff’s Office put heavy restrictions on who could enter the two jails it oversees. While attorneys were exempt from the change, the office banned jail visitation for family members and friends, replacing in-person family meetings with video conferencing facilitated by Global Tel-Link. The visitation policy was spun as a way for defendants to experience life outside jail walls while unburdening staff. But several public defenders who spoke to In Justice Today say the policy hurts case-building as well.

According to Chief Public Defender Kevin Tully, attorneys with multiple clients are unable to meet with the same client every day, so relatives often filled that void. In the past, family members could pass messages between defendants and lawyers, walk through the facts of a case, and strategize about pending charges — all of which helped defendants to feel more comfortable with their cases and confident in their legal representation. Video visitation has undermined some defendants’ ability to speak “safely” and “confidentially” with family members about their cases, says Tully. Some people behind bars feel as though they have less privacy when talking to a screen in a room full of people. This new form of communicating makes it hard for clients to be forthcoming with information, he says.

To make matters worse, a $12.50-per-chat price tag has made video visitation cost-prohibitive for poor detainees. If people in jail can’t afford a video call, they can’t afford to have critical conversations about their cases with their loved ones. The technology is also shoddy and unreliable, a former detainee reported to local news site Creative Loafing Charlotte. If equipment doesn’t work or a connection is lost, relatives can’t be a lifeline. (A community organizer, who’s allowed to enter the jail in her capacity as a volunteer, also told In Justice Today that the videos don’t always work, calling the ban on in-person visits “cruel and unusual.”)

Attorneys have trouble establishing trust with their clients without the assistance of relatives to pass messages back and forth. “It has a real impact on clients’ relationship with us,” said Catherine Hoffman, public defender who works on misdemeanor cases in the county. “It makes [defendants] feel that much more isolated and frustrated.”

Thanks to a recent policy shift, attorneys’ direct access to defendants has been limited as well. In late August, local public defenders were informed that they can no longer call defendants at the jail housing women and juveniles. Now, they can only talk to clients who call them. The freedom to call defendants served as a convenient form of communication for attorneys. The facility, Jail North, is approximately 25 miles away from the public defender office, and attorneys often have to wait more than half an hour for jail officials to bring out clients, says Hoffman. Visiting hours also coincide with court hours, which makes it even more difficult to meet in person.

Phone calls allowed for a fast, consistent way for attorneys to provide case updates, check in regularly, and establish trust with clients. All they had to do was schedule a phone call through the sheriff’s department, and the client would be available at the designated time. With the option for incoming calls off the table, it’s harder to relay critical information and ensure consistent communication, says Hoffman.

Another public defender, Christine Nelson, quickly learned how damaging the new phone call policy could be — especially for young people. Both the video visitation and phone policies apply to 16 and 17-year-olds who are automatically charged as adults under state law. (North Carolina will stop charging people under 18 as adults in December 2019.) Before scheduled attorney calls were eliminated, Nelson developed a strong rapport with a defendant who has been detained on several felony charges since April and celebrated his 17th birthday behind bars. Although the teenager has some contact with family members, he was homeless and under the custody of the Department of Social Services at the time of arrest. His lawyer was the only person he had regular contact with. With this in mind, Nelson had been scheduling weekly check-ins, even when there were no case updates. She wanted the teenager to know she was invested in his well-being.

Then, the phone policy changed and Nelson was unable to call the teenager as scheduled. After she missed their appointment, the defendant tried to call her for a week, leaving multiple voicemail messages each day. But Nelson was never able to answer those calls. She was also busy, due to her packed court schedule. A week passed before she had enough time to drive to the jail to explain the new phone policy. She had to assure the teenager that she had not abandoned him — that she wanted to talk to him and wasn’t ignoring his calls. Since then, Nelson has visited a handful of times, but the two don’t talk nearly as much as they used to.

Last week, after months of waiting, the teenager accepted a plea deal. He’s preparing to be transferred to a state prison, where he’ll be detained until March. The silver lining: He will now be able to see his family in person. “[He] lit up when he learned he may have the chance to touch his dad,” Nelson said.

Beyond the formal changes to visitation and phone call policies, some public defenders say they have also been turned away from the jails for random, seemingly-innocuous reasons. Despite her frequent jail visits, Hoffman says she was prevented from entering Jail North because a photo on one of her ID cards was faded. The photo was still visible, and she was carrying her bar card and public defender ID, but jail staff wouldn’t budge. Hoffman has subsequently begun to compile stories about colleagues who were turned away in similar fashion. Some colleagues have allegedly been turned away for wearing black jeans on the weekend — accused of wearing leggings, a banned item of clothing. Nelson also says attorneys have been instructed to leave before visiting hours are officially over.

The sheriff’s office did not provide comment by the time of publication.

Mecklenburg is far from the only county establishing jail communication policies that complicate the process of building a case. According to David Fathi, director of the ACLU’s National Prison Project, some barriers to communication between incarcerated clients and attorneys are to be expected due to the nature of detention. Nevertheless, jails around the country have implemented policies that make it all but impossible for lawyers to offer the effective representation guaranteed by the Constitution.

Jail officials have recorded phone calls and shared the recordings with law enforcement officers, who then used information shared during those calls against defendants. Attorneys have been prohibited from sending mail to their clients. In-person visitation can also be less than ideal, because defendants and visitors are often separated by Plexiglas barriers and forced to talk over the phone. But the phones don’t always work, and it is difficult for lawyers to share and explain legal documents when the glass is in the way, Fathi says.

“Our entire legal system is based on the right to legal representation for people who are charged with crime,” Fathi said. “There’s really no benefit to anyone to making it more difficult, more onerous, more expensive for lawyers to represent their clients.”

Nevertheless, lawyers in Mecklenburg County are struggling for these very reasons — and defendants are paying the price.

“People who are in jail obviously shouldn’t have less communication from their attorneys than people who are out of jail,” Hoffman said. “But I think in a lot of cases, that’s what they get.”

Thanks to Burke Butler.