A wide range of current practices and policies at the Alaska Department of Corrections (DOC) is stifling incarcerated people’s access to the courts, counsel, and legal resources. These practices make it more difficult for attorneys to represent incarcerated clients, particularly public defenders, private criminal defense and civil attorneys. DOC’s policies and practices also place attorneys at risk of violating ethical rules because of the challenges they create for lawyers communicating with incarcerated clients.
DOC has a legal and ethical obligation to ensure that incarcerated Alaskans have access to the courts, counsel, and legal resources. The following outlines the violations and legal concerns that the ACLU of Alaska and public defenders have reported over the past year and a half. Extensive details are included below the infographic.
Legal mail in DOC facilities
Mail is a crucial way for attorneys to communicate with their clients. Paper mail communications are especially vital for incarcerated clients with limited or no access to private phone calls, email, and the Internet. Delivery of legal mail is often slow, but a new policy implemented by DOC at many facilities has worsened the problems dramatically.
As described in a memorandum from the ACC Superintendent to facility staff and prisoners, effective in August 2023, all legal mail must be copied, and the originals destroyed in front of the incarcerated recipient. This new procedure interferes with the ability of attorneys to represent incarcerated clients in several ways.
The procedure threatens the confidentiality of attorney-client communications:
- Correctional staff have the time and ability to read through confidential materials during the copying and destruction process—undercutting the attorney-client privilege. Legal mail should only be screened for contraband. It should never be read by correctional staff.
- Copying legal communications can cause a digital version of confidential mail to be retained on the copying device or elsewhere in the possession of DOC. DOC has not confirmed any efforts to ensure against such retention of confidential material, to protect the confidentiality of scanned-in legal communications, or to limit access to confidential electronic files.
The procedure impedes clear and timely communication:
- Copying may deteriorate the mail’s legibility.
- Copying has resulted in irretrievable data loss, preventing the client from receiving communications from their attorney. For example, on at least one occasion, DOC staff copied only the front side of a double-sided document, after which the original double-sided document was destroyed and permanently lost.
- In several cases, this procedure caused a significant delay in getting mail to the intended recipient that an incarcerated person missed a court deadline.
- The destruction of originals makes it impossible for attorneys to send their incarcerated clients original documents via mail, requiring attorneys to take the time to make an in-person visit to deliver documents such as a signed affidavit, identification documents, or other materials received from the client.
The ACLU has confirmed this scanning-and-destruction policy is in place at Anchorage Correctional Complex East and West (ACC), Goose Creek Correctional Center (Goose Creek CC), Hiland Mountain Correctional Center (Hiland Mountain CC), Lemon Creek Correctional Center (Lemon Creek CC), and Spring Creek Correctional Center (Spring Creek CC).
DOC’s decision to read, copy, and then destroy original paper documents impacts the fundamental rights of incarcerated persons to privately and timely communicate with their lawyers without any compensating penological benefits.
DOC should abandon this policy and return to previous procedures where legal mail was opened in front of prisoners so that staff could check for contraband and then hand the mail to the inmate. While not perfect, this policy reasonably balanced institutional security concerns with the needs of incarcerated clients to communicate efficiently and confidentially with their lawyers.
Scheduling attorney-client calls and visits
To represent incarcerated clients effectively, lawyers must also be able to visit them in prison and speak with them in confidential phone calls. Visiting helps lawyers build rapport with clients and facilitates moving a case along expeditiously.
But visiting is not always possible or practical. Some clients are incarcerated far from the city where the lawyer works, and even when both the attorney and client are in the same town, visiting is substantially more time-consuming than a phone conversation. Interference or denial of the ability to conveniently schedule in-person visits and phone calls impairs a lawyer's ability to progress a case. Clients, witnesses, and the court system suffer from the resulting delays.
Despite the importance of attorney-client visits and phone calls, DOC has no streamlined way for lawyers to schedule attorney-client visits and calls, and procedures for scheduling these meetings differ at each DOC facility and are sometimes unnecessarily difficult. For example:
- At most facilities, appointments for telephonic and in-person visits must be made via email. For at least one facility with this requirement, Palmer Correctional Center (Palmer CC), the correct DOC employee to contact to schedule appointment changes based on which employee is working on a given day (information that attorneys do not know). This regularly results in slow or no response from a facility.
- At Point McKenzie Correctional Farm, an attorney must schedule a legal call via faxed request. However, the fax number is often busy, and no alternative is provided, resulting in attorneys being unable to schedule meetings with their clients.
- At Goose Creek CC, since July 19, 2023, in-person and telephonic appointments must be scheduled more than 48 hours in advance. This puts an additional strain on attorneys — particularly public defenders — and sometimes does not allow timely contact with clients to respond to case developments.
- Facilities vary widely in the hours they allow attorneys to visit or schedule phone calls and often limit hours in a manner that renders legal representation exceedingly difficult. For example, some facilities do not allow attorneys to schedule weekend calls with clients, which makes preparing for hearings in swiftly moving cases more difficult. Other facilities only allow in-person visits during non-court hours, making it difficult or impossible for attorneys to visit during regular work hours.
To ensure effective attorney-client communications, DOC should commit to a uniform, easy-to-use system for scheduling calls and visits and never require more than 24 hours notice.
Conducting in-person attorney-client visits
The privacy of in-person legal visits must be maintained to preserve the confidentiality of attorney-client communications. Yet, in-person visits are routinely disrupted by correctional staff. Even more troubling, prison staff sometimes harass or punish inmates who have received a visit, which understandably results in inmates’ reluctance to participate in future visits, no matter how important they may be to their representation.
Recent examples of abuses include:
- At Wildwood Correctional Center (Wildwood CC), the ACLU Prison Investigator, an attorney, observed correctional officers (COs) asking several incarcerated people why they met with her. One of these incarcerated people had their legal paperwork confiscated by the COs during the legal visit and did not return until several hours later. After these visits, several of the incarcerated people were held alone in a room for a while and questioned about the purpose of the Investigator’s visit.
- At ACC, COs refused to allow a scheduled legal visit to proceed and instead required the attorney and client to meet in a regular secure visit cubicle. Because this space requires parties to use a recorded telephone to communicate in normal speaking tones, the attorney and client had to yell through the glass to avoid being recorded and thus attempt to preserve attorney-client privilege.
- At ACC, COs refused to allow a client to meet with their attorney because the client was wearing religious headgear. The client was forced to remove his religious headgear while walking through the facility to the attorney visitation area.
- At ACC, after a legal visit with the ACLU, a client was stripped and held naked in a cell for an hour. When the client asked what the facility was looking for, the CO responded, “Anything.”
DOC should commit to training personnel to respect the confidentiality of attorney-client visits by not interfering and to policies that condemn actions that appear to be retaliation for having an attorney-client visit.
Restricted access to counsel and the court during “detox”
Upon being booked into jail, every person is asked about their drug and alcohol use and whether they have any substances on their person. If an individual reports a substance use issue or drugs on their person, they are placed in a “detox” cell where they are stripped naked, given a bucket, and instructed to defecate three times before being released to general population.
Clients sometimes spend multiple days in the detox cell. During this time, they are denied access to legal calls, visits, and transport to court for hearings.
These restrictions on individuals in detox cells interfere with the inmates’ rights to access counsel and the courts. Unless a person is actively detoxing and is medically unable to participate in legal calls or court proceedings, DOC should develop policies that allow a person in detox to place or receive a legal call and to participate telephonically in scheduled court proceedings.
Other restrictions on participation in court proceedings
Attending court proceedings is a fundamental right for those accused of a criminal offense. But DOC’s policies and procedures routinely deny the accused access to in-person and telephonic court hearings. Two examples of problematic practices are described below:
- Inmates report that Goose Creek CC requires them to show the scheduling docket from the CourtView website in order to call into a hearing. Because inmates do not have internet access, they cannot provide the docket.
- Incarcerated individuals frequently are transferred to prisons far from the courthouse where later proceedings in their case will be held. This occurs particularly (but not exclusively) for post-sentencing proceedings, such as post-conviction relief cases. To attend subsequent court hearings in person, the inmate must be transferred. For inmates at Goose Creek CC, Spring Creek CC, and Wildwood CC, at least, when they are scheduled for a transfer to attend court, they are required to fit all their possessions into two file boxes. Anything that does not fit in the boxes is confiscated and not returned, even if the inmate is expected to return to their prior facility immediately. Confiscated and destroyed property may include legal documents. If the inmate is employed, they lose their job if transferred for a court appearance. As a result of these policies, many inmates decline to appear in person for hearings, even if they would otherwise choose to.
DOC should revise its policies to avoid putting unnecessary barriers in the way of inmates who want to participate in hearings in their cases, whether telephonically or in person. It should also ensure that its policies do not penalize the accused for exercising their right to access the courts.
Limited access to law libraries and legal computers
The law recognizes that incarcerated people require access to functional law libraries (Bounds v. Smith, 430 U.S. 817, 828, 1977). The resources in the law libraries allow inmates to assist in their representation or to represent themselves in criminal cases, post-conviction relief, and civil matters like divorce and custody proceedings or suits to challenge the conditions of their confinement. Access to computers is also necessary when inmates need to review digital discovery.
Failure to respect inmates’ recognized constitutional right to access the law library not only hurts the inmate who wants or needs to represent themself, it also impairs an attorney’s ability to represent a client effectively: attorneys often need the client to review documents and other materials, and attorneys benefit from clients who have a chance to do their own research, so they can better understand the advice the lawyer gives them or even discover a case or a rule that the lawyer has not found for herself.
Most prisons no longer provide fully stocked libraries with books. Instead, they give the inmates some access to online legal resources. However, such access is only available in the library (unlike a book that might be checked out for reading in a cell).
Per DOC policy 814.02, facility superintendents are granted broad discretion when setting up law libraries and providing access to the law library and computers for legal purposes. This discretion can be abused. For example,
- Inmates at Palmer CC, Wildwood CC, and ACC all report they cannot access a law library.
- Inmates at Goose Creek CC have recently reported not having access to a law library. When access was previously available, law library time was included in the hour of recreational time for pretrial individuals (who now make up more than half of the facility’s population). This recreational hour is also the timeslot when inmates must obtain commissary items, go outside, shower, and practice religion.
DOC should have statewide policies that ensure that all incarcerated individuals have reasonable access to meaningful law libraries, as is constitutionally required. Incarcerated persons should not have to give up other facility rights and privileges to access law library resources meaningfully.
Extra restrictions on access to legal representatives and resources while in solitary confinement
DOC facilities make wide use of solitary confinement; its use is not limited to inmates who have disciplinary problems or are dangerous. Incarcerated people can be placed in solitary confinement for many reasons, including punitive or medical reasons, for protection from themselves or others, or for age (both young and old). In recent years, DOC has doubled its solitary housing units and increased its use of solitary confinement.
While in solitary confinement, inmates are routinely denied access to counsel and legal resources. These policies interfere with attorneys’ abilities to represent their clients effectively and inmates’ abilities to represent themselves. Examples include:
- Inmates in solitary commonly are denied the ability to use the law library to research or review discovery.
- Inmates in solitary often are restricted in their ability to make or receive legal calls.
- A scheduled legal call was denied at Palmer CC because the client was in solitary confinement. At Goose Creek CC, correctional staff told an attorney that the client refused a legal call while in solitary confinement; the client later told the attorney that he had never been notified of the legal call. At Spring Creek CC, a client was not allowed to make legal phone calls while he was on suicide watch and was told, “getting legal calls is something you can work towards” [Exhibit E];
- Legal mail is sometimes not delivered to an inmate in solitary.
- Inmates in solitary generally cannot access their legal paperwork despite ongoing criminal and civil cases (including ones where they are self-represented). One client required the intervention of the Attorney General’s office to get a partial return of her legal paperwork while in solitary confinement while under a briefing deadline.
Again, these restrictions impede attorneys’ ability to represent their clients effectively and contribute to delays in processing cases through the court system.
DOC should commit to policies that do not unnecessarily interfere with prisoners’ rights to communicate effectively with their attorneys and to access legal research materials, even when they are in solitary confinement.
The practices outlined here are the tip of the iceberg. Many individual inmates have described other actions that have interfered with their ability to communicate with their attorney, attend court proceedings, access legal documents, and conduct legal research. The ACLU of Alaska’s Prison Project is committed to investigating the widespread injustices and legal challenges that incarcerated Alaskans face.
We cannot overstate the significance of these barriers. All incarcerated people require access to the judicial process: whether to raise a defense to criminal charges, participate in civil matters like child custody, divorce, or probate, seek help when their conditions of confinement are unconstitutional, or otherwise seek to access the courts. Ultimately, the right of access to the courts protects all other rights.
Once again, DOC requires oversight and accountability to ensure Alaskans can access their rights. Our criminal legal system cannot function when essential legal services are slowed or impeded, and everyone- including incarcerated people, lawyers, victims, and families- suffers because of these practices.