1 Prison Digitization: A Pathway or a Roadblock to Justice? By Shira Hereld Mar. 28, 2022 Law, Technology, and Access to Justice Miguel Wills & Claudia Johnson Word Count: 1804 2 INTRODUCTION Two years into the pandemic, the word “unprecedented” suffers from gross overuse; however, COVID-19’s accelerating effect on the digitization of the carceral system was incontestably unprecedented.1 Although in recent years, some prisons were becoming digitized, COVID-19 both sped up this process and created new, hitherto unheard-of methods of digitizing everything from family visits to court proceedings. In this paper, I will examine three aspects of digitized prisons - digital law libraries, virtual attorney visits, and virtual courtrooms - and analyze whether increased digitization is leading to greater or worse access to justice outcomes for incarcerated individuals. Before delving into the specific technologies noted above, it is important to define “access to justice.” For this paper, I have adopted Miguel Willis and Claudia Johnson’s definition, which encompasses access to lawyers and courts, but also the idea that “individuals and communities with legal needs know where to go for help, obtain the help they need, and move through a system that offers procedural, substantive, and expeditious justice.”2 In looking at law libraries, inmate-attorney communication, and virtual court, I will examine the benefits and drawbacks of digitization through this lens. DIGITIZATION AND ACCESS TO JUSTICE I. Digital Law Libraries With its 1971 opinion in Younger v. Gilmore, the Supreme Court formally recognized prisons’ responsibility to provide affirmative legal assistance to inmates, a decision which paved 1 Carolyn McKay, The Carceral Automaton: Digital Prisons and Technologies of Detention, 11 INT’L. J. FOR CRIME, JUSTICE AND SOC. DEMOCRACY 100, 103 (2022). 2 Miguel Willis and Claudia Johnson, “AI in the Law” (class lecture, Law, Technology, and Access to Justice, University of Pennsylvania Carey Law School, Pennsylvania, Mar. 2, 2022). 3 the way for the expansion of modern prison law libraries.3 Prison law libraries provide crucial access to justice by offering practical legal materials for prisoners to research their cases and become skilled self-advocates.4 Particularly for prisoners who cannot afford lawyers or who are represented by overworked public defenders, law libraries offer opportunities for prisoners to enhance their autonomy and power in the judicial process.5 By 2020, over half of the United States’ prison law library systems had switched either in part or wholly to digital materials, with 45 correctional systems and the entire federal prison system’s law libraries becoming fully electronic.6 The switch to digital law libraries offers important benefits to prisoners. The digital materials are often more readily available than physical books, which go missing or become mutilated through heavy use, and digital materials can be uploaded at a more rapid pace than physical books can be ordered.7 Digital libraries can also make materials more accessible to inmates in segregation.8 Inmates can use preloaded help screens and tutorials in the digital library to seek immediate assistance with legal questions, rather than having to wait to speak to library staff.9 Some library programs involve individualized training that increase inmates’ technological literacy, an important future employment skill.10 3 Kelsey Brown, How Twenty-First Century Technology Affects Inmates’ Access to Prison Law Libraries in the United States Prison System, 21 MARQUETTE BENEFITS AND SOC. WELFARE L. REV. 83, 88 (2020). 4 Id. at 106. 5 Id. at 106 (“Inmates who can go to the library, look up their case, and conduct their own research, makes them feel like they are part of their legal process.”); see also Carolyn McKay, Digital Access to Justice from Prison: Is there a Right to Technology, 19 U. SYDNEY L. SCH. LEGAL STUD. RES. PAPER SERIES 303 (2019) (“it is argued that it will become increasingly difficult to justify denying prisoners access to technologies and restricted internet when these are becoming the dominant portals in society for addressing unmet legal need”). 6 Id. at 96, 104. 7 Joe Bouchard, How an Electronic Law Library Saves Money, Improves Inmate Access to Innovation, CORRECTIONS1, June 26, 2018. 8 Stephen Raher and Andrew Fenster, A Tale of Two Technologies: Why “Digital” Doesn’t Always Mean “Better” for Prison Law Libraries, PRISON POLICY INITIATIVE, Oct. 28, 2020. 9 Brown, supra note 3, at 106. 10 Raher and Fenster, supra note 8. 4 However, the digital switch has created a number of concerning barriers for prisoners seeking access to justice. The promise of easier access to material through digitization is only realized for inmates who already have some baseline of computer literacy - for thousands of older adults in the carceral system, computer kiosk or tablet access to law libraries proves utterly unnavigable.11 To compound this issue, in the past, prisons typically contracted with attorneys and paralegals who provided one-on-one assistance to help inmates navigate the sea of convoluted legal information.12 With the advent of digital law libraries, many prisons choose to save money by replacing staffing with dense resources such as LexisNexis that can be impermeable to a population of non-lawyers with below-average education levels and unfamiliarity with technology.13 Worse, prison library digitization purports to be free, but, in practice, comes with a hefty price tag: while case law and statutes can typically be accessed at no charge, the secondary sources that most inmates require to actually understand the law and put it to use require significant purchases.14 II. Virtual Attorney Visits While prisons were integrating a variety of digital communication methods prior to 2020 (purportedly to prevent contraband),15 the pandemic required prisons to solve a difficult balancing act: providing constitutionally required contact between prisoners and their attorneys while 11 Brown, supra note 3, at 107. Raher and Fenster, supra note 8. 13 Id. 14 Brown, supra note 3, at 107. 15 There is not room in this paper to discuss the significant evidence that most contraband is brought into prison by guards, and that prisons are likely using contraband as an excuse to sign contracts with third-party vendors. These contracts make money for both the prisons and the vendors by charging inmates for all forms of digital and telephonic communication. Jorge Renaud, Who’s Really Bringing Contraband Into Jails? Our 2018 Survey Confirms It’s Staff, Not Visitors, PRISON POLICY INITIATIVE, Dec. 6, 2018. 12 5 minimizing the risk of outbreak. Prisons began to lean heavily on video-conferencing or live audiovisual links to connect lawyers with their clients.16 Consistent attorney-client communication is vital to ensuring access to justice through effective representation. However, the increased access promised by videoconferencing has led to a rapid decline of in-person legal visits.17 With the rising popularity of virtual visits, some prisons and jails have even replaced in-person visits entirely in favor of video links.18 Chief among the subsequent concerns is privacy. Although prisons that contract with third-party vendors for mail handling require that legal mail be sent directly to the prison, privileged mail can still end up being sent to, input into a database by, and destroyed by third-party vendors.19 Phone and video calls between prisoners and attorneys are sometimes illegally recorded, and prosecutors have used this evidence to secure convictions.20 Additionally, video visits with lawyers can be difficult or impossible for poor, non-English speaking, and digitally-illiterate individuals, which is the primary incarcerated demographic.21 Finally, the often-poor digital connection and technical glitches that plague prison video-conferencing can make communication with attorneys nearly impossible.22 III. Virtual Courtrooms With the advent of COVID, the court system had to work through an ever-growing backlog of cases while minimizing the public danger of in-person court proceedings. To manage this, courts 16 McKay, supra note 5, at 304. Id. at 303. 18 Bernadette Rabuy and Peter Wagner, Screening Out Family Time: The For-Profit Video Visitation Industry in Prisons and Jails, PRISON POLICY INITIATIVE, Jan. 2015 (finding that 74 percent of jails that adopt video visitation have also banned in-person visits). 19 See, e.g., Thompson v. Ferguson, No. 19-4580, 2020 U.S. Dist. LEXIS 245017, at *4 (E.D. Pa. Dec. 31, 2020) (in which legal mail was sent to Smart Communications in Florida, opened outside of the inmate’s presence, photocopied, placed in a seven-year database, and the original copy destroyed). 20 Jorge Antonio Renaud, Video Visitation: How Private Companies Push for Visits by Video and Families Pay the Price, 2 (Grassroots Leadership & Texas Criminal Justice Coalition, Oct. 2014). 21 Id. 22 Rauby and Wagner, supra note 18. 17 6 began to rely on virtual court proceedings, particularly to handle pre-trial hearings.23 The shift to virtual court has permitted both civil and criminal courts to continue seeing cases, which creates more expeditious access to justice generally, and particularly benefits pre-trial detainees who, unable to make bail, might otherwise have to wait longer in COVID-vulnerable congregate prison settings.24 Further, virtual courts can be more convenient for prisoners to attend, and avoids them undergoing degrading strip searches.25 Finally, as seen in India, the courts can use videoconferencing technology and machine learning to instantly translate judgments into different languages, which improves prisoner comprehension of proceedings.26 However, the shift to virtual court poses serious access to justice issues, particularly for prisoners who attend virtual court from their place of incarceration. One dissertation from Australia studying custodial court appearance through audio-visual links found that videoconferencing exacerbates the perceived separation of prisoners.27 This physical separation “exaggerates the spa[t]ial hierarchies and obstacles already implicit in legal procedure” and can negatively impact judge and jury’s perceptions of prisoners.28 A finding echoed in U.S. studies, this perceived distance - as well as often shoddy picture quality - tends to make jurors find those testifying on video less trustworthy.29 One analysis of felony bond proceedings found that switching to televised proceedings resulted in an average bond increase of 51%.30 Further, the lack 23 Erika Rickard, How Courts Embraced Technology, Met the Pandemic Challenge, and Revolutionized Their Operations, 1 (The Pew Charitable Trusts, Dec. 2021). 24 Dr. Carolyn McKay, Prisoners and Detainees: Technology-Based Services, Law Council of Australia 3 (August 2017). 25 Id. at 3. 26 Justice Madan Lokur, COVID-19, Technology, and Access to Justice, UNODC (2020), https://www.unodc.org/dohadeclaration/en/news/2020/04/covid-19--technology-and-access-to-justice.html. 27 McKay, supra note 24, at 3. 28 Id. 29 Alicia Bannon and Janna Adelstein, The Impact of Video Proceedings on Fairness and Access to Justice in Court, 4 (Brennan Center for Justice, 2020). 30 Id. (also noting that some bond amounts increased by as much as 90% and during this same 16-year time period, bond amounts for in-person proceedings did not increase). 7 of proximity between lawyers and their clients also presents significant barriers to in-the-moment confidential communication, leaving clients unclear about what is happening in their proceedings and how to respond.31 CONCLUSION As discussed above, digitization of various prison services has the potential to improve prisoners’ access to justice, but runs the risk of creating justice roadblocks, particularly when considering factors such as cost, digital literacy, isolation, and privacy. For prisoners, technology promises ever faster, cheaper, and easier access to education and communication, but it cannot and should not replace human contact with legal professionals, support systems, or the very people in charge of deciding their sentences. Digitization should only be used as a complement for, rather than replacement to, analog modes of communication and human connection.32 31 32 Id. at 7-8; McKay, supra note 24 at 4. McKay, supra note 24 at 4; Brown, supra note 3, at 110.
