Author: LegalEase Solutions
Whether a prisoner in a Michigan state prison has a right to attorney-client phone calls, or may prison officials limit attorney-client contact to specific methods such as mail?
A prisoner in a Michigan state prison is permitted to make attorney-client phone calls. The 6th Circuit has held that a prisoner has a right to telephone access subject to rational limitations in the face of legitimate security interests of the penal institution. Further, the Policy Directives of the Department of Corrections also permit a prisoner telephone access to an attorney. However, the privilege will only be available to call attorneys whose telephone numbers are verified by the staff in the correction facility. Additional calls and calls outside normal hours may be authorized by the Warden if requested by the attorney.
Right to effective counsel
“The right to counsel guaranteed by the Michigan Constitution is generally the same as that guaranteed by the Sixth Amendment; absent a compelling reason to afford greater protection under the Michigan Constitution, the right to counsel provisions will be construed to afford the same protections.” People v Marsack, 231 Mich App 364, 373; 586 NW2d 234, 238 (1998).
Further, “[t]he right to counsel is considered fundamental because it is essential to a fair trial.” People v Pubrat, 451 Mich 589, 593; 548 NW2d 595, 597 (1996). Additionally, “[t]he right to counsel also encompasses the right to the effective assistance of counsel.” Id., at 594 (citing Strickland v. Washington, 466 U.S. 668, (1984)). “The right to counsel is thus substantive, focusing on the actual assistance received, rather than mere form.” Id., at 596. It “also affords a defendant a fair opportunity to consult with counsel and prepare his defense.” People v Henley, 26 Mich App 15, 25; 182 NW2d 19, 25 (1970).
The courts have held that “[t]he right to the effective assistance of counsel is incorporated to the states by the Due Process Clause of the Fourteenth Amendment.” People v Vaughn, 491 Mich 642, 669; 821 NW2d 288, 305 (2012) (internal citations omitted).
Right to telephone attorney
The United States Supreme Court has held that “[p]rison walls do not form a barrier separating prison inmates from the protections of the Constitution.” Turner v. Safley, 482 U.S. 78, 84 (1987).
The courts have considered the right of a prisoner to consult an attorney to be an essential part of the sixth amendment. The Seventh circuit observed that “[r]estrictions on a detainee’s telephone privileges that prevented him from contacting his attorney violate the Sixth Amendment right to counsel.” Murphy v. Walker, 51 F.3d 714, 718 (7th Cir. 1995). The Eighth circuit also shares this view: “Pre-trial detainees have a substantial due process interest in effective communication with their counsel and in access to legal materials. When this interest is inadequately respected during pre-trial confinement, the ultimate fairness of their eventual trial can be compromised.” Johnson-El v. Schoemehl, 878 F.2d 1043, 1051 (8th Cir. 1989).
The Sixth Circuit emphasizes the right to counsel’s rational limitations: “prisoner’s right to telephone access is ‘subject to rational limitations in the face of legitimate security interests of the penal institution.’” Washington v. Reno, 35 F.3d 1093, 1100 (6th Cir. 1994) (quoting Strandberg v. City of Helena, 791 F.2d 744, 747 (9th Cir.1986).
Michigan Department of Corrections Policy Directives on telephone access to attorneys
Policy Directive No. 05.03.116 issued by Michigan Department of Corrections provides prisoner telephone access to an attorney. “Prisoners in the general population, including protective housing, shall be allowed reasonable telephone access to an attorney as set forth in PD 05.03.130 ‘Prisoner Telephone Use.’ Additional calls, and calls outside normal hours, may be authorized by the Warden or his/her designee if requested by the attorney.” Id. However, “[t]elephone calls between prisoners and attorneys which are not part of a prisoner’s regular telephone usage shall be placed by a staff member but shall not be listened to by staff.” Id. (Emphasis added).
PD 05.03.130 requires the prisoner to provide the telephone number of his attorney in the Approved Telephone Lists before attempting to contact the attorney. However, the “Staff shall verify the business telephone number of an attorney licensed in the state of Michigan by using the most recent directory issue of the Michigan Bar Journal or through the State Bar of Michigan website.” Id. If the staff are not able to verify the number, “the prisoner who requested access to that number shall immediately be informed in writing that the number could not be verified and will not be entered into the system unless the attorney or legal service organization submits satisfactory written verification of the business telephone number directly to the Warden or designee. It is the prisoner’s responsibility to notify the attorney or legal service organization of these requirements.” The telephone calls to the business telephone number of the attorney is exempted from monitoring “except if the attorney is related to the prisoner by blood or marriage.” Id. However, the telephone equipment shall automatically limit each call to attorneys to 20 minutes.
A prisoner on telephone restriction “shall also be allowed to make calls to attorneys and legitimate legal service organizations on the approved telephone list, which may be limited by the Warden or designee to calls upon request of the attorney or legitimate legal service organization …” Such “[a]uthorized calls may be placed by staff, but must be in a location where the conversation cannot be overheard by staff or other prisoners.” Id.
The prisoners in the Special Alternative Incarceration Program are also allowed telephone privileges “to communicate with an attorney.” PD 05.01.142 para X 6.
The telephone access to an attorney by a prisoner in segregation is governed by “PD 04.05.120 ‘Segregation Standards.’”  Per the directive, telephone access to attorney for communicating official business, including litigation, is provided “upon request of the attorney.”
Challenging prison regulations on telephone access
Michigan courts have held that “[p]rison regulations alleged to infringe constitutional rights are judged under a reasonableness test less restrictive than the test ordinarily applied to alleged infringements of fundamental constitutional rights.” Blank v Dept of Corr, 222 Mich App 385, 408; 564 NW2d 130, 140-41 (1997) aff’d in part 462 Mich 103; 611 NW2d 530 (2000) (citing Abdur–Ra‘Oof v. Dep’t of Corrections, 208 Mich.App. 626, 629, 528 N.W.2d 840 (1995), remanded on other grounds 450 Mich. 1018, 548 N.W.2d 644 (1996)).
The Sixth Circuit follows the ‘Turner factors’ generally relevant to determining the reasonableness of a challenged prison regulation:
- there must be a valid, rational connection between the prison regulation and the legitimate governmental interest put forward to justify it;
- there must be alternative means of exercising the right that remain open to prison inmates;
- we must consider the impact that accommodation of the asserted constitutional right will have on guards and other inmates and on the allocation of prison resources generally; and
- there must not be alternatives available that fully accommodate the prisoner’s rights at de minimis cost to valid penological interests.
Jones v. Caruso, 569 F.3d 258, 266-67 (6th Cir. 2009) (quoting Turner, supra, 482 U.S. at 89–91).
Further, “[f]ailure to satisfy the first factor, renders the regulation unconstitutional without regard to the remaining three factors.” Id. at 267. However, “[i]f the first factor is satisfied, the remaining factors are considered and balanced together as guidelines by which the court can assess whether the challenged actions are reasonably related to a legitimate penological interest.” Id. (internal quotations omitted).
 Washington v. Reno, 35 F.3d 1093, 1100 (6th Cir. 1994)
 PD No. 05.03.116 at para C
 Id. at para Y
 Id. at para Z
 Id. at para JJ
 PD No. 05.03.116 at para C
at para V 19.