The Kickham Comment - Boston Criminal Attorney Blog
The Massachusetts Supreme Judicial Court (SJC) keeps churning out some interesting decisions, this one on the subject of the privacy, or lack thereof, that inmates and detainees in Massachusetts prisons can expect in their telephone conversations.
In a 4-3 ruling, the SJC ruled earlier this month that both prison inmates, and detainees (persons who have been arrested but not yet tried,) have “no objectively reasonable expectation of privacy” in their phone conversations. The ruling means that prosecutors and grand juries may access the recordings of those phone calls. The ruling applies to all kinds of detainees and inmates, from those accused of assault and battery to those convicted of sexual assault, rape and drug offenses.
The majority opinion, written by Justice Roderick L. Ireland, ruled that due to the fact that inmates and detainees are informed when they are first incarcerated that their calls are being recorded, “no privacy interest exists in the recorded conversations such that they cannot be obtained by a grand jury subpoena.” The decision affirms a contempt order issued previously against Suffolk County Sheriff Andrea Cabral by Suffolk Superior Court Judge Thomas E. Connolly. Cabral had previously declined to provide a grand jury with telephone recordings of a particular pretrial detainee, even though she had received a subpoena for them. According to the decision, Cabral supported turning over the tapes to the grand jury, but was concerned that an unrelated Superior Court decision “called into question the propriety of compliance with grand jury subpoenas seeking recordings of pretrial detainees’ and inmates’ telephone calls.” It was through her act of refusing to turn over the calls, that she sought a clarifying opinion from the SJC. And she got it.
Predictably, law enforcement officials supported the decision, arguing that it will help prosecutors capture crucial information in order to secure convictions of suspected criminals. Prisoners’ rights advocates, equally predictably, termed the decision a major departure from previous case law in this area. Principally, they feel that the ruling will disproportionately impact poorer detainees, who cannot afford bail, and hence have no other access to a phone.
Notably, the decision was graced by a stinging dissent from Chief Justice Margaret H. Marshall, who accused the majority of enacting “sweeping” and “erroneous” changes to existing case law. She felt that the state’s Declaration of Rights does and should apply to recorded prisoner phone calls. She also expressed concern that the ruling will unfairly impact low-income detainees, who typically cannot post bail.
As a Norfolk County Massachusetts criminal defense lawyer, I think prisoners’ rights must always be viewed through the prism of the constitutional presumption of innocence. However, emphasizing the indispensable prior warning given to all pre-trial detainees and convicted inmates, that their phone calls are being recorded while they are in custody, I think the the ruling is a reasoned one. Were that warning not clearly made, I would join Chief Justice Marshall in her dissent.