Future Caucus Member Legislation Aims to Protect Client Communications

On February 24, 2021, The House passed HR 546 by an overwhelming majority vote of 414-11. HR 546 or the “Effective Assistance of Counsel in the Digital Era Act” is a bipartisan criminal justice reform bill aimed at “[prohibiting] the Department of Justice from monitoring the contents of a privileged electronic communication between an incarcerated person and his or her legal representative.”

Introduced on January 28, 2021, HR 546 is the product of successful bipartisan coalition building, much of which was facilitated by Millennial Action Project (now Future Caucus) associated legislators. The bill was sponsored by Congressional Future Caucus member Rep. Hakeem Jeffries (D-NY) and voted to enter the House floor by the bipartisan House Judiciary Committee. 

Furthermore, it was co-sponsored by seven Republicans and four Democrats in the House, including: 

• Emeritus Future Caucus co-chair Rep. Joe Neguse (D-CO)
• Millennial legislator Rep. Nancy Mace (R-SC) 

In a press release, Rep. Mace explained that “we live in a digital world and our laws should reflect that… [HR 546] brings due process rights to the 21st century, and that [she is] pleased to see it pass the House with overwhelming bipartisan support.” Additionally, the Chairman of the bipartisan House Judiciary Committee, Rep. Jerold Nadler (D-NY) praised the passage of HR 546 by expressing that he is “extremely proud of the bipartisan legislation shepherded by the Judiciary Committee and passed by the House of Representatives.”

Privileged communication between incarcerated individuals and their attorneys has been guaranteed for those in federal custody via phone, mail, and in-person communication by the Supreme Court since the establishment of our criminal justice system. However, client-attorney privilege is currently not protected for electronic communications, which represents a clear gap in the constitutionally protected rights of the incarcerated. According to the sponsor of the bill, Rep. Hakeem Jeffries (D-NY), HR 546 will “enable incarcerated individuals to communicate with their legal representatives privately, safely and efficiently by prohibiting the Bureau of Prisons from monitoring privileged electronic communications.” 

Attorney-client privilege is an extension of the sixth amendment, and is intended to ensure full legal representation and client confidentiality. In this Digital Age, 2.3 million incarcerated Americans are being deprived of this right, as lawmakers have struggled to adapt and keep pace with ever advancing modes of communication. Federal prisoners are allowed to communicate via email with their legal counsel. However, the Bureau of Prisons has yet to revise their electronic communication system to prevent the government from monitoring and utilizing what should be confidential conversations. This oversight has become more afflicting than ever during the COVID-19 pandemic, which has discouraged in-person meetings and left unprotected electronic communication as one of the only safe, viable alternatives. 

HR 546 and the support it has received across both aisles are the epitome of bipartisan solutions necessary to produce criminal justice reform. At Future Caucus (formerly Millennial Action Project), we desire to see more legislators recognize the importance of bipartisanship and seek to provide them with the resources necessary to pass critical legislation. Fortunately, progress toward this goal, especially concerning the issue of criminal justice reform, has become a reality in the 117th Congress.