The COVID-19 pandemic has severely limited the kind of contact incarcerated people have with the outside world. Courts have gone remote, in-person visits have slowed, and communication has become largely virtual throughout the criminal justice system.
And in New Hampshire’s largest county jail - Valley Street Jail, in Manchester - many say the pandemic has exacerbated an already broken communication system.
The problem: If you land in jail, you need to talk to a lawyer quickly.
By law, a lot of judicial hearings in New Hampshire have to happen within a short window of time.
If you’re charged with a felony, the hearing that determines whether you get bail or stay in jail usually takes place the morning after your arrest. If you’re out on bail and pick up a new charge that lands you in jail, you’re also entitled to a hearing within 24 hours.
Attorneys get assigned these cases within hours of a hearing, and the fastest way to connect with a new client is via phone. But at Valley Street Jail, that might not get you far. Multiple attorneys say they call and leave messages, but their clients don’t have access to a phone to respond in time.
This has been a problem for years, but it’s become more acute during the pandemic, attorneys say, as more legal processes have become virtual.
The jail has granted all inmates four free 20-minute calls to lawyers during the pandemic, but phone access is limited.
In December, one attorney told the Hillsborough County commissioners who oversee the jail that she had a 50 percent success rate of reaching clients without having to call multiple times. The Manchester office of the New Hampshire Public Defender says last fall, attorneys were not able to reach 40 to 50 percent of their clients on felony charges prior to their hearing.
Delays in attorney client calls clog up the virtual courts
On a near-daily basis, inmates from Valley Street Jail log into their virtual hearing and have not spoken yet to their lawyer for one of the most pivotal steps in their case. So judges pause or postpone the hearing.
“It can throw off an entire schedule in a system that is tightly scheduled,” said Emily Rice, who oversees Manchester city prosecutors as the city solicitor. “Judges are very busy. They’re on a tight schedule. Courtroom time comes at a premium.”
There are other scenarios - such as when a prosecutor offers a last-minute plea bargain - when lawyers say they need to contact inmates quickly.
Sarah Rothman, who manages the Manchester office of the New Hampshire Public Defender, said Valley Street Jail is treating phones as a “luxury item” rather than a necessary tool for people awaiting a sentence.
“It’s 2021: To say that you should have a facility where inmates and attorneys can’t have a meaningful way to talk over the phone is ludicrous to me,” she said. “If you don’t have a way to get your lawyer when you need your lawyer, then that’s not meaningful representation.”
Attorneys want a phone upgrade, but jail makes the final call
Defense attorneys are pushing for Valley Street Jail to adopt a phone system similar to those used by the state’s other large county jails, in Rockingham, Merrimack and Strafford counties. These jails have a set-up that lawyers say allow them to talk to their clients on a secure line, even if the client is locked in their cell most of the day.
This request for a phone update predates the pandemic, but it has dominated stakeholder meetings with Hillsborough County judges, prosecutors, defense attorneys, and the jail since the fall.
The public defender office says it will pay for the upgrade, but the jail says no, citing security and staffing concerns. And more than a year into the pandemic, there is no obvious route for compromise.
Jail officials say lawyers can visit, call, or use a message board
Valley Street Jail superintendent Willie Scurry said the current system “works fine.”
He said when an attorney calls and asks to speak with a client, the jail relays the message. But Scurry can’t guarantee that inmates will be given access to a phone to call their attorney back that same day.
Attorneys can schedule a video conference with a client 24 hours in advance, but they say it books up quickly, and this does not solve the problem of short-notice hearings.
Valley Street Jail recently expanded visiting hours and the amount of time inmates in some units have access to a phone. The public defender office says that is improving the rate of call backs from clients. But it’s still a far cry from what other jails in the state provide consistently.
Attorneys are once again visiting the jail to meet with clients. Scurry says this is how things are supposed to work. Some attorneys say they shouldn’t have to spend an hour at the jail in order to talk for five minutes with someone who could be accessible by phone.
Who makes the final decision at the jail, anyway?
Buzz Scherr, a criminal justice reform advocate and professor at UNH Law, said there is “no legitimate reason” why Valley Street Jail can’t get a phone system, but New Hampshire jails don’t have to answer to the state or the Attorney General’s office
They are overseen by county commissioners, which can lead topoor oversight and lax protocols.
And at Valley Street Jail, the decision about communication is up to those who run the jail.
“They can dig in their heels and say ‘To hell with everybody else; we’re doing it our way and we don’t care that you’re frustrated,’” Scherr said. “But if it’s not working.”
Over the past six months, Scherr has proposed improvements to the phone system to county commissioners.
Hillsborough County Commissioners Toni Pappas and Michael Soucy told NHPR that the issue has been resolved, and that there are various ways for attorneys to contact clients, but they did not elaborate. They both declined an interview request.
Even after the pandemic, virtual hearings are likely here to stay
When they run smoothly, virtual hearings have the potential to save the judicial system a lot of time and money. And many expect that even after courts reopen, short-notice hearings on felony charges and bail revocation will stay virtual.
And the fight over the phone system at Valley Street Jail isn’t going away either.
If Valley Street Jail resorts to its pre-pandemic rules for phone use, inmates’ calls to some attorneys will generate revenue for the jail. It's common for jails to make some money when inmates place a call through their account to loved ones or to their lawyer. And according to county financial documents, anticipated revenue from the inmate phone system amounts to $120,000, about half of the jail’s anticipated revenue this year. The jail’s operating budget is $17.4 million.
Robin Melone, president of the New Hampshire Association of Criminal Defense Attorneys, said that even with some modifications at the jail in the past few weeks, there is still no efficient, reliable communication between inmates and attorneys.
And getting a more efficient system doesn’t seem easy.
“Nobody wants to own the Valley Street Jail. It’s a county facility; the supervisors are the county commissioners,” Melone said. “If they’re unwilling to intervene, then we’ll take it to the next step, which will probably be litigation.”
