Inmate Legal Activities: Visits by Attorneys

<RULE> DEPARTMENT OF JUSTICE <SUBAGY>Bureau of Prisons</SUBAGY> <CFR>28 CFR Part 543</CFR> <DEPDOC>[BOP-1175-I]</DEPDOC> <RIN>RIN 1120-AB75</RIN> <SUBJECT>Inmate Legal Activities: Visits by Attorneys</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> Bureau of Prisons, Justice. <HD SOURCE="HED">ACTION:</HD> Interim final rule; request for comments. <SUM> <HD SOURCE="HED">SUMMARY:</HD> The Bureau of Prisons (Bureau) amends regulations in 28 CFR part 543, subpart B—Inmate Legal Activities to revise procedures governing attorney visits. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> <E T="03">Effective date:</E> This rule is effective February 7, 2024. <E T="03">Comments:</E> Written comments must be postmarked and electronic comments must be submitted on or before April 8, 2024. Commenters should be aware that the electronic Federal Docket Management System will not accept comments after Midnight Eastern Time on the last day of the comment period. </EFFDATE> <HD SOURCE="HED">ADDRESSES:</HD> If you wish to provide comment regarding this rulemaking, you must submit comments, identified by the agency name and reference Docket No. BOP 1175 or RIN 1120-AB75, by one of the two methods below. <E T="03">Federal eRulemaking Portal: https://www.regulations.gov</E> . Follow the website instructions for submitting comments. The electronic Federal Docket Management System at <E T="03">www.regulations.gov</E> will accept electronic comments until 11:59 p.m. Eastern Time on the comment due date. <E T="03">Mail:</E> Paper comments that duplicate an electronic submission are unnecessary. If you wish to submit a paper comment in lieu of electronic submission, please direct the mail/shipment to: Rules Administrator, Legislative and Correctional Issues Branch, Office of General Counsel, Bureau of Prisons, 320 First Street NW, Washington, DC 20534. To ensure proper handling, please reference the agency name and Docket No. BOP 1175 or RIN 1120-AB75 on your correspondence. Mailed items must be postmarked or otherwise indicate a shipping date on or before the submission deadline. <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Daniel J. Crooks III, Assistant General Counsel/Rules Administrator, Federal Bureau of Prisons, at the address above or at (202) 353-4885. </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> Please note that all comments received are considered part of the public record and made available for public inspection online at <E T="03">www.regulations.gov</E> . If you want to submit personal identifying information (such as your name, address, etc.) as part of your comment, but do not want it to be posted online, you must include the phrase “PERSONAL IDENTIFYING INFORMATION” in the first paragraph of your comment. You must also locate all the personal identifying information you do not want posted online in the first paragraph of your comment and identify what information you want redacted. If you want to submit confidential business information as part of your comment but do not want it to be posted online, you must include the phrase “CONFIDENTIAL BUSINESS INFORMATION” in the first paragraph of your comment. You must also prominently identify confidential business information to be redacted within the comment. If a comment contains so much confidential business information that it cannot be effectively redacted, all or part of that comment may not be posted <E T="03">www.regulations.gov</E> . Personal identifying information identified and located as set forth above will be placed in the agency's public docket file, but not posted online. Confidential business information identified and located as set forth above will not be placed in the public docket file. If you wish to inspect the agency's public docket file in person by appointment, please see the <E T="02">FOR FURTHER INFORMATION CONTACT</E> paragraph. <HD SOURCE="HD1">II. Background</HD> On July 20, 2023, the Deputy Attorney General issued a memorandum instructing the Bureau to implement the Report and Recommendations (Report) of the Advisory Group on Access to Counsel, which focused on access to counsel at Bureau pretrial facilities. <SU>1</SU> <FTREF/> The Report provides an overview of the Department of Justice's (Department) approach to ensuring access to counsel in Bureau pretrial facilities and recommends specific measures to promote such access. <SU>2</SU> <FTREF/> Among the 30 recommendations included is recommendation 2.1., which provides: <FTNT> <SU>1</SU>  U.S. Dep't of Justice, Report and Recommendations Concerning Access to Counsel at the Federal Bureau of Prisons' Pretrial Facilities (July 20, 2023), available at <E T="03">https://www.justice.gov/d9/2023-07/2023.07.20_atj_bop_access_to_counsel_report.pdf</E> . </FTNT> <FTNT> <SU>2</SU>   <E T="03">Id.,</E> at i. </FTNT> <EXTRACT> Update BOP's regulations related to scheduling legal visits to conform with current practice. BOP's current regulations (28 CFR 543.13) state that all legal visits must be scheduled in advance. Although that provision may be reasonable for BOP facilities that do not have a pretrial mission, it is inconsistent with visitation policies and practices at 9 of BOP's 10 pretrial facilities and with attorney preferences. BOP, in consultation with ATJ, should revise this regulation to allow for walk-in visits at all pretrial facilities. <SU>3</SU> <FTREF/> <FTNT> <SU>3</SU>   <E T="03">Id.</E> at 26. </FTNT> </EXTRACT> The current regulations governing attorney visits were promulgated on June 27, 1979, <SU>4</SU> <FTREF/> and have not been updated in 44 years. In the portion of the preamble addressing the addition of § 543.13 those many years ago, the Bureau responded to some commenters and noted: <FTNT> <SU>4</SU>  44 FR 38254, 38263-64, available at <E T="03">https://www.govinfo.gov/content/pkg/FR-1979-06-29/pdf/FR-1979-06-29.pdf</E> (p. 349 of the .pdf). </FTNT> <EXTRACT> Some objections were raised to the requirement in proposed § 540.46 that attorneys make advance appointments prior to visiting an inmate client, on the basis that attorneys, at least during regular visiting hours, should not be subject to any more stringent regulations than other visitors. The provision for attorney visits, however, is necessary given the arrangements which often must be made to provide added privacy for attorney client consultation. This by no means prohibits attorneys from making regular visits without prior appointments under the same conditions as other visitors. <SU>5</SU> <FTREF/> <FTNT> <SU>5</SU>   <E T="03">Id.</E> at 38264. </FTNT> </EXTRACT> The Bureau welcomes this opportunity to further clarify procedures governing how attorneys can arrange to visit their clients. <HD SOURCE="HD1">III. Discussion</HD> The Bureau agrees that an update to its attorney-visit regulations is needed to clarify current practices and the unique role of Bureau institutions with pretrial missions. Recognizing that the right to counsel safeguarded by the Sixth Amendment is critical for protecting fairness and accuracy in the criminal justice system, the Bureau embraces revisions to its attorney-visit regulations in order to expand access to this fundamental right. This interim final rule will encourage meaningful access to the right to counsel by amending the procedures whereby attorneys can request to visit their clients in pretrial detention within a Bureau institution. Accordingly, to give full effect to the Report's recommendation 2.1, the Bureau revises two paragraphs within § 543.13. <HD SOURCE="HD2">§ 543.13(c)</HD> The current version of § 543.13(c) provides that, to schedule any legal visit at any Bureau institution, an attorney must make an advance appointment for a visit through the warden, who in turn must make “every effort” to arrange for that visit when prior notification is not practical. <SU>6</SU> <FTREF/> Nothing in this paragraph distinguishes between Bureau institutions housing pretrial detainees and unsentenced individuals from Bureau institutions that house individuals who have been convicted. Therefore, the Bureau revises this paragraph to address pretrial detainees' and unsentenced individuals' right of access to counsel. <FTNT> <SU>6</SU>  28 CFR 543.13(c). </FTNT> There are two substantive changes to this paragraph. First, we added introductory language to distinguish Bureau institutions that house convicted individuals from those that house pretrial detainees and unsentenced individuals. With this qualifying language, we affirm the current attorney-visit procedures used by Bureau institutions that house only convicted individuals. Attorneys seeking to visit clients at one of these Bureau institutions are still required to make an advance appointment to visit their client, and the warden of the institution is still required to make every effort to accommodate a last-minute visit when advance notice is not practicable ( <E T="03">i.e.,</E> not possible). Second, we revised the last sentence to refer specifically to Bureau institutions that house pretrial detainees and unsentenced individuals, emphasizing that those institutions must allow both scheduled and unscheduled attorney visits during designated attorney visitation hours. Both changes effectively revise the regulation to allow for walk-in attorney visits at all Bureau institutions that house pretrial detainees and unsentenced individuals. <HD SOURCE="HD2">§ 543.13(e)</HD> In keeping with the theme and purpose of the Report, we have also decided to underscore the importance of attorney-client confidentiality during attorney visits by emphasizing that Bureau employees are prohibited from subjecting those visits to auditory supervision. To accomplish this, we deleted the permissive “m ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 19k characters. 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