Attorneys working with people incarcerated in Oregon prisons say the state Department of Corrections is limiting access to clients through a newly updated phone policy. The Department disputes that.
Tara Herivel leads a team of 25 attorneys who are filing legal petitions and advocating for the release of medically vulnerable people in prison during the coronavirus pandemic. The attorneys are working with about 160 clients in the prison system statewide.
Herivel said in the past, scheduling free, confidential legal phone calls with clients was a simple process at all correctional facilities in the state except the Oregon State Penitentiary, which already had a strict phone policy in place.
“You’d call up the person whose job it is to schedule phone calls and you’d set them up,” Herivel said. “It took 24 hours or so, lead time, but it was a simple matter.”
Now, she said, attorneys are facing an updated policy in facilities across the state, including Coffee Creek Correctional Facility, Snake River Correctional Institution and Eastern Oregon Correctional Institution. Attorneys must prove that a client has a court deadline within 60 days of the call in order to schedule it.
Herivel said the Department of Corrections began implementing this policy as attorneys started litigating more cases in efforts to remove vulnerable people from state custody to limit their risk of contracting coronavirus.
“It’s very onerous when you have clients who don’t have court deadlines,” Herivel said. “Many of our cases don’t have court deadlines within 60 days.”
Oregon Department of Corrections Communications Manager Jennifer Black said the phone policy “has been in place for several years” for all corrections facilities.
Herivel disputes that. She said this is the first time attorneys have had to deal with a policy like this, except when working with clients at the Oregon State Penitentiary.
Black said the policy has recently been rewritten to expand the number of days in the original rule from 10 to 60, giving attorneys more leeway to schedule calls with their clients. That updated rule will take effect at the end of this week, Black said.
“The proposed amendments would afford an opportunity for staff-arranged legal calls based on a longer time frame for court deadlines,” she said. “DOC employees have been working on this rule change since 2019.”
Herivel also said the new policy is limiting what counts as a court deadline.
“We’re now being told that a court deadline isn’t a pleading deadline, which it always was before. Other court deadlines like status hearings are not considered court deadlines anymore,” Herivel said. “So, they’re changing the rules as we go, making it more restrictive, making it more difficult.”
The Oregon Department of Corrections said the term “court deadline” is not defined in the updated rule.
“If an [inmate] or attorney has documentation indicating a court action with the 60-day timeline per the policy, those appointments will be facilitated,” Black said, though Herivel said that has not been the attorneys’ experience.
Black also said that a provision in the newly updated policy allows DOC staff to schedule legal calls without proof of an imminent court deadline “for good cause shown and for reasons other than for mere convenience, when consistent with staff availability and facility operations.”
Herivel said Jef Van Valkenburgh, a senior assistant attorney general with the Oregon Department of Justice, has been an advocate for the new phone policy. She said that is troubling as Van Valkenburgh is representing the state Department of Corrections in the very cases that Herivel’s team is working on.
“The attorney for the defendant in our cases … is restricting and blocking access to the plaintiffs in these cases, and that’s extraordinary,” Herivel said. “That’s extraordinarily obstructive. It’s not ethical. I think it violates the rules of professional conduct, and it’s unlawful.”
The Oregon Department of Justice said it most likely could not comment on the Department of Corrections’ policy due to the DOJ’s litigation on behalf of the department.
Herivel said Van Valkenburgh also told her team that alternatives to legal calls are available to attorneys wishing to speak to clients.
“He has told us that we can have confidential conversations in other ways like by using the phone system where a client calls from a unit where he or she is surrounded by other prisoners and staff. That’s not confidential, and it’s also expensive,” Herivel said. “It costs money to set up a phone account … but we don’t want them to anyway because we can’t have confidential calls in that system.”
Herivel said attorneys are also being told to use email communications, which are also not confidential, “or we’re told we can just mail communications to our clients and somehow speak to them that way, which is absurd.”
Black with the Department of Corrections echoed some of the alternatives for communication.
She also said the department’s Agency Operations Center is working with each of the prisons to begin legal visits again during the pandemic. “[W]e hope to start those during August,” Black said.
Herivel said she and the attorneys she works with are discussing “next steps” in terms of how to work with clients with this new phone policy.
“I would like people to imagine what it would look like if the Department of Justice barred attorneys or family members from being able to reach people in nursing homes where people are dying from COVID at the highest rates, in addition to prisons, or people who work in food factory processing. There would be, rightly, massive outrage,” she said.
Herivel said of her imprisoned clients: “Their advocates cannot even call them in the midst of a massive pandemic where people are dying. We had our second death [Friday], Snake River, and there’s going to be more, and it seems that the Department of Justice is endorsing the Department of Corrections to bring down the curtain on access and that is the last thing that should happen now.”