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This paper discusses pretrial detention and the concept that the rights of pretrial detainees may be greater than those of inmates. The privatization of phone services and protection of constitutional rights during pretrial detention cannot coincide, and therefore do not guarantee pretrial detainees’ access to their rights. First, phone calls are expensive, and the burden falls on the pretrial detainees and their families to pay the costs. This blocks lower-income persons from accessing their right to communication. Second, the procedure to obtain an unmonitored line for attorney-client calls is vague and difficult, effectively blocking pretrial detainees’ access to counsel. In addition, the unclear District Attorney’s office procedures for obtaining recorded calls from prisons allows prosecutors to essentially curb pretrial detainees’ constitutional rights. These prosecutors are evading Model Rule of Professional Conduct 8.4, which prohibits lawyers from engaging in conduct prejudicial to the administration of justice.

This paper argues that pretrial detainees are prevented from accessing their Miranda rights because they may not have the capacity to understand those rights, as well as a lack of effective notice. Signs and sentences in Handbooks are not enough to put a person on notice that their constitutional rights may be curbed, especially if those “notices” are inconsistent with each 2 other. Although there are arguments against guaranteeing pretrial detainees broader constitutional rights under the First and Fourth Amendments, protection of individual rights outweighs curbing those rights because of perceived concerns for public safety. In addition, international law mandates the protection of and emphasizes humanitarian arguments for preserving individuals’ rights.

This paper argues for multiple solutions to this issue. One solution is using consistent, plain English and providing translations in every language for all forms of notice. Another is to give Miranda warnings and notify the callers that they may be recorded on general phone lines before calls begin. A separate, unrecorded line should be provided only for attorney-client and other confidential calls. A third is to clear up the procedures for attorney-client calls and procedures for prisons turning over any recorded calls to the District Attorney’s office. Implementation of these solutions will begin to fix the broken system of justice that pretrial detainees are wrongfully subjected to.

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