On May 1, 2008, the U.S. Court of Appeals for the Armed Services affirmed a lower court’s judgment rejecting a service member’s claim that he was denied the right to appellate counsel because brig officials were present when he called his attorney.

David M. Brooks, a Marine Corps. Corporal was convicted of violating several provisions of the Uniform Code of Military Justice. While confined in the brig, Brooks made several calls to his appellate attorney. During each call, brig personnel were present.
Brooks filed a complaint alleging that his Sixth Amendment right to counsel was violated each time brig officials were present when he called his attorney. According to Brooks, the presence of the guards “chilled his attorney-client communications” because the guards were able to overhear his conversations.

The court of appeals rejected Brooks’ Sixth Amendment claim. Even assuming brig personnel were close enough to overhear Brooks’ conversations, he was unable to show prejudice, the court held. See: United States v. Brooks, 66 M.J. 221 (2008).

A lawsuit challenging the Foreign Intelligence Surveillance Act Amendments of 2008 (FAA) may proceed, the U.S. Court of Appeals for the Second Circuit decided March 21, 2011. The lower court dismissed the suit on standing grounds.

Amnesty International, with numerous other attorneys, journalists, and human rights organizations, sued the director of National Intelligence, arguing that the FAA violates Article III of the U.S. Constitution, separation of powers, and the First and Fourth Amendments. The FAA, according to the plaintiff’s complaint, “allows the executive branch sweeping and virtually unregulated authority to monitor the international communications of law-abiding U.S. citizens and residents.”

In reversing the district court, the Second Circuit held that the plaintiffs had standing to pursue their suit because the FAA’s procedures “cause them to fear that their communications will be monitored, and thus force them to undertake costly and burdensome measures to protect the confidentiality of international communications necessary to carrying out their jobs.” See: Amnesty International v. Clapper, No. 09-4113-CV, (2nd Cir. 2011).

At the Montgomery County jail in Dayton, Ohio, taking more than a half-million dollars annually from prisoners who want to call their loved ones is actually called “giving.”

When asked by the Dayton Daily News about prisoners’ telephone access in Montgomery County, Major Daryl Wilson explained, “We give them as many calls as they need to let people know where they are.”

Of course all that giving has meant a windfall for Montgomery County and jail vendor Aramark Correctional Services, which will split more than $370,000 in revenue from sales of pre-paid phone cards.

The county’s share of the sales – 42%, or about $156,000 annually – must be spent “to support the current jail inmate population,” Wilson stated.

“We can’t go out and buy new cruisers with that money,” he said. “It has to be spent on the inmates, according to Ohio law.”

The county will reap an additional $200,000 in 2011 from collect calls, which Wilson said is used to offset the cost for an operator and pays for maintenance to the jail’s “heavy-duty telephones.”

Montgomery County jail prisoners must wait three days after being booked before they are allowed access to the commissary. For $10 they can ...

A video visitation system has been installed at Florida’s Charlotte County Jail. Using money from the Inmate Welfare Fund, which is derived from profits from the canteen and other services to prisoners, the jail installed a system that allows virtual visits over the Internet.

The technology is the first of its kind in Florida and was installed by Montgomery Technology, Inc., which hopes it will catch on and generate more business in other jails and prisons.

“If somebody is incarcerated here but their grandma is in Ohio, they can actually visit them in Ohio via their computers,” said Charlotte County Sheriff Bill Cameron, who said his staff will be monitoring the visits to prevent such things as virtual conjugal visits. “My staff will be having a screen that shows all the visits that are going on at any given moment so they can be watching.”

Revenue generated from the video visitation will be split between Montgomery Technology and the Inmate Welfare Fund. The cost to schedule a visit is about $33 – a fairly hefty fee. The jail has also implemented a program that generates revenue by running ads on the video visitation screens while prisoners and their families are ...

by John E. Dannenberg

When a private prison corporation sued Director Jeanne Woodford of the California Department of Corrections and Rehabilitation (CDCR) for alleged defamatory statements made against the corporation's performance on a CDCR contract, which were made in the proper discharge of Woodford's official duties, she was held absolutely immune from suit by the privilege granted in California Civil Code § 47.

Maranatha Corrections, LLC is a private prison company with which CDCR had contracted to operate a community correctional facility in southern California. To fulfill its obligation to provide telephone services for the prisoners, Maranatha had contracted with Global Tel*Link (Global), the same contractor that CDCR uses in its prisons. As in its prison contract, Global paid a hefty kickback from excess profits built into its prisoner-only telephone rate. CDCR transfers its Global kickback funds into the Inmate Welfare Fund (IWF), allegedly to be used for prisoner programs. [The benefit to prisoners is questionable, however, since all IWF revenues first flow into the state's General Fund, from which the Legislature then appropriates prisoner-friendly expenditures in its annual budget. To the extent that IWF fund contributions exceed IWF appropriations, the excess remains in the General Fund, amounting to a ...

When the Texas legislature passed SB 1580 in 2007, requiring the Texas Department of Criminal Justice (TDCJ) to install phones in state prisons, Texas was the only state that did not allow prisoners to make regular phone calls. Even so, the bill faced opposition and only passed because lawmakers expected the calls would generate a lot of revenue. Also, victims’ rights organizations that would otherwise oppose prisoners having phone access were bought off with a promise that they would receive the first $10 million in profits from the new prison phone system.

At the time, the House Research Organization estimated annual profits of between $25 million and $30 million. A more realistic estimate published in the bill’s fiscal note conservatively estimated $7.5 million a year in net income.

The first phones were installed in March 2009, and nine months later the phone installations were complete system-wide. [See: PLN, Feb. 2009, p.27]. Since then, TDCJ prisoners have placed over 4.7 million phone calls and received about 1.8 million emails.
However, the profits were lower than expected. During the first twenty-one months of TDCJ phone operations, Embarq, the company that operates the system, collected $15 million for emails and phone calls. Embarq ...

Washington State Regulatory Agency Finds AT&T Failed to Disclose Prison Collect Call Rates

by Derek Gilna and Brandon Sample

On March 31, 2011, AT&T Communications of the Pacific Northwest was found guilty by the Washington State Utilities and Transportation Commission of failing to disclose charges for collect calls from various Washington State prisons. According to the Commission’s final order, “based on undisputed facts [the] automated operator services platform used at the prisons ... did not make rate quotes available to consumers as required by Commission rules.”

The Commission referred its conclusions to King County Superior Court for additional fact finding and the ultimate disposition of the claims against AT&T. Sandy Judd and Tara Herivel, who had accepted calls from Washington prisoners, had initially filed the complaint in Superior Court in 2000. The case was referred to the Commission because it has primary jurisdiction over the billing practices of operator service providers (OSPs).

The Commission found that “AT&T violated Commission regulations 480-120-141(5)(a)(1991) and WAC 480-120-141(2)(b)(1999) for collect calls ... [by prisoners] at the Washington State Reformatory, Airway Heights, McNeil Island Penitentiary, or Clallam Bay correctional facilities by failing to verbally advise the consumers [who accepted collect calls from prisoners] to request ...

By Matt Clarke

A New Mexico court of appeals has ruled that jail phone conversations monitored and recorded without prior warning to the prisoner were inadmissible in his criminal prosecution.

Geechie Devane Templeton was arrested by Hobbs, New Mexico, police for possession of cocaine found near where he was hiding following a police chase. In the Hobbs City Jail, Templeton made two phone calls to his girlfriend, one from the booking area and one from another area. Templeton objected without success when prosecutors introduced audio recordings of the phone calls in his trial and claimed they tied him to the cocaine. He was convicted and appealed, alleging the taping of the phone calls violated the Abuse of Privacy Act (APA), NMSA 1978, §§ 30-12-1 to -11.

The court of appeals held that the APA “prohibits interference with certain types of electronic communications, including ‘reading, interrupting, taking or copying any message, communication or report intended for another by telegraph or telephone without the consent of a sender or intended recipient thereof.’” State v. Coyazo, 1997 NMCA 29, 936 P.2d 882. However, consent is implied when the person making or receiving the call is warned in advance that the calls may be ...

PLN’s April 2011 cover story detailed the results of our comprehensive multi-year research project on prison phone services, including a state-by-state comparison of prison phone rates, commission (kickback) percentages, and the amounts of commission payments from prison phone contracts nationwide.

Our research found that based on data from 2007-2008, 42 states receive kickbacks or other payments from prison phone service companies, averaging 41.9% of gross revenue from prison phone calls, which generate over $152 million per year in commission payments.

Further, prison phone rates vary widely among different states and even within the same state, despite the fact that all prison phone companies provide essentially the same service with the same security features. Local collect calls cost as much as $2.75 + $.23/minute (Colorado), intrastate collect calls are as high as $3.95 + $.69/minute (Oregon), and interstate collect calls range up to $4.95 + $.89/minute (Washington).

As prison phone contracts tend to be awarded based on the highest kickback percentage rather than the lowest phone rates, the usual competitive forces that result in lower prices to consumers are largely absent in the prison phone service market. Consequently, prison phone rates, which are primarily paid by prisoners’ families, are artificially and ...

Legislation barring the possession or use of cell phones by federal prisoners, the Cell Phone Contraband Act (S.1749), was signed into law by President Obama in August 2010.

The legislation comes in response to a rising number of cell phone confiscations by the federal Bureau of Prisons (BOP). In 2009, over 2,600 cell phones were discovered in minimum security prison camps. Another 600 were found in the BOP’s low, medium and high security facilities.

The new law makes possession or use of a cell phone or wireless device a crime punishable by up to a year in prison. The law also covers the smuggling of cell phones into BOP facilities.

“Now that this bill has become law, prison gangs will no longer be able to use cell phones to direct criminal attacks on individuals, to decide territory for the distribution of drugs, or conduct credit card fraud,” said Democratic U.S. Senator Diane Feinstein, a co-sponsor of the bill.

A report on the effectiveness of the new federal law is due by August 2011. The report will also address the prison telephone rates charged by the BOP. [See: PLN, April 2011, p.1].

The California legislature passed a similar bill, SB525, in ...