A New York Supreme Appellate Court has sidestepped ruling on the merits of a lawsuit claiming that the practice of the New York Department of Correctional Services (DOCS) of receiving a commission from prisoner phone calls was an illegal legislative act. The Court held the action was procedurally barred under the statute of limitations.

The petitioners accepted collect phone calls from DOCS, which received a 57.5 percent commission on the cost of each call a prisoner makes through DOCS’ phone service provider, MCI Worldwide Communications. New York’s Public Service Commission approved MCI’s flat rate for such phone calls.

Petitioners sought declaratory and injunctive relief to prevent DOCS from collecting its commission, classifying that commission as legislative in nature. The gravaman of their complaint, however, was based on constitutional claims of free speech, equal protection and due process. The Court said such claims must be brought pursuant to CPLR article 78.

Article 78 has a four-month statute of limitations. That means, the Court held, that the claim accrues when the act became “final and binding upon petitioners,” or when DOCS’ determination became effective, rather than when petitioners received actual notice thereof.

Petitioners filed their action in February 2004 and the last ...

by David Reutter & Matt Clarke

In December 2007, it was reported that an investigator at Florida’s Charlotte County Jail was caught listening to telephone conversations between a prisoner and his attorney. As a result, the investigator, Kenneth Hill, was reprimanded and placed on road patrol.

Hill was investigating charges of introduction of contraband and attempt to defraud involving jail prisoner David Price. In all, Hill monitored five phone calls between Price and his lawyer, Michael Powell, in an attempt to learn about a possible drug exchange.

In a deposition taken by Powell, Hill admitted he had listened to the conversations. Later, however, Hill wrote a memo to the State Attorney’s office recanting what he said in his deposition. When internal affairs investigators questioned him, Hill stated he “did not listen to the conversations to gain an upper hand in court, for a loophole in the defense, or with any devious intent.”

When asked whether an attorney-client phone conversation should be monitored, Hill said, “That is a good question! If the attorney wants to speak in private, they should not be on a recorded line. You can’t know all of that.”

The Charlotte County Sheriff’s Office has since implemented a ...

On September 20, 2007, the Board of Supervisors for Dane County, Wisconsin enacted an ordinance amending the way the county contracts for jail telephone services. The ordinance requires that jail phone contracts (1) must not generate revenue to the county and (2) must be awarded to the lowest bidder consistent with public safety.

In addition to telephone contracts, the jail’s commissary and laundry services were similarly protected from price gouging. The only exception to the county’s amended contract requirements was for fees “associated with security of the jail or electronic monitoring for release programs.”

The county currently contracts with Inmate Calling Solutions, Inc.
(ICSI), which pays the county 57% of profits gener-ated from phone calls made by prisoners at the jail. Under ICSI’s contract, the phone calls cost an unconscionable $4.25 for the initial connection plus $.50 per minute, resulting in an $11.75 charge for a 15-minute call. The county’s jail phone revenue has amounted to almost $1 million annually.
County Supervisor Dave de Felice noted the county had become “addicted to this money,” and said “We’ve lost our moral compass and direction for a million bucks a year.”

Proponents of the ordinance who addressed the Board of Supervisors included ...

On May 10, 2007, Nevada Governor Jim Gibbons signed into law AB-106, a bill making it a felony for prisoners to possess a cell phone in prison or for a person to furnish a prisoner with a cell phone. Anyone charged with one of those offenses faces up to four years incarceration in a state prison. A person who brings a cell phone into a prison, but doesn’t give it to a prisoner could face misdemeanor charges.

The possession of cell phones in Nevada state prison was already prohibited by prison rules. The bill was considered necessary because a cell phone had been used by a prisoner to set up a 2005 escape. Nevada prisons have prisoner land lines which are monitored and recorded and which charge the call recipient outrageous rates to boot.

Prison officials state that signs will be posted inside and outside of state prisons to remind visitors and staff of the penalties for bringing a cell phone into a prison.

Source: Las Vegas Sun

Prisoners can make telephone calls only collect and to persons previously placed on a list limited to 10; calls can be recorded and monitored; calls are automatically terminated when the outside party tries to transfer the call or make it a three-way call. The monitoring feature is disabled for persons identified and verified as attorneys. The telephone list can be changed every 120 days, or more frequently under some circumstances. Public officials may not be placed on the lists, but other arrangements are made to contact such "privileged persons" on a case by case basis. These calls are subject to monitoring.

Courts are divided over whether there is any First Amendment right to telephone access at all. The court does not resolve this question but upholds the restrictions under the Turner standard. They are content-neutral and unrelated to suppressing expression. They are logically connected to legitimate security interests in avoiding escape plots and the planning of assaults, other violent acts, and harassment of people outside prison. It is a "common sense assumption" that telephone restrictions serve legitimate penological purposes. Prison officials need not present evidence that the evils they wish to prevent have actually occurred.

Prisoners have alternative means of ...

The plaintiff civilian employee found a microphone by her desk; her supervisor admitted he had bugged her because he thought there were racial problems in the office. He was suspended; nothing happened to her. She had no claim against the department under the federal Crime Control and Safe Streets Act because the elements of intent and interception were missing (nobody knew if the microphone had ever actually worked). She had no Title VII claim because no adverse employment action was taken against her. Her retaliation claim is unsupported by any evidence or any adverse employment effect. See: Thomas v. Ohio Dept. of Rehabilitation and Correction, 36 F.Supp.2d 997 (S.D.Ohio 1997).

Court Upholds Photocopying of Jail Prisoner's Mail, Suppression Denied

The detained criminal defendant had an expectation of privacy in his non-legal mail that he may assert by moving to suppress evidence in his prosecution. Although applicable regulations permit prison authorities to inspect and read incoming and outgoing non-legal mail, "that permission is not boundless." (289) Incoming mail may be read "to maintain security or monitor a particular problem confronting an inmate"; outgoing mail, if there is reason to believe it "would facilitate criminal activity." (289, quoting regulations) The fact that the prisoner signs a form acknowledging that his correspondence may be opened and read "should be construed in light of applicable law and the necessities that obviously gave rise to the form. The reason for the regulations the government cites is to assure that prison officials have all the authority they need to maintain institutional security for both inmates and staff, and to further the legitimate objectives of the correctional system. ... He was not signing away any remnant of protection the law otherwise might have afforded him." The government seems to have recognized this in seeking a warrant.

The defendant's challenge to the breadth of the warrant, which was ...

by Matt Clarke

On June 1, 2007, the Alabama Department of Examiners of Public Accounts released an audit report critical of the funding practices of the state's Department of Corrections (DOC).

The DOC operates 19 prisons, 10 work release centers, three community work centers and a pre-release center, and contracts with two out-of-state facilities to accommodate its more than 25,600 in-custody state prisoners. The department is funded at $349 million a year, which works out to $37 per prisoner per day -- about half the national average. Due to this underfunding, guards are poorly paid, aging prisons are poorly maintained and prisoner healthcare is abysmal, leading to lawsuits.

Instead of seeking a more appropriate level of funding, the DOC has been trying to close the budget gap -- estimated to reach $30 million in 2008 -- by accepting contractual kickbacks for expensive prison phone calls and by hitting prisoners with various fees that have totaled $13 million since January 2001.

A 15-minute out-of-state phone call originating from an Alabama prison costs a prisoner's family $14.15, or almost a dollar a minute. This money is often collected from financially-strapped families whose primary breadwinner is unable to contribute to their income due ...

AT&T Settlement Includes Fines, Reimbursement for Overcharging Recipients of Phone Calls From Washington Prisoners

by Michael Rigby

Telephone service provider AT&T has agreed to reimburse the families and friends of Washington prisoners who were overcharged on collect phone calls made from two state prisons during a four month period in 2005.

Also pursuant to the December 13, 2007 settlement agreement, AT&T will pay $302,705 in fines levied by the Washington Utilities and Transportation Commission (UTC) for the unauthorized overages.

In August 2005, Seattle resident Richard Laxton filed a complaint with the UTC noting a discrepancy in the charges applied to two collect phone calls made from the Airway Heights prison. AT&T charged Laxton an already outrageous $15.75 for a 20-minute phone call from the prison. But Zero Plus Dialing, a billing agent for AT&T, charged an even more egregious $22.22 for the same phone call.

According to the UTC investigation, Zero Plus Dialing was charging a connection fee of $3.95, plus 89 cents per minute, plus a 47-cent prison surcharge for calls made from Airway Heights and the Washington State Penitentiary. The UTC found that Zero Plus Dialing's billing scheme exceeded the allowed prices of $3.95 for a connection fee ...

Over 1,000 cellphones and Blackberrys were confiscated in California's 33 prisons in the past year. While such contraband was at a trickle seven years ago, the technology has reduced the size of these items to permit a veritable flood today -- 221 alone at the Solano State Prison in the first six months of 2007. At the going rate of $400 to $600, some employees have been caught smuggling up to 50 phones at a time.

Anthony Kane, Associate Director for the California Department of Corrections and Rehabilitation (CDCR), told legislators recently, "It's a tremendous problem." The dangers are plain. Gang members can use the phones to clandestinely direct activities on the streets from behind the walls, noted Gary Hearnsberger of the Los Angeles District Attorney's Hardcore Gang Division. Imprisoned gang leaders could direct killings, run drug operations or intimidate witnesses, he stated. Although mail and normal phone calls are screened to prevent such activities, cellphones escape oversight. Of course, if technology can permit monitoring, this could prove a boon to catching and prosecuting such miscreants.

State Senator Alex Padilla wrote Corrections Secretary James Tilton requesting a full investigation, noting that such devices in the hands of maximum security prisoners ...