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Articles about Phone Justice

Experiment in Access: Law Libraries Eliminated in Arizona Prisons

The August 1996, issue of PLN reported Lewis v. Casey, 116 S.Ct. 2174 (1996). The Lewis court, though not explicitly overturning Bounds v. Smith, 430 US 817, 97 S.Ct. 1491 (1977), redefined the meaning of "court access" as it applies to prisoners. The Bounds court held that prison officials are required "to provide indigent inmates with access to a reasonably adequate law library."

The Lewis court redefined the scope and intent of Bounds by relying instead on its experimental doctrine and actual harm clauses. "Moreover," justice Antonin Scalia wrote for the majority, "the assumption of an actual-injury requirement seems to us implicit in the opinion's statement that 'we encourage local experimentation in various methods of assuring access to the courts."'

On remand from the Lewis court, on July 1, 1997, district judge Roger G. Strand, based strictly on the merits of "actual harm," which the supreme court in Lewis said did not warrant "system-wide relief'' dismissed the plaintiffs legal access claims with prejudice.

Strand's ruling essentially closed the book on Lewis. "The class action case challenging ADOC's legal access program is over," said Marjorie Rifkin, staff counsel for the ACLU-National Prison Project which represented Arizona ...

Alabama Phone System Upheld

The court of appeals for the eleventh circuit held that a lower court had erred in finding that a telephone calling list of ten people violated prisoners' first amendment rights. Freddie Pope, an Alabama state prisoner, filed suit challenging a prison policy limiting to ten the number of people Alabama prisoners can call. The ten person list can be changed every six months. The district court ruled in Pope's favor, holding that the list restriction violated his first amendment rights. The court ordered prison officials to expand Pope's phone list to fifteen people.

The appeals court reversed, holding that in assessing the constitutionality of the phone list policy the district court did not follow the analysis set forth in Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254 (1987). Applying Turner, the appeals court held that the phone list limit was constitutional because it bore a "reasonable relation to legitimate penological objectives." Namely, the unproved assertion that the restrictions would curtail criminal activity and harassment of judges and jurors. The appeals court vacated the district court's injunction in the case. See: Pope v. Hightower, 101 F.3d 1382 (11th Cir. 1996).

Illinois DOC Phone System Upheld

A federal district court in Illinois held that the phone system used in the Illinois DOC does not violate the first amendment. Four Illinois state prisoners at the Western Illinois Correctional Center (WICC) filed suit against several prison officials and AT&T claiming the prison phone system violated their first amendment rights.

Prior to November, 1994, Illinois prisoners could place operator assisted collect calls anywhere in the United States. The prisoners did not have to provide prison officials with the names or phone numbers of the people they were calling. In November, 1994, the prison began using a new collect call phone system.

The new system allows prisoners to access the phones through a Personal Identification Number (PIN). Prisoners must provide their keepers with a list of up to 30 people they wish to call; the list can be amended on a weekly basis. The prisoner must provide prison officials the callee's name, phone number, address and relationship to the prisoner. The amendment takes two days to complete and collect calls can be placed to anyone on the list. All calls are monitored and recorded. If a prisoner identifies a number as that of an attorney, the prison officials activate software which they claim ensures that calls to that number are not recorded. The software automatically cuts off phone calls where any attempt is made to use three way calling. Both the prison system and AT&T block calls on their own initiative or on the callee's request.

In their suit the plaintiffs claimed they had not been able to contact their attorneys, relatives had not accepted their phones calls and people they wanted to call did not want their personal information released to prison officials. On the defendants' motion for summary ...

Connecticut Supreme Court Upholds Phone and Mail Restrictions

In the February, 1995, issue of PLN we reported that Connecticut state prisoners had filed a class action suit in state court challenging prison regulations that required the recording of prisoner phone calls and that prisoners, outgoing mail could be read and censored by prison officials.

The Connecticut supreme court ruled entirely in the prison officials' favor, holding that the phone regulations did not violate any state statute or constitutional right, including the right to be free from unreasonable search and seizure. The court held that prison rules allowing the reading of prisoners non-legal mail was permissible and that prisoners did not have a constitutional right to be allowed to call their attorneys at the lawyer's request.

When addressing the prisoners' state law constitutional claims the court noted the condition of Connecticut prisons in 1818 when the state constitution was written. At that time prisoners were kept in a mine shaft below ground in horrid conditions described by the court as a "hellhole." Thus, any claim that prisoners had greater rights under the state constitution than the federal constitution was misplaced. See: Washington v. Meachum, 680 A.2d 262 (CT S.Ct. 1996).

Reach Out and Bilk Someone

Florida DOC officials were found in 1995 to have fraudulently awarded a contract to North American Intelicom (NAI) to provide "inmate telephone services" to 35 Florida state prisons. Rival communications company MCI filed a protest because they were not awarded the contract, even though their bid scored higher than NAI's in the DOC bid ranking system. [See: "Phone Graft in Florida," PLN Vol. 7 No. 6] An investigation ensued. Senior DOC officials were implicated in a bid rigging scheme, and the contract was then awarded to MCI in November, 1995.

A later investigation by the Florida Public Services Commission (PSC) revealed that during the period in which NAI was providing telephone services, the company routinely over billed people who accepted phone calls from prisoners using NAI phones. NAI subsequently agreed to refund $400,000 to consumers who were bilked by the overcharges. [See: "Florida Utilities Commission Refunds Phone Kickbacks," PLN v.7 #9].

Less than a year after MCI began providing "Inmate telephone services," the company was under investigation for overcharging consumers, imposing a $3 surcharge on collect calls placed by prisoners -- triple what state regulations then allowed.

Kathy Pounds, MCI's director of public policy, Southern Region, says ...

Kansas Prisoners Lose Welfare Fund Suit

A federal district court in Kansas held that state prisoners were not entitled to injunctive relief regarding how money from the Inmate Benefit Fund (IBF) was spent by the DOC. Kansas state prisoners filed a class action suit challenging how the Kansas DOC spends money generated by prisoner phone calls (in the form of kickbacks from the phone companies) that is deposited in the IBF. The IBF receives about $1 million a year in phone kickbacks. The DOC uses some of the money to pay for a Victim Notification Program and a video imaging system that allows computers to generate graphic images of prisoners. Almost $250,000 is spent on these two projects annually.

The prisoners claimed that use of the funds for these projects, which provided no benefit to prisoners, deprived them of their due process right to use of the funds. The court rejected all the claims. Analyzing the relevant Kansas statutes the court held that no due process liberty interest accrued to the prisoners. "Given the plain language and the alternative construction of the amended statute, no reasonable reading gives rise to a legitimate expectation that all expenditures from an inmate benefit fund must in some way ...

Call Recipient's Rights Not Violated in Phone Taping

The court of appeals for the second circuit held that the rights of the free person accepting a collect call from a prisoner are not violated when the calls are taped and monitored by law enforcement officials. It also held prisoners consent to the taping of their calls if they know the calls are taped and use the phones anyway.

This case originated as a motion to suppress in a drug racketeering case that involved several murders as well as drug distribution. Donald Green was first convicted in state court and sent to a New York state prison where he continued his involvement in drug trafficking, issuing commands from prison over prison phones that were plainly labeled as being monitored. Derwin Rodgers received many of Green's calls outside the prison. At their criminal trial in federal court the defendants moved to suppress the incriminating tapes of Green's phone calls. The motion was denied, the defendants were convicted and appealed.

The relevant portion of the appeals court ruling was that dealing with the phone calls. The court rejected the argument that Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510-22 ...

ADA Requires Phones for Deaf

A federal district court in Michigan held that the Americans with Disabilities Act (ADA), 42 U.S.C. 12131 and the Rehabilitation Act of 1973, 29 U.S.C. § 794, requires state prison officials to provide prisoners and the people they call with Telecommunications Device for the Deaf (TDD). The court also held that the ADA and RA apply to state prisons and that congress has eliminated the states' eleventh amendment immunity by passage of the two acts. Because the ADA is a still developing area of law we report this case in detail. This case is also important because the disabled person involved was not the prisoner but a prisoner's visitor. The court held that ADA's provisions forbidding retaliation against those who report ADA violations applies to prisons.

Grant Hendrick is a Michigan state prisoner who can hear, his fiancee Linda Niece is deaf. Because Niece is deaf she cannot communicate over the phone with Hendrick without the use of a TDD (this device is a keyboard and screen which hooks up to a phone and allows parties to type messages to each other. AT&T offers a TDD service via operator at no charge but it must be accessed by calling a toll free number.) Niece attempted to donate a TDD to the prison to allow Hendrick to call her and for deaf prisoners at the prison to communicate by phone. Prison officials refused the donation and refused to provide access to a TDD. The MI DOC does not allow for toll free calls and prison officials refused to make an exception so Hendrick could call AT&T's free TDD service.

Hendrick filed an ADA complaint with the Department of Justice against the MI DOC. Under DOJ pressure the MI DOC made plans to install a TDD system at a maximum security prison, Hendrick was held at a minimum security prison. The MI DOC then moved Hendrick to the maximum security prison ostensibly to use a TDD. Hendrick complained that he was being retaliated against. After a DOJ investigator told prison officials he was referring the case to the US attorney's office for prosecution for retaliating against Hendrick the defendants moved Hendrick back to minimum security, compensated him for lost wages and reinstated his job. Eventually a TDD was installed but its access was severely limited; prisoners could only use it in a counselor's office at the ...

ADA Ruling for Deaf New York Prisoners

The U.S. District Court for the Southern District of NY ruled in favor of hearing impaired New York prisoners litigating a number of constitutional and statutory issues relating to the imprisonment of hearing impaired prisoners. The court held that the defendants, New York Department of Correctional Services (DOCS), violated all statutes and constitutional provisions under which the prisoner plaintiff class sought relief, thus warranting declaratory and injunctive relief. The court provides a thorough analysis of the rights of hearing impaired prisoners under the ADA and the Rehabilitation Act of 1973. This ruling will be of interest to prisoners litigating under those statutes, particularly hearing impaired prisoners.

Declaratory judgment was granted to the prisoner plaintiffs in the following areas: The failure of DOCS to "provide interpretive services for various aspects of reception and classification;" the "absence or inadequacy of assistive communications devices for telephone and television and the absence of visual safety alarms violates both the ADA and the Rehabilitation Act;" the DOCS failed "to make reasonable accommodations to facilitate full participation by class members in educational, vocational and rehabilitative contexts such as classes and counseling sessions ... ;" DOCS failed "to provide qualified interpreters and/or other assistive devices during medical ...

No Right to Unmonitored Prison Calls

The court of appeals for the ninth circuit held that pretrial detainees and prisoners retain no statutory or constitutional right to privacy in their outgoing phone calls. From the outset readers should note this is a criminal case, not a civil rights action challenging a prison or jail phone monitoring/recording policy. Jeffrey Van Poyck was placed in the Metropolitan Detention Center (MDC) on bank robbery charges. Upon arrival he signed forms acknowledging all phone calls were recorded and monitored and that by signing the form he was consenting to the recording. After signing the form Van Poyck duly used the phone and promptly incriminated himself. The district court denied his motion to suppress the incriminating recordings. The appeals court affirmed.

The court analyzed Van Poyck's claims under the fourth amendment and concluded that prisoners and detainees have no subjective right to privacy in their outgoing calls. Numerous cases where courts have declined to suppress incriminating prison phone calls were cited. "We hold that any expectation of privacy in outbound calls from prison is not objectively reasonable and that the Fourth Amendment is therefore not triggered by the routine taping of such calls." The court also noted that Van ...