Fighting For Fair Phone Rates

by Deborah M. Golden

In 2000, a group of prisoners, loved ones of prisoners, and attorneys filed a lawsuit in the U.S. District Court for the District of Columbia challenging the high cost of collect calls from private correctional facilities. The case is Wright, v. Corrections Corporation of America, USDC DC case no. 1:00CV00293 (GK), in front of Judge Kessler. This group is represented by attorneys at Seliger & Elkin, in Chicago; D.C. Prisoners' Legal Services Project, in Washington, DC; and the Center for Constitutional Rights, in New York. The lawsuit claims, among other things, that the high costs of the phone calls violate anti-trust laws, the Eighth Amendment, and the Federal Communications Act.

We asked the court to make the case a class action, but the judge did not rule on that motion. Instead, in August 2001, the judge ordered us to go to the Federal Communications Commission ("FCC") because the case involves issues under its jurisdiction. However, the judge did not dismiss the case, but nothing will happen until FCC rules.

In front of the FCC, the process is being divided into two parts. The first part is a Petition for Rulemaking, in ...

The turbulent economy of the past decade has led many communities across America to foolishly seek prisons as a recession proof industry and rural welfare program for poor whites. But prisons can be a double edged sword, sometimes causing more problems than they solve. Private prisons can be especially duplicitous. Private prisons open and close at will as the need for bed space arises. While public prisons can do the same, powerful guard unions prevent that from occurring in all but the rarest of cases. Private prison guards are not unionized. Sayre, Oklahoma and Youngstown, Ohio are two towns that were lured by the seemingly easy money and extra jobs private prisons would bring. They ended up being burned by their own greed.


Sayre, Oklahoma


On April 23, 2000, a riot broke out at the North Fork Correctional Facility in Sayre, Oklahoma, a private prison owned by Corrections Corporation of America (CCA). One guard received 12 stitches to the head and spent six days in the hospital after seven prisoners allegedly beat and kicked him. The riot apparently began on the recreation yard and moved to the kitchen where another 15 prisoners caused roughly $12,000 in damage. All of the ...

The U.S. Sixth Circuit Court of Appeals has ruled that the administrative remedies exhaustion requirement of the Prison Litigation Reform Act (PLRA) must be met even where a court approved settlement reached prior to the PLRA's enactment does not so require. The case involves the telephone policies of the Federal Bureau of Prisons (BOP), including telephone access and rates and billing of prisoners and their families. The consolidated cases, Washington v. Reno, US DC D KY, Civil Action Nos. 93-217 and 93-290, were settled on November 3, 1995, prior to enactment of the PLRA. Prison Legal News has previously reported on this case [PLN, Sept. `96].


Michael Henry Smith, a BOP prisoner, sued BOP for violating the Washington v. Reno Settlement Agreement. Smith raised six objections to BOP's policy including the monthly time limits, the interruption of the phone call with prerecorded messages, the inability to make collect calls to courts and government agencies, and an unrepaired billing flaw in the telephone system. Following the grievance procedure outlined and approved in the settlement agreement, Smith filed a single grievance with his warden, then sued BOP under 28 U.S.C. §1331 and the terms of the agreement regarding the violations.


The U.S. ...

A renewed four-year no-bid prisoner phone contract was awarded in June, 2002 by the California Department of General Services to MCI WorldCom, a telephone conglomerate whose recent bankruptcy exposed the largest accounting fraud in US business history - $11 billion. The non-competitive award, giving MCI exclusive control of prisoner phone calls in 29 of California's state prisons (the other four went to Verizon Corp.) was let two months after MCI gave $13,000 and one month after Verizon gave $25,000 to Governor Gray Davis' political campaign fund. MCI spokeswoman Natasha Haubold called the timing "purely coincidental." Gov. Davis, under intense media pressure, had recently returned a $25,000 donation that preceded an $85 million no-bid award to software supplier Oracle Corp.


Charles Carbone, legal director of California Prison Focus - a San Francisco non-profit prisoner rights group - called the award "very disconcerting" because the contract "should have been opened to competitive bidding." But even if it had been, it is unclear for what factor the "winner" would have been selected. California, like many other states, exacts a contractor "kickback" as a flat percentage of all prisoner phone revenues. The previous two-year MCI contract generated approximately $35 million in annual kickbacks to ...

by Matthew T. Clarke

In February, 2003, The Nebraska Department of Corrections (DOC) has contracted with AT&T to set up what may be the most progressive prisoner phone service in the United States. The five-year contract makes AT&T the sole provider of local and long distance services, associated equipment, maintenance and administrative services to the approximately 3,700 prisoners in the Community Corrections Centers at Lincoln and Omaha, the Diagnostic and Evaluation Center at Lincoln, Hastings Corrections Center, Lincoln Correction Center, Nebraska Correction Center for Women, Nebraska Correctional Youth Facility at Omaha, Nebraska State Penitentiary, Omaha Correctional Center, Work Ethic Camp at McCook, and the Youth Rehab Treatment Centers at Geneva and Kearney.

AT&T operates more than 49,000 prisoner phone stations at over 3,000 U.S. prisons and jails. AT&T invented prisoner "collect calling only," 23 years ago. However, the contract calls for AT&T to offer the dialer a choice of calling collect or charging the call to a debit account. The ability of prisoners to call using a debit account has two favorable features: a 20% lower call rate and the ability to place international calls (which may not be done collect).

Prisoners are limited to 15 minutes of phone calls ...

by John E. Dannenberg


The California Supreme Court held that jail detainees' unprivileged (non-attorney) phone conversations and visits may be secretly recorded and that that information may be used to convict. This ruling, which reversed a 1982 decision holding such recording by the prosecutor to be misconduct, was based upon an intervening 1994 statutory amendment to California Penal Code (PC) §§2600, 2601, commonly known as the Prisoners' Bill of Rights.


Christine Loyd was convicted of arson and two counts of first degree murder. Unbeknownst to her, while awaiting trial in county jail, her telephone conversations with non-attorney visitors were recorded - at the request of the district attorney. Thus, pre-trial conversations with three visitors at the jail and with two persons via outside telephone were taped for the purpose of "gathering evidence."


Loyd's challenge was grounded in the California Supreme Court's decision in DeLancie v. Superior Court (1982) 31 Cal.3d 865, wherein such recordings were ruled to constitute prosecutorial misconduct. DeLancie relied upon then recently amended CA PC §§2600 and 2601, which protected prisoners' rights subject only to the limitation of "providing for the reasonable security of the institution." Such evidence collection, the DeLancie court noted, did not enhance or ...

New Mexico Supreme Court Affirms Dismissal of Phone Rate Suit


The New Mexico Supreme Court affirmed a district court's dismissal of an excessive phone rates case for failure to state a claim. Recipients of collect telephone calls from New Mexico jails and prisons brought suit for damages and injunctive relief against state, county and city defendants and several telephone service companies. Plaintiffs alleged that "Defendants entered into illegal agreements in which the telephone service companies were granted exclusive rights to provide collect telephone service at a higher rate than rates provided to the public. Plaintiffs argue that in return for entering into these agreements, the government correctional facilities received a commission paid by the telephone service providers that was calculated on the amount billed to the service provider from collect calls placed by inmates in their facilities."


The district court granted defendants' motions to dismiss for failure to state a claim, under the filed rate doctrine, the primary jurisdiction doctrine and sovereign immunity. Plaintiffs appealed and the court of appeals certified the matter to the New Mexico Supreme Court.


The Supreme Court concluded "that the district court properly dismissed plaintiffs' claims for damages under the filed rate doctrine, primary jurisdiction ...

San Mateo County Sues California Jail
Phone Service Providers


On July 7, 2002, the county of San Mateo, California, brought suit against Pacific Bell and AT&T alleging they cheated the county out of millions of dollars earmarked for a fund supporting prisoner services. The suit, filed in San Mateo Superior Court, seeks restitution of $2.4 million, plus interest.


San Mateo contracted with Pacific Bell and AT&T in 1993 to provide phone service to prisoners in eight separate county jail facilities. Pacific Bell and AT&T were to provide local and long distance service, respectively. Under terms of the contract, the companies were to pay up to 41% of gross revenues to the Inmate Welfare Fund which helps pay for a variety of prisoner services such as substance abuse and educational programs, law libraries, mental health services and recreation equipment.


The county assumed these payments were being paid in full until a 1999 audit revealed problems with the numbers. According to the suit, the audit estimated that Pacific Bell had been underpaying by as much as $600,000 per year. The suit further alleges that Pacific Bell purposely falsified and hid the real numbers, which also affected AT&T's payments since they were based ...

Matthew T. Clarke


Effective July 1, 2002, the Virginia legislature has enacted a law specifically designed to undercut a favorable ruling on prison phone rates by the State Corporation Commission (SCC).


Robert Lee Jones, a Virginia state prisoner, filed a complaint with the SCC concerning the rates charged consumers for collect telephone calls from prisoners at Virginia state prisons. The Virginia Chapter of Citizens United for the Reform of Errants (CURE) joined the suit by asking the SCC to examine the rates charged to people receiving collect telephone calls from Virginia Department of Corrections (DOC) prisoners. The Inmate Telephone System (ITS) is run exclusively by MCI WORLDCOM Network Services of Virginia (MCI) and charges the receivers of the intrastate phone calls the same rate as the public pays for operator-assisted collect calls in an emergency: a surcharge of $2.25 plus up to 37¢ per minute. The call automatically disconnects after 15 minutes and another $2.25 is charged if it is reinitiated.


On August 22, 2001, the SCC issued a Final Order overruling MCI's challenge to their jurisdiction under § 56-481.1 of the Code of Virginia and holding that MCI ITS rates were not competitive. § 56-481.1 places schedules of rates ...

Prisoner Phone Recordings Not Exempt From FOIA Disclosure


The Court of Appeals for the DC Circuit has held that a prisoner is entitled under the Freedom of Information Act (FOIA) to recordings of his properly monitored phone conversations with his attorney and that all government claims of FOIA exemptions must be
raised simultaneously.


Gregory Smith was incarcerated in a federal prison when he intentionally selected a phone monitored pursuant to Bureau of Prisons (BOP) policy to call his attorney, though unmonitored phones were available for this purpose. During the conversation, Smith's attorney admitted his representation of Smith was below constitutional standards giving Smith ammunition for an ineffective assistance of counsel post-conviction claim.


Smith then sought copies of the phone recordings from the BOP under the FOIA, 5 U.S.C. §552, and was denied based on "Exemption 3 of the FOIA because Title III of the Omnibus Crime Control and Safe Streets Act, 18 U.S.C. §2510 et seq., bars their disclosure."
On judicial review, the federal district court granted summary judgment for the BOP.


On appeal, the Court found the case turned on the interpretation of Title III which makes it unlawful for a person to "intercept" various forms of communications. The ...