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Articles about Phone Justice

Court Enjoins BOP Phone System

On October 13, 1993, Judge Henry Wilhoit of the U.S. District Court in Kentucky entered a preliminary injunction barring the federal Bureau of Prisons from implementing its Inmate Telephone System (ITS). The case is Washington v. Reno, case number 93-217 and 93-290. Readers should note that so far this is an unpublished opinion that cannot be cited for precedent, but it does affect all BOP facilities in the U.S.

Conchita Washington and several other prisoners at the federal prison for women in Lexington, Kentucky, filed suit claiming that the BOP is ITS discriminates against poor and disabled prisoners. The BOP began implementing a phone system, ITS, which changed its phone system from one which allowed collect calls only to one which is direct dial requiring prisoners to pay for the calls. In order to be able to make phone calls prisoners must also participate in the "Inmate Financial Responsibility Program," IFRP. The IFRP is a coercive program designed to force prisoners to pay all fines, restitution, etc. All funds received by a prisoner from any source are subjected to IFRP collection. Thus, prisoners who do not wish to participate in the IFRP receive virtually no phone privileges. Non-IFRP ...

Death Row Prisoners Entitled to Limited Contact Attorney Visits

This case involves a class action suit filed by Oklahoma death row prisoners and prisoners in the control unit of the Oklahoma State Penitentiary. The case provides a revealing look at the mentality driving the construction of control units.

The OSP control unit is called H Unit. It was opened in November of 1991, planned and designed by an informal DOC committee. The court states: "The philosophy and design of the new unit were modeled on the federal penitentiary at Marion, Illinois, the highest security facility in the federal prison system. There is no direct proof or reasonable inference that this non-contact philosophy was in response to any specific act or situation that existed in H block. Rather, it appears to be a general philosophy that the less the contact the less the danger."

When H Unit opened prison officials had made no provision for confidential attorney visitation. The current attorney-client visitation provisions are what is being challenged in this suit. The accommodations have the attorney separated from his client by grated plexiglass and a barred window. There is a pass-through space 16 inches wide and 4 inches high. All the attorneys and clients who have used the cubicle testified ...

Pro Se Detainee Has Access Rights

A detainee held in the Metropolitan Correctional Center (MCC) at San Diego, named Gust Janis, was awaiting trial on federal drug manufacturing and possession charges. Janis was also involved in a number of other criminal and civil cases, telling the court he has some sixty-seven civil actions pending. Janis filed a motion, in connection with his criminal case, claiming that his right of access to the courts was effectively denied by various shortcoming in the legal research facilities at the jail (MCC).

The threshold question was whether the right of access to the courts includes general civil litigation, as the issue had not been squarely addressed in the ninth circuit. The district court adopted the reasoning of the fifth and eleventh circuits, holding that the constitutional right of access to the courts includes access for general civil legal matters. This was an issue because the MCC law library did not provide materials for civil research.

The court ordered that Janis be given access to state law on various subjects (because of the detainers on him from several states), that selected civil law books be provided to him, that the federal criminal law in the jail's law library be expanded ...

The Telephone Game

Nearly a year and a half after a scandal about purchasing involving the North Carolina Coin Tel Company has passed. The grand jury has finally indicted two people in the illegal activities.

The indictments handed down against D.R. Hursey and Michael A. Weaver focus on a $1.2 million dollar contract for maintenance of prison pay phones used by prisoners.

Hursey is the correction department's former director of departmental services, which controlled all purchasing for state prisons. Weaver was an AT&T account executive and one of the owners of Coin Tel Inc., the company that received the maintenance contract.

Auditors said the purchasing irregularities cost tax payers $7.2 million in wasted or misspent funds.

Former Corrections Secretary Aaron Johnson resigned last year in the wake of the purchasing problems. Six other officials either resigned, retired or were transferred to other state jobs.

According to the indictments handed down by the Wake County grand jury, Hursey and Weaver engaged in a bid rigging conspiracy between January, 1989, and September, 1992, that involved contracts for the purchase of telephones and telephone services. These included the collection of coins from prison pay phones, prison pay phone maintenance and management ...

MI Phone Rip Off

I have read the article which appeared in PLN (Vol. 4, number 4) by Paul Wright about the prison telephone system. I was amazed to learn that the Washington DOC telephone contract states that the commission checks are sent to each institution and made payable to the Inmate Welfare Fund. That is not the case in Michigan.

The Michigan DOC keeps" all commissions paid by the telephone companies in spite of our protests. The Inmate Benefit Fund does not receive a single penny. We are currently litigating the matter and we hope to be successful.

B.K. Jackson, MI.

Court Dissolves 1-800 Injunction

Iowa state prisoners filed suit seeking preliminary and injunctive relief against an Iowa prison policy prohibiting them from calling their attorneys toll free 1-800 numbers. They claimed this practice violated their right of access to the courts.

The district court agreed and granted a preliminary injunction. Prison officials appealed and the court of appeals for the eighth circuit vacated and remanded.

The appeals court held that the lower court had abused its discretion in granting the injunction because the prisoners had shown neither irreparable harm nor prejudice from the prisons toll free number policy. Court access is viewed as a whole rather than in parts. The appeals court held that because the prisoners ability to file papers in court, meet deadlines and process litigation was not affected, they were not entitled to a preliminary injunction. The case was remanded back to the lower court for further proceedings. See: Aswegan v. Henry, 981 F.2d 313 (8th Cir. 1992).

DOC Phone Rip Off

On March 16, 1992, the Washington DOC signed a contract with AT&T (American Telephone and Telegraph) for the latter to provide telephone services to all the prisons in the Washington prison system. AT&T in turn has subcontracted with three Local Exchange Companies (LEC's) to provide local telephone service.

The contract covers two types of LEC public telephones. One is services for prisoners who can only make collect calls. The others are public phones for use by staff and visitors which can make collect and pay calls.

The subcontractors and the facilities they service are: GTE for the Washington State Reformatory, Twin Rivers, Indian Ridge and the Special Offender Center. PTI does Clallam Bay, Purdy, Olympic CC, Pine Lodge Pre Release and Coyote Ridge. USWC does Shelton, Walla Walla, McNeil Island, Airway Heights, Tacoma Pre Release, Cedar Creek and Larch.

The DOC does not own the telephone monitoring and recording equipment it has installed. Rather, as part of the contract each telephone company is being contracted to provide and maintain: public telephone sets, all associated equipment, lines, dictaphone recording/monitoring equipment, call timing and call blocking software. Title to all the phones, recording equipment, etc., remains with the contractor. The DOC has agreed to defend against any and all litigation challenging the contractor's provision of call recording and call monitoring equipment. That provision will extend beyond the actual life of the contract, which is for five years.

Each contractor provides the superintendent of each prison with a monthly report that details, by institution, the date, time, payphone number, called number and length of each call made from a prison telephone. Using this information prison officials can target specific phone numbers called or dates and times to choose which calls to listen to after they have been recorded. The Washington DOC policy on phone recording, DOC Policy 450.200, states that the tapes of all phone calls will be maintained for at least a one year period.

With regards to the kickback that the DOC receives from prisoner phone calls the contract states: "7.A In return for the right to provide Inmate and Public Telephone Service under this agreement, Contractor GTE, PTI and USWC shall each pay to the department on a monthly basis the commissions set forth in attachment 1 to this agreement. Each carrier's monthly commission checks shall be sent to the superintendent of each covered correctional institution or work release program, made payable to the Inmate Welfare Fund, unless and until the Department shall specify a different payee for the carriers commission checks."

The commission rates that the contract specifies is 24% of billed revenues from calls carried by ATT, 27% for those calls carried by GTE and PTI, and a whopping 35% for all calls carried by USWC. Needless to say, the telephone companies aren't giving the DOC these commissions out of their profit margin, rather they are adding this on as a surcharge to what they bill the people we call.

The contract states that it is the responsibility of the contractor to abide by the rates established by the FCC (Federal Communications Commission). I've done some preliminary research into this matter and it seems that 47 U.S.C. § 202-207, which prohibits telephone carriers from discriminating among their clients and charging them more, would provide a means by which to challenge this. 18 U.S.C. § 2510 and 2511, limit the conditions in which phones can be tapped or recorded by the government. The law applies to prisons, See: Kimberlin v. Quinlan, 774 F. Supp 1 (DC DC 1991); United States v. Amen, 831 F.2d 373 (2nd Cir. 1987); but has been held not to apply to prisoners' calls because prison officials are considered law enforcement personnel. See: United States v. Noriega, 917 F.2d 1543 (11th Cir. 1990); Lee v. Carlson, 645 F. Supp 1430 (SD NY 1986).

My thinking is that a challenge to both the extortionate surcharge and the monitoring would have to be brought by the outside person receiving the phone call. As a matter of standing the prisoner making the call is not affected because they don't pay the phone bill and are not being provided with the service. Thus the prisoner does not have standing to challenge the practices. There are other issues as well such as the outside person's right to choose the carrier that carries the call, etc. The outside people can challenge the fact that their right not be charged discriminatory prices under 47 U.S.C. § 202-207 is being violated by this practice. They can also assert their right to privacy under the fourth amendment concerning the telephone recording/monitoring. All the published cases ...

Federal Judge Says Prisoners Denied Access to Courts

Prisoners in Arizona have been denied adequate means to communicate with lawyers, perform legal research, and otherwise receive legal assistance, according to a recent decision by United States District Judge Carl Muecke in Phoenix, AZ.

Ruling in Casey v. Lewis, a class action lawsuit brought on behalf of all Arizona prisoners, Muecke wrote that the Department of Corrections' system for allowing prisoners access to the courts "fails to comply with constitutional standards."

"It's an important victory for the Constitution," said Stuart H. Adams, Jr., a lawyer with the National Prison Project of the American Civil Liberties Union in Washington, D.C., which represents the prisoners. "The right to petition the courts is in many ways the most basic and important right prisoners have." In a 36-page opinion, Muecke found that prison officials failed to provide adequate legal assistance to prisoners in segregated housing, and to those who are illiterate or do not speak English; failed to provide confidential photocopying services for prisoners' legal documents; and arbitrarily denied prisoners confidential telephone calls with their attorneys. Muecke added that he will appoint a Special Master to work with lawyers on both sides of the lawsuit in developing an order to remedy ...

Telephone Announcements Halted

PLN recently reported that Creations , a prisoner rights group in North Carolina, had filed suit concerning the practice of U.S. Sprint operators of announcing the fact that a call was originating in a prison and the limitations on phone services available to prisoners. We have recently received an update from Richard Davis, the plaintiff in the suit.

Richard sends us a letter from the lawyer handling the case advising that U.S. Sprint had halted the practice of announcing that calls were originating from prisons. This is a major victory! Readers should note that Richard also sued U.S. Sprint (the telephone service provider) under the Federal Communications Act (FCA) of 1934 for their participation in the South Carolina DOC's phone announcements. Apparently corporate lawyers are more willing to stop an unlawful practice than state attorney generals. When corporate lawyers litigate it costs their shareholders money and there is accountability. When the attorney generals office litigates losers into the ground there is no accountability and, as a lieutenant at Walla Walla once told me about litigation costs "it's just taxpayers money anyway."

Any suits challenging telephone service and provisions should include the telephone company as well and ...

Indiana Control Unit Prisoners File Suit and Strike

On May 4, 1992, the Indiana Civil Liberties Union filed a class action suit in the Marion County, Indiana, Superior Court. The action is Taifa Vs. Bayh, and challenges numerous conditions of confinement at the Westville, IN, Maximum Control Center. It is interesting to note the action is being filed in state court. Because the suit claims prison officials have violated several state statutes only a state court can rule on the state law claims. It may also be that the Indiana state constitution provides more protection than the federal constitution. In recent years the US Supreme Court has steadily narrowed the scope of 8th amendment protection available to prisoners from the federal courts.

The suit directly challenges the philosophy behind the "supermax" control unit prison, both at Westville and another "supermax" under construction in Sullivan, IN. The plaintiff class is currently over 80 men housed at the MCC. The suit claims that Indiana prison officials have violated state law by administratively housing prisoners in MCC for long periods of time when Indiana statutes limit the conditions where prisoners can be segregated. The criteria for MCC placement is vague, subjective and discretionary allowing prisoners to be placed in MCC in ...