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 …

by John E. Dannenberg

A class-action lawsuit launched by Michigan state prisoners in 1988 which ultimately cost taxpayers $7.5 million in litigation costs was settled on November 4, 2003, resulting in prisoners gaining appropriate classification and psychiatric services, plus restrictions on administrative segregation that exacerbates serious psychological illness. In addition to retaining personal word processors, prisoners also attained expanded law libraries with 25 hour/week access and adequate photocopies, prompt legal mail processing, and longer attorney phone calls. Specified winter protective clothing was permitted as well. The acrimonious history of the case is replete with repeated attempts by the state to recuse Ingham County Circuit Judge James Giddings, culminating in a public rebuke by former Michigan Governor John Engler denigrating Judge Giddings as a "lunatic who must have gotten a mail-order law degree."

Prisoners John Cain, Raymond Walen, Jr., Elton Mizell, Paul Dye, John Ewing, Delbert Faulkner, C. Moore, Ramon Cobos and Ronald Simpson-Bey sued the Michigan Department of Corrections (MDOC) in the Michigan Court of Claims. Initially, the suit was a reaction to MDOC's then newly-announced tougher disciplinary system, as well as restrictions on prisoner clothing and personal property. Judge Giddings blocked the new regulations, setting the stage for …

A New Mexico federal district court has entered a preliminary injunction that enjoins jail officials from prohibiting class counsel from having access to the jail, its prisoners and staff, its records, and from imposing time limits on telephone calls to lawyers by prisoners. This is a class action suit that includes "all persons with mental and/or developmental disabilities who are, or in the future may be, detained at" the Bernalillo County Detention Center (BCDC).

A settlement agreement between the parties was entered on November 6, 1996. On or about June 17, 2003, the last of the class and sub-class members were transferred from BCDC to the newly constructed facility, the Metropolitan Detention Center (MDC). Jail officials then prohibited class counsel from interviewing class members and staff at MDC and changed the telephone policy for prisoners to only allow them five minutes to talk with counsel. Class counsel tried to mediate the matter with jail officials, but those officials would not allow them access to MDC unless they agreed not to be paid for their visits and not to report to the court anything concerning MDC. Class counsel moved for a temporary restraining order seeking access to MDC.

Jail officials …

On February 25, 2002, a county jail prisoner in Port Hadlock, Washington brought a class action lawsuit against the Jefferson County jail alleging near barbaric jail conditions that include inadequate health care, frigidly cold cells, broken plumbing, flooding, and inadequate clothing and bedding.


The prisoner who filed the suit, Shawn Orndorff, is being represented by attorneys Aaron H. Caplan and David C. Fathi of the American Civil Liberties Union of Washington and the National Prison Project. The suit was filed in federal district court in Tacoma and has been certified as a class action.


The defendants in the suit, Jefferson County, Jefferson County Sheriff Peter G. Piccini, Superintendent of Corrections Carla Schuck, and jail sergeant Steve Richmond, are all accused of subjecting the prisoners at the jail to actual or imminent harm from the lack of "adequate medical, dental, and mental health care," as well as "physical violence" and "inadequate environmental health and sanitation" conditions. The suit further alleges that prisoners are being denied proper access to the courts, and are denied all access to books, magazines and newspapers.


Orndorff, who at the time the suit was filed was serving a sentence on one charge and awaiting trial on another, …

The U. S. Court of Appeals for the Fourth Circuit affirmed a federal district court's $276,660 damage award to South Carolina state court judges who alleged that Greenville County law enforcement officers ran unlawful wiretaps on their telephones and recorded their conversations for 4 years.


In 1994, Greenville County, South Carolina, completed the construction of a new Detention Center which included a jail, visitation facilities, a separate section with a courtroom and offices for judges, and a system that recorded incoming and outgoing telephone calls 24 hours a day, 7 days a week. County officials claimed that the system was intended to record the conversations of administrative personnel and guards in the jail however the system also recorded conversations on the judges' telephones and did so without their permission or knowledge.


In August 1998, plaintiff Michael Abraham, a City Administrative Judge, began to suspect that his telephone was wiretapped. When confronted, James McDonald, the jail administrator, confirmed Abraham's suspicions. On September 30, 1998, Greenville County deactivated the entire recording system.


Thereafter, Abraham and several other state court judges brought suit against Greenville County and four individual defendants under the federal wiretapping statute, 18 U.S.C. §2501 et seq. Section 2520(c)(2) of …