As more and more prison systems use automated phone systems that automatically record and monitor conversations there are increased questions about the legality of such systems. This ruling arose from an indirect challenge to the Massachusetts Inmate Telephone System (MITS). The MITS requires prisoners to obtain a personal identification number to call 15 pre-approved numbers where the calls are recorded and monitored. [ PLN , Nov. 1994]

William Gilday is a Massachussets state prisoner. In 1984 he settled a lawsuit against the MA DOC over the censorship of his mail and the interception of his phone calls. The settlement enjoined the MA DOC from intercepting any wire communications to or from Gilday. When the MITS was implemented in 1993, Gilday filed a motion to hold the DOC in contempt for violating the terms of the permanent injunction. The district court entered summary judgment in favor of the defendants and dismissed the case.

The court of appeals for the first circuit affirmed. The ruling gives an extensive discussion to the interpretation and enforcement of injunctions and the doctrine of collateral estoppel. What makes this ruling newsworthy, however, are its numerous case citations with regards to prisoners' use of telephones, recording of ...

Effective June 20, 1997, the Department of Justice and its Federal Bureau of Prisons (BOP) enacted changes to 28 CFR (chapter V, subchapter A, Part 501) governing general management and administration of BOP prisons. The new rules allow the federal government to target BOP prisoners who are deemed to present a threat to "National Security" for the purpose of eliminating the ability of those prisoners to communicate with the outside world.

Section 501.2, titled "National security cases", states that "Upon direction of the Attorney General, the Director, Bureau of Prisons may authorize the Warden to implement special administrative measures that are reasonably necessary to prevent disclosure of classified information upon written certification to the Attorney General by the head of a member agency of the United States intelligence community that unauthorized disclosure of such information would pose a threat to the national security and that there is a danger that the inmate will disclose such information. These special administrative measures ordinarily may include housing the inmate in administrative detention and/or limiting certain privileges, including, but not limited to, correspondence, visiting, interviews with representatives of the news media, and use of the telephone, as is reasonably necessary to prevent the disclosure ...

by David C. Fathi, Jeff B. Crollard and Leonard J. Feldman

Lawyers representing two deaf prisoners in a lawsuit against the Washington Department of Corrections (WDOC) are seeking to broaden the suit into a class action on behalf of all deaf and hearing impaired prisoners in the custody of WDOC.

Duffy v. Riveland began in 1992, when Sean Duffy filed suit in federal court, alleging that WDOC's failure to provide him with a qualified sign language interpreter for a prison disciplinary hearing violated his rights under the Americans with Disabilities Act (ADA), the Rehabilitation Act of 1973 (RA), and Revised Code of Washington (RCW) 2.42.120. The district court granted summary judgment against Duffy, but the Ninth Circuit reversed and remanded for further proceedings. See Duffy v. Riveland , 98 F.3d 447 (9th Cir. 1996). [PLN. Jan. 1997].

Back in the district court, Duffy was consolidated with C.A. v. Lehman , another case brought by a deaf prisoner challenging WDOC's failure to provide qualified interpreters and other accommodations needed by deaf persons in prison. On December 1, 1997, lawyers for both plaintiffs filed a motion for leave to file an amended complaint on behalf of a plaintiff class consisting of "all ...

By now you've seen the Tele-Con, Inc. (TCI) ads in Prison Legal News . I first heard of TCI in June, 1997, when a PLN reader sent me one of their brochures. Collect calls from prisoners billed at 10¢ a minute? Yeah, right. This sounded WAY too good to be true. My skepticism radar went on full alert. But, what the heck, I had to check it out. So I wrote TCI a letter.

They sent me a lot of literature. One item was an article written by Tom Farley, editor and publisher of Private Line : A Journal of Inquiry into the Telephone System. I quote Farley here:

"This system from Tele-Con, Inc. lets inmates call from any prison in the country to anywhere in the United States for only 10 cents per minute and have these calls charged back to the party being called -- all without any sort of surcharge or additional long-distance costs."

Hey, it sounded legit. TCI's letter, brochure and promotional material looked first rate. But, still, there must be a catch. So I kept digging.

I exchanged several letters with TCI. They wanted to advertise in PLN (for obvious reasons). I wanted to find ...

Prisoners' loved ones are hit with a $3.00 surcharge [connect fee] whenever they accept a collect call from a California prisoner. The $3.00 surcharge is in addition to the per-minute billing.

The California Public Utilities Commission (PUC) approved this $3.00 surcharge after MCI presented it to them. The PUC approved MCI's request because of the terms of a Master Contract called the "Public Access Telecommunications System" created by the Department of General Services. The contract was created on "correctional advice" and it deals exclusively with "public pay telephones." Yet the "public" pays only a $1.05 surcharge when using a pay phone. Only those accepting collect calls from CA prisoners are forced to pay the $3.00 surcharge. Prisoners' families are also denied freedom of choice known as equal access, preference of carriers, or discounts available to other MCI customers.

Until 1992 the commissions derived from prisoner phone calls were deposited in the Inmate Welfare Fund (IWF). According to Richard Flores, who heads the IWF for California prisons, "this was stopped because the California Penal Code does not specifically authorize this. Now the monies are being deposited into the State General Fund. The problem with this is that there is no statute ...

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 prisoners on Lewis.

Within days ...

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).

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 ...

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).

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 the company did ...