Talk Isn't Cheap

• Author: Lorelei Laird
• Pages: 18-19

National

Pulse

The Docket

18 || ABA JOURNAL MAY 2018

to withhold evidence fr om the

defense in a host of circumst ances.

They include whet her police are

conducting a c ontinuing investiga-

tion or whether d isclosing evidence

could endanger witnesses.

Defense attorneys say Cuomo’s

proposed right of redact ion is far

too broad, allowi ng prosecutors too

much leeway in determining what

to disclose. “The governor ’s pro-

posal as it curr ently stands is very,

very problematic,” says defense

lawyer Marv in Schechter, a past

president of the New York State

Association of Cri minal Defense

Lawyers. “It probably represents

several steps back .”

THE SHIELD APPROACH

Prosecutors counter tha t it’s

sometimes necessar y to withhold

material to shield complain ants

and other w itnesses.

“We want to make sure we’re

protecting our vic tims,” says Scott

McNamara, Oneida Count y district

attorney and president of the

District Att orneys Association

of the State of New York. Cuomo’s

proposal “took into consideration

our concerns when it comes to

witness intimidat ion or witness

elimination in some case s.”

McNamara adds that the concer n

is particula rly acute in cases involv-

ing drug conspiracies , gangs and

homicides. He once handled a case

in which a witness to a murder fl ed

the country immed iately after her

identity was disclosed i n discovery.

“Someone told her they were

going to kill her if she didn’t get

out of town,” McNamara says.

But defense attorneys arg ue that

widespread witness intimidation

doesn’t happen in states with more

liberal discover y rules. “The argu-

ment about witness intimidation

is based on a false premise t hat

witness intimidat ion is rampant,”

says Levy of the Bron x Defenders.

Scheck of the Innocence Project

adds that the “parade of horr ibles”

feared by prosecutors ha sn’t hap-

pened in other states that re quire

early disclosure of police rep orts

and witness stat ements. “We know

that you can have open discover y

and the sky doesn’t fall,” he says. Q

Talk Isn’t Cheap

Appeals court decision stymies attempts to regulate

the high price of prison phone calls

By Lorelei Laird

Hidden among the

corporate reports

and bureaucr atese

in Federal Communi-

cations Commission

docket No. 12-375 are

letters from prison in mates and their

families, pleadi ng for relief from high

phone rates. A msani Yusli, whose

testimony was submitt ed in 2015

by the Campaign for Prison Phone

Justice, wrote that one 20 -minute

call per day from her husband cos t

$130.20 per month.

“This amount tran slates to

groceries for the month,” she wrote.

“When you don’t have much, you

have to choose between feed ing

your kids ... and allowi ng your kids

to know their father.”

After 14 years of such plea s, the

FCC in 2015 made a rule capping

rates for in-state pri son phone cal ls.

But the affected tele communications

companies sued—and in June 2017,

the U.S. Court of Appeal s for the

District of Columbia Cir cuit handed

them a victory i n Global Tel-Link v.

FCC. The court said the FCC over-

stepped its statutor y authority when

it regulated in-st ate calls, and that

the way it set the rates was “ hard to

fat hom.”

To make matters more interesting,

the court reached that conclusion

without help from the FCC. Six days

before oral arguments , the agency

abandoned parts of its ow n defense,

conceding oral arg ument time to a

class of inmates a nd their families

who’d intervened in the case.

Advocates for prisoners say that

unusual circumstance helped

undermine the FCC’s case .

As a result, they say, about two

decades of effor ts to address high

inmate call ing rates are back to

square one.

“Prisoners and their fam ilies are

getting ripped off, pla in and simple,”

says Andrew Schwar tzman, an

attorney f or the intervenors and

the Benton Foundat ion senior

counselor at t he Georgetown

University Law Center’s Institute

for Public Repres entation.

LEGITIMATE COSTS

Opinions differ on why inmat e

calling rates a re so much higher

than those in the fre e world. The

prison telecoms and their cor rections

agency clients say it’s because ext ra

costs such as monitoring phone cal ls

are associate d with serving prisons.

But inmate advocates say t he real

driver of costs is “site com missions,”

an industry prac tice in which tele-

coms pay a percentage of their rev-

enues to corr ections agencies. The se

range from 20 to 88 percent of rev-

enues, and their size infl uences the

agencies’ choic e of contractor.

In exchange, the telecom gets a

monopoly within the prison, which

allows it to recoup its profi ts with

high rates. Inmates a nd the people

they call have no other choice, so

they either pay those rates or forgo

phone calls.

Paul Wright, executive direc tor

of the Human Rights Defense Cent er,

says that’s bad for society. He cites

studies showing that ma intaining

contact with loved ones on the

outside helps prisoners stay out

of trouble once they ’re released.

“The people running the pr isons

and jails ... know all t his, and they

just make the decision to ta ke the

kickback money and run w ith it—

and public safety and sound public

policy be damned,” says Wright, a

former jail house lawyer.

The FCC cited that resea rch when

it capped calling rat es. The agency

intentionally set those cap s too low

to account for site commis sions, say-

ing they’re not a cost of providing

phone calls. Rather, they’re “loc ation