The Big Disconnect: Will Anyone Answer the Call to Lower Excessive Prisoner Telephone Rates?

• Publication year: 2006

Ben Iddings⁰

As the American prison population has exploded in the last quarter century, the prison telephone industry has grown into a billion-dollar market. Telecommunications companies are granted statewide prison monopolies that subject prisoners' loved ones to grossly inequitable telephone charges. As a result, many families become saddled with outrageously high phone bills. Phone companies defend these rates as necessary to cover government required security-enhancing technology. However, evidence indicates that these excessive rates are a product of the generous commissions companies pay to states, in exchange for exclusive service contracts. This Comment analyzes current telephone policies in several state prison systems, discussing the relative strengths and shortcomings of each policy. This Comment will also discuss and critique potential legislative, regulatory, and judicial approaches to addressing the problem.

"We must not exaggerate the distance between 'us,' the lawful ones, the respectable ones, and the prison and jail population; for such exaggeration will make it too easy for us to deny that population the rudiments of humane consideration."¹

—Chief Judge Richard Posner

I. Introduction

On Christmas Day Missouri resident Janet Logan talked to her husband on the phone for nearly two hours. MCI charged her $49.80 for the call. Her entire phone bill that month was $724.24.² Rae Walton, who lives just outside New York City, has a grandson upstate serving a fifteen-year sentence on an assault charge. "When the phone bill comes, I look at it and weep . . . [a]nd then I pay the bill because I don't want to jeopardize the line of communication."³ Texas resident Janie Canino has a son incarcerated in Louisiana and is forced to "struggle to keep food on the table and pay the phone bill."⁴ While on spring break, Karen Wilson's eighteen-year-old son was convicted of felony tampering with evidence for swallowing a misdemeanor amount of marijuana. During her son's first ten months in Panama City's Bay County Jail,⁵ Ms. Wilson was billed $7,000 for phone calls from her son.⁶

Inmates in many state prisons are only permitted to make expensive collect calls using the services of companies with exclusive contracts with their state's prison system.⁷ These monopolies have naturally resulted in exorbitant rates. A fifteen-minute collect call from a state prison to a different area of the same state can be as high as $17.77.⁸ In effect, these collusive arrangements between private phone companies and state prison systems encourage price gouging. "In exchange for exclusive contracts guaranteeing a steady high volume of expensive collect calls, states receive commissions ranging from eighteen to sixty percent—i.e., kickbacks—from their prison phone service providers."⁹

over the course of the last two decades, a number of factors have combined to produce this exceptional species of legal inequity for which the traditional avenues of recourse to justice seem utterly ineffective. To date, little scholarship has been devoted to the unfair rates charged for collect calls made from prisons.¹⁰ In fact, only three law journals have published articles on the subject.¹¹ The most comprehensive of these law journal articles, written by Madeleine Severin and published in a 2004 issue of the Cardozo Law Review, analyzes a number of recent challenges to excessive prison collect call rates.¹² In examining the rulings of numerous courts, Severin correctly notes that challenges to prison phone rates face an uphill battle given current Supreme Court jurisprudence.¹³ However, Severin's conclusion that legislation is more effective than litigation in reducing rates¹⁴ is not supported by a thorough examination of the impact that recent state legislation—even well-intentioned state legislation—has had on telephone rates. Severin is justified in being doubtful about the chances of any court victories in the near future, but her conclusion that "legislation is a more appropriate way to provide relief to call recipients, and would almost certainly be more effective than further litigation,"¹⁵ does not take into account the "negative political leverage" of prisoners and their families, the widely varied political climates in individual states, and the sheer enormity of state laws and institutional habits that must be altered in order to effect such change.¹⁶

This Comment will examine the various legal issues surrounding unjust prison phone rates and forecast possible avenues to change. Part II will give a brief background of the prison telephone industry. It will demonstrate how excessive phone rates harm the families of prisoners as well as society at large. Part III will explain how rapidly evolving technological tools have significantly altered the framework of the issue. This section will also include a discussion about how state kickbacks, rather than telephone system technology and maintenance costs, are largely to blame for the unjust rates. Part Iv will highlight both the best and the worst prison phone policies in the nation and will also shed light on the unfortunate fact that state legislation is an ineffective means of lowering inmate phone rates. Part v will examine the efforts made to rectify the problem at the federal regulatory level, calling attention to an ongoing proceeding before the Federal Communications Commission and the overall effect these proceedings are likely to have on the problem. Finally, Part vI will weigh the likelihood of any future legal victories given the major obstacles that court challenges now face. It will also explore the indirect, yet important role that litigation can play in helping a reform movement gain favorable publicity and mobilize political support.

II. Background

A. The Rise of the Prison Telephone Industry

Beginning in the 1980s, the prisoner population in the United States expanded rapidly, ballooning from less than 320,000 in 1980 to nearly 1.47 million by 2003.¹⁷ "Expanded to include individuals serving time on parole or probation, the total population under state supervision by 2003 had reached 6.9 million, or approximately 3.2% of the adult U.S. population."¹⁸ As the prison population has grown, incarceration of adult offenders has become big business in the United States.¹⁹ The provision of telephone services to this expanding prison population represents a significant business opportunity. "By the 1990s, the prison telephone sector had grown into a billion-dollar market. Businesses—and states—wanted a piece of the action."²⁰

As many public law scholars have pointed out, there is "something fundamentally unjust about families of prisoners being charged outrageous prices solely because they accept collect calls from people in prison."²¹ As early as 1996, the American Correctional Association (ACA), a group of leaders in the correctional profession, passed a resolution opposing high collect call rates in prisons, noting that "[c]orrectional agencies should discourage profiteering on tariffs placed on phone calls which are far in excess of the actual cost of the call, and which could discourage or hinder family or community contacts."²² Nine years later, the American Bar Association adopted recommendations urging that the "lowest possible rates" be made available for prisoners and their families.²³

In addition to being "deeply objectionable on both ethical and social policy grounds,"²⁴ excessive rates are inefficient, anticompetitive, and contrary to the principles of a free market economy.²⁵ University of Michigan School of Information Professor Stephen J. Jackson has noted that:

Whatever their merits in the larger telecom world, incentives to competition within the prison telephone industry have proven fundamentally perverse. Armed with a uniquely effective monopoly sourcing power, county, state, and federal officials have entered into what amounts to profit-sharing agreements with telephone service providers, exchanging exclusive service rights for large commissions paid back into state funds. Under such conditions, the incentives of price competition have worked in precisely the opposite direction, with companies offering the highest bids (in terms of rates and commissions) routinely awarded contracts, the costs of which are passed on to the (literally) captive market.²⁶

However, courts have been reluctant to intervene,²⁷ and "legislators wanting to appear tough on crime" have been hesitant to be perceived as advocating for inmates and their families—a demographic of minimal political influence.²⁸ Few in government believe that these high rates make good policy, but only a small number of government officials—and, so far, no judges—have been willing to make concrete changes. Not only are courts reluctant to interfere with state prison policy and the setting of telephone rates,²⁹ but far too often state legislators and corrections officials have been unable and unwilling to give up the money they receive from commission kickbacks.³⁰

B. Whom Do Excessive Rates Harm?

1. Families

The families of prisoners experience a great deal of strain and isolation as a result of incarceration. For many prisoners, particularly the illiterate,³¹ phone calls provide a vital link to the support structures of family and friends. Access to phones is even more necessary because prisons are "often located in remote, sparsely-populated towns" and that some "states save money by transferring their inmates to prisons in other states."³² In 2001, over 1.5 million children in the U.S. had at least one incarcerated parent.³³ one out of every forty American children has a parent in prison.³⁴ A majority of the 100,000 plus³⁵ women incarcerated in U.S. jails and prisons are mothers of minor children.³⁶ Sixty-five percent of women in state prisons are mothers of minor children and expect to resume their parenting role upon their release.³⁷ Reasonable and fair access to telephone services is vitally...