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«JOURNAL OF LAW, ECONOMICS & POLICY VOLUME 10 SPRING 2014 NUMBER 2 EDITORIAL BOARD 2013-2014 Steve Dunn Editor-in-Chief Crystal Yi Meagan Dziura Sarah ...»

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A. Inmate Recidivism and the Phone Inmate access to payphones plays an important role in reducing recidivism. Regular communication between inmates and their families reduces recidivism and facilitates a successful transition back into society.22 Regular communications also benefit the 2.7 million children who have at least one parent in state or federal custody.23 Inmates are routinely imprisoned in remote, unpopulated areas frequently located far from their families.24 Additionally, to alleviate overcrowding and cut costs, eleven states transfer inmates to other states.25 These practices often make in-person visitations difficult, time consuming, and costly.26 Letters between prisoners and their families are insufficient because letters often fail to convey the emotional support of the families.27 Additionally, written communication is ineffective for illiterate prisoners and families.28 Hence, many corrections-system stakeholders believe that telephones play an integral role in maintaining communication between prisoners and their families.29 There is significant bipartisan support for prisoner phone access, which often focuses on the benefits of lowering recidivism. The 2012 Republican Party Platform calls for “the institution of family-friendly policies... [to] reduce the rate of recidivism, thus reducing the enormous fiscal and social costs of incarceration.”30 Similarly, the 2012 Democrat Party Platform “support[s]... initiatives to reduce recidivism.”31 22 Housing D.C. Code Felons Far Away From Home: Effects on Crime, Recidivism, and Reentry, H. Oversight and Gov’t Reform Subcomm. on Fed. Workforce, Postal Serv. & D.C., 111th Cong. 2–3 (2010) (statement of Nancy G. La Vigne, Director, Justice Policy Center, The Urban Institute), available at http://www.urban.org/UploadedPDF/901346-housing-dc-felons.pdf; Nancy G. La Vigne et al., Examining the Effect of Incarceration and In-Prison Family Contact on Prisoners’ Family Relationships, 21(4) J. CONTEMP. CRIM. JUST. 314, 316 (2005) [hereinafter Examining the Effect of Incarceration].

23 FCC Press Release, supra note 13, at 1.

24 Madeleine Severin, Is There A Winning Argument Against Excessive Rates for Collect Calls from Prisoners?, 25 CARDOZO L. REV. 1469, 1474 (2004).

25 Id.; Michael Montgomery, Moving more inmates out of state raises new questions, CALIFORNIA WATCH (June 14, 2011), http://californiawatch.org/dailyreport/moving-more-inmates-out-state-raisesnew-questions-10787 (last visited Oct. 11, 2012) (stating that, in California, “[c]urrently, more than 10,000 offenders are serving sentences in private prisons outside California, in four states. That number could grow to 15,000 by 2013”).

26 Severin, supra note 24, at 1474.

27 Id. at 1474–75.

28 Id.

29 GIBBONS & KATZENBACH, supra note 19, at 36–37.

30 KUKOROWSKI, supra note 11, at 1 (quoting REPUBLICAN PARTY PLATFORM 38 (2012), http://www.gop.com/wp-content/uploads/2012/08/2012GOPPlatform.pdf (last visited Sept. 4, 2012)).

31 Id. (quoting DEMOCRATIC NATIONAL PLATFORM (2012), http://assets.dstatic.org/dnc

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Many prisoners communicate and stay attached to the outside world via phone calls. This attachment reduces recidivism, benefitting society and prisoners alike. The Republican and Democrat platforms both support reducing recidivism, acknowledging the need to lower barriers between inmates and their families. However, the unique security and payment structure of prison payphone systems increases connection barriers between the prisoners and their families.

B. The Unique Structure of Prisoner Phone Systems

Global Tel*Link, Securus Technologies (Securus), and CenturyLink are the three largest prison payphone providers.32 Nearly 90% of prisoners residing in state prisons use services provided by these companies.33 Securus serves more than 2,200 facilities and holds state, county, and local contracts serving 850,000 inmates.34 Global Tel*Link, the largest of the three major providers, maintains contracts for thirty-three state correctional departments and serves 1.11 million inmates in 1,900 facilities.35 CenturyLink provides payphone services to 300,000 inmates across the country.36 Though these are the three largest and most prolific payphone services, local companies also bid for service contracts.37 For security reasons, most inmate calls must be made on a collect, prepaid, or debit basis.38 Phone calls are typically limited to fifteen minutes in length.39 Before connecting to the intended recipient, calls are routed to centralized systems where parties are identified and verified against an apKUKOROWSKI, supra note 11, at 2. The Bureau of Prisons, military, and state prison payphone rates also vary dramatically.

33 Id.

34 Letter from Stephanie A. Joyce, Attorney for Securus, to Marlene H. Dortch, Sec’y, FCC, CC Docket No. 96-128, attach.1 at 2 (filed on Aug. 22, 2012) [hereinafter Securus Aug. 22 Ex Parte Letter].

35 Global Tel*Link Oct. 3 Ex Parte Letter, supra note 12, at attach.1, at 2.

36 CenturyLink Aug. 31, 2009 Comments, WC Docket No. 09-144, Securus Technologies, Inc.

Petition for Declaratory Ruling at 1.

37 Other inmate service providers identified as competitors are: Unisys, Telmate, Legacy Long Distance International, Combined Public Communications, Talton Communications, Inmate Calling Solutions, Pay-Tel Communications, Infinity Networks, Inmate Communications Corporation, and Network Communications International Corporation. Global Tel*Link Oct. 3 Ex Parte Letter, supra note 12, at attach.1.

38 2002 Order and NPRM, supra note 4, at 5. Increasingly, prisoner payphone providers offer debit-based calling options. Letter from Stephanie A. Joyce, Attorney for Securus, to Marlene H.

Dortch, Sec’y, Federal Communications Commission, CC Docket No. 96-128, at 2 (filed on July 2, 2012) [hereinafter Securus July 2 Ex Parte Letter]; Evercom and T-Netix May 21, 2007 Comments, Docket No. P-999, DI-07-204 to Minn. Pub. Utils. Comm’n. at 3 [hereinafter Evercom May 21 Comments].

39 GAO Report, supra note 5, at 6.


proved phone number list.40 After verification, calls are connected to the end party.41 The service provider then monitors and records the call.42 These security measures increase the installation and operational costs of inmate calling, which is partially responsible for the increased per-minute pricing of inmate calling.

Additionally, the Bureau of Prisons (BOP) and many state facilities require that prison payphone providers furnish hardware and software capable of recognizing inmate voices, monitoring calls, recording calls automatically, restricting calls to verified numbers on the inmates’ contact lists, restricting access to telephones as determined by the correctional facilities, and terminating calls when security issues arise.43 These restrictions are designed to prevent prisoners from engaging in illegal activities while incarcerated.44 Preapproving phone numbers ensures that prisoners cannot harass witnesses, police officers, judges, or prosecutors.45 Call monitoring and recording increases the difficulty of running drugs, ordering “hits,” and conducting phone scams from prison phones.46 However, these security measures also increase the operational costs of inmate payphone systems, which are transferred to inmates and further raises per-minute charges.

For regulatory purposes, inmate calls are treated as collect calls, allowing service providers to only charge for the call once the party accepts it.47 However, only 40% of inmate calls are successfully connected.48 Each call must be filtered through the phone company’s security system before acceptance.49 This creates substantial initial connection costs, even for the 60% of prisoner calls that are never successfully accepted and thus not billable. These additional costs are shifted to the prisoners and their families whose calls are successful.

Most prison facilities only offer collect-call services where call recipients, typically the prisoners’ families, are responsible for the calls’ cost.50 40 Securus July 2 Ex Parte Letter, supra note 39, at attach.1.

41 Final connection is accomplished by sending the signal to either local or long-distance Local Exchange Carrier (LEC) switches. Id.

42 Id.

43 GAO Report, supra note 5, at 6–7; Evercom May 21 Comments, supra note 39, at 3.

44 Other safeguards include individual phone and phone group control by administrators (controlling duration and time of usage), automated voice prompts validating acceptance of the collect call and warning prisoners of time limits, personal identification numbers allowing administrators to track each prisoner separately, and reporting of penological or administrative infractions directly to prison administrators. Zimmerman & Flaherty, supra note 6 at 263 n.7.

45 Id. at 262.

46 Id.

47 Letter from Stephanie A. Joyce, Attorney, Securus, to Marlene H. Dortch, Sec’y, FCC, CC Docket No. 96-128 at 5 (May 23, 2008) [hereinafter Securus May 23 Ex Parte Letter].

48 Id.

49 Id.

50 In re Amendment of Policies & Rules Concerning Operator Serv. Providers & Call Aggrega

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Since many prisoners are from low-income households and communities, these heightened costs create substantial financial barriers to communication, resulting in fewer calls to relatives.51 C. Monetary Commissions Made Inmate Calling Exorbitantly Expensive Though payphones represent the most efficient method of maintaining prisoner–community relations, prisoner telephone rates are historically more expensive than comparable calls made from payphones outside the facilities. FCC Commissioner Mignon Clyburn believes that “[t]he cost of calling from prisons is over and above the basic monthly phone service families of prisoners already pay, and in many cases families will spend significantly more for receiving calls from prison.”52 These heightened rates necessitated FCC intervention.

Prior to the latest FCC order, initial connection fees for prison callers typically ranged from $3 to $4 per call and interstate long distance charges were as high as $0.89 per minute.53 One fifteen-minute interstate phone call cost as much as $17.54 Some families paid $34 per month to speak to prisoners for thirty minutes.55 Many families could not afford this additional cost.56 One Illinois study found that the cost of phone calls was one of the greatest barriers to prisoner–family contact.57 Payphone rates also varied dramatically between states, even when different states contracted with the same prison phone provider.58 For example, a fifteen-minute, long-distance phone call from a Massachusetts state prison was only $2.36, while a similar call made from a Georgia state 5, at 6. Recently, the Bureau of Prisons has moved towards a mix of collect calling and direct-dial, where the prisoners are charged directly for the call, options. Id. The GAO believes that direct dial options emphasize prisoner responsibility and reduce the burden of high charge calls on the outside community. Id.

51 See generally BRUCE WESTERN, PUNISHMENT AND INEQUALITY IN AMERICA 85–107 (2006) (discussing the economic trends and inequalities of the penal population).

52 Press Release, FCC, Statement of FCC Commissioner Mignon L. Clyburn on Meeting Petitioners Martha Wright and Ulandis Forte and Screening the Award-Winning Film Middle of Nowhere (Sept.

24, 2012) [hereinafter Clyburn Press Release], available at http://www.fcc.gov/document/commissioner-clyburn-stmt-mtg-petitioners-wright-and-forte-and-film.

53 Id.

54 Id. For example, in Georgia state penitentiaries, fifteen minute prisoner calls cost $17.


CUSTOMER USER GUIDE 4, http://www.dcor.state.ga.us/pdf/GDC_GTL_user_manual.pdf (last visited on Oct. 13, 2012).

55 Clyburn Press Release, supra note 52, at 1.

56 Id.

57 Examining the Effect of Incarceration, supra note 22, at 316.

58 KUKOROWSKI, supra note 11, at 2. The Bureau of Prisons, military, and state prison payphone rates also vary dramatically.

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prison was $17.59 This disparity resulted primarily from varying mandates stipulating that service providers give the state a percentage of profits extracted from the per minute rates.60 These monetary commissions ranged from 15% to 60% of per minute revenue.61 Many states relied heavily on commissions to cover costs of prison services and inmate opportunities. The Idaho Department of Corrections estimates that losing commission revenue will result in a shortfall of $1.086 million.62 In contrast, several states, such as Nebraska and Missouri,63 banned commissions altogether prior to the FCC ruling.64 States that mandated commissions prior to the FCC ruling used the revenues in dramatically different ways. Alabama and Arkansas used commissions to support general state law enforcement, while Massachusetts deposited commissions into a general state fund.65 Virginia used its commissions to fund the Victim Information Network, which notifies victims of prisoner parole reviews.66 Texas mandated a 40% or greater commission, with half of the proceeds going to victim compensation and the other half going to a general revenue fund.67 Some commissions, paid for by the prisoners’ families, supported state functions that do not directly benefit the prisoners. Initiatives like Virginia’s Victim Information Network, as well as general state funding, arguably should be funded by state legislatures. Under these programs, the loss of commissions will not impact recidivism because the funded initiatives do not benefit prisoners.

D. History of the FCC Price Cap Order In 2000, Martha Wright brought a class action suit against several prison phone companies alleging that payphone contracts and state comId.

60 Id.

61 Id.

62 T-Netix and Evercom June 20, 2007 Reply Comments, CC Docket No. 96-128, DA 03-4027 at 7 [hereinafter T-Netix June 20 Reply Comments].


(2001), http://www.prisonphonejustice.org/includes/_public/rates/Missouri/MO_prison_phone_rates_and_reven ues_2001.pdf.

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