By Darren Smith

One matter that has been for years a hot button issue is how telephone service vendors have entered into contract with prisons and jails in the various states. County jails and state prisons were enticed on the promise of lowering costs to the government agency in exchange for having the liberty to place the burden of the cost onto inmates and those electing to make calls.

Over the years several vendors have clearly taken advantage of the system, and callers who have no other choices if they wish to speak with their attorney, family, or friends.

Now, the FCC is positioned to place restrictions on the tolls charged. A vote is scheduled for October 22nd.

Telephone calls for inmates has changed greatly in the past thirty years. Anecdotally, one of my first tasks assigned to me as a sixteen year old cadet with the sheriff’s office was to provide inmates with phone calls during the evening. It was a rudimentary system but it seemed to work. I would sit in a chair outside the bars and each inmate would walk up to make his call. He gave me the phone number (it needed to be local or collect). I wrote down the number on a clipboard, dialed the number, then handed him the receiver. After his time was up he handed it back to me and the next person came forward. We had an extra line available so it did not cost the sheriff any extra and my labor cost was a bargain I can assure you.

Eventually with new facilities phone service went in where inmates could make collect calls from cell blocks and this led to the system of having vendors provide the switching and billing. It was a much more elaborate arrangement for certain, as calls could be monitored (if not attorney-client) and certain numbers could be blocked out if harassment took place. The phones also could be switched off as punishment if the inmates became unruly, losing a privilege they certainly did not want removed. Another advantage was the system freed up staff to perform other duties.

Unfortunately with some vendors greed later took hold and rather than charge a reasonable fee for their service, which of course they need to make money with their investment, it came to take advantage of others. It is especially concerning in that most inmates have little money and they depend on outsiders to provide them with money for commissary and phone calls, or they might be billed directly themselves. Either way with lack of choice, and a virtual monopoly, the vendors surely created for themselves a sweetheart deal.

Ars Technica reports that in one case a pro-bono attorney was forced to pay fourteen dollars a minute to speak with an incarcerated client. This is truly disturbing. A person could speak on a satellite telephone from the middle of the Pacific for much less than that. Some companies charged inmates $9.50 to open an account $4.75 to add money and $2.99 for a monthly maintenance feel. Families were forced to pay in many cases $400 to $500 dollars per month just to speak with a loved one.

Aside from the obvious humanity in allowing individuals to speak with those close to them, studies have shown that inmates having regular contacts with friends and loved ones reduces recidivism, according to the Federal Communications Commission.

FCC Commissioner Mignon Clyburn scheduled a speech last week to address this problem, a transcript of which follows:

FCC Commissioner Mignon Clyburn
Big Tent Meeting
September 25, 2015

“Breaking the Cycle of Prison Poverty One Phone Call at a Time”
-As Prepared for Delivery-

Good morning. Thank you, Christine [Leonard] for that gracious introduction. It is heartwarming to see such a diverse group of people assembled and united to tackle criminal justice reform. We need every tool at our disposal to break the vicious cycle of incarceration and its reverberating impact on our communities.

During my time today, I want to highlight an issue on which we can work together: reducing the egregiously high cost of calls from jails and prisons — rates so high that it puts connectivity at risk for too many, particularly our impoverished families. If the ability to keep in touch is out of reach for the imprisoned, then fathers, mothers, brothers, sisters, and sons and daughters will return to their communities as strangers, unable to re-assimilate — and, for 75% of those released, it no doubt contributes to them
being rearrested and sent back to prison within five years, continuing the vicious cycle of incarceration and ensuring that these communities remain impoverished.

But with your help, we can fix this. The United States has the highest rate of incarceration in the world, and, with recidivism rates of 75%, this trend is likely to continue. We also have the unfortunate distinction of boasting the highest child poverty rate among 35 industrialized countries. Nearly 15 million of our children are living below the poverty level, and according to one study, people who experienced poverty at any point during the childhood were three times more likely to be poor at age 30 compared those who were never poor as children. These are related vicious cycles, and the alarming increase of children with incarcerated parents has created a new cycle of poverty where it can be afforded the least. African Americans represent 12.3% of the US population but account for nearly 44% of the prison population. According to one study, if these trends continue, one in every three to four African American males born today can expect to go to prison in his lifetime.

Between 1980-2010, the United States saw a 300% increase in the incarcerated population – with the number of women incarcerated growing by nearly 600% during the same time period. Ending Child Poverty Now, What these statistics do not highlight is the devastating economic impact on our communities and the next generation and the next. According to reputable studies, 54% of all inmates are parents with minor children. This translates into approximately 2.7 million of our most valuable resources with at least one parent incarcerated4 and nearly 10 million children who have had a parent behind bars. Approximately half of all children with an incarcerated parent are under 10 years old, and 20% are under the age of four. That is one in every 28 children, and one in nine African American children with an incarcerated parent.7 Twenty-five years ago, that ratio was just one in 125.

Are you surprised to hear that 40% of state prisoners reported growing up in a household that received public assistance? What is more, half of imprisoned parents were the primary wage-earners for their families. With that support gone, child poverty rates rise as well as that cycle of prison and poverty. And, when the parent is released, their annual earning power plummets by approximately 40 percent.9
The magnitude of this impact and cycle of prison and poverty for these children and the generation to follow cannot be overstated. I submit to you, that if there were any other issue where 2.7 million children were impacted, we would be witnessing a national outrage of gigantic proportions. To put this in perspective, the number of children with an incarcerated parent is more than twice the number of children that have juvenile diabetes (1.25 million children according to the American Diabetes Association)10 and more than the number of children diagnosed with autism.

Those 2.7 million children face a host of unique challenges. One study found that 23% of children with a father that had been incarcerated had been expelled or suspended from school compared to 4% of children whose fathers were not jailed. While the impact on each child is different, it is clear that parental incarceration has a unique combination of trauma, shame, and stigma and is recognized as an adverse
childhood experience (ACE). Children with one or more ACE face increased risks of health problems such depression, suicide attempts, and substance abuse.

Those 2.7 million children are more likely to be displaced from their remaining parent, living with grandparents, or for too many, entering foster care, particularly when the mothers are the incarcerated.
One study found that the increase in female imprisonment resulted in a 30% increase in foster care caseloads between 1985 and 2000. While the separation is often just as painful as other forms of parental loss, the stigma, ambiguity, and lack of social support and compassion that accompanies prison make it all more difficult. And while those of us in this room may be unable to tackle all of the dimensions that contribute to this cycle, we can and we must see to it that those children and their families, friends and legal counsel maintain contact through an affordable inmate calling rate regime that may at least ease the pain of this loss. Not surprisingly, children who continue to stay in touch with their parent in prison exhibit fewer disruptive and anxious behaviors. Yet, according to one study, only 38% of inmates reported “at least” monthly phone calls with their children. No one disputes studies that consistently show that meaningful communication beyond prison walls helps to promote rehabilitation and reduce recidivism. Meanwhile 700,000 inmates are released every year and, sadly, as I mentioned before, the Department of Justice reports that nearly 75% will be back within five years.

We should do all in our power to promote connectivity with the incarcerated, and that begins with you actively challenging the current system of rates that are so high that it actively discourages communication because families and friends cannot afford to keep in touch. Just how high are these rates? A pro bono attorney paid $14 a minute to speak to an incarcerated client. Families write explaining how they are making extraordinary sacrifices by paying $400-$500 a month to hear their loved one’s voice. The endless
array of new and increasing fees can add nearly 40% to costs— fees as high as $9.50 to open a new account, $4.75 to add money to an account, and $2.99 a month for the account maintenance fee. These rates and fees would be difficult for any family to bear, but if you were already struggling to stay afloat, you are now foregoing basic necessities like food and medicine just to make a phone call. No family should be forced to make this choice.

Here we have a clear case of market failure, and our most vulnerable families are being preyed on. Providers have a monopoly in those facilities, and these jails and prisons often share in the company’s profits. Payments as high as 96% of gross revenues are often kicked back to the facility and can be used for anything from blankets and inmate welfare to area roads and general welfare funds. As Acting Chairwoman, I saw that the agency took its first real step in 2013 with caps on interstate rates (for calls that cross state lines) at 21 cents a minute. This move 12 Christopher Wildeman & Bruce Western, incarceration in Fragile Families, finally answered a decade-old petition from a grandmother who wanted to affordably stay in touch with her grandson. And if you needed more proof that high rates are discouraging connectivity: after we lowered interstate rates, long distance call volumes increasing 70% in some
facilities. What is also important is that security protocols have not been compromised. But 85% of calls from correctional facilities are made within a state. While a few states, such as New York, New Jersey and Ohio, have reformed and have rates of four to five cents a minute with advanced security features and without kick-backs, nearly 80% of states have failed to act.

The FCC is poised to enact permanent reforms to reduce all rates and charges in a manner that ensures robust security features but makes rates affordable. Still, I need your help. The FCC has express authority from Congress to reform “intrastate” and “interstate” calls and “ancillary services” for “inmate calling services.” But the status quo is good for certain providers and facilities. Reform efforts are being met with powerful resistance, and the quest for just and reasonable rates for these families, friends, and
legal representatives will not come easy.

I need your help in getting the word to lawmakers and those who elect them at the federal and state levels about the egregious nature of the cost of phone calls from jails and prisons, how these costs are further bankrupting families and communities, and why they should support the FCC’s efforts to reform this regime. What we are proposing will neither compromise those security protocols that must be in place nor
justify the threat of some facilities that promise to eliminate the ability for inmates to make calls all together if we lower rates. I cannot, nor can the FCC, tackle this alone. We need you, we need sheriffs, we need lawmakers, and we need states to enact further reforms to bring truly affordable rates to everyone.
We need to affirm to every citizen how increasing connectivity benefits our society, that affordable rates will ultimately result in less crime and lower recidivism, and that reasonable reforms will give our children and their communities a chance at a brighter future. Let us do our part in reversing the cycle of prison, poverty, and recidivism. Each of us can do so, one phone call at a time.

Thank you.

Aside from a few political liberties Commissioner Clyburn took the speech does bring up many solid points describing the shortcomings of the status quo with regard to inmates. It does in my view make a compelling case for reform.

Proposed for the October 22^nd meeting and vote, the following reforms are offered:

Key Reforms

 Establishes caps on all inmate calling rates

• These new caps reduce the average rates for the vast majority of inmate calls substantially,
  from $2.96 to no more than $1.65 for a 15-minute intrastate call, and from $3.15 to no more
  than $1.65 for a 15-minute interstate call.
• Tiered rate structure accommodates the higher relative costs faced by jails (especially small
  jails) as opposed to state and federal prisons. The rate caps are as follows:
  
  • 11 cents/minute for debit/prepaid calls, in state or federal prisons.

  

• 14 cents/minute for debit/prepaid calls in jails with 1,000 or more inmates.
• 
• 16 cents /minute for debit/prepaid calls in jails with 350-999 inmates.
• 
• 22 cents /minute for debit/prepaid calls in jails of up to 349 inmates.
• 
• Rates for collect calls are slightly higher in the first year and will be phased down to these caps after a two-year transition period.
• Approximately 71% of inmates reside in state or federal prisons.
• Approximately 85% of inmates reside in institutions with populations exceeding 1,000.
• With the exception of the rate for small jails, these rates are substantially lower than the current 21 cents/minute interim cap on interstate rates.
• The rate caps permit recovery for robust security measures, as reflected in costs that ICS
  providers filed with the Commission.

Caps or bans burdensome and needless ancillary service charges, which can add nearly 40% to the cost of a single call

• Limit and cap ancillary service charges to the following list of permitted charges:
  
  • Automated payment by phone or website: $3.

  

• Payment through a live agent: $5.95.
• Paper bill fee: $2.
• Third-party financial transaction fees, such as fees charged by MoneyGram or Western Union, may be passed through with no mark-up.
• All other ancillary service charges are prohibited.
• Mandatory taxes and regulatory fees may be passed through with no mark-up.
  
  • Discourages “site commission” payments by providers to institutions
• Defines the term “site commission” broadly as payments in money or services from inmate calling service providers to correctional institutions or government agencies.
• Excludes the cost of site commissions in establishing the rate caps and strongly discourages the use of site commissions.
• Continues to monitor the effect of site commissions on rates but does not restrict ICS providers’ sharing or profits if such payments fit within the rate caps.

Bans flat-rate calling

• Disallows providers from imposing so-called “flat-rate calling,” that is, a flat rate for a call up
  to 15 minutes regardless of actual call duration.
• Clarifies that this practice violates statutory mandates requiring that rates be just, reasonable, and fair, and penalizes callers who stay on the phone less than 15 minutes.

Ensures access for people with disabilities

• Requires providers to offer discounted rates for telephone relay service (TRS) calls for inmates with communications disabilities.
• Reminds correctional institutions of their obligation to make TRS available to people with communications disabilities.
• Encourages jails and prisons to allow commonly used forms of TRS and requires them to report service quality issues.

Transition Period

• Requires rate caps, site commission and ancillary service charge reforms to go into effect 90
  days from the effective date of the Order.
• Ongoing Review and Oversight
• Commits to reevaluate impact of reforms and rates in two years to determine if adjustments need to be made.
• Requires annual reporting and certification by ICS providers, to ensure compliance and enable monitoring of developments

Third Further Notice of Proposed Rulemaking:

• Seeks further comment on promoting competition in inmate calling services without the need for additional regulation
• Video visitation and other advanced inmate communications services
• Recurring Mandatory Data Collection

While I am not a person who favors over-regulation by government agencies, I believe this is an important step to reign in some rather glaring abuses. The proposal also demonstrates the problem of how de facto monopolies can punish consumers and other stakeholders.

It is my opinion also that fines, losses of freedom, and such should be levied by the courts with regard to prisoners. It is likely that having somewhat of a shield to allow such burdensome telephone charges, specifically in that the public and politicians mostly don’t care about prisoners paying high fees since they deserve whatever punishment they get regardless of form, that it actually may have fostered an environment leading to an opportunity to extract as much money as possible by telephone vendors–with little oversight or attention.

I believe it is likely the FCC will adopt these recommendations. Those having concern about the rising “prison industrial complex” in the United States might then see in this a small victory.

By Darren Smith

Sources:

Ars Techinica
Federal Communications Commission (speech)
Federal Communications Commission (fact sheet)

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