NY DOC’s Former 60% Prisoner Phone Call Kickback Scheme Did Not Violate Prisoners’ Families’ Constitutional Rights

In December, 2007, the New York State Supreme Court (this is a trial level court) held that the New York Department of Corrections’ (NYDOC) policy of contracting for prisoner collect telephone calls, which resulted in a 60% kickback to NYDOC from the telephone company, did not violate the constitutional rights of the recipients of those calls. While any recovery of past alleged overcharges was thus blunted, future rates have been contained by a progressive new New York state law (Corrections Law § 623, 12007, ch. 240, § 2), effective April 1, 2008, that bars NYDOC from gouging prisoners’ families with charges that exceed the reasonable cost of establishing and administering its telephone system. This ruling comes after the case had been remanded to the trial court by the state Court of Appeals, the highest court, which had reversed a prior dismissal of the case. See: Walton v. NY DOCS, 863 N.E.2d 1001 (NY 2007).

Ivey Walton and other friends and relatives of prisoners in NYDOC, supported by the Office of the Public Defender and New York State Defenders Association, sued NYDOC seeking relief from alleged abusive overcharging by NYDOC’s prisoner telephone contractor MCI Worldcom Communications, Inc. (MCI) for calls from prisoners.
NYDOC’s contract, which had been awarded to the bidder offering NYDOC the biggest kickback, provided for MCI to pay NYDOC a “commission” of 57.5% to 60%. The plaintiffs sued under a variety of constitutional theories, several of which survived dismissal, but none of which were ultimately successful.

Plaintiffs’ claim that the contract violated the power to tax was rejected when the court held that the commission paid by MCI to NYDOC did not legally amount to a tax.

The next claim, that offering only a single telephone provider violated the plaintiffs’ substantive due process rights, was denied when the court determined that there were insufficient facts to sustain an infringement on the plaintiffs’ rights to either freedom of speech or association.

Plaintiffs’ equal protection claim, that they were being charged a higher rate than MCI charged other customers, was denied when the court ruled that the plaintiffs, as recipients of prisoner calls, were not similarly situated to members of the public at large.

Finally, plaintiffs’ claim of violation of their Constitutional free speech and association rights failed because while the Constitution has been found to provide guarantees of prisoners and non-prisoners to communicate, it offers no guarantees regarding the expense for that provision.

Accordingly, the court dismissed all constitutional claims regarding past overcharges, while noting the April 1, 2008 launch of the new statutory limitation on costs that may be passed on to recipients of prisoner telephone calls. The plaintiffs, represented by the Center for Constitutional Rights, has filed an appeal. See: Walton v. New York State Department of Correctional Services, NY Supreme Court, County of Albany, Index No. 01-04-ST4340.

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