by Christopher Zoukis

On August 10, 2017, U.S. District Court Judge Yvonne Gonzalez Rogers dismissed four related class-action lawsuits in which prisoners challenged the rates and commission kickbacks associated with jail phone service contracts.

A group of attorneys representing California prisoners held in San Mateo, Santa Clara, Contra Costa and Alameda counties filed class-action complaints alleging that the cost of phone calls at those facilities violated the First Amendment, the Fifth Amendment’s unlawful takings provision, the Fourteenth Amendment’s equal protection clause and Section 1 of the Sherman Antitrust Act.

The plaintiffs said county officials contracted with prison and jail telecom firms Global Tel*Link and Securus Technologies, which charged “unreasonable, unjust and exorbitant rates” for phone calls made by prisoners, then kicked back “extortionate and outrageous ‘commissions’” to the county jails.

Under President Obama, the Federal Communications Commission took decisive action to reduce prison and jail phone rates; thus far in President Trump’s administration, however, the FCC has taken a hands-off approach to the prison telecom industry and refused to defend its own order capping intrastate (in-state) rates. [See: PLN, July 2017, p.52].

Phone calls from county jails can be extremely expensive, reaching over $1.00 per minute for intrastate calls. Those fees bring in huge profits for Global Tel*Link and Securus, and the counties receive a percentage of the revenue through commission kickbacks.

The lawsuits reported that Alameda County received at least $1.5 million annually based on a contractual 70.5 percent commission, while Santa Clara County received a 61 percent commission that resulted in $1.7 million in kickback payments and Contra Costa County received around $720,000 per year with a commission rate of over 50 percent.

According to KTVU.com, “Under California law, revenue gathered from the phone systems must be deposited into an inmate welfare fund for education and rehabilitation programs. If not needed for that purpose the funds can go to jail maintenance. Attorneys for the plaintiffs argue[d] that much, and possibly most, of that fund goes to jail maintenance and not rehabilitation programs.”

However, Judge Gonzalez Rogers found the prisoners had failed to state claims for constitutional violations.

“That the commissions charged may result in higher phone rates, which in turn, may reduce the frequency and length of phone calls made, does not constitute a governmental restriction on plaintiffs’ constitutional rights,” she stated.

A significant problem with the suits was that they named county governments as defendants and, according to the court, “the Ninth Circuit has not recognized an independent right to telephone access for inmates” that could be impeded by government action. Even if that wasn’t the case, Judge Gonzalez Rogers held the plaintiffs did not show that any deprivation of phone access was “essentially absolute.”

“Plaintiffs have not alleged the imposition of any regulations or restrictions that prevent them from using the telephone for communications, nor have they alleged that the rates are ‘so exorbitant as to deprive [detainees] of access altogether,’” she wrote. A First Amendment claim was allowed to proceed but later dismissed by the court in October 2017.

Of course, prisoners and their families who cannot afford to pay the exorbitant phone rates charged at county jails are, in fact, essentially deprived of telephone access.

The plaintiffs were represented by attorneys Barrett Litt, Ronald Kaye, Michael Rapkin and Scott Rapkin, and by the San Francisco-based nonprofit Legal Services for Prisoners with Children. See: Banks v. Cty. of San Mateo, U.S.D.C. (N.D. Cal.), Case Nos. 4:16-cv-04455-YGR, 4:16-cv-04781-YGR, 4:16-cv-04795-YGR and 4:16-cv-04816-YGR; 2017 U.S. Dist. LEXIS 127347. 

Additional sources: www.ktvu.com, www.courthousenews.com

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