On July 1, 2008, an Illinois Court of Appeals held that a prisoner had standing to bring a claim against Ameritech for consumer fraud. Johnnie Flournoy, an Illinois state prisoner at the Joliet Correctional Center, filed suit against Ameritech in state court alleging the company had “deliberately terminated his collect calls prematurely,” forcing him to call the same party again.

As a consequence, his family members were charged multiple surcharges and fees for accepting his collect calls. Furthermore, because Flournoy sent his mother money to pay for the calls he made, he suffered damages personally. The trial court dismissed the complaint with prejudice.

The Court of Appeals reversed the dismissal, finding that Flournoy had stated a cause of action under the Illinois Consumer Fraud Act, 815 ILCS 505/1, et seq. In doing so, it “settled a question of fact – did Flournoy sufficiently allege that he suffered actual damages as a result of Ameritech’s alleged deceptive practices.” See: Flournoy v. Ameritech, 351 Ill.App.3d 583 (Ill.App.Ct. 3d Dist. 2004), appeal denied. [PLN, Dec. 2004, p.31].

Upon remand, the trial court granted Ameritech’s motion to dismiss for lack of standing to pursue a consumer fraud case. Flournoy appealed. The Court of Appeals ...

by John E. Dannenberg

The Nebraska Court of Appeals has upheld administrative regulation 205.3 (AR 205.3) of the Department of Correctional Services (DCS), which restricts prisoner phone calls to land-line, nonconference-call recipients and authorizes tape-recording of all non-attorney phone calls. In reversing an earlier district court injunction enjoining AR 205.3, the appellate court found that DCS’s new telephone system was the least restrictive means of accomplishing DCS’s goals of prison safety and security, and did not infringe upon prisoners’ constitutional rights.

In August 1997, Barry McCroy and other Nebraska prisoners sued DCS in state district court under 42 U.S.C. § 1983 for both injunctive relief and damages in regard to DCS’s new restrictive telephone program, the Inmate Calling System (IMS). The IMS established calling schedules and tape recording procedures for all prison phone calls except confidential attorney-client calls (defined as calls to court clerks, bailiffs and bar attorneys). Three-way calls, conference calls and call forwarding were prohibited. Additionally, the IMS limited prisoners to 20 pre-approved numbers and excluded all calls to cell phones, pagers, 800/900 numbers, 411 information numbers, state senators and the media.

In October 1997, the district court entered an injunction barring implementation of the IMS as it ...

The State of Connecticut in the early 1980s agreed to settle a suit over the overcrowding at the Somers Correctional Facility.

Joseph Letezeio individually and on behalf of all those similarly situated at Somers sued the State of Connecticut alleging that the overcrowding and other conditions at Somers violated the Eighth Amendment.

The State settled the suit agreeing to, among other things, eliminate dormitory housing in a former card room, cap housing in each cell to no more than two prisoners, provide indoor and outdoor recreation, one telephone call per week, improved visitation, routine sick call, and the creation of an admission and orientation program. The plaintiffs were represented by the Connecticut Civil Liberties Union. See: Letezeio v. Manson, USDC, D. Conn., No. H82-252.

When a prisoner consents to the monitoring of calls over a jailhouse telephone, no Fourth Amendment violation exists if the government records calls made to an attorney, the U.S. Court of Appeals for the First Circuit decided June 30, 2008.

Scott Holyoke called Lawrence Novak, an attorney, seeking his services in getting some prior convictions removed from his record. Holyoke’s calls were monitored, however. During one of his calls, Holyoke asked Novak to get his convictions vacated by filing false affidavits.

Police heard this call and approached Holyoke and asked him to set up Novak. Holyoke agreed. Novak was later indicted for obstructing justice and money laundering after he agreed to launder $60,000 from drug trafficking activity.

The district court suppressed the phone calls, agreeing with Novak that the recording violated the Fourth Amendment. The First Circuit reversed. “Because Holyoke consented to monitoring of his calls, those calls…can be introduced into evidence consistently with the requirements of the Fourth Amendment,” the court held. See: United States v. Novak, 531 F.3d 99 (1st Cir. 2008).

September 1, 2009

Corrections Policy Examiner
Michael Hamden


The Scam: "Give me your money and you can talk to your kid." That may sound like a line from a 1950's Jimmy Cagney gangster movie. But in essence, that is what pay telephone companies are saying every day to millions of people who want to speak with an incarcerated family member. It's a racket, see? Here's how it works.

Correctional agencies request bids for prison phone services. They are not looking for the least expensive bid or the best possible service. Instead, they choose between offers of payment from the telephone companies. These payments, known in the industry as "commissions," are promised in exchange for the exclusive right to provide telephone services. Monopolies often engage in abusive practices, and that is the case here. Rates are as much as 5 times higher than the cost of a pay-phone call outside prison, and the cost of this exploitation is borne by families that are among the least able to afford it.

"Hey, ya' bum! Whata'bout my phone call?"

In jails, people who have just been booked usually ask to use a telephone so they can arrange for bail. That's good for government ...

The Bureau of Prisons (BOP) has agreed to settle another lawsuit brought by PLN contributing writer, Brandon Sample.The settlement resolves several disputes between Sample and the BOP. Sample had complained, for instance, that the call prompt announced over the prisoner telephone systems requiring called parties to push the number five before being connected violated his First Amendment rights.

Sample had attempted to contact various government agencies via telephone, but the agencies could not accept his calls because they were answered by an automated telephone answering system (ATAS). ATASs are incapable of pushing “5.” The BOP agreed to settle the push “5” issue by allowing Sample to contact several different pre-designated government agencies using a normal telephone.

The BOP also agreed to resolve Sample’s claim that the BOP was in noncompliance with 5 U.S.C. § 552(a)(2) of the Freedom of Information Act (FOIA). Under § 552(a)(2), government agencies are required to post various records on the Internet in their FOIA public reading room. Records that are required to be posted include “final opinions…made in the adjudication of cases.” 5 U.S.C. § 552(a)(2)(A).

Sample alleged that each grievance response the BOP issued constituted a “final opinion made in the adjudication of a ...

by John E. Dannenberg

The Indiana Court of Appeals has rejected a class-action suit brought by families and friends of prisoners who challenged prison telephone contracts as monopolistic and prison phone rates as oppressive. The appellate court held that it was not illegal for the Indiana Department of Corrections (IDOC) and the Marion County Sheriff to enter into monopolistic contracts, and that the phone rates were reasonable.

Chanelle Alexander and family members, friends and attorneys of prisoners who paid for collect calls from IDOC facilities and the Marion County Jail filed suit to stop excessive billings from the sole-source telephone service providers. They claimed that state law prohibited such sole-source contracts, and that the excessive phone rates were the result of this state-sponsored monopoly.

In 1995, the Marion County Sheriff contracted with Ameritech for a two-year renewable contract wherein the company would install and maintain at least 222 prisoner phones at no cost. In return, Ameritech guaranteed the county 40% of gross revenues from the phones plus a signing bonus of $524,000. The payments were to be placed in the Marion County Jail Commissary Trust. There were no contractual limits placed on phone rates.

Separately, the IDOC contracted with AT&T ...

Report Says New Mexico Prison Phone Companies Still Gouging Families

by Dave Maass

The phone is ringing; you pick it up. An operator announces it’s a collect call – your spouse, sibling, child – from prison. Will you accept the charges?

Good luck finding out what those charges will be.

Family members of prisoners complain of 45-minute waits for customer service operators and billing statements that never arrive. The rates vary wildly depending on the institution – from $2 to $6 per 15-minute slot, plus a dollar for every finished call. Some companies charge $6.95 surcharges for credit card transactions, others require $50 minimum deposits into a prisoner’s phone account, some charge another $15 to get unused balances back.
All in all, rates for long-distance calls within New Mexico are “not just or reasonable,” New Mexico Public Regulation Commission Utility Analyst John J Reynolds concludes in his Jan. 23, 2009 testimony in a rate case that has been going on since 2007. He also says the companies may be breaking the law.

“You hear reports of folks ending up with four or five, six, $700 a month in phone bills from detention facilities before they realize how big the costs ...

On June 18, 2008, the U.S. Court of Appeals for the Federal Circuit upheld a judgment of non-infringement in a patent dispute over the design of a prison telephone.

TIP Systems, LLC patented the design of a telephone for use in prisons that does not include a cord or handset. Rather, the mouth and earpieces protrude from the phone itself. The phone was designed without a handset or cord in order to prevent individuals from using the cord to hang themselves or as a weapon.

Other companies involved in the provision of the telephone services to prisoners developed similar phones. TIP sued these companies claiming infringement. The district court rejected TIP’s claims. TIP appealed.

The Federal Circuit affirmed. The phones that TIP alleged were infringing on its patent had subtle differences, according to the court. For instance, the mouth and earpieces on the alleged infringing phones did not protrude from the phone. Instead, they were flush with the phone’s casing, See: TIP Systems, LLC V. Phillips and brooks/Gladwin, Inc., 529 F.3d 1364 (Fed. Cir. 2008).

California Class-Action Suit Reinstates $1.5 Million Illegally Siphoned From County Jail Inmate Welfare Fund

by John E. Dannenberg

Santa Clara County, California (SCC) agreed to settle a class-action lawsuit seeking recovery of funds unlawfully taken from its jails’ Inmate Welfare Fund (IWF) between July 2003 and January 2008 to pay guards’ salaries. The $1.5 million lump sum ordered paid into the IWF will be used to fund programs directed at prisoner rehabilitation and reintegration.

The lawsuit was filed in 2005 by the Public Interest Law Firm and Fenwick & West on behalf of 4,600 prisoners housed at the County’s Main and Elmwood jails, after prisoner programs were cut in response to budget problems. While surcharges on prisoner phone calls and commissary sales were still collected, the funds were redirected. The recovered $1.5 million, added to an existing $4 million IWF balance, will provide individual and group counseling for 800 prisoners who have suffered from abuse and trauma. Another 500 prisoners, in maximum security, will gain the Roadmap to Recovery program.

Additionally, literacy classes will be provided and subscriptions to the San Jose Mercury News will be reinstated.

$100,000 of the settlement was earmarked for the non-profit group Friends Outside to ...