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 ...

by David M. Reutter

Florida’s Public Service Commission has recommended that TCG Public Communications, Inc. (TCG) pay $7.5 million for the improper disconnection of jail prisoners’ telephone calls. The recommendation was made in a September 8, 2008 memorandum following an investigation into complaints made by family and friends of prisoners at the Miami-Dade Pretrial Detention Center (MDPDC).

The Commission began investigating after receiving a complaint on March 18, 2004 that alleged the phone system at MDPDC was malfunctioning, causing prisoners’ calls to disconnect prematurely. As a result, the complainant incurred $900 in additional phone charges between May 2003 and January 2004.

TCG was a wholly owned subsidiary of AT&T Communications of the Southern States, Inc. All prisoner calls from MCPDC were “collect only,” resulting in a surcharge of $2.25 for 30-minute local calls and $1.75 for interstate toll calls plus an additional per-minute charge.

When a call would disconnect prematurely the prisoner would have to dial the party again, resulting in assessment of another surcharge. The disconnects were caused by a serious problem with TCG’s “third-party call detection” software, which resulted in approximately $6.3 million in improper charges. The Commission’s investigation revealed that TCG was aware of the problem but ...

On October 20, 2008, the entire Texas prison system was locked down and searched for cell phones and other contraband. The search resulted in the discovery of hundreds of cell phones, chargers, SIM cards, tobacco stashes and weapons. [See: PLN, March 2009, p.29]. While the search was in progress, the first Texas prison guard charged with cell phone smuggling was sentenced.

Former Mark Stiles Unit guard Davisha Maxine Martin, 26, pleaded guilty to providing a prisoner with a cell phone and received a four-year sentence on October 27, 2008. The Stiles Unit, located in Jefferson County, is the Texas facility where the most cell phones have been discovered in the past year. Two hundred cell phones have been found at the prison, including 60 hidden in an air compressor delivered to the facility.

Also on October 27, 2008, two New Jersey prison workers were indicted on charges related to cell phone smuggling. State prison guard Lisa Whittaker, 32, was indicted for hindering apprehension and two counts of official misconduct. The hindering apprehension charge stems from Whittaker giving investigators false information about New Jersey state prison nurse Darlene R. Sexton, 44.

Sexton, an employee of Correctional Medical Services, was indicted on ...

Suit Filed Over Minnesota Jail’s Secret Recording of Privileged Phone Calls

by Matt Clarke

On October 15, 2008, a Minneapolis law firm filed a civil rights suit in federal district court alleging that attorney-client phone calls from the Becker County Jail in Detroit Lakes, Minnesota were secretly recorded and sent to law enforcement officials.

Kenneth E. Andersen was arrested for murder and incarcerated at the jail from June 2007 to June 2008. He was given an orientation handbook when he arrived at the facility that stated phone calls were recorded and monitored except for attorney-client calls, which were not recorded or monitored. No further information on procedures for securing privileged phone calls was provided to Andersen or his attorneys.

Andersen’s initial attorney was based 200 miles from the jail. She and her investigator used phone calls to question Andersen about the case, inform him of the progress of their investigation and plan trial strategy. After four months of privileged phone discussions, they began to suspect that their phone calls were being recorded and provided to law enforcement personnel.

On multiple occasions, law enforcement officials interviewed witnesses a few hours before they arrived at planned witnesses interviews that had been discussed ...