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 ...

by Matt Clarke

On October 20, 2008, Texas Governor Rick Perry placed all 112 prisons and 155,000 prisoners in the Texas Department of Criminal Justice (TDCJ) on lockdown to search for cell phones after a state senator received calls from a death row prisoner.

Richard Lee Tabler, 29, who is awaiting execution, used a cell phone to call state Senator John Whitmire, chair of the Senate Criminal Justice Committee, on October 7, 2008 to ask for his help in obtaining a pro bono attorney and special visits for his mother and grandmother.

Tabler’s mother, Lorraine, was arrested at an airport when she arrived from Georgia after Sen. Whitmire told her he had arranged a visit with her son. Detectives are in possession of a videotape from a Wal-Mart in Waycross, Georgia that shows her purchasing minutes for the cell phone that Richard used. Over forty calls made from death row were to her home number.

Tabler’s mother and sister, Kristina Martinez, who surrendered to authorities in Temple, Texas on October 22, 2008, were named in felony warrants for providing a prohibited item to a prisoner. They face up to two years in state jail.

Tabler had also called Austin American-Statesman ...

Washington State prisoner Habib Saleh sought review of his federal habeas corpus denial challenging the admission of statements made in a voluntary phone conversation he initiated at his trial for first degree murder. The court affirmed the statement's use and his conviction, holding that the non custodial phone interrogation did not require a Miranda warning.

Seattle apartment manager and Saleh's ex wife, Elizabeth Edwards, was brutally beaten and killed in 1996. On March 3, 1998, Saleh, in jail for assaulting his son in law, was interrogated in the murder after being read his Miranda rights. On March 25, 1998, he requested counsel but also said to a detective that he wanted the electric chair so that he could be with Edwards, but denied killing her. The next day, March 26, 1998, Saleh placed a call to the detective and again requested the electric chair.

Saleh was charged with first degree murder. His attack on his son in law resembled the attack against Edwards. He had a history of violence toward Edwards and blood found on his apartment's exterior matched her DNA. He had been treated for injuries consistent with the method of Edward's attack. The March 3rd and 25th statements ...

On August 14, 2008, the Texas Board of Criminal Justice (TBCJ) awarded a phone service contract to two companies, Kansas-based Embarq Corp. and Dallas-based Securus Technologies, Inc. Prior to this historic event, the Texas Dept. of Criminal Justice (TDCJ) was the only state prison system in the nation that did not let prisoners make phone calls. The contract was awarded during a TBCJ meeting held at a motel in Austin; prior to the contract award, details of the bids were confidential.

It is now known that Global Tel*Link and Unisys also submitted proposals, with Global Tel offering the lowest bid. But the TBCJ didn’t accept the lowest bid; after all, it will be prisoners and their families paying for the phone calls, not the state. Instead, the TDCJ accepted the higher Embarq/Securus partnership bid with rates of 26¢/minute for in-state and 43¢/minute for out-of-state collect calls, and 23¢/minute for in-state and 39¢/minute for out-of-state prepaid calls. The contract will result in the installation of approximately 5,000 phones at 113 prison sites by April 2009, which will be used by about 160,000 Texas prisoners.

To be eligible to make phone calls, prisoners must have no major disciplinary violations within the past ...

More Damages, Costs & Attorney Fees Awarded in NH False Disciplinary Case

Three prisoners involved in two federal civil rights lawsuits against officials of the Hillsborough County House of Corrections in New Hampshire (the jail) were awarded nominal, compensatory and punitive damages plus attorney fees and costs.

On July 14, 2002, jail guard Cesar Rivas, working alone in a medium-security housing unit, radioed in an alarm. He claimed to have been rushed or cornered by a group of at least twenty prisoners. Rivas picked out nine pre-trial detainees from the locked-down unit whom he claimed were involved in the incident. The nine were placed in solitary confinement.

The conditions in solitary were especially harsh, and included denial of all property except a mattress, sheet, pillow and prison uniform. Prohibited items included legal papers, writing instruments and personal hygiene items such as soap and toilet paper. The water supply to the cells was shut off and the nine prisoners had to rely on the largess of guards to turn it on briefly so they could wash their hands or flush the toilet.

They were subjected to up to five in-cell strip searches a day in which they were often required to ...

Georgia Sheriff Must Give Revenue from Prisoner Phone Calls to County

by David M. Reutter

The Georgia Court of Appeals has held that a sheriff must turn over to the county all revenue from a profit-sharing prisoner telephone contract. The ruling upholds an order of declaratory relief granted to Lincoln County against Sheriff Gerald S. Lawson.

In 2003, former Sheriff Edwin Bentley entered into a contract with Evercom Systems, Inc. to provide telephone services to prisoners at the Lincoln County jail. In return, Evercom agreed to pay the sheriff a commission of 38% of the revenue derived from the prisoners’ collect calls, which amounted to $15,000 to $16,000 a year.

Bentley turned these proceeds over to Lincoln County’s general fund, which the County Commission used, in part, to pay for the prisoners’ care and for the operation and maintenance of the jail. The anticipated revenue was used to calculate and partially fund the sheriff’s budget.

When Lawson took office in 2005, he continued that practice. In January 2006 he amended the phone contract to allow him to purchase pre-paid calling cards to sell to prisoners. At some point in early 2006, Lawson stopped turning the phone commissions over to the ...

The Nebraska Court of Appeals held in this case that a prisoner's failure to exhaust his administrative remedies deprived the district court of jurisdiction over his civil rights lawsuit.

On May 22, 2003, Dukhan Iqraa Jihad Mumin, a Nebraska prisoner, filed an amended petition against the state prison system and T-Netix Telephone Company, which operated the prison "calling system." Mumin claimed, among other things, that the monitoring and recording of his "private telephone conversations involving discussions of medical and legal business, the improper disconnecting of telephone calls, and the denial of access to various telephone numbers" violated his statutory and constitutional rights. Mumin further claimed that monitoring prisoners' calls constituted illegal wiretapping since the defendants were not law enforcement personnel.

After characterizing Mumin's entire suit as brought under 42 U.S.C. § 1983, the trial court dismissed his complaint for failing to exhaust his administrative remedies pursuant to 42 U.S.C. § 1997e (2000), commonly known as the Prison Litigation Reform Act (PLRA). Mumin appealed.

Because Mumin did not challenge the trial court's finding that his suit was brought pursuant to § 1983, the Court of Appeals limited its review specifically to whether, under the PLRA, "the exhaustion of administrative remedies is ...

Nevada Phone Contract Reduces Costs to Prisoners’ Families But Increases State’s Kickback

by David M. Reutter

A panel headed by Nevada Governor Jim Gibbons has approved a contract that reduces the cost of in-state collect calls from prisoners, but maintains exorbitant rates for out-of-state calls. The contract also increases the kickback percentage the state receives from its new prison phone service provider.

In February 2008, Nevada’s Board of Examiners approved a $7.2 million, 3-year contract with EMBARQ, a Kansas-based communications company, to provide collect-only phone services to Nevada’s 13,000 prisoners.

Under the contract, prisoners’ families will pay $1.45 for a local call that lasts 16 minutes. The price for a long distance in-state call will be $2.73. Those costs are down from the previous rates of $1.89 and $4.48, respectively. Prisoners who make out-of-state calls will continue to face price gouging, however, as such calls will cost $16.14, which is only slightly less than the $18.00 cost under MCI, the previous phone service provider.

In response to critics who decried such high rates, Governor Gibbons said, “if you don’t want to pay those prices, don’t go to prison.” His bureaucratic response ignored the fact that collect calls are paid “from ...