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 ...

Harris County, Texas Sends 600 Jail Prisoners to Private Pen in Louisiana

In December 2007, Harris County, Texas officials announced they were sending an additional 200 jail prisoners – 180 of them women – to a privately-run prison in northeast Louisiana. This brings the total number of Harris County prisoners incarcerated at the West Carroll Detention Center (WCDC) in Epps, Louisiana to 600. WCDC is owned and operated by Emerald Correctional Management.

Harris County, which includes the City of Houston, has a history of failing inspections by the Texas Commission on Jail Standards (TCJS) due to overcrowding and staffing issues. The Harris County Jail has failed every inspection since 2004, but finally passed an inspection in May 2007, shortly before shipping 400 prisoners to WCDC.

The county is also concerned about intervention from the U.S. Dept. of Justice (DOJ). It was reported in March 2008 that the DOJ had notified county officials that the jail was under investigation, with a focus on “protection of inmates from harm, environmental conditions, and inmate medical and mental health care.”

The Harris County jail system houses around 11,000 prisoners – 1,600 over capacity – and has received permission from the TCJS to use 2,000 ...

“The house always wins,” Warden Don Cabana proclaimed to the Sun Herald, a Mississippi newspaper, in July 2007. However, Harrison County, home of the Harrison County Adult Detention Center (ADC), has agreed to pay $3.5 million to the family of Jessie Lee Williams, Jr., who was brutally murdered at the hands of ADC guards – which sounds like a loss to everyone involved.

ADC Sgt. Ryan Michael Teel was convicted in Williams’ beating death and received two life sentences. Nine other jail guards pleaded guilty and received various terms of incarceration ranging from 4 months on house arrest to 4 years in prison for their roles in Williams’ death and other abuses at the ADC. Former Harrison Co. Sheriff George Payne, Jr. finally apologized to Williams’ family 17 months after his torturous death, just after the settlement was announced. The murder of Jessie Williams and the systemic pattern of abuses at the ADC are indicative of a much larger problem of brutality, corruption and malfeasance at Mississippi county jails.

Williams, 40, was a kind, slender man with seven children, six of whom were still minors when he died. He had a record of non-serious arrests and had been a trustee ...

by David M. Reutter

It has long been an established fact among Florida prisoners that if you wanted a transfer to a certain prison, you could pay well-connected lawyers to make that transfer happen. After Florida then Department of Corrections (FDOC) Secretary James R. McDonough learned of this practice, he not only brought it to a swift end but also disciplined staff members who had engaged in such improper conduct.

McDonough’s intervention in the transfers-for-sale scandal was his last act as FDOC Secretary before he resigned in January 2008. When he took over the reins at FDOC almost two years earlier, McDonough accepted the helm of a state prison system that was rotten to its core [See: PLN, Dec. 2006, pg 1].

In fact, McDonough’s new office at FDOC headquarters in Tallahassee had been sealed off as a crime scene by state and federal law enforcement officials. “That was an indication we had a problem in the department,” McDonough observed.

The scandals that preceeded McDonough’s appointment as FDOC Secretary included theft of state property, widespread steroid use by staff, drunken orgies involving prison employees, the murder of several prisoners and the acceptance of kickbacks by former Secretary James Crosby, who ...

Procedural Due Process--Disciplinary Proceedings (920): Sandin does not apply to detainees, who are entitled to procedural due process in disciplinary proceedings. Here there was some evidence because staff said the plaintiff had confessed.

Procedural Due Process--Administrative Segregation (921): Placement of an escape risk in segregation without a hearing, and requiring him to wear leg irons when out of his cell, was not unlawful punishment.

Procedural Due Process--Disciplinary Proceedings, Personal Property (921): The plaintiff alleged that his cell was stripped for 14 days. The Fourteenth Amendment requires no process when officials search a cell or remove property to ensure security.

Personal Property (922): Short-lived deprivation of commissary buys does not violate the Constitution.

Attorney Consultation (922): The plaintiff complained of lack of attorney-client confidentiality; however, the defendants denied listening in on conversations and and there was no evidence to the contrary. The appearance of impropriety does not violate the Constitution.

Correspondence, Procedural Due Process--Property (924): Allegations that an officer hid the plaintiff's outgoing mail do not state a claim since another officer found it and mailed it a few hours later. Allegations that unspecified, non-written items were removed from correspondence do not state a claim if there are post-deprivation remedies available. ...

At 953-54:
The right to hire and consult an attorney is protected by the First Amendment's guarantee of freedom of speech, association and petition. ... It has long been recognized that the First Amendment prohibits the state from interfering with collective action by individuals to seek legal advice and retain legal counsel. ... Likewise, the state cannot impede an individual's ability to consult with counsel on legal matters. ... Furthermore, the right to obtain legal advice does not depend on the purpose for which the advice was sought. This right applies equally to legal representation intended to advocate a political or social belief, ... or to recover damages in a personal injury suit. ... In sum, the First Amendment protects the right of an individual or group to consult with an attorney on any legal matter.

The ability to maintain confidentiality in attorney-client communications is an important component of the right to obtain legal advice. ... The centrality of confidentiality to the effective rendering of legal advice is reflected in the long-standing common law privilege for attorney-client communications. ... Because the maintenance of confidentiality in attorney-client communications is vital to the ability of an attorney to effectively counsel her client, ...

California state prisoner David Windham appealed the refusal of a court to suppress jail telephone recordings used in obtaining his conviction. The appellate court affirmed the judgment due to statutory allowances, and because Windham’s consent was implied as he received various warnings prior to placing the calls.

Windham was jailed after physically and sexually abusing his girlfriend when she refused to give him money while shopping. He made numerous phone calls in an attempt to dissuade her testimony, which contained various verbal admissions. The recordings, after his failed attempts at suppression, were used to convict him; he was sentenced to three years. Windham appealed, arguing violations under the Federal Communications Act of 1934 and the California Invasion of Privacy Act.

The California Court of Appeals, First District (Division Five) held that written signs, jail orientation and verbal warnings stated that phone calls from the jail could be monitored and recorded; thus, Windham had given implied consent to the recorded calls. Further, exceptions under both Acts for law enforcement practices were applicable. See: People v. Windham, 145 Cal.App.4th 881, 51 Cal.Rptr.3d 884 (Cal.App. 1 Dist. 2006), review denied.

A New York Supreme Appellate Court has sidestepped ruling on the merits of a lawsuit claiming that the practice of the New York Department of Correctional Services (DOCS) of receiving a commission from prisoner phone calls was an illegal legislative act. The Court held the action was procedurally barred under the statute of limitations.

The petitioners accepted collect phone calls from DOCS, which received a 57.5 percent commission on the cost of each call a prisoner makes through DOCS’ phone service provider, MCI Worldwide Communications. New York’s Public Service Commission approved MCI’s flat rate for such phone calls.

Petitioners sought declaratory and injunctive relief to prevent DOCS from collecting its commission, classifying that commission as legislative in nature. The gravaman of their complaint, however, was based on constitutional claims of free speech, equal protection and due process. The Court said such claims must be brought pursuant to CPLR article 78.

Article 78 has a four-month statute of limitations. That means, the Court held, that the claim accrues when the act became “final and binding upon petitioners,” or when DOCS’ determination became effective, rather than when petitioners received actual notice thereof.

Petitioners filed their action in February 2004 and the last ...

by David Reutter & Matt Clarke

In December 2007, it was reported that an investigator at Florida’s Charlotte County Jail was caught listening to telephone conversations between a prisoner and his attorney. As a result, the investigator, Kenneth Hill, was reprimanded and placed on road patrol.

Hill was investigating charges of introduction of contraband and attempt to defraud involving jail prisoner David Price. In all, Hill monitored five phone calls between Price and his lawyer, Michael Powell, in an attempt to learn about a possible drug exchange.

In a deposition taken by Powell, Hill admitted he had listened to the conversations. Later, however, Hill wrote a memo to the State Attorney’s office recanting what he said in his deposition. When internal affairs investigators questioned him, Hill stated he “did not listen to the conversations to gain an upper hand in court, for a loophole in the defense, or with any devious intent.”

When asked whether an attorney-client phone conversation should be monitored, Hill said, “That is a good question! If the attorney wants to speak in private, they should not be on a recorded line. You can’t know all of that.”

The Charlotte County Sheriff’s Office has since implemented a ...

On September 20, 2007, the Board of Supervisors for Dane County, Wisconsin enacted an ordinance amending the way the county contracts for jail telephone services. The ordinance requires that jail phone contracts (1) must not generate revenue to the county and (2) must be awarded to the lowest bidder consistent with public safety.

In addition to telephone contracts, the jail’s commissary and laundry services were similarly protected from price gouging. The only exception to the county’s amended contract requirements was for fees “associated with security of the jail or electronic monitoring for release programs.”

The county currently contracts with Inmate Calling Solutions, Inc.
(ICSI), which pays the county 57% of profits gener-ated from phone calls made by prisoners at the jail. Under ICSI’s contract, the phone calls cost an unconscionable $4.25 for the initial connection plus $.50 per minute, resulting in an $11.75 charge for a 15-minute call. The county’s jail phone revenue has amounted to almost $1 million annually.
County Supervisor Dave de Felice noted the county had become “addicted to this money,” and said “We’ve lost our moral compass and direction for a million bucks a year.”

Proponents of the ordinance who addressed the Board of Supervisors included ...