by Madeline Severin, 25 Cardozo Law Review 1469, March, 2004

Review by John E. Dannenberg

We all know about how prisons and jails conspire with telephone companies to bilk recipients of prisoner phone calls via exorbitant chargesswollen by kickbacks approaching 60%but how does one legally challenge this scheme?

Yeshiva University Doctor of Jurisprudence candidate Madeline Severin has thoroughly researched existing case law, legislative histories and peer law review literature in creating her Cardozo Law Review treatise that insightfully discusses the history of state and federal legal challenges to prisoner telephone-call price gouging. Severin then proceeds to analyze each legal theory attempted, showing where it failed or occasionally, was held to have merit. From this analysis, she then looks forward to how the problem might have to be approached in the future. In sixty pages of text replete with 390 comprehensive footnotes informative for both pro-per and attorney readers, Severin first examines existing case law. She notes that federal prisoners pay lower rates, but that the legal theories protecting them have little to do with state law claims on prisoner phone rates.

One major obstacle is the "filed rate doctrine," wherein once a phone company has "filed" its rate plan with ...

The Illinois Court of Appeals for the Third District reinstated a prisoner's lawsuit against Ameritech over the company's alleged fraudulent intentional early disconnecting of prisoner phone calls.

Johnnie Flournoy, an Illinois state prisoner, filed suit in state court alleging fraud and negligence against Ameritech, the provider of prison phone services for intentionally disconnecting his collect phone calls early so as to force a second call and allow the collection of a second initial calling fee and surcharge. He also alleged that he sent his mother money to pay for the collect calls he made from prison. Ameritech moved for dismissal of the suit, citing the Illinois Public Utilities Act which grants the Illinois Commerce Commission exclusive jurisdiction over complaints concerning excessive rates or overcharges by public utilities companies. 220 ILCS 5/9 252. The circuit court dismissed the suit. Flournoy appealed.

The court of appeals first noted that claims for reparations lie within the exclusive jurisdiction of the Commission. However, if the claim is for civil damages, a circuit court may hear the case. It then held that "the essence of Flournoy's claim is that Ameritech deliberately terminated his collect telephone calls prematurely, forcing him to call the same person again. ...

Virginia SCC Without Jurisdiction to Hear
Prisoner Phone Rate Challenge


The Virginia Supreme Court, in an un-published opinion, has held the State Corporation Commission (SCC) does not have jurisdiction to hear challenge to prisoner phone rates. Virginia Department of Corrections (VDOC) prisoner Robert E. Lee Jones, Jr., filed a complaint with the SCC alleging that M.C.I. Telecommunications Corporation (MCI) charged excessive rates for telephone service in the Commonwealth's prisons. The SCC entered a Final Order in Jones' favor. MCI and VDOC appealed, arguing that Code §56-234 prevents the SCC from exercising jurisdiction over "contracts for services rendered by any telephone company to the state government."


§ 56-34 requires "every public utility to furnish reasonably adequate service and facilities at reasonable and just rates to any person, firm, or corporation" and that "[t]he charge for such service shall be at the lowest rate applicable with schedules filed with the [SCC] pursuant to §56-236." However, § 56-234 specifically exempted from this requirement "schedules of rates, or contracts for service rendered by any telephone company to the state government&"


The Court favored the "Inmate Telephone System contract is an agreement between MCI and a state agency." The fact prisoners and recipients of their ...

A lawsuit currently pending in a California state court claims that certain providers of prison telephone services have improperly charged for collect calls from correctional institutions that were not authorized or accepted by the called party. The lawsuit, Condes v. Evercom Systems, Inc., Alameda County (California) Superior Court Case No. 2002054255, was filed in 2002 by three San Francisco Bay Area law firms _ the Law Offices of Edward C. Casey, Jr., the Law Offices of John W. Allured and Bramson, Plutzik, Mahler & Birkhaeuser, LLP.

The plaintiffs in the action are three criminal defense lawyers _ Elena Condes, Bicka Barlow and Brian Getz _ and an accountant, Christopher Fank. They allege in their complaint that defendants Evercom Systems, Inc., Global Tel*Link Corporation, T-Netix Telecommunications Services, Inc. and ILD Telecommunications, Inc. improperly charged them and other persons for prisoner collect calls that they had not authorized or accepted _ including calls that were received when nobody was present to answer the phone and calls received by telephone answering machines or voicemail. Also named as defendants in the action are Verizon California, Inc., Pacific Bell Telephone Co. and SBC Communications, Inc.

The plaintiffs have asserted claims based on California's Unfair Competition ...

The Ninth U.S. Circuit Court of Appeals reversed summary judgment granted by the U.S. District Court, Western District of Washington, to officials at the Special Commitment Center (SCC) for sex offenders at McNeil Island, Washington. This case is part of ongoing litigation. against the SCC, about which PLN has reported extensively.

Andre Young, a detainee at SCC, sued Dr. Mark Seling and other SCC officials under 42 U.S.C. § 1983, claiming that his constitutional rights were violated when SCC monitored his telephone calls and denied his incoming and outgoing calls from April 18 through September 24, 1998, when his sister was terminally ill. The district court granted summary judgment to the defendants and Young appealed.

The appeals court held that the district court erred in overlooking an injunction issued in 1994 by Judge Dwyer, also of the Western District of Washington, his reaffirmation of that injunction on November 15, 1999, and his published opinion in Turay v. Seling, 108 F.Supp.2d 1148 (W.D. Wash. 2000), also upholding the 1994 injunction. Judge Dwyer specifically enjoined SCC (1) from monitoring residents' telephone calls, (2) from barring outgoing calls other than collect calls, and (3) to allow "prompt telephone access to residents in cases ...

Nebraska Prisoners Win Summary Judgment on
Phone Access and Monitoring Issues

by Matthew T. Clarke

A Nebraska state district court
granted Nebraska state prisoners' summary judgment on issues involving the monitoring and recording of phone calls to government officials, courts, and attorneys, and the denial of calls to some attorney phone numbers and all news media numbers.

In 1997, Tarty McCroy, Gary Pope, David Ditter, and Thomas Nesbitt, Nebraska state prisoners, filed suit in state court under the First, Sixth, and Fourteenth Amendments to the U.S. Constitution, their state equivalents (Article I, Sections 3, 5, 13. and 19 of the Nebraska Constitution), seeking to prevent the recording of phone calls to courts, State Senators, government officials; the restriction of attorney confidential calls to a single business number; the denial of all calls to attorneys who haven't appeared for the prisoner in a matter which is scheduled for a hearing within 14 days; the denial of calls to law firm staff, paralegals, law clerks, and 411 information; and the denial of calls using 800 numbers, cellular phones, or call forwarding, call waiting, and conference calling. These restrictions on prisoners' phone calls were brought about by the implementation of Nebraska Department of ...

Discipline Without Notice Violates Due Process;
BOP Administrative Exhaustion May Be Excused


A federal district court in Oregon held that a federal prisoner's procedural default in failing to exhaust administrative remedies would be waived. The court also held that disciplining a prisoner for violation of a rule he had no notice of violates due process.


Scott Seehausen, a BOP prisoner confined at FCI-Sheridan telephoned David Reyes-Espinosa, a former member of his prison softball team. Reyes-Espinosa was on home confinement at the time. As a result of the telephone call Seehausen was disciplined for violating a telephone policy that prohibited prisoners from calling prisoners at a halfway house.


During the hearing, Seehausen argued that there was nothing in the prison policies indicating that he could not call another prisoner. The Hearings Officer acknowledged that Seehausen was given an early version of the Prisoner "Handbook that `did not spell out the new telephone procedure initiated in early 2000.'" However, the Hearings Officer found Seehausen had sufficient notice of the prohibition due to: "(1) a town hall meeting where rules governing telephone use were discussed; (2) an article in the prison newsletter discussing telephonic activities that would subject an inmate to discipline; and ...

NYPD Commissioner Charged With Stealing $112,733.98
from Jail Prisoner Fund

By Matthew T. Clarke


On July 11, 2003, NYPD Deputy Po-lice Commissioner of Community Affairs Fredrick J. Patrick, 38, was arrested on federal charges that he looted close to $113,000 from the New York City Correctional Foundation, a non-profit corporation, incorporated in 1993, to improve jail conditions in New York City. Patrick has been the Foundation's Director and Treasurer since 1994. The money was used to pay for collect calls from prisoners to Patrick's home phone, including "thousands and thousands" of calls he patched through to "900" sex lines between January 1997 and December 2001, apparently listening in on the calls. Patrick admitted spending the money on phone calls, paying his MCI and NYNEX bills with Foundation checks.


The investigation is part of a probe into the diversion of $1 million in cigarette rebates from the Correction, Department to the Foundation and the Foundation's substandard record keeping. The phone calls seem to have been an obsession with Patrick and may have been his main leisure activity. 81% of the calls were on weekends and Patrick was unable to cease calling even with investigators breathing down his neck. Patrick's salary is ...

Division I of the Washington State Court of Appeals has affirmed a trial court dismissal of an action challenging phone companies' failure to disclose the rates for collect calls made by Washington prisoners. Relief was denied because the plaintiffs did not bring the appropriate agency into the suit and did not cite the agency's regulations, as set out below.


Sandy Judd and Zuraya Wright received collect calls from a family member in a Washington prison [PLN editor Paul Wright]. Tara Herivel, an attorney and prison reform activist, received calls from many Washington prisoners. The phone service providers use an "alternate operator" system (a recording directing call recipients to press 1 to accept the call). Rates for such calls are very high, but the recording did not disclose this.


The plaintiffs, unhappy about the lack of warning about the rates, sued the phone companies in the King County Superior Court. They sought injunctive and monetary relief under state telecommunications and consumer protection laws. After the suit was filed, all the prison phone companies began providing rate information either as part of the recorded message or as a touch tone option. This mooted the equitable relief claims. The superior court dismissed the ...

Society is dynamic, in a state of con-stant flux where change is the only constant, but recent changes in Colorado are turning up the pressure in Colorado's prison system. Prisoner pay has been nearly eliminated while hygiene items are not provided. Prisoner phone rates are now in the hands of prison officials who can raise a quick buck at will by raising phone rates. The maximum possible parole setback has been extended to five years to further reduce the scant number of prisoners paroled. And overwhelming growth in the face of massive state fiscal troubles and a slashed prison budget has resulted in some prisoner programs eliminated, staff laid off and positions left unfilled, while another unneeded supermax begins construction.


Prisoner Pay


The state fiscal crisis has reached the point that not only has the Colorado Department of Corrections (CDOC) eliminated dispensing prisoner necessities (except for one roll of toilet paper per week in some areas), the General Assembly has ordered the CDOC to cut prisoner pay to save a paltry $1.4 million (or 0.298%) of an otherwise $469,771,508 budget. The previous multi-tiered pay system of $.28 per day for unassigned prisoners and $0.63, 1.03, 1.53, and 2.03 per day ...