NM inmates suing over phone rate hike

More than 200 inmates are suing the company that provides phone service saying the rate increase is unlawfully double the amount

Today at 9:28 AM

Phaedra Haywood
The Santa Fe New Mexican

SANTA FE, N.M. — More than 200 inmates are suing the company that provides phone service in New Mexico prisons, saying a 2016 rate increase unlawfully more than doubled the cost of calls from about 3.25 cents per minute to 8 cents per minute.

Prisoners also accuse past and current Corrections Department officials and the company, Securus Technologies Inc., of using a Federal Communications Commission ruling ostensibly aimed at protecting prisoners from exorbitant charges as an excuse to hike the cost.

Before the contract was amended, the lawsuit says, inmates paid a flat rate of 65 cents for a 20-minute call. Under the current 8 cents-per-minute rate, a 20-minute call costs $1.60.

The 2015 FCC ruling referenced in the lawsuit capped the per-minute rate at 11 cents, but was stayed as a result of appeals and never enforced.

Prisoner advocates say phone service is essential for inmates because staying in contact with family and friends is critical to maintaining ties in the community, adding that additional expenses are particularly detrimental to low-income families that bear the cost.

The lawsuit over the phone rates was initiated in October 2016 by an inmate named Ricky Joe Juarez and eight other prisoners. Over the past few years, about 200 more prisoners have joined as plaintiffs.

But the court has made few substantive decisions in the case, according to the online file, which includes a number of handwritten filings from the multiple plaintiffs asking to be added to the case or to be allowed to amend the pleading.

A spokesman for Securus Technologies said in an email the actual rate charged for inmate calls varied under the old system because inmates didn’t always speak for 20 minutes but paid the whole fee regardless. He said the “average” rate collected for calls before the 2016 amendment to the contract worked out to about 6 cents per minute.

“The rate structure in the contract with New Mexico [Department of Corrections] was changed from a per-call charge to a per-minute rate when the FCC abolished flat-rate pricing,” the spokesman wrote. “At this time, additional investigative tools and services were also added. Securus believes this case to be without merit and awaits the court’s decision.”

The Department of Corrections did not grant a reporter’s request to interview someone from the department, but said in an email the rate increase was the result of the FCC decision prohibiting flat rates and requiring per-minute rates.

The lawsuit alleges corrections officials and Securus Technologies “knowingly and deliberately with intent to defraud, changed the contract to not provide the lowest cost of telecommunication services” and that Securus used “false and misleading written statements” about the FCC ruling to justify the increase.

Asked to provide information about how frequently inmates are allowed to use telephones, the department provided a copy of a written policy that says lower-security inmates are entitled “access” to phones, while inmates in special management or restrictive housing pods will be provided “reasonable access” and inmates in disciplinary segregation will be granted “limited telephone privileges.”

The defendants have asked the court to dismiss the complaint, arguing the state District Court doesn’t have jurisdiction over inmate call rates within or outside of the state because they are regulated by the FCC and the state Public Regulation Commission, respectively. The motion to dismiss also says inmates fail to state a claim for breach of contract because they have not specifically identified any elements of the fraud they claim was perpetrated upon them.

It doesn’t appear a ruling in the case is coming anytime soon.

The inmates asked the court to appoint a lawyer to represent them in 2017. But District Judge Sarah Singleton — the first of three judges who have presided over the case — denied the motion, saying because it was a civil case, with no personal liberty interests at stake, the inmates were not entitled to a court-appointed attorney.

Chief Judge Mary Marlowe Sommer recently said District Judge Matthew J. Wilson — who inherited the case in December — told her he is reviewing it in an effort to determine how best to proceed.

One consideration, Marlowe Sommer said, is “what to do with 200-plus inmates in a courtroom.”

The Prison Phone Justice website, maintained by the Human Rights Defense Center, ranks New Mexico as 18th in the nation in inmate call affordability with the average cost of a 15-minute call at $1.20.

The website lists New Hampshire as the most affordable state for inmates to make calls — a 15-minute call costs only 20 cents there, according to the website — while Kentucky is ranked as the least affordable, with an average cost of $5.70 for 15 minutes.

The New Mexico inmates are asking the court to void the contract amendment that increased the cost of calls, declare they have a legal right to pay the lowest telecommunication rates and award damages for breach of fiduciary duty, good faith and fair dealing in an amount to be determined at trial.

They also ask that plaintiffs be awarded $300 “per call,” presumably for calls made since the new rates took effect.

Mara Taub, coordinator of the Santa Fe-based Coalition for Prisoners’ Rights, said phone rates for prisoners around the country are “just another example of how people who already have lower income and are in difficult life circumstances are being exploited by companies that make a lot of profit off of their bad treatment.”

“The same is true of the outsourcing of medical care at prisons and food services at prisons and vending machines in prisons,” Taub said. “It’s all part of the same picture.”