Corporations Profit as Prisoners Remain Isolated from Loved Ones

How long does a typical phone conversation take you? Five minutes? What about with a parent or grandparent who you haven’t spoken to in a while? Maybe thirty or forty minutes? What if each of those minutes cost you $14? Would you spend $70, $420, $560 to speak with someone you loved, someone you missed? For many US prisoners, there is no other option.

Inmates housed in most state and federal correctional facilities must pay exorbitant amounts to speak with family or friends. On average, a fifteen-minute phone call costs a prisoner or their family around $3.00, but in some places, rates can reach $14.00 per minute. In comparison, this cost is four times what the average cell phone customer pays. Due to such high rates, prisoners’ families often have to think carefully about the distressing financial implications of accepting a collect call from a loved one.

One might wonder how in a market economy these companies can charge customers such extreme prices. The answer is – the rules of supply and demand aren’t relevant inside prison walls. There, consumers are devoid of choice and producers can secure monopolies through a simple system of kickbacks. Typically, individual prisons are serviced by a single telecom company chosen by the prison administration. Often this decision is based on the size of the “commission” the telecom company is willing to provide and not the price of the service to the individual customer, the prisoner, leaving the company free to set prices as it wishes.

These telecom companies further benefit from low literacy rates among prisoners and the burdensome nature of prison visitations for inmates’ families. Without a viable alternative through which to communicate with their loved ones, inmates and their families have no choice but to pay the price set through a system that is no less than an affront to our market system. Prisoners are held as a captive audience for telecom companies who are free to profit off of their lack of options.

In 2015, the Federal Communications Commission agreed that the rates prisoners commonly pay are not “just, reasonable [or] fair,” and it set caps on the interstate, intrastate, and ancillary fees that these for-profit companies could charge prisoners. These caps brought phone rates down to under a dollar per minute. On average, the caps brought a 15-minute phone call down to $1.65. Even these prices, though, are still double the cost of a phone call for a non-incarcerated consumer.

Of course, the private telecom companies didn’t go down without a fight. Soon after the FCC set these caps, five prison phone service providers petitioned for review.[1] Among other reasons, one of these companies’ chief complaints was that the FCC was not accounting for the kickbacks telecom companies paid prisons to secure contracts as an expense.[2]

Unsurprisingly, soon after President Trump’s inauguration, the FCC informed the court that it would no longer defend its previous position that it could police rates that affected intrastate calls. The court concluded in June of this year that the FCC had not been granted the power by Congress to set rate caps for intrastate calls.[3] The caps on interstate phone calls could remain, but the caps on intrastate phone calls could not.[4] Additionally, the court remanded the issue of ancillary fees – which can comprise up to 60% of the cost of the call – back to FCC to decide if it could determine a way to regulate only those fees affecting interstate calls.[5] Unfortunately, intrastate calls make up almost 80% of the calls placed from prison.

For many prisoners and their families this means that the precious moments they spend on the phone will continue to be prohibitively expensive and therefore few and far between. This deprivation, however, may also have implications for the greater society. The social ties that these phone calls provide have been shown to provide exogenous benefits for the inmate’s community, both inside and outside the prison. While the studies have not conclusively shown the extent or source of these benefits, they have repeatedly shown that individuals who maintain social ties with their community are less likely to struggle with disciplinary infractions within the prison and recidivism outside of it.[6] Additionally, the 2.7 million children of incarcerated parents currently living in the U.S. demonstrate better educational and mental health outcomes when they are able to maintain connections with their parents.[7]

Apart from these benefits, such restrictions on inmates’ ability to communicate and associate may have serious implications for their constitutional rights. As the Supreme Court stated in Turner v. Safely in 1987, “[p]rison walls do not form a barrier separating prison inmates from the protection of the Constitution.”[8] Afforded as part of this constitutional protection are the First Amendment rights to free speech and freedom of assembly, which have the potential to include protections for a prisoner’s right to communicate and associate with others, and in particular their families. In fact, multiple circuit courts have recognized a prisoner’s First Amendment right to communicate via telephone.[9]

While it may be debatable whether the FCC had the authority to intervene and regulate intrastate phone rates, it’s clear that the interests of society are not being served by the present prison phone system.

For now, however, corporate interests prevail. As previously mentioned, prisons and profiteering phone companies have complained that the expensive “commissions” paid to prisons for service contracts help sustain normal institution operations. It is important to keep in mind, however, that these funds are being raised on the backs of vulnerable individuals who have very few options when it comes to staying in contact with loved ones and make, on average, between $0.14 and $1.41 an hour. Further, when prisoners can’t afford to call home, families, already suffering from the economic loss of a wage earner, must foot the bill.[10] Finally, we must remember that many of the prisons claiming to need the injection of additional capital are themselves for-profit companies.

 

 

[1] Global Tel*link v. FCC, 866 F.3d 397, 405 (D.C. Cir. 2017).

[2] Id. at 406.

[3] Id. at 408-10.

[4] Id. at 402.

[5] Id. at 406.

[6] See Johnna Christian et al., Social and Economic Implications of Family Connections to Prisoners, 34 J. Crim. Just. 443, 444 (2006); Damien Martinez & Johnna Christian, The Familial Relationship of Former Prisoners, 38 J. Ethnography 201, 202 (2008).

[7] Global Tel*link v. FCC, 866 F.3d at 405.

[8] Peter Shults, Calling the Supreme Court: Prisoners’ Constitutional Right to Telephone Use, 92 B.U.L. Rev. 369, 373 (2012) (citing Turner v. Safley, 482 U.S. 78, 84 (1987)).

[9] Id. at 380 (citing Johnson v. California, 207 F.3d 650, 656 (9th Cir. 2000) and Washington v. Reno, 35 F.3d 1093, 1100 (6th Cir. 1994))

[10] Johnna Christian et al., Social and Economic Implications of Family Connections to Prisoners, 34 J. Crim. Just. 443, 445 (2006).

 

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Madelyn is a second year law student at Harvard Law School. She is interested in civil rights, economic justice, and community lawyering.

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