News Release ~ 12/06/2006

N.Y. Prisons Make Millions Profiteering on Inmate Phone Calls

Washington, DC (December 6, 2006) -- On Friday, Dec. 1, a diverse group of 18 nonprofit criminal justice organizations filed an unusual amicus curiae, or “friend of the court” policy brief in the New York’s highest state court. The groups’ joint brief condemns the state correctional system’s practice of charging above-market rates for collect calls from prison and then splitting the profits with the telephone service provider, with the state taking nearly 60 percent, or about $23 million a year.

The current rate structure is unrelated to the actual cost of providing telephone service to inmates. The cost of a collect call from a New York prison includes a $3.00 flat connection charge and a set rate of $0.16 per minute, charged to the party receiving the call -- more than six times the cost of a regular commercial call. In effect, the high cost of prison phone calls acts as a subsidy, a “corrections tax,” imposed on mostly poor families of state prisoners. Public defender offices and private law firms are also “taxed” whenever an inmate needs to speak with his lawyer, as incoming calls are highly restricted.

The case is Walton v. New York Dept. of Correctional Services and MCI Worldcom (doing business as Verizon Business Services). The Plaintiffs are relatives of inmates, the Office of the Public Defender, and the New York State Defender Association. Amici include The Sentencing Project, the National Association of Criminal Defense Lawyers (NACDL), the New York State Association of Criminal Defense Lawyers (NYSACDL), the NAACP Legal Defense & Education Fund, the Women’s Prison Association, The Fortune Society, and a dozen others.

Plaintiffs are seeking to enjoin the Department of Correction Services from collecting its 57.5 percent commission on each call and reduce the costs per call accordingly.

Richard Willstatter, White Plains, NACDL Amicus Curiae Committee Vice-Chair and chairs the Amicus committee for the New York State Association of Criminal Defense Lawyers, said that New York’s unconscionably high phone costs interfere with the right to counsel.

As in many states, many New York state correctional facilities are in remote locations making regular visits time-consuming and problematic, and phone calls are the most expedient way inmates can contact family members and their post-conviction lawyers. For example, in 2002, less than one-third of prisoners from New York City were confined in prisons closest to home, and the average drive time associated with a prison visit is about four hours in each direction – for those family members fortunate enough to have access to a car.

“These outrageous telephone rates interfere with [inmates’] ability to communicate with their lawyers in connection with appeals and post-conviction proceedings,” Willstatter said. “They have to choose whether to spend their family’s money on talking to their lawyers or talking to their wives and kids, or husbands and kids, or their parents.”

“If they’re indigent, then the public defender offices around the state have to pay for the calls. If private counsel aren’t reimbursed, then those lawyers bear the burden of these outrageously expensive calls. The fixed rate plan is bad for the right to counsel.”

Telephone calls are essential to prisoners’ preservation of social and familial ties that are essential to successful reentry into society.

“High telephone charges run counter to the goals of promoting family harmony and facilitating reentry into the community,” explained Marc Mauer, executive director of The Sentencing Project in Washington, D.C., who organized the amicus project. “We should not be financing a prison system on the backs of poor people who have a loved one in prison.”

The criminal justice organizations’ policy brief is intended to impress upon the high court that recidivism studies uniformly demonstrate that prisoners who maintain close social ties are less likely to commit new crimes after their release, and that economically restricting inmate phone contacts with family and future employers has even greater human costs.

Close social ties assist former prisoners in managing a range of issues which could lead to recidivism, while mitigating the effects of incarceration on families and communities.

  • Social and family ties help provide for a former inmate’s basic needs, such as housing, food and employment. More than 10 percent of prisoners find themselves homeless shortly after release; the lucky ones who are able to secure stable living arrangements overwhelmingly rely on immediate family members to take them in. And among of cohort of prisoners returning to New York City in 1999, fully one-third of those who found employment within a month of release located their job through family or friends. Finding a job is critical to a former offender’s success, not only because it provides much-needed income, but also because employment has been strongly linked to reductions in criminal behavior.
  • Studies have shown – and it stands to reason – that correctional policies aimed at reducing recidivism by maintaining strong families promote the vital interests of the neighborhoods and communities from which a disproportionate share of prisoners are drawn.

New York State is not alone in imposing ridiculously high pricing on inmate calls. The problem is prevalent enough that even the American Correctional Association, in a recent statement on telephone policy, informs its members that rates should be “commensurate with those charged to the general public for services” and that “[a]ny deviation from ordinary consumer rates should reflect actual costs associated with the provision of services in a correctional setting.”

Simply put, eliminating the inmate-family telephone tax is sound public policy.

The Amicus Curiae brief was authored by Eric A. Tirschwell, Keith M Donoghue, Erin E. Oshiro and Aaron S. Fleischer, of Kramer Levin Naftalis & Frankel, LLP, New York, N.Y., (212) 715-9100. It can be downloaded in PDF format from the NACDL Web site’s Amicus Curiae Page at http://www.nacdl.org/amicus. Richard Willstatter can be reached at (914) 948-5656. Marc Mauer can be reached at (202) 628-0871.

The National Association of Criminal Defense Lawyers is the preeminent organization advancing the mission of the criminal defense bar to ensure justice and due process for persons accused of crime or wrongdoing. A professional bar association founded in 1958, NACDL's approximately 9,000 direct members in 28 countries – and 90 state, provincial and local affiliate organizations totaling up to 40,000 attorneys – include private criminal defense lawyers, public defenders, military defense counsel, law professors and judges committed to preserving fairness and promoting a rational and humane criminal justice system.

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