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Court Enjoins BOP Phone System

On October 13, 1993, Judge Henry Wilhoit of the U.S. District Court in Kentucky entered a preliminary injunction barring the federal Bureau of Prisons from implementing its Inmate Telephone System (ITS). The case is Washington v. Reno, case number 93-217 and 93-290. Readers should note that so far this is an unpublished opinion that cannot be cited for precedent, but it does affect all BOP facilities in the U.S.

Conchita Washington and several other prisoners at the federal prison for women in Lexington, Kentucky, filed suit claiming that the BOP is ITS discriminates against poor and disabled prisoners. The BOP began implementing a phone system, ITS, which changed its phone system from one which allowed collect calls only to one which is direct dial requiring prisoners to pay for the calls. In order to be able to make phone calls prisoners must also participate in the "Inmate Financial Responsibility Program," IFRP. The IFRP is a coercive program designed to force prisoners to pay all fines, restitution, etc. All funds received by a prisoner from any source are subjected to IFRP collection. Thus, prisoners who do not wish to participate in the IFRP receive virtually no phone privileges. Non-IFRP participants are allowed one collect call every 90 days, or in cases of family emergencies and to place unmonitored, staff assisted collect calls to attorneys.

The ITS Permits prisoners to have only 20 phone numbers that they can call. The BOP may approve or disapprove numbers at will with no appeal process to challenge such actions. It also has many monitoring, tracking, investigative and interrupt control features. The equipment is owned by GTE and leased by the BOP. It is paid for with the profits from the Prison Commissary Trust Fund.

In its order granting the preliminary injunction the court made numerous findings of fact. Specifically, the court ruled that the ITS system, while it may be desirable to some prisoners, does discriminate against indigent and poor prisoners who lack the funds to pay for direct dial phone calls. The court held that a full reading of the contract and the BOP is Request for Proposal indicate that, contrary to the BOP is assertion the ITS does not limit its capability to allow for collect calls as well as direct dial. While the costs of direct dial calls are cheaper than collect calls there are no provisions for those prisoners too poor to make direct calls.

The court notes that according to 31 U.S.C. § 1321 (22), the Commissary Trust Fund, the profits of to trust fund are to be spent solely for the benefit of all prisoners in accordance with the terms of the trust. The BOP is using funds from the Trust to purchase ITS equipment and staff its operation.

In granting the motion for a preliminary injunction the court held the prisoners had shown a high likelihood of success on the merits and expressed its doubts as to the constitutionality of the ITS. The phone list requirement and its limitation to ordinarily list only family or friends without BOP approval raises serious prior restraint concerns The court also found a complete dereliction on the part of the BOP to comply with the Administrative Procedures Act (APA), 5 U.S.C. § 553. The court held that under the APA the BOP should have properly repealed the collect call provisions codified in 28 C.F.R. § 540.104 before implementing the ITS.

The court held that, as Implemented by the BOP, the ITS probably violates the appropriations law concerning the expenditure of trust funds because it discriminates against both indigent prisoners  and non-lFRP prisoners. "This discrimination likely represents a breach of fiduciary duty under the trust because trust funds are not being spent impartially for the benefit of all inmates as the trust terms require." Because significant additional money will have to be sent to prisoners from outside sources to pay for the calls this poses security risks which the BOP has argued in other cases and also violates the terms of the Trust Fund The operation of the ITS is also not a proper function of the Prisoner's Commissary Trust Fund. The prisoners showed irreparable injury because they would have less funds to spend on commissary items and because they are limited to only 20 persons whom they may call and this excludes ministers, courts, etc. Prisoners are further harmed by having to become IFRP participants before they can make phone calls. Because phone contact with friends and family is important for rehabilitative purposes, restrictions on phone access must be minimized.

Because the expenditure of funds from the Trust Fund is not authorized the prisoners are irreparably hammed by that as well. The court seemed particularly outraged by the fact that prisoners were being denied phone access with the very money Congress intended to be used for their benefit. The BOP argued that the injunction would cost the BOP $18 million. The court noted: "...that the Bureau's perceived 'harm' has not been caused by anything the plaintiffs did nor by what this court's injunction may do, but rather by the Bureau's decision to implement the ITS nationwide without any attempt to comply with the APA or otherwise seeking prior approval of the ITS from Congress. Equity does not ordinarily reward inequitable or improper conduct. In many respects, the Bureau's position that it should not be enjoined from implementing the ITS because it will incur too great a cost to stop the ITS is not well taken by the court when the Bureau would never have come to this position if it had properly complied with the law in the first instance." The BOP was enjoined from operating the ITS unless a collect call system was also made available and it must be substantially similar to the system previously used by the BOP. While prisoners using the ITS can list only 20 persons to call, the list cannot be limited to only family or friends.

The BOP was enjoined from using Commissary Funds to pay for any expenses associated with the ITS. On November 18, 1993, Judge Wilhoit certified a class action whereby all federal prisoners are added as plaintiffs in the suit. The BOP appealed the court's order to the Sixth Circuit Court of Appeals which on December 7, 1993, limited the courts injunction to only those BOP facilities which did not have the ITS installed yet. It did not address other parts of the lower court order. It ordered that the appeal be placed on an expedited briefing schedule PLN will report further her developments in the case as they occur.

The plaintiff so attorney is Douglas McSwain, 155 East Main St. Lexington, KY. 40507-1393. (606) 255-8581. He notes that he cannot respond to all correspondence from the plaintiffs.

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Related legal case

Washington v. Reno