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BOP Phone Litigation Update

In the March, 1994, issue of PLN we reported on Washington et al. v. Reno, et al., a lawsuit filed by women prisoners at FCI Lexington challenging the federal Bureau of Prisons (BOP) newly implemented Inmate Telephone System (ITS). [Editor's Note: For a full account of the ITS operations and the issues raised in the suit and the preliminary rulings please refer to the March, 1994, issue.] The suit was initially filed in May, 1993, and the court appointed counsel to represent the plaintiffs in the action. In the amended complaint, the plaintiffs challenge the ITS on grounds of free speech, due process, eighth amendment, equal protection and constitutional taxing powers. They also challenged the BOP's violation of its own administrative rules regarding the ability of prisoners to place collect calls and the BOP's failure to comply with the Administrative Procedures Act (APA). The BOP's "Request for Telephone Privilege" was challenged under the Privacy Act as unduly intrusive. Also challenged was the BOP's attempt to condition phone use upon participation in the Inmate Financial Responsibility Program (IFPR), i.e. payment of fines and such. The suit attacked the use of profits from the Commissary/Inmate Welfare Fund, a statutory trust, to purchase and operate the ITS when the welfare fund is supposed to be used as a trust for the benefit of prisoners, not for the BOP. They also challenged the ITS under the Federal Communications Act of 1934.

After a hearing on October 10, 1993, the district court in Kentucky issued a preliminary injunction in favor of the plaintiffs on October 13, 1994. Among the issues covered by the injunction were: 1) The BOP could not install its new ITS without providing an equivalent collect call system that used to exist prior to the ITS; 2) The BOP must make all facilities that already had the ITS (40 out of 80) provide prisoners with a collect call capability that formerly existed within a reasonable time period; 3) The BOP was barred from conditioning prisoner's phone use on their IFRP participation; 4) The BOP was barred from limiting the types of persons (i.e. media, courts, elected officials, etc.) prisoners could list on their phone list, except they could limit the number of persons to no less than 20; 5) The BOP was barred from spending funds from the Commissary/Inmate Welfare Fund Trust to pay for the ITS except that prisoners could be required to pay for their ITS placed calls, and those funds could be reimbursed paid from the trust.

On November 18, 1993, the court certified the suit as a nationwide class action suit on behalf of all federal prisoners throughout the United States. The district court declined to stay its order of the preliminary injunction while the government appealed. The Sixth Circuit court of appeals granted a temporary partial stay of the PI pending hearing the appeal on the PI. The partial stay allowed the BOP to continue operating the ITS in the institutions that already had it as of October 13, 1993, (about 40) as if there were no PI in place. The PI remains in full force and effect for all the other institutions not having the ITS in operation as of October 13, 1993. The sixth circuit placed the appeal of the PI on a "fast track" and ordered prompt briefing. Oral argument before the appeals court was held on May 12, 1994. As we go to press they have just rendered a decision in the case, which we will report in full in an upcoming issue.

During the pendency of the litigation the BOP has made numerous changes to the manner in which it operates its ITS, many of which respond to the claims made in the lawsuit. In its briefs to the appeals court the BOP claimed that elected officials, members of the court and media could be listed on prisoner's ITS phone lists. The plaintiff's attorney called the BOP's briefs incorrect and misleading on this point and the BOP submitted supplemental filings to the appeals court correcting its briefs. On or about March 15, 1994, the BOP issued a nationwide memorandum to all prisons requiring them not to exclude elected officials and members of the media or courts from prisoners' ITS phone lists. At about the same time the BOP issued a nationwide directive to all prisons not to exclude prisoners from ITS phone use based solely on their "IFRP-refuse" status. This was partial victory for the plaintiffs.

On April 4, 1994, the BOP issued its new "final rule" regarding the ITS, see: 59 Fed. Reg. 15812-25. After being ordered by the district court to leave its "comment" period open for input from prisoners and the public, with regards to the BOP's "proposed rule" regarding the ITS, comments were received from prisoners, news organizations, prisoner support groups, class counsel and interested citizens across the country. The BOP's new "rule" responds to many of the comments received and capitulates on virtually all constitutional, indigency and fairness issues raised by the plaintiff' s class in the lawsuit and the "comments" received from prisoners.

The new "rule" abolishes the Request for Telephone Privilege form that was so intrusive of potential call recipients' privacy. It also eliminates any limitation on the types of persons whom prisoners may ordinarily select for their lists and increases the maximum from 20 to 30 phone numbers. The rule permits the BOP to send a notice to potential call recipients, and unless the potential call recipient notifies the BOP that he/she does not want to receive phone calls, the person will be included on the prisoner's phone list. The BOP reserves to itself the right to exclude certain persons from being phoned by prisoners for "security" reasons. But, if the BOP exercises its exclusion it will now have to provide the call-recipient and the prisoner with a form of administrative due process (notice and opportunity to be heard, with appeal rights).

The rule alleviates families' concerns that if they have to send money to a prisoner for phone calls, the money might actually have to go towards payment of the prisoners IFRP obligations, i.e. fines, restitution, etc. The new rule allows up to $50.00 a month to be exempted from IFRP calculation. The new rule will still tie ITS phone use to a prisoner's IFRP participation, but this latter tying provision does not take effect until January 3, 1995. The $50.00 exemption does provide prisoners some measure of being able to receive family financial help for ITS phone calls without contributing that support to the prisoner's IFRP obligations. Nonetheless, prisoner earnings will be counted towards IFRP refusal status and will be a condition for ITS phone use after January 3, 1995. The litigation will continue to challenge this aspect of the ITS.

The rule provides for a limited definition of "indigency," i.e. no money on the prisoner's account in excess of $6.00 per month. If the prisoner meets this level of indigency, they will be entitled to one collect call per month. This too is only a partial victory and will continue to be the subject of litigation.

The assessment of Douglas McSwain, the class counsel in this case, is that the new ITS rules do not satisfy the plaintiff's demands in this case but they do represent a substantial partial victory at this point. Regardless of the new "rule" counsel is still arguing at both the district and appellate court level that the PI should be left in place and that the sixth circuit's temporary stay of the PI should be lifted.

Mr. McSwain has filed proposed amendments to the amended complaint in the district court to add a count attacking the BOP's new "rule." The basis for that claim is the rule is arbitrary in limiting indigent prisoners to only one collect call per month. The primary focus of the amendment to the pending complaint is that the BOP is implementing and operating the ITS out of the Commissary/Inmate Welfare Trust fund. This is being challenged as violating the terms of the trust. The plaintiffs have also attacked the rate making processes and methodologies of the BOP in setting ITS phone rates, in particular, the failure to publish the proposed rates for notice and comment. Also challenged is the failure to publish the rates as tariffs under the Federal Communications Act of 1934. If the plaintiffs succeed on these claims, the BOP will have to stop operating the ITS altogether or it will have to offer prisoners both a collect call and direct dial system call system, with the collect call capability comparable to what existed before the ITS.

The basis for the continuing attack is two fold. First, the Commissary Inmate Welfare Fund may only be properly spent for prisoners' benefit, and a restricted collect call capability under the ITS is not for the prisoners' exclusive benefit but rather for the BOP's benefit. Secondly, the BOP's ITS scheme improperly attempts to set the ITS direct dial phone rates in violation of constitutional and statutory due process, the constitution's taxing power, certain statutes pertaining to fees and charges for government services and the Communications Act of 1934.

Mr. McSwain predicts that the current appeal will focus on the Commissary/Inmate Welfare Fund trust issue and the PI's requirement of a dual collect and direct dial calling system. The BOP's new "rule" has capitulated on a number of constitutional issues and therefore, the appeals court will most likely focus on the Commissary Fund question. PLN will continue to keep readers posted of developments in the case as they occur. To date, this is the most significant litigation challenging prison phone systems anywhere in the country and the appeals court ruling may have a significant impact on pending and future litigation on this issue.

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Related legal case

Washington v. Reno