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BOP Phone Suit Settled

In the March and November, 1994 and March, 1995, issues of PLN we reported developments in Washington v. Reno, a class action suit filed by federal prisoners which challenged numerous aspects of a new phone system imposed by the Bureau of Prisons (BOP). (Back issues are available for $5.00 each.) On November 23, 1995, judge Henry Wilhoit, based in Lexington, Kentucky, approved the settlement dismissing the suit. Because we have already extensively reported the litigation and facts in the case in previous issues of PLN this article will only summarize the settlement itself. The settlement was made available to all BOP prisoners via their prison law libraries.

Collect Calls: Under the settlement the BOP must award a phone contract that will enable all BOP prisoners to place collect calls in addition to debit calls (where the prisoner pays for the call by buying phone credits on the commissary). For a four year period, starting from when the agreement is signed, the BOP must allow all prisoners to make at least 120 minutes of collect calls a month, in addition to debit calls. The BOP may require that the collect calls be placed to numbers on the prisoner's official phone list of thirty numbers. The BOP isn't required to provide collect calling options to prisoners in control or special housing units or to prisoners who refuse to participate in the Inmate Financial Responsibility Program (IFRP), but will provide such prisoners with 60 minutes of debit calling a month.

Implementation: The agreement sets forth a loose two year timetable by when the BOP must award a new phone contract and implement the collect calling option at those prisons that had previously switched to a debit only system. The settlement also states that four years after signing the settlement the BOP is free to eliminate collect calling. The plaintiff's attorney does not think that will happen, as doing so will void that portion of the settlement that dismisses all challenges to the collect call system. In other words, prisoners will then be able to re-litigate portions of the suit.

Pending implementation of the new phone system, the BOP must essentially maintain the telephone status quo in its institutions. Thus, some 28 prisons will retain unlimited collect calling privileges while 38 prisons will continue to provide debit calling, and the BOP "may" require calls to be placed only to numbers on the prisoner's official phone list. Another 18 prisons will continue to allow prisoners to, at the prisoner's option, place either collect or debit calls. An appendix to the settlement specifies which prisons must do what.

International Calls: The settlement merely states that the BOP has no policy or practice forbidding prisoners from making international collect calls. The BOP agrees to include a specification that companies bidding for phone contracts with the BOP may submit bids to provide for international debit and collect calls. The settlement does not require the BOP to ensure that the successful bidder (the one selected by the BOP) will actually provide international collect calls, though. Since at least 25% of the BOP population consists of foreign citizens whose families presumably live abroad, this is an important issue.

IFRP: The IFRP is a BOP instituted program designed to strong arm prisoners into paying fines, restitution, etc. Prisoners who refuse to "participate" and allow their money to be seized are punished by the loss of privileges, unfavorable housing, etc. Prior to the settlement, one sanction used against IFRP refuseniks was a denial of phone privileges. The settlement states that, prior to implementing the new phone system, the BOP may not limit prisoners' phone privileges based on their IFRP refusal status. After court approval of the settlement, the BOP was required to modify its policies to allow prisoners on IFRP refusal status to make 60 minutes of debit calls a month.

While prisoners in IFRP refusal status may have their commissary purchases limited to $25 a month, under the settlement stamp and phone credit purchases won't be subject to the $25 limit. After the settlement's approval the BOP must exclude $75 of deposits, per month, into a prisoner's account when determining whether a prisoner's IFRP payment should exceed the minimum payment demanded by the BOP for its IFRP.

BOP's Free Reign: The agreement states: "Nothing in this settlement agreement limits or interferes with the discretion of the Bureau of Prisons and the wardens of the correctional institutions operated by the BOP to limit inmate telephone privileges--including the telephone privileges specified in sections II and III of this agreement--to maintain the security or good order of the institution, or to protect the public.... or as a disciplinary sanction."

Debit Rates: "If the debit rates under the New Telephone Contract (New Debit Rates) are set by the Bureau of Prisons, the new debit rates charged to inmates in correctional institutions operated by the BOP shall not exceed the highest debit rates charged to inmates in the state correctional institution having the highest debit telephone rates as computed...." The settlement states that the BOP has no intention of raising its current debit rates. On the other hand, it does not indicate under what statutory authority the BOP may set phone rates since telephones are a regulated utility with most states requiring that rates be filed and approved by state regulatory agencies.

The settlement sets forth the formula by which the BOP must formulate the debit phone rates by conducting an annual survey comparing its rates to those charged by state prisons. A major flaw in this system is that it compares debit rates paid by state prisoners and not the general public. The vast majority, if not all, state prisons allow only collect calls; debit calls aren't an option. Thus, no comparison, meaningful or not, is possible. The settlement also states that a vendor is allowed to set the debit rates, which is tantamount to a license to steal, since virtually all prison phone contracts are awarded on a basis of providing substantial kickbacks to the prison system in question, kickbacks based on charging substantially higher rates.

Phone Disputes: The settlement states that prisoners may use the BOP administrative remedy (grievance) process to resolve disputes concerning phone privileges, access, accounts and services. The administrative complaint will be considered timely as long as it is filed within 120 days of the disputed charge or problem.

The settlement states that prisoners must pay $3 to receive a written report of all calls and credit purchases in a given 30 day period within the past 120 days of when the dispute arose. The $3 fee can be waived by the BOP if it determines it will impose a financial burden on the prisoner or if the prisoner has less than $6 on their commissary account thirty days prior to making the request. If the BOP agrees there was an error or problem, the prisoner's account will be credited with the erroneous charge, and the $3 fee for the phone records request will be refunded. The BOP will provide a means for prisoners to determine their phone credit balance and the cost of their debit calls.

Phone Lists: BOP prisoners will, in the future, be limited to calling only people listed on their official phone lists, which can contain up to thirty people. Under the settlement prisoners can make up to three proposed changes a month to their phone list, which should be processed by the BOP within five working days. The phone lists may contain journalists, elected officials and court numbers. If the BOP refuses to allow a prisoner to add on a given number, an opportunity will be allowed for the prisoner and the outside person to contest that determination.

The BOP also agreed to destroy all previous "Request for Telephone Privilege" forms, Form BP-517(52) in its files. These forms were initially sent to people prisoners wished to call and constituted a massive invasion of privacy. The BOP is required to file a certificate of destruction with the court stating that the forms and information therein were indeed destroyed.

Commissary Refund: The BOP agreed to refund $4 million to the BOP prisoners commissary fund, because the BOP had unlawfully taken funds from the account and used them to set up the phone system that led to this suit being filed. The court had previously held that the BOP was not authorized to use the trust funds in this manner.

The BOP also agreed to credit the trust fund with fifty percent of the salaries and benefits of the trust fund supervisors as long as the supervisors were also responsible for overseeing prison laundry, warehouse and other non-trust fund functions within the BOP.

Commissary Price Survey: The settlement requires the BOP to conduct two surveys comparing prices of items sold on its prison commissaries to identical or similar items sold in retail convenience stores or supermarkets in the community near the prison. What is interesting is that the settlement goes into detail on how the survey will be conducted and how the report will be compiled and its results posted in BOP law libraries. Nothing requires that any action be taken to prevent BOP prisoners from being ripped off, though. The survey may well prove that BOP prisoners are being overcharged for commissary items, but it leaves them with no remedy by which to resolve it.

Limitations: The settlement agreement contains numerous clauses stating what it does and does not preclude. Among the items not precluded from further or future litigation are challenges to the IFRP and to individual claims for money damages arising from the BOP phone system, among other things.

Enforcement: BOP prisoners who believe the BOP has not complied with the agreement must first file an administrative grievance. If not satisfied with the response from that method they may then file an action to enforce the settlement in the U.S. district court for the Eastern District of Kentucky at Lexington. The court retains the ability to review, de novo, all evidence submitted in support of or in opposition to a motion for enforcement of the settlement. The settlement contains detailed instructions and special forms instructing prisoners on how to file enforcement actions.

Local newspapers quoted judge Wilhoit as saying it was smart for the government to settle the case. "I have held and will hold that the plaintiffs were the prevailing party--big time," the judge said. The plaintiff class was represented by Lexington attorney Douglas McSwain who said the amount repaid by the BOP to the commissary trust fund might eventually be as high as $25 million. Given the phone system the BOP had initially planned to implement, this settlement seems to be a step in the right direction.

Readers should note that this is an unpublished settlement that affects only BOP prisoners. The only published ruling in the case was Washington v. Reno, 35 F.3d 1093 (6th Cir. 1994) [PLN, March, 1995]. Anyone desiring a copy of the "Proposed Settlement Agreement and Memorandum from Class Counsel" should send $13 to PLN in stamps or check stating you want a copy of the settlement. See: Washington v. Reno, Case No. 93-217, 93-290 (ED KY 1995).

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Washington v. Reno