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Nebraska Prisoners Win Summary Judgment on Phone Access and Monitoring Issues

Nebraska Prisoners Win Summary Judgment on
Phone Access and Monitoring Issues

by Matthew T. Clarke

A Nebraska state district court
granted Nebraska state prisoners' summary judgment on issues involving the monitoring and recording of phone calls to government officials, courts, and attorneys, and the denial of calls to some attorney phone numbers and all news media numbers.

In 1997, Tarty McCroy, Gary Pope, David Ditter, and Thomas Nesbitt, Nebraska state prisoners, filed suit in state court under the First, Sixth, and Fourteenth Amendments to the U.S. Constitution, their state equivalents (Article I, Sections 3, 5, 13. and 19 of the Nebraska Constitution), seeking to prevent the recording of phone calls to courts, State Senators, government officials; the restriction of attorney confidential calls to a single business number; the denial of all calls to attorneys who haven't appeared for the prisoner in a matter which is scheduled for a hearing within 14 days; the denial of calls to law firm staff, paralegals, law clerks, and 411 information; and the denial of calls using 800 numbers, cellular phones, or call forwarding, call waiting, and conference calling. These restrictions on prisoners' phone calls were brought about by the implementation of Nebraska Department of Corrections Services (NDCS) Administrative Regulation 205.3 when the NDCS began providing a new Inmate Calling System (ICS) under Sprint. Prisoners desiring to make phone calls were required to sign a consent for the NDCS to monitor and record them. Those who didn't were denied phone access.

Many other prisoners joined the suit as interveners and the court quickly issued a temporary injunction prohibiting the recording or monitoring of prisoner calls to attorneys, State Senators, or the courts and allowing prisoners to revise their 20-person calling lists more frequently than the minimum of every 90 days provided for in the ICS plan. Plaintiffs and Defendants moved for summary judgment.

The court held calls to attorneys, courts, and State Senators shall not be monitored or recorded. Those calls must be allowed without restriction requiring that the business phone be used, that the attorney be representing the prisoner, or that the calls not involve call forwarding, call waiting, 411 information calls, cellular phones, and conference calls. Because prisoners may need to call many attorneys while seeking one to represent them, NDCS officials must allow prisoners to change their phone lists at least once every 48 hours for the purpose of adding, deleting, or changing phone numbers for attorneys, media, courts, and State Senators. News media calls must not be prohibited. The court held that both the state and federal constitutions demanded this protection and held that the NDCS had failed to show that the Rule was not an exaggerated response to concerns about a legitimate penal interest.

On December 12, 2003 the judge issued an order granting plaintiffs summary judgment on the aforementioned issues and enjoining defendants from the conduct mentioned above. By then the NDCS had changed Rule 205.3 to allow unmonitored calls to attorneys, courts, State Senators, news media, the state's Ombudsman's Office, and legal assistants. However, the Attorney General had argued, that the 1997 Rule was valid. Therefore, an injunction was issued. In October 2003, PLN reported on NDCS entering into a new agreement with AT&T which is a model of how prison phone contracts should be: progressive and affordable for the prisoners and their families. See: Memorandum and Judgment, McCroy v. Clarke, Docket 559 Page 261 in the District Court of Lancaster County, Nebraska (12-A-03). g

Additional Source: Lincoln Journal Star

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Related legal case

McCroy v. Clarke