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Massachusetts High Court: Lawmakers Haven’t Stopped Sheriffs From Taking Kickbacks from Jail Phone Calls, and Neither Will We

by Benjamin Tschirhart

On May 17, 2022, the Supreme Judicial Court of Massachusetts ruled that sheriffs may continue the decades-old practice of collecting commissions from charges for phone calls made by those incarcerated in the state’s jails.     

At issue is the cost of communication for an extremely vulnerable population, which is clearly being overcharged. A 2020 report in Commonwealth Magazine said that a five-minute phone call cost anywhere from 50 cents to $6 at jails and county lockups. The phone companies providing these services brought in $11 million in 2019 alone.

For years, Bristol County Sheriff Thomas Hodgson has collected hundreds of thousands of dollars from fees on calls made to friends and family members by those incarcerated in the county’s House of Correction. The service is provided under contract by Texas-based Securus Technologies, which kicks back a portion of the revenue to Hodgson for each call. The Sheriff says that this revenue pays for the phones and for prison programs. But a group of former detainees wasn’t buying that.

They sued in federal court for the District of Massachusetts over what they called “an illegal kickback scheme resulting in an inflated rate for inmate telephone calls and impeding inmates’ ability to communicate with loved ones and counsel.”

After some initial success [See: PLN, Apr. 2019, p.62], Plaintiffs hit a wall in June 2020, when their motion for class certification was denied and Defendants’ motion for judgment on the pleadings was allowed. See: Pearson v. Hodgson, 468 F. Supp. 3d 459 (D. Mass. 2020).

But the district court was persuaded in March 2021 to vacate its order because it had relied on two state laws read together to divine state lawmakers’ intent. Instead of that, the court agreed it could simply certify the question to the state’s highest court:

Did the Massachusetts Legislature, through the two laws, “taken separately or together, authorize the Bristol County Sheriff’s Office to raise revenues … through inmate calling service contracts?” See: Pearson v. Hodgson, 2021 U.S. Dist. LEXIS 63962 (D. Mass.).

In answer, the Court said simply ‘yes.’

James R. Pigeon, an attorney at Prisoner’s Legal Services, represented the plaintiffs in their appeal to the Court. Chief Justice Kimberly Budd heard the case. She evaluated the argument in light of state codes passed beginning in 1997, when many county sheriff’s offices were transferred to the Commonwealth, and later in 2009. According to Justice Budd, “had the legislature intended to put an end to the sheriff’s practice of collecting inmate telephone revenues it could have done so.” Instead, pointing to Mass. Gen. Laws ch. 34B, § 12(a), she said that “the law expressly provided that the sheriff may continue to retain inmate revenues even after the transfer of the sheriff’s office to the Commonwealth.” See: Pearson v. Sheriff of Bristol Cty., 489 Mass. 691 (2022).

Hodgson called the decision “a victory for the taxpayers and citizens of Massachusetts” and for “sheriffs who continue to manage our corrections in a fiscally responsible manner.”  Under the 2023 state budget proposal however, jails and prisons would be required to provide free calls for prisoners, for which they would be reimbursed from a $20 million state fund. 

Additional source: Commonwealth Magazine

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