By Anne Bolgert*[1]

In 2016, media critique and government action increased public attention on the brutal consequences that prison privatization brings for inmates: the popular Netflix show Orange is the New Black portrayed the harsh treatment the female inmates endured for the sake of cutting costs and increasing profit following the fictional penitentiary’s acquisition by a private company,^[2] the magazine Mother Jones published an exposé based on a reporter’s undercover work as a prison guard for four months in a private prison in Louisiana,^[3] and the Department of Justice announced that it would phase out federal contracts with private prisons.^[4] A few years later, 2020 Democratic presidential candidates also highlighted the ills of these private institutions.^[5]

Yet, shedding light on the problem of private prisons, and even decreasing the rate of their takeover of public correctional institutions, has not eliminated private companies’ ability to exploit the needs of inmates for profit. First, “private prisons house less than a twelfth of the country’s prisoners,” with the remainder residing in public correctional facilities.^[6] Second, the role of private companies still pervades those public facilities as public facilities frequently contract with private companies to outsource certain services.^[7] These outsourced services include commissary, healthcare, and telecommunications.^[8]

The prison phone industry provides a prime example of how private companies continue to make money in public facilities, why the public facilities are motivated to enter these contracts, and the harms that inmates and their families face as a result. Two companies, Securus Technologies and Global Tel Link (GTL), have bought out almost all their competitors in the last several decades to gain control of over seventy percent of the prison call market.^[9] Securus and GTL, along with the small remainder of other companies, bring in over $1.2 billion dollars per year through their contracts with public correctional facilities.^[10] The companies are able to charge incarcerated individuals and their families exceedingly high rates^[11] by creating contracts in which a percentage of revenues are kicked back to the prisons or jails, thus “disincentiviz[ing] states from bringing lower phone rates to prisons because they share in the revenue generated from these calls and often rely on this revenue to operate.”^[12]

Advocates for inmates have had some victories in tackling the problem. For example, the Federal Communications Commission (FCC) has capped certain types of fees that the phone companies were charging to swell profits, and also “capped the cost of out-of-state phone calls from both prisons and jails at about 21 cents a minute.”^[13] Yet, these changes have been insufficient. First, the vast majority of calls, about 92 percent, made from correctional facilities are in-state.^[14] Even with decreased rates and the elimination of extra fees, the charges add up, with family members frequently paying hundreds of dollars per year to communicate with their loved ones who are incarcerated.^[15] Charging prohibitive amounts for contact with family and friends undermines “the decades of research demonstrating how maintaining close family ties can help lower recidivism rates and increase the likelihood of an inmate’s successful reentry into society.”^[16] Further, as is the case throughout the criminal justice system, the costs disproportionately impact women and people of color:

In 63% of cases, family members of those incarcerated are responsible for the costs of these phone calls, and, of that number, 83% are women. Nearly one in every four women is related to someone who is incarcerated, but Black women . . . are more substantially affected than their white peers: 44% of Black women have a family member who is imprisoned, compared to 12% of white women.^[17] 

Second, while many state prison systems have lowered their call rates in the last several decades, phone providers have taken advantage of the weak contracting and budgeting approach of small jails to set rates that are many times higher than those in prisons.^[18] For example, in Minnesota, where calls are fairly affordable compared to many other states, the average cost of a fifteen minute in-state call from a state prison is only $0.75, but the average cost of the same length call from a jail is $7.19.^[19] Even more alarmingly, in Illinois, a phone call from a jail costs fifty-two times more than a call from a state prison, and in Michigan, a fifteen minute call from a jail can cost as much $22.^[20]

The astronomically high costs of jail calls are particularly troubling because many of the individuals making calls are being held pretrial and thus are legally innocent as they have not yet been convicted.^[21] This also means that individuals who are low-income are being placed at further disadvantage: not only can they not afford bail while they await trial, but they also cannot contact their attorney to develop their defense, family members or friends who might be able to post bail, or their employer to prevent losing a job.^[22]

Recognizing that the federal government’s intention to phase out private prisons and the FCC rate limitations have failed to protect inmates from being used for profit in the phone industry, some lawmakers have taken action. In 2018, New York City enacted legislation “making NYC the first U.S. city to agree to make all phone calls free for people who are incarcerated in city jails.”^[23] The legislation also eliminates the City’s ability to generate any revenue from the calls.^[24]

The Connecticut House introduced a similar bill in 2019.^[25] Like NYC’s, Connecticut’s bill prevents the Connecticut Department of Corrections (DOC) from receiving any kickbacks from phone companies and requires that phone calls are available at no cost for inmates.^[26] The bill goes farther by also applying to other communication services like video calls and emails, and “prohibits the DOC from limiting or replacing in-person visits based on the provision of communications services.”^[27] Both of these additional elements are critical to protect the technological and in-person communication of inmates, as some institutions have used video calls to replace in-person visits, and because video calls have become more frequent during the COVID-19 pandemic.^[28]

While Connecticut’s bill has yet to pass, it is imperative that legislatures at all levels work to enact similar legislation in order to tackle one of the many ways that individuals in correctional facilities continue to be taken advantage of by profit-hungry private companies.

 

[1] *Anne Bolgert, University of Minnesota Law School Class of 2022, JLI Vol. 40 Lead Articles Editor

[2] Sarah Hope, ‘OITNB’ and Horrors of the Private Prison Industry, Syracuse New Times (July 11, 2016), https://www.syracusenewtimes.com/oitnb-and-horrors-of-the-private-prison-industry/.

[3] Shane Bauer, My Four Months as a Private Prison Guard, Mother Jones (July/Aug. 2016), https://www.motherjones.com/politics/2016/06/cca-private-prisons-corrections-corporation-inmates-investigation-bauer/.

[4] Phasing Out Our Use of Private Prisons, Dep’t of Justice Archives (Aug. 18, 2016), https://www.justice.gov/archives/opa/blog/phasing-out-our-use-private-prisons.

[5] Mia Armstrong, Here’s Why Abolishing Private Prisons Isn’t a Silver Bullet, The Marshall Project (Sept. 12, 2019, 8:53 PM), https://www.themarshallproject.org/2019/09/12/here-s-why-abolishing-private-prisons-isn-t-a-silver-bullet.

[6] Id.

[7] Id.

[8] Id.; Eric Markowitz, Making Profits on the Captive Prison Market, New Yorker (Sept. 4, 2016), https://www.newyorker.com/business/currency/making-profits-on-the-captive-prison-market.

[9] Michael Sainato, ‘They’re Profiting Off Pain’: The Push to Rein in the $1.2bn Prison Phone Industry, The Guardian (Nov. 26, 2019), https://www.theguardian.com/us-news/2019/nov/26/theyre-profiting-off-pain-the-push-to-rein-in-the-12bn-prison-phone-industry; Peter Wagner & Alexi Jones, State of Phone Justice: Local Jails, State Prisons and Private Phone Providers, Prison Pol’y Initative (Feb. 2019), https://www.prisonpolicy.org/phones/state_of_phone_justice.html.

[10] Clint Smith, While Prisoners Struggle to Afford Calls to Their Families, States are Making a Profit. This Must Stop Now, Time (May 24, 2019), https://time.com/5595475/prison-phone-calls-connecticut-law/.

[11] Michael Clyburn, Prison Phone Companies are Profiting From a Pandemic, Here’s How the FCC Can Help, The Hill (Apr. 21, 2020), https://thehill.com/opinion/technology/493864-prison-phone-companies-are-profiting-from-a-pandemic-heres-how-the-fcc-can (“Prison call rates can cost over $1 a minute . . .  The national average for a 15-minute call from jail is $5.74.”).

[12] Smith, supra note 10.

[13] Wagner & Jones, supra note 9.

[14] Id.

[15] See Shaun Gallagher, Inmates’ Debt to Society More Than Just Time: Price of Phone Calls Brings in Millions Per Year, TMJ4 (Aug. 5, 2021), https://www.tmj4.com/news/i-team/inmates-debt-to-society-more-than-just-time-price-of-phone-calls-brings-in-millions-per-year; Rosalie Chan & Belle Lin, The High Cost of Phone Calls in Prisons Generates $1.4 billion a Year, Disproportionately Driving Women and People of Color Into Debt, Insider (June 30, 2021), https://www.businessinsider.com/high-cost-prison-communications-driving-debt-racial-wealth-gap-2021-6; Sainato, supra note 9.

[16] Smith, supra note 9; Chan & Lin, supra note 14 (“Whether a person maintains ties with family and friends while in prison is linked to whether they’ll reoffend once they get out: A Minnesota Department of Corrections study found that even a single visit reduced recidivism by 13% for new crimes and 25% for technical violations.”).

[17] Chan & Lin, supra note 15; see also Gallagher, supra note 15 (“This is having a disproportionate impact because of the racial wealth gap.”).

[18] Wagner & Jones, supra note 9.

[19] Id.

[20] Id.

[21] Id.

[22] Id.; Sainato, supra note 9 (“‘If you’re already [in jail] because you’re poor and can’t afford bail, the odds of you having someone on the outside who can make the trip to the [the jail] to put money on your account and being able to constantly add money is not realistic,’ said Inez Bordeaux, manager of community collaborations with ArchCity Defenders, a St Louis-based legal advocacy organization . . . ‘The situation people are in is being exploited. There are people profiting off the pain and trauma of poor, mostly black people in this city.’”).

[23] New York City Intro 0741-2018: Telephone services to inmates, Fines & Fees Justice Ctr. (Apr. 15, 2018), https://finesandfeesjusticecenter.org/articles/new-york-city-intro-0741-jail-phone-fees/.

[24] Id.

[25] Connecticut House Bill 6714: Concerning the cost of telecommunications services in correctional facilities, Fines & Fees Justice Ctr. (Apr. 15, 2018), https://finesandfeesjusticecenter.org/articles/connecticut-house-bill-6714-concerning-the-cost-of-telecommunications-services-in-correctional-facilities/.

[26] Id.

[27] Id.

[28] Smith, supra note 10; Clyburn, supra note 11.