IV. Comparison of Selected States' Prison Phone Rates 72  

A. States with Relatively Low Prison Telephone Rates

Prison phone legislation tends to be unpopular and very hard to pass.73  Even when they do become law, they do not significantly reduce excessive rates.74  The following examples demonstrate that most affordable rates have little to do with state legislatures.

1. Nebraska

Nebraska has the country's most inexpensive prisoner phone rates.75  A fifteen-minute local collect call costs $1.00 and a fifteen-minute out-of-state collect call costs $3.75.76  Prisoners also have the option to make calls through an even more inexpensive direct-dial debit account system.77  These low rates result from administrative policy decisions regarding the role of family and community contact play in the rehabilitation process.78  The Nebraska Department of Corrections has chosen not to accept commissions in order to make prison telephone calls as affordable as possible.79

2. Washington, D.C.

Correctional institutions run by the nation's capital charge a flat rate for all local and long-distance calls ($3.00 for fifteen minutes).80  While the rates are somewhat expensive for local calls, D.C.'s out-of-state rates are even cheaper than Nebraska's.  The rates in D.C. are governed by a local statute that prevents prisons from charging a commission on collect calls and thus represents a rare legislative success.81  However, D.C.'s law making body-which is arguably more similar to a city council than a state legislature-is almost entirely governed by a single party.82  As such, this legislation should be viewed as an anomaly.

3. West Virginia

West Virginia's Division of Corrections (DOC) has also made affordable prison phone rates an institutional priority.  The DOC code requires that “[t]elephone facilities shall be provided to permit reasonable and equitable access to all inmates.”83  Accordingly, state corrections officials selected a service provider, Global Tel*Link, which agreed to a contract giving prisoners and their families the third lowest collect-call rates in the country.84

4. New Hampshire

New Hampshire provides inmates with the fourth lowest collect-call rate schedules in the country.85  However, the rates in New Hampshire are not a result of state legislation.  In fact, state legislators have been unwilling to consider whether the rates were problematic.  A 2001 bill seeking to establish “a committee to study the cost of telephone calls from state prison inmates to their families” failed to gain support.86  

The State Division of Plant and Property Management is responsible for the state's low rates.  Although New Hampshire does receive some of the telephone revenue, the Division of Plant and Property Management has refused to accept commissions in excess of 20% and, as a matter of policy, will not contract with service providers that charge inmates over $0.21 per minute.87

Interestingly, New Hampshire's service provider, Public Communications Service (PCS), charges inmates in New Mexico, a state that has successfully enacted legislation on prisoner collect-call rates,88 over twice the amount of money for a fifteen-minute collect call.89  Such a difference demonstrates that state legislation is not an effective means of providing relief to recipients of collect calls from state correctional facilities.

5. Missouri

Missouri's rates are the fifth lowest in the United States.90  Missouri was able to provide such low rates without any state legislation or new regulations.91  After learning about the collect-call kickbacks their state was receiving during an appropriations hearing, Missouri Democratic Senator Wayne Goode and Republican Senator Larry Rohrbach agreed that the practice must end.92  After two bills failed to gain support,93 the two Senators worked together to pressure the State Department of Corrections to forgo revenue-producing commissions and renegotiate a contract with the service provider that would allow inmates to “maintain contacts with their families at a reasonable cost.”94  

6. Kentucky

In 1999, a claim was filed against the State of Kentucky and several phone companies alleging violations of both the Sherman Anti-Trust Act and 42 U.S.C. § 1983.95  Plaintiffs' claims were eventually dismissed, partly based on the “filed-rate” doctrine.96  “The 'filed-rate' doctrine is a way in which courts intervene to bar suits against unregulated utilities, so that purchasers will be fully informed of the consequences of their purchases.”97  However, “[i]n response to complaints of Plaintiffs, the [Kentucky Public Service Commission] began reviewing the reasonableness of inmate telephone rates.”98  As a result of its investigation, the Kentucky Public Service Commission “reduced the surcharge to $1.50.”99  Today, thanks in large part to the publicity garnered by the lawsuit,100 Kentucky inmates enjoy the country's sixth lowest collect-call rate structure.101

7. North Dakota

After negotiating a contract with service provider Evercom that allows for both debit and collect calls, North Dakota prisons have the seventh most affordable rates.102  Fifteen minutes of interstate long-distance costs $5.10 with a debit card and $6.06 when calling collect.103  These rates are consistent with North Dakota Department of Corrections and Rehabilitation policies that afford prisoners “reasonable and equitable” telephone access.104

8. Wisconsin

Wisconsin Administrative Code governing the State Department of Corrections provides that:

The department shall encourage communication between an inmate and an inmate's family, friends, government officials, courts, and people concerned with the welfare of the inmate.  Communication fosters reintegration into the community and the maintenance of family ties.  It helps to motivate the inmate and thus contributes to morale and to the security of the inmate and staff. 105

In keeping with this value, the Wisconsin Department of Corrections “caps prison telephone rates at $1.25 for the connection fee and $0.22 for each additional minute.”106  Thus, collect-calls from Wisconsin state prisons are approximately the eighth lowest in the nation.107

Excluding Washington, D.C.-a special case-legislation has played no role in the implementation of the aforementioned telephone rates.  State prison systems with more affordable rates, such as the Wisconsin Department of Corrections, were able to establish reasonable long-distance policies without relying on the passage of relevant statutes.

B. States with Much Higher Rates

According to the Campaign to Promote Equitable Telephone Charges, the following eight states have the most expensive inmate telephone rates:  Washington, Montana, Arizona, Kansas, New Jersey, Arkansas, Oklahoma, and Oregon.108  Out-of-state collect calls cost over $1.00 per minute in all but one of these states.109  

The lack of legislative activity and the failure of proposed legislation in these states supports the argument that state legislatures have simply not been an ineffective forum for bringing about a change to this issue.  The fact that bills addressing this problem have been introduced in only three states110 suggests a striking lack of political will among legislators to seek reform.  In fact, Washington is the only one among these states to have successfully enacted legislation.111  Yet, it is telling how little Washington's statute has done to reduce rates:  interstate long-distance calls still cost prisoners over a dollar per minute.112

1. New Jersey

Legislation considered in New Jersey focused on reducing the state's dependence on phone commissions rather than providing relief for prisoners' families.113  The bill that was drafted would have directed the state's annual prison long-distance commissions, totaling over $5 million into a victim's compensation fund, but the bill garnered little support and died in committee.114  State legislators in Washington appear to be unwilling to give up the revenue stream provided by kickbacks, even for the benefit of crime victims.  

2. Oklahoma

In Oklahoma, a number of prison telephone bills have failed, once again illustrating major hurdles involved in addressing this problem through legislation.  Oklahoma state legislator Judy McIntyre introduced two bills seeking to lower inmate long-distance rates and end the state's practice of receiving commissions from prison phone service providers.115  Both bills languished in committee.116  

Oklahoma State Representative Ron Kirby also introduced two bills during the 2003 and 2004 State House sessions.117  Though both bills failed, it is unclear whether their passage would have provided any relief.118  Kirby's bills, introduced after McIntyre's House Bill, had two fundamental flaws.  First, the bills lacked specific “language to reduce the profit taken by [the Oklahoma Department of Corrections] and phone companies.”119  Second, the bills required that all prisons update their phone systems to include new technological advances such as “[f]ingerprint identification of the inmate placing the telephone call” and “[p]eriodic photographs of the inmate during the telephone conversation for identity verification.”120  Although Kirby claimed to have introduced his legislation to combat “outrageous” phone bills,121 his bills ensured “the state a profit of at least $2 million annually” and failed to make any provision for these additional costs.122  

3. Washington

In January 2004, eight state Senators introduced Washington State Senate Bill 6352, which sought to update the state's prison phone systems and allow “offender families to select a low-cost option to communicate with inmates.”123  The bill contained explicit language about its intent:

The legislature finds that the current telephone service for offender calls from department of corrections facilities is based on outdated technology that provides neither the most secure nor the most accountable system available and is provided at a high cost to the offenders' families.  The legislature, in budget provisions, has required the secretary of corrections to investigate other systems as offender telephone service contracts came due for renewal.  The legislature now finds that the current statute prevents the secretary of corrections from using systems that provide greater security, more offender accountability, and lower costs.  Therefore, the legislature intends to remove this barrier while retaining the intent of the statute to provide safe, accountable, and affordable telephone services. 124

Unlike the majority of prison telephone reform bills, Senate Bill 6352 was quickly passed by both the House and the Senate, and was immediately signed into law by the Governor.125  

Families of inmates initially celebrated the bill's passage, but other than giving inmates a new direct-dial, debit-account option, it has had little positive impact on many families' phone bills.126  In addition, disagreements between competing phone companies, contract disputes, and other related legal wrangling127 prevented the state from offering debit telephone calls for over two years.128  Furthermore, Washington's new telephone contract with FSH Communications guarantees the state even more in annual commissions:  $5.1 million-as opposed to the $3.8 million-received each year under the old contract with AT&T prior to the passage of Senate Bill 6352.129

Before the enactment of Washington's new prison telephone legislation, the state had the highest inmate collect call rates in the country; recipients were charged $17.77 for a fifteen-minute, out-of-state call.130  Today, even under the new legislation, many families still incur exorbitantly high phone bills.131  Although in-state long-distance rates have been reduced, local calls are even more expensive than before, and out-of-state collect calls are now only slightly lower at $17.41 for a fifteen-minute call.132  Given that inmates with family members in other states have fewer opportunities for visits and are most in need of relief, the overall effect of Washington's legislation has been disappointing.  

C. State Legislation Will Not Reduce Excessive Rates

After analyzing four statutes, Severin's 2004 Cardozo Law Review note reasoned that state legislation would be more effective than litigation in reducing excessive prison telephone rates.133  While legislatures technically have the power to reduce rates, it is not politically realistic to expect other states to follow the lead of Vermont and Washington D.C.  Thus far, the majority of bills seeking to remedy the problem-including the one and only federal bill ever introduced on prison phone rates134 -have died in committee.135  Furthermore, the passage of such bills does not guarantee reduced phone rates.

Vermont's legislature, for example, has been praised for “providing substantial relief for prison phone call recipient[s] . . . and should serve as a model to all states where call recipients are forced to pay exorbitant and unjust rates for calls from their incarcerated family members and friends.”136  Vermont's law has been celebrated for requiring the state to provide “the lowest reasonable cost to inmates, to their families, and to others communicating with inmates.”137  Despite the language of this lauded statute, Vermont does not have the lowest rates in the country.  Thirteen other states have more affordable rates than Vermont, where an out-of-state, fifteen-minute collect call costs $10.75.138  

Other statutes, such as the one enacted in Washington, have failed to affect a significant reduction in out-of-state long-distance rates.139  Unfortunately, Washington is not alone in its passage of purely symbolic legislation.  Virginia passed House Bill 1765,140 codified at § 53.1-1.1 of the Virginia Code, which called for a reduction in phone rates for prisoners.  The legislation provided for the adoption of a new debit calling system with “the lowest available rates” for inmates and their families.141  Nevertheless, many inmates' families have complained that their phone bills have gone up under the state's new contract with MCI.142  

Although legislation has failed to alleviate the problem, more indirect means of reform have succeeded in lowering rates.  By pressuring their department of corrections, two state Senators from Missouri were able to negotiate lower rates for prisoners without having to enact any new laws or regulations.143  The Missouri senators, one left-leaning and one conservative, should be commended for having the courage to stick up for a politically unpopular group.  In states like Nebraska, West Virginia, North Dakota, and Wisconsin, the decision to offer lower rates came about as a result of concern for rehabilitation and good corrections policy.  West Virginia corrections policy emphasizes equity and reasonableness.144  Other corrections agencies, like Nebraska and Wisconsin, stress the importance of communication with family and community as an integral part of the rehabilitation process.145  These facts seem to indicate that enlightened corrections departments are better suited to bring about reform than are well-intentioned state legislators.  Unfortunately the policies in these states are the exception, rather than the rule.  While some corrections departments acknowledge the ethical and rehabilitative reasons for maintaining affordable phone rates in prison, many have found a reason to look the other way.  

D. Prison Systems That Are Gouging Families Need Reform 146

State corrections agencies' willingness to participate in price gouging is evidence of the general trend away from viewing rehabilitation as the goal of incarceration.147  Excessive prison telephone rates are caused by deeper institutional defects.148  Accordingly, the problem requires some degree of institutional reform.