VII. Conclusion

A. The General Trend Toward Privatization

The trend in government is to increasingly rely on private corporations to provide services and programs once presumed to be governmental tasks.210  Legal scholars such as Columbia Law Professor Gillian Metzger have noted:

Privatization holds the potential to yield more efficient and innovative government programs, by allowing the government to harness private expertise, flexibility, and market competition to its advantage.  Yet privatization can also lead to abuse and exploitation, because the financial incentives of private companies and organizations often run counter to the public interest and the interests of program participants. 211  

This is not to suggest that government should provide its prisoners with phone service directly; rather, it is to suggest that the pervasiveness of usurious telephone rates among state prison systems should serve as a warning to policymakers.  As private entities take over the responsibility for providing more programs and services-welfare programs, health care, public education, and criminal rehabilitation-government officials must be mindful that efficiency and innovation do not necessarily follow and the potential for abuses always exists in such business arrangements.  When the well-being of the country's poorest, most vulnerable citizens is entrusted to private corporations, policymakers must be certain that government contracts ensure adequate accountability, oversight, and regulatory flexibility.212  

B. The Need for Multiple Challenges on Multiple Fronts

The problem of excessive prison phone rates has persisted for too long because the providers of phone services have the resources necessary to withstand repeated legal and political challenges.  On the other side of the issue are those who have found traditional avenues of recourse elusive, ineffective, or both.  Under such circumstances, the most promising route to successful reform is to continue to wage the battle on multiple fronts, using the various avenues of legal recourse to galvanize support and generate momentum behind this important issue.  

In an environment where being “tough on crime” is the default position of most politicians, it comes as no surprise that even well-intentioned state legislation has proven so futile in bringing resolution to this issue.  Indeed, in the rare cases where states have successfully enacted statutes, they have provided shockingly little relief to prisoners' loved ones.  Furthermore, given the courts' deference to state prison management decisions, successful court challenges also face a steep uphill battle.

So far, telecommunications companies and state prisons with which they do business have been successful in warding off various phone-rate challenges.  While telecom companies claim that their high rates are a direct result of costly security technology, they fail to acknowledge that technological advances have resulted in more affordable methods of providing the required security measures and that these cheaper technologies have made it possible to offer more affordable rates.  Further, overhead and operational costs do not explain why the cost of the same services vary wildly from state to state.  Due to a lack of legislative investigation and the frequent dismissal of court challenges, phone companies have largely avoided having to publicly justify their rates with facts and figures.  

The evidence indicates that large commissions are the true culprits behind high prison phone rates.213  Most states receive commissions ranging from 18% to 60% from their prison phone service provider.214  Furthermore, the very method by which these government contracts are awarded virtually guarantees the practice of price gouging.  A phone company that offers a larger commission to the state government will naturally seek to recoup this cost by passing it on to the consumer-in this case, prisoners and their families.  While questions about technology and legitimate penological interests are relevant, telecom companies have also been allowed to cloud the issue and make it easier for policymakers to ignore the fundamental injustice of forcing prisoners and their families to bear the extra costs that result from alliances between prison phone service providers and state governments.  

Some states, recognizing the injustice of these arrangements, have elected to significantly limit commissions.  Other states have gone so far as to refuse this kind of revenue altogether.215  By and large, decisions like this are a result of administrative policies that make equity and rehabilitation a priority.  Nebraska's phone rate policy, for example, is not the result of a statute or court order.  As a matter of corrections policy, administrators in states with affordable phone rates recognize that a prisoner's contact with family and community is an important part of the rehabilitation process.  As such, their telephone contracts are consistent with their rehabilitation policy.  While such examples are encouraging, the reform is piecemeal.  Comprehensive, uniform reform is still a long way off, and change must be pursued through every possible avenue.

The most direct path to uniform affordable phone rates for prisoners across the country is the challenge currently before the FCC.  On the other hand, if the plaintiffs in Walton win their case before New York's highest court, their victory would only directly impact phone rates in that state, at least in the short term.  While neither challenge appears likely to succeed, they can help build support for this issue.  The FCC proceedings have given opponents ample opportunity to document the most egregious examples of excessive prison telephone rates.  This record might ultimately prove most useful in turning the tide against the telecommunication companies that engage in such practices.  In addition, the New York court challenge is a good opportunity to rally support and garner media attention.  Ultimately, public opinion will determine whether there is sufficient political will to precipitate change.

To gain more traction with the public, one fact must be emphasized above all others:  excessive phone rates affect society as a whole.  In addition to having a direct, measurable impact on prisoners and their families, they impede re-entry and encourage recidivism, which impacts public safety everywhere.  The more the public hears about family members like Janet Logan in Missouri, who was forced to spend over $700 to talk to her husband over the holidays, the more likely they will be spurred to act by the fundamental injustice of excessive prison phone rates.

It is no sin to be kin, yet families of the incarcerated are penalized for their natural efforts to maintain healthy, normal relationships with their loved ones behind bars.  Although the contact provided by prison telephones takes place at the level of a whisper or a lonely goodnight, these brief exchanges build real connections, just as they do for family members separated by divorce or war.  The people walking out the front door of our prisons every day need these connections to help them successfully transition back into society.  Absent a uniform solution at the federal level, any success-whether it occurs in a state legislature, in a state department of correction, or a court room-is one more call for affordable phone rates for prisoners' families.  A chorus of challenges is needed to achieve widespread change.  Reform must be pursued through every possible avenue until justice is done.