Supreme Court Grants Even Greater Immunity for Prosecutors
Innocence Network Letter from 19 Exonerees Demands Accountability
On March 29, the U.S. Supreme Court ruled in Connick v. Thompson that the Orleans Parish Attorney does not have to pay John Thompson the $14 million he was awarded in a lawsuit against the Parish Attorney’s Office for prosecutorial misconduct. Thompson was wrongfully imprisoned for 18 years - 14 on death row. In response to the decision, the Innocence Network released a letter signed by 19 innocent people who were wrongfully convicted, in part, because of the bad acts of prosecutors.
The letter, which was addressed to Attorney General Eric Holder and the Presidents of the National District Attorneys Association and the National Association of Attorneys Generals, demands to know what systems they intend to put in place to ensure that innocent people don’t fall victim to overzealous prosecutors.
Citing a recent report by the Northern California Innocence Project, the letter notes that prosecutors are rarely disciplined for their misdeeds. The report found that prosecutors were guilty of misconduct in California 707 times from 1997 to 2009, yet were disciplined only 7 times. The letter also points to a 2010 USA Today investigation, that documented 201 instances where federal prosecutors violated laws or ethics rules since 1997, yet only one of those prosecutors was suspended from practicing law - and that was only for one year.
"Misconduct was found in the cases of all the innocent people who signed onto this letter, yet none of the prosecutors involved were disciplined in any way," said Barry Scheck, Co-Director of the Innocence Project. "How many lives are going to be destroyed before we realize that prosecutors are no different than any other professionals? There are good ones and there are bad ones, and we need systems in place to stop the bad ones."
A copy of the letter, which was also sent to the District Attorney offices in the counties where the signers were originally prosecuted, is available here.
Learn more by reading a New York Times op-ed by John Thompson on this decision.
Wednesday, April 27, 2011
Life Without Parole.... Still.....
http://www.houstonpress.com/2011-04-14/news/life-without-parole/
Life Without Parole
John Kinsel remains in prison even after alleged rape victim recanted.
By Mandy Oaklander
published: April 14, 2011
Even drunk, John Kinsel knew what to expect the night he was arrested for driving a tow truck into a ditch in West Monroe, Louisiana. He'd go to jail, make bond and pay a fine. By his early twenties, the blond-haired, blue-eyed Texan already had a knack for getting into trouble. He'd been in jail once before for stealing a car in Dallas.
Kinsel served a month in jail in 1996 and decided to pay his fine to get out. The prison guard checked to see how much Kinsel owed, and when he pulled up Kinsel's records, he found something alarming. Kinsel had a warrant for his arrest in Jefferson Parish. In disbelief, Kinsel told them they'd better check again; they had the wrong guy. "No," Kinsel remembers the guard telling him. "They're coming to get you."
That's when Kinsel learned his girlfriend's nine-year-old daughter Alyssa Medlin had accused him of raping, choking, and threatening her for nearly three years, from the time she was six to eight and a half. (The Houston Press made several attempts to reach Medlin for this story, all of which went ignored.) Kinsel almost passed out when he was told the charges. He'd beaten men up for the same acts. Kinsel waived extradition from West Monroe to Jefferson Parish, confident he'd be able to straighten out the situation in a few hours. "I'm no angel," he said. "I've raised hell all my life. But shit like this? No, never."
Come December 1999, Kinsel began his life sentence in Louisiana's notorious Angola prison. His sisters Mary and Alice nearly went broke hiring lawyers, but nothing could undo the accusations the little girl had made.
Not even Medlin herself, who would come forward at age 19 and say she made the whole story up. Not even a judge who ordered Kinsel a new trial.
While a federal court tries to decide at what point they should believe the girl, a proven courtroom liar, Kinsel is going on his twelfth year behind bars in the largest maximum-security prison in the country with no hope of parole. Ever.
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Trinity, Texas, is a speck of a town 80 miles north of Houston, with one high school and two stoplights. Kinsel grew up in Trinity, the youngest child of seven. There was little else to do but grow up fast. When Kinsel was eight years old, his father shot himself in the head. His older sister Mary found him in a pool of his blood, painkillers and a .22 scattered across his bed. A year later, Kinsel's mother died of breast cancer. The orphaned son went to live with another sister's in-laws, who sold all of his parents' possessions in a garage sale and put Kinsel to work tarring roofs. Mary, who was 18 at the time, took her brother away to live with her.
Kinsel dropped out of high school freshman year and moved to Dallas, where he got a job hanging drywall. Then, at 19, he got arrested for stealing an Oldsmobile. He was convicted of auto theft, but didn't show up for his probation; instead, he skipped town for a few years and moved to South Carolina.
When he turned 22, Kinsel moved to Monroe, Louisiana. He was hired as a tow truck operator at a local wrecking service, and every day after work, he'd unwind at a neighborhood bar. He fell in love with Adrienne Alberts, the 28-year-old brunette bartender. Kinsel would drink beer and flirt with Alberts until the end of the shift, when he'd take her out for breakfast. By that point, Kinsel had fathered two children with two different women, and Alberts had three kids of her own and a husband she was in the process of divorcing. But they started dating in January 1992 and soon fell madly in love, according to both of them.
In November, Kinsel, Alberts and her three kids moved to Gretna, a tightly knit town just across the river from New Orleans. For a few weeks, they stayed with Alberts's older sister, Stacy Plaisance, who quickly adopted Kinsel as her brother. "My sister was always a goody two-shoes," Plaisance said with a laugh. "He seemed like somebody that would probably run in my crowd...me and him just clicked instantly, like good buddies." Plaisance introduced him to her brother-in-law Mark Plaisance, who liked Kinsel and got him a job at his towing company. Then, they found a place of their own, where Kinsel, Alberts and her three children would live for the next year.
It was no storybook relationship. The couple broke up in November 1993 because Alberts discovered Kinsel was smoking crack. Alberts moved back in with her father, and Kinsel moved out. But while they were broken up, she found out she was pregnant with his baby. Swearing he'd get clean, Kinsel went to rehab, and Alberts took him back when the child was born in June 1994. The next year, Kinsel moved in with Alberts, her parents and her kids.
Alyssa Medlin, Alberts' middle child, was a rebellious fourth grader at the time. With golden hair and blue eyes, Medlin looked like an angel. "She's a devil in disguise," said Stacy Plaisance, her aunt. Plaisance said she remembers finding Medlin's mother in tears, trying to figure out why her daughter would steal $80 of rent money from her purse. Kinsel didn't approve of Medlin's behavior, and Medlin didn't like the discipline he brought into her life. "She hated that John wanted order in the house," Plaisance said.
One of Medlin's childhood friends was Lacy Plaisance, who is the daughter of Mark Plaisance. Plaisance slept over at Medlin's house every weekend, and she remembered how much Medlin hated Kinsel. "When we ate dinner, we had to wash our plate when we were finished," Lacy Plaisance said. "Little rules like that, she didn't like them." One night, the two girls had a sleepover with another girl named Lacie Kersey, who offered Medlin a suggestion. "Lacie said, 'Well, all you have to do is say that your stepdad molested you, and he's gonna go to jail,'" said Plaisance. It had worked for her sister, Kersey had said.
By November 1995, Kinsel had moved back to Texas. The relationship was over. After Kinsel served five months in Dallas for his probation violation, Kinsel and Alberts started talking again on the phone. There were hints of yet another reunion.
That's when Medlin began telling people she had been molested by Kinsel. She first told a school friend in March 1996, and in May, she told her mother. Alberts was cooking dinner when Medlin approached her and said, "Mom, I just want to tell you that when you and John were together, he was molesting me," according to Alberts's court testimony.
"She also told her mom that my dad molested me," Lacy Plaisance said. Alberts called Plaisance's mother, who sat her daughter down and questioned her. Plaisance told her mom that it absolutely wasn't true, that she had never been molested by her father and that Medlin had gotten the idea to accuse the fathers at the sleepover. "I knew when it came out that it was a lie," Plaisance said, referring to Medlin's accusation against Kinsel. Lacy Plaisance's parents never let Medlin sleep over at their house after that.
Alberts didn't believe her daughter either. But just to be sure, Alberts had her roommate ask Medlin what color Kinsel's pubic hair was, according to an interview Alberts later had at the Children's Hospital. Black, Medlin had answered. Blond, Alberts knew, relieved. She dismissed her daughter's accusation as another of her everyday lies. Meanwhile, Alberts never told Kinsel of the accusations, even though they were talking. July 1996 brought another dynamic turn to their relationship, when Alberts got a restraining order against Kinsel on her and her son's behalf. She claimed that Kinsel had threatened to take their son away and put her in the hospital if he found her with another man. If Alberts was worried at all about Medlin's accusation, the restraining order didn't show it. Alberts only demanded that Kinsel stay away from her son, not her daughter.
While Medlin's mother and friends ignored her, the nine-year-old girl found a much more responsive audience in her elementary school's social worker. On August 27, 1996, she told the social worker that Kinsel had abused her. That day, the social worker called Child Protection, who called the Jefferson Parish sheriff's office.
A few days later on September 3, Medlin had a videotaped interview with a forensic interviewer at the Children's Advocacy Center. There, she unloaded an arsenal of accusations against Kinsel. She said that Kinsel had raped her for almost three years, from the time she was six to eight-and-a-half. The first time, in September 1993, she said, Kinsel had taken her into the bathroom, forced her to undress and threatened to kill her if she didn't comply. He raped her anally and forced her to perform oral sex. When they moved again, Medlin said that Kinsel would perform the same sexual abuse most mornings while her brothers and sisters were asleep and her mother was at work. Medlin said that Kinsel used drugs, and choked her when he found out she had told her boyfriend about his drug use. Then, Medlin said, he took her into the bathroom and raped her vaginally.
The next month, Alberts and her daughter went to the child abuse ward at the Children's Hospital for Medlin's examination. Alberts was first interviewed by Dr. Scott Benton, the director of the program. Benton noted in his report that Alberts was concerned her daughter was lying. "She bases some of her concern on the actions of Lacey Kercy [sic], Alyssa's friend, who she believes lied about sexual abuse before," the report said. But the wisps of her mother's concerns were brushed away by Medlin's interview and examination. According to the doctor's report, Medlin told the doctor she had been anally and vaginally raped "every morning." Medlin's examination revealed no anal scars, fissures or bruising, which the doctor noted wasn't uncommon in sexual abuse. Her hymen was present, but narrowed with a slight piece missing, "consistent with previous blunt penetrating trauma," Dr. Benton wrote. By the end of October, Kinsel was wanted for aggravated rape of a child under 12.
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Kinsel spent two years locked up in Jefferson Parish until he was granted house arrest in December 1998. In May, he was given permission to travel back to Trinity for three days, in time to be with his sister Janet as she died from breast cancer. "Don't you just want to get in the truck and run?" asked his sister Alice after the funeral. "You've got money and a credit card; you can go anywhere." Kinsel told her that he wasn't guilty, and that he was going to face the trial. Hours after burying his sister, Kinsel returned home, put his ankle bracelet back on and waited for his day in court.
Just a day before Kinsel's trial was to take place, on August 31, 1999, 13-year-old Alyssa Medlin frantically called her Aunt Stacy from a restaurant and told her she needed to speak with her. "She took me in the bathroom at LeBlanc's and told me that she didn't want to go through with this, but she was afraid...that no one would ever believe anything she had to say again if she didn't do this," Stacy Plaisance would testify the next day. Medlin would also admit that she had not wanted to testify. "Of course she didn't want to be in here," argued Donnie Rowan, attorney for the state. "Who the hell would want to be in here?"
It would be years before Medlin revealed the real reason she hadn't wanted to testify that day; according to the court hearing when she took her story back, she had known her trial testimony was a lie. But Medlin did testify that day. She stuck to her original story, with a few exceptions. She denied ever saying that Kinsel molested her every day at one of the residences, and said instead that it must have happened five or six times. She mixed up some dates, and didn't recall as many specific details as she had on the videotape at the Children's Advocacy Center, which was also shown to the jury. As for the pubic hair discrepancy, Medlin said she always had her eyes closed and guessed at the color.
Dr. Benton, Director of the Child Abuse Program, called Medlin's physical examination "suggestive" of sexual abuse and consistent with her story. Although he said her abnormality was not entirely indicative of abuse, her anatomy "puts her more in the category of someone who has experienced sexual abuse, than someone who has not." Benton said that her cleft was unlikely to be caused by an accident, although he acknowledged that it could have been caused by a crayon being shoved in her vaginal area, which is what Alberts testified Medlin did at age two. Benton added that though her anal exam was completely normal, "scarring is very rare with the anus, in general, despite bad things happening."
Kinsel's case, like most child rape cases, had no DNA evidence or other witnesses to the alleged crimes. Besides Medlin, the doctor, a police officer and the woman who interviewed Medlin at the Children's Advocacy Center, Medlin's 15-year-old brother, Jason, was the only other witness who testified on the state's behalf. He stated that when he was eight, he saw his sister go into the room with Kinsel and heard "kissing sounds."
Testifying on behalf of Kinsel were some of the most important people in Medlin's life: her mother Adrienne Alberts, her grandfather Earl Alberts, her friend Georgette Evans, and her aunt Stacy Plaisance. Even Kinsel himself testified. Kinsel's attorney Bruce Netterville had hired a doctor to testify, but the doctor could not make it to trial.
Except for her brother Jason, Medlin's family plainly did not believe her. Alberts did Medlin's laundry for years, and said she never saw evidence of discharge or blood or heard complaints from her daughter of soreness. She testified that her daughter had a history of lying. She added that during part of the time these acts were supposedly going on, the whole family of five was living and sleeping in a single room together. Earl Alberts, at whose residence Medlin alleged six months of sexual abuse by Kinsel, testified that Kinsel wasn't even living in the house during the time frame.
Medlin's friend Georgette Evans also testified. She said she once asked Medlin why she had said these things about Kinsel, and recalled Medlin's response: "'I don't think my mom was happy so I said all that stuff 'cause I never liked him...' So, she had to get rid of him, that's what she told me," Evans said. When Evans was asked if Medlin had ever told her she was lying about the allegations, however, Evans said no.
At one point, Netterville tried to introduce evidence that Medlin could have been raped by a different relative: her biological father. Netterville was stopped on objection, and in a bench conference with the judge, he tried to explain that Adrienne Alberts was getting ready to tell the jury about a time when she saw her ex-husband do something "inappropriate" with her daughter. This act, said Netterville, would explain how Medlin was able to concoct the stories. The objection was sustained, and the story remained untold.
Stacy Plaisance told the Houston Press she knows the story Alberts was about to tell that day in court. In fact, she says, the incident happened right in front of her when the whole family was staying with Plaisance for the weekend. Plaisance said she caught Medlin's father standing in the bathroom in nothing but a towel, with Medlin standing underneath it. After the incident, she suspected something untoward concerning the girl's father, and Plaisance found it suspicious that Medlin's father stayed far away from the trial. "You best believe that if somebody molested my kid and they was having a trial, my ass would be parked in that fucking courtroom," she said. Medlin's father did not return calls for comment.
The jury had a choice. Believe Netterville, who claimed Medlin had been asked leading questions by the Children's Advocacy Center, that the girl was never credible to begin with and that the physical evidence was laughable. Or believe Greg Kennedy, one of the prosecutors for the state, who said that every detail had happened, that the physical evidence was damning and that Medlin was the "epitome of bravery" to come forward and testify.
"She has never, ever, ever, ever once said, 'This did not happen,'" Kennedy said in a final push. "Because the minute she does that, the second she does that, this case is over. It's over."
Nine jurors found Kinsel guilty. Three found him not guilty. Ten were needed to reach a conclusion, so the judge sent the jurors back to think again. With one juror's flip to "guilty," Kinsel went on the books as another win for the state of Louisiana, home to the highest incarceration rate in the world. Kinsel was sentenced to life without parole at Angola.
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In Texas, only capital murder cases warrant a sentence of life without parole. In Louisiana, a life sentence for any crime means you never leave prison. It could have been even worse for Kinsel. His could have been a capital case, but the court chose not to pursue the death penalty. Such draconian sentences are partly a result of place. In a handful of states (Louisiana and Texas are two), judges are elected, not appointed. And in Jefferson Parish, where judicial candidates brag about their high conviction rates to win voters, it certainly doesn't look good to be soft on child rape. Donnie Rowan, who was the state's attorney in Kinsel's case, ran for judge in 2007 and boasted a 99 percent conviction rate during his time as a prosecutor, according to the Times-Picayune. He won.
But what happens when the victim wants the accused set free?
In October 2005, 19-year-old Medlin showed up at the office of Laurie White, Kinsel's attorney at the time. Medlin said that she had made up the allegations that put Kinsel in prison and wanted to set the record straight. She issued a sworn statement with White. According to court transcripts, Medlin went to the district attorney's office a year later to officially recant. She said she was threatened with perjury, and was told that she would need to be recited her Miranda rights before continuing.
Terrified, Medlin left the D.A.'s office and hired an attorney, Gary Bizal. Bizal told her that she could indeed be charged with perjury, but Medlin issued an affidavit in June 2006 that she was prepared to testify in open court, even if it meant going to jail. "When I testified at trial that John molested me, I lied," Medlin wrote in the affidavit. "Since John Kinsel's conviction, I have lived with guilt about what I have done...I now must do whatever it takes to correct this wrong."
Bizal told the Houston Press that in his 29 years practicing law, he's only had two victims recant. Bizal believed Medlin was sincere in recanting. He had no reason to doubt what she was saying. Recantations are always viewed suspiciously by a court, he said, but the very act of recanting should call into question the alleged victim's first accusation. "Somebody coming in and recanting just suggests to me that you've got sort of an unstable person to begin with," he said.
For the second time, Medlin's testimony single-handedly convened a court hearing. On October 4, 2006, Medlin testified that John Kinsel never molested her, and that she had lied at trial. She had been sexually molested by someone, she said, but it wasn't Kinsel. The perpetrator was a "young unknown male" according to the affidavit she gave to Bizal, and he performed many of the same acts — oral sex and inappropriate touching — she had ascribed to Kinsel, short of rape. She told the court she had never been raped. "I took what happened years before, and because I disliked John Kinsel, accused him of sexually molesting me," she wrote in the affidavit. Medlin said she also got the details for her original testimony by using parts of the stories she heard from a friend who had accused her stepfather of sexual abuse and retelling them, assigning them to Kinsel because she "hated him with a passion," she said. "My dad wasn't really in the picture, and when he tried to be, John was there and I didn't like him because of that," Medlin explained to the court. She said she still doesn't know who sexually abused her.
But much of her testimony was inconsistent. In addition to her past anonymous sexual abuse and stories from friends, she said she got the material for her accusations from children she met in group therapy at the Children's Advocacy Center — a chronological impossibility. She also said that even though she knew she had been lying for seven years, she hadn't come forward until then because she wanted to speak for herself and didn't want to go through an adult. That had never stopped her before, the state pointed out. She later admitted that she just didn't want anyone knowing her business in the new town to which she had relocated. Medlin denied that anyone had pressured her to recant, but said her relationship with her mother improved a good deal after she decided to recant.
"She was not a very good witness," Bizal told the Houston Press.
Vince Lamia, Chief of Investigations for the Jefferson Parish District Attorney's Office, even remembered Medlin's visit to the DA's office differently than she did. He testified that when Medlin was advised that she could be charged with perjury, she said, "'Look, I'm not saying it didn't happen, I'm not saying he didn't do it, I just want to get beyond all this.'" Lamia wrote up Medlin's words in an affidavit the day after she visited the office. Medlin denied ever saying it.
The one consistent point Medlin maintained during the hearing was that Kinsel never raped her. Throughout the testimony, Medlin averted her eyes from Kinsel, who was in the courtroom. When asked why she wouldn't look at him, she replied, "I don't have the heart to."
Judge Charles Cusimano minced no words with Medlin. "All I can say is you are the court's worst nightmare," he told her. He said that his task — deciding when Medlin was a liar and when she was not — was deeply disturbing. "I wish they would let him take a polygraph," Cusimano said in closing, only half-jokingly. "It would make me feel better."
One week later, Cusimano granted Kinsel a new trial. "I'm not sure I believe her about whether it happened or not, but I don't know at which time I am supposed to believe her," he said. "I find that in no way can one convict absent her testimony." Kinsel's sisters, Mary and Alice, clung tearfully to each other in the courtroom, overjoyed that their baby brother would soon get a shot at freedom.
Without Medlin's testimony, the state had no chance of keeping Kinsel locked up. But prosecutors weren't about to lose him without a fight, and they filed writs with the Fifth Circuit Court of Appeals. Because Cusimano called Medlin a liar, they argued, the recantation itself was unreliable.
On February 6, 2007, the Fifth Circuit upheld the state's appeal, finding the trial court "abused its discretion" in granting Kinsel a new trial. "Only in rare instances should a new trial be granted based on recanted testimony," the court ruled. One of the three judges dissented, arguing that the appellate court would be out of line in substituting its own credibility determination of a witness it had never even seen.
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Jerri Sites, a leader in the Child Advocacy Center movement in Missouri, has worked for 18 years in the field of child abuse investigations. Her expertise is recantation, a topic she has consulted about for the past four years. Sites says that in child abuse cases, about 25 percent of victims recant. "Practical parts of their lives falling apart can cause a child to recant, not to mention feeling the pressure to recant because of the effect it's had on their families," she says. The vast majority of alleged victims who recant revert back to their original accusations sometime in their lives, she says, once they feel supported by their non-offending caregiver.
Studies show that in fewer than 3 percent of child abuse cases, a child will make up a false statement and blame someone for something they never did. It's incredibly rare, Sites says.
But it's not unknown. Sites trains investigators to thoroughly analyze the circumstances surrounding a recantation in order to determine its credibility. This means investigating the initial accusation with the same scrutiny. When she does forensic interviewing, Sites always asks the non-offending caregiver if there is any reason to believe the child is lying, or if the child has a history of lying. If there's any suspicion, she investigates it thoroughly. "It's just as much our responsibility to determine that it didn't happen as it is to find information to corroborate a child's statement that it did happen," she says. "We never want to falsely accuse anybody."
Things were different a decade ago in Jefferson Parish. No state investigator ever called Lacy Plaisance, Medlin's friend who was at the fateful sleepover. Nor did anyone ever call Lacy's father, Mark Plaisance, whom Medlin falsely accused of molesting Lacy.
Adrienne Alberts, who was once positive her daughter was lying, says she's not as sure now. She says her daughter has problems and goes to therapy. "Is it because she put an innocent man in jail? Or is it because he did this to her, and she's having to learn how to live with it?" Alberts says she asks herself every day.
Alberts feels guilty about never believing her daughter. She is convinced that family pressure made Medlin recant, despite the fact that Medlin was an adult with her own family and life when she came forward. Now, she always takes the side of supporting Medlin — whichever side she happens to be on at the moment.
Though Alberts admits she's still in love with Kinsel, she's tried to cut him out of her and her family's life. She raised the son she shares with Kinsel telling him that his father was dead, but a family friend told him the truth. Kinsel tried to reconnect with his son. "I sent him stuff for his birthday and Christmas, but I don't ever get any response from him," Kinsel said over the phone.
Said Alberts, "Sometimes I wish John would just fall off the face of the earth and disappear, because maybe then my family would be left alone."
Alyssa Medlin has since moved back to Louisiana and is pregnant, according to her family and friends. Her recent ex-boyfriend, who is 46 and not the father of the child, spoke with the Houston Press on condition of anonymity. He dated and lived with Medlin for three years (while Medlin was married), and broke up with her six months ago. He said she had stolen a couple thousand dollars from him and had taken the pain medication he was prescribed after surgery.
The man said that before they were living together, Medlin told him that her male roommate was inappropriately touching her. The boyfriend immediately insisted that they move in together for her safety, and rushed over that day to help her move. "Later, she told me he didn't touch her, that she made it up," he said. "I'm just glad I got away when I did."
Kinsel doesn't let himself think too much about being set free. But if that day comes, he knows he'll leave Louisiana. Asked what he would do if he ever ran into Medlin, he paused. "I'd have to go the other way," he finally said.
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Looking up toward the mahogany ceiling of the courtroom, Alice Wilkinson presses the puffy bags under her eyes into obedience. "I promise I'm not going to cry today," she says. It's been five years since she and her sister Mary have made the trip from Texas to Louisiana to sit in a courtroom. But today they've allowed themselves to be hopeful one more time. It's February 28, 2011, and Kinsel's newest lawyer, Autumn Town, has been granted a rare oral argument in front of the Fifth Circuit Court of Appeals in New Orleans. After the same court axed Kinsel's new trial, it's a big step. Only 12 percent of requests are granted.
Town says she hasn't seen a case similar to Kinsel's, and it is one she feels strongly about. "His life, anybody's life, is way more important than keeping this conviction when the victim has come forward and said it didn't happen," Town said.
She and the prosecutor for the state, Anne Wallis, stand before three judges. Wallis argues that everything is fine as is. Town argues that Kinsel has a claim of actual innocence.
"He meets that extraordinarily high threshold required to make a showing of actual innocence," Town argues. "What we are asking this court to do is let us get in front of a jury to show them that."
A prisoner's ability to argue "actual innocence" after being convicted is thanks to Missouri attorney Sean O'Brien, who got the Supreme Court to adopt the notion in 1995. But it's grueling to claim successfully. "By and large, there's a powerful doctrine of finality to a jury verdict," O'Brien says. Changing convictions means acknowledging the system is at least sometimes flawed. The other barrier is the fear that the case will set a legal precedent that allows other prisoners — particularly those facing the death penalty — to undo their convictions later down the road. It's not impossible to overcome both hurdles, but O'Brien says it's always a lot of work to dismantle a prosecution. "Any time you win one of these cases without DNA, even with DNA, you come away from it feeling like you've moved a mountain," O'Brien says. "It's exhausting."
During a post-hearing powwow in the back of the courtroom, Town tells Kinsel's sisters that she expects a ruling in two to three months.
"Now, the fun part," she says. "We wait."
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At the tiny Presbyterian church in Trinity, Texas, the minister is getting around to the part where he declares Cassie Kinsel — John Kinsel's 23-year-old daughter with a woman he knew before Alberts — married to Darren Cobb. "Is she gonna be perfect?" he asks Darren. "Will she occasionally burn the steak? Sure, she'll make mistakes," he says. He turns to face Cassie. "He will too, I promise you," he says. "Men do that."
While the minister waxes on, the well-wishers fan themselves with wedding programs. John Kinsel is the first name printed, under "Parents of the Bride." But, with a nod to reality, Cassie's uncle is listed under "Giving the Bride." The ceremony ends, and Cassie's last name is changed.
Just before Cassie and her new husband get in their car to drive to the reception, Aunt Alice gets a phone call. It's John. She runs up to the bride and hands her the phone. "Hey, Daddy, I just got married!" Cassie says, beaming. "Thank you for calling." She tells him she's about to go to the reception and get drunk. A pause. "What kind of beer do you like? Cold? Okay, so any kind of beer," Cassie laughs.
"He's got 15 minutes," Alice whispers.
A bridesmaid in a leprechaun green dress shouts to Cassie from the church. "Cassie? What do you want from inside?" she whines. Cassie ignores her.
"Do you want your shoes?"
Cassie tosses her a glare. "Yes, get everything, please," she says impatiently. She smiles at something John says at the other end of the line. "Well, I'm talking to you. It's different when I'm talking to you than anyone else," she says.
The mother of the groom bounces over from the waiting car and steals the phone from Cassie. "You have a wonderful daughter and she makes me cry," she gushes. "We're taking tons of pictures so you can see." After handing the phone back to Cassie, the woman runs back to the car, leaving Cassie to a few more private minutes with her father.
"That was Darren's mom," Cassie says. "Maybe one day you can meet all of them."
mandy.oaklander@houstonpress.com
Life Without Parole
John Kinsel remains in prison even after alleged rape victim recanted.
By Mandy Oaklander
published: April 14, 2011
Even drunk, John Kinsel knew what to expect the night he was arrested for driving a tow truck into a ditch in West Monroe, Louisiana. He'd go to jail, make bond and pay a fine. By his early twenties, the blond-haired, blue-eyed Texan already had a knack for getting into trouble. He'd been in jail once before for stealing a car in Dallas.
Kinsel served a month in jail in 1996 and decided to pay his fine to get out. The prison guard checked to see how much Kinsel owed, and when he pulled up Kinsel's records, he found something alarming. Kinsel had a warrant for his arrest in Jefferson Parish. In disbelief, Kinsel told them they'd better check again; they had the wrong guy. "No," Kinsel remembers the guard telling him. "They're coming to get you."
That's when Kinsel learned his girlfriend's nine-year-old daughter Alyssa Medlin had accused him of raping, choking, and threatening her for nearly three years, from the time she was six to eight and a half. (The Houston Press made several attempts to reach Medlin for this story, all of which went ignored.) Kinsel almost passed out when he was told the charges. He'd beaten men up for the same acts. Kinsel waived extradition from West Monroe to Jefferson Parish, confident he'd be able to straighten out the situation in a few hours. "I'm no angel," he said. "I've raised hell all my life. But shit like this? No, never."
Come December 1999, Kinsel began his life sentence in Louisiana's notorious Angola prison. His sisters Mary and Alice nearly went broke hiring lawyers, but nothing could undo the accusations the little girl had made.
Not even Medlin herself, who would come forward at age 19 and say she made the whole story up. Not even a judge who ordered Kinsel a new trial.
While a federal court tries to decide at what point they should believe the girl, a proven courtroom liar, Kinsel is going on his twelfth year behind bars in the largest maximum-security prison in the country with no hope of parole. Ever.
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Trinity, Texas, is a speck of a town 80 miles north of Houston, with one high school and two stoplights. Kinsel grew up in Trinity, the youngest child of seven. There was little else to do but grow up fast. When Kinsel was eight years old, his father shot himself in the head. His older sister Mary found him in a pool of his blood, painkillers and a .22 scattered across his bed. A year later, Kinsel's mother died of breast cancer. The orphaned son went to live with another sister's in-laws, who sold all of his parents' possessions in a garage sale and put Kinsel to work tarring roofs. Mary, who was 18 at the time, took her brother away to live with her.
Kinsel dropped out of high school freshman year and moved to Dallas, where he got a job hanging drywall. Then, at 19, he got arrested for stealing an Oldsmobile. He was convicted of auto theft, but didn't show up for his probation; instead, he skipped town for a few years and moved to South Carolina.
When he turned 22, Kinsel moved to Monroe, Louisiana. He was hired as a tow truck operator at a local wrecking service, and every day after work, he'd unwind at a neighborhood bar. He fell in love with Adrienne Alberts, the 28-year-old brunette bartender. Kinsel would drink beer and flirt with Alberts until the end of the shift, when he'd take her out for breakfast. By that point, Kinsel had fathered two children with two different women, and Alberts had three kids of her own and a husband she was in the process of divorcing. But they started dating in January 1992 and soon fell madly in love, according to both of them.
In November, Kinsel, Alberts and her three kids moved to Gretna, a tightly knit town just across the river from New Orleans. For a few weeks, they stayed with Alberts's older sister, Stacy Plaisance, who quickly adopted Kinsel as her brother. "My sister was always a goody two-shoes," Plaisance said with a laugh. "He seemed like somebody that would probably run in my crowd...me and him just clicked instantly, like good buddies." Plaisance introduced him to her brother-in-law Mark Plaisance, who liked Kinsel and got him a job at his towing company. Then, they found a place of their own, where Kinsel, Alberts and her three children would live for the next year.
It was no storybook relationship. The couple broke up in November 1993 because Alberts discovered Kinsel was smoking crack. Alberts moved back in with her father, and Kinsel moved out. But while they were broken up, she found out she was pregnant with his baby. Swearing he'd get clean, Kinsel went to rehab, and Alberts took him back when the child was born in June 1994. The next year, Kinsel moved in with Alberts, her parents and her kids.
Alyssa Medlin, Alberts' middle child, was a rebellious fourth grader at the time. With golden hair and blue eyes, Medlin looked like an angel. "She's a devil in disguise," said Stacy Plaisance, her aunt. Plaisance said she remembers finding Medlin's mother in tears, trying to figure out why her daughter would steal $80 of rent money from her purse. Kinsel didn't approve of Medlin's behavior, and Medlin didn't like the discipline he brought into her life. "She hated that John wanted order in the house," Plaisance said.
One of Medlin's childhood friends was Lacy Plaisance, who is the daughter of Mark Plaisance. Plaisance slept over at Medlin's house every weekend, and she remembered how much Medlin hated Kinsel. "When we ate dinner, we had to wash our plate when we were finished," Lacy Plaisance said. "Little rules like that, she didn't like them." One night, the two girls had a sleepover with another girl named Lacie Kersey, who offered Medlin a suggestion. "Lacie said, 'Well, all you have to do is say that your stepdad molested you, and he's gonna go to jail,'" said Plaisance. It had worked for her sister, Kersey had said.
By November 1995, Kinsel had moved back to Texas. The relationship was over. After Kinsel served five months in Dallas for his probation violation, Kinsel and Alberts started talking again on the phone. There were hints of yet another reunion.
That's when Medlin began telling people she had been molested by Kinsel. She first told a school friend in March 1996, and in May, she told her mother. Alberts was cooking dinner when Medlin approached her and said, "Mom, I just want to tell you that when you and John were together, he was molesting me," according to Alberts's court testimony.
"She also told her mom that my dad molested me," Lacy Plaisance said. Alberts called Plaisance's mother, who sat her daughter down and questioned her. Plaisance told her mom that it absolutely wasn't true, that she had never been molested by her father and that Medlin had gotten the idea to accuse the fathers at the sleepover. "I knew when it came out that it was a lie," Plaisance said, referring to Medlin's accusation against Kinsel. Lacy Plaisance's parents never let Medlin sleep over at their house after that.
Alberts didn't believe her daughter either. But just to be sure, Alberts had her roommate ask Medlin what color Kinsel's pubic hair was, according to an interview Alberts later had at the Children's Hospital. Black, Medlin had answered. Blond, Alberts knew, relieved. She dismissed her daughter's accusation as another of her everyday lies. Meanwhile, Alberts never told Kinsel of the accusations, even though they were talking. July 1996 brought another dynamic turn to their relationship, when Alberts got a restraining order against Kinsel on her and her son's behalf. She claimed that Kinsel had threatened to take their son away and put her in the hospital if he found her with another man. If Alberts was worried at all about Medlin's accusation, the restraining order didn't show it. Alberts only demanded that Kinsel stay away from her son, not her daughter.
While Medlin's mother and friends ignored her, the nine-year-old girl found a much more responsive audience in her elementary school's social worker. On August 27, 1996, she told the social worker that Kinsel had abused her. That day, the social worker called Child Protection, who called the Jefferson Parish sheriff's office.
A few days later on September 3, Medlin had a videotaped interview with a forensic interviewer at the Children's Advocacy Center. There, she unloaded an arsenal of accusations against Kinsel. She said that Kinsel had raped her for almost three years, from the time she was six to eight-and-a-half. The first time, in September 1993, she said, Kinsel had taken her into the bathroom, forced her to undress and threatened to kill her if she didn't comply. He raped her anally and forced her to perform oral sex. When they moved again, Medlin said that Kinsel would perform the same sexual abuse most mornings while her brothers and sisters were asleep and her mother was at work. Medlin said that Kinsel used drugs, and choked her when he found out she had told her boyfriend about his drug use. Then, Medlin said, he took her into the bathroom and raped her vaginally.
The next month, Alberts and her daughter went to the child abuse ward at the Children's Hospital for Medlin's examination. Alberts was first interviewed by Dr. Scott Benton, the director of the program. Benton noted in his report that Alberts was concerned her daughter was lying. "She bases some of her concern on the actions of Lacey Kercy [sic], Alyssa's friend, who she believes lied about sexual abuse before," the report said. But the wisps of her mother's concerns were brushed away by Medlin's interview and examination. According to the doctor's report, Medlin told the doctor she had been anally and vaginally raped "every morning." Medlin's examination revealed no anal scars, fissures or bruising, which the doctor noted wasn't uncommon in sexual abuse. Her hymen was present, but narrowed with a slight piece missing, "consistent with previous blunt penetrating trauma," Dr. Benton wrote. By the end of October, Kinsel was wanted for aggravated rape of a child under 12.
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Kinsel spent two years locked up in Jefferson Parish until he was granted house arrest in December 1998. In May, he was given permission to travel back to Trinity for three days, in time to be with his sister Janet as she died from breast cancer. "Don't you just want to get in the truck and run?" asked his sister Alice after the funeral. "You've got money and a credit card; you can go anywhere." Kinsel told her that he wasn't guilty, and that he was going to face the trial. Hours after burying his sister, Kinsel returned home, put his ankle bracelet back on and waited for his day in court.
Just a day before Kinsel's trial was to take place, on August 31, 1999, 13-year-old Alyssa Medlin frantically called her Aunt Stacy from a restaurant and told her she needed to speak with her. "She took me in the bathroom at LeBlanc's and told me that she didn't want to go through with this, but she was afraid...that no one would ever believe anything she had to say again if she didn't do this," Stacy Plaisance would testify the next day. Medlin would also admit that she had not wanted to testify. "Of course she didn't want to be in here," argued Donnie Rowan, attorney for the state. "Who the hell would want to be in here?"
It would be years before Medlin revealed the real reason she hadn't wanted to testify that day; according to the court hearing when she took her story back, she had known her trial testimony was a lie. But Medlin did testify that day. She stuck to her original story, with a few exceptions. She denied ever saying that Kinsel molested her every day at one of the residences, and said instead that it must have happened five or six times. She mixed up some dates, and didn't recall as many specific details as she had on the videotape at the Children's Advocacy Center, which was also shown to the jury. As for the pubic hair discrepancy, Medlin said she always had her eyes closed and guessed at the color.
Dr. Benton, Director of the Child Abuse Program, called Medlin's physical examination "suggestive" of sexual abuse and consistent with her story. Although he said her abnormality was not entirely indicative of abuse, her anatomy "puts her more in the category of someone who has experienced sexual abuse, than someone who has not." Benton said that her cleft was unlikely to be caused by an accident, although he acknowledged that it could have been caused by a crayon being shoved in her vaginal area, which is what Alberts testified Medlin did at age two. Benton added that though her anal exam was completely normal, "scarring is very rare with the anus, in general, despite bad things happening."
Kinsel's case, like most child rape cases, had no DNA evidence or other witnesses to the alleged crimes. Besides Medlin, the doctor, a police officer and the woman who interviewed Medlin at the Children's Advocacy Center, Medlin's 15-year-old brother, Jason, was the only other witness who testified on the state's behalf. He stated that when he was eight, he saw his sister go into the room with Kinsel and heard "kissing sounds."
Testifying on behalf of Kinsel were some of the most important people in Medlin's life: her mother Adrienne Alberts, her grandfather Earl Alberts, her friend Georgette Evans, and her aunt Stacy Plaisance. Even Kinsel himself testified. Kinsel's attorney Bruce Netterville had hired a doctor to testify, but the doctor could not make it to trial.
Except for her brother Jason, Medlin's family plainly did not believe her. Alberts did Medlin's laundry for years, and said she never saw evidence of discharge or blood or heard complaints from her daughter of soreness. She testified that her daughter had a history of lying. She added that during part of the time these acts were supposedly going on, the whole family of five was living and sleeping in a single room together. Earl Alberts, at whose residence Medlin alleged six months of sexual abuse by Kinsel, testified that Kinsel wasn't even living in the house during the time frame.
Medlin's friend Georgette Evans also testified. She said she once asked Medlin why she had said these things about Kinsel, and recalled Medlin's response: "'I don't think my mom was happy so I said all that stuff 'cause I never liked him...' So, she had to get rid of him, that's what she told me," Evans said. When Evans was asked if Medlin had ever told her she was lying about the allegations, however, Evans said no.
At one point, Netterville tried to introduce evidence that Medlin could have been raped by a different relative: her biological father. Netterville was stopped on objection, and in a bench conference with the judge, he tried to explain that Adrienne Alberts was getting ready to tell the jury about a time when she saw her ex-husband do something "inappropriate" with her daughter. This act, said Netterville, would explain how Medlin was able to concoct the stories. The objection was sustained, and the story remained untold.
Stacy Plaisance told the Houston Press she knows the story Alberts was about to tell that day in court. In fact, she says, the incident happened right in front of her when the whole family was staying with Plaisance for the weekend. Plaisance said she caught Medlin's father standing in the bathroom in nothing but a towel, with Medlin standing underneath it. After the incident, she suspected something untoward concerning the girl's father, and Plaisance found it suspicious that Medlin's father stayed far away from the trial. "You best believe that if somebody molested my kid and they was having a trial, my ass would be parked in that fucking courtroom," she said. Medlin's father did not return calls for comment.
The jury had a choice. Believe Netterville, who claimed Medlin had been asked leading questions by the Children's Advocacy Center, that the girl was never credible to begin with and that the physical evidence was laughable. Or believe Greg Kennedy, one of the prosecutors for the state, who said that every detail had happened, that the physical evidence was damning and that Medlin was the "epitome of bravery" to come forward and testify.
"She has never, ever, ever, ever once said, 'This did not happen,'" Kennedy said in a final push. "Because the minute she does that, the second she does that, this case is over. It's over."
Nine jurors found Kinsel guilty. Three found him not guilty. Ten were needed to reach a conclusion, so the judge sent the jurors back to think again. With one juror's flip to "guilty," Kinsel went on the books as another win for the state of Louisiana, home to the highest incarceration rate in the world. Kinsel was sentenced to life without parole at Angola.
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In Texas, only capital murder cases warrant a sentence of life without parole. In Louisiana, a life sentence for any crime means you never leave prison. It could have been even worse for Kinsel. His could have been a capital case, but the court chose not to pursue the death penalty. Such draconian sentences are partly a result of place. In a handful of states (Louisiana and Texas are two), judges are elected, not appointed. And in Jefferson Parish, where judicial candidates brag about their high conviction rates to win voters, it certainly doesn't look good to be soft on child rape. Donnie Rowan, who was the state's attorney in Kinsel's case, ran for judge in 2007 and boasted a 99 percent conviction rate during his time as a prosecutor, according to the Times-Picayune. He won.
But what happens when the victim wants the accused set free?
In October 2005, 19-year-old Medlin showed up at the office of Laurie White, Kinsel's attorney at the time. Medlin said that she had made up the allegations that put Kinsel in prison and wanted to set the record straight. She issued a sworn statement with White. According to court transcripts, Medlin went to the district attorney's office a year later to officially recant. She said she was threatened with perjury, and was told that she would need to be recited her Miranda rights before continuing.
Terrified, Medlin left the D.A.'s office and hired an attorney, Gary Bizal. Bizal told her that she could indeed be charged with perjury, but Medlin issued an affidavit in June 2006 that she was prepared to testify in open court, even if it meant going to jail. "When I testified at trial that John molested me, I lied," Medlin wrote in the affidavit. "Since John Kinsel's conviction, I have lived with guilt about what I have done...I now must do whatever it takes to correct this wrong."
Bizal told the Houston Press that in his 29 years practicing law, he's only had two victims recant. Bizal believed Medlin was sincere in recanting. He had no reason to doubt what she was saying. Recantations are always viewed suspiciously by a court, he said, but the very act of recanting should call into question the alleged victim's first accusation. "Somebody coming in and recanting just suggests to me that you've got sort of an unstable person to begin with," he said.
For the second time, Medlin's testimony single-handedly convened a court hearing. On October 4, 2006, Medlin testified that John Kinsel never molested her, and that she had lied at trial. She had been sexually molested by someone, she said, but it wasn't Kinsel. The perpetrator was a "young unknown male" according to the affidavit she gave to Bizal, and he performed many of the same acts — oral sex and inappropriate touching — she had ascribed to Kinsel, short of rape. She told the court she had never been raped. "I took what happened years before, and because I disliked John Kinsel, accused him of sexually molesting me," she wrote in the affidavit. Medlin said she also got the details for her original testimony by using parts of the stories she heard from a friend who had accused her stepfather of sexual abuse and retelling them, assigning them to Kinsel because she "hated him with a passion," she said. "My dad wasn't really in the picture, and when he tried to be, John was there and I didn't like him because of that," Medlin explained to the court. She said she still doesn't know who sexually abused her.
But much of her testimony was inconsistent. In addition to her past anonymous sexual abuse and stories from friends, she said she got the material for her accusations from children she met in group therapy at the Children's Advocacy Center — a chronological impossibility. She also said that even though she knew she had been lying for seven years, she hadn't come forward until then because she wanted to speak for herself and didn't want to go through an adult. That had never stopped her before, the state pointed out. She later admitted that she just didn't want anyone knowing her business in the new town to which she had relocated. Medlin denied that anyone had pressured her to recant, but said her relationship with her mother improved a good deal after she decided to recant.
"She was not a very good witness," Bizal told the Houston Press.
Vince Lamia, Chief of Investigations for the Jefferson Parish District Attorney's Office, even remembered Medlin's visit to the DA's office differently than she did. He testified that when Medlin was advised that she could be charged with perjury, she said, "'Look, I'm not saying it didn't happen, I'm not saying he didn't do it, I just want to get beyond all this.'" Lamia wrote up Medlin's words in an affidavit the day after she visited the office. Medlin denied ever saying it.
The one consistent point Medlin maintained during the hearing was that Kinsel never raped her. Throughout the testimony, Medlin averted her eyes from Kinsel, who was in the courtroom. When asked why she wouldn't look at him, she replied, "I don't have the heart to."
Judge Charles Cusimano minced no words with Medlin. "All I can say is you are the court's worst nightmare," he told her. He said that his task — deciding when Medlin was a liar and when she was not — was deeply disturbing. "I wish they would let him take a polygraph," Cusimano said in closing, only half-jokingly. "It would make me feel better."
One week later, Cusimano granted Kinsel a new trial. "I'm not sure I believe her about whether it happened or not, but I don't know at which time I am supposed to believe her," he said. "I find that in no way can one convict absent her testimony." Kinsel's sisters, Mary and Alice, clung tearfully to each other in the courtroom, overjoyed that their baby brother would soon get a shot at freedom.
Without Medlin's testimony, the state had no chance of keeping Kinsel locked up. But prosecutors weren't about to lose him without a fight, and they filed writs with the Fifth Circuit Court of Appeals. Because Cusimano called Medlin a liar, they argued, the recantation itself was unreliable.
On February 6, 2007, the Fifth Circuit upheld the state's appeal, finding the trial court "abused its discretion" in granting Kinsel a new trial. "Only in rare instances should a new trial be granted based on recanted testimony," the court ruled. One of the three judges dissented, arguing that the appellate court would be out of line in substituting its own credibility determination of a witness it had never even seen.
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Jerri Sites, a leader in the Child Advocacy Center movement in Missouri, has worked for 18 years in the field of child abuse investigations. Her expertise is recantation, a topic she has consulted about for the past four years. Sites says that in child abuse cases, about 25 percent of victims recant. "Practical parts of their lives falling apart can cause a child to recant, not to mention feeling the pressure to recant because of the effect it's had on their families," she says. The vast majority of alleged victims who recant revert back to their original accusations sometime in their lives, she says, once they feel supported by their non-offending caregiver.
Studies show that in fewer than 3 percent of child abuse cases, a child will make up a false statement and blame someone for something they never did. It's incredibly rare, Sites says.
But it's not unknown. Sites trains investigators to thoroughly analyze the circumstances surrounding a recantation in order to determine its credibility. This means investigating the initial accusation with the same scrutiny. When she does forensic interviewing, Sites always asks the non-offending caregiver if there is any reason to believe the child is lying, or if the child has a history of lying. If there's any suspicion, she investigates it thoroughly. "It's just as much our responsibility to determine that it didn't happen as it is to find information to corroborate a child's statement that it did happen," she says. "We never want to falsely accuse anybody."
Things were different a decade ago in Jefferson Parish. No state investigator ever called Lacy Plaisance, Medlin's friend who was at the fateful sleepover. Nor did anyone ever call Lacy's father, Mark Plaisance, whom Medlin falsely accused of molesting Lacy.
Adrienne Alberts, who was once positive her daughter was lying, says she's not as sure now. She says her daughter has problems and goes to therapy. "Is it because she put an innocent man in jail? Or is it because he did this to her, and she's having to learn how to live with it?" Alberts says she asks herself every day.
Alberts feels guilty about never believing her daughter. She is convinced that family pressure made Medlin recant, despite the fact that Medlin was an adult with her own family and life when she came forward. Now, she always takes the side of supporting Medlin — whichever side she happens to be on at the moment.
Though Alberts admits she's still in love with Kinsel, she's tried to cut him out of her and her family's life. She raised the son she shares with Kinsel telling him that his father was dead, but a family friend told him the truth. Kinsel tried to reconnect with his son. "I sent him stuff for his birthday and Christmas, but I don't ever get any response from him," Kinsel said over the phone.
Said Alberts, "Sometimes I wish John would just fall off the face of the earth and disappear, because maybe then my family would be left alone."
Alyssa Medlin has since moved back to Louisiana and is pregnant, according to her family and friends. Her recent ex-boyfriend, who is 46 and not the father of the child, spoke with the Houston Press on condition of anonymity. He dated and lived with Medlin for three years (while Medlin was married), and broke up with her six months ago. He said she had stolen a couple thousand dollars from him and had taken the pain medication he was prescribed after surgery.
The man said that before they were living together, Medlin told him that her male roommate was inappropriately touching her. The boyfriend immediately insisted that they move in together for her safety, and rushed over that day to help her move. "Later, she told me he didn't touch her, that she made it up," he said. "I'm just glad I got away when I did."
Kinsel doesn't let himself think too much about being set free. But if that day comes, he knows he'll leave Louisiana. Asked what he would do if he ever ran into Medlin, he paused. "I'd have to go the other way," he finally said.
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Looking up toward the mahogany ceiling of the courtroom, Alice Wilkinson presses the puffy bags under her eyes into obedience. "I promise I'm not going to cry today," she says. It's been five years since she and her sister Mary have made the trip from Texas to Louisiana to sit in a courtroom. But today they've allowed themselves to be hopeful one more time. It's February 28, 2011, and Kinsel's newest lawyer, Autumn Town, has been granted a rare oral argument in front of the Fifth Circuit Court of Appeals in New Orleans. After the same court axed Kinsel's new trial, it's a big step. Only 12 percent of requests are granted.
Town says she hasn't seen a case similar to Kinsel's, and it is one she feels strongly about. "His life, anybody's life, is way more important than keeping this conviction when the victim has come forward and said it didn't happen," Town said.
She and the prosecutor for the state, Anne Wallis, stand before three judges. Wallis argues that everything is fine as is. Town argues that Kinsel has a claim of actual innocence.
"He meets that extraordinarily high threshold required to make a showing of actual innocence," Town argues. "What we are asking this court to do is let us get in front of a jury to show them that."
A prisoner's ability to argue "actual innocence" after being convicted is thanks to Missouri attorney Sean O'Brien, who got the Supreme Court to adopt the notion in 1995. But it's grueling to claim successfully. "By and large, there's a powerful doctrine of finality to a jury verdict," O'Brien says. Changing convictions means acknowledging the system is at least sometimes flawed. The other barrier is the fear that the case will set a legal precedent that allows other prisoners — particularly those facing the death penalty — to undo their convictions later down the road. It's not impossible to overcome both hurdles, but O'Brien says it's always a lot of work to dismantle a prosecution. "Any time you win one of these cases without DNA, even with DNA, you come away from it feeling like you've moved a mountain," O'Brien says. "It's exhausting."
During a post-hearing powwow in the back of the courtroom, Town tells Kinsel's sisters that she expects a ruling in two to three months.
"Now, the fun part," she says. "We wait."
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At the tiny Presbyterian church in Trinity, Texas, the minister is getting around to the part where he declares Cassie Kinsel — John Kinsel's 23-year-old daughter with a woman he knew before Alberts — married to Darren Cobb. "Is she gonna be perfect?" he asks Darren. "Will she occasionally burn the steak? Sure, she'll make mistakes," he says. He turns to face Cassie. "He will too, I promise you," he says. "Men do that."
While the minister waxes on, the well-wishers fan themselves with wedding programs. John Kinsel is the first name printed, under "Parents of the Bride." But, with a nod to reality, Cassie's uncle is listed under "Giving the Bride." The ceremony ends, and Cassie's last name is changed.
Just before Cassie and her new husband get in their car to drive to the reception, Aunt Alice gets a phone call. It's John. She runs up to the bride and hands her the phone. "Hey, Daddy, I just got married!" Cassie says, beaming. "Thank you for calling." She tells him she's about to go to the reception and get drunk. A pause. "What kind of beer do you like? Cold? Okay, so any kind of beer," Cassie laughs.
"He's got 15 minutes," Alice whispers.
A bridesmaid in a leprechaun green dress shouts to Cassie from the church. "Cassie? What do you want from inside?" she whines. Cassie ignores her.
"Do you want your shoes?"
Cassie tosses her a glare. "Yes, get everything, please," she says impatiently. She smiles at something John says at the other end of the line. "Well, I'm talking to you. It's different when I'm talking to you than anyone else," she says.
The mother of the groom bounces over from the waiting car and steals the phone from Cassie. "You have a wonderful daughter and she makes me cry," she gushes. "We're taking tons of pictures so you can see." After handing the phone back to Cassie, the woman runs back to the car, leaving Cassie to a few more private minutes with her father.
"That was Darren's mom," Cassie says. "Maybe one day you can meet all of them."
mandy.oaklander@houstonpress.com
Tuesday, April 26, 2011
Death Sentence... The Public Sex Offender Registry... AGAIN....
Murder Victim was Sex Offender
LOUISVILLE, KY. (WDRB) -- As family members gathered outside Donald Thornhill's home, leftover crime tape dangled in the wind just a few steps away, telling the tale of what happened there.
Police found Thornhill dead inside his home around 3:30 Monday morning. They were responding to a report of a home invasion. WDRB Fox 41 News has been told the 64-year-old had been stabbed in the stomach.
"It's a total shock," says Catherine Brooks, who has lived near the family for years. She says their kids grew up together.
"They were such good neighbors," she says. "She would always come on special days, she just came and brought me an Easter basket and they brought my dog a treat, and he did, too, when he was alive."
Neighbors say Thornhill stayed there with his wife and mother.
Neighbor Marie Wilson says, "He was a nice guy. When I'd walk by, he speaks to me every time and his wife does too."
While neighbors spoke highly of Thornhill, saying he was always polite and never caused problems in the community, they also spoke about his past. He was a convicted sex offender.
State police records show Thornhill convicted on four counts of incest in December 1990. He was sentenced to three years in prison and was up to date with the state Sex Offender Registry.
Police will not say whether his prior sex crimes are related to his death. They're also withholding who was at home at the time of the attack and who called 911, saying it's too early in the investigation.
Overnight, detectives combed the scene looking for those answers. There are still no suspects.
If you have any information on the murder, you're asked to call the tipline, 574-LMPD.
LOUISVILLE, KY. (WDRB) -- As family members gathered outside Donald Thornhill's home, leftover crime tape dangled in the wind just a few steps away, telling the tale of what happened there.
Police found Thornhill dead inside his home around 3:30 Monday morning. They were responding to a report of a home invasion. WDRB Fox 41 News has been told the 64-year-old had been stabbed in the stomach.
"It's a total shock," says Catherine Brooks, who has lived near the family for years. She says their kids grew up together.
"They were such good neighbors," she says. "She would always come on special days, she just came and brought me an Easter basket and they brought my dog a treat, and he did, too, when he was alive."
Neighbors say Thornhill stayed there with his wife and mother.
Neighbor Marie Wilson says, "He was a nice guy. When I'd walk by, he speaks to me every time and his wife does too."
While neighbors spoke highly of Thornhill, saying he was always polite and never caused problems in the community, they also spoke about his past. He was a convicted sex offender.
State police records show Thornhill convicted on four counts of incest in December 1990. He was sentenced to three years in prison and was up to date with the state Sex Offender Registry.
Police will not say whether his prior sex crimes are related to his death. They're also withholding who was at home at the time of the attack and who called 911, saying it's too early in the investigation.
Overnight, detectives combed the scene looking for those answers. There are still no suspects.
If you have any information on the murder, you're asked to call the tipline, 574-LMPD.
Sunday, April 24, 2011
Pro Libertate: Accusers as "Victims": A Case Study
Pro Libertate: Accusers as "Victims": A Case Study
The Reign of the Accuser, Salem 1692: Mary Warren, one of six young female "victims" whose allegations propelled the Salem Witch Trials, points the lethal finger of accusation at a village resident. Even a brief acquaintance with contemporary child abuse prosecutions is enough to disabuse one of the notion that the mass derangement at Salem was unique: It is recreated somewhere in the United States every day.
The Reign of the Accuser, Salem 1692: Mary Warren, one of six young female "victims" whose allegations propelled the Salem Witch Trials, points the lethal finger of accusation at a village resident. Even a brief acquaintance with contemporary child abuse prosecutions is enough to disabuse one of the notion that the mass derangement at Salem was unique: It is recreated somewhere in the United States every day.
Friday, April 22, 2011
Girls... The New Predator???
Palin's 'fight like a girl' quip endorses female violence
April 22, 2011
By Carey Roberts
Across America, teenage girls increasingly are resorting to physical assaults, dating violence, bullying, and sexual violence inflicted upon their fellow classmates.
On April 9, April Kuchta of Valparaiso, Ind. reportedly lured a 17-year-old boy with special needs into her house. The boy was led at knifepoint to the kitchen where he was handcuffed behind his back. Kuchta then sexually assaulted the youth and forced him to make humiliating statements while recording the incident on her cell phone.
The boy allegedly was left in handcuffs for two hours covered with a blanket. Kuchta invited others to her house to witness the confinement.
Then an unknown male reportedly freed the boy. He was recaptured at knifepoint and placed back in handcuffs, only to be freed again and bitten on the arm by Kuchta during a struggle for the knife.
Earlier this week the female was charged as an adult on counts of criminal confinement, intimidation, and sexual battery.
April Kuchta is 16 years old.
A mere five days after the shocking assault, former Alaska governor Sarah Palin journeyed to Madison, Wisc. to deliver the keynote speech at a Tea Party rally. Exhorting Republican leaders to push for hefty budget cuts, the charismatic speaker exclaimed the University of Wisconsin women's hockey team should tell "GOP leaders they need to learn how to fight like a girl!"
When I talk with local high school teachers, they tell me the last thing students need is an exhortation to violence. Schoolyard bouts of fisticuffs are becoming more widespread among girls, teachers say.
These observations are supported by a 2010 Department of Justice report, Delinquency Cases in Juvenile Court, which documents a doubling of female juvenile offenders since 1985. Looking specifically at assaults and other offenses against persons, the female scofflaw rate soared by a sizzling 233%.
Dating violence is another area that cries out for attention.
The U.S. Centers for Disease Control sponsors a national survey of high school students to find out whether they have engaged in dating violence. In 2003, the results were even-steven — girls were just as likely as boys to have "hit, slapped, or physically hurt on purpose" their dating partner.
When the survey was repeated four years later, physical aggression by boys remained the same. But physical aggression by girls surged ahead, making girls 25% more likely than boys to be the instigators: http://www.cdc.gov/mmwr/preview/mmwrhtml/ss5704a1.htm#tab11
Then there's the problem of bullying, which has become so widespread among girls that the federal government now has a website devoted to the problem. The website reprises common tactics of female bullies, such as hair pulling, biting, pinching, or giving someone the "silent treatment."
The website also states the obvious: "Also, girls sometimes bully boys. Girls may call a boy 'gay' or hit a boy because they know he can't hit them back:" http://www.girlshealth.gov/bullying/
Even in the area of sexual assault, girls have now caught up with members of the opposite sex. According to an article published last year by Bruce Taylor in the Journal of Experimental Criminology, the prevalence of sexual violence perpetration (defined as "pushing, grabbing, shoving, or kicking in the private parts") among 6th and 7th graders in the greater Cleveland, Ohio area is higher among girls than boys.
Alas! Despite these worrisome trends, our society often makes light of female aggression, portraying it as proof of long-awaited female empowerment, and turning it into an atta-girl applause line at a political rally.
Left unchecked, the problem of female lawlessness invariably escalates. Consider the tale of Crystal Mangum of Durham, North Carolina, exotic dancer and drug abuser.
In 2006 Mangum accused three Duke University lacrosse players of sexual assault. Later declaring the players innocent, AG Roy Cooper announced the false-accuser would not be charged with perjury, offering the rather limp explanation that police thought "she may actually believe the many different stories that she has been telling."
Three years later, following a run-in with her then-boyfriend, police arrested Mangum on charges of attempted murder, first-degree arson, assault and battery, damage to property, and resisting an officer. Mangum was later sentenced to a wrist-slap punishment of 88 days behind bars.
On April 3, 2011 Reginald Daye, 46, fell into an argument with his girlfriend over rent money. The man was repeatedly stabbed him in the chest with a kitchen knife. Reggie Daye died 10 days later.
This past Monday, Crystal Mangum was indicted on charges of first-degree murder in the death of Reginald Daye.
© Carey Roberts
April 22, 2011
By Carey Roberts
Across America, teenage girls increasingly are resorting to physical assaults, dating violence, bullying, and sexual violence inflicted upon their fellow classmates.
On April 9, April Kuchta of Valparaiso, Ind. reportedly lured a 17-year-old boy with special needs into her house. The boy was led at knifepoint to the kitchen where he was handcuffed behind his back. Kuchta then sexually assaulted the youth and forced him to make humiliating statements while recording the incident on her cell phone.
The boy allegedly was left in handcuffs for two hours covered with a blanket. Kuchta invited others to her house to witness the confinement.
Then an unknown male reportedly freed the boy. He was recaptured at knifepoint and placed back in handcuffs, only to be freed again and bitten on the arm by Kuchta during a struggle for the knife.
Earlier this week the female was charged as an adult on counts of criminal confinement, intimidation, and sexual battery.
April Kuchta is 16 years old.
A mere five days after the shocking assault, former Alaska governor Sarah Palin journeyed to Madison, Wisc. to deliver the keynote speech at a Tea Party rally. Exhorting Republican leaders to push for hefty budget cuts, the charismatic speaker exclaimed the University of Wisconsin women's hockey team should tell "GOP leaders they need to learn how to fight like a girl!"
When I talk with local high school teachers, they tell me the last thing students need is an exhortation to violence. Schoolyard bouts of fisticuffs are becoming more widespread among girls, teachers say.
These observations are supported by a 2010 Department of Justice report, Delinquency Cases in Juvenile Court, which documents a doubling of female juvenile offenders since 1985. Looking specifically at assaults and other offenses against persons, the female scofflaw rate soared by a sizzling 233%.
Dating violence is another area that cries out for attention.
The U.S. Centers for Disease Control sponsors a national survey of high school students to find out whether they have engaged in dating violence. In 2003, the results were even-steven — girls were just as likely as boys to have "hit, slapped, or physically hurt on purpose" their dating partner.
When the survey was repeated four years later, physical aggression by boys remained the same. But physical aggression by girls surged ahead, making girls 25% more likely than boys to be the instigators: http://www.cdc.gov/mmwr/preview/mmwrhtml/ss5704a1.htm#tab11
Then there's the problem of bullying, which has become so widespread among girls that the federal government now has a website devoted to the problem. The website reprises common tactics of female bullies, such as hair pulling, biting, pinching, or giving someone the "silent treatment."
The website also states the obvious: "Also, girls sometimes bully boys. Girls may call a boy 'gay' or hit a boy because they know he can't hit them back:" http://www.girlshealth.gov/bullying/
Even in the area of sexual assault, girls have now caught up with members of the opposite sex. According to an article published last year by Bruce Taylor in the Journal of Experimental Criminology, the prevalence of sexual violence perpetration (defined as "pushing, grabbing, shoving, or kicking in the private parts") among 6th and 7th graders in the greater Cleveland, Ohio area is higher among girls than boys.
Alas! Despite these worrisome trends, our society often makes light of female aggression, portraying it as proof of long-awaited female empowerment, and turning it into an atta-girl applause line at a political rally.
Left unchecked, the problem of female lawlessness invariably escalates. Consider the tale of Crystal Mangum of Durham, North Carolina, exotic dancer and drug abuser.
In 2006 Mangum accused three Duke University lacrosse players of sexual assault. Later declaring the players innocent, AG Roy Cooper announced the false-accuser would not be charged with perjury, offering the rather limp explanation that police thought "she may actually believe the many different stories that she has been telling."
Three years later, following a run-in with her then-boyfriend, police arrested Mangum on charges of attempted murder, first-degree arson, assault and battery, damage to property, and resisting an officer. Mangum was later sentenced to a wrist-slap punishment of 88 days behind bars.
On April 3, 2011 Reginald Daye, 46, fell into an argument with his girlfriend over rent money. The man was repeatedly stabbed him in the chest with a kitchen knife. Reggie Daye died 10 days later.
This past Monday, Crystal Mangum was indicted on charges of first-degree murder in the death of Reginald Daye.
© Carey Roberts
Monday, April 18, 2011
A Question to Legislators.... So, Did the Punishment Fit the Crime????
New sex offender law comes too late for some teens, families
BY BRIAN DICKERSON
Justin Fawcett was only 20 when his parents found him dead of an overdose in his bedroom at their West Bloomfield home.
But David and Gayle Fawcett believe that, in his own mind, their son's life had ended a month earlier, when Justin's probation officer told him he'd likely spend the next 25 years on Michigan's public sex offender registry for a consensual relationship he'd had years earlier with a 14-year-old classmate at Bloomfield Hills' Andover High School.
"He had a lot of stuff going on," Gayle Fawcett says, "but finding out he was going to be on the registry for a couple of decades did him in."
David Fawcett, who worried about his son's despondency in an e-mail he sent me two weeks before Justin's death, begged his boy to take the long view.
"I told him that people were working to change the law, and that someday they would," recalled David, who would later join a group of parents seeking such changes and testify before the state Legislature about his son's ordeal. "But he didn't believe me."
Mark of shame
Last week, a little more than seven years after Justin Fawcett's death, Gov. Rick Snyder signed into law a series of bills that will allow some teenagers prosecuted for their involvement in so-called Romeo and Juliet cases like Fawcett's to escape the humiliating and life-stunting stigmatization that stalks those listed on Michigan's sex offender registry.
The changes will place those convicted of committing sexual offenses when they were younger than 17 on a nonpublic list available only to police. They will also allow some older offenders -- especially those who can satisfy the court that their underage sex partners were not coerced -- to be removed from the list, or escape registration altogether.
Some of those who may benefit have already spent years on the public registry.
Cheryl Carpenter, an Oakland County attorney who has represented dozens of juvenile offenders, is planning to petition the court on behalf of one client who ended up on the registry after he signed the birth certificate of the daughter he fathered with his then-15-year-old girlfriend.
Years later, after the father and his no-longer-underage partner married and had a second child, their first daughter was embarrassed when a teacher warning her class about sexual predators punched the school's ZIP code into the online sex offender registry and her dad's name came up.
"Her parents had told her her dad was on the registry," Carpenter recalled, "but it wasn't something the whole class knew, until then."
Attorneys say the legislation Snyder signed may help hundreds or even thousands of the state's 45,000 sex offenders escape a mark of shame that thwarts their efforts to find a job, rent an apartment or change their addresses without risking a reporting violation that could land them behind bars.
But the new law, adopted by overwhelming bipartisan majorities in both houses, may extend and even exacerbate the price paid by many others convicted of nonviolent sex offenses.
Adopted to assure that the state remains eligible for millions of dollars in federal money that was made contingent on states following registration standards dictated by Congress, Michigan's law will also now require registrants to disclose online where they are employed -- a new requirement that will make finding work even more difficult for those whose sexual offenses are ancient history.
Offenders will also have to disclose their e-mail addresses, passport numbers and vehicles, and face arrest if they fail to report any changes to police within three days.
Some teen sex offenders may also continue to face the threat of registration if they commit other, nonsexual offenses, as Justin Fawcett did after pleading guilty in the Bloomfield case.
"I'm not at all sure this law would have helped someone in his circumstances," David Fawcett conceded in an interview Friday.
The sex diary case
Like virtually every terrified parent I've interviewed since writing my first column about the subject in 1998, David Fawcett was stunned to learn that his son's trysts with another high school student placed Justin in jeopardy of being listed on the sex offender registry alongside violent rapists and serial child predators.
"I knew what statutory rape was," he said, recalling Valentine's Day in 2002, when a lawyer friend called to say their son had been arrested. "But I assumed that you could walk into court with the girl, and if she said it was consensual, they would slap you on the wrist. I didn't know it was something that could brand a teenager for decades."
To make matters worse, the case in which Justin was charged was attended by extraordinary publicity. Launched when the parents of the 14-year-old Andover girl provided prosecutors with a diary recounting their daughter's encounters with as many as 22 partners, many of them fellow students, the case eventually yielded felony criminal sexual conduct charges against Justin and four other males. All but one of them had been teenagers themselves when they got involved with the girl.
Then-Oakland County Prosecutor David Gorcyca fought to withhold the girl's diary from the defendants' attorneys, but Bloomfield Hills District Judge Kimberly Small ultimately ordered its release. In the diary and a subsequent interview with the Free Press, the 14-year-old speculated that she herself had been "the predator," pursuing young men "who themselves were victims of misplaced confidence."
After a front-page Free Press story detailing the circumstances of the case, Gorcyca agreed to drop sexual misconduct charges against the four Bloomfield students. The fifth and oldest defendant fled to his native Mexico. All four eventually received probationary sentences after pleading guilty to reduced charges of seduction. The plea agreements were designed to keep them off the sex offender registry and won court approval with the blessing of the 14-year-old diarist and her family.
"Nobody wanted to see these young kids stigmatized for life," Meyer Morganroth, the girl's attorney, told me then.
But in 2003, then-state Attorney General Mike Cox told county prosecutors a recent appellate court ruling appeared to require that defendants convicted of any crime "that by its nature suggests a sexual offense against an individual who is less than 18 years of age" had to go on the registry. Early the next year, all four of the Bloomfield sex diary defendants were told they'd be placed on the public list, notwithstanding the terms of their plea agreements.
'A year in jail was nothing'
Justin Fawcett's codefendants had avoided further legal trouble since their CSC arrests, and all three were eventually allowed to withdraw their original pleas and make new deals that kept them off the registry.
But Justin, who had experimented with drugs before the sex diaries ordeal and developed an addiction to painkillers, was arrested on new charges stemming from his efforts to secure prescription drugs illegally. In 2003, after falling behind on his court fee payments and getting arrested for larceny from a vehicle, he spent several months in the Oakland County Jail.
David Fawcett hoped his son's time in jail would "wake him up" -- and for a time after his release on the last day of 2003, it seemed that it had.
Justin enrolled at Oakland Community College, where he carried a 4.0 average and earned praise from the dean of student affairs. He attended Narcotics Anonymous meetings and seemed committed to his sobriety.
Then came the news that he would go on the sex offender registry.
"A year in jail was nothing compared to 25 years on the registry," David Fawcett reflected Friday. "He thought his life was ruined."
"When he came back from that meeting with his probation officer, he was defeated," Gayle Fawcett agreed. "That's when he started doing bad things again, and he just gave up."
I'm not sure which is more horrible -- the thought that young Justin Fawcett might be alive if the law signed last week had been enacted seven years earlier, or my suspicion that other teens in similar circumstances will continue to bear the stigma of "registered sexual offender" into middle age and beyond.
"We had another attempted suicide last Friday," reported Barbara Lambourne, a Michigan activist whose Citizens for Second Chances counsels and lobbies on behalf of registered offenders and their families.
In the latest case, she said, an 18-year-old tried to hang himself after his conviction for having sex with an underage girlfriend.
Lambourne suspects the 18-year-old may be eligible under the new law for removal from the registry -- if he recovers.
"In some respects, it's a good start," she said, "but we're getting a lot of panicked calls from people who are afraid the new reporting requirements are going to cost them their jobs."
Michigan already lists more people on its sex offender registry than all but three other states. We needn't condone youthful promiscuity or jettison the legal age of consent to recognize that many who were sexually irresponsible in their youth pose no enduring threat to society.
The branding of teens and older offenders who pose no continuing threat to the public betrays not only our archaic hypocrisy about teenage sex, but also our devaluation of teenage lives. Michigan legislators have begun to take baby steps in the right direction -- but their work is far from done.
Contact Brian Dickerson: 313-222-6584 or mailto:bdickerson@freepress.com
BY BRIAN DICKERSON
Justin Fawcett was only 20 when his parents found him dead of an overdose in his bedroom at their West Bloomfield home.
But David and Gayle Fawcett believe that, in his own mind, their son's life had ended a month earlier, when Justin's probation officer told him he'd likely spend the next 25 years on Michigan's public sex offender registry for a consensual relationship he'd had years earlier with a 14-year-old classmate at Bloomfield Hills' Andover High School.
"He had a lot of stuff going on," Gayle Fawcett says, "but finding out he was going to be on the registry for a couple of decades did him in."
David Fawcett, who worried about his son's despondency in an e-mail he sent me two weeks before Justin's death, begged his boy to take the long view.
"I told him that people were working to change the law, and that someday they would," recalled David, who would later join a group of parents seeking such changes and testify before the state Legislature about his son's ordeal. "But he didn't believe me."
Mark of shame
Last week, a little more than seven years after Justin Fawcett's death, Gov. Rick Snyder signed into law a series of bills that will allow some teenagers prosecuted for their involvement in so-called Romeo and Juliet cases like Fawcett's to escape the humiliating and life-stunting stigmatization that stalks those listed on Michigan's sex offender registry.
The changes will place those convicted of committing sexual offenses when they were younger than 17 on a nonpublic list available only to police. They will also allow some older offenders -- especially those who can satisfy the court that their underage sex partners were not coerced -- to be removed from the list, or escape registration altogether.
Some of those who may benefit have already spent years on the public registry.
Cheryl Carpenter, an Oakland County attorney who has represented dozens of juvenile offenders, is planning to petition the court on behalf of one client who ended up on the registry after he signed the birth certificate of the daughter he fathered with his then-15-year-old girlfriend.
Years later, after the father and his no-longer-underage partner married and had a second child, their first daughter was embarrassed when a teacher warning her class about sexual predators punched the school's ZIP code into the online sex offender registry and her dad's name came up.
"Her parents had told her her dad was on the registry," Carpenter recalled, "but it wasn't something the whole class knew, until then."
Attorneys say the legislation Snyder signed may help hundreds or even thousands of the state's 45,000 sex offenders escape a mark of shame that thwarts their efforts to find a job, rent an apartment or change their addresses without risking a reporting violation that could land them behind bars.
But the new law, adopted by overwhelming bipartisan majorities in both houses, may extend and even exacerbate the price paid by many others convicted of nonviolent sex offenses.
Adopted to assure that the state remains eligible for millions of dollars in federal money that was made contingent on states following registration standards dictated by Congress, Michigan's law will also now require registrants to disclose online where they are employed -- a new requirement that will make finding work even more difficult for those whose sexual offenses are ancient history.
Offenders will also have to disclose their e-mail addresses, passport numbers and vehicles, and face arrest if they fail to report any changes to police within three days.
Some teen sex offenders may also continue to face the threat of registration if they commit other, nonsexual offenses, as Justin Fawcett did after pleading guilty in the Bloomfield case.
"I'm not at all sure this law would have helped someone in his circumstances," David Fawcett conceded in an interview Friday.
The sex diary case
Like virtually every terrified parent I've interviewed since writing my first column about the subject in 1998, David Fawcett was stunned to learn that his son's trysts with another high school student placed Justin in jeopardy of being listed on the sex offender registry alongside violent rapists and serial child predators.
"I knew what statutory rape was," he said, recalling Valentine's Day in 2002, when a lawyer friend called to say their son had been arrested. "But I assumed that you could walk into court with the girl, and if she said it was consensual, they would slap you on the wrist. I didn't know it was something that could brand a teenager for decades."
To make matters worse, the case in which Justin was charged was attended by extraordinary publicity. Launched when the parents of the 14-year-old Andover girl provided prosecutors with a diary recounting their daughter's encounters with as many as 22 partners, many of them fellow students, the case eventually yielded felony criminal sexual conduct charges against Justin and four other males. All but one of them had been teenagers themselves when they got involved with the girl.
Then-Oakland County Prosecutor David Gorcyca fought to withhold the girl's diary from the defendants' attorneys, but Bloomfield Hills District Judge Kimberly Small ultimately ordered its release. In the diary and a subsequent interview with the Free Press, the 14-year-old speculated that she herself had been "the predator," pursuing young men "who themselves were victims of misplaced confidence."
After a front-page Free Press story detailing the circumstances of the case, Gorcyca agreed to drop sexual misconduct charges against the four Bloomfield students. The fifth and oldest defendant fled to his native Mexico. All four eventually received probationary sentences after pleading guilty to reduced charges of seduction. The plea agreements were designed to keep them off the sex offender registry and won court approval with the blessing of the 14-year-old diarist and her family.
"Nobody wanted to see these young kids stigmatized for life," Meyer Morganroth, the girl's attorney, told me then.
But in 2003, then-state Attorney General Mike Cox told county prosecutors a recent appellate court ruling appeared to require that defendants convicted of any crime "that by its nature suggests a sexual offense against an individual who is less than 18 years of age" had to go on the registry. Early the next year, all four of the Bloomfield sex diary defendants were told they'd be placed on the public list, notwithstanding the terms of their plea agreements.
'A year in jail was nothing'
Justin Fawcett's codefendants had avoided further legal trouble since their CSC arrests, and all three were eventually allowed to withdraw their original pleas and make new deals that kept them off the registry.
But Justin, who had experimented with drugs before the sex diaries ordeal and developed an addiction to painkillers, was arrested on new charges stemming from his efforts to secure prescription drugs illegally. In 2003, after falling behind on his court fee payments and getting arrested for larceny from a vehicle, he spent several months in the Oakland County Jail.
David Fawcett hoped his son's time in jail would "wake him up" -- and for a time after his release on the last day of 2003, it seemed that it had.
Justin enrolled at Oakland Community College, where he carried a 4.0 average and earned praise from the dean of student affairs. He attended Narcotics Anonymous meetings and seemed committed to his sobriety.
Then came the news that he would go on the sex offender registry.
"A year in jail was nothing compared to 25 years on the registry," David Fawcett reflected Friday. "He thought his life was ruined."
"When he came back from that meeting with his probation officer, he was defeated," Gayle Fawcett agreed. "That's when he started doing bad things again, and he just gave up."
I'm not sure which is more horrible -- the thought that young Justin Fawcett might be alive if the law signed last week had been enacted seven years earlier, or my suspicion that other teens in similar circumstances will continue to bear the stigma of "registered sexual offender" into middle age and beyond.
"We had another attempted suicide last Friday," reported Barbara Lambourne, a Michigan activist whose Citizens for Second Chances counsels and lobbies on behalf of registered offenders and their families.
In the latest case, she said, an 18-year-old tried to hang himself after his conviction for having sex with an underage girlfriend.
Lambourne suspects the 18-year-old may be eligible under the new law for removal from the registry -- if he recovers.
"In some respects, it's a good start," she said, "but we're getting a lot of panicked calls from people who are afraid the new reporting requirements are going to cost them their jobs."
Michigan already lists more people on its sex offender registry than all but three other states. We needn't condone youthful promiscuity or jettison the legal age of consent to recognize that many who were sexually irresponsible in their youth pose no enduring threat to society.
The branding of teens and older offenders who pose no continuing threat to the public betrays not only our archaic hypocrisy about teenage sex, but also our devaluation of teenage lives. Michigan legislators have begun to take baby steps in the right direction -- but their work is far from done.
Contact Brian Dickerson: 313-222-6584 or mailto:bdickerson@freepress.com
The End of Three Squares?
http://www.milwaukeenewsbuzz.com/?p=565236
By Matt Hrodey
A bill authored by a western Wisconsin state legislator would cut the meals of most state prison inmates from three a day to two – and permit county sheriffs to make the same reduction in their jails. Another bill by the same lawmaker, Democratic State Rep. Mark Radcliffe, would require inmates in both jails and prisons to pay more for prescription drugs. Radcliffe says the measures are intended to create savings, but critics worry about the effects they would have on inmate populations.
Radcliffe, an attorney who represents the Black River Falls area, didn’t respond to a request for comment on Thursday. His sole co-sponsor on the bill cutting prison meals, State Rep. Chris Danou (D-Trempealeau) agreed to an interview but offered a caveat: “It’s more Mark’s bill than it is mine.”
Although meals would be cut, he says, prison administrators and sheriffs would probably maintain the total calories provided to inmates at current levels.
The bill would save money by cutting staff time. Instead of working three shifts, kitchen staff would only work two, probably “a brunch and a dinner,” Danou says. “You could probably reduce staffing levels to some extent,” unless meals are provided by a contractor, then the contract could be scaled back.
The bill would mandate the state Department of Corrections to serve only two meals unless inmates have a medical excuse. A similar reduction would be optional for county jails. State law currently requires them to serve three meals day. At state prisons, the only existing requirement is that inmates are treated humanely.
Radcliffe has estimated that at state prisons, cutting a meal would save $5 million a year.
In a recent Twitter exchange, Radcliffe said that “spreading necessary calories to two kitchen sessions saves wasted food and prep costs.” He added that committee hearings would flesh out the proposal. (The bill has been referred to the Assembly Committee on Criminal Justice and Corrections.)
Radcliffe also tweeted, “Necessary caloric intake and humaneness stay the same. 3 is no more a magic number than 4 or 5.”
Danou, a former Onalaska police officer and union officer, says he has some concerns about the legislation. “Food is a method of control in a jail setting,” he says, and removing it can create disruptions. “You don’t want to make things so bad you cause a riot or worsen things for the jailers.”
The state Department of Corrections has not officially taken a position on the bill, but it hasn’t welcomed it, either.
Spokesman Tim Le Monds says the department is still reviewing the legislation but has some concerns. He says it might alter the climate within prisons which could “create a variety of safety issues for our staff.” Le Monds says there are other health concerns.
He adds that the department has already created some $2 million in savings at state prisons by consolidating menu options, meaning each has the same menu day-by-day, allowing the state to “buy in bulk.”
Larry Dupuis, legal director of the Wisconsin branch of the American Civil Liberties Union, says of the meal bill, “Its biggest problem is it’s taking away from the discretion of prison administrators. Why not just let the prison administrators decide?”
Like Le Monds, Dupuis says cutting inmate meals could make them “hungry and unhappy” and lead to problems.
Guidelines set by the American Correctional Standards Association call for serving three meals a day to prisoners.
The other bill authored by Radcliffe would require both prisons and jails to charge a “deductible, coinsurance, copayment or similar charge for prescription drugs or devices,” according to the Legislative Reference Bureau.
Danou says some jails are already charging inmates. In state prisons, according to Dupuis, the only co-payments required are for doctor visits requested by inmates. (Regularly-scheduled visits or those requested by the doctors themselves are provided entirely by the state.)
The new co-payments for prescriptions would be deducted from prisoners’ canteen accounts if the money is there, otherwise it would be billed to them.
Dupuis says the added cost could lead inmates to postpone getting needed medications, such as antibiotics for an illness that could spread to other inmates. “(The bill) really seems ill-advised and potentially unconstitutional,” he says.
Le Monds says the Department of Corrections is still reviewing Radcliffe’s medical expenses bill and hasn’t chosen a position yet.
Another cost-saving bill sponsored by the legislator in this session would limit legislators’ per diem allowances to 50 days per year. Most lawmakers get $88 per day to cover meals and travel expenses.
According to the Wisconsin Taxpayers Alliance, members of the Assembly claimed an average of 107 days in the 2009-10 legislative session, and state senators claimed an average of 115.
----------------------------------------------------------------------------
This is really interesting, see how much money the lawmakers are allowed to spend on their per diem meals and travel, 50 days, yet they claim over twice that yet they can sit there and justify cutting meals and medical care for others? Who exactly do they think they are, 'above' everyone else? It pains me to think that they consider human life so disposable.
By Matt Hrodey
A bill authored by a western Wisconsin state legislator would cut the meals of most state prison inmates from three a day to two – and permit county sheriffs to make the same reduction in their jails. Another bill by the same lawmaker, Democratic State Rep. Mark Radcliffe, would require inmates in both jails and prisons to pay more for prescription drugs. Radcliffe says the measures are intended to create savings, but critics worry about the effects they would have on inmate populations.
Radcliffe, an attorney who represents the Black River Falls area, didn’t respond to a request for comment on Thursday. His sole co-sponsor on the bill cutting prison meals, State Rep. Chris Danou (D-Trempealeau) agreed to an interview but offered a caveat: “It’s more Mark’s bill than it is mine.”
Although meals would be cut, he says, prison administrators and sheriffs would probably maintain the total calories provided to inmates at current levels.
The bill would save money by cutting staff time. Instead of working three shifts, kitchen staff would only work two, probably “a brunch and a dinner,” Danou says. “You could probably reduce staffing levels to some extent,” unless meals are provided by a contractor, then the contract could be scaled back.
The bill would mandate the state Department of Corrections to serve only two meals unless inmates have a medical excuse. A similar reduction would be optional for county jails. State law currently requires them to serve three meals day. At state prisons, the only existing requirement is that inmates are treated humanely.
Radcliffe has estimated that at state prisons, cutting a meal would save $5 million a year.
In a recent Twitter exchange, Radcliffe said that “spreading necessary calories to two kitchen sessions saves wasted food and prep costs.” He added that committee hearings would flesh out the proposal. (The bill has been referred to the Assembly Committee on Criminal Justice and Corrections.)
Radcliffe also tweeted, “Necessary caloric intake and humaneness stay the same. 3 is no more a magic number than 4 or 5.”
Danou, a former Onalaska police officer and union officer, says he has some concerns about the legislation. “Food is a method of control in a jail setting,” he says, and removing it can create disruptions. “You don’t want to make things so bad you cause a riot or worsen things for the jailers.”
The state Department of Corrections has not officially taken a position on the bill, but it hasn’t welcomed it, either.
Spokesman Tim Le Monds says the department is still reviewing the legislation but has some concerns. He says it might alter the climate within prisons which could “create a variety of safety issues for our staff.” Le Monds says there are other health concerns.
He adds that the department has already created some $2 million in savings at state prisons by consolidating menu options, meaning each has the same menu day-by-day, allowing the state to “buy in bulk.”
Larry Dupuis, legal director of the Wisconsin branch of the American Civil Liberties Union, says of the meal bill, “Its biggest problem is it’s taking away from the discretion of prison administrators. Why not just let the prison administrators decide?”
Like Le Monds, Dupuis says cutting inmate meals could make them “hungry and unhappy” and lead to problems.
Guidelines set by the American Correctional Standards Association call for serving three meals a day to prisoners.
The other bill authored by Radcliffe would require both prisons and jails to charge a “deductible, coinsurance, copayment or similar charge for prescription drugs or devices,” according to the Legislative Reference Bureau.
Danou says some jails are already charging inmates. In state prisons, according to Dupuis, the only co-payments required are for doctor visits requested by inmates. (Regularly-scheduled visits or those requested by the doctors themselves are provided entirely by the state.)
The new co-payments for prescriptions would be deducted from prisoners’ canteen accounts if the money is there, otherwise it would be billed to them.
Dupuis says the added cost could lead inmates to postpone getting needed medications, such as antibiotics for an illness that could spread to other inmates. “(The bill) really seems ill-advised and potentially unconstitutional,” he says.
Le Monds says the Department of Corrections is still reviewing Radcliffe’s medical expenses bill and hasn’t chosen a position yet.
Another cost-saving bill sponsored by the legislator in this session would limit legislators’ per diem allowances to 50 days per year. Most lawmakers get $88 per day to cover meals and travel expenses.
According to the Wisconsin Taxpayers Alliance, members of the Assembly claimed an average of 107 days in the 2009-10 legislative session, and state senators claimed an average of 115.
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This is really interesting, see how much money the lawmakers are allowed to spend on their per diem meals and travel, 50 days, yet they claim over twice that yet they can sit there and justify cutting meals and medical care for others? Who exactly do they think they are, 'above' everyone else? It pains me to think that they consider human life so disposable.
Thursday, April 14, 2011
Prison Phone Calls... Kickbacks.... Which States??? How Much Money???
Nationwide PLN Survey Examines Prison Phone Contracts, Kickbacks
by John E. Dannenberg
An exhaustive analysis of prison phone contracts nationwide has revealed that with only limited exceptions, telephone service providers offer lucrative kickbacks (politely termed “commissions”) to state contracting agencies – amounting on average to 42% of gross revenues from prisoners’ phone calls – in order to obtain exclusive, monopolistic contracts for prison phone services.
These contracts are priced not only to unjustly enrich the telephone companies by charging much higher rates than those paid by the general public, but are further inflated to cover the commission payments, which suck over $152 million per year out of the pockets of prisoners’ families – who are the overwhelming recipients of prison phone calls. Averaging a 42% kickback nationwide, this indicates that the phone market in state prison systems is worth more than an estimated $362 million annually in gross revenue.
In a research task never before accomplished, Prison Legal News, using public records laws, secured prison phone contract information from all 50 states (compiled in 2008-2009 and representing data from 2007-2008). The initial survey was conducted by PLN contributing writer Mike Rigby, with follow-up research by PLN associate editor Alex Friedmann.
The phone contracts were reviewed to determine the service provider; the kickback percentage; the annual dollar amount of the kickbacks; and the rates charged for local calls, intrastate calls (within a state based on calls from one Local Access and Transport Area to another, known as interLATA), and interstate calls (long distance between states). To simplify this survey, only collect call and daytime rates were analyzed.
Around 30 states allow discounted debit and/or prepaid collect calls, which provide lower prison phone rates (much lower in some cases). However, since other states don’t offer such options and not all prisoners or their families have access to debit or prepaid accounts, only collect calls – which are available in all prison systems except Iowa’s – were compared. Also, while telephone companies sometimes provide reduced rates for evening and nighttime calls, many prisoners don’t have the luxury of scheduling phone calls during those time periods.
Lastly, it should be noted that more recent phone rates may now be in effect due to new contract awards or renewals, and while data was obtained from all 50 states, it was not complete for each category. See the chart accompanying this article for a breakdown of the data obtained.
PLN has previously reported on the egregious nature of exorbitant prison phone rates, notably in our January 2007 cover story, “Ex-Communication: Competition and Collusion in the U.S. Prison Telephone Industry,” by University of Michigan professor Steven Jackson.
How Are Phone Rates Regulated?
Domestic phone calls are generally divided into three categories: local, intrastate and interstate. The rates charged for these calls depend on several factors and are regulated by different authorities. Local calls are usually flat-rate within a small area around the call’s originating location; e.g., within the same city.
Local and intrastate calls are often regulated by state public utility or service commissions, which set rate caps. These caps are negotiated to allow phone companies to recover capital costs in a reasonable time frame while also satisfying requirements levied by the state. The latter include subsidizing low-income phone users, providing emergency communications for state agencies, and providing required phone coverage (such as emergency-reporting phone booths along major highways). Obviously, some of these state-mandated requirements are not in and of themselves profitable, so negotiation of rate structures includes recouping these otherwise nonrecoverable costs.
At the interstate level, phone companies are also regulated by the Federal Communications Commission (FCC). The FCC oversees rate structures across state lines, provides for an orderly integration of smaller telephone companies into the national phone network, and is responsible for implementing the Telecommunications Act of 1996.
These regulatory agencies are necessary to prevent one large company from forming a monopoly and price gouging the public with unreasonably high phone rates. However, such monopolies are only prohibited in the non-prison market. Prison phone service providers are free to bid on contracts at the maximum rates allowed by regulatory agencies, and upon winning such bids are effectively granted a monopoly on phone services within a given prison or jail system.
The Prison Phone Bidding Process
Prisons and jails present unique cost factors to telephone service providers. Such factors include physically secure phones (i.e., no readily removable parts); extensive monitoring and recording capabilities, including the ability to archive phone calls for later review by investigators; and difficult access to the prison-based equipment for servicing.
Some of these requirements, especially the monitoring, recording and archiving aspects, are not unique to prisons and are routinely provided to corporate America’s call and customer service centers. Naturally, telephone companies should be allowed to build into their charged rate structure the recovery of capital and operating costs for such expenses.
But that simple logic does not control the cost of prison phone rates. What does control the rates? Pure, unabated greed by both the phone companies and the contracting agencies (e.g., state prison systems, county jails and private prison companies).
The bidding process for prison phone contracts typically begins with a request for proposal (RFP) – a document that outlines the number of phones, locations and technical performance standards required by the contracting agency. The latter include minimum “down time” specifications, frequency of servicing, estimated usage, and (in most but not all cases) audit provisions. From the RFP, telephone companies can determine their cost exposure when making bids. But that is not what guides their bid price or determines the winning bidder in most cases.
With very few exceptions, prison phone contracts contain kickback provisions whereby the service provider agrees to pay “commissions” to the contracting agency based on a percentage of the gross revenue generated by prisoners’ phone calls. These kickbacks are not insignificant. At more than $152 million per year nationwide for state prison systems alone, the commissions dwarf all other considerations and are a controlling factor when awarding prison phone contracts.
For example, when Louisiana issued an RFP for prison phone services in 2001, it specified that “[t]he maximum points, sixty (60) ... shall be awarded to the bidder who bids the highest percentage of compensation ...,” and that “[t]he State desires that the bidder’s compensation percentages ... be as high as possible.”
When the Alaska Dept. of Corrections (DOC) issued an RFP in 2007, bidders were rated on a point system with 60% of the evaluation points assigned to cost. The RFP explicitly stated that “[t]he cost proposal providing the largest percentage of generated revenues ... to the state will receive the maximum number of points allocated to cost.” That is, the most important evaluation criterion was the commission rate.
Prison phone service kickbacks average 42% nationwide among states that accept commissions, and in some cases reach 60% or more. Put into simple terms, up to 60% of what prisoners’ families pay to receive phone calls from their incarcerated loved ones has absolutely nothing to do with the cost of the phone service provided. The kickbacks are not controlled by state or federal regulatory agencies, and the only limit on the maximum rate for prison phone calls is the top rate permitted by such agencies or by the phone service contract itself.
It should come as no surprise, then, that many prison phone contracts result in very high rates, with enough profit left over after recouping all of the phone company’s costs to permit up to 60% of the gross revenue to be paid to the contracting agency. The kickback rates are listed in the chart accompanying this article, as are the dollar amounts of the commissions received in 2007-2008.
Some prison officials have denied that kickbacks influence their decision when contracting for prison phone services. “There are complaints due to the rates,” said Nevada DOC spokesman Greg Smith in 2008, after the DOC entered into a new phone contract with Embarq. “A lot of families do complain that it’s expensive, but it’s an intricate system, it’s not cheap.... We didn’t negotiate this [contract] to create more revenue for us.”
However, when responding to the RFP for Nevada’s prison phone contract, Embarq had presented three options: base rates, lower rates and higher rates. The lower rate option included a smaller kickback (41.5%) and lower guaranteed minimum commission ($1.36 million per year). Instead, the Nevada DOC selected the company’s higher rate option, which provided a 54.2% kickback and guaranteed minimum annual commission payment of $2.4 million, even though this resulted in higher local and interstate phone rates for prisoners and their families.
So despite protestations by prison officials, sometimes they do in fact negotiate contracts specifically to create more revenue. This was explicitly acknowledged in an RFP for prison phone services in Alabama. According to a March 13, 2007 memo from the state’s Department of Finance, the RFP “proposed to award what amounts to an ‘exclusive franchise’ to the successful bidder based on the highest commission rate paid to the State on revenues received from users of the [prison] pay phones.” It is likely no coincidence that Alabama has one of the highest commission rates – 61.5%.
The History Behind Kickback Commissions
The prison phone service market remained an exclusive monopoly of AT&T until 1984, when it was thrown wide open with AT&T’s breakup under a settlement in an antitrust action brought by the U.S. Department of Justice. In 1989, MCI introduced its “Maximum Security” service, part of a larger concerted push into the government and institutional markets. By 1995 MCI held monopoly or near-monopoly contracts for prison phone services in California, Ohio, Connecticut, Virginia, Wisconsin, Missouri and Kentucky (MCI merged with WorldCom in 1998).
Other companies had their own “locked-in” contracts. The reorganized AT&T Prisoner Services Division managed to hold on to prison phone contracts in New Jersey, Pennsylvania, Michigan, New Mexico, Mississippi and Washington, followed by phone companies GTE (in Washington DC, Hawaii, Indiana and parts of Michigan); Sprint (sharing Michigan and also in Nevada); and US West (in New Mexico, Idaho, Oregon, South Dakota and Nebraska).
By the mid-1990s, this new competition had driven prison phone rates – spurred by higher kickback commissions to win contracts – to new heights. According to an American Correctional Association (ACA) survey published in 1995, nearly 90% of prison and jail systems nationwide received a portion of the profits derived from calls placed by prisoners, ranging from 10-55% of gross revenues.
For states struggling to keep up with the costs of exploding prison populations, these kickback payments represented a welcome and multi-million dollar source of income. According to the 1995 ACA survey, based on self-reports, Ohio was making $21 million a year in prison phone commissions (more recently it took in only $14.5 million based on PLN’s research), while New York brought in $15 million, California $9 million (more recently $19.5 million in 2007-2008), Florida $8.2 million (more recently $3 million), and Michigan $7.5 million (more recently $10.2 million before phasing out kickbacks in August 2008).
According to the ACA, 32 state prison systems plus 24 city and county jails – a fraction of the national total – reported phone commission payments in 1994 totaling over $100 million. The more recent total was $152.44 million from 43 of the 44 states that received prison phone revenue at the time of PLN’s survey (Arizona claimed it did not track commission payments).
Since the survey, one additional state no longer accepts prison phone kickbacks: California. Thus, the nationwide total for commission revenue has since decreased by $19.5 million per year based on California’s 2007-2008 commission income (the state’s kickback was phased out from a flat $26 million prior to August 2007 to $19.5 million in 2007-2008, $13 million in 2008-2009, $6.5 million in 2009-2010 and zero in FY 2010-2011).
Notably, however, the kickback commission data reported by state prison systems still vastly undervalues the prison phone service market, as it does not include jails, the federal prison system, private prisons or immigration detention facilities.
By 2000, the commission rates for prison phone contracts had soared to new heights, with California at 44%, Georgia 46%, South Carolina 48%, Illinois, Ohio and Pennsylvania at 50%, Indiana 53%, Florida 57%, and a national high in New York at 60% (reduced in 2001 to 57.5%). Ten states were raking in $10 million or more per year from prisoner calls, with California, New York and the federal Bureau of Prisons leading the way with over $20 million each in annual kickbacks. Such patterns were broadly if unevenly replicated at the local level, with city and county jails entering into similar commission-based phone contracts.
According to PLN’s research, as of 2008 more than half of the states that reported their kickback percentage were receiving commissions of at least 40%, including thirteen that reaped 50% or more. The Idaho DOC uses a commission structure that includes a per-call kickback ranging from $1.75 per collect call to $2.25 per debit call, which is “not affected by ... the length of call or whether the call is local or long distance.” This flat per-call commission translates to an effective kickback rate of 10.5% to 66.1% based on a 15-minute call. Several states have increased their commission rates in recent years, including Vermont and Wyoming.
The emphasis on kickback commissions correlates to a lack of competition in the prison phone industry. If competition truly existed, prison phone rates would gravitate towards a relatively consistent level as phone companies vie with competitors to obtain contracts. Businesses in the non-prison market must be price competitive, which benefits consumers. But that hasn’t happened in the prison phone market; the phone rates in the chart accompanying this article are enormously varied across the national map, with high rates in some states and lower rates in others.
This is because prison phone companies don’t “compete” in the usual sense. They don’t have to offer lower phone rates to match those of their competitors, as prison phone contracts typically are based on the highest commission paid, not the lowest phone rates. Free market competition is thus largely absent in the prison phone industry, at least from the perspective of the consumer – mainly prisoners’ families.
As stated in an efficiency analysis of prison phone contracts published in the Federal Communications Law Journal in 2002, “In the prison context, the state contracts with a private entity, and the private entity provides services to the prisoners and also to the state. ... Due to the perverse financial incentives and the political climate surrounding prisons and prisoners, however, neither the state nor the private entity acts in the best interests of the consumers in particular or of society in general.”
The Arbitrary Nature of Prison Phone Rates
Referring to the accompanying chart, even a casual examination of prison phone rates nationwide reveals a patchwork of charges that simply cannot be correlated to providing the same basic telephone service. In other words, the rates are arbitrary.
Some local calls are flat rate (typically for 15 to 20 minutes); others have a connection charge plus a per-minute fee. Local collect calls range from as low as a flat rate of $.50 in Florida, North Dakota and South Carolina to $2.75 + $.23/minute in Colorado ($6.20 for a 15-minute local collect call). Alaska is unique in that prisoners can make local calls for free.
Intrastate rates vary from $.048/minute in New York to $3.95 + $.69/minute in Oregon ($.72 versus $14.30 for a 15-minute collect call, respectively).
Interstate rates are as reasonable as New York’s $.048/minute with no connection fee, or Nebraska’s $.70 + $.05/minute, but most crowd the high end of the scale with a connection charge of $3.00 or more plus per-minute rates up to $.89 – resulting in $10 to $17 for a 15-minute collect call (Washington has the highest interstate rate). This is a far cry from the much lower long distance rates paid by the non-incarcerated public, which typically run $.05 to $.10 per minute or simple flat rate monthly fees for unlimited long distance calling in the $50-80 a month range.
Only eleven states have local collect call rates of under $1.00 per call, while Nebraska’s interstate rate is one-twelfth and New York’s interstate rate is one twenty-fifth the cost of the highest-priced phone charges for a 15-minute long distance collect call.
The irrationality of the rate structures is further exemplified by Rhode Island’s no-kickback commission low rates, which are provided by Mobile, Alabama-based Global Tel*Link (GTL) – the same firm that has some of the highest rates in other states where the company pays commissions.
Local collect calls made by prisoners in Arkansas cost $4.80 per 15-minute call compared with $.70 in Rhode Island. Further, the rate for interstate collect calls from Arkansas prisons is $10.70 for 15 minutes, compared with $5.80 in Rhode Island – even though the same company, GTL, supplies phone services in both states.
It is readily apparent that the service provided, i.e., prison-based phone calls, is profitable for GTL even at the company’s lowest rates; thus, the higher rates charged in states where GTL pays commissions amount to nothing more than price gouging and gross profiteering. Sadly, GTL’s kickback-based business model is prevalent across the country, as more than half the state prison systems now employ GTL to provide phone services – either directly or through other GTL-owned firms.
In addition to connect and per-minute charges, some prison phone companies price gouge in other ways. For example, Value-Added Communications (VAC), which provides phone services for New York state prisoners, charges a $7.95 service fee when a prisoner’s family adds funds to their phone account by credit card (there is no fee for payments by money order). Further, a $4.95 “monthly inactivity fee” is charged for an account with no call activity for over 180 days. And if a prisoner’s family wants to close the account? Unless the account has not been used and is closed within 90 days after it was created, a $4.95 fee is imposed to cover “administrative” expenses.
GTL charges family members a $4.75 service fee for each $25.00 payment made to a prepaid phone account via credit card (i.e., a $9.50 surcharge for a $50.00 payment to a prepaid account – almost a 20% fee). There is a $5.00 charge to close an account and withdraw the remaining balance; also, if an account is not used for 90 days, the balance is forfeited to GTL. Another prison phone company, Securus Technologies, charges a monthly bill statement fee of up to $2.99 plus a “processing fee” of up to $6.95 for credit or debit card payments made online or (ironically) by phone.
Such extra fees cost Securus at least one contract. After Securus won a bid to provide phone services for the New Mexico DOC in April 2009, competitor Public Communications Services (PCS) challenged Securus’ bid because it did not factor in the additional billing statement and credit card fees, which inflated the actual cost of phone calls. The New Mexico Dept. of Information Technology agreed. “It’s in the best interest of the state to cancel the contract and start over again,” said spokeswoman Deborah Martinez, noting that the bid information “was not as clear as it should have been.”
Once companies win prison phone contracts and are granted a monopoly on phone services within a certain prison or jail system, however, prisoners’ families have no choice but to pay the phone rates and fees if they want to accept calls from their incarcerated loved ones – an extortionate form of price gouging. Do you want to speak with your mother, father, wife, husband or child who’s behind bars? Then pay up – at rates up to two dozen times higher than for non-prison calls.
Are All Prison Phone Companies the Same?
Prison phone companies have included some well-known firms and some that offer phone services solely in prisons and jails. Widely known are AT&T and Unisys, but the largest prison phone service provider is GTL. Other companies include Securus (owned by H.I.G. Private Equity), VAC, PCS, McLeod/Consolidated Communications, Embarq (a spin-off from Sprint/Nextel that is now owned by CenturyTel, Inc. d/b/a CenturyLink), ICSolutions, FSH Communications, and Pay-Tel (which mostly services jails in the southeast).
In recent years, many of the firms providing prison and jail phone services have been merged into larger companies. FSH entered the prison phone market after buying the payphone assets of Qwest Communications Int’l, and recently sold its prison phone business to VAC. Securus Technologies, Inc. was formed in 2004 by the merger of T-Netix and Evercom Systems – two of the major players in the prison phone industry. On June 1, 2009, Securus entered into a 5-year contract renewal to provide phone services at 25 facilities operated by Corrections Corp. of America. According to a Securus press release, the contract was worth “over $19 million annually.”
GTL has been prominent in consolidating the market. For example, the company took over AT&T’s National Public Markets prison phone business on June 2, 2005, and acquired MCI WorldCom’s correctional phone services division from Verizon in 2007. GTL also purchased competitor DSI-ITI, LLC in June 2010. GTL was itself acquired by Veritas Capital and GS Direct, LLC (owned by Goldman Sachs) in February 2009, but still does business as Global Tel*Link.
A rational mind would conclude that larger companies with more amortization of overhead costs would provide lower rates to be more competitive. But that is not what happens. The largest firms instead are able to offer larger kickbacks, thus creating the very monopoly that competitive bidding was designed to prevent. This is not to say that GTL, among other prison phone service providers, does not “compete.” When GTL is up against a competitor for a contract where the contracting agency has imposed rate caps or does not accept commissions, it will apparently bid lower rates to compensate.
Although all prison phone companies provide the same basic service – secure phone systems for prisons or jails with monitoring, recording and other security features – there are some differences.
One firm, PCS, stood out in terms of providing low phone rates. In three states that ban kickback commissions the winning contractor was PCS on the basis of bidding lower rates for phone services. Those states are Nebraska, Missouri and New Mexico (while Missouri does not accept commissions, it requires payments to cover certain staffing costs).
In another state where kickbacks are banned, Rhode Island, the winning bidder was GTL. What, you ask, the company known for high rates had the lowest bid? Indeed, GTL charges Rhode Island prisoners $.70 (flat rate) for local and intrastate calls plus a thrifty $1.30 + $.30/minute for interstate calls. Evidently, absent the need to provide kickback payments, GTL was able to offer lower rates and underbid its competitors.
GTL has since acquired PCS effective November 10, 2010, thereby reducing its competition for no-commission, lower-rate prison phone contracts.
Are All States the Same?
The short answer is “no.” Eight states have banned prison phone kickbacks entirely: Nebraska, New Mexico, New York, Rhode Island, Michigan, South Carolina, California (as of 2011) and Missouri (Missouri requires its phone service provider to cover the cost of 21 staff positions to monitor prisoners’ calls). New Hampshire, Kansas and Arkansas have reduced their kickback commissions, and Montana recently entered into a limited-commission contract. As a result, prison phone rates in those states have plummeted.
Although not included in PLN’s state-by-state survey, the District of Columbia prohibits any “surcharge, commission, or other financial imposition” on prisoners’ phone calls beyond legally-established phone rates, which are limited to “the maximum rate determined by the Public Service Commission of the District of Columbia.” D.C. Code Ann. § 24-263.01.
While phone companies’ costs associated with installing and maintaining secure prison phone systems exceed those of installing public telephones, this is not reflected by the widely variant rates charged in different jurisdictions.
For example, GTL charges only $.70 for a local collect call in commission-free Rhode Island. But the company stiffs prisoners’ families in Alabama with $2.75 for a local call and charges $4.80 for local calls in Arkansas – no doubt due to GTL’s 61.5% and 45% kickbacks in those states, respectively. This indicates that GTL can provide lower rates absent the need to pay hefty commissions to the contracting agency.
Securus provides up to a 32.1% kickback in Alaska, but offers kickbacks of up to 60% in Maryland. Yet Securus’ interstate rate in Maryland (with almost double its Alaska kickback percentage) is less than half the interstate rate in Alaska. Securus partnered with Embarq to handle phone services in Texas’ prison system at $.26/minute for local and intrastate calls, and $.43/minute for interstate calls – using a “bundled” rate that includes a 40% kickback. [See: PLN, Feb. 2009, p.27; Nov. 2007, p.11]. Thus, for a 15-minute collect interstate call, Securus charges $6.45 in Texas prisons versus $7.50 in Maryland and $17.30 in Alaska. Such disparities further demonstrate the arbitrary nature of prison phone rates among the states, even when provided by the same company.
Maine is unique in that its Department of Corrections supplies phone services for prisoners through the state’s Office of Information Technology. That does not mean Maine has forgone making a profit off prisoners’ phone calls, though, as the DOC receives an effective 22% commission from collect calls and the charged rates are comparable with those in states that accept commission payments.
In 2007 the Public Utilities Commission held the Maine DOC was a public utility under state law since it was providing phone services, and ordered the DOC to file its rate schedule with the Commission. However, the DOC appealed and the Maine Supreme Court ruled on April 21, 2009 that the DOC was not a public utility and thus not subject to regulation by the Commission. See: DOC v. Public Utilities Commission, 968 A.2d 1047 (Maine 2009).
Iowa has a system in which prison phone services are provided through the Iowa Communications Network (ICN), a state agency, which in turn contracts with PCS. The Iowa DOC only permits debit calls, and instead of receiving a percentage-based commission the DOC keeps all of the revenue generated after paying ICN and PCS for phone usage charges. Prison phone rates in Iowa are comparable to those in states that receive kickbacks.
In Oklahoma, a prison actually closed in 2003 due to excessively high phone rates. The North Fork Correctional Facility, located in Sayre and operated by Corrections Corp. of America (CCA), housed almost 1,000 Wisconsin prisoners. Long distance calls from the facility were $3.95 + $.89/minute, and Sayre received a 25-42% commission that amounted to $656,000 annually – nearly equal to the city’s entire budget before the private prison opened. When Wisconsin officials pressured CCA and Sayre officials for lower rates, AT&T, the prison’s phone service provider, refused. Unable to renegotiate the rates under the city’s contract with AT&T, Wisconsin transferred all its prisoners to a different CCA facility. [See: PLN, March 2004, p.14].
“We find it hard to believe that they would shut down the prison over telephone rates. We had no interest in shutting the prison down,” said AT&T spokesman Kerry Hibbs. But that is exactly what happened, despite AT&T’s last-minute cancellation of its contract with Sayre in an effort to forestall the prison’s closure and the loss of 225 jobs. “Everyone tried to get those rates lowered,” said CCA vice president Louise Grant. “It was not done.”
Such is the power of profitable prison phone revenues. CCA’s North Fork facility has since reopened, presumably with lower phone rates.
Florida – A State in Flux
Florida prisoners have enjoyed affordable phone rates since April 2006, when then-DOC Commissioner James McDonough reduced the cost of prison phone calls by about 30%. [See: PLN, Oct. 2006, p.24]. Soon, however, they may receive a rude wake-up call. In 2009 the Florida legislature passed a bill (S.B. 2626) that removed rate caps for all providers of “operator services” in the state.
On September 24, 2009, the Florida Public Service Commission (in Docket No. 060476-TL) ruled that prison phone calls should be included in the class of services that would no longer have a rate cap. Eight companies, including GTL, PCS, Embarq Florida, Evercom Systems and T-Netix, had argued in favor of removing the rate caps.
Under Florida’s prison phone service contract with Securus, the state’s recent annual kickback was $3 million and phone charges were substantially lower following McDonough’s rate reduction. It remains to be seen whether Securus’ current rate of $.50 for local collect calls, and $1.20 + $.04/minute for intrastate and interstate calls, will continue once the rate caps are removed.
If Florida county jails are any indication, the phone rates charged to prisoners’ families are far from rational. In Monroe County, local calls are billed at $2.25 and long distance calls cost $1.75 + $.30/minute. The funds obtained by the Monroe County Sheriff’s Office from its phone system are deposited into the inmate welfare account to pay for board games, television and other items used for the benefit of prisoners. The jail contracts with ICSolutions, Inc.
Other Florida county jail phone rates include: Escambia County, local $2.25, intrastate $1.75 + $0.30/minute, interstate $4.99 + $0.89/minute; Lake County, local $2.25, interstate $3.95 + $0.45/minute; Gadsden County, local $2.25, intrastate $1.85 + $.50/minute, interstate $2.85 + $.50/minute; and Broward County, local $2.35, intrastate $1.75 + $0.30/minute, interstate $3.66 + $0.59/minute. Broward County, which contracts with Securus, receives a 58.5% commission on prisoners’ phone calls.
Thus, Florida jail prisoners are subject to long distance rates ranging from $6.25 to $18.34 for a 15-minute collect call at the above facilities, representing an almost 300% difference between the lowest and highest rates, even when such calls are made from jails within the same state.
PLN Sues to Obtain Phone Contract Data
While most of the states contacted by PLN provided their prison phone contract data pursuant to public records requests, albeit sometimes grudgingly, one did not. Mississippi refused to produce a copy of its phone contract with GTL or any data concerning GTL’s commissions paid to the state.
A court ruling in a previous case filed by one of GTL’s competitors had resulted in a protective order sealing the contract and related kickback commission data, despite the fact that the contract involved a public, taxpayer-funded agency – the Department of Corrections.
PLN filed suit against the Mississippi DOC and GTL on March 10, 2009 seeking disclosure of the prison phone contract and commission data, noting that the state’s public records act specifies that “all public records are ... public property, and any person shall have the right to inspect, copy or obtain a reproduction of any public records of any public body.”
“Contracts entered into by the state which involve public funds are public documents,” stated PLN editor Paul Wright. “As such, the prison phone contract and commission information must be produced pursuant to Mississippi’s public records act, and Global Tel*Link, a private for-profit company, cannot hide such documents from members of the public. Such secrecy is unacceptable and contrary to public policy.” GTL agreed to settle the case in June 2009 by producing a copy of its contract with the State of Mississippi and associated commission data. Those records revealed that GTL paid the state a 55.6% commission – one of the highest in the nation – amounting to $2.8 million in 2008.
PLN was represented by Jackson, Mississippi attorneys Robert B. McDuff and Sibyl C. Byrd. See: PLN v. Mississippi Dept. of Corrections, Chancery Court of Hinds County (MS), Case No. G 2009 391 I. [PLN, May 2010, p.8].
What Happens Without Kickbacks?
The prison phone contract data obtained by PLN provides a before-and-after look at phone rates in several states that have banned, limited or reduced their kickback commissions. The comparisons are telling.
The New Mexico DOC stopped accepting commissions in 2001 following the enactment of House Bill 13, which specified that contracts “to provide inmates with access to telecommunications services in a correctional facility or jail shall not include a commission or other payment to the operator of the correctional facility or jail based upon amounts billed by the telecommunications provider for telephone calls made by inmates in the correctional facility or jail.” N.M. Stat. Ann. § 33-14-1.
New Mexico previously had a 48.25% commission rate, and before House Bill 13 went into effect the DOC’s intrastate phone rate was $1.80 + $.22/minute for collect calls. Following House Bill 13 the intrastate rate dropped to $1.75 + $.125-$.175/minute – a modest but significant decrease of 14.2% to 28.9% for a 15-minute call. Local and interstate call rates could not be compared due to a lack of pre-2001 data. New Mexico still has high phone rates in comparison with other states that no longer accept commission payments, though.
The State of New York faced (ultimately unsuccessful) legal challenges to its exorbitant prison phone rates, plus a concerted advocacy campaign involving the New York Campaign for Telephone Justice, Prison Families of New York, Inc. and other organizations. On July 19, 2007, then-Governor Eliot Spitzer signed the Family Connections Bill, which prohibited kickback commissions and required the DOC to contract with telephone service providers based on the lowest cost. [See: PLN, April 2007, p.20].
Previously, New York had received a commission of 57.5% to 60%, the highest in the nation at the time, which generated $200 million in kickback payments from 1996 through 2007. The no-commission statute went into effect in 2008, and under a new contract with Unisys and VAC, New York prisons now have some of the lowest phone rates in the country – a flat $.048/minute for any type of call (i.e., $.72 per 15-minute call whether local, intrastate or interstate).
Before banning kickback commissions, New York’s prison phone rates were $1.28 + $.068/minute for all categories of collect calls (i.e., $2.30 per 15-minute call whether local, intrastate or interstate). Thus, after the commissions ended, the rates dropped 68.7% based on a 15-minute collect call.
In August 2008, Michigan ended its practice of accepting kickback payments from prison phone service providers as a result of legislative action. Under the state’s no-commission contract with Embarq, rates decreased significantly to $.12/minute for local and intrastate calls and $.15/minute for interstate calls, with no connection charge. The new rates represent a 10% price drop for local calls, a 77% drop for intrastate calls and an amazing 87% drop for interstate calls from the previous commission-based rates of $2.00 local, $2.95 + $.325/minute intrastate and $3.99 + $.89/minute interstate.
Michigan’s prison phone contract has since been bid to PCS, now owned by GTL, but the current low rates remain in effect until a new rate structure is developed. Prior to ending its phone kickbacks, the state received a 50.99% commission that generated $10.2 million in FY 2007.
South Carolina’s legislature banned prison phone kickbacks as part of a 2007-2008 appropriations bill, stating, “the State shall forego any commissions or revenues for the provision of pay telephones in institutions of the Department of Corrections and the Department of Juvenile Justice for use by inmates. The State Budget and Control Board shall ensure that the telephone rates charged by vendors for the use of those telephones must be reduced to reflect this foregone state revenue.” S.C. Code of Laws § 10-1-210.
The bill was introduced by Republican Senator W. Greg Ryberg, a member of the Senate Corrections and Penology Committee, upon the request of the South Carolina DOC. Prior to the ban on kickbacks, South Carolina’s prison phone rates were $.76 for local calls, $1.73 + $.22/minute intrastate and $1.89 + $.22/minute interstate.
The new no-commission rates, effective April 1, 2008, were $.50 for local calls (a 34.2% reduction), $1.00 + $.15/minute for intrastate calls (a 35.4% reduction) and $1.25 + $.15/minute for interstate calls (a 32.5% reduction), with the rate decreases based on a 15-minute call. Under its previous commission-based contract, South Carolina received $1.2 million in FY 2008.
California is phasing out prison phone kickbacks effective by the end of the 2010-2011 fiscal year. Phone rates for California prisoners have been dropping since late 2007, and in early 2011 were down to the final rate of $.58 + $.058/minute for local calls, $.77 + $.084/minute for intrastate calls and $1.52 + $.342/minute for interstate calls, according to the state’s Inmate/Ward Telephone System Contract.
California’s commission-based rates prior to August 2007, when the kickbacks began to be phased out, were $1.50 + $.15/minute for local calls, $2.00 + $.22/minute intrastate and $3.95 + $.89/minute interstate (the rates in the accompanying chart reflect the initial rate reduction for 2007-2008). The new phone charges as of 2010-2011 thus represent a price drop of 61% for 15-minute local, intrastate and interstate collect calls compared with the rates before the state began to phase out commission payments.
This is yet another example of how banning kickbacks translates to lower phone rates. California prohibited prison phone commissions as a result of state legislation, S.B. 81, enacted during the 2007-2008 session.
Notably, states do not have to eliminate payments from prison phone companies entirely to achieve lower phone rates, as evidenced by Missouri, which has low rates of $1.00 + $.10/minute. While no longer accepting commissions, the state requires its phone service provider to cover the cost of 21 staff positions for monitoring prisoners’ calls (about $800,000 to $900,000 annually). Previously, Missouri had received a 55% commission before eliminating prison phone kickbacks in April 1999.
New Hampshire limited its maximum commission rate to 20% and imposed rate caps in a 2006 RFP issued by the state’s Division of Plant and Property Management, which resulted in fairly low rates of $1.20 + $.10/minute for prison phone calls. Montana, Kansas and Arkansas have also reduced but not eliminated their kickback commissions, with lower phone rates as a result.
Following a July 2010 RFP, the Montana Department of Corrections contracted with Oregon-based Telmate, LLC to provide prison phone services. By state statute, all commissions from the phone system must go to the inmate welfare fund. The DOC determined that $23,000 per month was sufficient to maintain the fund, and “[t]he RFP was written with the requirement that the commissions only generate enough to maintain the inmate welfare fund. This allowed the vendors responding to the RFP to focus on the rate of the call and not how much money could be generated by commissions.”
The Montana DOC’s phone rates under its prior contract with PCS, as reflected in the chart accompanying this article, were $2.75 + $.20/minute for local, intrastate and interstate calls. Telmate’s rates, pursuant to its limited-commission contract (which has a maximum kickback of 25%), are $.24 + $.12/minute for local, intrastate and interstate calls. This represents a 64.5% reduction from the previous rates for a 15-minute call.
When the Kansas DOC entered into a new telephone contract with Embarq in January 2008, Kansas Secretary of Corrections Roger Werholtz stated, “It is important for inmates to be able to maintain contact with their families and friends. We have recognized for many years that the cost of the phone calls inmates make from our correctional facilities has created a financial hardship for their families, and I am pleased that the new contract will help reduce those costs.”
The state’s new contract with Embarq included a kickback of 41.3% and a minimum guaranteed annual commission of $1,057,000, compared with the 48.25% kickback and minimum $2,750,000 annual commission in the DOC’s prior contract with Securus/T-Netix. Embarq’s new collect call rates are $2.61 for local calls, $1.96 + $.41/minute intrastate and $1.70 + $.40/minute interstate. Under the previous higher-commission contract the collect call rates were $4.35 local, $3.26 + $.69/minute intrastate and $2.84 + $.66/minute interstate. Thus, under its reduced-commission contract with Embarq, the Kansas DOC’s phone rates dropped by 40% across the board.
And when the Arkansas DOC contracted with GTL in February 2007, the company initially offered a 55% commission with phone rates of $3.00 + $.24/minute for local and intrastate calls, and $3.95 + $.89/minute for interstate calls. Arkansas officials instead considered two alternative rate proposals, one with a 50.75% commission that had a 25% decrease in the per-minute call rates, and the other with a 45% commission that included a 50% decrease in per-minute rates.
The Arkansas DOC selected the 45% commission with lowest per-minute rates ($3.00 + $.12/minute for local and intrastate, and $3.95 + $.45/minute interstate), noting that “while our annual revenues may decrease, we believe this would be a good faith effort to reduce the financial burden on inmate [sic] families.” Although the phone rates for Arkansas prisoners still remain high, they are not as high as they could have been had the DOC decided to maximize its commission rate.
The above examples send a clear message that prisoners and their families and advocates should seek both administrative and legislative changes to ban, limit or reduce kickbacks, and encourage prison systems to contract with the lowest bidder for phone services. While it seems a Herculean task to convince state officials to forgo millions of dollars in phone revenues, and indeed legislation to reduce prison phone rates has failed in a number of states, it is not impossible and there have been several success stories beyond the states that have already banned kickbacks.
According to the Equitable Telephone Charges (eTc) Campaign, a project of National CURE that advocates for prison phone rate reform, Arkansas selected a lower commission and phone rates in 2007, as described above, due to efforts by prisoners’ advocacy groups and threatened legislation to eliminate the commissions entirely.
Also, an effort to impose a $2.00 fee on local calls from Alaskan prisons was scuttled as a result of public opposition. The Alaska DOC had announced that the fee would go into effect on September 1, 2008 under a new prison phone contract with Securus. Previously, prisoners could make local calls at no cost.
The Regulatory Commission of Alaska received a number of complaints concerning the $2.00 per-call charge and opened an investigation, stating “that doubt exists as to the reasonableness” of the fee. The proposed local call charge was withdrawn in January 2009, even though Securus had estimated that based on historical call volume the $2.00 fee “could add [gross] revenues of $4,661,808 annually.” Local calls remain free for Alaskan prisoners.
In short, the magnitude of harm caused by typical prison phone contracts that include kickbacks, and thus higher phone rates, is most apparent when comparing rates in the states that accept commissions with those that do not.
Prison Phone Rates on the Federal Level
The federal Bureau of Prisons (BOP) has moved to a debit-based phone system called the Inmate Telephone System (ITS), in which prisoners pay for calls from their institutional accounts, though they can also make collect calls to approved numbers. The system has all of the usual security features but in most cases has resulted in savings to prisoners and their families.
Rates are as low as $.06/minute for local debit calls and $.23/minute for long distance debit calls. However, collect long distance rates are still pricey at $2.45 + $.40/minute ($8.45 for a 15-minute interstate collect call). Intrastate rates are capped at 90% of the applicable state-regulated phone rates, which vary.
BOP prisoners are limited to 300 minutes of calling time per month (400 in November and December), and phone calls are limited to 15 minutes. The ITS was implemented following a settlement in a federal class-action lawsuit, Washington v. Reno, in November 1995. [See: PLN, Sept. 1996, p.16; March 1995, p.4; Nov. 1994, p.10; March 1994, p.1].
The BOP entered into a 3-year contract with Unisys in 2005 to install and operate a new generation of the ITS (ITS-3, also known as TRUFONE) at more than 100 federal correctional facilities; the contract had an estimated value of $37 million, not including three one-year optional extensions. The BOP declined to provide its phone commission data during PLN’s recent survey.
In Congress, legislation to require the FCC to prescribe rules regulating prison phone services, titled the Family Telephone Connection Protection Act, was introduced by U.S. Rep. Bobby Rush in 2005, 2007 and 2009, but was never enacted.
Another piece of federal legislation, the Cell Phone Contraband Act (S.1749), signed into law by President Obama on August 10, 2010, makes it a crime for federal prisoners to possess a cell phone. The law also includes a little-known provision that requires the Government Accountability Office (GAO) to study the BOP’s phone rates and investigate less expensive alternatives.
In regard to federal oversight of prison phone services, PLN has asked the FCC to address excessive overcharging relative to interstate prison phone calls as part of the Wright petition – a rulemaking proposal pending before the FCC (CC Docket No. 96-128). The petition stems from a long-standing federal lawsuit challenging exorbitant phone rates, Wright v. Corrections Corp. of America. [See: PLN, April 2004, p.39].
An alternative rulemaking proposal, submitted in the Wright petition in March 2007, suggests a rate cap of $.25/minute for all interstate collect calls and $.20/minute for all interstate debit calls made by prisoners. Thus far the FCC has taken no action on the Wright petition since it was originally filed in 2003, despite having acknowledged in a prior proceeding that “the recipients of collect calls from inmates … require additional safeguards to avoid being charged excessive rates from a monopoly provider.”
Legal Challenges Mostly Unsuccessful
Lawsuits challenging exorbitant prison phone rates have met with little success. In Walton v. NY DOCS, 18 Misc.3d 775, 849 N.Y.S.2d 395 (N.Y.Sup. 2007), the court held that New York’s then-57.5% kickback commission did not violate the constitutional rights of prisoners’ families. [See: PLN, Oct. 2008, p.24; April 2007, p.20]. This finding was upheld by New York’s highest court, the Court of Appeals, in 2009. See: Walton v. NY DOCS, 13 N.Y.3d 475, 921 N.E.2d 145 (N.Y. 2009) [PLN, Aug. 2010, p.18].
An Indiana appellate court denied an appeal in a class-action suit by prisoners’ families raising similar issues. See: Alexander v. Marion County Sheriff, 891 N.E.2d 87 (Ind.Ct.App. 2008) [PLN, June 2009, p.28]. New Mexico’s Supreme Court upheld the dismissal of a lawsuit challenging prison phone rates in 2002 [See: PLN, June 2003, p.17], as did New Hampshire’s Supreme Court that same year, in Guglielmo v. WorldCom, Inc., 148 N.H. 309, 808 A.2d 65 (N.H. 2002). Further, the Eighth Circuit Court of Appeals affirmed the dismissal of an excessive prison phone rate complaint in Gilmore v. County of Douglas, 406 F.3d 935 (8th Cir. 2005).
Such legal actions typically run afoul of the “filed rate doctrine,” which holds that once a telecommunications company files its rate structure (tariffs) with an appropriate regulatory agency, and then adheres to those rates, it is insulated from court challenges. [See, e.g.: PLN, Jan. 2005, p.6].
A nationwide class-action suit was filed against GTL in California in August 2010, claiming the company exploited its customers “by charging them [] exorbitant, undisclosed per-minute rates (often in excess of $1.00/minute) and excessive service charges,” including undisclosed fees for depositing money into prepaid phone accounts. The suit settled under confidential terms before a class was certified. [See: PLN, March 2011, p.38].
An Ohio federal court ruled in 2003 that recipients of collect calls from Ohio prisoners could pursue claims against counties and prison phone service providers alleging that unreasonably high rates violated their equal protection, freedom of speech and associational rights. Claims against the State of Ohio, as well as antitrust and telecommunications statute claims, were dismissed. Soon after that ruling the case was stayed pending the resolution of bankruptcy proceedings involving WorldCom, Inc., and no further action was taken by the court. See: McGuire v. Ameritech Services, Inc., 253 F.Supp.2d 988 (S.D. Ohio 2003).
In 2001, the Seventh Circuit Court of Appeals held that Illinois officials did not violate the rights of prisoners or their families by granting phone companies a monopoly on collect phone services at particular prisons in exchange for commission payments. The appellate court found that exorbitant telephone rates did not violate the First Amendment, the kickback payments did not result in unconstitutional takings or violate antitrust laws, and equal protection and due process claims were barred due to the doctrine of primary jurisdiction. See: Arsberry v. State of Illinois, 244 F.3d 558 (7th Cir. 2001), cert. denied. [PLN, May 2002, p.12; Feb. 2001, p.19; June 2000, p.19; Aug. 1999, p.10].
In Michigan, a U.S. District Court dismissed a suit concerning prison phone rates, holding that the filed-rate doctrine barred challenges to the fairness of the rates charged; that the FCC had primary jurisdiction; that the plaintiffs failed to state a claim for rate discrimination; that the state was immune from liability; and that state regulatory and consumer protection law claims were pre-empted by federal statutes. See: Miranda v. Michigan, 141 F.Supp.2d 747 (E.D. MI 2001) and Miranda v. Michigan, 168 F.Supp.2d 685 (E.D. MI 2001) [PLN, May 2002, p.12].
The Ninth Circuit Court of Appeals rejected prisoners’ claims that higher phone charges were the result of a “conspiracy” between a warden and the telephone companies, finding that prisoners did not have any constitutional right to particular phone rates. See: Johnson v. State of California, 207 F.3d 650 (9th Cir. 2000) [PLN, Nov. 2001, p.22].
Even legal challenges by alternative prison phone service providers that offer lower-cost calling options have failed, such as a lawsuit filed against Securus, T-Netix, Evercom and GTL by Millicorp, a Florida-based company that has a Voice Over Internet Protocol (VOIP) subsidiary called “Cons Call Home.” Securus, et al. were accused of blocking calls to VOIP numbers set up by Millicorp for prisoners’ families. The suit was dismissed in April 2010 under a procedural rule of the federal Telecommunications Act. [See: PLN, May 2010, p.48].
Regulation by State Agencies
Some actions before state regulatory agencies have had greater success. The Utilities Consumer Action Network filed a complaint against MCI with the California Public Utilities Commission over irregularities in the company’s billing practices and quality of service for calls originating from California prisons. In a 2001 settlement, MCI agreed to refund more than $520,000 in illegal overcharges to families of California prisoners. [See: PLN, Nov. 2001, p.19].
This followed a pattern of state regulatory actions and settlements dating from the early 1990s that saw a number of telecommunications companies fined and ordered to pay refunds due to illegal prison phone call billings.
In Louisiana, the state Public Service Commission ordered GTL to refund $1.2 million in overcharges from June 1993 to May 1994. In 1996, North American Intelecom agreed to refund $400,000 overcharged to members of the public who accepted prisoners’ phone calls, following an investigation by the Florida Public Service Commission. The following year the Commission ordered MCI to refund almost $2 million in overcharges on collect calls made from Florida state prisons. [See: PLN, Aug. 1998, p.8; March 1997, p.12; Sept. 1996, p.13].
More recently, in Washington state, AT&T agreed in December 2007 to pay over $300,000 in fines for overcharging prisoners’ families for calls made from the Airway Heights state prison and Washington State Penitentiary. Families were eligible to receive refunds for an estimated $67,295 in overcharges. [See: PLN, March 2008, p.34].
Florida’s Public Service Commission ordered TCG Public Communications, Inc., previously a subsidiary of AT&T before being acquired by GTL, to pay $1.25 million to settle overbilling complaints at the Miami-Dade Pretrial Detention Center from 2004 through 2007. The settlement, approved in August 2009, provided for the $1.25 million to be paid to the state’s general revenue fund; prisoners’ families who were overcharged received nothing. [See: PLN, Feb. 2010, p.49; April 2009, p.38].
A lawsuit filed in 2000 challenging the lack of notice to consumers who accepted high-priced collect calls from Washington prisoners remains pending in Washington state court. After more than a decade of litigation before the state superior, appellate and supreme courts, and before the state utilities commission, the case boiled down to T-Netix and AT&T arguing over which company was responsible for providing notice to the call recipients. On April 21, 2010, the utilities commission held it was AT&T. Between 2000 and 2010 PLN has run five articles related to this case, which is now set for trial. See: Judd v. AT&T, 136 Wash App 1022 (2006) [PLN, Dec. 2010, p.16; March 2007, p.38].
Most of the time, though, state regulatory agencies take little interest in prison phone services so long as the rates charged are within established rate caps – which are typically set very high. Rather, state public utility or service commissions tend to get involved only when prison phone companies overcharge, impose illegal fees or otherwise violate state regulations. This assumes that such regulatory agencies have jurisdiction over prison phone service providers. In at least two states, Colorado and Virginia, they do not. [See: PLN, Aug. 2004, p.44; March 2003, p.12; Nov. 1998, p.23].
There are exceptions, of course, where state regulatory agencies have intervened to set lower rate caps for calls made by prisoners, such as in Kentucky, or to investigate proposed prison phone rate hikes, as in Alaska. A larger problem is that in some cases the utility commissions are largely co-opted by the industries they purport to regulate, with conflicts of interest and a revolving door in which commission staff are later hired by the companies they oversaw.
When former Florida Public Service Commission chairwoman Nancy Argenziano resigned in September 2010, she condemned “the corruption, the bought-and-sold nature of everything related to the operation of the PSC.” She noted there was a “universal expectation that if you audition well, PSC employees and commissioners will be rewarded with lucrative jobs with the utilities,” indicating a thin line exists between the regulators and the regulated.
The Purpose of Prison Phone Services
Government officials who approve prison phone contracts that include kickbacks and excessively high rates apparently forget why prisoners are afforded phone access in the first place. For one, there is a widely-known and researched correlation between prisoners who maintain contact with their families and those who are successful in staying out of prison after they are released. This, in turn, benefits the community by reducing costs associated with recidivism.
According to Prof. Steven Jackson, “recidivism and community impact studies, some of which were used to justify the introduction of prison calling in the first place[,] ... have found that a powerful predictor of re-offending is the failure to maintain family and community contact while incarcerated.”
For example, a research brief by the Jane Addams Center for Social Policy and Research at the University of Illinois at Chicago, published in 2004, observed that “Family roles and relationships are important in reentry planning, whether or not they are explicitly articulated in formal policies and program documents. Family connections and other social networks impact not only families’ and children’s well-being but also the achievement of social goals such as the reduction of crime and the building of vibrant communities.”
Policy changes that can make a difference in maintaining prisoners’ family relationships include making “telephone access to families and friends a basic prison program that is run with attention to the same cost efficiency and cost containment rules that are used for other prison operations.” The research brief noted that exorbitant “government sanctioned telephone rates are abusive and take advantage of families’ reliance on telephones as a primary means of communication during incarceration.”
And according to a 2004 study by the Washington, D.C.-based Urban Institute, “Our analysis found that [released prisoners] with closer family relationships, stronger family support, and fewer negative dynamics in relationships with intimate partners were more likely to have worked after release and were less likely to have used drugs.” The study’s authors, Christy Visher, Vera Kachnowski, Nancy La Vigne and Jeremy Travis, concluded that “[i]t is evident that family support, when it exists, is a strong asset that can be brought to the table in the reentry planning process.”
Such findings have been recognized by corrections officials. The federal Bureau of Prisons states that “Telephone privileges are a supplemental means of maintaining community and family ties that will contribute to an inmate’s personal development.” (Program Statement 5264.07 (2002), as codified at 28 CFR § 540.100(a)).
When GTL tried to raise phone rates in Tennessee in 2002, then-Tennessee Dept. of Corrections Commissioner Donal Campbell stated, “As you know, maintaining contact with family and friends in the free world is an important part of an inmate’s rehabilitation and preparation to return to the community. Furthermore, telephone privileges are essential in managing inmate populations…. [Rate increases] would hinder both of the aforementioned departmental objectives in addition to creating an undue hardship for inmates’ families.”
According to the Oregon DOC, “Ongoing contact with supportive family and friends is an important part of inmates’ success in prison and upon release.” Also, when South Dakota renewed its contract with FSH in March 2008, Corrections Secretary Tim Reish remarked, “The reduced rates we were able to negotiate will have a positive impact on the inmates’ ability to maintain contact with their loved ones while they are in prison.”
Wisconsin law provides that prison officials “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.” Wis.Admin.Code DOC § 309.39.
And in its final June 8, 2006 report, the Commission on Safety and Abuse in America’s Prisons noted that prison phone rates were “extraordinarily high,” and that lowering the rates would “support family and community bonds.”
For many prisoners, particularly those who are functionally illiterate and cannot rely on written correspondence, phone calls are the primary means of maintaining family ties and parental relationships during their incarceration. This is also true for prisoners whose families cannot travel to distant prisons for in-person visitation. While most prisoners are from urban areas, virtually all prisons built in the last 30 years have been built in rural areas far from where most prisoners originate and will return to upon completing their sentences.
Additionally, prisoners’ families suffer from the increased isolation that attends fewer phone calls from their incarcerated loved ones due to exorbitant phone rates. Often, prisoners come from low-income families that can ill afford grossly high phone bills that sometimes run into hundreds of dollars per month.
Hence, prison phone contracts awarded on the basis of the highest kickback (and thus the highest cost to prisoners’ families) are vindictive and ill-conceived at best, and negatively impact prisoners’ familial relationships and recidivism rates at worst.
Excessive prison phone rates are also detrimental from a security standpoint. Cell phones in prisons and jails have become an epidemic problem for corrections officials, who cite a number of security concerns associated with contraband phones, starting with the corrupt staff who smuggle the cell phones into the prisons. [See: PLN, Feb. 2011, p.40]. Yet the market for cell phones behind bars is driven in part by the exorbitant rates charged by prison phone companies; prisoners use illegal – but much more affordable – cell phones to stay in touch with their families and friends. By reducing institutional phone rates, prison officials would reduce the demand for and associated security risks of contraband cell phones.
Sadly, the societal and security benefits of providing prisoners with more affordable phone rates are trumped by greed for the lucrative kickbacks. Worse, phone commission money is often paid to the contracting state’s prison system or general revenue fund, where it becomes a source of addictive income that makes it difficult to end commission-based contracts. And we’re not talking peanuts, as the kickbacks total more than $152 million annually nationwide. California collected $26 million per year before beginning to phase out its commission payments in 2007; New York pocketed up to $20 million annually before banning kickbacks in 2008.
The truth is told by the numbers: Almost 85% of state prison systems receive kickback payments from telephone service providers at the expense of facilitating more affordable phone calls for prisoners and their families, and in spite of the societal benefits that would inure from lower phone rates.
Prison Phone Contracts as Socially Regressive Policy
According to PLN’s research into prison phone contracts, the bottom line is that (1) the vast majority of states receive kickbacks from phone companies, which result in higher phone rates; (2) these excessive rates further distance prisoners from their families, who can ill afford high phone bills; (3) the larger community is disadvantaged when prisoners are unable to maintain family ties that will help them succeed post-release; and (4) most states profit handsomely, to the tune of over $152 million a year nationwide, from prison phone kickbacks; however, phone rates drop significantly absent such commissions.
Thus, prison phone contracts, except in those few states that have banned or limited kickback commissions, are nothing short of a socially regressive, socioeconomic-based assault on prisoners’ families and the community as a whole. This assault occurs due to the basest of reasons – avarice – by telephone companies and contracting agencies that are willing to sacrifice the known rehabilitative benefits of maintaining prisoners’ relationships with their families in exchange for profitable phone revenue.
PLN has reported on prison phone issues since the early 1990s, and most of the news has been negative. The trend, unfortunately, is for consolidation of the prison phone market – which will further erode competition – and deregulation, as in Florida. PLN supports federal oversight of and rate caps on interstate prison phone services, as well as closer regulation and lower rate caps on the state level. Most significantly, the contracts should be bid on the basis of who can provide the lowest price to the consumer, the direct opposite of what occurs now.
The American Correctional Association, American Bar Association and National Association of Women Judges have voiced support for reforming prison phone rates, and a number of advocacy organizations are involved in this issue – including National CURE, state CURE chapters and the eTc Campaign, the Center for Constitutional Rights, and the Brennan Center for Justice.
The consensus reached by these groups is that to ensure prisoners maintain their family relationships so they have a lesser chance of re-offending after they are released, and to reduce the unfair financial burden placed on prisoners’ families, exorbitant prison phone rates must cease. If prison systems in states ranging from California and New York to Nebraska and South Carolina can reduce their phone rates by forgoing commissions, then there is no reason – except callous greed – why other states cannot do likewise.
PLN extends our thanks and gratitude to the Funding Exchange (www.fex.org), which provided grant funding for PLN’s research into prison phone contracts.
Sources: PLN research data, www.etccampaign.com, http://ccrjustice.org, www.sfreporter.com, www.aclu.org, Global Tel*Link, www.securustech.net, www.vaci.com, www.icsolutions.com, Media Justice Fund of the Funding Exchange, www.pulp.tc/html/inmate_phones.html, www.justice.gov, www.businesswire.com, www.gores.com, www.lvrj.com, New York Times, www.dsiiti.com, www.epsicare.com, Daily Hampshire Gazette, www.juneauempire.com, http://rca.alaska.gov, www.heraldtribune.com, North Carolina Journal of Law & Technology (Vol. 8, Issue 1: Fall 2006)
by John E. Dannenberg
An exhaustive analysis of prison phone contracts nationwide has revealed that with only limited exceptions, telephone service providers offer lucrative kickbacks (politely termed “commissions”) to state contracting agencies – amounting on average to 42% of gross revenues from prisoners’ phone calls – in order to obtain exclusive, monopolistic contracts for prison phone services.
These contracts are priced not only to unjustly enrich the telephone companies by charging much higher rates than those paid by the general public, but are further inflated to cover the commission payments, which suck over $152 million per year out of the pockets of prisoners’ families – who are the overwhelming recipients of prison phone calls. Averaging a 42% kickback nationwide, this indicates that the phone market in state prison systems is worth more than an estimated $362 million annually in gross revenue.
In a research task never before accomplished, Prison Legal News, using public records laws, secured prison phone contract information from all 50 states (compiled in 2008-2009 and representing data from 2007-2008). The initial survey was conducted by PLN contributing writer Mike Rigby, with follow-up research by PLN associate editor Alex Friedmann.
The phone contracts were reviewed to determine the service provider; the kickback percentage; the annual dollar amount of the kickbacks; and the rates charged for local calls, intrastate calls (within a state based on calls from one Local Access and Transport Area to another, known as interLATA), and interstate calls (long distance between states). To simplify this survey, only collect call and daytime rates were analyzed.
Around 30 states allow discounted debit and/or prepaid collect calls, which provide lower prison phone rates (much lower in some cases). However, since other states don’t offer such options and not all prisoners or their families have access to debit or prepaid accounts, only collect calls – which are available in all prison systems except Iowa’s – were compared. Also, while telephone companies sometimes provide reduced rates for evening and nighttime calls, many prisoners don’t have the luxury of scheduling phone calls during those time periods.
Lastly, it should be noted that more recent phone rates may now be in effect due to new contract awards or renewals, and while data was obtained from all 50 states, it was not complete for each category. See the chart accompanying this article for a breakdown of the data obtained.
PLN has previously reported on the egregious nature of exorbitant prison phone rates, notably in our January 2007 cover story, “Ex-Communication: Competition and Collusion in the U.S. Prison Telephone Industry,” by University of Michigan professor Steven Jackson.
How Are Phone Rates Regulated?
Domestic phone calls are generally divided into three categories: local, intrastate and interstate. The rates charged for these calls depend on several factors and are regulated by different authorities. Local calls are usually flat-rate within a small area around the call’s originating location; e.g., within the same city.
Local and intrastate calls are often regulated by state public utility or service commissions, which set rate caps. These caps are negotiated to allow phone companies to recover capital costs in a reasonable time frame while also satisfying requirements levied by the state. The latter include subsidizing low-income phone users, providing emergency communications for state agencies, and providing required phone coverage (such as emergency-reporting phone booths along major highways). Obviously, some of these state-mandated requirements are not in and of themselves profitable, so negotiation of rate structures includes recouping these otherwise nonrecoverable costs.
At the interstate level, phone companies are also regulated by the Federal Communications Commission (FCC). The FCC oversees rate structures across state lines, provides for an orderly integration of smaller telephone companies into the national phone network, and is responsible for implementing the Telecommunications Act of 1996.
These regulatory agencies are necessary to prevent one large company from forming a monopoly and price gouging the public with unreasonably high phone rates. However, such monopolies are only prohibited in the non-prison market. Prison phone service providers are free to bid on contracts at the maximum rates allowed by regulatory agencies, and upon winning such bids are effectively granted a monopoly on phone services within a given prison or jail system.
The Prison Phone Bidding Process
Prisons and jails present unique cost factors to telephone service providers. Such factors include physically secure phones (i.e., no readily removable parts); extensive monitoring and recording capabilities, including the ability to archive phone calls for later review by investigators; and difficult access to the prison-based equipment for servicing.
Some of these requirements, especially the monitoring, recording and archiving aspects, are not unique to prisons and are routinely provided to corporate America’s call and customer service centers. Naturally, telephone companies should be allowed to build into their charged rate structure the recovery of capital and operating costs for such expenses.
But that simple logic does not control the cost of prison phone rates. What does control the rates? Pure, unabated greed by both the phone companies and the contracting agencies (e.g., state prison systems, county jails and private prison companies).
The bidding process for prison phone contracts typically begins with a request for proposal (RFP) – a document that outlines the number of phones, locations and technical performance standards required by the contracting agency. The latter include minimum “down time” specifications, frequency of servicing, estimated usage, and (in most but not all cases) audit provisions. From the RFP, telephone companies can determine their cost exposure when making bids. But that is not what guides their bid price or determines the winning bidder in most cases.
With very few exceptions, prison phone contracts contain kickback provisions whereby the service provider agrees to pay “commissions” to the contracting agency based on a percentage of the gross revenue generated by prisoners’ phone calls. These kickbacks are not insignificant. At more than $152 million per year nationwide for state prison systems alone, the commissions dwarf all other considerations and are a controlling factor when awarding prison phone contracts.
For example, when Louisiana issued an RFP for prison phone services in 2001, it specified that “[t]he maximum points, sixty (60) ... shall be awarded to the bidder who bids the highest percentage of compensation ...,” and that “[t]he State desires that the bidder’s compensation percentages ... be as high as possible.”
When the Alaska Dept. of Corrections (DOC) issued an RFP in 2007, bidders were rated on a point system with 60% of the evaluation points assigned to cost. The RFP explicitly stated that “[t]he cost proposal providing the largest percentage of generated revenues ... to the state will receive the maximum number of points allocated to cost.” That is, the most important evaluation criterion was the commission rate.
Prison phone service kickbacks average 42% nationwide among states that accept commissions, and in some cases reach 60% or more. Put into simple terms, up to 60% of what prisoners’ families pay to receive phone calls from their incarcerated loved ones has absolutely nothing to do with the cost of the phone service provided. The kickbacks are not controlled by state or federal regulatory agencies, and the only limit on the maximum rate for prison phone calls is the top rate permitted by such agencies or by the phone service contract itself.
It should come as no surprise, then, that many prison phone contracts result in very high rates, with enough profit left over after recouping all of the phone company’s costs to permit up to 60% of the gross revenue to be paid to the contracting agency. The kickback rates are listed in the chart accompanying this article, as are the dollar amounts of the commissions received in 2007-2008.
Some prison officials have denied that kickbacks influence their decision when contracting for prison phone services. “There are complaints due to the rates,” said Nevada DOC spokesman Greg Smith in 2008, after the DOC entered into a new phone contract with Embarq. “A lot of families do complain that it’s expensive, but it’s an intricate system, it’s not cheap.... We didn’t negotiate this [contract] to create more revenue for us.”
However, when responding to the RFP for Nevada’s prison phone contract, Embarq had presented three options: base rates, lower rates and higher rates. The lower rate option included a smaller kickback (41.5%) and lower guaranteed minimum commission ($1.36 million per year). Instead, the Nevada DOC selected the company’s higher rate option, which provided a 54.2% kickback and guaranteed minimum annual commission payment of $2.4 million, even though this resulted in higher local and interstate phone rates for prisoners and their families.
So despite protestations by prison officials, sometimes they do in fact negotiate contracts specifically to create more revenue. This was explicitly acknowledged in an RFP for prison phone services in Alabama. According to a March 13, 2007 memo from the state’s Department of Finance, the RFP “proposed to award what amounts to an ‘exclusive franchise’ to the successful bidder based on the highest commission rate paid to the State on revenues received from users of the [prison] pay phones.” It is likely no coincidence that Alabama has one of the highest commission rates – 61.5%.
The History Behind Kickback Commissions
The prison phone service market remained an exclusive monopoly of AT&T until 1984, when it was thrown wide open with AT&T’s breakup under a settlement in an antitrust action brought by the U.S. Department of Justice. In 1989, MCI introduced its “Maximum Security” service, part of a larger concerted push into the government and institutional markets. By 1995 MCI held monopoly or near-monopoly contracts for prison phone services in California, Ohio, Connecticut, Virginia, Wisconsin, Missouri and Kentucky (MCI merged with WorldCom in 1998).
Other companies had their own “locked-in” contracts. The reorganized AT&T Prisoner Services Division managed to hold on to prison phone contracts in New Jersey, Pennsylvania, Michigan, New Mexico, Mississippi and Washington, followed by phone companies GTE (in Washington DC, Hawaii, Indiana and parts of Michigan); Sprint (sharing Michigan and also in Nevada); and US West (in New Mexico, Idaho, Oregon, South Dakota and Nebraska).
By the mid-1990s, this new competition had driven prison phone rates – spurred by higher kickback commissions to win contracts – to new heights. According to an American Correctional Association (ACA) survey published in 1995, nearly 90% of prison and jail systems nationwide received a portion of the profits derived from calls placed by prisoners, ranging from 10-55% of gross revenues.
For states struggling to keep up with the costs of exploding prison populations, these kickback payments represented a welcome and multi-million dollar source of income. According to the 1995 ACA survey, based on self-reports, Ohio was making $21 million a year in prison phone commissions (more recently it took in only $14.5 million based on PLN’s research), while New York brought in $15 million, California $9 million (more recently $19.5 million in 2007-2008), Florida $8.2 million (more recently $3 million), and Michigan $7.5 million (more recently $10.2 million before phasing out kickbacks in August 2008).
According to the ACA, 32 state prison systems plus 24 city and county jails – a fraction of the national total – reported phone commission payments in 1994 totaling over $100 million. The more recent total was $152.44 million from 43 of the 44 states that received prison phone revenue at the time of PLN’s survey (Arizona claimed it did not track commission payments).
Since the survey, one additional state no longer accepts prison phone kickbacks: California. Thus, the nationwide total for commission revenue has since decreased by $19.5 million per year based on California’s 2007-2008 commission income (the state’s kickback was phased out from a flat $26 million prior to August 2007 to $19.5 million in 2007-2008, $13 million in 2008-2009, $6.5 million in 2009-2010 and zero in FY 2010-2011).
Notably, however, the kickback commission data reported by state prison systems still vastly undervalues the prison phone service market, as it does not include jails, the federal prison system, private prisons or immigration detention facilities.
By 2000, the commission rates for prison phone contracts had soared to new heights, with California at 44%, Georgia 46%, South Carolina 48%, Illinois, Ohio and Pennsylvania at 50%, Indiana 53%, Florida 57%, and a national high in New York at 60% (reduced in 2001 to 57.5%). Ten states were raking in $10 million or more per year from prisoner calls, with California, New York and the federal Bureau of Prisons leading the way with over $20 million each in annual kickbacks. Such patterns were broadly if unevenly replicated at the local level, with city and county jails entering into similar commission-based phone contracts.
According to PLN’s research, as of 2008 more than half of the states that reported their kickback percentage were receiving commissions of at least 40%, including thirteen that reaped 50% or more. The Idaho DOC uses a commission structure that includes a per-call kickback ranging from $1.75 per collect call to $2.25 per debit call, which is “not affected by ... the length of call or whether the call is local or long distance.” This flat per-call commission translates to an effective kickback rate of 10.5% to 66.1% based on a 15-minute call. Several states have increased their commission rates in recent years, including Vermont and Wyoming.
The emphasis on kickback commissions correlates to a lack of competition in the prison phone industry. If competition truly existed, prison phone rates would gravitate towards a relatively consistent level as phone companies vie with competitors to obtain contracts. Businesses in the non-prison market must be price competitive, which benefits consumers. But that hasn’t happened in the prison phone market; the phone rates in the chart accompanying this article are enormously varied across the national map, with high rates in some states and lower rates in others.
This is because prison phone companies don’t “compete” in the usual sense. They don’t have to offer lower phone rates to match those of their competitors, as prison phone contracts typically are based on the highest commission paid, not the lowest phone rates. Free market competition is thus largely absent in the prison phone industry, at least from the perspective of the consumer – mainly prisoners’ families.
As stated in an efficiency analysis of prison phone contracts published in the Federal Communications Law Journal in 2002, “In the prison context, the state contracts with a private entity, and the private entity provides services to the prisoners and also to the state. ... Due to the perverse financial incentives and the political climate surrounding prisons and prisoners, however, neither the state nor the private entity acts in the best interests of the consumers in particular or of society in general.”
The Arbitrary Nature of Prison Phone Rates
Referring to the accompanying chart, even a casual examination of prison phone rates nationwide reveals a patchwork of charges that simply cannot be correlated to providing the same basic telephone service. In other words, the rates are arbitrary.
Some local calls are flat rate (typically for 15 to 20 minutes); others have a connection charge plus a per-minute fee. Local collect calls range from as low as a flat rate of $.50 in Florida, North Dakota and South Carolina to $2.75 + $.23/minute in Colorado ($6.20 for a 15-minute local collect call). Alaska is unique in that prisoners can make local calls for free.
Intrastate rates vary from $.048/minute in New York to $3.95 + $.69/minute in Oregon ($.72 versus $14.30 for a 15-minute collect call, respectively).
Interstate rates are as reasonable as New York’s $.048/minute with no connection fee, or Nebraska’s $.70 + $.05/minute, but most crowd the high end of the scale with a connection charge of $3.00 or more plus per-minute rates up to $.89 – resulting in $10 to $17 for a 15-minute collect call (Washington has the highest interstate rate). This is a far cry from the much lower long distance rates paid by the non-incarcerated public, which typically run $.05 to $.10 per minute or simple flat rate monthly fees for unlimited long distance calling in the $50-80 a month range.
Only eleven states have local collect call rates of under $1.00 per call, while Nebraska’s interstate rate is one-twelfth and New York’s interstate rate is one twenty-fifth the cost of the highest-priced phone charges for a 15-minute long distance collect call.
The irrationality of the rate structures is further exemplified by Rhode Island’s no-kickback commission low rates, which are provided by Mobile, Alabama-based Global Tel*Link (GTL) – the same firm that has some of the highest rates in other states where the company pays commissions.
Local collect calls made by prisoners in Arkansas cost $4.80 per 15-minute call compared with $.70 in Rhode Island. Further, the rate for interstate collect calls from Arkansas prisons is $10.70 for 15 minutes, compared with $5.80 in Rhode Island – even though the same company, GTL, supplies phone services in both states.
It is readily apparent that the service provided, i.e., prison-based phone calls, is profitable for GTL even at the company’s lowest rates; thus, the higher rates charged in states where GTL pays commissions amount to nothing more than price gouging and gross profiteering. Sadly, GTL’s kickback-based business model is prevalent across the country, as more than half the state prison systems now employ GTL to provide phone services – either directly or through other GTL-owned firms.
In addition to connect and per-minute charges, some prison phone companies price gouge in other ways. For example, Value-Added Communications (VAC), which provides phone services for New York state prisoners, charges a $7.95 service fee when a prisoner’s family adds funds to their phone account by credit card (there is no fee for payments by money order). Further, a $4.95 “monthly inactivity fee” is charged for an account with no call activity for over 180 days. And if a prisoner’s family wants to close the account? Unless the account has not been used and is closed within 90 days after it was created, a $4.95 fee is imposed to cover “administrative” expenses.
GTL charges family members a $4.75 service fee for each $25.00 payment made to a prepaid phone account via credit card (i.e., a $9.50 surcharge for a $50.00 payment to a prepaid account – almost a 20% fee). There is a $5.00 charge to close an account and withdraw the remaining balance; also, if an account is not used for 90 days, the balance is forfeited to GTL. Another prison phone company, Securus Technologies, charges a monthly bill statement fee of up to $2.99 plus a “processing fee” of up to $6.95 for credit or debit card payments made online or (ironically) by phone.
Such extra fees cost Securus at least one contract. After Securus won a bid to provide phone services for the New Mexico DOC in April 2009, competitor Public Communications Services (PCS) challenged Securus’ bid because it did not factor in the additional billing statement and credit card fees, which inflated the actual cost of phone calls. The New Mexico Dept. of Information Technology agreed. “It’s in the best interest of the state to cancel the contract and start over again,” said spokeswoman Deborah Martinez, noting that the bid information “was not as clear as it should have been.”
Once companies win prison phone contracts and are granted a monopoly on phone services within a certain prison or jail system, however, prisoners’ families have no choice but to pay the phone rates and fees if they want to accept calls from their incarcerated loved ones – an extortionate form of price gouging. Do you want to speak with your mother, father, wife, husband or child who’s behind bars? Then pay up – at rates up to two dozen times higher than for non-prison calls.
Are All Prison Phone Companies the Same?
Prison phone companies have included some well-known firms and some that offer phone services solely in prisons and jails. Widely known are AT&T and Unisys, but the largest prison phone service provider is GTL. Other companies include Securus (owned by H.I.G. Private Equity), VAC, PCS, McLeod/Consolidated Communications, Embarq (a spin-off from Sprint/Nextel that is now owned by CenturyTel, Inc. d/b/a CenturyLink), ICSolutions, FSH Communications, and Pay-Tel (which mostly services jails in the southeast).
In recent years, many of the firms providing prison and jail phone services have been merged into larger companies. FSH entered the prison phone market after buying the payphone assets of Qwest Communications Int’l, and recently sold its prison phone business to VAC. Securus Technologies, Inc. was formed in 2004 by the merger of T-Netix and Evercom Systems – two of the major players in the prison phone industry. On June 1, 2009, Securus entered into a 5-year contract renewal to provide phone services at 25 facilities operated by Corrections Corp. of America. According to a Securus press release, the contract was worth “over $19 million annually.”
GTL has been prominent in consolidating the market. For example, the company took over AT&T’s National Public Markets prison phone business on June 2, 2005, and acquired MCI WorldCom’s correctional phone services division from Verizon in 2007. GTL also purchased competitor DSI-ITI, LLC in June 2010. GTL was itself acquired by Veritas Capital and GS Direct, LLC (owned by Goldman Sachs) in February 2009, but still does business as Global Tel*Link.
A rational mind would conclude that larger companies with more amortization of overhead costs would provide lower rates to be more competitive. But that is not what happens. The largest firms instead are able to offer larger kickbacks, thus creating the very monopoly that competitive bidding was designed to prevent. This is not to say that GTL, among other prison phone service providers, does not “compete.” When GTL is up against a competitor for a contract where the contracting agency has imposed rate caps or does not accept commissions, it will apparently bid lower rates to compensate.
Although all prison phone companies provide the same basic service – secure phone systems for prisons or jails with monitoring, recording and other security features – there are some differences.
One firm, PCS, stood out in terms of providing low phone rates. In three states that ban kickback commissions the winning contractor was PCS on the basis of bidding lower rates for phone services. Those states are Nebraska, Missouri and New Mexico (while Missouri does not accept commissions, it requires payments to cover certain staffing costs).
In another state where kickbacks are banned, Rhode Island, the winning bidder was GTL. What, you ask, the company known for high rates had the lowest bid? Indeed, GTL charges Rhode Island prisoners $.70 (flat rate) for local and intrastate calls plus a thrifty $1.30 + $.30/minute for interstate calls. Evidently, absent the need to provide kickback payments, GTL was able to offer lower rates and underbid its competitors.
GTL has since acquired PCS effective November 10, 2010, thereby reducing its competition for no-commission, lower-rate prison phone contracts.
Are All States the Same?
The short answer is “no.” Eight states have banned prison phone kickbacks entirely: Nebraska, New Mexico, New York, Rhode Island, Michigan, South Carolina, California (as of 2011) and Missouri (Missouri requires its phone service provider to cover the cost of 21 staff positions to monitor prisoners’ calls). New Hampshire, Kansas and Arkansas have reduced their kickback commissions, and Montana recently entered into a limited-commission contract. As a result, prison phone rates in those states have plummeted.
Although not included in PLN’s state-by-state survey, the District of Columbia prohibits any “surcharge, commission, or other financial imposition” on prisoners’ phone calls beyond legally-established phone rates, which are limited to “the maximum rate determined by the Public Service Commission of the District of Columbia.” D.C. Code Ann. § 24-263.01.
While phone companies’ costs associated with installing and maintaining secure prison phone systems exceed those of installing public telephones, this is not reflected by the widely variant rates charged in different jurisdictions.
For example, GTL charges only $.70 for a local collect call in commission-free Rhode Island. But the company stiffs prisoners’ families in Alabama with $2.75 for a local call and charges $4.80 for local calls in Arkansas – no doubt due to GTL’s 61.5% and 45% kickbacks in those states, respectively. This indicates that GTL can provide lower rates absent the need to pay hefty commissions to the contracting agency.
Securus provides up to a 32.1% kickback in Alaska, but offers kickbacks of up to 60% in Maryland. Yet Securus’ interstate rate in Maryland (with almost double its Alaska kickback percentage) is less than half the interstate rate in Alaska. Securus partnered with Embarq to handle phone services in Texas’ prison system at $.26/minute for local and intrastate calls, and $.43/minute for interstate calls – using a “bundled” rate that includes a 40% kickback. [See: PLN, Feb. 2009, p.27; Nov. 2007, p.11]. Thus, for a 15-minute collect interstate call, Securus charges $6.45 in Texas prisons versus $7.50 in Maryland and $17.30 in Alaska. Such disparities further demonstrate the arbitrary nature of prison phone rates among the states, even when provided by the same company.
Maine is unique in that its Department of Corrections supplies phone services for prisoners through the state’s Office of Information Technology. That does not mean Maine has forgone making a profit off prisoners’ phone calls, though, as the DOC receives an effective 22% commission from collect calls and the charged rates are comparable with those in states that accept commission payments.
In 2007 the Public Utilities Commission held the Maine DOC was a public utility under state law since it was providing phone services, and ordered the DOC to file its rate schedule with the Commission. However, the DOC appealed and the Maine Supreme Court ruled on April 21, 2009 that the DOC was not a public utility and thus not subject to regulation by the Commission. See: DOC v. Public Utilities Commission, 968 A.2d 1047 (Maine 2009).
Iowa has a system in which prison phone services are provided through the Iowa Communications Network (ICN), a state agency, which in turn contracts with PCS. The Iowa DOC only permits debit calls, and instead of receiving a percentage-based commission the DOC keeps all of the revenue generated after paying ICN and PCS for phone usage charges. Prison phone rates in Iowa are comparable to those in states that receive kickbacks.
In Oklahoma, a prison actually closed in 2003 due to excessively high phone rates. The North Fork Correctional Facility, located in Sayre and operated by Corrections Corp. of America (CCA), housed almost 1,000 Wisconsin prisoners. Long distance calls from the facility were $3.95 + $.89/minute, and Sayre received a 25-42% commission that amounted to $656,000 annually – nearly equal to the city’s entire budget before the private prison opened. When Wisconsin officials pressured CCA and Sayre officials for lower rates, AT&T, the prison’s phone service provider, refused. Unable to renegotiate the rates under the city’s contract with AT&T, Wisconsin transferred all its prisoners to a different CCA facility. [See: PLN, March 2004, p.14].
“We find it hard to believe that they would shut down the prison over telephone rates. We had no interest in shutting the prison down,” said AT&T spokesman Kerry Hibbs. But that is exactly what happened, despite AT&T’s last-minute cancellation of its contract with Sayre in an effort to forestall the prison’s closure and the loss of 225 jobs. “Everyone tried to get those rates lowered,” said CCA vice president Louise Grant. “It was not done.”
Such is the power of profitable prison phone revenues. CCA’s North Fork facility has since reopened, presumably with lower phone rates.
Florida – A State in Flux
Florida prisoners have enjoyed affordable phone rates since April 2006, when then-DOC Commissioner James McDonough reduced the cost of prison phone calls by about 30%. [See: PLN, Oct. 2006, p.24]. Soon, however, they may receive a rude wake-up call. In 2009 the Florida legislature passed a bill (S.B. 2626) that removed rate caps for all providers of “operator services” in the state.
On September 24, 2009, the Florida Public Service Commission (in Docket No. 060476-TL) ruled that prison phone calls should be included in the class of services that would no longer have a rate cap. Eight companies, including GTL, PCS, Embarq Florida, Evercom Systems and T-Netix, had argued in favor of removing the rate caps.
Under Florida’s prison phone service contract with Securus, the state’s recent annual kickback was $3 million and phone charges were substantially lower following McDonough’s rate reduction. It remains to be seen whether Securus’ current rate of $.50 for local collect calls, and $1.20 + $.04/minute for intrastate and interstate calls, will continue once the rate caps are removed.
If Florida county jails are any indication, the phone rates charged to prisoners’ families are far from rational. In Monroe County, local calls are billed at $2.25 and long distance calls cost $1.75 + $.30/minute. The funds obtained by the Monroe County Sheriff’s Office from its phone system are deposited into the inmate welfare account to pay for board games, television and other items used for the benefit of prisoners. The jail contracts with ICSolutions, Inc.
Other Florida county jail phone rates include: Escambia County, local $2.25, intrastate $1.75 + $0.30/minute, interstate $4.99 + $0.89/minute; Lake County, local $2.25, interstate $3.95 + $0.45/minute; Gadsden County, local $2.25, intrastate $1.85 + $.50/minute, interstate $2.85 + $.50/minute; and Broward County, local $2.35, intrastate $1.75 + $0.30/minute, interstate $3.66 + $0.59/minute. Broward County, which contracts with Securus, receives a 58.5% commission on prisoners’ phone calls.
Thus, Florida jail prisoners are subject to long distance rates ranging from $6.25 to $18.34 for a 15-minute collect call at the above facilities, representing an almost 300% difference between the lowest and highest rates, even when such calls are made from jails within the same state.
PLN Sues to Obtain Phone Contract Data
While most of the states contacted by PLN provided their prison phone contract data pursuant to public records requests, albeit sometimes grudgingly, one did not. Mississippi refused to produce a copy of its phone contract with GTL or any data concerning GTL’s commissions paid to the state.
A court ruling in a previous case filed by one of GTL’s competitors had resulted in a protective order sealing the contract and related kickback commission data, despite the fact that the contract involved a public, taxpayer-funded agency – the Department of Corrections.
PLN filed suit against the Mississippi DOC and GTL on March 10, 2009 seeking disclosure of the prison phone contract and commission data, noting that the state’s public records act specifies that “all public records are ... public property, and any person shall have the right to inspect, copy or obtain a reproduction of any public records of any public body.”
“Contracts entered into by the state which involve public funds are public documents,” stated PLN editor Paul Wright. “As such, the prison phone contract and commission information must be produced pursuant to Mississippi’s public records act, and Global Tel*Link, a private for-profit company, cannot hide such documents from members of the public. Such secrecy is unacceptable and contrary to public policy.” GTL agreed to settle the case in June 2009 by producing a copy of its contract with the State of Mississippi and associated commission data. Those records revealed that GTL paid the state a 55.6% commission – one of the highest in the nation – amounting to $2.8 million in 2008.
PLN was represented by Jackson, Mississippi attorneys Robert B. McDuff and Sibyl C. Byrd. See: PLN v. Mississippi Dept. of Corrections, Chancery Court of Hinds County (MS), Case No. G 2009 391 I. [PLN, May 2010, p.8].
What Happens Without Kickbacks?
The prison phone contract data obtained by PLN provides a before-and-after look at phone rates in several states that have banned, limited or reduced their kickback commissions. The comparisons are telling.
The New Mexico DOC stopped accepting commissions in 2001 following the enactment of House Bill 13, which specified that contracts “to provide inmates with access to telecommunications services in a correctional facility or jail shall not include a commission or other payment to the operator of the correctional facility or jail based upon amounts billed by the telecommunications provider for telephone calls made by inmates in the correctional facility or jail.” N.M. Stat. Ann. § 33-14-1.
New Mexico previously had a 48.25% commission rate, and before House Bill 13 went into effect the DOC’s intrastate phone rate was $1.80 + $.22/minute for collect calls. Following House Bill 13 the intrastate rate dropped to $1.75 + $.125-$.175/minute – a modest but significant decrease of 14.2% to 28.9% for a 15-minute call. Local and interstate call rates could not be compared due to a lack of pre-2001 data. New Mexico still has high phone rates in comparison with other states that no longer accept commission payments, though.
The State of New York faced (ultimately unsuccessful) legal challenges to its exorbitant prison phone rates, plus a concerted advocacy campaign involving the New York Campaign for Telephone Justice, Prison Families of New York, Inc. and other organizations. On July 19, 2007, then-Governor Eliot Spitzer signed the Family Connections Bill, which prohibited kickback commissions and required the DOC to contract with telephone service providers based on the lowest cost. [See: PLN, April 2007, p.20].
Previously, New York had received a commission of 57.5% to 60%, the highest in the nation at the time, which generated $200 million in kickback payments from 1996 through 2007. The no-commission statute went into effect in 2008, and under a new contract with Unisys and VAC, New York prisons now have some of the lowest phone rates in the country – a flat $.048/minute for any type of call (i.e., $.72 per 15-minute call whether local, intrastate or interstate).
Before banning kickback commissions, New York’s prison phone rates were $1.28 + $.068/minute for all categories of collect calls (i.e., $2.30 per 15-minute call whether local, intrastate or interstate). Thus, after the commissions ended, the rates dropped 68.7% based on a 15-minute collect call.
In August 2008, Michigan ended its practice of accepting kickback payments from prison phone service providers as a result of legislative action. Under the state’s no-commission contract with Embarq, rates decreased significantly to $.12/minute for local and intrastate calls and $.15/minute for interstate calls, with no connection charge. The new rates represent a 10% price drop for local calls, a 77% drop for intrastate calls and an amazing 87% drop for interstate calls from the previous commission-based rates of $2.00 local, $2.95 + $.325/minute intrastate and $3.99 + $.89/minute interstate.
Michigan’s prison phone contract has since been bid to PCS, now owned by GTL, but the current low rates remain in effect until a new rate structure is developed. Prior to ending its phone kickbacks, the state received a 50.99% commission that generated $10.2 million in FY 2007.
South Carolina’s legislature banned prison phone kickbacks as part of a 2007-2008 appropriations bill, stating, “the State shall forego any commissions or revenues for the provision of pay telephones in institutions of the Department of Corrections and the Department of Juvenile Justice for use by inmates. The State Budget and Control Board shall ensure that the telephone rates charged by vendors for the use of those telephones must be reduced to reflect this foregone state revenue.” S.C. Code of Laws § 10-1-210.
The bill was introduced by Republican Senator W. Greg Ryberg, a member of the Senate Corrections and Penology Committee, upon the request of the South Carolina DOC. Prior to the ban on kickbacks, South Carolina’s prison phone rates were $.76 for local calls, $1.73 + $.22/minute intrastate and $1.89 + $.22/minute interstate.
The new no-commission rates, effective April 1, 2008, were $.50 for local calls (a 34.2% reduction), $1.00 + $.15/minute for intrastate calls (a 35.4% reduction) and $1.25 + $.15/minute for interstate calls (a 32.5% reduction), with the rate decreases based on a 15-minute call. Under its previous commission-based contract, South Carolina received $1.2 million in FY 2008.
California is phasing out prison phone kickbacks effective by the end of the 2010-2011 fiscal year. Phone rates for California prisoners have been dropping since late 2007, and in early 2011 were down to the final rate of $.58 + $.058/minute for local calls, $.77 + $.084/minute for intrastate calls and $1.52 + $.342/minute for interstate calls, according to the state’s Inmate/Ward Telephone System Contract.
California’s commission-based rates prior to August 2007, when the kickbacks began to be phased out, were $1.50 + $.15/minute for local calls, $2.00 + $.22/minute intrastate and $3.95 + $.89/minute interstate (the rates in the accompanying chart reflect the initial rate reduction for 2007-2008). The new phone charges as of 2010-2011 thus represent a price drop of 61% for 15-minute local, intrastate and interstate collect calls compared with the rates before the state began to phase out commission payments.
This is yet another example of how banning kickbacks translates to lower phone rates. California prohibited prison phone commissions as a result of state legislation, S.B. 81, enacted during the 2007-2008 session.
Notably, states do not have to eliminate payments from prison phone companies entirely to achieve lower phone rates, as evidenced by Missouri, which has low rates of $1.00 + $.10/minute. While no longer accepting commissions, the state requires its phone service provider to cover the cost of 21 staff positions for monitoring prisoners’ calls (about $800,000 to $900,000 annually). Previously, Missouri had received a 55% commission before eliminating prison phone kickbacks in April 1999.
New Hampshire limited its maximum commission rate to 20% and imposed rate caps in a 2006 RFP issued by the state’s Division of Plant and Property Management, which resulted in fairly low rates of $1.20 + $.10/minute for prison phone calls. Montana, Kansas and Arkansas have also reduced but not eliminated their kickback commissions, with lower phone rates as a result.
Following a July 2010 RFP, the Montana Department of Corrections contracted with Oregon-based Telmate, LLC to provide prison phone services. By state statute, all commissions from the phone system must go to the inmate welfare fund. The DOC determined that $23,000 per month was sufficient to maintain the fund, and “[t]he RFP was written with the requirement that the commissions only generate enough to maintain the inmate welfare fund. This allowed the vendors responding to the RFP to focus on the rate of the call and not how much money could be generated by commissions.”
The Montana DOC’s phone rates under its prior contract with PCS, as reflected in the chart accompanying this article, were $2.75 + $.20/minute for local, intrastate and interstate calls. Telmate’s rates, pursuant to its limited-commission contract (which has a maximum kickback of 25%), are $.24 + $.12/minute for local, intrastate and interstate calls. This represents a 64.5% reduction from the previous rates for a 15-minute call.
When the Kansas DOC entered into a new telephone contract with Embarq in January 2008, Kansas Secretary of Corrections Roger Werholtz stated, “It is important for inmates to be able to maintain contact with their families and friends. We have recognized for many years that the cost of the phone calls inmates make from our correctional facilities has created a financial hardship for their families, and I am pleased that the new contract will help reduce those costs.”
The state’s new contract with Embarq included a kickback of 41.3% and a minimum guaranteed annual commission of $1,057,000, compared with the 48.25% kickback and minimum $2,750,000 annual commission in the DOC’s prior contract with Securus/T-Netix. Embarq’s new collect call rates are $2.61 for local calls, $1.96 + $.41/minute intrastate and $1.70 + $.40/minute interstate. Under the previous higher-commission contract the collect call rates were $4.35 local, $3.26 + $.69/minute intrastate and $2.84 + $.66/minute interstate. Thus, under its reduced-commission contract with Embarq, the Kansas DOC’s phone rates dropped by 40% across the board.
And when the Arkansas DOC contracted with GTL in February 2007, the company initially offered a 55% commission with phone rates of $3.00 + $.24/minute for local and intrastate calls, and $3.95 + $.89/minute for interstate calls. Arkansas officials instead considered two alternative rate proposals, one with a 50.75% commission that had a 25% decrease in the per-minute call rates, and the other with a 45% commission that included a 50% decrease in per-minute rates.
The Arkansas DOC selected the 45% commission with lowest per-minute rates ($3.00 + $.12/minute for local and intrastate, and $3.95 + $.45/minute interstate), noting that “while our annual revenues may decrease, we believe this would be a good faith effort to reduce the financial burden on inmate [sic] families.” Although the phone rates for Arkansas prisoners still remain high, they are not as high as they could have been had the DOC decided to maximize its commission rate.
The above examples send a clear message that prisoners and their families and advocates should seek both administrative and legislative changes to ban, limit or reduce kickbacks, and encourage prison systems to contract with the lowest bidder for phone services. While it seems a Herculean task to convince state officials to forgo millions of dollars in phone revenues, and indeed legislation to reduce prison phone rates has failed in a number of states, it is not impossible and there have been several success stories beyond the states that have already banned kickbacks.
According to the Equitable Telephone Charges (eTc) Campaign, a project of National CURE that advocates for prison phone rate reform, Arkansas selected a lower commission and phone rates in 2007, as described above, due to efforts by prisoners’ advocacy groups and threatened legislation to eliminate the commissions entirely.
Also, an effort to impose a $2.00 fee on local calls from Alaskan prisons was scuttled as a result of public opposition. The Alaska DOC had announced that the fee would go into effect on September 1, 2008 under a new prison phone contract with Securus. Previously, prisoners could make local calls at no cost.
The Regulatory Commission of Alaska received a number of complaints concerning the $2.00 per-call charge and opened an investigation, stating “that doubt exists as to the reasonableness” of the fee. The proposed local call charge was withdrawn in January 2009, even though Securus had estimated that based on historical call volume the $2.00 fee “could add [gross] revenues of $4,661,808 annually.” Local calls remain free for Alaskan prisoners.
In short, the magnitude of harm caused by typical prison phone contracts that include kickbacks, and thus higher phone rates, is most apparent when comparing rates in the states that accept commissions with those that do not.
Prison Phone Rates on the Federal Level
The federal Bureau of Prisons (BOP) has moved to a debit-based phone system called the Inmate Telephone System (ITS), in which prisoners pay for calls from their institutional accounts, though they can also make collect calls to approved numbers. The system has all of the usual security features but in most cases has resulted in savings to prisoners and their families.
Rates are as low as $.06/minute for local debit calls and $.23/minute for long distance debit calls. However, collect long distance rates are still pricey at $2.45 + $.40/minute ($8.45 for a 15-minute interstate collect call). Intrastate rates are capped at 90% of the applicable state-regulated phone rates, which vary.
BOP prisoners are limited to 300 minutes of calling time per month (400 in November and December), and phone calls are limited to 15 minutes. The ITS was implemented following a settlement in a federal class-action lawsuit, Washington v. Reno, in November 1995. [See: PLN, Sept. 1996, p.16; March 1995, p.4; Nov. 1994, p.10; March 1994, p.1].
The BOP entered into a 3-year contract with Unisys in 2005 to install and operate a new generation of the ITS (ITS-3, also known as TRUFONE) at more than 100 federal correctional facilities; the contract had an estimated value of $37 million, not including three one-year optional extensions. The BOP declined to provide its phone commission data during PLN’s recent survey.
In Congress, legislation to require the FCC to prescribe rules regulating prison phone services, titled the Family Telephone Connection Protection Act, was introduced by U.S. Rep. Bobby Rush in 2005, 2007 and 2009, but was never enacted.
Another piece of federal legislation, the Cell Phone Contraband Act (S.1749), signed into law by President Obama on August 10, 2010, makes it a crime for federal prisoners to possess a cell phone. The law also includes a little-known provision that requires the Government Accountability Office (GAO) to study the BOP’s phone rates and investigate less expensive alternatives.
In regard to federal oversight of prison phone services, PLN has asked the FCC to address excessive overcharging relative to interstate prison phone calls as part of the Wright petition – a rulemaking proposal pending before the FCC (CC Docket No. 96-128). The petition stems from a long-standing federal lawsuit challenging exorbitant phone rates, Wright v. Corrections Corp. of America. [See: PLN, April 2004, p.39].
An alternative rulemaking proposal, submitted in the Wright petition in March 2007, suggests a rate cap of $.25/minute for all interstate collect calls and $.20/minute for all interstate debit calls made by prisoners. Thus far the FCC has taken no action on the Wright petition since it was originally filed in 2003, despite having acknowledged in a prior proceeding that “the recipients of collect calls from inmates … require additional safeguards to avoid being charged excessive rates from a monopoly provider.”
Legal Challenges Mostly Unsuccessful
Lawsuits challenging exorbitant prison phone rates have met with little success. In Walton v. NY DOCS, 18 Misc.3d 775, 849 N.Y.S.2d 395 (N.Y.Sup. 2007), the court held that New York’s then-57.5% kickback commission did not violate the constitutional rights of prisoners’ families. [See: PLN, Oct. 2008, p.24; April 2007, p.20]. This finding was upheld by New York’s highest court, the Court of Appeals, in 2009. See: Walton v. NY DOCS, 13 N.Y.3d 475, 921 N.E.2d 145 (N.Y. 2009) [PLN, Aug. 2010, p.18].
An Indiana appellate court denied an appeal in a class-action suit by prisoners’ families raising similar issues. See: Alexander v. Marion County Sheriff, 891 N.E.2d 87 (Ind.Ct.App. 2008) [PLN, June 2009, p.28]. New Mexico’s Supreme Court upheld the dismissal of a lawsuit challenging prison phone rates in 2002 [See: PLN, June 2003, p.17], as did New Hampshire’s Supreme Court that same year, in Guglielmo v. WorldCom, Inc., 148 N.H. 309, 808 A.2d 65 (N.H. 2002). Further, the Eighth Circuit Court of Appeals affirmed the dismissal of an excessive prison phone rate complaint in Gilmore v. County of Douglas, 406 F.3d 935 (8th Cir. 2005).
Such legal actions typically run afoul of the “filed rate doctrine,” which holds that once a telecommunications company files its rate structure (tariffs) with an appropriate regulatory agency, and then adheres to those rates, it is insulated from court challenges. [See, e.g.: PLN, Jan. 2005, p.6].
A nationwide class-action suit was filed against GTL in California in August 2010, claiming the company exploited its customers “by charging them [] exorbitant, undisclosed per-minute rates (often in excess of $1.00/minute) and excessive service charges,” including undisclosed fees for depositing money into prepaid phone accounts. The suit settled under confidential terms before a class was certified. [See: PLN, March 2011, p.38].
An Ohio federal court ruled in 2003 that recipients of collect calls from Ohio prisoners could pursue claims against counties and prison phone service providers alleging that unreasonably high rates violated their equal protection, freedom of speech and associational rights. Claims against the State of Ohio, as well as antitrust and telecommunications statute claims, were dismissed. Soon after that ruling the case was stayed pending the resolution of bankruptcy proceedings involving WorldCom, Inc., and no further action was taken by the court. See: McGuire v. Ameritech Services, Inc., 253 F.Supp.2d 988 (S.D. Ohio 2003).
In 2001, the Seventh Circuit Court of Appeals held that Illinois officials did not violate the rights of prisoners or their families by granting phone companies a monopoly on collect phone services at particular prisons in exchange for commission payments. The appellate court found that exorbitant telephone rates did not violate the First Amendment, the kickback payments did not result in unconstitutional takings or violate antitrust laws, and equal protection and due process claims were barred due to the doctrine of primary jurisdiction. See: Arsberry v. State of Illinois, 244 F.3d 558 (7th Cir. 2001), cert. denied. [PLN, May 2002, p.12; Feb. 2001, p.19; June 2000, p.19; Aug. 1999, p.10].
In Michigan, a U.S. District Court dismissed a suit concerning prison phone rates, holding that the filed-rate doctrine barred challenges to the fairness of the rates charged; that the FCC had primary jurisdiction; that the plaintiffs failed to state a claim for rate discrimination; that the state was immune from liability; and that state regulatory and consumer protection law claims were pre-empted by federal statutes. See: Miranda v. Michigan, 141 F.Supp.2d 747 (E.D. MI 2001) and Miranda v. Michigan, 168 F.Supp.2d 685 (E.D. MI 2001) [PLN, May 2002, p.12].
The Ninth Circuit Court of Appeals rejected prisoners’ claims that higher phone charges were the result of a “conspiracy” between a warden and the telephone companies, finding that prisoners did not have any constitutional right to particular phone rates. See: Johnson v. State of California, 207 F.3d 650 (9th Cir. 2000) [PLN, Nov. 2001, p.22].
Even legal challenges by alternative prison phone service providers that offer lower-cost calling options have failed, such as a lawsuit filed against Securus, T-Netix, Evercom and GTL by Millicorp, a Florida-based company that has a Voice Over Internet Protocol (VOIP) subsidiary called “Cons Call Home.” Securus, et al. were accused of blocking calls to VOIP numbers set up by Millicorp for prisoners’ families. The suit was dismissed in April 2010 under a procedural rule of the federal Telecommunications Act. [See: PLN, May 2010, p.48].
Regulation by State Agencies
Some actions before state regulatory agencies have had greater success. The Utilities Consumer Action Network filed a complaint against MCI with the California Public Utilities Commission over irregularities in the company’s billing practices and quality of service for calls originating from California prisons. In a 2001 settlement, MCI agreed to refund more than $520,000 in illegal overcharges to families of California prisoners. [See: PLN, Nov. 2001, p.19].
This followed a pattern of state regulatory actions and settlements dating from the early 1990s that saw a number of telecommunications companies fined and ordered to pay refunds due to illegal prison phone call billings.
In Louisiana, the state Public Service Commission ordered GTL to refund $1.2 million in overcharges from June 1993 to May 1994. In 1996, North American Intelecom agreed to refund $400,000 overcharged to members of the public who accepted prisoners’ phone calls, following an investigation by the Florida Public Service Commission. The following year the Commission ordered MCI to refund almost $2 million in overcharges on collect calls made from Florida state prisons. [See: PLN, Aug. 1998, p.8; March 1997, p.12; Sept. 1996, p.13].
More recently, in Washington state, AT&T agreed in December 2007 to pay over $300,000 in fines for overcharging prisoners’ families for calls made from the Airway Heights state prison and Washington State Penitentiary. Families were eligible to receive refunds for an estimated $67,295 in overcharges. [See: PLN, March 2008, p.34].
Florida’s Public Service Commission ordered TCG Public Communications, Inc., previously a subsidiary of AT&T before being acquired by GTL, to pay $1.25 million to settle overbilling complaints at the Miami-Dade Pretrial Detention Center from 2004 through 2007. The settlement, approved in August 2009, provided for the $1.25 million to be paid to the state’s general revenue fund; prisoners’ families who were overcharged received nothing. [See: PLN, Feb. 2010, p.49; April 2009, p.38].
A lawsuit filed in 2000 challenging the lack of notice to consumers who accepted high-priced collect calls from Washington prisoners remains pending in Washington state court. After more than a decade of litigation before the state superior, appellate and supreme courts, and before the state utilities commission, the case boiled down to T-Netix and AT&T arguing over which company was responsible for providing notice to the call recipients. On April 21, 2010, the utilities commission held it was AT&T. Between 2000 and 2010 PLN has run five articles related to this case, which is now set for trial. See: Judd v. AT&T, 136 Wash App 1022 (2006) [PLN, Dec. 2010, p.16; March 2007, p.38].
Most of the time, though, state regulatory agencies take little interest in prison phone services so long as the rates charged are within established rate caps – which are typically set very high. Rather, state public utility or service commissions tend to get involved only when prison phone companies overcharge, impose illegal fees or otherwise violate state regulations. This assumes that such regulatory agencies have jurisdiction over prison phone service providers. In at least two states, Colorado and Virginia, they do not. [See: PLN, Aug. 2004, p.44; March 2003, p.12; Nov. 1998, p.23].
There are exceptions, of course, where state regulatory agencies have intervened to set lower rate caps for calls made by prisoners, such as in Kentucky, or to investigate proposed prison phone rate hikes, as in Alaska. A larger problem is that in some cases the utility commissions are largely co-opted by the industries they purport to regulate, with conflicts of interest and a revolving door in which commission staff are later hired by the companies they oversaw.
When former Florida Public Service Commission chairwoman Nancy Argenziano resigned in September 2010, she condemned “the corruption, the bought-and-sold nature of everything related to the operation of the PSC.” She noted there was a “universal expectation that if you audition well, PSC employees and commissioners will be rewarded with lucrative jobs with the utilities,” indicating a thin line exists between the regulators and the regulated.
The Purpose of Prison Phone Services
Government officials who approve prison phone contracts that include kickbacks and excessively high rates apparently forget why prisoners are afforded phone access in the first place. For one, there is a widely-known and researched correlation between prisoners who maintain contact with their families and those who are successful in staying out of prison after they are released. This, in turn, benefits the community by reducing costs associated with recidivism.
According to Prof. Steven Jackson, “recidivism and community impact studies, some of which were used to justify the introduction of prison calling in the first place[,] ... have found that a powerful predictor of re-offending is the failure to maintain family and community contact while incarcerated.”
For example, a research brief by the Jane Addams Center for Social Policy and Research at the University of Illinois at Chicago, published in 2004, observed that “Family roles and relationships are important in reentry planning, whether or not they are explicitly articulated in formal policies and program documents. Family connections and other social networks impact not only families’ and children’s well-being but also the achievement of social goals such as the reduction of crime and the building of vibrant communities.”
Policy changes that can make a difference in maintaining prisoners’ family relationships include making “telephone access to families and friends a basic prison program that is run with attention to the same cost efficiency and cost containment rules that are used for other prison operations.” The research brief noted that exorbitant “government sanctioned telephone rates are abusive and take advantage of families’ reliance on telephones as a primary means of communication during incarceration.”
And according to a 2004 study by the Washington, D.C.-based Urban Institute, “Our analysis found that [released prisoners] with closer family relationships, stronger family support, and fewer negative dynamics in relationships with intimate partners were more likely to have worked after release and were less likely to have used drugs.” The study’s authors, Christy Visher, Vera Kachnowski, Nancy La Vigne and Jeremy Travis, concluded that “[i]t is evident that family support, when it exists, is a strong asset that can be brought to the table in the reentry planning process.”
Such findings have been recognized by corrections officials. The federal Bureau of Prisons states that “Telephone privileges are a supplemental means of maintaining community and family ties that will contribute to an inmate’s personal development.” (Program Statement 5264.07 (2002), as codified at 28 CFR § 540.100(a)).
When GTL tried to raise phone rates in Tennessee in 2002, then-Tennessee Dept. of Corrections Commissioner Donal Campbell stated, “As you know, maintaining contact with family and friends in the free world is an important part of an inmate’s rehabilitation and preparation to return to the community. Furthermore, telephone privileges are essential in managing inmate populations…. [Rate increases] would hinder both of the aforementioned departmental objectives in addition to creating an undue hardship for inmates’ families.”
According to the Oregon DOC, “Ongoing contact with supportive family and friends is an important part of inmates’ success in prison and upon release.” Also, when South Dakota renewed its contract with FSH in March 2008, Corrections Secretary Tim Reish remarked, “The reduced rates we were able to negotiate will have a positive impact on the inmates’ ability to maintain contact with their loved ones while they are in prison.”
Wisconsin law provides that prison officials “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.” Wis.Admin.Code DOC § 309.39.
And in its final June 8, 2006 report, the Commission on Safety and Abuse in America’s Prisons noted that prison phone rates were “extraordinarily high,” and that lowering the rates would “support family and community bonds.”
For many prisoners, particularly those who are functionally illiterate and cannot rely on written correspondence, phone calls are the primary means of maintaining family ties and parental relationships during their incarceration. This is also true for prisoners whose families cannot travel to distant prisons for in-person visitation. While most prisoners are from urban areas, virtually all prisons built in the last 30 years have been built in rural areas far from where most prisoners originate and will return to upon completing their sentences.
Additionally, prisoners’ families suffer from the increased isolation that attends fewer phone calls from their incarcerated loved ones due to exorbitant phone rates. Often, prisoners come from low-income families that can ill afford grossly high phone bills that sometimes run into hundreds of dollars per month.
Hence, prison phone contracts awarded on the basis of the highest kickback (and thus the highest cost to prisoners’ families) are vindictive and ill-conceived at best, and negatively impact prisoners’ familial relationships and recidivism rates at worst.
Excessive prison phone rates are also detrimental from a security standpoint. Cell phones in prisons and jails have become an epidemic problem for corrections officials, who cite a number of security concerns associated with contraband phones, starting with the corrupt staff who smuggle the cell phones into the prisons. [See: PLN, Feb. 2011, p.40]. Yet the market for cell phones behind bars is driven in part by the exorbitant rates charged by prison phone companies; prisoners use illegal – but much more affordable – cell phones to stay in touch with their families and friends. By reducing institutional phone rates, prison officials would reduce the demand for and associated security risks of contraband cell phones.
Sadly, the societal and security benefits of providing prisoners with more affordable phone rates are trumped by greed for the lucrative kickbacks. Worse, phone commission money is often paid to the contracting state’s prison system or general revenue fund, where it becomes a source of addictive income that makes it difficult to end commission-based contracts. And we’re not talking peanuts, as the kickbacks total more than $152 million annually nationwide. California collected $26 million per year before beginning to phase out its commission payments in 2007; New York pocketed up to $20 million annually before banning kickbacks in 2008.
The truth is told by the numbers: Almost 85% of state prison systems receive kickback payments from telephone service providers at the expense of facilitating more affordable phone calls for prisoners and their families, and in spite of the societal benefits that would inure from lower phone rates.
Prison Phone Contracts as Socially Regressive Policy
According to PLN’s research into prison phone contracts, the bottom line is that (1) the vast majority of states receive kickbacks from phone companies, which result in higher phone rates; (2) these excessive rates further distance prisoners from their families, who can ill afford high phone bills; (3) the larger community is disadvantaged when prisoners are unable to maintain family ties that will help them succeed post-release; and (4) most states profit handsomely, to the tune of over $152 million a year nationwide, from prison phone kickbacks; however, phone rates drop significantly absent such commissions.
Thus, prison phone contracts, except in those few states that have banned or limited kickback commissions, are nothing short of a socially regressive, socioeconomic-based assault on prisoners’ families and the community as a whole. This assault occurs due to the basest of reasons – avarice – by telephone companies and contracting agencies that are willing to sacrifice the known rehabilitative benefits of maintaining prisoners’ relationships with their families in exchange for profitable phone revenue.
PLN has reported on prison phone issues since the early 1990s, and most of the news has been negative. The trend, unfortunately, is for consolidation of the prison phone market – which will further erode competition – and deregulation, as in Florida. PLN supports federal oversight of and rate caps on interstate prison phone services, as well as closer regulation and lower rate caps on the state level. Most significantly, the contracts should be bid on the basis of who can provide the lowest price to the consumer, the direct opposite of what occurs now.
The American Correctional Association, American Bar Association and National Association of Women Judges have voiced support for reforming prison phone rates, and a number of advocacy organizations are involved in this issue – including National CURE, state CURE chapters and the eTc Campaign, the Center for Constitutional Rights, and the Brennan Center for Justice.
The consensus reached by these groups is that to ensure prisoners maintain their family relationships so they have a lesser chance of re-offending after they are released, and to reduce the unfair financial burden placed on prisoners’ families, exorbitant prison phone rates must cease. If prison systems in states ranging from California and New York to Nebraska and South Carolina can reduce their phone rates by forgoing commissions, then there is no reason – except callous greed – why other states cannot do likewise.
PLN extends our thanks and gratitude to the Funding Exchange (www.fex.org), which provided grant funding for PLN’s research into prison phone contracts.
Sources: PLN research data, www.etccampaign.com, http://ccrjustice.org, www.sfreporter.com, www.aclu.org, Global Tel*Link, www.securustech.net, www.vaci.com, www.icsolutions.com, Media Justice Fund of the Funding Exchange, www.pulp.tc/html/inmate_phones.html, www.justice.gov, www.businesswire.com, www.gores.com, www.lvrj.com, New York Times, www.dsiiti.com, www.epsicare.com, Daily Hampshire Gazette, www.juneauempire.com, http://rca.alaska.gov, www.heraldtribune.com, North Carolina Journal of Law & Technology (Vol. 8, Issue 1: Fall 2006)
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