Washington v. Reno
In June and July 1993, inmates at the Federal Medical Center in Lexington, Kentucky (FMC Lexington) filed two lawsuits against BOP, alleging that installation of the new debit-based Inmate Telephone System (ITS) violated their first amendment rights. The inmates sought to enjoin BOP from replacing FMC Lexingtons existing collect-call telephone system with a system that would require inmates to have money in their commissary accounts to pay for telephone calls.54 On July 9, 1993, the district court stayed implementation of ITS at FMC Lexington until the court could address the inmates complaint. On July 22, 1993, the court consolidated the two lawsuits and appointed counsel for the plaintiffs.
One day prior to this case consolidation, BOP published a proposed rule in the Federal Register seeking to amend its rule on Telephone Regulations in order to provide for the operation of a debit billing system for inmates. On August 11, 1993, the plaintiffs filed a motion to show cause why the defendants should not be held in contempt for violating the court's stay order by publishing the proposed regulations and sought to have the proposed rule enjoined. On August 18, 1993, the district court entered a preliminary injunction requiring BOP to hold open the comment period on the proposed rule for an additional 60 days and to consider comments from plaintiffs and their counsel. On September 13, 1993, the district court granted the plaintiffs' request for a temporary restraining order prohibiting BOP from implementing ITS at any additional correctional institutions or charging the commissary fund with any expenses connected to ITS pending a hearing on the complaint.
On September 22, 1993, the plaintiffs filed a motion to certify a nationwide class of inmates. That same day, friends and relatives of the named plaintiffsfiled a motion to intervene as plaintiffs in the case in order to assert claims that their right to privacy had been infringed by BOP rules that require recipients of inmate calls to provide personal background information to prison authorities. In October 1993, the district court granted the plaintiff's motion and expanded the case from a lawsuit affecting FMC Lexington to a nationwide class action.
On October 13, 1993, the district court enjoined BOP from spending any commissary funds on the new telephone system and enjoined further implementation of ITS unless collect call systems also were made available to inmates. The court further ordered BOP to make a collect call system available, within 60 days, to inmates where ITS had already been installed. The court enjoined BOP from limiting telephone privileges of inmates who refused to participate in the Inmate Financial Responsibility Program and from restricting inmate collect calls to numbers on their telephone lists. The court also noted the complete dereliction of BOP in failing to comply with Administrative Procedures Act requirements for amending the existing rules governing inmate telephone use.
On November 15, 1993, BOP filed a motion for partial stay pending appeal of the injunction. The U.S. Court of Appeals for the Sixth Circuit granted the motion on December 7, 1993. The stay allowed BOP to continue operating ITS at institutions where it had been installed prior to October 13, 1993, and allowed BOP to use commissary monies to finance the system's operation. However, the district courts injunction remained in place with respect to institutions in which ITS had not yet been installed.
On April 4, 1994, BOP published in the Federal Register a final rule concerning inmate telephone use. According to BOP, these amendments to the telephone regulations were intended to further the Bureau's core value of sound correctional management both by recognizing the role of inmate financial responsibility and by further minimizing the security problems and criminal activity associated with inmate telephone use. . . . The rule states that the previous regulations had recognized that inmate telephone calls would ordinarily be collect, but that technological developments now made it possible for BOP to install a debit-billing telephone system.
In an opinion issued September 26, 1994, the Sixth Circuit found that BOPs final rule addressed the concerns raised by the plaintiffs and had altered previously existing ITS procedures in response to many of those concerns.55 Consequently, the appellate court considered only the plaintiffs' argument that ITS had a chilling effect on the inmates' and intervening plaintiffs' right to free speech and that use of the Commissary Fund monies to install and operate the system violated the statutory provisions concerning proper use of the Fund. Based on the new rules promulgated by BOP, the appellate court found that the plaintiffs' likelihood of success on the merits of their First Amendment claims was substantially lessened and it vacated the district court's injunction. However, it ruled that BOP could not use inmate commissary trust funds to pay for components of ITS that were primarily for institutional security.
The plaintiffs subsequently filed a motion requesting that BOP be enjoined from implementing the collect-call system it had added to ITS in several institutions to comply with the requirements of the first preliminary injunction. In addition, the inmates asked the court to reinstate the portion of the first injunction that barred the use of the Commissary Fund to pay for ITS equipment and personnel. In February 1995, the district court reinstated the injunction against use of Commissary Fund monies to pay trust fund supervisors and ITS telephone technicians, but declined to enjoin BOP from installing ITS and the collect-call system in new prisons.
In May 1995, BOP entered into mediation with the plaintiff's counsel and reached a settlement agreement that was approved by the district court in November 1995. The agreement provides that BOP will procure a new telephone system with both direct dial debit and collect call features. For four years following the award of the contract for the new telephone system, BOP will allow inmates to make up to 120 minutes of collect calls per month unless they refuse to participate in the Inmate Financial Responsibility Program (FRP) or are detained in a Special Housing Unit.
The settlement agreement does not stipulate the level of debit calling, except that inmates who refuse to participate in the FRP will be allowed 60 minutes of debit calling a month. After a new contract is awarded, all BOP inmates will be limited to an approved calling list of 30 numbers. Inmates may make up to three changes a month to their calling list and these changes must be made within five days by the institution. If, after the four year period, BOP decides to eliminate the collect-calling option, it must publish its intention to do so in the Federal Register and allow time for comment from inmates and the public.
The settlement agreement also stipulated that from the settlement date until the time the new telephone system was implemented, BOP would operate an inmate telephone system substantially equivalent to the system in existence at each institution prior to the courts injunction. Attached to the settlement agreement are lists of: 1) institutions with the former collect calling telephone system that does not restrict the number of collect calls or require that numbers be placed on an inmate's official telephone list (the Unlimited Collect Calling institutions); 2) institutions that provide debit calls, do not provide unlimited collect calling, and limit telephone calls to numbers on the inmate's official telephone list (the Debit Calling institutions); and 3) institutions that provide debit calls, permit inmates to make an unlimited amount of collect telephone calls, and limit telephone calls to numbers on the inmate's official telephone list (the Debit/Collect Calling institutions). New institutions were to be opened as Debit/Collect Calling institutions as soon as practicable.
BOP acknowledged in the settlement agreement that it has no policy or practice of precluding inmates from making international collect calls. BOP agreed to solicit bids for international debit and collect calling when it solicited bids forthe new ITS, but was not required under the agreement to guarantee that the successful bidder would provide international collect calls.
Under the agreement, rates for debit calling charged to the inmates are not to exceed the highest debit rates charged to inmates in the state correctional facility having the highest debit telephone rates. BOP also agreed to credit $4.0 million dollars to the Commissary Fund to be used for any purpose not prohibited by BOP policy that accrues to the benefit of the inmate body as a whole. BOP also agreed to credit to the Commissary Fund an amount equal to 50 percent of the salaries and benefits of the Trust Fund supervisors for as long as the supervisors have responsibilities for supervising non-commissary and non-Trust Fund functions.
Finally, and perhaps most importantly for the purposes of this review, the settlement agreement stipulates that it does not limit or interfere with the discretion of the Bureau of Prisons and the Wardens of correctional institutions operated by the Bureau of Prisons to limit inmate telephone privileges . . . to maintain the security or good order of the institution, or to protect the public, . . . or as a disciplinary sanction. . . .
The settlement agreement will remain in effect until approximately January 2002, four years after BOP awarded the contract for the new inmate telephone system to GTE. Class members who believe that BOP has not complied with the agreement are required to pursue a number of possible administrative remedies, but ultimately can file an action to enforce the settlement agreement in the United States District Court for the Eastern District of Kentucky.
ITS II Features
In addition to basic fraud and investigative control features, ITS II also has several advanced capabilities. First, all calls placed by inmates will be branded. This means that a recording will be played during the telephone call stating that the call is being made from a federal correctional institution. According to the Chief of the ITS Section, David Woody, this feature will be included in the basic class of service provided to all institutions. The announcement will be made at the start of each call and then at random intervals during the call. This feature will help curb inmate fraud schemes by ensuring that recipients of any calls from inmates know that call is being made by an inmate from a federal prison.
With ITS II, the SIS office at each institution will have the ability to turn on the alert function in order to monitor inmates of special concern without going through the ITS business office. With ITS I, the alert function could only be turned on by the business office.
ITS II also offers a call denial feature that allows the called party to reject telephone calls from inmates without being intimidated to accept the call. This is accomplished through the call-branding feature and a delay in connection time that will allow the called party time to hang up. In addition, called parties are informed by a recording that they can press a number on their telephone keypad to prevent future calls from that inmate. BOP sees this feature as a potential replacement for the current practice of sending out notice letters to individuals placed on an inmates calling list.
Another advantage of ITS II, and more specifically of having a centralized telephone system, is that ITS II creates a BOP-wide database of numbers called by inmates. This will allow BOP to compare, search, and identify common telephone numbers called, or numbers on more than one inmate's calling list, for inmates at every BOP institution.
ITS II also will provide improved inmate telephone call reports that can be more easily produced by BOP staff in each institution. These reports will be used by the ITS business staff to detect and combat fraudulent activity, and by SIS staff to combat telephone abuse.
ITS II reports will include:
According to the BOP, ITS II has the capability to identify certain types of three-way calls. The calls that can be detected are those that make a click when the three-way call is completed or the call is forwarded. Such clicks do not occur in all types of three-way calls or forwarded calls. According toWoody, the technology is effective on only about 20 percent of calls and even then it is only effective about 80 percent of the time. The detection of the sound requires distinguishing the signal from similar sounds normally made by the inmate's voice and the background noise in the prison. The system can be easily defeated by intentionally making noise at the time of the signal or by other interference on the telephone line. Because the technology is not reliable, if a three-way call is detected, it is not disconnected but simply marked for future review by the SIS. In this way, the system avoids disconnecting legitimate calls. The BOP informed the OIG that three-way calls could be detected more reliably if local telephone companies were required to provide a detectable signal at the time of the implementation of the three-way call or call forwarding.
ITS II can also identify when extra digits are dialed by an inmate, which may indicate an attempt at call forwarding, but it does not have the ability to terminate these calls or notify the telephone monitor when the extra digits are dialed. David Woody told the OIG that BOP is waiting until technology to detect three-way calls is further developed before programming ITS II to disconnect suspected three-way calls.
Information from the FBI: Crimes by Inmates Using Prison Telephones
The following cases were reported by FBI field offices in response to a request from the OIG for information on criminal investigations arising from inmate telephone abuse. The number of FBI investigations listed likely underreports the total number of cases because the FBI does not index cases based on their location (i.e., federal prison) or by use of a prison telephone. Consequently, the field offices responding to our survey relied on staff memories to prepare their responses.
Information from the DEA: Crimes by Inmates Using Prison Telephones
The following cases were reported by DEA field offices in response to a request from the OIG for information on criminal investigations arising from inmate telephone abuse. The number of DEA investigations listed likely underreports the total number of cases because the DEA does not index cases based on their location (i.e., federal prison) or by use of a prison telephone. Consequently, the field offices responding to our survey relied on staff memories to prepare their responses.
Legal Analysis: Restrictions on inmate Correspondence as a Matter of Classification
We found only one case that examines the constitutionality of Section 540.15. In Gilliam v. Quinlan, 608 F. Supp. 823 (S.D. NY 1985), an inmate sued BOP for restricting his mailing privileges under Section 540.15 and claimed violation of his first amendment rights. The inmate was notified that he was being placed on a restricted mailing list because a witness had informed prison officials that he had sent her threatening letters. The notice informed the inmate that he was permitted to correspond with his mother and sister but had to seek prison officials' approval if he wished to correspond with others.
The court in Gilliam cited two prior cases in which prison officials had limited inmate correspondence. In Schlobohm v. United States Attorney General, 479 F. Supp. 401 (M.D. Pa. 1979), an inmate was disciplined and placed on a restricted mailing list for violating the correspondence regulations by corresponding with an inmate at another penal institution. The district court found the regulation prohibiting inmate-to-inmate correspondence to be constitutional. It further found that an indefinite mail restriction was a valid use of the prison administration's disciplinary power. The Gilliam court cited another case in which the Middle District of Pennsylvania struck a different balance a year later. In Intersimone v. Carlson, 512 F. Supp. 526 (M.D. Pa. 1980), the prison administration placed an inmate on restricted general correspondence at the sentencing judge's request because the inmate had continually attempted to communicate with the jurors who had convicted him, notwithstanding the judge's order not to do so. The court found that prison officials had a legitimate purpose in restricting the inmate's correspondence, but that the general restriction was an unreasonable, arbitrary and purposeless infringement of the First Amendment. 512 F. Supp at 530. The court concluded that a mutual accommodation between the First Amendment and the government's interest in preserving the jury system could have been achieved merely by prohibiting Plaintiff from sending correspondence to jurors in the criminal trial. Id.
The district court in Gilliam used the standard articulated in Procunier v. Martinez, 416 U.S. 396, 413 (1974), to determine whether regulations infringing on a prisoner's right to communicate with others by mail furthers an important or substantial governmental interest unrelated to the suppression of expression and is no greater than is necessary or essential to the protection of the particular governmental interest. The court held, however, that it did not need to decide the extent of the plaintiff's First Amendment rights or whether the regulation was unconstitutional on its face or as applied to the plaintiff. The court concluded only that the plaintiff had not failed to state a constitutionally cognizable claim in his complaint and that prison officials had not offered a sufficiently cogent justification for application of the regulation to the plaintiff to obtain summary judgment on the merits. The court then granted BOP's motion for summary judgment on other grounds. 608 F. Supp. at 836.56
Since the time of these opinions, however, the Supreme Court has crafted a different standard for the review of prison administrative decisions. As discussed in Chapter 3, in Turner v. Safley, 428 U.S. 78 (1987), the Supreme Court held that when a prison regulation impinges on an inmate's constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.57 The Supreme Court held that such a standard is necessary if prisonadministrators, and not the courts, are to make the difficult judgments concerning institutional operations. Subjecting the day-to-day judgments of prison officials to an inflexible strict scrutiny analysis would seriously hamper their ability to anticipate security problems and to adopt innovative solutions to the intractable problems of prison administration. Id.
The Seventh Circuit case of U.S. v. Sotelo, 94 F.3d 1037 (7th Cir. 1996) is the only case we found to have discussed Section 540.15 since the Turner v. Safley decision. In Sotelo, however, the court found that the district court did not have authority to order restrictions on an inmate's communications with the outside world, but that BOP has authority to order such restrictions under 540.15(a)(5). The court then held that the issue of the constitutionality of any potential restrictions by the BOP were not yet ripe for review. 94 F.3d at 1041, fn. 3.
54According to Federal Programs attorneys and BOP officials, the inmates were a very sympathetic group of women concerned about keeping in touch with their spouses and children. They were not, in many respects, "typical" BOP inmates.
55 The plaintiffs conceded at oral argument before the Sixth Circuit that, with promulgation of the new rule, their due process and Administrative Procedures Act claims were no longer relevant as bases for entry of a preliminary injunction.
56 Other cases addressing the issue of restricted correspondence stem from court orders limiting correspondence and not from prison limitations. See e.g., Guajardo v. Estelle, 580 F.2d 748 (5th Cir. 1978)(regulations in Texas state prisons restricting all inmates to correspondence with family and up to ten other persons with prior approval of the institution was a prior restraint and violated the inmates' First Amendment rights); United States v. Wheeler, 640 F.2d 1116 (9th Cir. 1981)(on remand, the district court should consider the necessity of restricting the inmate's communications with ten named individuals and whether there were available alternatives to such restrictions); United States v. Holloway, 740 F.2d 1373 (6th Cir. 1984)(district court order that the inmate not communicate with anyone in prison during her incarceration was "likely to aid rehabilitation by denying her access to the cause and instrumentality of her crime and also protects the public from future tax frauds," but that order that she could communicate only with her relatives, legal counsel and other recognized counselors imposed a restriction on the inmate which, "because of its breadth, does not bear a logical relationship to the criminal conduct in which has engaged."
57 Although most cases reviewing prison regulations use the Turner v. Safley standard, the court in Washington v. Reno, 35 F.3d 1093, 1099 (6th Cir. 1994), seemed to express some doubt when it found that it was not necessary to resolve the issue of whether thegovernment must establish only that a restriction on an inmate's rights "is reasonably related to legitimate penological interests," Turner v. Safley, 482 U.S. 78, 89 (1987) (deferential standard applied to communication entering an institution), or whether the government must show both that the regulation furthers "an important or substantial governmental interest unrelated to the suppression of expression" and that the limitation on the First Amendment freedoms is "no greater than is necessary or essential to the protection of the particular governmental interest involved." Procunier v. Martinez, 416 U.S. 396, 413 (1974)(stricter standard applied to correspondence from inmates to individuals outside the prison)(overruled as standard to be applied to incoming correspondence in Thornburgh v. Abbott, 490 U.S. 401 (1989)).