LEGAL AND REGULATORY BACKGROUND
As a matter of law, federal courts have held that inmates do not have a constitutional right to unrestricted telephone communication, particularly when alternate means of communication exist.11 As a matter of policy, BOP regulations state that inmates should be provided telephone access consistent with the requirement of sound correctional management. According to the BOPs program statement Telephone Regulations for Inmates, conditions and limitations may be imposed on an inmates telephone use to ensure that it is consistent with the BOP's correctional management responsibilities. Additionally, inmate telephone use is subject to any limitations that individual wardens determine are necessary to ensure the security or good order of the institution or to protect the public. Restrictions on inmate telephone use may also be imposed as a disciplinary sanction.
The BOP has the legal authority to monitor inmate calls because courts have held that inmates are deemed to have no legitimate expectation of privacy in their telephone conversations. Therefore, monitoring of these conversations does not implicate the seizure prohibitions of the Fourth Amendment. In addition, although the federal wiretapping statute may impose greater constraints than the Fourth Amendment, that statute states that interceptions of wire communications are permissible by an investigative or law enforcement officer in the ordinary course of his duties. 18 U.S.C. § 2510(5)(a). Courts have generally concluded that prison officials are law enforcement officers as defined under the wiretapping statute and that prison monitoring occurs in the ordinary course of duties if it is conducted pursuant to an established policy that is related to institutional security, is generally applicable rather than directed at a particular inmate, and is made known to inmates.12
The BOPs Program Statement entitled, Telephone Regulations for Inmates, which was codified at 28 C.F.R § 540.100 et seq., states that inmates are permitted to make at least one telephone call each month unless they have been restricted from telephone use as the result of an institutional disciplinary sanction. In practice, however, the BOP places no limits on the number of telephone calls inmates can make at most facilities. As discussed previously, inmates at most ITS institutions have unlimited calling privileges to contact up to a maximum of 30 individuals on an approved telephone list. Inmates prepare their proposed telephone lists during their admission and orientation process at a new BOP facility. The institutions associate warden may authorize an inmate to have access to more than 30 numbers in unusual circumstances.
Inmates may submit on their list telephone numbers for any person they choose, with the understanding that all calls are subject to monitoring. Inmates are required to pledge that any calls made from the institution will be made for a purpose allowable under BOP policy or institution guidelines. Third party billing and electronic transfer of a call to a third party are prohibited.
Normally, telephone numbers requested by the inmates are approved without review. When inmates request persons other than immediate family members or persons already on their visiting list,13 BOP staff are required to notify those persons in writing to afford them an opportunity to object to being placed on an inmates telephone list. Other than notification, however, no screening of these individuals or other investigative effort is made.
BOP regulations direct wardens to refer incidents of unlawful inmate telephone use to law enforcement authorities. According to BOP regulations, telephone misuse refers to such things as using the telephone to intimidate a potential witness or for other criminal purposes. Using another inmates phone access code (PAC) or providing a PAC to another inmate is considered misuse and is subject to discipline. Inmates who violate the telephone rules may have their privileges restricted or revoked.
Each warden is required by BOPs program statement to establish procedures to enable monitoring of inmate telephone conversations on any telephone located within the institution. The term monitoring is not defined in the BOP program statement, so it is not clear whether this means recording of calls or live-monitoring by the BOP staff. According to the BOPs program statement, the purpose of monitoring is to preserve the security and orderly management of the institution and to protect the public.
In all BOP facilities, a notice is placed on inmate telephones advising the user that all conversations are subject to monitoring. Use of the telephones by inmates, therefore, constitutes their consent to this monitoring. 14 Inmate calls to attorneys are an exception to this rule and will not be monitored by BOP staff if the inmate follows proper procedures, established by the warden at each institution, to arrange and place attorney calls.
BOP Headquarters has not issued any policy detailing how much live monitoring or review of recorded calls staff at each institution should conduct. Rather, determinations about the amount and methods of monitoring are left to individual wardens. Some institutions have remote monitoring locations. At these locations, officers randomly listen to some calls as they are occurring. This monitoring is in addition to their regular duties. Most of these institutions require the officers to monitor a minimum number usually five telephone calls during their shift. The officers are required to fill out a form describing the content of each monitored call and submit these reports to the institutions SIS office. The SIS offices are supposed to review the reports and decide if any further action is required.
Most institutions without remote monitoring locations have established a fixed listening post where a staff member assigned as the telephone monitor listens to inmate calls in addition to other duties, such as reviewing inmate mail. This telephone monitor normally works only during the day shift. However, wardens at several institutions have assigned a telephone monitor to the evening shift as well.
The BOP has specific policies covering the discipline of inmates whose behavior is not in compliance with BOP rules. Depending on the severity of the violation, improper inmate conduct can be handled in-house as an institutional disciplinary matter resulting in the restriction or revocation of an inmates privileges or segregation of the inmate from the general prison population. Suspected criminal violations by inmates are referred to the FBI or other law enforcement agencies for investigation and can result in both criminal charges and administrative sanctions.
The BOP organizes prohibited acts by inmates into four categories and
assigns each category a code:
Unauthorized use of the telephone is currently designated a Low Moderate violation the lowest category of prohibited acts with the appropriate sanction being a loss of privileges, such as telephone, commissary, or visiting privileges. Low Moderate violations may be resolved informally, which means that there may be no record of the violation. Informal resolution can take place between the inmate and the inmates unit team a group of BOP employees who oversee the inmates adjustment, work assignments, and other behavior in a housing unit.
According to the BOPs disciplinary policies, inmates who repeatedly violate BOP rules can receive increased sanctions. For example, if an inmate commits a second violation in the Low Moderate category within six months of the first violation, the inmate can receive a sanction appropriate for the offense (such as loss of telephone privileges) plus segregation for up to seven days and forfeiture of earned good time of up to 10 percent or 15 days. A third violation in the Low Moderate category raises the recommended sanction to that available for violation of Moderate (level 300) offenses, such as delay of a parole date, loss of good time of up to 25 percent or 30 days, or segregation for up to 15 days. However, if prior offenses have been resolved informally, they cannot be considered for the purpose of increasing an inmates punishment based on repeated acts.
In response to concerns about the informal resolution and limited sanctions for telephone abuse violations that fall into the Low Moderate category, in December 1997 the BOP Executive Staff approved raising the severity level for inmate telephone abuse from Low Moderate (level 400) to Greatest (level 100) when a crime is committed with the telephone and to High (level 200) when a criminal offense is not involved. The proposed change is not yet in effect. The regulations needed to implement this change were not published in the Federal Register until early 1999, and the comment period closed in April 1999. (See Chapter Six, Section IV, D and Chapter Seven, Section IV for a discussion of this issue.)
In its Special Investigative Supervisors Manual (SIS Manual), the BOP encourages a proactive approach to deterring criminal conduct by inmates. The SIS Manual directs SIS staff to use threat analysis, risk assessment, analysis of connections between inmates, and intelligence sources to prevent illegal conduct by inmates while still in the planning stage. The manual also states that the SIS should determine which inmates are engaged in activities that pose a threat to the welfare of the community. The SIS Manual provides examples of how the current version of ITS can assist staff in this task.
In August 1997, the Intelligence Section at BOP Headquarters issued an Inmate Telephone Monitoring field guide for wardens and SIS staff. The guide states that one of the BOPs primary concerns is to ensure that inmates who were convicted for playing leadership roles in major drug trafficking organizations do not continue their criminal operations using prison telephones. The guide stresses that inmates should not be permitted to talk on the telephone when they should be at their job or educational assignments. The guide notes that some inmates may require reassignment from orderly jobs or similar positions that provide them a great deal of flexibility and autonomy so that their time is more fully engaged. The guide also cautions against permitting a small number of inmates to dominate the telephones.
In addition, the guide suggests that population profiling should be a major component of an institutions monitoring operations. For example, the guide acknowledges that it is not possible for staff to consistently listen to 100 percent of inmate calls. For this reason, the guide states that any inmate telephone monitoring should place the highest priority on identifying and tracking inmates with the greatest likelihood of using their telephone privileges to engage in criminal or illicit activity. Inmates identified as having a high likelihood of engaging in crime while incarcerated, such as drug dealing and escape plots, should be targeted and their telephone conversations subject to intense review.
11 In general, courts have held that restrictions on inmate telephone privileges do not violate the First Amendment if they are reasonable. See, e.g., Strandberg v. City of Helena, 791 F.2d 744, 747 (9th Cir. 1986); Fillmore v. Ordonez, 829 F. Supp. 1544, 1563-64 (D. Kan. 1993), aff'd, 17 F.3d 1436 (10th Cir. 1994). See also Benzel v. Grammer, 869 F.2d 1105, 1108 (8th Cir.), cert. denied, 493 U.S. 895 (1989); Lopez v. Reyes, 692 F.2d 15, 17 (5th Cir. 1982); Feeley v. Sampson, 570 F.2d 364, 374 (1st Cir. 1978).
12 See, e.g. United States v. Lanoue, 71 F.3d 9966 (1st Cir. 1995). See also Opinion of the Department of Justice Office of Legal Counsel U. S. Dept. of Justice re Disclosure of Recorded Inmate Telephone Conversations by the Bureau of Prisons (January 14, 1997).
13 A visiting list is a list of individuals who are approved to visit a specific inmate at his institution. Each inmate submits a list of proposed visitors. After "appropriate investigation," BOP staff compile a visiting list for each inmate and distribute it to the inmateand visiting room officer. Staff may request background information from potential visitors who are not immediate family members before including them on the approved visiting list. When little or no information is available on the potential visitors, visiting may be denied pending receipt and review of necessary information, including information that is available about the inmate or the inmate's offenses. At medium and high security level and administrative institutions, staff are expected to obtain background information from potential visitors who are not immediate family members.
14 18 U.S.C. Section 2511(c) permits interception of telephone communications with the consent of one party to the communication. Many courts have held that prison monitoring is exempt under the federal wiretapping statute because inmates voluntarily choose to make telephone calls with the knowledge that they can be recorded. See, e.g. United States v. Workman, 80 F.3d 688, 693 (2d Cir. 1996); Opinion of Office of Legal Counsel reDisclosure of Recorded Inmate Telephone Conversations by the Bureau of Prisons (January 14, 1997). Other courts have rejected this reasoning, arguing that the consent is not voluntary because inmates have no choice other than to forego telephone privileges entirely. See Landon v. Hogan, 71 F.3d 930, 936 (1st Cir. 1995)