CHAPTER SEVEN
ANALYSIS

 

As described throughout this report, the BOP’s efforts to prevent inmates from using the telephones to commit crimes have been limited, uneven, and ineffective. This chapter describes our analysis of efforts that could be taken to address this problem.

  1. Cap on Inmate Calls

    It is clear from our investigation that inmate calling must be reduced. The BOP monitors less than four percent of inmate calls. Even a significant increase in the number of monitors would not result in a sufficient level of monitoring. It is also apparent that a small number of inmates contribute disproportionately to the very large volume of calls.

    The OIG believes that a cap on the number of minutes an inmate may spend on the telephone per month is an appropriate response to the dilemma of too many calls and too few monitors. We do not believe that there is any legal or contractual impediment to implementing such restrictions, and we conclude that the BOP has been overly cautious by postponing consideration of such action.

    First, there is no legal prohibition against restricting inmates’ telephone privileges. While federal courts have held that inmates have a First Amendment right to some level of telephone access,40 this right is subject to reasonable restrictions related to prison administration and security. Federal courts have held that there is “no legitimate governmental purpose to be attained by not allowing reasonable access to the telephone, and . . . such use is protected by the First Amendment,” 41 but restrictions on telephone privileges will not violate the inmates’ First Amendment rights if they are reasonable.42

    The BOP requested an opinion on this issue from the Department’s Office of Legal Counsel (OLC). In January 1997, the OLC wrote that, under the prevailing case law, limitations on the right to telephone access will not violate the First Amendment if they are reasonable (citing Pope v. Hightower, 101 F.3d 1382, 1384 (11th Cir. 1996) (“when a prison regulation impinges upon an inmate's constitutional rights, the regulation is valid if reasonably related to legitimate penological interests”); Washington v. Reno, 35 F.3d 1093, 1100 (6th Circuit 1994) (prisoner's right to telephone access is “subject to rational limitations in the face of legitimate security interests of the penal institution”); Strandberg v. City of Helena, 791 F.2d 744, 747 (9th Cir. 1986)).43

    Notwithstanding this apparent authority, the BOP has consistently postponed implementing any restrictions on inmate telephone access, citing concern that such action could reopen the litigation in Washington v. Reno. The lawsuit filed by inmates against the BOP challenging ITS has greatly influenced and, to some extent, controlled, the manner in which the BOP has handled the problem of inmate telephone abuse. The settlement agreement imposes some limitations on the BOP’s ability to alter inmate access to telephones until January 2002. However, we believe the BOP has been overly cautious in not implementing needed changes. [For a detailed description of the Washington v. Reno case and settlement agreement, see Appendix 1.]

    As discussed above, Federal Programs reviewed the proposal to reduce inmate telephone time in December 1997 and made suggestions for gathering information in order to prevail in any court challenge to the new policy. The OIG interviewed Federal Programs attorneys Kathleen Moriarty Mueller and Rafael Gomez, who handled the Washington v. Reno litigation, about whether the settlement agreement was an impediment to a cap on inmate calls. The attorneys told the OIG that it was not necessarily an impediment.

    Mueller and Gomez stated that it was their understanding that after the meeting between Director Hawk and DAG Holder, BOP was planning to reconvene the Wardens’ Working Group to begin collecting supporting documentation to support the restrictions, and that they were surprised that the BOP has not yet done so. Gomez told the OIG that the BOP has since taken the position that Federal Programs’ opinion was that inmate calling privileges could not be reduced under the settlement agreement. This is not true, according to both Federal Programs attorneys.

    Both Mueller and Gomez believe that the BOP could prevail in a suit challenging a reduction in calling privileges. They identified for the OIG several arguments in support of the Wardens’ Working group recommendation to limit inmate calls to 300 minutes a month:

    We agree with the Federal Programs attorneys that the settlement agreement would not prevent the implementation of a cap on inmate calls. While it is possible that a change in the status quo would reopen the settlement agreement, this possibility should not stand in the way of the BOP taking needed action to address a serious problem. The law and policy appear to be on the BOP's side on this issue.44

    Through interviews and document review, the OIG found two other concerns on the part of the BOP concerning the implementation of a cap on calls. First, there was considerable discussion about the possibility that any reduction in inmate calls would require a re-negotiation of the ITS II contract and cost the BOP money. The BOP OGC took the position that any reduction in calling privileges should take place prior to the finalization of the ITS II contract. This was not done. Since that time, however, the Administration Division has taken the position that the contract is flexible enough to allow for a reduction in calls without significant penalty to the BOP. The actual effect a cap on calls would have on the current contract remains to be seen.

    Another issue that arose in our conversations with SIS officers at the nine institutions that we visited was the prisoner reaction to a cap on inmate calls. All said that such restriction could create problems, including possible violent reactions from inmates. However, they stated that with planning and careful implementation of the cap, the restrictions could be phased in a way to prevent such problems.

  2. The BOP’s Failure to Devote Sufficient Resources to the Problem

    We found that the BOP has not devoted sufficient resources to addressing the issue of inmate telephone abuse. SIS offices at BOP institutions do not have the resources to effectively monitor any significant percentage of the tens of thousands of telephone calls made by inmates every day. In fact, as detailed in our report, the BOP cannot even accurately identify the scope of the problem. And as discussed extensively throughout this report, the BOP has failed to properly train the SIS offices and other telephone monitors to do their jobs efficiently by using the available technology.

    1. Training

      First, all of the line officers we spoke with who were assigned to monitor telephones complained that they have not received any training in the use of their equipment and have had to teach themselves and learn from others on the job. This self-training has not been successful. We found that many BOP ITS institutions do not use the full range of the monitoring technology available to them, especially the alert function. In addition, monitors do not receive training with respect to codes, gang affiliations, drug trafficking patterns, or other areas that might aid them in detecting illicit activity over the telephones.

      We found that telephone monitoring training is given at the SIS training courses held for new SIS officers every quarter. However, the BOP offers no training for other telephone monitors or remote monitoring officers who must monitor inmate calls as part of their duties. Moreover, the “telephone portion” of the SIS training covers only some of the critical areas, such as legal and policy issues, the handling of subpoenas, and descriptions of the various recording systems currently being used in the institutions. It does not appear to provide sufficient emphasis on making full use of ITS.

      The training courses do emphasize providing extra attention to inmates of concern. They emphasize that it is not possible to listen to 100 percent of all inmate calls, so officers are encouraged to identify and track inmates with the highest likelihood of using prison telephones to engage in criminal activity. The courses suggest targeting techniques, placement in the posted picture file and SENTRY phone abuse category, and the creation of computer searches for calls by inmates of specific concern. New officers are encouraged to carefully screen telephone lists for high-risk inmates before approval. The training courses also discuss the BOP’s plans to upgrade its hardware and software and reviews the new features of ITS II and an “enhanced telephone monitoring pilot program,” in which correctional officers review previously recorded calls on a walkman while they are patrolling the institution. However, despite these training courses we found little evidence that these techniques are being implemented at the institutional level.

    2. Insufficient Staffing

      The BOP has not devoted sufficient staff to monitor inmate telephone calls. As discussed elsewhere in this report, less than four percent of calls are live-monitored. In addition, many institutions have many hours a day when inmates are using the telephones, but there is no telephone monitor on duty. The institutions do not have the staff to review previously-recorded calls to fill this gap in coverage.

      We believe that regional SIS offices are unable to alleviate this burden, although they are underused and could provide some assistance that would help standardize practices throughout the BOP. Currently, Regional SIS offices appear to be largely administrative positions that do little to aid the SIS offices they are supposed to serve. SIS staff at various institutions we spoke with said they rarely, if ever, consulted with the Regional SIS office for assistance regarding telephone issues.45

      However, Regional SIS offices could provide training for telephone monitors and written guidance regarding who should monitor calls, the percentage of calls to be monitored, the type of inmates to receive targeted monitoring, and inmates that should be proactively restricted from telephone use as a matter of classification. Regional SIS offices could also be charged with ensuring that telephone monitoring officers at each institution know the full capabilities of ITS and how to use their monitoring equipment. The Regional SIS for the North Central Region told us that many telephone monitors in his region do not know how to use their telephone monitoring equipment. We believe that correcting this situation should be a Regional SIS Coordinator responsibility. There are likely other tasks that the Regional SIS could perform if the BOP implements a proactive approach to the problem of telephone abuse.

      In addition, we believe that the BOP’s Sacramento Intelligence Unit (SIU) is underused. The SIU staff told the OIG that they assist institutions in targeting inmates for telephone monitoring. For example, SIU staff said that they may ask institutions to check their call records for certain telephone numbers and then request that any calls made to those numbers be monitored. However, no member of any SIS office we interviewed reported speaking with the SIU on telephone issues. SIS staff should be trained about what the SIU has to offer them and encouraged to use this resource.

      Finally, we believe that the BOP’s hiring of 24 new intelligence officers at the field-level for the Intelligence Section is a significant advancement. However, it is likely that a significantly greater number of such officers will be required for any proactive intelligence-gathering effort to be successful in reducing telephone issues.

  3. Restriction of Telephone Privileges as a Matter of Classification

    Craig Trout, former chief of the BOP’s Intelligence Section, told us that the BOP’s operational policy is to start inmates with full privileges until incidents occur that justify restricting those privileges. He told the OIG that if the BOP wants to restrict certain inmates’ telephone privileges from the time they enter federal custody – i.e., before any infractions occur – a mechanism such as “restriction on the basis of classification” or some other sort of proactive measure is needed.

    As discussed above, the Wardens' Working Group recommended that the BOP amend its inmate telephone regulations to include language similar to that in the BOP’s general correspondence regulations.46 In effect, this would allow a warden to restrict an inmate's access to the telephone as a matter of classification. Similar to the correspondence regulations, the restriction would only affect who an inmate could call, not the number of telephone calls, because the regulation is designed to regulate dangerous contacts an inmate may make. Such restrictions would not be a sanction for telephone misuse, but a classification decision to protect the safety and good order of the institution and to protect the public.

    It is important for the BOP to find a mechanism to restrict privileges as a matter of classification in the most extreme cases. However, before restricting telephone privileges through classification decisions, the BOP should carefully review the current correspondence regulations to avoid the following potential problems. First, the correspondence restrictions are virtually unknown to BOP staff charged with implementing them. Our review found that the people who are supposed to make classification decisions are not aware of their authority to restrict an inmate’s correspondence. This option is not mentioned in the official written guidance for inmate classification or in the inmate or custody classification program statements.

    The second potential problem is whether restrictions on correspondence or telephones as a matter of classification could withstand judicial scrutiny. Because restrictions on correspondence as a matter of classification have not been used by the BOP, there has not been any litigation that has resolved their validity. Based on our analysis of the limited case law on this question, we believe that, under the standards of Turner v. Safley, restrictions on correspondence based not on discipline of an inmate but as a matter of classification can withstand judicial scrutiny. The BOP should closely examine this issue, however, before deciding whether to implement such a regulation with respect to inmate telephone use. In order to prevail, the BOP must be able to make a convincing argument that such restrictions are reasonably related to legitimate penological interests, which we believe it could do. [For a more detailed discussion of this issue, see Appendix 6.]

    Identifying the appropriate BOP employee with the authority to restrict inmate telephone privileges is a third unresolved question. As discussed above, the unit team at the institution is responsible for making such decisions with respect to correspondence. The OIG believes that the BOP should consider making decisions about restrictions on telephone privileges early in the inmate classification process. However, the BOP officials we interviewed were very reluctant to have regional officials make such decisions because of concern that they do not have sufficient information about the inmate to make appropriate decisions. While this may be true in borderline cases where a potential for telephone abuse is only suspected, it is not true in the types of cases the OIG reviewed in the course of this inspection. Restricting telephone access for prisoners who committed crimes in prison with telephones, such as Rayful Edmond, Jose Naranjo, Anthony Jones, and Oreste Abbamonte, clearly could be made at the regional level. Making the decision at the regional level would also eliminate the possibility that the unit team would not receive the necessary information about the inmate to make an informed decision about limiting telephone privileges.

    Leaving decisions about telephone restrictions as a matter of classification to individual institutions has several other disadvantages. First, if an inmate is to have permanently restricted privileges, it may affect the institution to which the inmate should be assigned. The BOP is concerned that mixing inmates with restricted privileges with those with full privileges will lead to a situation in which inmates with restricted privileges will take or buy the privileges of others. One possible solution to this would be to create institutions or wings of institutions that would not have telephone privileges. This also would avoid the problem of having to keep inmates in very high security level institutions such as USP Florence or USP Marion because of the likelihood of telephone abuse when the inmates do not otherwise require that level of security.

    Second, the unit teams we encountered function like counselors to the inmates. The unit team sees its mission as guiding the inmates toward success in the least restrictive environment. We believe it unlikely that they would impose restrictions on new inmates and would prefer, instead, to give them the benefit of the doubt.

    Finally, in order to make appropriate classification decisions about telephone privileges and classification decisions in general, the BOP must take steps to increase its information about inmates. The Central Files we reviewed on selected inmates contained very little information on the inmate's history and offenses. The BOP must gather far more information on incoming inmates in order for it to be more proactive in its classification decisions.

  4. Increase in Disciplinary Sanctions for Inmate Telephone Abuse

    As described in Chapter 6 of this report, the BOP Executive Staff agreed with the recommendation from the Wardens’ Working Group to raise the level of sanctions for telephone abuse from a 400 level (lowest) to either the 200 or 100 level in December 1997. The BOP proposed such regulations, which have gone through the comment period, and should be implemented soon. As of March 1999, however, the proposed regulations have not been implemented.

    We believe that this increase in the disciplinary level for telephone abuse will be helpful in addressing telephone abuse. All SIS personnel we interviewed stated that the 400-level sanction was simply too low to be any deterrent to inmates. Many institutions have addressed inmates’ telephone violations on an informal basis and imposed relatively minor sanctions on telephone abusers. We believe that the new regulations, if implemented and followed, will more likely result in chronic telephone abusers losing privileges for significant periods of time.

  5. Use of Administrative Punishments

    In the cases that we reviewed, we found that the BOP rarely takes administrative action against an inmate who is criminally prosecuted for crimes that involve the use of prison telephones. The result is that often an inmate receives a significant additional prison sentence but retains telephone privileges that could enable him to continue his criminal activities from prison. The BOP should make the penalties for telephone abuse clear, enforce such infractions uniformly and consistently, and permanently revoke the privileges of repeat offenders.

    A BOP OGC attorney told us that in some cases, prosecutors ask the BOP to delay administrative action until the conclusion of criminal proceedings in order to avoid claims of double jeopardy -- the defendant’s right not to be tried twice for the same crime. We did not find such requests in any of the cases that we reviewed. Moreover, there is no excuse for not taking strong action after an inmate is convicted, a failure which occurred in several cases we reviewed.

    Failure to administratively punish convicted telephone abusers is a very significant failing on the part of the BOP. Common sense would suggest that inmates with longer sentences stemming from crimes committed in prison have less incentive not to violate prison rules and commit additional crimes. And yet, we found that many of these inmates retain the means to commit new crimes. The BOP needs to aggressively enforce its regulations concerning inmate telephone abuse.

  6. Other Possible Methods of Restricting Privileges

    The BOP has statutory authority to limit privileges for inmates in national security cases and to prevent acts of terrorism and violence. 28 C.F.R. Section 501.2 provides that “special administrative measures” can be implemented to prevent disclosure of classified information. Written certification must be made to the Attorney General by the head of a U.S. intelligence agency that unauthorized disclosure of classified information by an inmate would pose a threat to national security and that there is a danger that the inmate will disclose the information. The special administrative measures may include special housing and/or limitations on privileges such as correspondence, visits, interviews with the news media, and use of the telephone. Under 28 C.F.R. Section 501.3, the BOP can also implement special administrative measures to protect against “risk of death or serious bodily injury.” Specifically, the statute is to be used in cases where there is a substantial risk that a prisoner's communications or contacts could result in death or serious bodily injury or substantial damage to property.

    DOJ’s Office of Enforcement Operations (OEO) is responsible for overseeing applications under Sections 501.2 and 501.3. According to the OEO, there is currently one inmate under the restrictions of Section 501.2. There are six inmates under the restrictions of Section 501.3, all terrorists with some tie to the World Trade Center bombing. According to Michael Brave, the attorney who handles these matters at OEO, restrictions made under these sections are very burdensome, and any limitations on an inmate’s privileges must be renewed every 120 days and approved by the Attorney General. Thus, these statutes provide a solution to prevent telephone abuse in only rare cases.

    There are other possible measures to limit inmates’ telephone privileges short of applying under Sections 501.2 and 501.3. Generally, the BOP – and not sentencing courts – has primary authority over the details of confinement for all inmates in its custody.47 However, under 18 U.S.C. Section 3582(d), courts have jurisdiction to restrict an inmate's communication with specified people in the case of a racketeering or controlled substance conviction.

    In one highly publicized case, the statute was successfully used to restrict an inmate’s telephone privileges. Luis Felipe was the self-appointed leader of the New York State Chapter of the Latin Kings, an organization that, according to Felipe, was designed to “promote a sense of Hispanic identity among prison inmates” and to organize Caribbean Hispanics serving jail sentences. Felipe was convicted on racketeering charges stemming from his activities with the Latin Kings in several different New York state prison facilities. The racketeering acts included three murders and three attempted murders. In United States v. Luis Felipe, 148 F.3d 101 (2d Cir.1998), the district court sentenced Felipe to life in prison plus a consecutive sentence of 45 years, and restricted rights of association and communication.

    At sentencing, the district court imposed special conditions of confinement requiring that Felipe: (1) be confined without contact with other prisoners; (2) be prohibited from communicating with any Latin Kings or Queens or codefendants; (3) be prohibited from corresponding with or receiving visits from anyone except his attorney and close family members approved by the court with notice to the U. S. Attorney's office, and that correspondence and visits with everyone but his attorney be monitored; and (4) be prohibited from telephone contact with anyone. This last prohibition was later modified to permit Felipe to call his attorney. The court based these restrictive conditions of confinement on Felipe's past behavior, finding that he had abused his privileges while in prison to order at least three murders from jail. When the court later modified the order to allow Felipe to communicate with his sister-in-law, his niece, and an attorney, the court noted that the restrictions on Felipe were not imposed for the purpose of punishing the defendant, but “to protect other individuals who, given Felipe’s history, could become his targets in the future.” 148 F.3d at 107.

    Upon appeal, the Second Circuit upheld the restrictions. It stated that “the record evidenced Felipe's skill at circumventing prison regulations and using secret codes to control the Latin Kings organization and orchestrate several murders.” The court held that the district court “properly concluded that Felipe could again use his powers of association and communication to direct other members to carry out violent crimes in the name of the organization. Hence, [the district court] had authority to impose relevant conditions of confinement.” 148 F.3d at 114.

    The Second Circuit opinion also analyzed whether the district court had the power to limit Felipe's communication with everyone except close family members, given the language of Section 3582(d) regarding limiting correspondence with “specified persons.” The court stated:

    While we acknowledge that the language of the statute is not broad, the trial court’s order, in our view, does not fall outside it. We do not believe Congress expected sentencing courts to list every individual of a racketeering organization in cases where sufficient reason exists to believe the association with any member is for the purpose of participating in an illegal enterprise. Racketeering groups are often large and boast a constantly changing membership. It would be difficult, if not virtually impossible, to identify each and every active member of such an organization.

    The court found that the goal of preventing Felipe from ordering additional killings is “unquestionably a legitimate penological interest.” In addition, the restrictions on Felipe's ability to communicate with anyone outside prison are reasonably related to that goal.

    Thus, in light of this court’s reading of the statute -- and in light of the BOP’s general failure to use administrative remedies to restrict inmates such as Felipe from using the telephones -- prosecutors should consider using the statute more aggressively to seek court orders restricting inmates’ privileges in appropriate cases. Moreover, we believe the Department should consider seeking legislation to expand Section 3582(d) to allow a court to order such restrictions in cases that do not involve drugs or racketeering.

    However, in making this recommendation, we recognize that it may only be useful in the most extreme cases. It is likely that it will be very difficult for prosecutors to carry the burden imposed by Section 3582(d) at the time of a defendant’s original sentencing unless, as was the case in the Felipe matter, they can point to specific instances of serious misconduct involving the telephones. Even in a case involving a drug dealer as sophisticated and well-connected as Rayful Edmond, it would have been difficult, if not impossible, for the prosecution to prove that his future prison communications would be “for the purpose of enabling the defendant to control, manage, direct, finance or otherwise participate in an illegal enterprise” at the time of his original sentencing. 18 U.S.C.3582(d). The task of monitoring a high risk inmate such as Edmond and then limiting his privileges administratively must therefore rest with the BOP.

  7. The BOP Penological Interests in Providing Telephone Access

    As discussed elsewhere in this report, the BOP believes that telephone contact with family and friends plays an important part in an inmate’s rehabilitation and leads to less recidivism48 and better behavior in prison. However, the value of telephone privileges has never been specifically studied by the BOP.

    Many BOP employees told us that the BOP uses telephone privileges to control the inmate population. Many thought that reducing the amount of time inmates can spend on the telephone would be beneficial, but could cause prison unrest and possibly riots.

    Because there are many more inmates than correctional officers, we heard from several prosecutors and FBI agents that the BOP relies a great deal on inmate cooperation to maintain order in its institutions. Federal Programs attorneys and other attorneys who have reviewed the prison telephone system commented on the extent to which telephone privileges are a necessary benefit to keep inmates in a cooperative mode. Prison officials, they said, are loath to change the status quo.

    While maintaining family ties is certainly both a laudable and beneficial policy goal, it is unclear the extent to which inmates are using the telephones for this purpose. Our visits to various institutions did not answer this question. We heard from BOP employees who believed that many inmates use the telephones to call their families in an attempt to keep relations intact during their incarceration. However, the majority of SIS staff and telephone monitors to whom we spoke reported that a minority of the calls in their institutions are for the purpose of maintaining healthy family relationships. Instead, they reported their beliefs that between 30 and 90 percent of calls have “something suspicious” about them. In addition, they said that an additional problem is that many inmates' family members are involved in crime, often times committing the same type of offenses for which the inmate is incarcerated.

    While it is impossible to definitively determine how many of the calls are for legitimate or illegitimate purposes, we believe that the BOP should not allow their policy to blind them to the reality of the situation. Our review shows that telephone abuse is a very serious problem in BOP institutions and we found many very serious and tragic outcomes from this abuse. The BOP must be flexible in addressing this problem and avoid over-reliance on general studies on the issue of the benefits of family contact.

  8. The BOP’s Misplaced Reliance on New Technology

    1. Small Improvements with ITS II

      ITS II was touted by many BOP officials as the solution to the problem of telephone abuse. This is far from the case. While ITS II is an improvement over ITS I in several ways, it will do little to aid the BOP in its monitoring and detection efforts. We also found that the BOP has postponed actions to address inmate telephone abuse because of the belief that new technology may alleviate some of the current problems, a belief that we believe is misplaced.

      ITS II will provide a centralized system for telephone monitoring at the Central Office and features to be used in the detection of fraud of that system. ITS II also will be easier for SIS staff to use, provided that adequate instruction and guidance accompanies implementation. It also will be easier for inmates to use. Some of the new features of ITS II include “Called Party Blocking,” which allows the called party to refuse a call by pressing a digit on the telephone keypad, thereby preventing that call and any future calls made from that number; “Time Between Calls,” requiring a specified number of minutes between inmate calls; “Called Party Acceptance of Direct Dial Calls,” requiring the called party to accept a direct dial call before being connected to the inmate; and “Initial and Intermittent Call Branding,” in which a message would be broadcast to the called party that “brands” the call by indicating the inmate's first name and the fact that the call is originating from a federal prison. This message could be repeated intermittently throughout the call.

      But ITS II will not in and of itself reduce inmate telephone abuse and the availability of the telephone system as a tool for inmates to commit crimes. Technology has not been developed that will make this possible. ITS II was designed for flexibility and its contract provides for technology updating. However, technological advances such as voice recognition technology, discussed below, are not on the near horizon.

      ITS II has the ability to detect some types of three-way calls. According to ITS Chief David Woody, the technology is effective on only about 20 percent of calls – and even then it is only effective about 80 percent of the time. 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.49

      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. BOP reported that they sought advice from the Federal Communications Commission on how to force local telephone companies to implement this signal, but were informed that legislative efforts to require this would be useless in light of the great opposition it would raise from the telephone companies.

      Many features of ITS II will not be helpful to staff without proper training and other support. For example, much of ITS II’s ability to produce reports is available with ITS I but has not been used because of lack of training. Placement by SIS telephone monitors of the alert function for targeted inmates is important, but the institutions still need additional resources and staff to monitor the alerted calls. ITS II creates more efficient managing of inmate accounts, but there remains no control to prevent inmates from simply exchanging account numbers to hide the identity of the caller. ITS II also creates a national database of telephone information that can be used by SIS personnel as a valuable investigative tool, but access to that database is generally restricted to the Central Office, and the Regional offices will have no access to ITS II at all. In addition, the BOP has no plans in place for how to analyze or use the data.

      The BOP cannot rely on technology alone to prevent telephone abuse. The effective use of that technology is the critical area in which the BOP has thus far failed to commit sufficient resources and effort.

    2. Failure to Coordinate within BOP on the Development and Implementation of ITS II

      The OIG found that there had been virtually no communication between the developers of ITS II – the BOP’s Inmate Telephone System Section – and the users of the system – the SIS offices and the Intelligence Section.

      It is imperative that the Intelligence Section participate in the development of ITS II and take full advantage of any future advances in technology. Coordination between the two offices also will be necessary to ensure that the SIS staff monitoring the telephones receive adequate and continuing training on ITS II. As discussed above, advanced technology without accompanying policy and procedures is useless. Unless the Intelligence Section creates guidance for implementing ITS II, SIS staff will not properly or effectively use it.

      According to David Woody, the Chief of the Inmate Telephone System, his section did not coordinate with the Intelligence Section during development of ITS I. Consequently, that telephone system was never tailored for investigative purposes and remained largely a “financial system” that kept track of the money inmates were spending and the profits the system was making. According to Woody, the Inmate Telephone System Section provided telephone monitoring equipment to the SIS training facility in Denver, Colorado, but did not believe it was its responsibility to train SIS and Intelligence personnel on the ITS system. This has resulted in a large gap between those who develop and run the system and those responsible for using the technology to monitor inmate telephone conversations.

      At the outset of our review, we found that there had been little improvement in coordination between the Telephone and Intelligence Sections in the development of ITS II.50 As of November 1998, we were aware of only one significant communication between the two sections: a February 1998 memorandum from Kevin Rooney, the Assistant Director for Administration, to the Correctional Programs Division requesting feedback about the possible features of the new ITS system. Correctional Programs recommended that all of ITS’s existing features continue and that all of the new features be implemented. BOP’s Office of General Counsel and the Federal Programs Branch also reviewed the proposal and found that the new features could be implemented without violating the settlement agreement in Washington v. Reno.

      In November 1998, Woody told the OIG that the current Intelligence Chief better recognizes the value of the inmate telephone system as an investigative tool and was taking more interest in the ITS II project. He stated, however, that his section did not have the resources to train the SIS officers and intelligence personnel on ITS II. Despite the sentiment that coordination may be improving, the OIG did not find any tangible evidence that the Trust Fund Branch and the Intelligence Section were working together to develop ITS II. Woody told us that it was a priority when developing ITS II to create a system that would aid investigative efforts by producing reports that highlighted telephone numbers called by more than one inmate, a chronological list of an inmate’s calls, and frequently dialed numbers. However, the ITS section’s final decisions about ITS II were made without consistent consultation with the Intelligence Section on the development of the system.

      The OIG made both the Trust Fund Branch and the Intelligence Section aware of its concerns about their lack of coordination in the development of ITS II, and our concern that a continued lack of coordination during the implementation phase could result in reduced success in using ITS II. Both sides acknowledged the lack of coordination and informed the OIG that they planned to remedy the situation. The OIG’s advice did not go unheeded and, as of January 1999, some coordination between the sections had begun. The two sections met several times and planned a training program for the regional SIS coordinators, who would then be available to train users at each institution in their region.

      It is an improvement that the Regional SIS offices – which serve as a resource to institution-based staff on telephone security issues – will now be trained in the use of ITS II and responsible for training SIS staff in their regions. However, although the new system can be networked to BOP’s Regional Offices, this is not within BOP’s current plan. If decisions about the implementation of ITS II are left to wardens of individual institutions, it is imperative that they receive assistance to tailor the many available features to their institution. The Regional Office SIS personnel appear to be the most logical bridge between the Central Office Trust Fund ITS section and the wardens of each institution.

    3. New Telephone Technology

      In the course of our review, various SIS officers and one warden told us that they heard that certain BOP institutions had voice and key word recognition technology that was proving very useful in gathering intelligence on inmate activities. This assertion is not accurate – no BOP institutions have such technology. It was disturbing to the OIG that wardens and SIS officers believe that such technology exists within the BOP system when it does not. This is evidence of a lack of communication, coordination and training. Furthermore, the technology that does exist – speaker and speech identification – is extremely expensive and does not provide much hope for preventing telephone abuse in prison settings. 51

      1. Speaker Identification

        Speaker identification is the ability to distinguish speech patterns among multiple speakers to identify particular individuals. Using this technology, a telephone system could disconnect automatically if:

        • the PAC number used to place a call does not match the voiceprint of the inmate speaking;

        • the voiceprint of the party to whom the call is placed (or their phone number) does not match the voiceprint or phone number of one of the individuals on the access list;

        • a third party, not on the access list, joins a conversation with someone on the access list.

        Alternatively, the system could be designed to automatically record a conversation in the event of one these occurrences and alert prison staff.

        Researchers at MIT's Lincoln Laboratory have reported that it is reasonable to expect a 95 percent probability of detecting an unauthorized speaker using such a system. However, a Department working group on this issue did not express much confidence in the computer’s accuracy rate to justify the cost and maintenance of such a system. Current speaker identification technology requires a very controlled environment, an impossibility in an institutional setting, with widespread use of slang, foreign languages and accents, poor connections, and the background noise of a prison housing unit. The group did not think that speaker identification holds much promise for combating inmate telephone abuse in the foreseeable future.

      2. Speech Recognition

        With speech recognition, a computer recognizes key words that could be used to rapidly sift through large amounts of data to find items of interest. The application of speech recognition technology to a prison setting is more problematic than speaker identification. The technology is designed to be used with cooperative users who want to be understood by the speech recognition system. In a correctional environment, the speakers attempt to keep from being understood by using slang or code words. Dialect and stress may also affect inflection and tone and therefore the ability of speech recognition technology to understand speech. Speech recognition would be difficult to use in prisons, where many use foreign languages.

        It appears unlikely that speaker or speech recognition will help alleviate the problem of telephone abuse in the near future. Whether future technology may improve to the point where it will be useful is unknown. In the meantime, however, actions and improvements should not be delayed in waiting for a revolutionary new technology that may never come.


40 Courts have recognized an inmate’s right to telephone access, but have not reached a consensus on the precise level of access required by the Fourth Amendment. In Thornburgh v. Abbott, 490 U.S. 401, 407 (1989)(quoting Turner v. Safley, 482 U.S. 78, 84, 94-99 (1987)), the Supreme Court held that "'prison walls do not form a barrier separating prison inmates from the protections of the Constitution,' . . . nor do they bar free citizens from exercising their own constitutional rights by reaching out to those on the 'inside.'" In Pell v. Procunier, 417 U.S. 817, 822 (1974), the Supreme Court held that a prison inmate retainsthose constitutional rights "that are not inconsistent with his status as a prisoner and with the legitimate penological objectives of the corrections system.”

41 Morgan v. Leval, 526 F.2d 221, 225 (2d Cir. 1975); Johnson v. Galli, 596 F. Supp. 135, 138 (D. Nev. 1984).

42 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).

43 In addition to the First Amendment, the Sixth Amendment has been interpreted by the courts to guarantee some telephone contact between an inmate and his attorney. The OLC found, however, that this right is not unlimited. The BOP need only provide access to counsel that is "adequate, effective, and meaningful when viewed as a whole." OLC memorandum, citing Aswegan v. Henry, 981 F.2d 313, 314 (8th Cir. 1992) ("Although prisoners have a constitutional right of meaningful access to the courts, prisoners do not have a right to any particular means of access, including unlimited telephone use, citing Bounds v. Smith, 430 U.S. 817, 823, 832 (1977)). OLC concluded that reasonable restrictions on access to attorney calls are permissible, especially when other means of attorney contact are available.

44 The BOP asserts that, while the OIG may be correct that the BOP would ultimately prevail in a legal challenge to telephone restrictions, “the practical realities of when to litigate and the resources expended to defend such a restriction are overlooked and underestimatedby the OIG.” The OIG does recognize that such litigation could be both disruptive and time consuming. However, based on our interviews of Federal Programs attorneys and our view of the seriousness of the problem of inmate telephone abuse, we believe that restrictions on telephone privileges, and a strong defense to any challenges to these restrictions, are necessary.

45 The North Central Regional SIS Office, for example, has oversight responsibilities for 16 BOP facilities. According to Regional SIS Coordinator Robert Callahan, he is responsible for collecting information from the 16 institutions and preparing seven different reports for the Central Office each month. He subsequently receives national information from the Central Office and reviews it to see whether the institutions in his region are in line with other BOP institutions. He is also the regional coordinator for intelligence, and disseminates to the institutions in his region information received from sources on inmate illicit activities. He provides assistance to institution SIS offices when requested, and helps the institutions prepare for their program review inspections. He has no budgetary functions, performs limited training, and described his assistance relative to inmate telephone monitoring as limited. The SIS offices in his and other regions said that they rarely consult the Regional SIS on telephone issues.

46 28 C.F.R Section 540.14 and 540.15

47 18 U.S.C. Sections 3621(a) and 4042. See also United States v. Sotelo, 94 F.3d 1037 (7th Cir. 1996) (holding that district court lacked authority to impose restrictions on inmate's telephone calls and correspondence, but the BOP has such authority under 28 C.F.R. Section 540.15(a)(5)).

48 Reduction of recidivism is a worthy objective. At the penitentiary level, however, the number of inmates serving extremely long or life sentences must be considered. Many of these inmates will never leave BOP custody. For example, at USP Lewisburg, 36 percent of inmates are serving sentences of 20 years or more and 22.2% are serving life sentences.

49 The system can detect three-way calls when there is a soft click heard on the inmate phone line. Such clicks do not occur in all types of three-way calls or forwarded calls. 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.

50 The BOP hired Booz-Allen & Hamilton, Inc. in May 1996 to define requirements and alternatives for the ITS II system and create a request for proposal (RFP). Booz-Allen was responsible for coordinating the needs of different BOP entities and interviewed representatives from the Inmate Telephone Systems Branch, Trust Fund, Procurement, and Intelligence Sections. They also interviewed staff employed in the three different institutions in the Allenwood complex. However, we found that Booz-Allen's information gathering on the needs for security features in ITS II was extremely limited and evidenced a lack of understanding of SIS’s needs. For example, Booz-Allen almost exclusively concentrated on fraud schemes rather than drug dealing or other illegal activities. In addition, they only spoke with SIS personnel at a single location, which we believe was insufficient to determine the full range of security needs.

51 The Department has initiated some research into the area of speaker identification and its use in a prison setting. The research was initiated by Paul Coffey, former Chief of the Organized Crime and Racketeering Section of the Department’s Criminal Division in conjunction with the National Institute of Justice. A feasibility study was proposed in July 1996, but was delayed at BOP’s request until it could complete the contract for ITS II. According to the BOP, investigators from Rome Laboratories, an Air Force laboratory in New York, continue to investigate the application of voice technologies to correctional institutions and will prepare a final report recommending further research in the areas of speech enhancement, speaker identification, and identifying the “gist” of a conversation through the identification of key words and phrases.

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