By Tom Gogola
Former San Quentin inmate James “J.B.” Bennett works a couple of days a week counseling the Bay Area’s recently de-carcerated, helping them get back on their feet and acclimated to life beyond the bars.
When ex-convicts meet with Bennett, they’re greeted by a bulletin board hanging in his workspace with some handy slogans on it, including one that reads, “Communication is to a relationship as breath is to life.”
That’s a sentiment from pioneering 1970s family therapist Virginia Satir, founder of Palo Alto’s Mental Research Institute, and it’s a telling quote for our times. It tells you what happens when political leaders carve out policies through a spirit of compassion and not out of cruelty and vengeance.
Under President Barack Obama and his rolling efforts at criminal-justice reform, the Federal Communications Commission (FCC) has, for the first time, weighed in on for-profit inmate calling services (ICS) and the cost of phone calls between inmates and their families. Over the past couple of years, the FCC has put in new regulations—or tried to, anyway—that limit the per-minute charges that ICS providers, such as Securus and Global Tel Link (GTL), can charge inmates or their families, who often are poor. As Bennett puts it, prison life is split between the haves and the have-nots, a fact that plays out in every last detail of prison life. “Prison is really about how well off you are financially,” Bennett says. “If you have money, you can live really well.”
If you don’t—too bad. And when it comes to a phone call from a loved one, or a lawyer, or a priest, ICS charges can spike to more than $1 per minute, and much of the tolls have historically been tied up in so-called site commissions that are folded into the per-minute rate.
As numerous prisoner-rights advocates have observed, a “site commission” is a polite way of describing the promised kickback that an ICS company sends to sheriffs. The site commissions are passed along to the inmates and their families in the form of sky-high phone rates.
“Everything I’ve heard about the toll aspect of prison calls is that the toll rate is excessive,” Bennett says.
He spent nearly 25 years of a 30-year murder sentence in San Quentin before being released in 2011, and echoes most anti-recidivist research when he says that “human contact with one’s family, communication—it’s critical.”
The year Bennett was released from San Quentin was also the year that California banned site commissions at state-run prisons administered by the California Department of Corrections and Rehabilitation, which, as The Leadership Conference on Civil and Human Rights notes, was previously sending $20 million a year in site-commission fees to the state.
GTL has the contract to provide phone services across the state prison system. The 2011 site-commission ban did not extend to the thousands of local or county lockups around the state, where GTL also has numerous contracts. Sonoma County will end its contract with GTL next year—it picked another company, Legacy Inmate Communications, to install and administer its Incident Command System (ICS) at Sonoma County’s Main Adult Detention Facility and other county-run jails as of next March. The new contract includes a 60 percent site-commission fee paid to the Sonoma County Sheriff’s Office to administer the phone-service privilege to inmates and to fund the Inmate Welfare Fund (IWF). According to the upcoming contract, Legacy will provide $20 pre-paid phone cards to the county, for resale to inmates. The contract stipulates that the “County shall be invoiced for all Debit Cards purchased and will receive a 60 percent commission percentage as a discount on each purchased card (i.e., a debit card with a face value of $20 shall be purchased [by the county] for $8).”
Securus and GTL have been fighting the proposed FCC rules since they were first announced in 2014. The agency acted in August of this year to set new rate caps for local and long-distance inmate calling, and the FCC website notes that the “new rate caps were scheduled to take effect for prisons on Dec. 12, 2016, and for jails on March 13, 2017.”
It notes that the rates were stayed by court order and that the FCC’s “interim rate caps remain in effect. The interim rate caps apply only to interstate long-distance calls, not in-state long distance or local calls. Those rates are 21 cents a minute for debit-prepaid calls, and 25 cents a minute for collect calls.”
In the meantime, ICS providers have found themselves subject to lawsuits, including the company that currently runs the ICS in jails throughout Marin County. The Class Action News reports that GTL was sued in June 2015 over widespread charges that the company leverages its dominant market position nationally to charge unreasonably high prices for its services. The company has contracts in more than 2,000 jails and prisons in the United States and, according to the GTL website, runs the ICS at local lockups around the North Bay—Mill Valley, Petaluma, Novato and Fairfax.
As the FCC rules hang in limbo, legislative efforts undertaken in Sacramento to ban local site commissions have failed. In 2014, Hayward Democrat Bill Quirk introduced AB 1876, a bill that aimed for the kickback and which would have extended the Corrections and Rehabilitation site-commission ban and prohibit “commissions in telephone service contracts for juvenile facilities and for county, municipal or privately operated jails, and requires such contracts to be negotiated and awarded to the lowest cost provider.”
Quirk’s bill made it through the Assembly despite opposition from the California State Sheriffs’ Association, but died in the Senate finance committee because of cost concerns that would have been passed from the counties to the state—Quirk believes those costs should be borne by the state.
“I was certainly very much in favor of inmates not being charged for being in jail,” Quirk says, adding that for a poor inmate, the difference between charging $2 or $15 for a 15-minute phone call is the difference between that inmate having a connection with his loved one or not. He also notes that even as the funds are supposed to go into the IWF, in his county at least (Alameda), the site commissions were used to pay guards to oversee inmates while they were taking a class or exercising. “That should be paid by the county,” he says.
Under the state penal code, the IWF was set up to receive any “money, refund, rebate, or commission received from a telephone company or pay-telephone provider when the money, refund, rebate, or commission is attributable to the use of pay telephones which are primarily used by inmates while incarcerated.”
The California State Sheriffs’ Association has also pushed back against efforts undertaken at the FCC to rein in site-commissions and regulations on other inmate communications, including video visitation. This has occurred as the FCC now finds itself in the crosshairs of a threatened return to a cruel and unusual “tough-on-crime” posture at the U.S. Department of Justice, with a backbite of rampant privatization on the promised Trumpian horizon.
New Republican leadership at the FCC could mean Obama-era initiatives would be revoked. Recent reports on the agency have pointed to the likely ascension of Republican board member Ajit Pai as the FCC’s next commissioner, replacing the outgoing Democrat Tom Wheeler on the five-person board, whose members are split between Democrats and Republicans—the party in charge of the White House gets the advantage.
Pai’s opposition to net neutrality regulations promulgated under Obama’s FCC have been getting the headlines—an important (if First World) problem—but Pai is no fan of the FCC’s push on ICS rates, either. He laid out his displeasure with Democratic overreach at the FCC in a November 3 letter after the latest court stay was implemented at the Court of Appeals in the District of Columbia.
“Something has gone seriously awry at the FCC,” he wrote, arguing that the agency failed to make reforms and needs to move on. “It didn’t have to happen. Three times I have urged my colleagues to adopt reasonable regulations that would substantially reduce interstate inmate calling rates and survive judicial scrutiny. Three times they have declined.”
Prison-phone-rate reform efforts would shift to the states in the event of an FCC rollback of the ICS regulations—which is where the ICS reform push started. But the lead national champion for ICS reform lost his bid for U.S. Senate two weeks ago, in the runoff in Louisiana that saw the defeat of Democrat Foster Campbell at the hands of GOP candidate John Kennedy.
As head of the Louisiana Public Service Commission, Campbell took on what he called the “sinful” ICS toll charges and in 2012 pushed through new regulations in that state that slashed the maximum price-per-minute rate for calls between inmates and clergy members, lawyers or family members.
Campbell’s efforts on behalf of Louisiana prisoners were exactly what inspired the FCC to take up the ICS call—and in 2014 the agency issued its first new set of regulations, and also set out to grapple with the advent of video visitation, a service that GTL and other ICS providers offer to jails and prisons. National Public Radio aired a story on video visitation recently which reported that prisons are already using the communications technology to enable cash-strapped jailers to switch out video visitation with an actual visit with a loved one.
The former head of the California State Sheriffs’ Association, Martin Ryan, sent a letter in January to FCC secretary Marlene Dortch that implored the agency to back off from its proposed plans to regulate or cap fees on video visitation, citing “massive changes to ICS just implemented” by the agency’s previous ICS orders.
“We urge the commission to refrain from regulating these media,” Ryan wrote. “The new technology should not be impeded or disadvantaged by unwieldy regulation, and facilities should be given a meaningful chance to adjust to pending orders. Capping rates on video-calling services could stop this promising new technology in its tracks to the detriment of facilities and inmates.”
In its report, NPR found that in jails that use video visitation, 75 percent have “ended in-person visits altogether.” Bennett recalls conjugal visits with his ex-wife when he was serving his long sentence at San Quentin. “I had a wife and a daughter while I was in prison,” he recalls, “and we had family visits once a month, 72-hour visits, and it was wonderful.”
Quirk says he is meanwhile holding off on reintroducing a bill to ban local or county-level site commissions.
“It depends on what the FCC does,” he says.