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Federal Judge Rules on Constitutionality of Kickback in Contract Between New York State Prisons and MCI

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Center for Constitutional Rights announced a major victory on August 30, 2005 for the families and friends of people incarcerated in New York State prisons. The federal trial court in Byrd v. Goord issued an opinion upholding the constitutional challenge lodged by inmates’ families, ministers, friends, and counselors to the inmate telephone system in New York, which is designed to provide the Department of Correctional Services with millions of dollars in “commissions” or “kickbacks.”

“The decision,” according to CCR Deputy Legal Director Barbara Olshansky, “is an important victory for inmates’ families seeking to maintain ties with their loved ones in prison. It is also a resounding confirmation by the court of the principle that inmates do not lose their constitutional rights when they enter the prison gates, and that no person may be penalized or taxed for seeking to maintain their relationship with a loved one in prison.”

CCR cooperating attorney Moshe Maimon of Levy, Phillips & Konigsberg, stated that “based on this decision and our evidence in this case, we are confident that the court will find that the surcharges imposed by the Department of Correctional Services on inmate calls are an unconstitutional infringement on the rights of prisoners and their families to keep in touch.”

On October 27, 2000, Ms. Olshansky and Mr. Maimon argued on behalf of New York State inmates and their families to oppose the State's and MCI's motions to dismiss the case. After the motions were argued before the Honorable George B. Daniels, MCI filed for bankruptcy and the entire matter was referred to bankruptcy court, causing much of the delay in getting a resolution to the dismissal motions. Since that time, the State has received approximately $125 million from inmate telephone calls, in what has essentially been an unlegislated tax on inmates’ families and friends.

Although the Byrd v. Goord lawsuit challenged the restriction of calls to collect only, the limitation of statewide service to one provider only, and the 60% commission/kickback taken by the State, the federal court upheld only the challenge to the State’s kickback. The court gave approval for the First Amendment, due process, and equal protection claims to go forward.

The decision comes shortly after CCR filed an appeal earlier this month in Walton v. MCI and NYSDOCS, a lawsuit challenging the prison telephone contract in State court. The New York State Assembly recently passed the Family Connections Bill to end the State’s kickback and reform the contract at the end of its session, while the companion Senate Bill remains in committee.

“This is a hugely important for the family members of prisoners” explained CCR attorney Rachel Meeropol, lead attorney in the Walton case. “We are currently fighting this outrageous policy in federal court, state court, in the legislature, and on the streets. The Court’s decision today – that families have the right to stay connected, and that the loved ones of prisoners cannot be singled out to fund correctional services – is a big success, and we are expecting many more.”

Annette Dickerson, CCR’s statewide coordinator of the New York Campaign for Telephone Justice, said, “The victory sends a signal that this unjust and unlawful practice is nearing the end of its days. And the fewer impediments to prisoners speaking with family, the better for all of us: maintaining contact with family is one of the most important factors in staying out of trouble and out of prison when a person is released.”

Currently, the only way for families to speak with their loved ones in most state prisons is for prisoners to call collect, and family members who accept the calls must accept the terms dictated by the phone company. Since states receive kickback commissions from the phone companies who receive the contract, there is no incentive to seek competitive bids. The contract goes to the company that provides the highest kickback, not the lowest fees. Rates for such calls are set well above market rates: in New York State, families pay a $3 connection fee and 16¢ per minute a 630 percent mark up over regular residential consumer rates. Current rates at Federal prisons are as low as 7¢ a minute. Meanwhile, those who accept these calls face staggering bills and must often choose between basic necessities and the chance to speak with their loved ones. Since prisoners come disproportionately from poor communities, the burden of staying in touch falls heaviest on those with the least ability to pay.

The New York Campaign for Telephone Justice works to end the kickback contract between MCI and the New York State Department of Correctional Services, and deliver choice, affordability, and equitable service to the families and friends of those incarcerated in New York State. The campaign is a project of the Center for Constitutional Rights, in partnership with Prison Families Community Forum and Prison Families of New York, Inc.

 

The Center for Constitutional Rights is dedicated to advancing and protecting the rights guaranteed by the United States Constitution and the Universal Declaration of Human Rights. Founded in 1966 by attorneys who represented civil rights movements in the South, CCR is a non-profit legal and educational organization committed to the creative use of law as a positive force for social change.