Reach Out And Put The Touch On Someone

The New York State Department of Corrections had a long running scam, known only to incarcerated prisoners, their families and those of us who had the misfortune of getting a collect call from them.  There’s nothing like seeing a $25 collect call on your phone bill when a client calls to say “hi”.  The New York Times describes it thus:

New York, like many states, used the phones in its prisons as a profit center. MCI, which provided the phone service, agreed to pay the prison system 57.5 percent of the fees it charged for prisoners’ collect calls. The state then allowed MCI to charge outrageously high rates: 16 cents or more a minute plus a $3 surcharge for every call. Families paid as much as $300 to $400 a month, according to one advocacy group.

The state did away with the practice in 2007, but the suit already filed proceeded, seeking a refund for those who paid.  The Court of Appeals’ 5-1 decision in Walton v. NYS DOCS put it to an end, affirming dismissal and concluding that no constitutional rights were violated.  The Times editorial offers this as a message to others:

What was left for the New York State Court of Appeals to decide was whether family members were due refunds. They contended that the excessive fees were an illegal tax that violated inmates’ equal protection rights. This week, the court, by a 5-to-1 vote, rejected the suit.

The decision is regrettable. But even the majority noted that the plaintiffs had strong arguments that the high rates were bad policy because they made it difficult for inmates to maintain family and community ties, and that released prisoners who lack these ties are more likely to return to a life of crime.

That is a message other states should heed. Prison systems may not have to subsidize these calls, but they should not be using them to balance their budgets. When prisoners cannot afford to keep in touch with their wives, husbands, parents and children, everyone pays.
Unfortunately, this isn’t the message sent by the Court of Appeals.  The message was that it hated the policy, but there was nothing unlawful about it.  For the state less concerned about New York sensibilities, or prisoners, the message is that this is a great way to collect revenue off the backs of inmates, who now have no cause to complain, so long as it doesn’t disturb the taxpayers too much.

While some people might find this policy reprehensible, many simply won’t care.  If it doesn’t affect them, or they don’t carry the heavy burden of social conscience, then why not raise revenue on the backs of criminals.  After all, they’re criminals.  Who better?

While I can’t fault the majority decision in this case for its technical rationale, Judge Robert Smith’s dissent offers a clear vision of where the technical law fails to recognize harder realities.

The majority holds that DOCS was engaging in market transactions, drawing an analogy to a per-call commission that might be charged by an owner of real property for use of a pay telephone “in a public airport or a private shopping mall” (majority op at 12). The majority overlooks an obvious distinction: the people who use the phones at airports and shopping malls are not prevented from leaving the premises by armed guards. . . It is not exploiting, to quote Judge Posner once more, “the monopoly of force that is the definition of government” (Arsberry, 244 F3d at 566).

Here, the State has used its imprisonment of inmates as a source of economic leverage. I cannot accept this as legitimate market activity. If the State can do this, why could it not charge for in-person visits to prison inmates — at a rate 50 times the cost of making such visits possible? Why could it not charge commissions — limited not by the State’s costs, but only by what the traffic would bear — on sums earned by inmates in work release programs? Why could it not charge prisoners who seek furloughs an amount limited only by the prisoners’ willingness to pay? I cannot believe that the majority would characterize any of these transactions as normal attempts by a government agency to turn a profit in a marketplace, but the majority offers no adequate explanation of why the transactions in this case are different.

It’s absurd to suggest, as the majority does, that there is no difference between prisoners and any other telephone users. There are no market transactions in prison.  At least not with the state.  While it’s true that telephone providers gouge wherever they can, a practice that everyone but major shareholders finds reprehensible, prisoners are different. They have no option.  It’s pay or be isolated.  Worse still, it isn’t even the prisoner who pays, but the wife or mother at home.  She did nothing to deserve this.

Of course, since the practice has been stopped here, and the Legislature has forbidden it for the future, the pressure was off the court to remedy an ongoing situation.  Now, it was just about the refund.  But as Judge Smith points out, there remains a laundry list of new ways the state could grab some loose change from prisoners, and who’s to say that a new governor with a budget deficit won’t see this as a viable revenue stream for as long as he can get away with it?

It’s legitimate to sentence prisoners and restrain their freedom.  It’s hardly legitimate to take an insular group with absolutely no bargaining power and suck money from them and the few who care about them.  The great power of the state to impose whatever burden it pleases on a group that is held at gunpoint is not an acceptable way to fund the DOCS coffers.  And if the Court of Appeals of the State of New York has rejected the arguments that this tyranny of the minority is unconstitutional, it’s unlikely that many other states will be shaking in their boots at the thought of doing so.

Some lesson.