Originally published in The Intercept on August 7, 2020.
THE CORONAVIRUS PANDEMIC has put into sharp relief an issue criminal justice reformers have been raising for years: the astronomical rates that prison-phone corporations charge for phone and video calls to incarcerated individuals. Now, as Congress debates the next coronavirus stimulus deal, some lawmakers are pushing for provisions to make such calls free.
On Thursday, 17 Democratic senators, led by Sens. Amy Klobuchar and Tammy Duckworth, sent a letter to Mitch McConnell and Chuck Schumer urging them to make this a federal priority in the next package.
“Before the pandemic, more than 50 percent of families with an incarcerated loved one struggled to pay for housing and food, and one in 29 children had a parent incarcerated,” the letter stated. “In addition, one in three families with an incarcerated loved one went into debt in order to stay connected with them, and women shouldered 87 percent of these costs. Now, as many facilities have suspended in-person visits and families face layoffs, furloughs, and evictions due to the pandemic, these calls are more necessary—and cost prohibitive—than ever.”
In some jurisdictions, a local 15-minute phone call can run as high as $25, a cost that was untenable even before the current economic crisis. The Federal Communications Commission currently has jurisdiction to regulate interstate calls, but more than 80 percent of prison phone calls are in-state, meaning the vast majority of calls for the 2 million incarcerated individuals across the U.S. could not be regulated unless Congress changed the law — a challenge highlighted in the senators’ letter.
“Without action from Congress to address the rates for in-state calls, families will continue to suffer,” they wrote.
The pandemic and the nationwide protests for racial justice following George Floyd’s murder brought significant attention to conditions in U.S. jails and prisons, where there is a disproportionate rate of Covid-19 cases as compared to the broader U.S population; one recent estimate put it at 5.5 times higher. At the same time, the pandemic has made it even harder for incarcerated people to communicate with their loved ones, due to the combined stresses of expensive phone calls and the lack of in-person visitation. It’s an issue federal officials have been quietly chipping away at for months.
IN 2015, THE FCC announced it would act to address predatory in-state calling rates, but after telecom companies sued, FCC Chair Ajit Pai, a Trump appointee, in 2017 stopped defending his agency’s right to regulate those calls. Later that year, a federal court ruled that the FCC has the authority to regulate interstate prison phone calls but not in-state ones.
In June 2019, Duckworth, along with Sens. Rob Portman, R-Ohio; Cory Booker, D-N.J.; Brian Schatz, D-Hawaii; Ed Markey, D-Mass.; and Angus King, I-Maine, introduced a bill to expand the FCC’s authority to regulate prison phone calls. The Martha Wright-Reed Just and Reasonable Communications Act is named in honor of Martha Wright, a woman who filed a lawsuit in 2000 against the private prison where her grandson was living, saying the costs of calling him were unconscionably steep. The court ruled that Wright’s complaint was an issue for the FCC to handle, so she then moved to petition the agency to intervene. In 2013, the agency finally acted, voting to cap rates for interstate phone calls in jails and prisons.
Little changed following the introduction of Duckworth’s bill last year, but then the pandemic hit. In the first stimulus package authorized by Congress, to advocates’ surprise, language was included to make all phone calls free in federal facilities for the duration of the national emergency.
“It wasn’t clear who led the effort with the CARES Act … but after years of advocacy, the prison phone justice movement certainly has its allies in Congress, and it paid off in a bizarre moment,” said Bianca Tylek, the executive director of Worth Rises, a group focused on dismantling the prison industry. “Unfortunately, the downside of that bill is that it’s only for the duration of Covid.”
Meanwhile in the Senate, Duckworth and Klobuchar continued to push on the issue. In mid-April, Duckworth organized a letter, signed by 18 other senators, urging Pai, the FCC chair, to pressure telecommunication providers to commit to reducing call rates in prisons and jails. “The FCC is uniquely positioned to seek commitments from these providers,” the senators wrote. “We applaud the FCC’s efforts to encourage traditional providers to bolster connectivity for Americans impacted by the coronavirus, most notably through the Keep Americans Connected Pledge; however, this effort does not adequately reflect the dynamics of prison and jail telecommunication systems.”
In May, Klobuchar and Dick Durbin, D-Ill., led 27 other senators in sending a bicameral letter to the Department of Homeland Security and ICE urging them to provide free phone calls to detained people during the pandemic. In the House, Reps. Jerrold Nadler and Zoe Logfren organized 50 colleagues to also sign on.
Then in July, Pai surprised advocates by coming out forcefully on the issue. On July 16, the FCC announced a new proposed rule to significantly lower the per-minute rate caps for interstate prison phone calls, from $.21 (prepaid) and $0.25 (collect) to $0.14 for calls from prisons and $0.16 for calls from jails. The proposed rule would also cap rates for international prison phone calls for the first time. In an accompanying blog post, Pai wrote, “Not surprisingly, without effective regulation, rates for inmate calling services can be unjustly and unreasonably high and make it difficult for inmates and their loved ones to stay connected.”
Four days later, Pai sent a letter to the president of the National Association of Regulatory Utility Commissioners, a trade association of state utility commissioners, urging the group to take action on the “unjust and unreasonable rates” of in-state prison phone calls, which he noted disproportionately hurt Black Americans. In 33 states, rates are at least double the federal cap, and in 27 states, the first-minute charge can be up to 26 times higher than that of an interstate call. In his letter Pai pointed to recent statements NARUC made following George Floyd’s killing about addressing discrimination and racial injustice. “These are noble sentiments … but it is time for these sentiments to manifest in action,” Pai wrote.
On July 23, NARUC issued a response to Pai’s letter, saying they “agree” and will ask their members to “take a comprehensive review in their jurisdictions around these rates and take action where warranted.” NARUC president Brandon Presley noted that in some states, corrections officials negotiate prison phone call contracts “outside the purview of state public service commissions,” so they would need to be involved, in addition to governors. But NARUC opposes expanding the FCC’s power over in-state prison calls, and in the last few weeks Pai has begun campaigning more vocally for Congress to give his agency that authority. While Pai has not endorsed Duckworth’s bill specifically, he has endorsed the most significant component of her bill. On Thursday the FCC voted to advance the proposed rule to lower interstate prison phone call rates, setting the stage for public comment.
Tylek said no activist anticipated this momentum from the FCC. “We can’t say we expected Commissioner Pai would come out and say, ‘State regulators, all of you are writing Black Lives Matter statements but aren’t doing anything about prison phone calls,’” she said, adding, “Having a pro-industry, Trump-appointee conservative acknowledging the issue is very positive for the movement and a welcome change.”
Pressure has continued to ramp up in the Senate to get this included in the next stimulus package. Advocates are planning to deliver a petition to Congress next week with over 75,000 signatures urging the passage of phone justice legislation, and this past Tuesday, Klobuchar formally signed onto Duckworth’s bill, and joined her in circulating the Dear Colleague letter on Thursday. Advocates say they are particularly excited about Klobuchar’s leadership since she has a good record of being able to corral Republicans onto legislation.
The real Republican gatekeeper on this issue is Sen. Roger Wicker, the chair of the Commerce, Science, and Transportation Committee. Tylek says Wicker’s office has met with them, but he has not committed to support the legislation. Wicker’s office did not return requests for comment.