Cellphones have become a part of most Americans daily lives, either as a way to stay in contact with community near and far, or as an all-in-one personal assistant.[1] The rate of cellphone ownership in general is very consistent across various socioeconomic factors including gender, education level, and income.[2] As this form of communication becomes more ingrained as the standard, the United States is forced to think about how incarcerated individuals are able to engage in this new form of effective communication, given this population is under the complete subjugation of the state or federal government. This article assesses some of the different rights to communication incarcerated individuals have, the average costs for incarcerated individuals and their communities to engage in telephone communication, what are equitable communication standards and what can be done to achieve such standards within the carcel system regardless of income or financial resources.

Rights to Communication

            When a person is convicted of a crime and sentenced to a period of incarceration, she is still entitled to certain rights under the United States Constitution and various statutes.[3] Within these rights, there is a right to access telephones so incarcerated persons can keep in contact with their community stemming from the First Amendment right to free speech.[4] Allowing people access to telephone services is beneficial for maintaining relationships with communities outside of prison or jail, easing stress, and boosting morale.[5] Such access is even more important for individuals with limited literacy, as alternative communications like sending and receiving letters would be more difficult, and in-person visits can be unfeasible depending on the location of the incarcerated individual and their community.[6]

Though it is well establish that incarcerated individuals have a right of access to telephone communication, there is much debate about the specific requirements and standards that this right entails.[7] The right does not provide a substantial amount of access to this form of communication.[8] Rather, prisons must only have a realistic way to ensure access to prisoners; the call duration can be limited to even under 10 minutes and all calls can be monitored.[9]  Unfortunately, everything comes with a cost. In most prisons, telephone calls are made through operating programs that require the incarcerated person and/or her community to pay for their own calls.[10] The courts have held that there is no obligation for the states to subsidize phone services for incarcerated people, though there may be an exception for indigent inmates.[11] Many incarcerated individuals come from communities struggling with poverty and the exception for indigent inmates has yet to be tested. Thus, the current standards can cause incarcerated individuals’ right to communicate with their communities to be dependent on their financial situation.[12]

Average Costs

            In 2021, the average cost of a 15-minute phone call from local jails varies from state to state, ranging from $1.05 to $3.15 per call, and are often more expensive than calls from prisons.[13] This is after a long and continual fight to lower the cost of phone access for incarcerated individuals, where average rates were as high as a dollar per minute.[14] Despite this progress in average cost, there are still many jails charging more for in-state calls than the FCC allows for out-of-state calls, with calls costing as much as $16.50 per call for a 15-minute call.[15] There are also costs associated with starting accounts, adding funds, closing accounts, and other “administrative fees” that the telephone companies impose on incarcerated individuals and their families.[16]

Actions from the Federal Communications Commission (FCC), advocates, and other regulatory bodies have led to the decrease in cost.[17] Most prisons and jails charge different rates for phone calls “depending on whether the call is between people in the same state or people in different states.”[18] The FCC capped the rates for out of states calls in 2014, but was unable to cap rates for in-state calls as that exceeded the agency’s authority.[19] There is also the problem of communication companies expanding their services beyond just phone calls, such as video conferencing, so that they can charge higher rates that the FCC has condoned.[20] This is a great threat to a recognized right of incarcerated individuals because the high costs could make it virtually impossible for poor inmates to communicate with their families. Further, this lack of communication would place these inmates at a larger disadvantage within the carceral system as they would not receive the positive emotional benefits that other inmates receive from telephone access.[21] In addition, these disadvantaged inmates would be even more isolated from their home community, making it harder for reintegration after they have served their sentence.[22]

Although the progress is still impeded by these on-going problems, President Biden recently signed the Martha Wright-Reed Just and Reasonable Communication Act of 2022 into law.[23] This law grants the FCC the power to regulate in-state telephone call and video-call costs from correctional facilities so that prices are “just and reasonable.”[24] This is a big win for phone justice advocates, and the regulations from the FCC are expected to go into effect in 2024.[25] Outside of the FCC, states can also pass their own regulations on the price of telephone services within its correctional facilities. Some states like California and Connecticut have already started this work, both providing state sponsored calls in their prisons.[26]

 Conclusion

In an age where it is very inexpensive to make telephone calls for the general public, policy makers must evaluate why prison telecom companies are allowed to continue to charge incarcerated individuals and their families at higher rates for these types of services. Furthermore, federal, state, and local governments must take steps to ensure that the latest progress achieved through the Martha Wright-Reed Just and Reasonable Communication Act of 2022 does not lose momentum. As the nation looks closely at its practices surrounding incarceration and state supervision, we must ensure that one’s right to communication is not reliant on one’s financial situation.

[1] Mobile Fact Sheet, Pew Research Center, https://www.pewresearch.org/internet/fact-sheet/mobile/ (last visited Jan. 1, 2024) (“[In 2021] 97% [of Americans] now own a cellphone of some kind. The share of Americans that own a smart phone is now 85%, up from just 35% in… 2011.).

[2] See id.

[3] See § 1:1. Introduction, 1 Rights of Prisoners § 1:1 (5th ed.); see also Thornburgh v. Abbott, 490 U.S. 401, 407 (1989).

[4] See § 14:19. Telephone Access, 3 Rights of Prisoners § 14:19 (5th ed.).

[5] See id.

[6] See id.; see also Nancy G. La Vigne, The cost of keeping prisoners hundreds of miles from home, Urban Institute: Urban Wire (Feb. 3, 2014), https://www.urban.org/urban-wire/cost-keeping-prisoners-hundreds-miles-home#:~:text=For%20state%20prisoners%2C%20the%20distance,but%20averages%20about%20100%20miles. (“For state prisoners, the distance from home varies depending on the state’s size and its correctional policies, but averages about 100 miles. Not so in the federal prison system, where the average inmate is incarcerated 500 miles from home…”).

[7] See § 14:19. Telephone Access, 3 Rights of Prisoners § 14:19 (5th ed.).

[8] See § 14:20. Limitations on Telephone Access, 3 Rights of Prisoners § 14:20 (5th ed.).

[9] See id.

[10] See § 14:22. Phone Charges, 3 Rights of Prisoners § 14:22 (5th ed.).

[11] See id.

[12] See Harding et al., Home is Hard to Find: Neighborhoods, Institutions, and the Residential Trajectories of Returning Prisoners, Ann Am Acad Pol Soc Sci. 647(1): 214-236, at 215 (May 1, 2013), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3640590/

[13] See Peter Wagner and Wanda Bertram, State of Phone Justice 2022: The Problem, the Progress, and What’s Next, Prison Policy Initiative, (Dec. 2022), https://www.prisonpolicy.org/phones/state_of_phone_justice_2022.html#agencysponsoredcalling (last visited Jan. 1, 2024).

[14] See Peter Wagner, FCC Commissioners Reveal Details of Their Proposal to Protect All Families of Incarcerated People, Prison Policy Initiative, (October 1, 2015), https://www.prisonpolicy.org/blog/2015/10/01/clyburn-proposal/ (last visited Jan. 1, 2024).

[15] See id.

[16] See id. (Many of these fees have been capped at lower rates by the FCC actions in 2015-16.)

[17] Wagner & Bertram, supra note 13.

[18] Id.

[19] Id., n.6.

[20] See id.

[21] See § 14:19. Telephone Access, supra note 4.

[22]See id.

[23] Martha Wright-Reed Just and Reasonable Communication Act of 2022, Pub. L. No. 117-338, https://www.congress.gov/bill/117th-congress/senate-bill/1541/titles.

[24] Id., see also Wanda Bertram, Since You Asked: What’s Next for Prison and Jail Phone Justice Now that the Martha Wright-Reed Just and Reasonable Communication Act is law?, Prison Policy Initiative,  (Jan. 19, 2023), https://www.prisonpolicy.org/blog/2023/01/19/martha-wright-reed-act/ (last visited Jan. 1, 2024).

[25]See id.

[26] Wagner & Bertram, supra note 13.