Prisoners are less likely to reoffend if they’re able to talk to their families while they’re incarcerated. Citing this fact, the American Federal Communications Commission (FCC) two years ago capped the price of a call from a prison pay phone. Prisons had been offering exclusive contracts to a few phone companies, and were getting away with price gouging because only prisoners and poor families were burdened, while the phone companies and state governments made a killing. The price of a 15-minute call from any Maryland prison soared to $5.15, secured through nearly $5 million in yearly kickbacks to the state. Some prisons tried to raise even more money by replacing in-person visits with digital conferencing. Fifteen-minute video sessions in Knox County, Tennessee were costing $5.99; the state took a little less than half.
Almost as soon as Donald Trump was inaugurated, he made the Republican lawyer Ajit Pai chairman of the FCC. The New York Times reported that Pai ‘released about a dozen actions’ in his first week, ‘many buried in the agency’s website and not publicly announced, stunning consumer advocacy groups and telecom analysts’. One of those actions was abandoning the agency’s caps on prisoner phone calls.
Across the US, courts charge criminal defendants fees for police investigation, arrest costs, a public defender, trial jurors and even jail time. In 1991, around a quarter of inmates said they owed court-imposed fines, restitution or fees. By 2004, the last time the Department of Justice conducted the survey, that number was 66 per cent. It’s almost certainly higher now. Some jurisdictions go further than simply charging for ‘use’ of the criminal legal system and directly sell off components of law enforcement. The private businesses that run outsourced probation services charge their ‘clients’ high fees, with the power to send the police to arrest those who can’t pay.
One of the reasons for these trends is that police and prosecutors who generate their own revenue are less beholden to the democratically elected legislators who are supposed to oversee them. Another is that wealthy property owners have prevented their local governments from raising taxes. The fee model makes for a ‘get what you pay for, nothing more’ approach to government.
In 2015, the FCC voted by three to two to limit prison phone charges at 11 cents a minute. Pai and the other Republican commissioner at the time were the two ‘no’ votes. Pai said that the rate caps were ‘well intentioned’, but warned they might not survive a legal challenge if the industry sued. He argued that the FCC’s statutory duty to ‘promote the widespread deployment’ of pay phones is limited to making sure companies are paid enough to make pay phones worth their while. This is different, he said, from making sure rates aren’t exploiting the poor: the FCC could help raise rates but not lower them. Was Pai right that the industry would win? We may never know. The FCC’s new leadership will no longer defend the regulations in court.
The lopsided negotiations between phone companies and prisons are just one element of a system in which private spending decides state priorities, punishment has become an easy answer to every social ill, and incarceration ought to pay.