MR. MARC FISHERWelcome back. I'm Marc Fisher of the Washington Post sitting in for Kojo. Ten years ago, a D.C. grandmother named Martha Wright was having trouble staying in touch with her grandson who was in prison. As a retiree on a fixed income, the rates the prison charged for phone calls were simply too high. She and others filed a petition with the FCC to lower the cost of a prison call. A decade later the FCC has now issued new rules capping the rates of phone calls for interstate calls to and from prisons.

MR. MARC FISHERThe handful of major telecom companies that serve prisons are appealing the rate caps. And complicating matters is the fact that in many places, including both Maryland and Virginia, the state or municipality has a financial interest in the whole deal. And joining us to discuss this in studio, Stephanie Joyce is a partner with the Communication's Mobile and Technology Group at Arent Fox law firm that represents Securus, one of the major telecom companies serving prison systems. And welcome to the program.

MS. STEPHANIE JOYCEThank you. Thank you for having me.

FISHERMarc Mauer is the executive director of the Sentencing Project. He's here as well. Thanks for coming in.

MR. MARC MAUERGood to be here.

FISHERAnd on the phone we have Arnett Gaston who teaches in the Department of Criminology and Criminal Justice at the University of Maryland. He's a clinical psychologist and former director of the Prince George's County Department of Corrections. Thanks for being with us.

DR. ARNETT GASTONMy pleasure.

FISHERWell, Marc Mauer, let's start with you. What was the issue for Martha Wright and the other petitioners who challenged these rates?

MAUERWell, the problem is that people in prison when they want to call home for their friends and family have to make collect calls. And the way the project is structured in most states, the rates they pay are extremely high, as much as $1 per minute for a call that might cost the rest of us 5 cents or so on the outside.

MAUERSo the issue was, are the rates excessively high? And also the correction systems, in many cases, are getting essentially kickbacks from the phone company for the contracts, money that goes back into the correction system, the general fund or specific fund. So essentially low-income families who represent most prisoners are essentially paying very high rates, having to subsidize the correction system.

FISHERYou can join our conversation by calling 1-800-433-8850 or email us at kojo@wamu.org. And Stephanie Joyce, what did the FCC decide to do about this and what did your client Securus feel about that?

JOYCEThe FCC issued its order last fall. It's a rather complicated order of many parts. Principally they set rate caps of 21 cents per minutes for a debit call, 25 cents a minute for collect. They also issued an unprecedented rule that the rates must be cost based and they will be subject to investigation to ensure that the costs of service are properly being recovered. And that an excessive margin is not being realized by the inmate phone company.

JOYCEThey also imposed some very onerous reporting requirements also unprecedented in this industry and in this country that would've required all of the phone companies to provide reams of paper full of data about their calling systems and their calling traffic.

FISHERAnd a company you represent Securus provides phone services for prisons across the country?

JOYCEThat is true. Securus exclusively serves prisons. It serves prisons of all types in today approximately 45 U.S. states.

FISHERAnd what's sort of the general rate they were charging prisoners for phone calls?

JOYCEA very simple question that I cannot answer in a simple way. These phone rates are set in a very specific way to each facility. Inmate phones are provided pursuant to exclusive contracts. These contracts are awards after public bidding. Every facility has a different size, different number of inmates, different phone policies about when inmates can use the phone. That has a tremendous effect on the ability of the phone company to amortize its costs for the calls from that particular facility.

JOYCEAnd that is why each facility gets its own bid. They pick the winner. That would be the rate for that facility but they vary tremendously across the country.

FISHERBut some examples I've seen say that it can be as high as $17 for a 15-minute phone call. This is not like putting a dime in the payphone.

JOYCEThat is true. It is not putting a dime in the payphone. There are some sites from which the phone calls can be $16.84 for a 15-minute call. There are also several sites where the calls are 10 cents or less per minute or even 65 cents for a 15-minute interstate phone call.

FISHERAnd for those places where you are paying $1 a minute or more, is there any reason for that other then the state and the company want to make a lot of money?

JOYCENo. It has to do with the call traffic from that facility, the cost of serving the facility if it's rural. If it's far away from a metro center then it is more expensive to reach that jail. It is also a function -- and we should get to it now -- of site commissions, which my compatriot here has called kickbacks. But these site commissions are set by the facility policy or even by state statutes such as in Maryland or Texas. These funds go toward deferring the cost of the facility as well as the direct costs that the facility incurs in order to make phones available to inmates.

JOYCEAnd in some instances they go to inmate welfare funds, victim crime -- or excuse me, victims funds and also help for indigent inmates.

FISHERAnnett Gaston, you were director of the Department of Corrections in Prince Georges County and you worked in New York's correction system. In your experience, where did the money from telephone calls go?

GASTONPrimarily they went into inmate services. What would happen particularly in Prince Georges County and when I was commanding officer for Rikers Island, we would charge a rental for the space that it took for the phone to be attached to a wall. That would be considered rental space. And those funds would be placed back into inmate commissary funds for indigent inmates for services and provisions that, for the most part, indigent inmates would not otherwise have access t.

FISHERAnd Marc Mauer, obviously these are expensive phone calls but on the other hand, these folks are in prison. Do they have a right to cheap phone calls? Is that something that should be provided to them as a matter of right or is there some social benefit to giving them cheap phone calls?

MAUERWell, I think there's a huge social benefit. I mean, we know that one of the most significant factors that contributes to people making it on the outside is strong family support. People who have a network that's very positive that can support them are more likely to do better. So not only they, but the community benefits from doing that as well. Whether or not they have an absolute right -- and people in prison do have rights to certain things -- you know, the state has to provide adequate medical care. It has to provide adequate nutrition.

MAUERYou know, if we think that there should be more inmate services going on, it's a strange way to fund that to say, well let's tax the largely low-income family members of the prisoners in order to provide that. We wouldn't think I hope that we would provide meal service or medical services by charging the family members a tax essentially. But that's basically the rationale that's given for this.

FISHERAnd so Stephanie Joyce, shouldn't it be the policy of these prisons to foster relationships with families and make it easy for them to have that kind of social contact that could ease their way back into the community?

JOYCEThat goal is certainly valid and valuable. However, they also must balance other goals such as maintaining prison safety and public security and ensuring that the phone systems are high quality and are not inadvertently used in the continuation of criminal activity. The question becomes this. The FCC is an agency charged with regulating telecommunications. And here, when we speak of the social benefit of strong family ties and such and making decisions that are going to deprive city, county and state prisons of site commission revenue, that is a certain amount of social policy engineering that I'm not sure the FCC is really an expert in executing.

JOYCEAnd that is among the reasons that Securus and several carriers and several departments of corrections have appealed this order to the court of appeals here in the D.C. circuit.

FISHERYou can join our conversation by calling 1-800-433-8850. Let us know if you think phone calls are a right that prisoners should have. And do you think that states and municipalities should collect any revenue from prisoner phone calls? Have you had to stay in touch with a loved one in prison, 1-800-433-8850? Or you can email us at kojo -- I'm sorry, to kojo@wamu.org.

JOYCESo this question that you brought up, Stephanie Joyce, of the additional responsibility that the companies providing phone service have to make sure that these calls are not being used in some criminal enterprise. Do the companies that provide phone service also provide some sort of surveillance service that allows prisoners to monitor what's going -- being said on phone calls?

JOYCEYes, Marc, emphatically so. The most important aspect of any prison phone system is that it is secure, that the persons whom inmates call are identifiable and that the very carefully walled call path from the inmate to its intended called party is not circumvented. The technology that runs inmate phones is highly specialized, is nothing like what we see in our homes or in any business enterprise telephone service.

JOYCEAll of that costs money. It requires ongoing maintenance. It requires a lot of supervision, both by the telephone company but also by the staffs of these city jails and county jails and DOC facilities. It's very expensive to maintain. These companies are not highly differentiated companies. They focus on inmate phones. They spend a tremendous proportion of the revenue on research and development and maintenance.

FISHERMar Mauer from the Sentencing Project, some states have actually ended these commissions or profits that -- but others rely on them including Maryland. We reached out to the Maryland Department of Public Safety and Correctional Services and got a note saying that the commissions they receive from facility phones go to what's called the inmate welfare fund, which is used to fund educational and recreational programs for inmates. Last year they got $4.4 million for that program from these phone fees.

FISHERSo is that a legitimate use of that money? And would you rather that the calls were just free and funded out of tax dollars?

MAUERWell, the fundamental question is, you know, if the citizens of Maryland, the legislature of Maryland decide that we need a certain level of a prison population, whatever it may be, than I think there's an obligation to employ constitutional standards for everything it needs to take place in a prison as well as to make it less likely people recidivate when they're released from prison.

MAUERSo again if we think that inmates should have meals, should have medical care, should have recreation facility, should have other kinds of services, then I think the state has an obligation to provide that at the level that it's at. But to go into a bidding war essentially with companies to see how much money will essentially be thrown back into the correction system to fund services, either these are necessary or they're not. Again, it's low-income families who are torn between buying food for their kids and taking a call from a loved one in prison. And I don't think that's the way we should be funding necessary services.

FISHERWe have a Tweet from Debra -- yeah, just one second -- we have a Tweet from Debra who says that "prisoners don't pay the cost of phone calls. Their families do. It becomes a tax on having a family member in prison," Arnett Gaston.

GASTONYes, if I may interject. First of all, in terms of -- there are certain collateral costs associated with this type of phone call. And they do include security. One of the main problems we have and a major responsibility of any correctional system is that the inmates making the calls, a lot abuse it by intimidating witnesses. So we have to make sure that there's some process in place where they cannot contact witnesses or other defendants. And as a result of that, there has to be special technologies, special mechanisms, as was previously mentioned, to minimize those kinds of security breaches and threaten and intimidation to other people.

GASTONThese are additional costs that are not found in a regular phone call. Now also I should mention that in this instance, as a correctional administrator of some -- geez, I started in 1960 -- I found there's a real benefit to inmates maintaining communication with their families. And those few instances where it could cause an operational problem, the benefits far outweigh these comparatively incidental situations. However, another reality is that prison administrators per say don't have control over the costs.

GASTONThese are collateral costs associated with whatever it is, as was previously mentioned. The technology might entail what the economy -- it is a free enterprise and market-driven system. So I think that if we look at what may be some of the causes, they are not necessarily germane to the prison, per se. But there are a number of other factors that should also be considered.

FISHEROkay. Let's hear from David in Silver Spring. David, you're on the air.

DAVIDHi. Wow, what a treat. I just called in randomly because apparently I can weigh in on this. My son has recently gone to jail. I can tell you -- and I wish I had listened to more of your callers -- to kind of get some more information before I kind of added to the pot but as a parent, yeah, you want your kids to be able to get in touch with you. They're scared. I'm learning a lot about prisoners and especially young ones and depending on what kind of crime they've done.

DAVIDMy son's in a real scare. He had to borrow a friend's pin number to be able to make a phone call. The process -- every process involving an inmate along the way is full of red tape. And a lot of the times you get to court and they don't show up. They didn't transport them, there's a lot of things that don't happen. That phone call -- I mean, there's a lot of rights that our prisoners are losing similar to other cultures who have lost rights along the way.

DAVIDJust -- it's very frustrating when you take away the base communication level, especially the quality of the call, the expense. Everything costs money when you have a prisoner -- a loved one. It's very convoluted and I'm learning as I go, but I want to weigh in as an individual right for a loved one to contact a parent. I think that's crucial. Like the previous caller said, crucial for healing as well. It's got to be part of the process.

FISHERThanks for -- thank you, David. Marc Mauer, there's probably a great deal of research about prisoners in contact with family. What do we know about that?

MAUERWell, we know that it makes a huge difference. And, you know, the problem is that by setting up these extremely high rates by which family members may not be able to take the calls, one of the issues we have, a security issue sometimes in prisons, that prisoners get cell phones and they use this to make calls because they want to stay in touch with their family and because a cell phone is often cheaper. You have a situation in California, there's lots of cell phones, lots of prisoners get in trouble for having a cell phone.

MAUERThey get a disciplinary record which then means that their chances for parole release have gone down and some of this is related to the high cost of phone calls. So if you want to talk about the collateral effects of all the -- the ripple effects of what's happening here, we have to look at this in a much bigger way, I think.

FISHERStephanie Joyce, should prisoners have the right to stay in touch with family?

JOYCEThey do have that right. And my client is in business to insure that these telephone calls go through. That is what they are selling. I would, however, really like to weigh in on this cell phone issue. Anna Eshoo successfully passed a bill -- Representative Eshoo from California -- in 2011 that rendered cell phones contraband in all federal prisons. Why? Because they are completely unmonitored. You cannot hear the conversation. You don't know who they're calling. You don't know what's being said. And the question whether it's cheaper, I find very suspect.

JOYCEBecause in the industry research it's been revealed that it costs approximately $500 to smuggle a cell phone into a prison because they are contraband. And so I question whether it's really a money issue or whether it's an intent to circumvent security.

FISHERAnd somebody was telling me you have a story about a district attorney in Louisiana who had an experience with a phone security system.

JOYCEYes. I met this gentleman a few years ago when Representative Rush had convened a hearing about inmate phones. This gentleman had been visiting his congressman on some other issue, had walked by, seen the hearing, walked in, asked me what is going on. I explained to him that inmate phone rates are being challenged. And he said to me, "I can't believe that they're making this an issue, that they're coming after you.

JOYCEThe inmate phone system in Louisiana saved my life twice when it was discovered, through monitoring a call, that an inmate had put a hit out on my life. And the policeman, happily, got to my house before the hit man did." That is serious. That is life threatening. That is what my client is in business to prevent. And I find that a very powerful anecdote for why prison phones should not be viewed as typical residential or your pay phone corner service.

FISHERArnett Gaston, I mean, that is a compelling story, but as a psychologist who's worked in corrections for many years, what's your sense of how much regular phone contact prisoners should be allowed to have and how easy should that be?

GASTONWell, first of all, let me say there is no doubt in my mind, as a psychologist or as a prison administrator, that that type of communication is not only essential to the well-being of the person incarcerated and the family that's impacted by it, but also to the operation of a facility. It adds a stabilizing effect. Like I said, I'm something of a dinosaur. I've been in this business since 1960.

GASTONAnd I can relate to experiences that were prior to the introduction of telephones and experiences subsequent to them. And I can say unequivocally that it is a positive introduction to the process. You know, I'm sure, and all the other participants know as well, if not better than I, that family stability is a situation that contributes to the stability of any individual, inmates included.

GASTONSo there are many, many positive aspects to it. There are situations, however, where these situations can be abused, witness intimidation, learning about contracts -- let me say, the anecdotal instance that was provided is not that anecdotal. There are many, many, many cases where we've had gangs in New York and as well as Prince George's County, but more so in New York City, where gangs have tried to conduct drug business, hits, initiations over the telephone. And we did not have the ability to intervene and work.

GASTONThere could be a lot of other situations that could be threatening to individuals, as well as groups, that would not have been able to have been thwarted had we not had this. Security costs money. In all of the facilities I have ever managed throughout my entire career, the largest component of my budget went toward security, security operations.

FISHEROkay.

GASTONSo I mean that, unfortunately, is an idiosyncrasy of the beast. But I do believe in the effectiveness of maintaining communication between families, between inmates, but we should have the ability to monitor those. Naturally, the phone calls between -- the legal phone calls are sacrosanct. We should not be able to listen in on them for obvious reasons. But, again, we must have the ability to intervene to protect the public.

FISHEROkay.

GASTONThe bottom line is that's what we are supposed to do.

FISHERWhen we come back, after a short break, we will continue our conversation and take more of your calls about calls to prisoners and broaden our conversation. We'll talk about sentencing reform and mandatory minimums. This is "The Kojo Nnamdi Show." I'm Marc Fisher.

FISHERWelcome back. I'm Marc Fisher, of the Washington Post, sitting in for Kojo Nnamdi. And we are talking about prisoner's rights, and specifically what contact prisoner's should be allowed to have by phone with family members, how much that should cost, and whether that ought to be regulated or subsidized or a source of profits for the companies that provide the phone service.

FISHERWe're talking with Arnett Gaston, who teaches in the Department of Criminology and Criminal Justice at the University of Maryland. Stephanie Joyce is a partner with Arent Fox Law Firm, which represents Securus, which is one of the major companies providing phone service in prisons. And Marc Mauer, executive director of the Sentencing Project. And let's go right to your calls. And here is Ken, in Gaithersburg. Ken, you're on the air.

KENYes. I have several points. The first is that I find it appalling that we are charging inmates for the cost of phones. If we are going to incarcerate people, we are responsible for them, and frankly it's a public burden, but that's just how it is. The charging of rates for things like phones or food or any other privileges is reminiscent of third world and Eastern Bloc countries. And it's also a discriminatory practice based on financial ability.

KENThe other point that I would like to make is that we've seen a tremendous shift in privatization of the prison system. And I think this is a direct result of the desire to make everything a profit center.

FISHEROkay.

KENAnd, you know, the constitutional rights begin. And I'll take my answer off the air.

FISHERMarc Mauer, is this part of a larger problem of prisons becoming profit centers?

MAUERWell, unfortunately, I think it is. I mean most prisoners are still in a publicly-run institution, but more than 100,000 people today are in a private prison, in contracts with the federal or state governments. There's no indication that the private prisons have done any kind of better job overall than public prisons. In fact, there are challenges in prisons overall in terms of recidivism programming, but it's not as if the private operators and their incentives have done any better on that.

MAUERIn many cases they have higher turnovers because they have profit margins they're trying to make. The staff don't stay as long. Inmates are shipped out of state to other private prisons. So it has a whole set of ripple effects that I think are very bad for corrections field overall.

FISHERLet's go to Fred, in Baltimore. Fred, you're on the air.

FREDHi. The first place, the inmates don't have to make a phone call. They can write a letter for a 40-some cents stamp. They are choosing to use the phone. Secondly, their family doesn't have to accept the collect calls. They can merely refuse and write a letter saying, "What did you want?" And thirdly, the thing about the state imposing a tax upon poor people, that's called the lottery. We do that every day and poor people gladly sign up and pay that tax. Go ahead.

FISHEROkay. Stephanie Joyce, what's your sense of that?

JOYCEWell, it certainly is true that the U.S. postal system is still a valid way to communicate. I would add that some of the research that we've seen, including that which the FCC relied upon, indicated that family contact is important and does contribute to reducing recidivism. However, those studies discussed all different forms of contact, including letters, including in-person visits. And they weren't expressly and only about telephone calls. In terms of a tax, let's remember this is a service being rendered. These phone calls are accepted. They are occurring. These people are having a service given to them and in exchange for that there is, of course, a cost.

FISHERAnd, Arnett Gaston, what do relatives of prisoners expect in terms of contact with their loved ones? How regular ought that be and how easy ought that be?

GASTONWell, that really differs with the type of association between the inmate and the family member or members. Again, it really depends on the type of the association. There are those who feel that they should have daily contact. And then, like, say for instance, wives, mothers, you know, mothers of children who are the children of the person incarcerated, and then there are others who feel just minimal contact, the same level of contact they would have had had they been in the free society.

GASTONSo it's very hard to put a figure on it. There's a very, very wide range. But, again, I think it has to be placed in perspective. Certainly, as I said, from an operational standpoint, I have found -- as many of my colleagues have found -- that the greater the communication, the better the operational procedural can be maintained because it does reduce a certain level of tension in facilities. In terms of the cost, yeah, there are some real concerns over the cost. Particularly to those who cannot afford to pay them.

GASTONBut, again, it must be placed in perspective. One could easily argue that indigent persons or homeless people, would they not have an equal right to communicate with their loved ones? So, again, it's in perspective, but I think the main thing is we have to also recognize the problem transcends the institution. We're talking about free enterprise, market-driven situation. And maybe there is a necessity for caps.

FISHEROkay.

GASTONBut as a prison administrator in a position to accurately comment on that.

FISHEROkay. Here's Amber, in Sterling. Amber, you're on the air. Amber?

AMBERYes.

FISHERGo ahead.

AMBERMy son recently went to jail out West. And I found it invaluable to be able to speak to him. He made a choice, these are the consequences. And I love him. And that's how I express myself to help him stay grounded and focused and deal with the reality of his choice. However, that being said, one thing I did learn is that there is something called jail ATM, which allows me to send messages, which I was then able to have a more extensive communication with him without spending 43 cents a minute.

AMBERThirdly, I did mail…

FISHERAre those essentially text messages?

AMBERNo. They're not text messages. They're like you compose a message, you send an email.

FISHERAn email, okay.

AMBERAnd I found that service. I also found out how -- I mean, I stepped in and made a lot of calls to find out how everything works, to send him some books, some motivational books and things to keep his mind occupied. However, the mail system is -- the previous gentleman spoke -- it's not that simple. There's a lot of screening going on. You're only allowed to mail postcards. There's a lot of limitations to that. So I was very happy to see those things in place, however, I do agree there's a lot of privatization going on with this.

AMBERBecause before I spent my money responsibly and put out a credit card and gave my social security number and all of my information I checked out the organization. But I couldn't find anything online about these companies. I found very little about what they do, why is it costing me 43 cents plus a minute, and I think as a consumer I need to know that if I'm going to spend my money. Furthermore, when my son did get out I had money left over in the account, and calling these organizations and talking to somebody in Mexico one day, somebody in Alabama the next day, they couldn't find my account.

AMBERThey have no record of the money that I spent, I should call back in 60 days. It's disorganized.

FISHEROkay.

AMBERIt needs to be regulated. And they are making some money at this, at the expense of the consumer and somebody who's got a very serious issue to address.

FISHERThank you.

AMBERAnd that's really all I have to say about it.

FISHERThanks, Amber.

AMBERYou're welcome.

FISHERMarc Mauer, do you see any consensus emerging on this and similar issues? You know, there's been a lot in the news lately about mandatory minimum sentences, about phasing out solitary confinement. Do you see on these kinds of issues a bridge developing between left and right about prisoners' rights and sentencing?

MAUERYeah, I think we're seeing a remarkable shift, really over the last decade, looking more towards what works in corrections, looking more towards to how do we work with people coming out of prison. But most recently, around sentencing reform, the excessive mandatory minimum penalties, especially for federal drug crimes. It's not getting attention at very high levels. Senate judiciary passed a very strong bill out several weeks ago.

MAUERAnd what's most intriguing is the political coalition that came together. On the Democratic side we had long-time liberals, Senator Durbin of Illinois, Senator Leahy of Vermont. The Republican side we seen Sen. Mike Lee of Utah, Sen. Rand Paul of Kentucky, a long-time sort of Tea Party/Libertarian types. And so what we're seeing is I think this critique of the drug war, excessive sentencing, the cost of incarceration, the real injustices, coming from both sides together now and finally calling attention to the fact that we've gone far too heavily into punishment. We need to have a much more balanced approach to policy.

FISHERIt was fascinating to see Attorney General Eric Holder and Sen. Rand Paul coming together against mandatory minimums and for voting rights for ex-felons. Is that something that you had consciously worked on or had you given up on the Republican conservatives coming around on those issues?

MAUERI didn't introduce the attorney general to Rand Paul. They did that on their own. But we've seen over 15 years now states, both Democratic and Republican led, have been reexamining their restrictions on voting rights for people with felony convictions. In 11 states, including Senator Paul's home of Kentucky, you can lose your voting rights even for life, after you've completed your felony sentence. So there's currently legislation moving forward. Kentucky, interestingly enough, Senator Paul himself testified in the Kentucky legislature in support of that. We're seeing some real change there.

FISHERMarc Mauer is executive director of the Sentencing Project. We've also been joined by Stephanie Joyce, a partner at Arent Fox, which represents Securus, one of the major telecom companies serving prison systems. And Arnett Gaston of the University of Maryland. Before we wrap up today's "Kojo Nnamdi Show," a quick note regarding the previous hour. On today's Tech Tuesday, we discussed net neutrality. And we specifically discussed the implications of the Netflix/Comcast deal.

FISHERWe neglected to mention that Comcast is an underwriter at WAMU 88.5. The WAMU's underwriting and programming departments are separated by a firewall, but we should have noted the underwriting relationship. I'm Marc Fisher of the Washington Post. Thanks so much for joining us.