Can sheriffs collect lucrative commissions from inmate phone calls?
Supreme Judicial Court will hear arguments in case seeking to limit fees
FOR YEARS, Bristol County Sheriff Tom Hodgson’s office collected hundreds of thousands of dollars annually in telephone fees paid by family members, attorneys, and others who received calls from county jail inmates.
Similar structures are set up across the state’s county jail system, and advocates for prisoners have long been trying to get the Legislature to curb the at times exorbitant fees charged by jails for inmate phone calls. They say the fees exploit low-income families and make it difficult – and costly – for inmates to maintain ties that help them during their incarceration and make it easier for them to reintegrate into society once they are released.
On Monday, the Supreme Judicial Court will hear a case involving Hodgson’s office, which could limit county sheriffs’ ability to profit from telephone calls from jail by eliminating their authority to collect commissions from telephone companies handling inmate calls.
Bonnie Tenneriello, an attorney for Prisoners’ Legal Services, which is representing plaintiffs who are challenging the fees, argues that the way contracts are set up incentivizes sheriffs to choose a bid that benefits their office, rather than the inmates. “These kickbacks provide perverse incentive for counties to not get the lowest rate but get the best commission,” she said.
In 2015, Hodgson and Securus amended their contract to eliminate the commissions and instead require Securus to pay a lump sum of $820,000 for the four-year contract. Securus again made the money back through the rates it charged for phone calls.
Bristol County is not unique. CommonWealth reported in July 2020 that the cost of a 15-minute phone call from a Massachusetts jail ranged from $2 to $6, depending on the county. Every county at the time was receiving some form of “site commission” or minimum payment, and those totaled $11 million in 2019.
Hodgson’s office says a 2009 law which transferred control of the county jails from county to state government clearly stated that sheriffs would maintain administrative control over the jails, which includes the ability to collect revenue, even if their funding and oversight would now come through the state rather than county government. The law explicitly stated that revenue retained from phone calls could be kept by the sheriffs.
Jonathan Darling, a spokesperson for Hodgson’s office said the money collected from those commissions went to technological infrastructure on the phone system and to inmate programs and education. “It helped fund the [phone] system the inmates were using and programs that benefitted them inside the jail and out in the community, without increasing the fiscal burden on the taxpayers of Bristol County and the state of Massachusetts,” Darling said in an email.
A group of plaintiffs — former inmates, an attorney’s office, and a family member of a former inmate, represented by Prisoners’ Legal Services, the National Consumer Law Center, and private attorneys – sued, arguing that the law does not give Hodgson the authority to charge inflated fees on inmate phone calls. Their argument is the 2009 law let sheriffs keep any money they had collected from phone calls, but did not authorize them to charge and collect commissions. The plaintiffs argue that the Legislature has expressly authorized sheriffs to charge specific fees, like fees for haircuts, but it did not authorize phone commissions.
“It would make little sense for [the Legislature] to give correctional officials explicit authorization to charge prisoners for relatively trivial services, such as a haircut or the management of an inmate account, but acquiesce only implicitly to their authority to collect millions of dollars in telephone commissions and other payments that significantly increase the cost of communications between prisoners and the outside world,” attorneys for the plaintiffs wrote.
The ACLU of Massachusetts and other advocacy groups that seek to reform the prison system weighed in in an amicus brief arguing from a policy perspective that sheriffs should not be allowed to profit from prison phone calls. “This case is about a Massachusetts Sheriff’s Office that opened that spigot to enrich itself,” their brief says. “For a decade, the Bristol County Sheriff’s Office has exploited low-income families seeking to speak with their loved ones incarcerated at Bristol County Correctional Facilities. And, in doing so, it has denied families the opportunity to strengthen their bonds with loved ones incarcerated in Bristol County; to the contrary, the Sheriff’s Office has severed those bonds.”
“The Sheriff Office’s scheme to make money off calling services exploits and isolates the most marginalized Massachusetts residents at the precise moment that they most need the support of their loved ones—when they have been physically separated from their families and are adjusting to life behind bars,” the brief states.
A US District Court judge initially found in favor of Hodgson, but then vacated that decision and referred the case to the Supreme Judicial Court to interpret the Massachusetts law.
Yet in deciding this case, the SJC could be cautious about making policy, which is under the Legislature’s purview. Three bills currently pending before lawmakers would address issues related to rates for inmate phone calls, and Hodgson says the Legislature, not the courts, should set that policy.
“Plaintiffs have a right to pursue the policy agenda underlying their Complaint,” attorneys for Hodgson wrote in a court brief. “But this Court is not the appropriate venue and these claims are not the appropriate vehicle to obtain the change in public policy that they desire.”
Securus, which submitted its own court brief, argued similarly, “Plaintiffs’ efforts to create policy change can only properly be addressed through the legislative process.”
Tenneriello, the Prisoners’ Legal Services attorney, maintains that the court case and legislation address different issues. The case revolves around the legality of sheriffs collecting site commissions, while the legislation seeks to more directly regulate calling costs, by requiring sheriffs to provide free phone calls.
The landscape surrounding inmate phone calls has changed since the suit was filed. This summer, all 14 sheriffs announced an agreement to provide at least 10 free minutes of phone calls to inmates each week and to reduce the cost of calls to no more than 14 cents a minute.
A fact sheet prepared by activist Karina Wilkinson, who is working with Prisoners’ Legal Services on its legislative campaign to reduce the cost of calls, found, based on public records requests, that as of September, all county jails were now charging 14 cents a minute for inmate phone calls, except for Hampden County, which charged 12 cents. The state Department of Correction charged between 12 and 16 cents, depending on the type of call.All but three counties were receiving commissions from the phone company handling inmate calls. They varied from 23 percent to 85 percent of revenues, or in one case a flat payment of $18,000 a month.
Bristol is now one of the three counties that has no site commissions, along with Franklin and Berkshire counties. But the lawsuit remains active since it asks for damages from the time the commissions were being charged, and because it challenges both the commissions as well as other cash payments that Hodgson requires Securus to make as a condition of the contract.