SJC says sheriffs can charge commissions for prison phone calls
Court leaves issue up to Legislature
MASSACHUSETTS SHERIFFS HAVE the legal authority to raise revenue from contracts for inmate phone calls, the Supreme Judicial Court ruled Tuesday.
Bristol County Sheriff Thomas Hodgson, whose office was at the center of the lawsuit, called the decision “a win for taxpayers.” “In a decision released today by the SJC, the court has supported my efforts allowing my fellow sheriffs and I the authority to generate outside revenues rather than looking to our residents, who are already overburdened by rising costs and financial hurdles brought on by record inflation,” Hodgson said in a statement. “This decision is not only a victory for the taxpayers and citizens of Massachusetts, but also for sheriffs who continue to manage our corrections operations in a fiscally responsible manner.”
The case stemmed from policies implemented by Hodgson, who had for years collected hundreds of thousands of dollars annually in fees charged to inmates and their loved ones for telephone calls. Although the conservative Republican sheriff has been a lightning rod for criticism over a range of tough prison policies, the contract is not unique. Almost all the county jails in the state have at times charged high rates for phone calls, though the practice has recently become more limited. Hodgson’s office said the revenue pays for the phone technology and for prison programs.
A group of 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 over Hodgson’s contracts. They argued that a 2009 state law, which brought the county sheriffs under the control of state government, does not allow sheriffs to charge inflated fees and collect commissions from inmate phone calls.
The contract at issue was an arrangement Hodgson entered into with Texas-based Securus Technologies. The company charged families for calls with jailed inmates. Securus then paid Hodgson’s office site commissions, based on a percentage of the revenue Securus received. (A later contract adjustment eliminated the commissions and instead had Securus paying a fixed amount for administrators and technology.)
The plaintiffs called this “an illegal kickback scheme resulting in inflated rates for inmate telephone calls and impeding inmates’ ability to communicate with loved ones and counsel,” according to the SJC’s decision. A US District Court judge ruled in favor of Hodgson, but the plaintiffs appealed to the SJC to have the state high court decide whether the 2009 law allows inmate phone call commissions.
The 2009 law lays out specific fees the sheriffs are allowed to charge, but does not mention phone call fees. It includes a provision stating that revenues collected from inmate phone calls will remain with the sheriff’s office, rather than being transferred to the state. The SJC concludes, based on this language, that lawmakers knew when they passed the law that sheriffs were profiting from phone calls and did not object.
“Had the Legislature intended to put an end to the sheriff’s practice of collecting inmate telephone revenues, it could have done so. Instead, [the statute] expressly provides that the sheriff may continue to retain inmate telephone revenues even after the transfer of the sheriff’s office to the Commonwealth,” Budd wrote.
The legal ruling does not end the legislative debate over the high cost of prison phone calls. Prisoners’ rights advocates have been trying for years to get the Legislature to make prison phone calls free. CommonWealth reported in 2020 that the cost of a 5-minute local call ranged from $50 cents to $6 at state and county correctional facilities, and two private phone companies earned $11 million from prison calls in 2019.The fiscal 2023 budget proposal passed by the House would require jails and prisons to give inmates free phone calls and would create a $20 million state fund to reimburse sheriffs and state prisons. The proposal is not included in the Senate’s version of the budget, but could be added in either through an amendment or when the final version is negotiated in a House-Senate conference committee.
Jim Pingeon, litigation director at Prisoners’ Legal Services, said the decision essentially throws the question back to the Legislature. “From our perspective, this decision makes it clear that the Legislature needs to take action to pass the bill that’s pending before it that would make telephone costs free to families,” Pingeon said.