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As a young public defender, we had an annual statewide conference. After hours, these conferences were uniformly outstanding social events, but the days were filled with inconsistent legal education. One of the most dreaded sessions was the annual legislative update. Typically, some obscure state representative — probably a judge’s second cousin who couldn’t care less about public defense — would deliver the update. Unsurprisingly, these presentations were dull and unmemorable.
One year was different. That year, a progressive African American state representative presented the legislative update. But before he launched into the pending legislation, he bestowed upon us a life lesson. When he was a young boy, his preacher taught him that whenever the “law and order boys” wanted to change a law or policy, the families in his neighborhood would inevitably suffer. The representative shared with us how that lesson guided his political career: whenever the “law and order boys” got behind a new proposal, he knew that trouble was coming for the communities that he represented and that we served. He then proceeded to tell us about all the pending bills pushed by the “law and order boys” and about his countermeasures to defeat them. This man’s spirit was wise and his message inspiring.
I now wonder how this wise state representative, long deceased, would react to the Law & Order Boys’ calls to jam cellphone signals in prisons. This demand is not a new one — a similar request was made in 2018 after South Carolina prisoners were charged with running a fraud against veterans — but it was recently reinvigorated after prosecutors in South Carolina unsealed an indictment against prisoners for a drug conspiracy. The Law & Order Boys (in this instance the S.C. Attorney General and the S.C. Department of Corrections Director) seized the opportunity to renew their demand that Congress alter the Communications Act of 1934 and the Telecommunications Act of 1996 to allow states to jam phone signals of contraband cellphones in prisons.
The Law & Order Boys have almost always called for harsher conditions for prisoners. When I was a young public defender, the Law & Order Boys demanded that prisons ban all televisions. The logic was that prisoners needed to hate prison so much that they would choose not to reoffend and that having a TV in prison would induce recidivism. The TV debate was not resolved until prison guards and wardens made clear that prisons are safer places when prisoners can watch some TV to help pass the time.
Both the old debate about televisions and the newer controversy about jamming cellphones touch on a deeper ideological divide. On one hand, some argue that prison life should be as miserable as possible to deter recidivism. On the other hand, many argue that although prison life is a punishment, it should be tolerable and rehabilitating, so that individuals can successfully rebuild their lives once released.
As for cellphone jamming, the Law & Order Boys actually have a logical argument. After all, cellphones are illegal in most prisons. And some prisoners with cellphone access have used the phones to participate in drug conspiracies, fraud scams, and the like. Furthermore, the underground market for cellphones creates security risks, as contraband is smuggled in and some guards have participated in the schemes. If cellphone signals are jammed, the argument goes, then the market for illegal phones will disappear.
Cellphones are readily available in jails and prisons. In 2018, the Mississippi Department of Corrections, with a prisoner population of 19,275, seized 11,863 cellphones.{1} 1 https://www.wlox.com/2019/04/25/new-state-law-gives-mdoc-new-way-stop-contraband-cell-phone-usage. In the United States, there are more than 2.3 million people in custody in jails and prisons. Cellphones are present in virtually every prison pod in America. As criminal defense lawyers, we have all been in the situation where we receive a call only to realize halfway into the call that it is likely from a contraband cellphone. The purpose of the call is to get solid legal advice, not to commit a crime. With the large number of cellphones that exists in jails and prisons, it is no surprise that occasionally there may be crimes committed through use of a contraband cellphone. It is, however, fair to point out how few prisoners are accused of committing crimes with contraband cellphones.
Perhaps the wise representative who was skeptical of the Law & Order Boys would agree that jamming cellphones is the best way to eliminate the market for contraband phones. But I think he would look at the debate from a different perspective. He would likely focus his attention on the barriers that prohibit prisoners, who are overwhelmingly poor, from staying connected with their loved ones.
The primary barrier is the profit motive of phone and video provider companies, which make millions off the poor families of prisoners. For example, a client called me from a detention center last week while I was in a Zoom court appearance. The call went to voicemail. For $5.16, I was able to retrieve the message from Securus, which has contracted with the local jail to provide phone and video services for prisoners. My guess is that half of the fee will go to the Sheriff’s Office in South Carolina, while the other half will be profit for Securus, a Texas corporation. A 40-minute video visit with the client costs $14. Global Tel-Link, a larger provider than Securus, charges prisoners up to $17 for a 15-minute call home. A law firm may be able to pay these fees, but many families of prisoners cannot. Prisoners who want to legally call their spouses or children have no option but to use the monopolistic service and pay its exorbitant fees.
As a matter of public policy, we should adopt practices that reduce recidivism. The research is clear that “the better family ties are maintained[,] the lower the recidivism rate” upon release. Moreover, “[t]he relationship between family ties and lower recidivism has been consistent across study populations, different periods, and different methodological procedures.”{2} 2 These quotes are pulled from our colleague Michael Levine’s book, 171 Easy Mitigating Factors, which has been a big help in many of my sentencing memos. The book can be found at https://www.levinemchenry.com/171-easy-mitigating-factors. The underlying research is from the following articles: Phyllis J. Newton, Jill Glazer & Kevin Blackwell, Gender, Individuality and the Federal Sentencing Guidelines, 8 Fed. Sent’g Rep. 148 (1995); see also Shirley R. Klein et al., Inmate Family Functioning, 46 Int’l J. Offender Therapy & Comp. Criminology 95, 99-100 (2002).
Therefore, one way to reduce recidivism is to establish “phone justice” for prisoners. “Phone justice” does not necessarily mean providing legal cellphones for each prisoner, but it does require accessible, inexpensive, and frequent phone and video communication between prisoners and their families. As phone and video systems are becoming increasingly inexpensive for the public, the fees being levied on prisoners and their families are unjust, and the time restrictions of use imposed by many prisons and jails are unreasonable.
On behalf of the 2.7 million children of prisoners in our country, let’s work with our affiliates and coalition partners to fight for phone justice so that prisoners can strengthen their family ties while in custody by staying in regular and inexpensive contact with their families. The Law & Order Boys aren’t likely to join us, but we need to get this done. I am pretty sure the wise state representative from so many years ago would agree.
About the Author
After spending 15 years as a public defender and nonprofit lawyer, Chris Adams opened his private practice in 2007. He devotes half of his practice to defending men and women facing the death penalty in federal and state courts throughout the country. He also defends people and businesses facing allegations or investigations in federal and state courts.
Christopher W. Adams (NACDL Life Member)
Adams & Bischoff, LLC
Charleston, South Carolina
843-277-0090
chris@adamsbischoff.com
www.adamsbischoff.com
