IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT, DIVISION EIGHT

IN RE COUNTY INMATE
TELEPHONE SERVICE CASES

Civil No. B291341
On Appeal from the Superior Court of
Los Angeles County, Case No. JCCP
4897, Hon. Carolyn B. Kuhl, Judge
Presiding.

__________________________________________________
APPLICATION TO FILE AMICUS CURIAE BRIEF AND BRIEF OF
CIVIL AND HUMAN RIGHTS ORGANIZATIONS IN SUPPORT OF
PLAINTIFFS-APPELLANTS
_________________________________________________

Catherine Sweetser, Esq., SBN 271142
SCHONBRUN SEPLOW
HARRIS & HOFFMAN LLP
11543 W. Olympic Blvd.
Los Angeles, CA 90064
Tel: (310) 396-0731
Email: csweetser@sshhlaw.com

1

TABLE OF CONTENTS
Page(s)
APPLICATION TO FILE AMICUS CURIAE BRIEF AND BRIEF OF CIVIL
AND HUMAN RIGHTS ORGANIZATIONS IN SUPPORT OF PLAINTIFFSAPPELLANTS ..................................................................................................... 2
AMICUS CURIAE BRIEF OF CIVIL AND HUMAN RIGHTS
ORGANIZATIONS IN SUPPORT OF PLAINTIFFS-APPELLANTS .............. 8
I.

INTRODUCTION .......................................................................................... 8

II. STATEMENT OF FACTS ............................................................................. 9
A. The ICS Market has Developed into an Oligopoly ................................... 9
B. ICS Prices are Exorbitantly High. ........................................................... 11
C. ICS Markets That Do Not Use Site Commissions Produce
Substantially Lower Prices and Higher Usage Rates. .......................... 12
III. ARGUMENT ................................................................................................ 13
I. ICS Providers Have No Incentive to Challenge Site Commissions
Because Plaintiffs Pay the Costs of the Commissions Through
Higher Price Rates. .......................................................................... 13
A. Site Commissions Result in Higher Prices for Incarcerated
Persons and their Family Members, and Thus Cause Serious
Harm to the Plaintiffs.................................................................... 14
B. Telephone Calls Are Often the Only Means for Incarcerated
Individuals to Maintain Contact with Loved Ones. ..................... 17
C. The High Rates Particularly Harm Low-Income Individuals .... 20
II. Eliminating Site Commissions Will Result in Lower ICS Rates
for Appellants. .................................................................................. 23
III. Removing Site Commissions from Appellee’s ICS Systems Will
Produce Desirable Social Outcomes for Appellants and Their
Communities. .................................................................................... 28
A. High Prices Take a Psychological Toll on Incarcerated People
That Lasts Past the Time of Incarceration .................................. 28

i

TABLE OF CONTENTS -CONT’D
Page(s)
B. High Prices Decrease the Ability of an Incarcerated Person to
Maintain Relationships Both Inside and Outside the Jail . ........ 30
C. The High Prices Have a Lasting Impact on Psychological and
Social Well-being After Incarceration, Including Lower Rates
of Recidivism. ................................................................................. 31
D. The High Prices Harm Children of Incarcerated People ............. 33
IV. CONCLUSION ............................................................................................. 36
CERTIFICATE OF SERVICE ........................................................................... 37

ii

TABLE OF AUTHORITIES
Page(s)
Cases
Besaro Mobile Home Park, LLC v. City of Fremont,
204 Cal. App. 4th 345 (2012) ...................................................................... 19-20
Brown v. Plata,
563 U.S. 493 (2011)............................................................................................ 6
Global Tel*Link v. Federal Communications Commission,
866 F.3d 397 (D.C. Cir. 2017) ................................................................. Passim
In the Matter of Rates for Interstate Inmate Calling Services,
28 FCC Rcd. 14107 (2013) ....................................................................... Passim
In the Matter of Rates for Interstate Inmate Calling Services,
29 FCC Rcd. 13170 (2014) ............................................................................... 25
Pennsylvania Dep’t of Corr. v. Yeskey,
524 U.S. 206 (1998)............................................................................................ 6
Statutes
42 U.S.C. § 17501 (2008) ................................................................................... 34
California Code of Civil Procedure § 1263.320(a) ............................................ 17
Regulations
28 CFR § 540.100(a) (1996) ............................................................................... 28
Wis. Admin. Code DOC § 309.39(1) (1998) ....................................................... 28
Other Authorities
Allison Hollihan & Michelle Portlock, Osborne Ass'n, Video Visiting in
Corrections: Benefits, Limitations, and Implementation Considerations,
OSBORNE ASS’N 6 (2014), https://bit.ly/31ylI28 .............................................. 29

iii

TABLE OF AUTHORITIES – CONT’D
Page(s)
Other Authorities
Artika Tyner et al., Phone Calls Creating Lifelines for Prisoners and Their
Families: A Retrospective Case Study on the Campaign for Prison Phone
Justice in Minnesota, 30(2) TRINITY L. REV. 83 (2015). .................... Passim
Bernadette Rabuy and Daniel Kopf, Prisons of Poverty: Uncovering the Preincarceration Incomes of the Imprisoned, PRISON POL’Y INITIATIVE (July
9, 2015), available at
https://www.prisonpolicy.org/reports/income.html ................................. 20, 21
Brandi Collins, Groups urge Congresswoman Lee to push back against federal
prison phone kickbacks, SAN FRANCISCO BAY VIEW (Sept. 7, 2012),
https://bit.ly/2N2Jy28/ .................................................................................... 24
Bruce Western et al., Stress and Hardship After Prison 120(5) AMER. J.
SOCIOLOGY 1512, 1533 (2015); Creasie Finne Hairston, Family Ties During
Imprisonment: Do They Influence Future Criminal Activity? 52 FED.
PROBATION 48, 49-50 (1988). .......................................................................... 32
California Rates July 2017, PRISON PHONE JUSTICE,
https://www.prisonphonejustice.org/CA/california-rates-july-2017 ............. 27
Christy Visher et al., Returning Home: Understanding the Challenges of
Prisoner Reentry, URB. INST. 116-9 (2004) ..................................................... 32
Civic Letter RE: Inmate Calling Services – Public Comment for WC
Docket No. 12-375 ........................................................................................... 15
Clarissa Ramon, Truth About Prison Phones, HUFFINGTON POST (Nov. 5,
2012), https://www.huffpost.com/entry/truth-about-prisonphones_b_1856657 .......................................................................................... 24
Collateral Costs: Incarceration’s Effect on Economic Mobility, PEW
CHARITABLE TRUSTS 4 (2010)) ........................................................................ 34
Coming Home: A Family’s Guide to Reunification, N.Y. STATE DEPT. OF
CORRECTIONAL SERV.,
http://www.doccs.ny.gov/FamilyGuide/ComingHomeBrochure.pdf ............. 33
iv

TABLE OF AUTHORITIES – CONT’D
Page(s)
Other Authorities - Continued
Courtney E. Martin, Closing the Racial Wealth Gap, N.Y. Times, April 23,
2019, available at https://www.nytimes.com/2019/04/23/opinion/closing-theracial-wealth-gap.html.................................................................................... 23
Creasie Finne Hairston, Family Ties During Imprisonment: Do They
Influence Future Criminal Activity?,
52 Fed. Probation 48 (1988) .......................................................... 32, 35, 36, 38
Daniel Moritz-Rabson, 'Prison Slavery': Inmates are Paid Cents While
Manufacturing Products Sold to Government, NEWSWEEK (Aug. 28, 2018),
available at https://bit.ly/2KJMKgj. ............................................................... 20
David Harding et al., Making Ends Meet after Prison: How Former Prisoners
Use Employment, Social Support, Public Benefits, and Crime to Meet their
Basic Material Needs, U. MICH. POPULATION STUD. CTR. (2011) ................. 32
Drew Kukorowski, The price to call home: state-sanctioned monopolization in
the prison phone industry, PRISON POL’Y INITIATIVE (Sept. 11, 2012),
https://bit.ly/2yUaV6p. .............................................................................. 16, 32
Editorial, Costly Phone Calls for Inmates, N.Y. Times (Sept. 23, 2012),
available at https://nyti.ms/2P4cGZI ....................................................... 12, 24
Erin Jordan, Is the cost of county jail calls highway robbery? THE GAZETTE
(May 31, 2019), https://bit.ly/2H5CBcJ. ......................................................... 11
Fabrice Guilbaud, Working in Prison: Time as Experienced by InmateWorkers, 51(5) REVUE FRANÇAISE DE SOCIOLOGIE 41 (2010) ........................ 29
Federal Bureau of Prisons phone rates and kickbacks, PRISON PHONE
JUSTICE, https://www.prisonphonejustice.org/state/BOP/ ............................ 25
Jennifer Cobbina, From Prison to Home: Women’s Pathways in and out of
Crime, (May 2009) (unpublished Ph.D. dissertation, University of Missouri St. Louis) .......................................................................................................... 33

v

TABLE OF AUTHORITIES – CONT’D
Page(s)
Other Authorities - Continued
Jim Elliott, Postal workers say millennials perplexed by “snail mail”, Coast
Mountain News (Feb. 14, 2019) ..................................................................... 19
John E. Dannenberg, Nationwide PLN Survey Examines Prison Phone
Contracts, Kickbacks 22 (4) PRISON LEGAL NEWS 1, 4 (2011) .......... 10, 27
John E. Dannenberg and Alex Friedmann, FCC Order Heralds Hope for
Reform of Prison Phone Industry, 24 (12) PRISON LEGAL NEWS 1, 7
(2013). ............................................................................................. 10-11, 15, 24
Joshua Cochran, The Ties that Bind or the Ties that Break: Examining the
Relationship between Visitation and Prisoner Misconduct, 40 J. CRIM. JUST.
433, 439 (2012) .......................................................................................... 31, 34
Julie Poehlmann, Incarcerated Mothers' Contact With Children, Perceived
Family Relationships, and Depressive Symptoms, 19(3) J. FAM. PSYCHOL.
350, 353 (2005). ............................................................................................... 34
Justin Carver, An efficiency analysis of contracts for the provision of telephone
services to prisons,
54 Fed. Comm. L. J. (2002) ..................................................................... passim
Katy Reckdahl, State PSC considers lowering ‘sinful’ prison phone rates, THE
LENS (Nov. 15, 2012), https://bit.ly/2N23G4D ......................................... 21, 22
Kim Moody et. al, Prevalence of dyslexia among Texas prison inmates, 96(6)
TEX. MEDICINE 69 (2000) ................................................................................ 18
Laurel Davis and Rebecca J. Shlafer, Mental health of adolescents with
currently and formerly incarcerated parents, 54 J. ADOLESC. 120, 124
(2017) ............................................................................................................... 35
Lauren E. Glaze and Laura M. Maruschak, Parents in Prison and Their
Minor Children, BUREAU OF JUST. STATISTICS 2 (Aug. 2008),
https://bit.ly/2kkCUTf ..................................................................................... 34

vi

TABLE OF AUTHORITIES – CONT’D
Page(s)
Other Authorities - Continued
Leah Sakala, Return to Sender: Postcard-Only Mail Policies in Jail, PRISON
POL'Y INITIATIVE (Feb. 7, 2013),
https://www.prisonpolicy.org/postcards/report.html ..................................... 19
Leticia Miranda, The Criminal Cost of Talking to a Loved One Behind Bars,
COLORLINES (May 14, 2012), https://www.colorlines.com/articles/criminalcost-talking-loved-one-behind-bars ................................................................ 22
Letter from Margaret diZerega, Director, Family Justice Program, to Marlene
H. Dortch, Secretary, FCC, WC Docket No. 12-375 ...................................... 35
Mayor London Breed and Sheriff Vicki Hennessy Announce Plan for San
Francisco to Make All Jail Phone Calls Free and End County Markups in
the Jail Commissary, https://sfmayor.org/article/mayor-london-breed-andsheriff-vicki-hennessy-announce-plan-san-francisco-make-all-jail .............. 23
Medicaid Expansion & Criminal Justice-Involved Populations: Opportunities
for Health Care for the Homeless Community, NAT’L HEALTH CARE FOR THE
HOMELESS COUNCIL (Jan. 2013),
https://www.soa.org/globalassets/assets/Files/Sections/healthMedicaidExpansion-Justice-Final.pdf ........................................................... 21
Nancy La Vigne et al., Examining the Effect of Incarceration and In-Prison
Family Contact on Prisoners' Family Relationships, 21(4) J. CONTEMPORARY
CRIM. JUST. 314 (2005) .................................................................................... 34
Paul Zimmerman and Susan Flaherty, Location monopolies and prison phone
rates, 47 (2) Q. REV. ECON. AND FIN. 261, 262 (2007). ....................... 14, 15, 16
Peter Wagner and Alexi Jones, State of Phone Justice: Local jails, state
prisons, and private phone providers, PRISON POL’Y INITIATIVE (Feb. 2019),
https://www.prisonpolicy.org/phones/state_of_phone_justice.html.............. 11
Report and Order and Further Notice of Proposed Rulemaking, In the Matter
of Rates for Interstate Inmate Calling Services, 28 FCC Rcd. 14107
(2013) ....................................................................................................... passim

vii

TABLE OF AUTHORITIES – CONT’D
Page(s)
Other Authorities - Continued
Saneta deVuono-Powell et al., Who Pays? The True Cost of Incarceration on
Families, ELLA BAKER CTR. FOR HUM RTS. 32 (2015),
https://bit.ly/1M9n7ja ............................................................................. 22, 30
Shannon Sims, The end of American prison visits: jails end face-to-face
contact – and families suffer, THE GUARDIAN (Dec. 9, 2017),
https://bit.ly/2C0y5Io ...................................................................................... 18
Second Chance Act of 2007: Community Safety Through Recidivism
Prevention, PL 110-199, § 3(b)(6), 122 Stat. 657 (2008) ............................... 31
Second Report and Order and Third Further Notice of Proposed Rulemaking,
In the Matter of Rates for Interstate Inmate Calling Services, 30 FCC Rcd.
12763 (2015) .................................................................................................... 27
Songul Duran et al., Anger and Tolerance Levels of the Inmates in Prison,
32(1) ARCHIVES OF PSYCHIATRIC NURSING 66 (2018) .................................... 30
Statement of Commissioner Jessica Rosenworcel Re: Rates for Interstate
Inmate Calling Services (WC Docket No. 12-375). ....................................... 28
Steven Jackson, Ex-Communication: Competition and Collusion in the U.S.
Prison Telephone Industry, 22(4) CRITICAL STUD. IN MEDIA
COMMUNICATION (2005) ........................................................................ 9, 10
Todd Shields, Prison Phones Prove Captive Market for Private Equity,
BLOOMBERG (Oct. 3, 2012), https://bloom.bg/2YP03G3 ................................. 24
Victoria Law, $15 for 15 Minutes: How Courts are Letting Prison Phone
Companies Gouge Incarcerated People, THE INTERCEPT (June 16, 2017),
https://bit.ly/2ZYxBhL .................................................................................... 33
Wendy Sawyer, How much do incarcerated people earn in each state?, PRISON
POL’Y INITIATIVE (Apr. 10, 2017),
https://www.prisonpolicy.org/blog/2017/04/10/wages/ ................................... 22

viii

TABLE OF AUTHORITIES – CONT’D
Page(s)
Other Authorities - Continued
William Bales and Daniel Mears, Inmate Social Ties and the Transition to
Society: Does Visitation Reduce Recidivism?, 45(3) J. RESEARCH CRIME AND
DELINQUENCY 287 (2008).......................................................................... 30, 31
Zoann Snyder-Joy and Teresa Carlo, Parenting Through Prison Walls:
Incarcerated Mothers and Children's Visitation Programs, in CRIME
CONTROL AND WOMEN: FEMINIST IMPLICATIONS OF CRIMINAL JUSTICE
POLICY 144 (Susan Miller, ed.) (1998) ............................................................ 33

ix

To the Presiding Judge of the Second Appellate District, Division
Eight:
Pursuant to Rule 8.200 of the California Rules of Court, the Human
Rights Defense Center, Public Counsel, the American Civil Liberties Union
(ACLU) of Southern California, Worth Rises, the Prison Law Office and
Impact Fund respectfully request leave to file the attached amicus curiae
brief in support of Plaintiffs-Appellants.
Interest of Amici
This brief is submitted by six organizations that advocate for the fair
and equal treatment of all people within the criminal justice system and for
an end to the imposition of unduly punitive and harmful costs, fines and fees
on those who cannot afford to pay them. Moreover, some of the organizations
regularly communicate with incarcerated persons and thus have an interest
in ensuring communication between incarcerated persons and advocacy
groups is not unduly and punitively expensive.
The Human Rights Defense Center (HRDC) is a non-profit
charitable corporation headquartered in Florida that advocates in
furtherance of the human rights of people held in state and federal prisons,
local jails, immigration detention centers, civil commitment facilities, Bureau
of Indian Affairs jails, juvenile facilities, and military prisons. HRDC’s
advocacy efforts include publishing two monthly publications, Prison Legal
2

News, which covers national and international news and litigation
concerning prisons and jails, as well as Criminal Legal News, which is
focused on criminal law and procedure and policing issues. HRDC also
publishes and distributes self-help reference books for prisoners, and engages
in state and federal court litigation on prisoner rights issues, including
wrongful death, public records, class actions, and Section 1983 civil rights
litigation concerning the First Amendment rights of prisoners and their
correspondents. HRDC regularly communicates with people who are
incarcerated in prisons and jails throughout the country. Further, HRDC has
spent decades advocating for reasonable prisoner phone rates that benefit
both prisoners and society as a whole.
Public Counsel is the nation’s largest public interest law firm
specializing in delivering pro bono legal services to low-income communities.
In 2018, Public Counsel staff and pro bono partners served more than 16,000
people and 300 nonprofit organizations. Of the 5,700 people to whom we
provided full representation, 3,800, or two-thirds, achieved legal successes,
resulting in $11 million in revenue for our clients. These clients are served
through the eight legal projects that Public Counsel operates: Children’s
Rights, Community Development, Consumer Rights & Economic Justice,
Homelessness Prevention, Immigrants’ Rights, Veterans’ Rights, the Audrey
Irmas Project for Women & Girls’ Rights, and an impact litigation project,
3

Opportunity Under Law. The mission of the Consumer Rights & Economic
Justice project, is to advance economic justice by providing legal counsel for
low-income individuals and their families, addressing inequalities in
bargaining power, opposing those who take advantage of the vulnerable, and
holding wrongdoers accountable. In addition to assisting victims of predatory
lenders and fraud in all of its forms, the Consumer Rights & Economic
Justice Project litigates and advocates to end the criminalization of poverty,
and to take down corporate profiteering from system-involved persons and
their families. One of its class action impact cases challenges a bail bonds
cartel that inflates the costs of pre-trial freedom. To litigate this case, and
another case involving the unconstitutionality of gang injunctions, Public
Counsel regularly communicates with incarcerated persons throughout
California.
The American Civil Liberties Union is a nationwide nonprofit,
nonpartisan organization with over 1.5 million members dedicated to the
defense of the fundamental rights outlined in the United States Constitution
and the Bill of Rights, including the right to freedom of association. The
ACLU of Southern California (“ACLU SoCal”) is an affiliate of the American
Civil Liberties Union. ACLU SoCal works in the areas of economic justice,
immigrants’ rights, and criminal justice, among others, to dismantle racism
and white supremacy and create equitable opportunities and outcomes for all.
4

ACLU SoCal works with community and organizational partners to end
harsh policies that result in mass incarceration; achieve effective communitybased solutions and opportunities; implement sensible and proportionate
interventions; prioritize rehabilitation and transformative justice over
punishment; and put a stop to the ways that the criminal legal system strips
economic resources from low-income communities and communities of color.
The ACLU Foundation of Southern California is the court ordered monitor of
the conditions of confinement and medical services within all Los Angeles
County jail facilities. The Jails Project also monitors conditions in the Santa
Barbara Sheriff’s Office jails.
Worth Rises is a non-profit advocacy organization dedicated to
dismantling the prison industrial complex and ending the exploitation of
those it touches. It works to expose the commercialization of the criminal
legal system and advocate and organize to protect and return the economic
value extracted from affected communities. Through its work, Worth Rises
strives to pave the road toward a safe and just world free of police and
prisons.
The Prison Law Office engages in class action impact litigation to
improve conditions in prisons, jails, and juvenile halls for adults and
children, represents individual prisoners, educates the public about prison
conditions, and provides technical assistance to advocates across the country.
5

The Prison Law Office has litigated numerous large-scale prisoner and
parolee class actions in the last 40 years. These include Brown v. Plata, 563
U.S. 493 (2011) (holding that court-mandated population limit for California
prisons was necessary to remedy violations of prisoners’ constitutional rights
to adequate medical and mental health care in two statewide class action
lawsuits), and Pennsylvania Dep’t of Corr. v. Yeskey, 524 U.S. 206 (1998)
(unanimously holding the Americans with Disabilities Act applies to state
prisoners).
The Impact Fund is a non-profit legal foundation that provides
strategic leadership and support for impact litigation to achieve economic,
environmental, racial, and social justice. The Impact Fund provides funding,
offers innovative training and support, and serves as counsel for impact
litigation across the country. The Impact Fund has served as party or amicus
counsel in a number of major civil rights cases before this Court, including
cases challenging employment discrimination and limitations on access to
justice. Through its work, the Impact Fund seeks to use and support impact
litigation to achieve social justice for all communities.
Amici submit this brief to provide additional context and sociological
data concerning the economic and non-economic harms imposed on
Appellants - incarcerated persons and their family members - who are
charged unreasonably high prices to communicate as a result of “site
6

commissions.” These harms include negative social and emotional outcomes
that have concrete impacts on incarcerated persons and family members,
particularly those who are low-income.
No party or attorney to this litigation authored the proposed amicus
brief or any part thereof. No party made a monetary contribution to the
preparation or submission of this brief.
Dated: October 21, 2019

Respectfully submitted,
SCHONBRUN SEPLOW
HARRIS & HOFFMAN LLP
By: s/Catherine E. Sweetser
Catherine E. Sweetser
Counsel for Amici, Human Rights
Defense Center, Public Counsel,
American Civil Liberties Union,
Worth Rises, Prison Law Office,
and The Impact Fund.

7

I.

INTRODUCTION
The Superior Court’s finding that incarcerated persons and their

families -- who ultimately shoulder the taxes that phone providers in jails
should be paying to municipalities -- were not taxpayers with standing, should
be reversed. The decision relies on erroneous inferences about the role of site
commissions, and ignores the fact that incarcerated individuals are a literally
captive market with no option other than to use the Inmate Calling System
(ICS). The Court’s determination that ICS providers have a financial incentive
to challenge site commissions because they would have “a greater opportunity
for profit if they did not have to pay the commissions” (Tr. Order at 7) is
unfounded and ignores the substantial body of empirical evidence and market
analyses that show that site commissions are passed through to callers.
Because each ICS provider has a monopoly in the respective County jail
over a captive and vulnerable population, ICS providers pass through the cost
of the site commissions in the form of high rates without any concern that they
will lose customers. Thus, they have no incentive to challenge the current
arrangement. While in many other economic situations, such as landlordtenant relationships or theater-goers, market forces and competition do not
cause taxes to be passed wholly to the consumer, here, as discussed below,
incarcerated persons have no viable alternative for communicating with their
loved ones and thus end up paying exorbitant phone rates. Appellants,
8

incarcerated individuals and their loved ones, are harmed directly and
materially by the site commissions and have an interest in the outcome of this
litigation. In addition to the economic harms, these high phone rates lead to
an array of negative physical, emotional, and psychosocial consequences for
both incarcerated individuals and their loved ones.
Accordingly, Appellants suffer the bulk of the harms of site
commissions, giving them standing under this specific and unique set of
circumstances to bring their Proposition 26 claim.
II.

STATEMENT OF FACTS
A. The ICS Market has Developed into an Oligopoly
Until the 1970s, incarcerated individuals in state and federal prison

systems were limited to making one call every three months. Steven Jackson,
Ex-Communication: Competition and Collusion in the U.S. Prison Telephone
Industry, 22(4) CRITICAL STUD. IN MEDIA COMMUNICATION 263, 267 (2005).
Recognizing that insufficient communication between incarcerated individuals
and those in their personal networks is strongly correlated with recidivism and
undesirable social outcomes, federal and state governments enacted more
permissive telephone access programs aimed at increasing incarcerated
individuals’ community contact. Id. Following these legislative changes, AT&T
retained an exclusive monopoly over inmate calling services (ICS) until 1984.

9

During this period, ICS price rates remained comparable with telephone prices
in the broader telecommunications market. Id. at 268.
In 1984, AT&T’s monopoly was broken up under the terms of a
settlement agreement reached in an antitrust action brought by the United
States Department of Justice. Subsequent legislation and FCC rule-making
actions sought to make the ICS industry more competitive by reducing entry
barriers that inhibited new entries into the market. Id.; Global Tel*Link v.
Federal Communications Commission, 866 F.3d 397, 403-404 (D.C. Cir. 2017).
These reforms, paired with a sharp and sustained rise in the national rate of
incarceration, rendered the ICS market increasingly lucrative to service
providers. Jackson, supra, at 267. Although these conditions were initially
successful in attracting new providers such as MCI, GTE, and Sprint into the
ICS market, they have failed to sustain robust market competition. Id.; John
E. Dannenberg, Nationwide PLN Survey Examines Prison Phone Contracts,
Kickbacks 22 (4) PRISON LEGAL NEWS 1, 4 (2011). Instead, through a series of
consolidation

processes

including

several

high-profile

mergers

and

acquisitions, the ICS market has become heavily dominated by a few firms. As
of 2013, “three companies – GTL, Securus, and CenturyLink – control[led] 90%
of the state DOC market, either directly or through their subsidiaries” with
GTL being the biggest provider. John E. Dannenberg and Alex Friedmann,
FCC Order Heralds Hope for Reform of Prison Phone Industry, 24 (12) PRISON
10

LEGAL NEWS 1, 7 (2013). These firms also dominate the county-jails ICS
market, as demonstrated by the fact that all defendant counties currently
contract with either Securus or GTL.
B. ICS Prices are Exorbitantly High.
It is a well-documented phenomenon that calling rates for individuals
using ICS systems are grossly higher than the rates paid by non-users. See,
e.g., Global Tel*Link, 866 F.3d at 404. Incarcerated persons, or those whom
they call, may pay up to $10.70 for a fifteen-minute intrastate call and $17.30
for an inter-state call of the same length. Dannenberg and Friedman, supra,
at 5; Report and Order and Further Notice of Proposed Rulemaking, In the
Matter of Rates for Interstate Inmate Calling Services, 28 FCC Rcd. 14107
(2013) (“FCC 2013 Order”), p. 20. These prices are substantially more
expensive in county-jail systems than in state prison systems. Erin Jordan, Is
the cost of county jail calls highway robbery? THE GAZETTE (May 31, 2019),
https://bit.ly/2H5CBcJ. In California, jail ICS rates are an average of 2.8
times higher than state prison ICS rates, and a fifteen-minute call can cost
up to $17.80. Peter Wagner and Alexi Jones, State of Phone Justice: Local
jails, state prisons, and private phone providers, PRISON POL’Y INITIATIVE
(Feb. 2019), https://www.prisonpolicy.org/phones/state_of_phone_justice.html.
The disparity between prices paid by ICS users and non-users cannot be
solely attributed to additional market-entry or operational costs. Justin
11

Carver, An efficiency analysis of contracts for the provision of telephone
services to prisons, 54 FED. COMM. L. J. 391, 398-99 (2002). Rather, the
“prohibitive per-minute charges and ancillary fees for payphone calls” in the
ICS system are caused by “variety of market failures in the prison and jail
payphone industry.” Global Tel*Link, 866 F.3d at 401.
C. ICS Markets That Do Not Use Site Commissions Produce
Substantially Lower Prices and Higher Usage Rates.
Comparing rates in markets that do not use site commissions with those
that do also demonstrates the cost-inflating effect of site commissions on ICS
prices. At present, eight states, including California, have eliminated
commission-based prison telephone monopolies in state prisons. Editorial,
Costly Phone Calls for Inmates, N.Y. TIMES (Sept. 23, 2012), available at
https://nyti.ms/2P4cGZI. In each instance, ICS prices dropped significantly
after site commissions were removed. Id. Several “federal agencies, such as the
Department of Homeland Security’s Immigration Customs and Enforcement
(ICE), have taken similar measures to provide lower rates, resulting in
nationwide calling rates of $0.12 a minute without additional fees or
commissions at ICE facilities. FCC 2013 Order at p. 4. According to the FCC,
these examples show “that rates can be reduced to reasonable, affordable levels
without jeopardizing the security needs of correctional facilities and law
enforcement or the quality of service.” Id.

12

Moreover, removing site commissions results in greater utilization—i.e.,
more communication between incarcerated individuals and their families and
friends—because of lower price rates. Id. As noted by the FCC, “following such
reforms, there is significant evidence that call volumes increased, which shows
the direct correlation of how these reforms promote the ability of inmates to
stay connected with friends and family.” Id. In some instances ICS price
reductions have resulted in increases in call volume of up to 300%. Id. n. 15.
III.

ARGUMENT
I.

ICS Providers Have No Incentive to Challenge Site
Commissions Because Plaintiffs Pay the Costs of the
Commissions Through Higher Price Rates.

The Superior Court erred in dismissing the plaintiffs for lack of standing
on their Proposition 26 tax claim. Contrary to the Court’s speculation (Tr.
Order. at 7), ICS Providers have no incentive to challenge site commissions
because they recuperate the costs of commissions by charging higher rates to
end users. Carver, 54 FED. COMM. L. J. at 419; see also Global Tel*Link, 866
F.3d at 404 (noting that ICS providers recoup site commissions through setting
“correspondingly high end-user rates.”).
The providers benefit from a monopolistic arrangement that allows
them to charge exorbitant rates from which both they and the government
entity profit. This common interest in high commission rates explains the joint
ICS provider/governmental challenge to the FCC’s limitation on ICS rates;
13

both considered the current commission arrangement to be in their economic
interest. Glob. Tel*Link, 866 F.3d at 401 (brought by “[f]ive inmate payphone
providers, joined by state and local authorities”).
The overwhelming research and literature demonstrates that it is the
incarcerated callers and the loved ones who they communicate with that suffer
most from site commissions, which result in high pricing. Id. The incarcerated
persons, not the ICS service providers, have an incentive to challenge the
validity of site commissions.
A.

Site Commissions Result in Higher Prices for
Incarcerated Persons and their Family Members, and
Thus Cause Serious Harm to the Plaintiffs.

The vast majority of states and counties, including the defendant
counties in this case, use site commissions as part of their contracts with ICS
providers. Paul Zimmerman and Susan Flaherty, Location monopolies and
prison phone rates, 47 (2) Q. REV. ECON. AND FIN. 261, 262 (2007). These
commissions are profit sharing mechanisms whereby a provider agrees to
share a percentage of the revenue earned from providing ICS services with the
state or county that runs the facility in exchange for having exclusive ICS
rights for the duration of the contract. Id.; Carver, 54 FED. COMM. L. J. at 392.
Given that “ICS bids are predicated on the winning provider’s willingness to
share part of its ICS revenues with the correctional facility,” companies
competing for these exclusive contracts attempt to outbid one another by

14

offering the largest site commission to the relevant government. Id. This
auctioning system has resulted in state commission rates as high as 76% of
total revenue and California county commission rates as high as 83.3% in San
Mateo, one of the defendants in this case. Dannenberg and Friedman, supra,
at 6; Civic Letter RE: Inmate Calling Services – Public Comment for WC
Docket No. 12-375, at 4.
Unsurprisingly, the literature overwhelmingly demonstrates that site
commissions contribute to higher ICS rates for users. In a 2013 order, the FCC
found that a “significant factor driving these excessive rates is the widespread
use of site commission payments – fees paid by ICS providers to correctional
facilities or departments of corrections in order to win the exclusive right to
provide inmate phone service.” FCC 2013 Order at 4. See also Carver, 54 FED.
COMM. L. J. at 396-397; Zimmerman and Flaherty, supra, at 262; Global
Tel*Link, 866 F.3d at 404.
Economic analyses of the ICS market also demonstrate that the use of
site commissions results in high prices for end-users and little harm to
providers. In a site commission system, “the state and the company enter[] into
a third-party beneficiary contract…[where] both actors focus[] only on their
own welfare and neglect[] the so-called “beneficiary” of the contract.” Carver,
54 FED. COMM. L. J. at 419. The rational self-interest of both contracting
parties results in high site commissions, and by extension high end-user prices.
15

For the counties, the rational behavior is to provide the contract to the
company that offers the highest site commissions without concern for end-user
prices. Id. at 397. For the company, the rational behavior is to offer high
commissions because “this strategy strictly dominates offering a low site
commission” and increases their likelihood of acquiring the contract.
Zimmerman and Flaherty, supra, at 262. Once a provider acquires the
contract, the rational behavior is to inflate end-user prices to compensate for
the cost of ‘purchasing’ the contract. Id.; Carver, supra, at 396.
Critically, rational providers inflate end-user prices without typical
market ramifications such as the loss of customers because prison calling is a
captive market and because demand is highly inelastic. Kukorowski, supra.
Incarcerated individuals and their loved ones are captive consumers because
state-enforced exclusive ICS contracts render it impossible for them to call
each other through other channels. Id. Moreover, the “paucity of close
substitutes” for prison calling and the lack of feasible alternative forms of
communication such as in-person visitation and traditional writing renders the
demand curve highly inelastic. Zimmerman and Flaherty, supra, at 262.
Consequently, prisoners and their loved ones are forced to choose between
communicating with their loved ones and paying inflated rates or not
communicating at all. Global Tel*Link, 866 F.3d at 397. The dysfunctional
state of the ICS market is perhaps best summarized by the FCC finding that:
16

Inmates and their families cannot choose for themselves the inmate
calling provider on whose services they rely to communicate. Instead,
correctional facilities each have a single provider of inmate calling
services. And very often, correctional authorities award that monopoly
franchise based principally on what portion of inmate calling revenues a
provider will share with the facility—i.e., on the payment of “site
commissions.” Accordingly, inmate calling providers compete to offer the
highest site commission payments, which they recover through
correspondingly higher end-user rates. See Order, 30 FCC Rcd. at
12818–21. If inmates and their families wish to speak by telephone, they
have no choice but to pay the resulting rates.
Id.
In sum, the ability of ICS Providers to capitalize on this dysfunctional
market to avoid bearing the “costs” of site commissions makes it evident that
they have little incentive to challenge them and that the primary victims of
commissions are prisoners and those who they communicate with.
B.

Telephone Calls Are Often the Only Means for
Incarcerated Individuals to Maintain Contact with
Loved Ones.

In their brief, Respondents argue that the ICS providers are charging a
“fair market value” as the term is defined in the California Code of Civil
Procedure § 1263.320(a). However, this definition conceals the fact that the
buyers in this situation — incarcerated individuals attempting to maintain
contact with their loved ones — do not fit into the definition of “buyer” in §
1263.320(a), which requires an individual with “no particular necessity” for
entering the market. In reality, telephone calls are frequently the only way for

17

incarcerated individuals to stay in touch with family members on the outside,
which is essential for successful rehabilitation during imprisonment.
First, many families have neither the financial capacity nor the time to
be able to visit incarcerated loved ones in person. Even when families do have
the means to do so, the jail itself often restricts their visits. Prisons and jails
around the country are increasingly ending the practice of in-person visitation,
often only allowing incarcerated individuals to speak with family and friends
via telephone or video call. Shannon Sims, The end of American prison visits:
jails end face-to-face contact – and families suffer, THE GUARDIAN (Dec. 9,
2017), https://bit.ly/2C0y5Io.
Second, while letter writing is often touted as an inexpensive way for
incarcerated individuals to maintain contact with loved ones, in reality the
majority of incarcerated persons are functionally illiterate. Kim Moody et. al,
Prevalence of dyslexia among Texas prison inmates, 96(6) TEX. MEDICINE 69
(2000). Letter writing is also not an appropriate way for young children with
rudimentary reading and writing skills to maintain contact with incarcerated
parents. In addition, younger incarcerated persons (i.e., those under age 30,
who make up roughly 20 percent of the federal prison population) rely nearly
exclusively on phone and e-mail as methods of communication. Many within
this segment of the population remain highly unaccustomed to writing letters
and do not comprehend how this system could be a feasible method of
18

maintaining contact. Jim Elliott, Postal workers say millennials perplexed by
“snail mail”, Coast Mountain News (Feb. 14, 2019). Finally, many prisons
restrict written mail to postcards, a practice which costs more than sending
mail using a traditional envelope and engenders significant privacy concerns,
as anyone who comes across a postcard can easily read its contents. Leah
Sakala, Return to Sender: Postcard-Only Mail Policies in Jail, PRISON POL'Y
INITIATIVE

(Feb.

7,

2013),

https://www.prisonpolicy.org/postcards/report.html.
Respondents make allusions to other “captive markets” wherein sellers
are legally able to charge exorbitant prices because buyers have no alternative.
Reply Brief at 40-41. However, the desire of incarcerated individuals to stay in
contact with their children is a much more compelling and powerful interest
than someone’s desire to eat popcorn while watching a movie or drink coffee at
the airport. Id. at 41. The two are simply incomparable. The unincarcerated
person has easily available alternatives, such as buying dinner after watching
the movie, or drinking coffee at home before leaving for the airport. On the
other hand, incarcerated individuals have no other affordable option to
maintain contact with their families. California courts have recognized that
simply charging what the market will allow is untenable when such charges
will have an outsize financial effect on the lives of those within the captive
market. See, e.g., Besaro Mobile Home Park, LLC v. City of Fremont, 204 Cal.
19

App. 4th 345, 359 (2012) (allowing city to impose controls that protected mobile
home residents from exorbitant rent increases). Charging exorbitant user fees
to incarcerated individuals is similarly indefensible here, where users have no
other options and do not have the financial ability to regularly pay the required
fees.
C.

The High Rates Particularly Harm Low-Income
Individuals.

Exacerbating the problem, incarcerated individuals are ill-equipped to
afford the high price of prison phone calls. The average annual personal income
for an incarcerated man prior to incarceration is 52% lower than that of a man
who has never been incarcerated. Bernadette Rabuy and Daniel Kopf, Prisons
of Poverty: Uncovering the Pre-incarceration Incomes of the Imprisoned,
PRISON

POL’Y

INITIATIVE

(July

9,

2015),

available

at

https://www.prisonpolicy.org/reports/income.html. It is highly unlikely that
incarcerated individuals will have any savings to draw upon to facilitate their
expenses while in prison. Coupled with the fact that the average national
prison wage is approximately 60 cents an hour, it is a near certainty that the
average incarcerated individual will be unable to pay for regular
communication costs while in prison. Daniel Moritz-Rabson, 'Prison Slavery':
Inmates are Paid Cents While Manufacturing Products Sold to Government,
NEWSWEEK (Aug. 28, 2018), available at https://bit.ly/2KJMKgj.

20

High ICS rates create significant obstacles to communication between
incarcerated persons and their loved ones. Generally speaking, incarcerated
individuals and their families have substantially lower incomes than nonincarcerated individuals and are thus ill-equipped capable to pay high ICS
rates.1 In a recent survey, nearly 80 percent of formerly incarcerated people
said they did not have the opportunity to talk with family and friends as much
as they wanted while they had been in prison, with the primary reason being
that the cost of phone calls was too much of a financial burden for both them
and their friends and family members. Artika Tyner et al., Phone Calls
Creating Lifelines for Prisoners and Their Families: A Retrospective Case Study
on the Campaign for Prison Phone Justice in Minnesota, 30(2) TRINITY L.
REV. 83, 89, 96 (2015). Some families have been forced to undertake additional
work to pay for communication with prisoners or have suffered financial
consequences and gone into debt. Katy Reckdahl, State PSC considers lowering
‘sinful’ prison phone rates, THE LENS (Nov. 15, 2012), https://bit.ly/2N23G4D.

Bernadette Rabuy and Daniel Kopf, Prisons of Poverty: Uncovering the Preincarceration Incomes of the Imprisoned, PRISON POL’Y INITIATIVE (July 9,
2015), https://www.prisonpolicy.org/reports/income.html; Medicaid Expansion
& Criminal Justice-Involved Populations: Opportunities for Health Care for
the Homeless Community, NAT’L HEALTH CARE FOR THE HOMELESS COUNCIL
(Jan. 2013), https://www.soa.org/globalassets/assets/Files/Sections/healthMedicaidExpansion-Justice-Final.pdf.
1

21

Such costs are passed on to their friends and family through collect
calling systems. Wendy Sawyer, How much do incarcerated people earn in each
state?,

PRISON

POL’Y

INITIATIVE

(Apr.

10,

2017),

https://www.prisonpolicy.org/blog/2017/04/10/wages/. However, incarcerated
individuals tend to come from low-income families, who face severe financial
burdens due to the expense of maintaining contact. More than one-third of
families charged with paying these costs have gone into debt. deVuono-Powell,
supra, at 9. Some families have had to take second jobs to afford the cost of
calling incarcerated family members. Reckdahl, supra. Others have been
evicted from their homes or have had their electricity disconnected. Id. Some
have wondered how even middle-class families can afford current rates. Leticia
Miranda, The Criminal Cost of Talking to a Loved One Behind Bars,
COLORLINES (May 14, 2012), https://www.colorlines.com/articles/criminal-costtalking-loved-one-behind-bars.

In a recent survey, nearly 80 percent of

formerly incarcerated people said they did not have the opportunity to talk
with family and friends as much as they wanted while they had been in prison,
primarily because the cost of phone calls was too much of a financial burden
for both them and their friends and family members. Tyner, Phone Calls
Creating Lifelines, at 86.
Moreover, these burdens fall disproportionately on families of color,
who are less likely to have the wealth to support the extra costs imposed by
22

the site commissions. Courtney E. Martin, Closing the Racial Wealth Gap,
N.Y. Times, April 23, 2019, available at
https://www.nytimes.com/2019/04/23/opinion/closing-the-racial-wealthgap.html. The San Francisco Financial Justice Project found that around
“80% of phone calls are paid for by incarcerated individuals’ support
networks, primarily low-income women of color.” See Mayor London Breed
and Sheriff Vicki Hennessy Announce Plan for San Francisco to Make All Jail
Phone Calls Free and End County Markups in the Jail Commissary,
https://sfmayor.org/article/mayor-london-breed-and-sheriff-vicki-hennessyannounce-plan-san-francisco-make-all-jail.
Given the significant harm Plaintiffs suffer from site commissions
being passed through in the form of higher calling costs, this Court should
reverse the Superior Court’s ruling that Plaintiffs did not have standing
under Proposition 26 to challenge the site commissions as an illegal tax.
II.

Eliminating Site Commissions Will Result in Lower ICS
Rates for Appellants.

Eliminating the commission-based prison telephone system in
California jails, as has already been done in California state and federal
prisons, will decrease the costs of telephone calls placed by those in county jail.
The system as it currently exists in California county jails is unsustainable,

23

unfair, and entirely unnecessary.2 Eight states – California, Michigan,
Missouri, Nebraska, New Mexico, New York, Rhode Island, and South
Carolina – have eliminated commission-based prison telephone monopolies in
state prisons. Clarissa Ramon, Truth About Prison Phones, HUFFINGTON POST
(Nov.

5,

2012),

https://www.huffpost.com/entry/truth-about-prison-

phones_b_1856657. These states have seen the cost of prisoner-to-family calls
drop precipitously. Dannenberg and Friedman, supra, at 7; Todd Shields,
Prison Phones Prove Captive Market for Private Equity, BLOOMBERG (Oct. 3,
2012), https://bloom.bg/2YP03G3. As the eight states that have done away with
the practice illustrate, there is absolutely no reason for California to continue
to permit Defendants to use a commission-based system that results in
unnecessary exploitation of incarcerated Americans merely seeking to stay in
contact with their loved ones. The available evidence indicates both that
eliminating the commission system would reap significant pecuniary benefits
for affected prisoners and their loved ones and that the decreased calling costs
would not render the ICS market unprofitable.
The FCC has commended states that have reformed their ICS
procedures, like New Mexico and New York, which demonstrate “that rates can

Brandi Collins, Groups urge Congresswoman Lee to push back against
federal prison phone kickbacks, SAN FRANCISCO BAY VIEW (Sept. 7, 2012),
https://bit.ly/2N2Jy28/; Costly Phone Calls for Inmates, supra.
2

24

be reduced to reasonable affordable levels without jeopardizing the security
needs of correctional facilities and law enforcement or the quality of service.”
FCC 2013 Order at 4.

In 2014, the FCC noted that “[e]liminating the

competition-distorting role site commissions play in the marketplace should
enable correctional institutions to prioritize lower rates and higher service
quality as decisional criteria in their RFPs.”

1

In the Matter of Rates for

Interstate Inmate Calling Services, Second Further Notice of Proposed
Rulemaking, 29 FCC Rcd. 13170 (2014) at p. 14. Federal agencies, such as the
Department of Homeland Security (DHS) and Immigration Customs and
Enforcement (ICE), have taken similar laudable measures to ensure that, as
of 2013, there were “nationwide calling rates of $0.12 a minute without
additional fees or commissions at ICE facilities.” FCC 2013 Order at 4. The
Federal Bureau of Prisons has also eliminated site commissions. Federal
Bureau of Prisons phone rates and kickbacks, PRISON PHONE JUSTICE,
https://www.prisonphonejustice.org/state/BOP/.
These measures taken by several states and federal agencies stand in
stark contrast to the system used in California county jails. In the California
jails, ICS providers are forced to drive up costs on the ICS consumers to cover
costs

incurred

through

site

commission

payments.

By

eliminating

commissions, the eight states and certain federal agencies have decreased
overhead by eliminating the high financial bar that ICS providers needed to
25

meet to secure monopolies in state prisons and ICE detention facilities. Or, in
the FCC’s words, by eliminating site commissions, these states and agencies
have gotten rid of a “significant factor driving … excessive rates.” FCC 2013
Order at 4.
Unsurprisingly, lower ICS prices resulting from the removal of site
commissions also result in higher call volume between incarcerated
individuals and their loved ones. According to the FCC, “there is significant
evidence that call volumes increased” in the eight states that removed site
commission, “which shows the direct correlation of how these reforms promote
the ability of inmates to stay connected with friends and family.” FCC 2013 at
p. 4. Moreover, call volume has increased significantly where ICS prices have
been reduced by government enforced rate caps. Id. For example, ICS call
volume went up 36% after New York ICS rates dropped in 2007, and continued
to increase as rates were further reduced. Id. at 38. By 2013, call volume was
up approximately 160% from 2006 levels. Id. In another instance, ICS provider
Telmate reported that it saw “an increase of up to 300 percent in call volume
when it lowered its rates.” Id. Reduced prices and increased call volume create
enormous benefits for incarcerated persons – who, as is discussed below, are
far less likely to recidivate when they are able to talk to their families and
friends outside the confines of prison – and their loved ones, who need not pay
exorbitant collect calling fees that they cannot afford.
26

This Court need not look far to see the potential for a successful system
that does not use ICS site commissions. In California prior to August 2007,
when commissions began to be phased out, the cost of interstate calls was a
$3.95 connection fee and $0.89 per minute. Dannenberg, supra, at 10. As of
2017, with ICS commissions prohibited, the cost for interstate calls are $0.25
per minute with no connection fee. California Rates July 2017, PRISON PHONE
JUSTICE, https://www.prisonphonejustice.org/CA/california-rates-july-2017.
Similarly, Ohio, New Jersey, and Pennsylvania each saw their ICS rates fall
below $0.06 after eliminating site commissions. Second Report and Order and
Third Further Notice of Proposed Rulemaking, In the Matter of Rates for
Interstate Inmate Calling Services, 30 FCC Rcd. 12763 (2015)
at p. 25. In Ohio, this was a reduction of 75%. Id. This data makes clear both
that commissions are not necessary for ICS contracts to function and that,
without commissions, ICS rates would drop to less extreme levels.
Consequently, the Superior Court erred in inferring that ICS prices would not
decrease if site commissions were deemed invalid.
By eliminating commissions, California county jails can enjoy the same
decreased costs experienced by California state prisons. This standardization
will also ensure continuity for the families of incarcerated individuals who are
transferred from jail facilities to prison facilities.

27

III. Removing Site Commissions from Appellee’s ICS
Systems Will Produce Desirable Social Outcomes for
Appellants and Their Communities.
The extremely high cost of jail phone calls means that keeping in regular
contact with friends and family is a nearly unobtainable luxury for many
incarcerated individuals. As noted above, many families have run into debt
simply to keep in touch with incarcerated loved ones. Even the FCC has noted
that maintaining contact with incarcerated family members can amount to an
“impossible strain on the household budget.” Statement of Commissioner
Jessica Rosenworcel Re: Rates for Interstate Inmate Calling Services (WC
Docket No. 12-375). Despite these nearly insurmountable financial burdens,
incarcerated individuals’ ability to maintain regular communication with loved
ones outside of jail is vital for the well-being of incarcerated persons, their
families, and society at large.
A.

High Prices Take a Psychological Toll on
Incarcerated People That Lasts Past the Time of
Incarceration

The Federal Bureau of Prisons has noted that maintaining family ties
while incarcerated is important for personal development. 28 CFR § 540.100(a)
(1996). At least one state has a statute requiring prison officials to promote
communication between incarcerated individuals and their family and friends,
which “fosters reintegration...motivat[ing] the inmate and thus contribut[ing]
to morale and to security.” Wis. Admin. Code DOC § 309.39(1) (1998).

28

The realities of incarceration lead to a myriad of negative psychosocial
effects. Incarcerated people often easily become demoralized and alienated due
to the extremely strenuous living conditions inherent in most prisons. Fabrice
Guilbaud, Working in Prison: Time as Experienced by Inmate-Workers, 51(5)
REVUE FRANÇAISE DE SOCIOLOGIE 41, 51, 64 (2010). Incarcerated individuals
typically suffer from a myriad of negative psychosocial impacts such as
depression, anxiety and stress. Allison Hollihan & Michelle Portlock, Osborne
Ass'n, Video Visiting in Corrections: Benefits, Limitations, and Implementation
Considerations, OSBORNE ASS’N 6 (2014), https://bit.ly/31ylI28.

This is

especially true for younger prisoners, who often face a more drastic adjustment
to life in prison and may find it especially difficult to adjust. Tyner, Phone Calls
Creating Lifelines, at 90.
The opportunity to speak with loved ones outside of prison affords
incarcerated individuals the ability to maintain a semblance of normalcy and
retain a measure of hope. Many in prison see the telephone as a lifeline to the
quotidian life they wish to return to. Id. at 89. It has been demonstrated time
and again that those who maintain regular contact with loved ones while in
prison exhibit lower rates of depression, anxiety, and stress. Allison Hollihan
& Michelle Portlock, supra, at 6. Conversely, prisoners who do not maintain
contact with the outside world often demonstrate increased levels of
desperation and anger, which can result in more resistance to prison rules and
29

increased injurious or violent behavior toward fellow inmates. Tyner, Phone
Calls Creating Lifelines, at 89-90; Songul Duran et al., Anger and Tolerance
Levels of the Inmates in Prison, 32(1) ARCHIVES OF PSYCHIATRIC NURSING 66,
68 (2018). Therefore, it should seem nearly axiomatic that maintaining contact
with loved ones outside of prison is vital for incarcerated individuals’ emotional
and mental temperament and development.
B.

High Prices Decrease the Ability of an Incarcerated
Person to Maintain Relationships Both Inside and
Outside the Jail

The ability to stay in touch with one’s spouse while imprisoned also has
extremely beneficial effects on incarcerated individuals and their spouses. For
spouses, maintaining contact with their incarcerated spouse increases the
likelihood that the relationship survives the incarcerated period and persists
after their spouse’s release. Saneta deVuono-Powell et al., Who Pays? The True
Cost of Incarceration on Families, ELLA BAKER CTR. FOR HUM RTS. 32 (2015),
https://bit.ly/1M9n7ja; Bales and Mears, supra note 4, at 300.
The high price of prison phone calls also has detrimental effects on
relationships between incarcerated individuals. Prisoners often trade
essentials, including meals, as currency in prison, which affords them more
time to speak to friends and relatives on the phone when they are unable to
afford these calls solely using funds from their commissary budget. Artika
Tyner et al., Phone Calls Creating Lifelines for Prisoners and Their Families:

30

A Retrospective Case Study on the Campaign for Prison Phone Justice in
Minnesota, 30(2) TRINITY L. REV. 83, 96 (2015).
Incarcerated individuals who maintain regular interaction with family
members while imprisoned are more likely to have their sentences reduced and
are less likely to be involved in negative incidents while incarcerated. Second
Chance Act of 2007: Community Safety Through Recidivism Prevention, PL
110-199, § 3(b)(6), 122 Stat. 657 (2008) (codified at 42 U.S.C. § 17501 (2008)).
C.

The High Prices Have a Lasting Impact on
Psychological
and
Social
Well-being
After
Incarceration, Including Lower Rates of Recidivism.

Communication with loved ones also produces better outcomes for
prisoners after their incarceration. Prisoners who maintain such contact are
less likely to reoffend than those who are unable to keep in touch. 3 Moreover,
prisoners who maintain contact with loved ones are more likely to develop
strong support systems outside of the criminal justice system, which enable
them to have assistance with housing, employment, and to more successfully
complete parole than their counterparts.4 Even those who do eventually

Joshua Cochran, The Ties that Bind or the Ties that Break: Examining the
Relationship between Visitation and Prisoner Misconduct, 40 J. CRIM. JUST.
433, 439 (2012); William Bales and Daniel Mears, Inmate Social Ties and the
Transition to Society: Does Visitation Reduce Recidivism?, 45(3) J. RESEARCH
CRIME AND DELINQUENCY 287 (2008).
4 Bruce Western et al., Stress and Hardship After Prison 120(5) AMER. J.
SOCIOLOGY 1512, 1533 (2015); Creasie Finne Hairston, Family Ties During
3

31

reoffend take a longer time to do so if they have more frequent contact with
loved ones outside of prison while they are incarcerated. Tyner, Phone Calls
Creating Lifelines, at 91. Having this support network has also been shown to
help formerly incarcerated people successfully complete parole. Hairston,
supra note 55, at 49-50.
On the other hand, those who do not retain regular contact with friends
and family while in prison find it much more difficult to re-integrate and are
less likely to secure employment post-release. Christy Visher et al., Returning
Home: Understanding the Challenges of Prisoner Reentry, URB. INST. 116-9
(2004). They are more likely to rely upon public benefits and resources and
their higher rate of recidivism further increases the emotional and financial
costs associated with maintaining this country’s prison system.5 Any potential
profits lost as a result of lowering ICS rates are far outweighed by the costs
produced by incarcerating repeat offenders. Drew Kukorowski, The price to call
home: state-sanctioned monopolization in the prison phone industry, PRISON
POL’Y INITIATIVE (Sept. 11, 2012), https://bit.ly/2yUaV6p.

Imprisonment: Do They Influence Future Criminal Activity? 52 FED.
PROBATION 48, 49-50 (1988).
5
David Harding et al., Making Ends Meet after Prison: How Former Prisoners
Use Employment, Social Support, Public Benefits, and Crime to Meet their
Basic Material Needs, U. MICH. POPULATION STUD. CTR. (2011); Bates and
Mears, supra, at 311-2.
32

D.

The High Prices Harm Children of Incarcerated
People

The inability to afford phone calls has outsized emotional and
psychological effects on loved ones outside of prison, particularly children, who
often perceive loss of contact as a sign that the incarcerated individual no
longer cares about them. Tyner, Phone Calls Creating Lifelines, at 91.
Children of incarcerated people often have particular difficulty understanding
why such phone calls amount to a hefty financial burden and why their parents
are unable to call them regularly. Victoria Law, $15 for 15 Minutes: How
Courts are Letting Prison Phone Companies Gouge Incarcerated People, THE
INTERCEPT (June 16, 2017), https://bit.ly/2ZYxBhL. This can lead to strained
relations and a tenuous support system once the incarcerated individual is
released from prison.6
Granting incarcerated parents the ability to maintain regular contact
with their children has beneficial, long-lasting effects.7 Almost three million
children in the United States - nearly 4 percent of the country’s population

Jennifer Cobbina, Fron Prison to Home: Women’s Pathways in and out of
Crime, (May 2009) (unpublished Ph.D. dissertation, University of Missouri St. Louis); Coming Home: A Family’s Guide to Reunification, N.Y. STATE
DEPT. OF CORRECTIONAL SERV.,
http://www.doccs.ny.gov/FamilyGuide/ComingHomeBrochure.pdf.
7 Zoann Snyder-Joy and Teresa Carlo, Parenting Through Prison Walls:
Incarcerated Mothers and Children's Visitation Programs, in CRIME CONTROL
AND WOMEN: FEMINIST IMPLICATIONS OF CRIMINAL JUSTICE POLICY 144
(Susan Miller, ed.) (1998)
6

33

under the age of 18 - have at least one parent in prison. Collateral Costs:
Incarceration’s Effect on Economic Mobility, PEW CHARITABLE TRUSTS 4 (2010).
Over half of inmates in state prison and over 60 percent of inmates in federal
prison have at least one child under the age of 18. Lauren E. Glaze and Laura
M. Maruschak, Parents in Prison and Their Minor Children, BUREAU OF JUST.
STATISTICS 2 (Aug. 2008), https://bit.ly/2kkCUTf.
Parents, and fathers in particular, who stay in contact with their
children while in prison are more likely to be highly involved in their children’s
lives after they are released. Nancy La Vigne et al., Examining the Effect of
Incarceration

and

In-Prison

Family

Contact

on

Prisoners'

Family

Relationships, 21(4) J. CONTEMPORARY CRIM. JUST. 314 (2005). Parents that
maintain contact with their children while in prison also exhibit decreased
rates of recidivism. Cochran, supra note 33, at 439. Conversely, parents that
lose contact with their children while incarcerated are far more likely to
experience intense emotional distress and elevated levels of depression. Julie
Poehlmann, Incarcerated Mothers' Contact With Children, Perceived Family
Relationships, and Depressive Symptoms, 19(3) J. FAM. PSYCHOL. 350, 353
(2005).
A child’s ability to maintain contact with incarcerated parents is
incredibly important for their emotional and educational development. Studies
show that children who lose contact with incarcerated parents have poor
34

performance in school and higher rates of truancy, the latter of which has been
linked to increased criminal activity in adulthood. 2013 FCC Order at 68; id.
n. 441. For children of incarcerated individuals, maintaining contact with their
parents produces positive psychosocial outcomes and increases the likelihood
of their parents remaining involved in the children’s lives. Conversely, children
who lose contact with their parents are likely to have poorer performance in
school, be involved in criminal activity in adulthood, and exhibit negative
emotional symptoms such as an increased risk of suicide and post-traumatic
stress disorder. Laurel Davis and Rebecca J. Shlafer, Mental health of
adolescents with currently and formerly incarcerated parents, 54 J. ADOLESC.
120, 124 (2017). Children who lose contact with incarcerated parents also
exhibit negative emotional symptoms, are more likely to show signs of
depression both during childhood and adulthood, and develop an increased risk
of suicide and post-traumatic stress disorder. A lack of regular contact with
incarcerated parents has also been linked to increased rates of homelessness
among children. Letter from Margaret diZerega, Director, Family Justice
Program, to Marlene H. Dortch, Secretary, FCC, WC Docket No. 12-375 at 2.

35

IV.

CONCLUSION

For the foregoing reasons, this Court should reverse the demurrer of
Plaintiffs’ lawsuit by the Superior Court and find that the Plaintiffs have
standing.
Dated: October 21, 2019

Respectfully submitted,
SCHONBRUN SEPLOW
HARRIS & HOFFMAN LLP
By: s/ Catherine E. Sweetser
Catherine E. Sweetser
Counsel for Amici, Human Rights Defense
Center, Public Counsel, American Civil
Liberties Union, Worth Rises, Prison Law
Office, and Impact Fund.

36

CERTIFICATE OF SERVICE
I am over the age of eighteen and not a party to the within action. I am
a resident of or employed in the county where the service described below
occurred. My business address is 11543 West Olympic Boulevard, Los
Angeles, California 90064. On this date, I served the following document
described as APPLICATION TO FILE AMICUS CURIAE BRIEF AND
BRIEF OF CIVIL AND HUMAN RIGHTS ORGANIZATIONS IN
SUPPORT OF PLAINTIFFS-APPELLANTS in said action by TrueFiling.
The document was filed and served via the Court's electronic filing system,
TrueFiling (excluding those not registered, who were served by mail, if
applicable) to the parties listed below.
(SEE ATTACHED SERVICE LIST)
I declare under the penalty of perjury under the laws of the State of
California that the foregoing is true and correct.

Executed on October 21, 2019, in Los Angeles, California.
________________________________
Carlos Gallegos

37

SERVICE LIST
Counsel

Party

LEWIS BRISBOIS
BISGAARD & SMITH LLP
Raul L. Martinez (SBN 82465)
Ryan D. Harvey (SBN 204319)
633 W. 5th Street, Suite 4000
Los Angeles, California 90071
Tel.: (213) 250-1800
Fax: (213) 250-7900
Emails:
Raul.Martinez@lewisbrisbois.com
Ryan.Harvey@lewisbrisbois.com

Attorneys for Defendants
and Respondents,
Counties of Los
Angeles, Orange,
San Bernardino,
Ventura, Alameda, and
Santa Clara

Christopher D. Lockwood, Esq.
Attorneys for Defendant
ARIAS & LOCKWOOD
and Respondent,
1881 Business Center Drive
County of Riverside
Suite 9A
San Bernardino, CA 92408-3438
Tel: (909) 890-0125;
Fax: (909) 890-0185
Email:
christopher.lockwood@ariaslockwood.com
Arthur K. Cunningham, Esq.
John M. Porter, Esq.
LEWIS BRISBOIS BISGAARD &
SMITH LLP
650 East Hospitality Lane, Suite 600
San Bernardino, CA 92408-3508
Tel: (909) 387-1130
Fax: (909) 387-1138
Emails:
arthur.cunningham@lewisbrisbois.com
john.porter@lewisbrisbois.com

38

Attorneys for Defendant
and Respondent,
County of Riverside

WAGSTAFFE,
VON LOEWENFELDT, BUSCH
& RADWICK LLP
Michael von Loewenfeldt
(SBN 178665)
Frank Busch (SBN 258288)
100 Pine Street, Suite 725,
San Francisco, CA 94111-5124
Tel.: (415) 371-8500
Fax: (415) 371-0500
Email: busch@kerrwagstaffe.com
mvl@kerrwagstaffe.com

Attorneys for Defendant
and Respondent,
County of San Mateo.

David Silberman (SBN 211708)
COUNTY COUNSEL FOR SAN
MATEO COUNTY
400 County Center, 6th Floor
Redwood City, CA 94063
Tel.: (650) 363-4749
Fax: (650) 363-4034

Attorneys for Defendant
and Respondent,
County of San Mateo.

Cameron Baker, Esq.
CONTRA COSTA COUNTY
COUNSEL
651 Pine Street, 9th Floor
Martinez, CA 94553
Tel.: (925) 335-1800
Email: cameron.baker@cc.cccounty.us

Attorneys for Defendant and
Respondent,
County of Contra Costa.

Michael Leonguerrero, Esq.
Attorneys for Defendant and
OFFICE OF THE COUNTY
Respondent,
COUNSEL
County of Santa Clara.
70 West Hedding Street East Wing, 9th
Floor
San Jose, CA 95110 Tel.: : (408) 299-5900
Email:
michael.leonguerrero@cco.sccgov.org

39