When does a simple 10 minute phone call from one spot in Massachusetts to another cost nearly $5?
When you are in the county lock-up in Bristol County in the southeast corner of the state.
These exorbitant fees can mount quickly and are a huge burden for families of people awaiting trial or serving sentences. They are now also the focus of a class action lawsuit that has given a pair of Harvard Law School students the opportunity to help frame both the legal and media strategies for prosecuting a high profile case to upend a lucrative prison telephone company contract that exploits inmates while enriching one county sheriff’s coffers.
Kelly Ganon,’19, Dylan Herts ’19 and Roger Bertling, Harvard Lecturer on Law.
The case was filed in May against Bristol County (Massachusetts) Sheriff Thomas M. Hodgson and Securus Technologies, Inc., a Texas-based company that provides phone services for inmates across the country. Brought by four named plaintiffs – two of them inmates—the case alleges that the contract between the sherrif’s office and Securus represents an illegal kickback scheme that nearly doubles the cost of calls made from the county jail.
Organizations filing the litigation on behalf of the plaintiffs were the Consumer Protection Clinic at the Legal Services Center of Harvard Law School, the National Consumer Law Center, Prisoners’ Legal Services, and Bailey & Glasser. The lawsuit seeks an injunction to halt the payment scheme and monetary relief to return the money extracted from class members.
Which legal arguments to use
“We are representing a group of people who are caught between a rock and a hard place,” says Kelly Ganon ’19, who was a paralegal in the Economic Crimes Unit at the U.S. Attorney’s Office in Boston before coming to law school. Ganon also worked in the Massachusetts Attorney General’s Office the summer after her first year in law school. “It was fascinating to work with seasoned attorneys to strategize about how to put the best foot forward on a case,” Ganon said.
Ganon and fellow student Dylan Herts ’19 researched a range of legal arguments that they or the attorneys posited could be used. “I’d never been involved in a civil case from the beginning, looking critically at all the various ways the case can be taken, the legal arguments that can be made, and making decisions about what will stand up best,” said Herts.
Herts, who prior to coming to HLS worked as an economic litigation consultant providing expert witnesses to firms defending clients in securities and antitrust litigation, observed: “This was my first experience coming from the plaintiff side. It was amazing to have the whole universe available to consider in terms of how to frame the litigation. What can we bring up? What should we bring up?”
The ability to take Securus to court only arose when the company moved over the past few years to be viewed as an internet service provider rather than a phone utility. “As a traditional phone utility, it could not be sued on these claims, but as an internet company providing phone calls over the internet it could be,” says Harvard Law School Lecturer on Law Roger Bertling, who leads the Consumer Protection Clinic at LSC and is the lead attorney from Harvard on the case.
Fees and kickbacks
Massachusetts law prohibits sheriffs from charging prisoners fees to subsidize the cost of their incarceration unless such fees are authorized by the legislature. Rather than attempt to assess unauthorized fees directly, the BCSO arranges for Securus, a private vendor, to extract revenues from individuals like family members, friends and attorneys, who accept collect phone calls from prisoners which are unrelated to the cost of providing the phone service. Those revenues, called “commissions,” are then redirected to the sheriff’s office pursuant to the contract between the County and the company, thus circumventing the legal prohibition, Bertling explains.
Between August 2011 and June 2013, Securus paid the Bristol County Sheriff’s office $1.7 million in exchange for an exclusive contract to provide inmate phone services. It paid the sheriff’s office $200,00 per year plus a lump sum of $820,000 to cover 2016 to 2020. To offset these costs, Securus charged inmates, their families and friends and attorneys exorbitant fees for phone calls. Inmates had no choice but to use Securus. Bertling adds: “We are not challenging a filed rate already agreed to by the Commonwealth, but rather commissions that have not been authorized by the legislature.”
Fees for calls in Bristol include $3.16 for the first minute and 16 cents for each additional minute. If calls are disconnected – a common complaint from inmates – reconnecting results in a recurrence of the $3.16 charge for the first minute. A simple 10 minute phone call can cost $4.76.
Statewide and nationwide impact
If the case is ultimately successful, it could have an impact on thousands of inmates in Massachusetts. It could also impact numerous inmates in other states whose correction facilities have entered into similar telephone servicer provider agreements. Securus provides phone and video calling services for jails in 10 of the 14 counties in Massachusetts, as well as for the state’s prisons. Contract terms vary widely among jurisdictions. In the Massachusetts state prisons, for example, phone calls are 10 cents per minute with no special fee for the first minute.
Impact litigation and media
“When you are doing impact litigation like this case, the lawyers are doing a lot that is not litigation,” notes Herts, who says he is hoping to do consumer protection antitrust work with the government in the future. “Media coverage was an extremely important facet of this case. When the litigation was filed, I saw an article about it online in the Boston Globe. Then a few days later the Globe also did an editorial,” he said.
The editorial sided with the arguments being made in the lawsuit and against the practices of Securus and the Bristol Country Sheriff’s department. It also called for legislative reforms that would prevent similar price-gouging practices.
“An immense amount of discussion among the groups working on this suit were focused on how are we going to tell this story,” Ganon says. “We focused a lot of time on the narrative that sets the stage for the legal arguments in the filing.”
Consumer protection offers great experience
As students in the Consumer Protection clinic course, Ganon and Herts began their semesters helping individual consumers facing credit card debt cases in state district court, which was equally rewarding.
“At the beginning of the semester, Professor Bertling asked each student what they wanted to do after graduation and I told him I wanted to be a trial attorney,” Ganon says. She was given the opportunity to represent clients in state district court and work on a case requesting a stay for a client who was battling nine lawsuits related to student loan debt.
Herts, who also had the opportunity to represent clients in state district court as well as working on the prison phone call case, says he hopes to stay involved with the case next semester by either taking an advanced level course with the Consumer Protection Clinic, or through another route. “The experience is teaching me a lot – and the issue is really important.”
— Julie Rafferty
Photo credit: Martha Stewart