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Sarah Buhler is an Associate Professor at the University of Saskatchewan College of Law. Amanda Dodge did legal and systemic advocacy at the Community Legal Assistance Services for Saskatoon Inner City (CLASSIC) for 8 years. She is currently the director of peace and justice programs at Mennonite Central Committee Saskatchewan.
Excerpt: Abstract & Part V: At Ground Level: Themes from the Study
[Footnotes omitted. They can be found in the original via the link above]
Governing law and policy in Saskatchewan mandates fair and reasonable telephone access for prisoners in provincial correctional centres. Our community-engaged, qualitative research project investigated the state of telephone access in Saskatchewan correctional centres from the point of view of former prisoners. Our research shows that prisoners’ experiences of telephone access cannot be described as fair or reasonable. Rather, telephone access is experienced by many prisoners as a precarious privilege that is perpetually at risk of revocation by guards. Former prisoners also placed the issue of telephone access squarely within a larger context of institutional violence and deprivation. Finally, our research highlights the ways in which the profit-seeking motives of a private prison telephone company impact prisoners’ day-to-day experiences of unfairness with the telephone system, both in terms of technological problems and cost barriers that include and also go beyond the cost of individual calls.
V. At Ground Level: Themes from the Study
Saskatchewan legislation and policy recognize a right to reasonable telephone access for prisoners, however, there is little detail in official policy or rules outlining how access to the system is to be allocated and monitored. The provincial Corrections Inmate Telephone System Policy provides guidelines and standards for the institutions and their staff to follow as they “allow inmates to have reasonable contact with family, friends and professional counsel.” The Policy specifically affords discretion to the directors of the institutions to establish relevant rules. Section 1.3 provides that “each correctional centre director is responsible for establishing local rules for offender access and utilization of the inmate telephone for personal and business calls.” Section 2.4 of the Policy provides that an internal review process be developed so prisoners can apply for telephone fee waivers on the basis of “exceptional financial and emotional hardship.” Despite this, it does not appear that such a process has been officially developed. The policy also provides that a few categories of calls are exempt from fees (e.g. for remanded and immigration hold prisoners) and that certain types of calls (e.g. to lawyers or the Ombudsman) are free. The institutions and their staff, therefore, have a great deal of discretion in the implementation of telephone access.
We argue that reasonable access should include, at minimum, a telephone system that is accessible, reliable and affordable. Our research shows that the telephone system in Saskatchewan provincial correctional centres cannot be described as such. As noted above, the government announced several changes to the system in 2017, including a universal free call per day plus a new flat rate for both local and long-distance calls. However, our research reveals deeper and persistent problems with the operation of the telephone system at ground level. We turn now to the themes and issues raised in our interviews.
A. The Guards Make the Rules
For the participants in our research, telephone access was a fragile privilege always at risk of being revoked. Not one participant referred to reasonable telephone access as a right held by prisoners. None referred to an awareness, while they were in prison, of the existence of official legislation, policy or institutional rules mandating reasonable telephone access for prisoners. Participants made it clear to us that on the ground in prisons, corrections staff make the rules. One participant explained that telephone access takes place within the larger context of how things work in prison, stating: “In jail, it’s different, it’s a whole different set of rules, it’s totally different from the outside. It’s all about eat or be eaten I guess.” Another explained that the entire telephone system could be shut down at the behest of the staff, stating: “[T]he guards do have control, overall, control in the office. They can shut [the phone system] off.” Another former prisoner stated that when it comes to telephone access, “[t]he staff don’t tell you what the rules are, they just tell you what you are going to do.”
Without awareness of a legal or policy framework that meaningfully supports the concept of reasonable telephone access including, for example, free calls in the case of emergency or emotional hardship, participants explained that telephone access was precarious and fragile. Telephone access was subject to arbitrary interventions by staff to allow and withdraw access. Participants indicated that telephone access was often contingent on prisoners’ relationship with correctional officers and, in particular, their attitude of respect and good behaviour. One participant noted that “if you are caught arguing on the phone … you can lose all access to your phone calls.” Another said: “You know if you ask politely and reasonably, [the staff will help you]. They’re not going to give it to you if you’re going off and your phone doesn’t wanna work.” Another explained:
[S]ay [an] inmate … put in a request for a trust deduction to be put in his Telmate account, but he got along with that guard … they’re buddy-buddy, they talked about this and that. Now, by the end of the week he’ll have his phone calls, you know, his money, but the other guy, the guy [the guard] didn’t like … all of a sudden he’s going “I’m still waiting on … my money’s not in my account yet”.
A woman who had been incarcerated at Pine Grove Correctional Centre indicated that telephone access could be cut for two days for prisoners who attempted to prolong a call longer than the allotted time. She said the following of her experience:
If you’re on for more than 15 minutes, they cut it off right away and then I get cut off for 2 days … And I can’t talk for two days on the phone. So I- I always get cut off for two days because I try to talk to my mom longer. My mom is 70 so I try to talk to her and let her know that I love her and that and make sure she’s ok.
These accounts by participants are not reflective of written policies. The accounts support the idea that, on the ground, the implementation and operation of telephone access is unhinged from official policies, related more to the power and whims of individual staff members.
Most participants explained that they had to learn the rules and protocols of telephone access “by trial and error” or from fellow prisoners. One explained:
[I learned the rules] by trial and error … it was more or less, told upon inmate to inmate, upon asking you know. Like a new person would come in and say, “well can I phone home”, you know, “yeah, you’re allowed to phone home but you’re only allowed 15 minutes on the phone” … so that’s how the other person understood the restrictions of the phone.
Similarly, another participant stated: “[I learned the rules from] my brother actually. Because he did time before me”. Another participant noted: “[I learned the rules] by other inmates, they told me how to go about it”. Others noted that they became aware of policies as circumstances arose. For example, one participant talked about being allowed to use the staff phone at no cost when his mother died, becoming aware for the first time that a free call might be available in an emergency situation. Prisoners were left with an uneven and unclear understanding of policies and procedures and an ongoing sense that telephone access could be revoked at any time.
Some might argue that what prisoners understand as unfair treatment is simply the operation of official discretion. After all, correctional officers have significant discretion in prison contexts generally, and specifically, in administering telephone access. What our study suggests, however, is that corrections staff make decisions and respond to telephone access requests in certain, patterned ways that are obvious to prisoners. These patterns can be described as a form of policy. As Matthew Diller points out, when viewed in the aggregate, exercises of discretion very often can be shown to “have distinct patterns that, in effect, become the operative policy of the agency.” Similarly, Evelyn Brodkin explains that discretion can very often be “structured by factors that influence informal behaviours to develop in systematic ways.” As observed by Gillian Metzger, “incarceration by its nature entails exercise of substantial discretion in closed environments with little public visibility. Given their extreme dependence and vulnerability, prisoners face a particularly acute potential for harm from abuse of these powers.” Prisoners’ inherent vulnerability to unfair treatment is compounded by the stigma of their constructed social identity as criminals and deepened further, in most cases, by intersectional identities of race and class. These layered stigmas may present justification for unfair treatment of prisoners in the minds of correctional officers making discretionary decisions.
What we heard about the rules and practices around telephone access are in keeping with the observations of critical legal scholars and sociologists, as well as official reports dealing with the roles of correctional staff and the operation of prisoners’ rights. For example, Lisa Kerr has noted that “[r]ights in the prison context function more like pliable interests.” In addition, Michael Weinrath notes that “[t]here are significant criticisms … of the continued capricious exercise of administrative authority within prisons.” In his ethnographic study of prisoners and correctional officers in Canadian prisons, Weinrath noted that correctional officers were often resentful of the rule of law and increased accountability measures that are perceived as “making day to day life more troublesome”. Official reports have also documented ongoing and troubling tendencies of some correctional officers to abuse their authority and decision-making powers.
B. Scarcity, Violence and Threats
Prisons are violent places. Deprivation as well as physical and psychological harm are routine, rather than exceptional, experiences for prisoners. The 2013 Marin Report, for example, documented the high levels of excessive force inflicted on prisoners by correctional officers in Ontario correctional facilities. Numerous other studies and accounts document the violent nature of incarceration. Our interviews made it clear that prisoners experience the prison telephone system as one of the sites of violence and discipline within the institution, a theme that emerged in our research. Many participants described frequent violence, including fights and threats over telephones and corresponding force and surveillance by correctional officers, around the telephones. Typical responses included the following: “I’ve seen fights break out for [the phone] and it gets pretty hectic” and “there’s a guard standing beside the phones … ‘cause people are always fighting, always taking too long, whatever’ … They watch you very carefully and they listen to the recording.” Another noted: “[The phone system makes me angry] like where I’d argue with the guards.” Yet another participant stated: “I would put [the phones] in a quiet place … there’s only three phones, they should have like six phones. And especially for Saskatoon, like that’s a real mean place … it should be like, in a little room instead of like in front of everybody and people walk by and fights happen.”
Participants pointed out reasons for this telephone-centred violence. The problems, according to them, included the inadequate number of telephones within the institution coupled with the exorbitant costs of calling and frustrations with the technology. One participant explained:
There’s not enough phones. When I was in jail, there was a lot of arguments over the phone and other things. Sometimes there would be fights over the phone because somebody would be talking too long … I’ve seen people get themselves beat up right by the phone because there’s not enough phones you know and people want to get in there.
Another stated: “[They should add] more phones, like more phones and longer telephone time … there’d be no fights and any concerns about the other inmates.”
Other participants noted that there is significant pressure on prisoners (especially on remanded prisoners, who at the time were allotted three free calls per day) to give up their calls or their telephone time. For example, one participant explained that “people get threatened, like ‘give me your phone’ … People get beat up for not giving up their phone time.” Other participants told us that strict rules preventing people from sharing their telephone funds are problematic. One individual stated: “[W]hy can’t you give another person a call when they really want to call home, you know?”
Participants’ accounts show that telephone access policies are implemented and experienced within a wider context of institutional violence which includes violence, and threats of violence, at the site of the telephones themselves. Every consideration of prison telephone policies should be alert to this context. Overt violence, and specific and general threats of violence, can defeat the intentions of official policies that promise reasonable and fair telephone access. Our interviews suggest that institutional decisions regarding the allocation and location of these telephones exacerbate tension and violence in the process.
C. Telephone Technology and Unfairness
The above discussion has examined former prisoners’ experiences of the precariousness of their rights to access the telephone system as well as the violence that surrounds prisoners’ experiences of telephone access. In this section and the next, we turn our attention to the numerous, detailed concerns we heard from participants about the Telmate telephone system. Two major problems identified by participants in our research are examined: first, problems with the technology of the system, and second, problems with the cost of calls. In this section, we consider the problems with the technology of the system identified by participants. These problems are wide reaching and significant to consider. These problems lead to frustration for prisoners hoping to make calls and expose how the operation of a privatized, profit-generating and robotized technology within a public correctional context can seemingly erode the institution’s responsibility for fairness and due process.
The participants in our study chronicled numerous problems with the technology of the Telmate system. One of the major problems identified is the system’s propensity to drop calls. The system is designed, for security reasons, to detect voices that may be coming from a third party and automatically disconnect the call upon detection. However, the individuals we spoke to talked about the way that this feature functions to interfere with communication with their loved ones and family. Additionally, this feature inflicts a financial consequence because the system charges the cost of a call even when a call is dropped. One person explained: “[Dropped calls] happened to me a few times … Where I’m talking to my kids and … then all of a sudden it just hangs up on me.” Another noted: “There’s many dropped calls, and sometimes they won’t give you the money back on there. It’s not a good phone system.”
Another key problem is the system’s hyper-sensitive voice recognition technology which blocks calls when the system does not recognize the prisoner’s voice. Participants noted that this meant they were, sometimes, unable to place calls at all. One stated that “the one thing that sucks about that voice recognition thing though is if you end up with a cold and you go to try and make a phone call it won’t recognize your voice whatsoever.”Another explained: “[S]o first thing in the morning if you couldn’t get through, because that computer isn’t recognizing your voice … how come they don’t have a real person on the other end?” He noted: “It would say, voice not recognized, please try again. And then you’d do it over again and it’d say, well you know, keep doing that, and sometimes I’d totally give up, say, eh f* this and hang up.” Another said there was always a feeling that “maybe you’ll get lucky and the computer will recognize your voice this time.”
These problems conspire to increase stress and frustration of people in prison. One participant put it this way: “Sometimes the number doesn’t work and you hear people going off … people go off man, if their phone system doesn’t work properly. They go off. Like really bad, it does affect people.” Another explained the impact as follows: “[W]hen I was there I felt that, because of the Telmate phones, I felt like I was really isolated and stuck. I wish they just had regular phones. It feels so scary to have those Telmate phones.” Overall, prisoners’ accounts of the stress and costs relating to the technologized security features are consistent with Michael Weinrath’s observation that security technology in federal prisons “punishes those who are trying to maintain relations outside.”
The emotional toll and frustration generated by interactions with the Telmate technology are problematic in themselves from a fairness perspective. Yet, another consequence of the Telmate system’s technology problems are the barriers to redress faced by prisoners who have experienced blocked or dropped calls due to the security technologies of the system. As participants in our research pointed out, when they experienced problems with the Telmate technology there was, usually, little assistance forthcoming from staff. Rather, staff told them that they must take up their grievances about the system with the company itself. As one participant told us: “[T]he guards didn’t really care too much about the phones. It was right of request, and they wouldn’t deal with it. When the phone was clicking in and out, their responses were … there was nothing they could do.” For the participants in our study, the process of taking up problems with the company can be described as Kafkaesque. As one person we interviewed noted, there is a claims process but it involves getting the phone provider to send transcripts of the call. He explained:
I phoned a lot of places where my phone call got dropped and then … I phone and tell them about a dropped call … and then because I didn’t have the proof or I didn’t have access to the phone system right in order for them to be able to trace it all back and showed them where my call was dropped I don’t have access to that part of the phone system so I don’t have the proof … you have to phone the phone providers and then you have to get them to send the transcripts and once you get them to send the transcripts you have to show the transcripts in order for them to be able to give you back your phone call … that takes anywhere from 6 months to a year.
Another participant simply noted that “[dropped calls] became lost in the system so it was a hard process to be reimbursed.” Another participant explained that “when I’m on a phone talking, the call will automatically drop, and I’ll lose my $7 and 20 minutes. Then when I phone again I have to use another $7 and 20 minutes.”
Prisoners face difficulty, and even impossibility, in obtaining redress for money lost on mistakenly dropped calls or inability to access the system due to problems with the voice recognition technology. This difficulty calls attention to the ways that a profit-driven, privatized telephone service in prisons causes fairness problems. As Alfred Aman points out, privatization in the context of prisons “subjects the activity in question to the forces of the market while freeing it from the various forms of regulation—both substantive and procedural—that apply to public bodies.” By requiring prisoners to take up problems with the company, the process is effectively disconnected from the usual institutional administrative processes for complaints by prisoners. It is unclear how Telmate is accountable for the operation of its system. Critical public law scholars have pointed out important concerns regarding this lack of accountability. For example, Patrick Sharma has noted that private actors carrying out functions on behalf of governments are not accountable in the same way government bodies are. Alfred Aman writes that private actors in privatized contexts “inevitably make policy when they carry out their delegated tasks and interpret the contracts under which they operate.” This leads to what he calls a ”democracy deficit” where values of public law such as fairness, transparency and accountability are at stake. This situation is highly concerning in the prison context and should invite more, rather than less, regulatory oversight and accountability. As Ben Iddings argues, “[w]hen the wellbeing of the country’s poorest, most vulnerable citizens is entrusted to private corporations, policymakers must be certain that government contracts ensure adequate accountability, oversight and regulatory flexibility.”
D. The High Costs of Calling
The most serious problem associated with telephone access for participants in our study was the exorbitant cost of calling. They spoke about the high cost of both local and long distance calls and the various hidden fees and costs associated with the system that were referred to earlier. The people we interviewed emphasized how inaccessible the telephone system was due to the imposition of high fees. They spoke frequently about how expensive and unaffordable the calls were, which prohibited their ability to contact their families and other supports. One participant stated that “if you had no money you had no way of reaching out to your family. You’re stuck.” Another said: “It’s expensive … like we only get so much money, and so much time … to talk on the phone and I don’t know why they bring that system in there that, really, really you know, bugs people … [it’s] so costly.”
Prisoners spoke of how their low daily income made it difficult for them to afford phone calls. One participant said: “[I]t’s ridiculous … I worked in the laundry and made a whole $5 a day. A phone call is like $7 for 20 minutes. So it’s a little too pricey; it’s ridiculous to be honest with you.” Another participant said:
I was phoning back home to my mom’s. I had to do it once a month because it cost me seven bucks for twenty minutes. Whether I used 20 minutes or not, if I used 15 or 13 minutes, it still take it at the whole $7. It still counted as 20 minutes. Overcharging too much … I could only phone home once a month, that’s if I had enough money.
It is often the case in Saskatchewan that prisoners are held in centres far away from their families, who live in a range of urban and rural communities. As one participant said: “[A] lot of people coming in there, they’re not rich, they don’t have money to afford those long distance cards to phone home. And a lot of them are from way, far away and they have to get those calling cards and like I said, not a lot of them could … connect with their family.” Another participant stated: “I didn’t need to phone anybody, anybody local … It was just the long distance calls … Like the long distance cards, they’re … there 10, 20 dollar ones, you know. They don’t last long.”
This problem has a particular and disproportionate impact on female prisoners who can be incarcerated only at the Pinegrove Correctional Centre. It is inequitable that women are more burdened by the cost of calling because they are more likely to be incarcerated a longer distance away from their families and support systems. A woman who was previously incarcerated at the Pinegrove Correctional Centre stated: “They should get a new telephone company altogether, with more reasonable rates. Women, most of the inmates, are quite far from home, and we all have to phone long distance. So they need a new system, and a whole new telephone company.” Another woman said: “[S]ome of the girls who come [to Pinegrove] are homeless. So they have to work for their money. And we only get $3 a day. We’re only allowed to make that much a day.”
Further, the people with whom we spoke noted several features of the system that they described as unfair, functioning to drive up the costs of calling even more. One participant said: “[E]ven if it rang and rang and rang and it went straight to voicemail and even though it’s not an actual person that answers the phone you still get your phone call … deducted.” Another participant stated:
[I]t’s hard to get money in my account. When a person has put money in my phone account, they also have to pay additional … We never got our money back, and when we do leave a message on that phone system it’s like they don’t get back to use until two days later. They don’t really have an answer to what you’re asking, so you just lose your $7.
Another example is the difficulty that prisoners have retrieving money in their telephone accounts following release. People must undergo an onerous bureaucratic process in order to claim amounts left on their account. As the Prison Policy Initiative has noted, this is one of the ways in which private for-profit prison telephone companies increase their profitability:
When someone is released from prison or jail, families welcome the chance to reconnect. But this event is a chance for prison telephone company profiteers to celebrate as well by either seizing the balance left over in a phone account or charging customer hefty fees to recoup their own money.
Participants in our study indicated that “it takes like 6 months for it to get approved in order for you to get that money back … it’s like a 20-page thing you have to write up why you want the money back and whatever … most people just leave their money there.”
In addition, a participant said: “I had money taken from me. I was incarcerated and still had money in my inmate phone account. I asked to be reimbursed and they took a percentage off my money to reimburse me. It costs money to put credit on your phone and it costs money to get your refund back. It’s not very fair at all.”
In the spring of 2017, following the submission of the coalition’s research report, Saskatchewan’s Ministry of Justice announced two changes. All prisoners in correctional centres would receive one free telephone call every day and the cost of calls, over and above that, would be substantially reduced to a flat rate of $2.50, regardless of whether they were local or long distance.
Reducing one of the barriers for prisoners seeking to communicate with family, friends and supports on the outside was regarded as a positive development by the coalition. Unfortunately, at the same time, the government announced a plan to cancel the daily wage for all prisoners and reduce the wages for prisoners who work within the institution.