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Prisoners, Collect Calls and Section 1983

Those with love ones imprisoned face many difficulties.  One of these include the price of merely talking to a loved one: a brief telephone call costs at least $20.00.  This might not seem like a lot of money to you, but when you consider that prisoners usually come from poor families, it's easy to see the financial toll the phone calls take on loved ones.

What worse is that the excessive fees bear no rational relation to the additional costs of monitoring prisoners' calls.  Rather, it's yet another revenue-generation scheme.  Some of you might argue that prisoners and their families deserve this treatment.  I'm finished arguing with your ilk, though I'll continue to hope that God (or man) "will take away the stony heart out of your flesh, and ... will give you an heart of flesh." Ezekiel 36:26-27.

Today a unanimous three-judge panel rejected an equal protection challenge to one such scheme.  Gilmore v. City of Douglas, No. 04-1325 (8th Cir. May 2, 2005).

In her complaint, Gilmore drew her equal protection analysis from a distinction between two classes of recipients of collect calls–those who receive telephone service in general including collect calls and those who receive collect calls from inmates at the DCCC. Gilmore's theory is that people who receive collect calls from inmates at the DCCC are treated differently from those general telephone service recipients who receive collect calls from callers not incarcerated at the DCCC. Accordingly, Gilmore asserted that the County was impermissibly levying a special tax exclusively on those persons who accepted collect calls from inmates at the DCCC in violation of their right to equal protection of the laws.

Slip op. at 4.  The panel rejected this claim, noting that "the classifications drawn by Gilmore in her complaint finding no similar situation extant between those who received calls from DCCC inmates and those who received collect calls from the general public."  Id. at 5.  Moreover,

even assuming the money received by Douglas County is a tax, the purpose of this tax, as reasoned by the district court, was to recoup costs associated with the space and maintenance of the telephones provided to inmates. Under rational basis review, a plaintiff must show more than that the government treated two classes differently for some irrational reason, a plaintiff must show that the government intended to discriminate against one class. Batra v. Bd. of Regents of Univ. of Nebraska, 79 F.3d 717, 721 (8th Cir. 1996). In this case, the alleged government action is aimed at generating revenue to defray the costs of providing inmates with a specific service, it is not aimed at treating persons who receive collect calls from the DCCC differently from those who generally receive collect calls.

Because the plaintiff could not establish purposeful discrimation, their claims were rejected.  The panel also rejected the plaintiff's claim that the fees were unrelated to the costs of providing a phone service.  Applying rational basis, the panel rejected this argument. 

We must recognize that "a legislative choice . . . may be based on rational speculation unsupported by evidence or empirical data." FCC v. Beach Communications, Inc., 508 U.S. 307, 315 (1993). Thus, because "all that must be shown is 'any reasonably conceivable state of facts that could provide a rational basis for the classification,' it is not necessary to wait for further factual development."

Id. at 7.  In other words, even though there was no factual basis for the excessive phone fees, the panel upheld it.  Sadly, that's what an application of the rational basis test called for.  Which is something to consider the next time you refer to Lochner as a monster.

One argument not raised, but which I'd love to hear you thoughts on, is this: Do excessive phone fees violate First Amendment associational rights when poor families are unable to communicate with incarcerated relatives?

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