by Peter Wagner, July 25, 2014

Eddie Ellis

Photo of Edwin “Eddie” Ellis speaking at Citizens Against Recidivism, Inc. (Photo: Citizens Against Recidivism, Inc.)

I was saddened to read this morning of the passing of Eddie Ellis, one of the first people to encourage my work to end prison gerrymandering, frequently inviting me to his On the Count radio program on WBAI.

Being on his program, and having Eddie introduce me to other important activists in New York City was a great honor for a young law student and then young lawyer, but I don’t think I ever told him that I was a fan of his long before he starting telling people to read my Importing Constituents report.

I first learned of Eddie Ellis from footage when he was still incarcerated in the excellent film The Last Graduation about the value of higher education in prisons and the horrible decision by the Clinton administration and Congress to end Pell Grants for incarcerated people, thereby shutting down very cost-effective college programs nationwide.

Eddie, a former Black Panther, served 23 years for a murder he didn’t commit. After his release, Eddie hit the ground running, continuing the work he started when he was on the inside. As the New York Times summarized a decade ago:

Rather than talk in broad sociological terms of crime and punishment, Mr. Ellis and his prison colleagues prefer to sketch out a sociological whirlwind: 47 percent prisoner recidivism rooted in an annual traffic of 26,000 prisoners going in and 23,000 coming out…

Out-of-Date Strategies

“The fact that must be faced, then, is that at least 11,000 new crimes are going to be committed by these guys coming out, most of them in their home neighborhoods,” Mr. Ellis stressed. “So what we do in the prisons can’t be done in the abstract, removed from these neighborhoods and their Afrocentric and Latino cultures.” Traditional prison strategies, he argued, are 50 years out of date and geared for the “Jimmy Cagney” days when Italian and Irish prisoners were the white majority in a much smaller, pre-drug-culture prison population.

The study groups within the prisons have crafted room for their activities from the tolerance for reform that followed the Attica prison riot of 1971. The chief groups, sometimes operating with church or civil rights sponsors, meet regularly in Green Haven, Eastern, Sing Sing, Woodbourne, Walkill and Auburn prisons. Each year they sponsor a seminar rooted in their nontraditional approach and attended by outside specialists.

[Ellis is interested] in shaping fresh changes in prison and tapping what he and some prison administrators see as a thoughtful talent pool of first-hand experience residing behind bars. Even more, as he exults in being back on the streets of Harlem, his beloved birthplace, Mr. Ellis keeps his departing galley-ship image of the prison system in mind.

“We’ve had enough textbook penology,” he said, trying to urge an outside world sick of the deepening rut of crime and punishment to consider alternative perspectives from some of the system’s resident experts.

The organization that Eddie founded, the Center for Nu Leadership, has a longer obituary.


by Peter Wagner, July 24, 2014

One of the highlights of the American Constitution Society Conference in Washington DC was quite serendipitous. I was at the conference to accept the David Carliner Public Interest Award, and I had the opportunity to have an amazing dinner with David Carliner’s family and the finalist for the award, Barbara Graves-Poller. Barbara mentioned her travel plans for the next day, and I recognized that on my way to a family event I’d be driving directly past the same New York City airport she needed to get to. I offered her a ride, and we had a long conversation about the intersections between our work that led to three collaborations. First I’m excited to announce that Barbara joined the Prison Policy Initiative advisory board. Secondly I’d like to share how Barbara’s work in family law provided powerful support to our work on regulating the prison phone industry. (Stay tuned for collaboration #3.)

Barbara is a supervising attorney at MFY Legal Services in New York City, where she specializes in providing legal representation to “kinship caregivers”, i.e., “grandparents and other relatives caring for children whose biological parents are unavailable due to incarceration, illness, death or other causes.” In so many cases in our poorest communities, incarceration is what rips families apart.

Now, I’ve been working to bring fairness to the prison and jail telephone industry for a long time, but what Barbara said next still shocked me: In New York, high phone costs can cost incarcerated parents their parental rights.

Barbara sent a three page letter to the Federal Communications Commission, alerting them to this important additional reason why further reductions in the unnecessary cost of calling home from prison or jail is necessary. The whole letter is a must read, but check out this excerpt first:

I. Inmates’ Relatives Often Serve as Informal “Kinship Caregivers” for Children and Cannot Bear the Expense of Uncapped Collect Calls

Taken together, the poverty and lack of social supports that define the kinship caregiver community make unreasonably high telephone bills particularly burdensome. As a consequence, low-income family members may be discouraged from taking in children with incarcerated parents, thus resulting in an increase in the foster care population, or restrict communications between children and their parents in prison.

II. Inmates Who Cannot Communicate with their Children or the Children’s Caregivers Routinely Lose their Parental Rights

Under New York Domestic Relations Law S 111(2), a parent who fails to visit or communicate with his or her child or designated caregiver for six months is deemed to have forfeited his or her parental rights. See In re Annette B., 828 N.E.2d 661 (N.Y. 2005). Incarcerated parents are not exempted from this rule and bear the burden of convincing a judge that they were unable to communicate with their children or provide financial assistance while in prison. Furthermore, nothing in the Domestic Relations Law requires foster care agencies to facilitate communications between incarcerated parents and their children. Indeed, many foster care agencies currently do not accept collect calls. Foster parents have discretion to accept collect calls but are not required to incur such expenses as a condition of caregiving.

Accordingly, inmates with children in the foster care system and kinship care arrangements risk losing their parental rights if they or their children’s caregivers cannot afford to pay for telephone communications. Time and again, New York courts terminate parental rights of currently and recently incarcerated parents because of the parent’s failure to communicate within the statutory period set forth in the Domestic Relations Law. In In re Yamilette MG., 986 N.Y.S.20 485, 487 (N.Y. App. Div. 2014), for example, the appellate court made clear that a father’s “incarceration did not absolve him of the responsibility to provide financial support for the child, according to his means, and to maintain regular contact with the child or the petitioner.” It made no inquiry into the father’s ability to afford calls while incarcerated, nor did it require proof that the foster care agency helped to facilitate communications between the father and child….

Thank you, Barbara, for sharing your experience with the FCC, and thank you Carliner Family and the American Constitution Society for making this connection.

And stay tuned for what the FCC does next.


by Peter Wagner, July 21, 2014

On July 7, the Alabama Public Service Commission announced new rules to go into effect on October 1 to cap the rates and fees charged by the prison and jail telephone industry operating in that state.

The new rules are notable for addressing not just the high rates charged to families for each phone call, but also for the comprehensive way in which Alabama addresses the additional fees that families must pay to open accounts, deposit money, have accounts, and receive refunds. Fees are complicated and get less attention than the rates, but fees are important. As we explain in our Please Deposit All Your Money report, we found that fees account for 38% of the money spent on calls from correctional facilities.

The final rules largely resemble the proposed rules we analyzed and praised last year. And the new order confirms that the phone companies are not somehow exempt from unclaimed property laws, and must refund unused pre-paid funds to the customers or hand it over to the State as well as imposing new rules that discourage jails from banning in-person visitation to replace it with paid video visitation.

And most notably, the new rules significantly strengthen the Alabama Public Service Commission’s finding that many parts of the industry are receiving secret kickbacks from payment processors like Western Union and MoneyGram and creates a solution that should have an immediate nation-wide impact.

The final rules require all companies operating in Alabama to submit to the Commission by October 1 the fees charged by third party companies like Western Union and MoneyGram to send payments to that company. If the fee is more than the more typical charge of $5.95:

the provider shall submit a sworn affidavit signed by the provider’s Owner, President, or Chief Executive Officer and notarized, affirming that the ICS provider, its parent company, nor any subsidiary/affiliate of the provider or its parent company receives no portion of the revenue charged the provider’s customers by the listed third-party payment transfer services. For any payment transfer fee that exceeds $5.95, the ICS provider shall also provide to the Commission a copy of the provider’s contract with the third-party payment transfer service and shall justify to the Commission in writing, signed by the provider’s Owner, President, or Chief Executive Officer, why it is unable to arrange for payment transfer services at fees that do not exceed $5.95. (¶ 8.20)

Assuming that the companies aren’t willing to commit perjury, the companies will have three choices:

  1. Renegotiate the contract like NCIC did to lower the price charged to families.
  2. Renegotiate the contact just for payments in Alabama, thereby admitting to every other state that kickbacks are in place elsewhere.
  3. Give up the Western Union and MoneyGram kickbacks nation-wide.

Given that poor people often don’t have access to banks and credit cards and must instead rely on services like Western Union and MoneyGram, this order will have a massive impact, leaving families with more money to spend on the actual phone calls or other family needs. Bravo Alabama!

Other states: What are you waiting for?

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