1. Background on the BOP

    According to the BOP’s mission statement, its mission is “to protect society by confining offenders in the controlled environments of prison and community-based facilities that are safe, humane, and appropriately secure, and that provide work and other self-improvement opportunities to assist offenders in becoming law-abiding citizens.” As of January 1, 1999, the BOP operated 93 correctional institutions. The BOP classifies its institutions into five security levels: Minimum, Low, Medium, High, and Administrative. 4 On April 30, 1999, the BOP reported the inmate population to be 113,042.5 The number of inmates in federal prison has doubled since 1988. Accompanying this steep increase in inmates is a corresponding growth in staff – 30,250 as of January 1999 – making the BOP the largest employer in the Department of Justice.

    Kathleen Hawk Sawyer, the Director of the BOP since December 1992, is a career BOP employee who previously served as Assistant Director for the Program Review Division. The BOP’s management, administrative, and policy functions are coordinated from BOP Headquarters – known as the “Central Office” – located in Washington, D.C. In addition, six regional BOP offices oversee the operations of the institutions in their regions and provide management and technical assistance and training to those institutions. BOP policies are generally approved by the BOP’s Executive Staff, which consists of the Director, the seven Assistant Directors for the Divisions within BOP, and the six Regional Directors. Position papers on important issues are usually presented to the Executive Staff and, after extensive debate, decisions are made by that body.

    Two divisions within BOP Headquarters are primarily responsible for overseeing and administering important aspects of the federal prison’s inmate telephone system – the Administration Division, including its Trust Fund Branch, and the Correctional Programs Division, including its Intelligence Section. The role each of these units plays with respect to inmate telephone usage and oversight is described in turn.

    The Administration Division is responsible for financial management of BOP facilities, including the Inmate Trust Fund. This Trust Fund manages the profits generated by commissaries at federal correctional institutions. Commissaries sell items such as snacks, personal grooming products, and stamps to inmates. Profits made from the sale of commissary items are placed in the Trust Fund and, according to statute, can be spent “for any purpose accruing to the benefit of the inmate body, as a whole, such as amusements, education, library, or general welfare work.” Fees charged inmates for their telephone calls are also placed in the Trust Fund. The Administration Division’s Inmate Telephone System Section manages the day-to-day operation of the inmate telephone system in BOP’s institutions and is responsible for development of the new inmate telephone system.

    The Correctional Programs Division is responsible for the day to day administration of inmates. Within the Division, the Intelligence Section develops policy and procedures for investigative and intelligence gathering efforts regarding inmate criminal activity and corruption of BOP staff. The Intelligence Section also develops and oversees the training for the Special Investigator Supervisor (SIS) offices. The Intelligence Section does not manage the SIS offices at each institution; this responsibility falls to the wardens.

    Every institution has an SIS office. The primary role of the SIS office is to investigate crimes committed by inmates or staff. The SIS office also conducts administrative investigations that may lead to internal disciplinary measures being taken against an inmate. In addition, the SIS serves as a liaison to other law enforcement personnel, such as the FBI and the OIG, who share responsibility for investigating criminal activities within federal prisons. The SIS office in each institution is supervised by either a non-rotating Special Investigative Agent (SIA), or a correctional supervisor assigned to be an SIS “Lieutenant” for an 18-month rotation. Some SIS offices are also staffed with less senior SIS technicians. There are also regional SIS coordinators in each of the BOP’s six regions.

    To perform its primary role of detecting and deterring criminal activity within federal prisons, the SIS is supposed to develop intelligence regarding inmates or inmate groups that pose a threat to the security or safety of others. One of the SIS’s specific responsibilities is supervising the monitoring of inmate telephone calls. Typically, SIS technicians, under the supervision of the SIA or SIS Lieutenant, are assigned to monitor telephone calls and maintain tape libraries of recorded calls.

    The BOP also has a unit called the Sacramento Intelligence Unit (SIU), located in Sacramento, California, that consists of an agent from the BOP's Intelligence Section, a member of the U.S. Marshals Service's Threat Analysis Division, and a member of the Federal Corrections and Supervision Division of the Administrative Office of the United States Courts. The primary purpose of the SIU is to gather intelligence on gang members or other individuals entering the federal correctional system who may pose a security threat. The SIU gathers its information by coordinating with local authorities to determine inmates’ gang ties, position in the gang hierarchy, and the gang member's available resources. The SIU maintains files on individuals and groups and makes its intelligence database available to BOP institutions and law enforcement agencies.

  2. Background on Inmate Telephone Use in the BOP

    1. The BOP Philosophy on Inmate Use of Telephones

      According to the BOP’s program statement, granting inmates access to telephones furthers important correctional objectives such as maintaining family and community ties. This in turn facilitates the reintegration of inmates into society upon release from prison and reduces recidivism. The preamble to the BOP's regulations regarding telephones, codified at 28 CFR 540.100, states.

      The Bureau of Prisons extends telephone privileges to inmates as part of its overall correctional management. Telephone privileges are a supplemental means of maintaining community and family ties that will contribute to an inmate's personal development.

      Several BOP Headquarters staff told us of studies that supported the validity of this policy regarding inmate access to prison telephones. When asked for those studies, the Information, Policy, and Public Affairs Division provided citations to three studies. However, none of the studies examines the use of telephones by prison inmates or analyzes the effect of reasonable telephone restrictions on inmate behavior or personal development.6

    2. History of Inmate Access to Telephones

      Inmates in federal prison have not always enjoyed unlimited telephone privileges. Until the early 1970s, federal inmates were limited to one collect call every three months. Inmates placed these calls on staff telephones after receiving approval of their written requests to use the telephone. In 1973, the BOP issued a new program statement that directed its institutions to establish a telephone access program to “permit constructive, wholesome community contact.” The program statement directed institutions to provide inmates at least one telephone call every three months and also establish procedures to monitor calls in order to preserve security within the prison.

      Therefore, in the mid-1970s, the BOP began expanding inmate access to telephones and installed pay telephones in most institutions. According to BOP files, the increased access to telephones was based on “outside influences,” including Vietnam, Watergate, inner-city crises, emphasis on “treatment programs,” and changes in inmate population characteristics, as well as the BOP’s view that there was value in inmates maintaining strong family ties. Installation of pay telephones allowed inmates to place their own collect calls and relieved staff from this responsibility. By 1976, inmates in 31 of BOP’s 38 institutions could place telephone calls themselves, while inmates at the remaining seven institutions continued to rely on staff to place their calls. When the pay telephones were installed, the BOP imposed no restrictions on the number of calls inmates could make. Calls made from the pay telephones were generally listened to on a “sampling” basis by correctional officers at each institution if time permitted. Some primitive recording equipment was used to occasionally record specific calls of concern.

    3. Inmate Telephone Abuse and the BOP 's Early Responses

      As a result of the new procedures in the 1970s, inmate telephone abuse became a problem for the BOP. Serious abuse of the telephone system was noted as early as 1976, when $100,000 in fraudulent calls were traced to inmates in the Metropolitan Correctional Center in New York City. A similar but smaller fraud scheme by inmates using prison telephones was uncovered at the BOP’s Terminal Island, California, facility during the same period. According to a BOP document created before our review that outlined the history of telephone use within BOP institutions, these fraudulent schemes orchestrated from prison telephones “marked a turning point in BOP philosophy and signaled the general end in expanding access and the loosening of controls.”

      The BOP also reported in the document outlining the history of telephone use by inmates that it was pressured to make changes in its prison telephone system after several incidents in which inmates placed threatening calls to judges and other government officials. By 1982, 20 out of the 40 BOP institutions had installed devices that could allow BOP personnel to listen to calls as they were made, and the BOP decided to install monitoring equipment in all its institutions. In June 1983, G. A. Ralston, the Regional Director for the BOP's North Central Region, wrote to BOP Headquarters staff proposing a review of agency practices regarding telephone access for inmates in mid- and high-security institutions. Ralston’s memorandum was prompted by two serious escape attempts by inmates at the U.S. Penitentiary in Marion, Illinois – at the time the BOP’s highest security prison – who had used prison telephones to help make the escape arrangements. The memorandum stated:

      Because of the increasingly serious type of offenders housed in our penitentiaries, I believe we need to consider whether or not our present telephone access practices are providing us with the necessary degree of security with respect to escape attempts, drug transactions, and other improper activity.

      He added that the “current policy only requires one telephone call per each quarter” but that all the institutions were “operating far beyond that minimum level.”

      In July 1983, the BOP established a task force to evaluate the inmate telephone program. In its report, the task force characterized the reason for this evaluation:

      This reexamination results from inmates seriously abusing the telephone privileges . . . . The referenced abuses range from nuisance type calls. . . to the most extreme criminal conduct, including the arranging of murder contracts. To maintain the security and good order of our institutions and to protect the public we must establish reasonable limits to inmates' access to telephones.

      In September 1983 the task force recommended a “four-pronged strategy” to prevent inmate telephone abuse:

      1. Increase the recording and monitoring of telephone calls, including assigning a full-time telephone monitor in larger institutions and prohibiting calls that are not in English unless authorized by staff;

      2. Restrict access to telephones, including limiting the number of telephones available and their hours of use, establishing supervised telephone rooms, and making telephones inoperative unless under the direct supervision of a telephone monitor or other designated staff;

      3. Reduce the frequency of calls to one ten-minute collect call every two weeks; and

      4. Increase disciplinary sanctions for telephone abuse from a “low moderate” violation to a “high” violation, resulting in more serious disciplinary measures for telephone abuse.

      The BOP’s Executive Staff reviewed the task force proposals and determined that a central, supervised telephone room at each institution required too much staff and would result in increased inmate movement within the institution. The Executive Staff decided to reject the proposal to limit the frequency of calls because of its concern that “overall the amount of time spent on phones is not the problem; it is the few cases of serious abuse (i.e. criminal activity).” The BOP Executive Staff did decide to install monitoring technology to record 100 percent of all non-attorney calls and provide for live monitoring of some calls by staff at “fixed posts,” such as correctional officers located in remote monitoring locations..

      In March 1984, five wardens in the North Central Region presented, through Regional Director Ralston, their own recommendations to the Executive Staff regarding the BOP’s inmate telephone policies. These recommendations included:

      1. Live monitoring of some inmate non-attorney calls. This would include “continuous random monitoring by staff; selective monitoring of inmates suspected of telephone abuse or to gain specific intelligence information.”

      2. Recording all non-attorney calls.

      3. Identifying inmates who made the telephone calls, either by direct observation or a video camera.

      The wardens’ recommendations raised the possibility of reducing inmate access to telephones but concluded that the frequency and length of inmate calls had not been established as serious problems, and that staff resources required to implement such a change would be excessive. The group also warned that reductions in telephone privileges could reduce inmate morale and result in inmate unrest. The group recommended reducing access to the telephones only if the other recommendations did not succeed during a trial period. 7

      In the Spring of 1984, the BOP installed telephone recording equipment in five institutions on a pilot basis. In September 1986, the BOP began installing telephone recording equipment and a computer software program called the “Automated Intelligence Management System” (AIMS) in all its prison facilities. The software, developed by the SIS staff at the U.S. Penitentiary in Leavenworth, Kansas, allowed BOP staff to analyze transactional data regarding calls (such as the date and time of the call, the identification number of the inmate placing the call, and the number called) and to locate specific inmate calls.

      The Correctional Services Branch of the BOP produced a position paper in 1987 entitled “Restricting Inmate Calls and Impact on Security” while telephone recording equipment and computer search programs were in the process of being installed in BOP facilities. The paper discussed whether it was in the BOP’s best interest to restrict the number of people that an inmate could call. The paper noted that several hundred administrative and criminal cases involving prisoners' use of telephones had already been developed through computer assisted monitoring of calls, including escape attempts, domestic terrorism, murder conspiracies, and drug trafficking in prison. However, the paper argued that restricting inmate calls to a pre-approved list of numbers would be “counter-productive and, in fact, detrimental to our current SIS computer based investigative operations.” The paper contended that such restrictions would likely force conversations previously recorded on the telephone into the visiting room where they would not be recorded. In addition, restricting the telephone numbers that an inmate could call, the paper argued, would result in inmates using three-way calling to reach the desired party.

    4. The Development of the Inmate Telephone System

      1. Features and Installation of the Inmate Telephone System

        The federal prison system’s Inmate Telephone System (ITS) was developed in 1988, partly in response to a change in philosophy by BOP management as to who should pay for inmate calls. Prior to ITS, inmates could make collect calls only, thereby placing the financial burden for the call on the receiving party. In the late 1980s, the BOP began emphasizing inmates’ financial responsibility to reduce the burden on inmates’ families caused by collect calling. At the same time, a large increase in the number of inmates from foreign countries in BOP institutions who wanted to place calls overseas contributed to the move away from collect calling.

        The ITS system consists of computer hardware and software programs that enable the BOP to debit inmates’ commissary accounts for the cost of their calls. ITS uses a computer, a telephone switch, and software that can control and record data regarding calls placed on telephones. Under ITS, each inmate receives a “phone access code” (PAC) to facilitate this debiting and to (at least theoretically) permit correctional staff to identify which inmate made each call without visually checking the telephone area. ITS is also compatible with AIMS, the software used to search and analyze records of inmate calls. Only direct-dial calling was permitted under ITS when it was first implemented; no longer could inmates place collect calls.

        The current version of ITS has the capability of significantly limiting and controlling inmate calls. All calls are automatically recorded by recording machines. ITS can provide call record data and real-time alerts that specific inmates are placing calls or calling specified telephone numbers. For example, ITS can:

        • restrict calls to specific numbers (currently 30 for each inmate);

        • require placement of calls only from specific telephones;

        • restrict a specific inmate from placing any telephone calls by “freezing” their PAC number;

        • terminate all prison telephone service if security needs dictate; and

        • prevent all inmates from dialing specific numbers.

        Each institution’s ITS is self-contained – that is, ITS cannot be controlled or accessed from BOP Headquarters or from another prison facility. ITS stores information on every call placed, including the date and time, number called, account used, cost, and duration of the call. ITS can produce 26 different reports, including frequency of calls to a particular telephone number, all calls placed by a specific inmate, calls placed to a specific number by more than one inmate, and suspicious dialing patterns, such as attempts to transfer calls or use automated telephone systems outside prison.

        Under ITS, the only limitation on the number of calls inmates can make is their ability to pay for them from their telephone accounts.8 The system automatically checks the inmate’s balance in his commissary account when a call is attempted. When adequate funds for a three-minute telephone call are not available, ITS will not allow the call. Currently, inmates are charged between 15 and 31 cents per minute for debit calls made within the continental United States, depending on the distance of the call. A flat 50-cent fee is charged for local calls, regardless of duration. International calls cost between 18 cents and $7.06 for the first minute, with additional minutes charged at a slightly lower rate.

        The profits generated from ITS calls are significant, even though the system has not yet been fully implemented throughout the BOP. From October 1991 through June 1998, the net income from ITS telephone calls throughout the BOP was approximately $71.5 million. These profits are placed into the Inmate Trust Fund and only can be used by the BOP to pay for services or activities that benefit the inmate population as a whole. Whether some of these profits can be used to pay for the cost of monitoring inmate calls is discussed in Chapter Six, Section VI, of this report.

      2. Washington v. Reno

        Full implementation of ITS was not completed. In 1989, following a successful six-month pilot program at the Federal Correctional Institution in Butner, North Carolina, the BOP approved the deployment of ITS throughout the BOP. In August 1991, CONTEL (now GTE) was awarded the contract to install ITS in all BOP facilities. Full-scale installation of ITS began in April 1992, with an anticipated completion date for installation in all BOP institutions by May 1994.

        However, 14 months into the installation of ITS, female inmates from the Federal Medical Center in Lexington, Kentucky, filed a class action lawsuit against the BOP on behalf of all federal inmates. The plaintiffs claimed that ITS violated all inmates’ First Amendment right of free speech by placing limits on their ability to communicate with family and friends. This lawsuit became known as Washington v. Reno. On June 22, 1993, pending resolution of the inmates’ complaint, Henry R. Wilhoit, Jr., United States District Judge for the Eastern District of Kentucky, ordered the BOP to halt installation of ITS. At the time of the judge’s order, ITS had been installed at 41 out of 84 BOP facilities, and installation was in progress at two additional institutions.

        After more than two years of litigation, the lawsuit was settled in November 1995. The settlement agreement between the named plaintiffs and the government required the BOP to install in all facilities a new telephone system with both direct-dial and collect-calling capabilities. The settlement agreement also stipulated that, from the time of the settlement until the time the new telephone system was implemented, the BOP would operate a telephone system “substantially equivalent” to the system in place at each facility prior to institution of the lawsuit.

        Also, under the terms of the settlement, inmates are permitted to place up to 120 minutes of collect calls per month as long as they agree to participate in the Inmate Financial Responsibility Program (FRP), a program requiring inmates to pay a portion of their prison wages towards fines and the cost of their imprisonment.

        The settlement agreement did not place any limits on debit calling, but guaranteed inmates who refused to participate in the FRP at least 60 minutes of debit calling a month. The settlement also required an “approved calling list” for all inmates of no more than 30 telephone numbers that they could call. Inmates could make up to three changes a month to their calling list, and the BOP is required to implement those changes within five days. If the BOP intends to eliminate collect calling as an option for inmates after the settlement agreement expires, it is required to publish this proposed action in the Federal Register and allow time for public comment.

        Finally, and perhaps most importantly, the agreement states that the settlement does not interfere “with the discretion of the Bureau of Prisons and the Wardens of correctional institutions operated by the Bureau of Prisons to limit inmate telephone privileges . . . to maintain the security or good order of the institution, or to protect the public . . . or as a disciplinary sanction . . . .” The settlement agreement remains in effect until January 2002. [For a more detailed summary of the Washington v. Reno litigation, see Appendix 1.]

      3. Current Telephone Systems in BOP Facilities

        As a result of the Washington v. Reno settlement, the BOP currently has three types of telephone systems for inmate use at its 93 institutions:

        1. 27 institutions have unlimited collect calling (ITS not installed);

        2. 38 institutions have debit calling (ITS installed); and

        3. 28 institutions have debit calling and collect calling (modified version of ITS installed).

        Inmates at institutions in which ITS has been installed can place calls only to the 30 numbers on their approved telephone lists.9 Inmates at institutions without ITS are not required to file telephone calling lists because the BOP has no technology to limit collect calls to pre-approved numbers.

      4. ITS II

        The BOP has developed a more sophisticated version of ITS called “ITS II,” that will provide more options for restricting and controlling inmate access to prison telephones. The contract for development and installation of ITS II was awarded to GTE (the contractor for ITS) on February 20, 1998. Unsuccessful bidders initially filed a protest with the General Accounting Office (GAO), but subsequently withdrew the protest and re-filed it with the Court of Federal Claims. The BOP was required to suspend the procurement process with GTE while the protest was pending at the GAO, but the BOP was permitted to move forward with the contract after the protest had been filed in federal court.

        As a result of the contract dispute, the BOP has fallen behind in its original ITS II installation schedule. According to David Woody, Chief of the Inmate Telephone System Section, which handles all aspects of ITS at BOP Headquarters, by November 1999 ITS II should be installed in the 38 BOP institutions where the original ITS has been installed. The BOP anticipates having ITS II installed in all of its facilities by December 2000.10

        As of December 1998, a prototype of ITS II had been developed and was being tested at one BOP institution. The most significant improvement over ITS is that ITS II will be a centralized system. While ITS is self-contained at each institution and is incapable of sharing data through a central database, ITS II will allow the BOP to access inmate telephone information from all BOP institutions simultaneously. In addition, ITS II will allow the BOP’s Central Office to monitor and record telephone conversations of any inmate in the country. [For a more detailed description of ITS II, see Chapter Seven, Section VIII and Appendix 2.]

      5. Inmate Telephone Use in State Prisons

        For comparison purposes, we reviewed a 1995 survey of 41 state Departments of Corrections’ practices regarding inmate telephone use, which was conducted by Corrections Compendium and published in its May 1995 issue. According to that survey, inmates in most of the 41 states surveyed have almost unlimited access to telephones, restricted only by the availability of telephones. The Texas Department of Corrections, however, provides inmates with one 5-minute telephone call every 90 days.

        According to the survey, inmates in 32 of the 41 states must make collect calls. Inmates in eight other states can make direct or collect calls depending on the facility, while inmates in one state have only a direct-dialing option. Approximately half of the 41 states responding to the survey imposed a time limit on inmate calls, usually 15 minutes per call. According to the survey, state prisons appear to be moving toward monitoring and recording all inmate calls. Only ten states reported that inmate calls are not monitored by prison staff or recorded.

4 An institution’s security level is determined by the presence or absence of fences and walls, the style of housing, staff-to-inmate ratios, and availability of work and treatment programs. Administrative facilities have special missions, including detaining pre-trial offenders, treating inmates with chronic medical problems, and housing inmates who pose extreme security risks.

5 This figure does not include approximately 20,000 more persons housed in contract facilities, privately managed prisons, and other facilities under the BOP’s oversight.

6 The first study cited, “Recidivism Among Federal Prison Releasees in 1987: A Preliminary Report” (prepared by Miles D. Harer of the BOP's Office of Research and Evaluation, dated March 1994), discusses the way in which prison "normalization" – the process of replacing prison misconduct with norms supporting law abiding behavior through social furloughs and educational programs – reduces recidivism. The second study, entitled "Survival Analysis and Specific Deterrence: Integrating Theoretical and Empirical Models of Recidivism" (prepared by Christina DeJong of Michigan State University, Criminology, Vol.35, No.4, 1997), analyzes recidivism rates and concludes that prisoners with fewer ties to society are more likely to commit additional crimes following incarceration. The third study, entitled “Alternative Solutions to the Problem of Selection Bias in an Analysis of Federal Residential Drug Treatment Programs” (written by BOP employees Bernadette Pelissier and others in 1998), deals with statistical problems in calculating the success of drug treatment programs in prison.

The BOP later provided to the OIG eight studies conducted by other researchers which it believes establish that inmates’ “telephone usage and other contacts with family contribute to inmate morale, better staff-inmate interactions, and more connection to the community, which in turn has made them less likely to return to prison.” However, the fewof these studies that address telephones merely suggest that they can be used as a means for the inmates to maintain contact with their families, without any comprehensive analysis. In addition, while recognizing the problems of misuse of the telephones, they do not address whether the inmates are more likely to use the telephones for positive purposes, or for criminal purposes.

7 The results of a 1984 study demonstrated an awareness within the BOP of the problem of inmate telephone abuse. In October 1984, the warden at the Federal Correctional Institution in Ashland, Kentucky, reported to the BOP’s Southeast Regional Office the results of his 19-day “cursory” review of previously recorded inmate telephone calls. He stated that, during the review, staff at the prison discovered 15 incidents of inmates openly discussing activities that were illegal or in violation of BOP rules. The Ashland warden concluded:

We are not providing an adequate level of monitoring under present procedures. This is evidenced by the apparent willingness of inmates to openly discuss illegal/illicit or rule infraction activities, while knowing their conversationsare subject to being monitored and recorded... Our present monitoring of recordings equates to approximately 10 hours of staff time per week. Unfortunately, this reflects less than 2 percent monitoring... While the intent of initiating inmate telephone programs was good, the programs have deteriorated and are being abused to the point where misuse equals or exceeds legitimate use for maintaining positive family/community contacts... Wholesome, productive calls in which family relationships are maintained, do occur; unfortunately, they are in the minority.

The Ashland warden recommended reducing inmate telephone access to the point where staff could monitor all inmate calls. He also recommended that "patch calls" – three-way or forwarded calls – be specifically identified as a violation of BOP policy.

8 The BOP must provide at least one collect call each month for an inmate without funds. An “inmate without funds" is defined as someone who has maintained a trust fund account balance of $6 or less for the previous 30 days.

9 The one exception to this is at USP Lewisburg, which limits debit calls to 30 approved numbers but allows collect calling to any number.

10 According to the BOP Director, these dates have now been extended. The BOP currently estimates that ITS II should be installed in the 38 BOP institutions where the original ITS has been installed by April 2000 and ITS II installed in all of its facilities by January 2001.