The Newsletter of North Carolina Prisoner Legal Services, Inc.

NCPLS

Volume VI, Issue 2, June 2006

ACCESS

TIME SPENT IN DART-CHERRY PROGRAM
REDUCES SENTENCE
By: Beth McNeill, NCPLS Staff Attorney

[Editor’s Note: Readers of ACCESS
will recall an earlier NCPLS victory in the case of State v. Hearst,
356 N.C. 132, 567 S.E.2d
124 (2002), in which the
N.C. Supreme Court held
that a prisoner who had
spent time as a participant
in the Intensive Motivational Program of Alternative Correctional Treatment
(IMPACT) was entitled to
sentence reduction credits
upon revocation of probation. The following case
addresses whether participation in the DART-Cherry
program qualifies for sentence reduction credits.]

sentence.” NCPLS has always
requested credit for DART-Cherry
participation. However, prior to

genuine controversy because the
person is already free. Thus, the
case would be “moot.”)

Go rt A peals Hu es

On DAHJ-Gher vGred-

In State v. Lutz, 628 S.E.2d 34,
(N.C. App., Apr. 4, 2006), the N.C.
Court of Appeals ruled that a defendant whose suspended sentence
is activated is entitled to credit
under N.C. Gen. Stat. §15-196.1
for time spent in the DART-Cherry
(Drug Alcohol Recovery Treatment) program. In pertinent part,
the statute provides: “The minimum and maximum term of a
sentence shall be credited with and
diminished by the total amount of
time a defendant has spent, committed to or in confinement in any
State or local correctional, mental
or other institution as a result of
the charge that culminated in the

the Lutz decision, some counties
refused to grant credit for DARTCherry participation.
People who are ordered to participate in the DART-Cherry program
receive probationary sentences and
usually have relatively short prison
sentences. Consequently, although
plenty of prisoners were denied
credit for participating in the program, it was difficult to identify
anyone who would be imprisoned
long enough to raise the matter in
court. Defendants usually completed their sentences before a
Superior Court Judge ruled on our
motion for credit. (Once a person
is released, a claim for sentence
reduction credits doesn’t present a

Finally, we were able to litigate the issue during April
2005 in Wayne County.
Just as in the Hearst case,
the legal question turned on
the meaning of the statutory phrase, “committed to
or in confinement.” N.C.
Gen. Stat. §15-196.1. We
argued that the defendant
had been ordered by the
court to participate in the
program as a condition of
special probation, that

(Continued on Page 2)

In this Issue:
Time Spent in DART-Cherry Program
Reduces Sentence
1
Prison Legal News
2
Proof of “Derivative” Citizenship
Prevents Deportation
3
Poll Reveals Broad Support for Progressive
Rehabilitation and Re-Entry Policies
3
The Supreme Court of the United States
(SCOTUS) Report
4
NCPLS Board Member Joins BlueRibbon Committee
5
National Prison Commission Identifies
Reforms to Curb Violence and Abuse
6
Corresponding with NCPLS
7
ABA’s Liaison to the ACA
8
Excessive Telephone Fees
9
Sexual Harrasment, Assualt & Abuse
in Prison: A Case Study
10
A Book by Michael Santos - Inside:
Life Behind Bars in America
11

NCPLS ACCESS

Page 2
ACCESS is a publication of North
Carolina Prisoner Legal Services,
Inc. Established in 1978, NCPLS is a
non-profit, public service organization.
The program is governed by a Board
of Directors who are designated by
various organizations and institutions,
including the North Carolina Bar
Association, the North Carolina
Association of Black Lawyers, the
North Carolina Association of Women
Attorneys, and law school deans at
UNC, Duke, NCCU, Wake Forest and
Campbell.
NCPLS serves a population of more
than 37,000 prisoners and 14,000 pretrial detainees, providing information
and advice concerning legal rights and
responsibilities, discouraging frivolous
litigation, working toward administrative resolutions of legitimate problems,
and providing representation in all
State and federal courts to ensure
humane conditions of confinement and
to challenge illegal convictions and
sentences.

Board of Directors
President, Fred Williams, Esq.
Jim Blackburn
James A. Crouch, Esq.
Dean Ronald Steven Douglas
Professor Grady Jessup
Barry Nakell, Esq.
Susan Olive, Esq.
Gary Presnell, Esq.
Professor Ronald F. Wright
Executive Director
Michael S. Hamden, Esq.
Editor
Patricia Sanders, CLA

PLEASE NOTE: ACCESS is published

four (4) times a year.

Articles, ideas and suggestions are
welcome: tsanders@ncpls.org

Volume VI, Issue 2, June 2006

DART-CHERRY (CONTINUED)
(Continued from Page 1)

he was not at liberty to walk away
from the program, and thus, our
client was “committed to or in
confinement” of a State correctional institution. Our motion for
credit was denied by the Superior
Court and the Court of Appeals
agreed to review the decision. In
April 2006, the N.C. Court of
Appeals ruled in our client’s favor,
clearly establishing that people
who spent time in the program
are entitled to sentence reduction
credits.
NCPLS is making every effort to
inform clerks and attorneys about

the Lutz ruling. At the Public
Defender’s conference in May
2006, NCPLS presented a session
on jail credit and included information on Lutz. In addition, our
jail credit paralegals are including
copies of the decision when they
request jail credit from counties
that formerly would not give credit
for DART-Cherry participation. If
NCPLS previously requested credit
for time spent in DART-Cherry on
your behalf and that request was
denied, please let us know and we
will reevaluate your case.

- Advertisement Prison Legal News

Prison Legal News (PLN) is an
independent, 48 page monthly
magazine that has published since
1990. It reports on all aspects of
the criminal justice system from all
fifty states and around the world.
It has the most extensive reporting
on detention facility litigation and
news of any publication. Contents include columns by lawyers
aimed at assisting pro se prisoner
litigants with habeas corpus and
civil rights litigation. Regularly
covered topics include verdicts and
settlements, disciplinary hearings,
medical issues, excessive force,
death row, telephones, mail regulations, religious freedom, court
access, habeas corpus, misconduct
and corruption by prison and jail
employees, state and federal legislation, the Prison Litigation Reform
Act (PLRA), conditions of confinement and much, much more.

PLN also distributes books dealing
with litigation, self-help and the
criminal justice system. Each issue
of PLN contains ads from many
businesses and organizations providing services and products aimed
at the prisoner market. Subscriptions are $18 per year for prisoners
(subscriptions can be pro rated at
$1.50 per issue - do not send less
than $9.00); $25.00 per year for
non-prisoners and $60 per year for
professionals and institutions.
Sample copies are available for
$2.00. You can contact PLN at:
Prison Legal News
Dept. NC, 2400 NW 80th Street
PMB 148
Seattle, WA 98117.
www.prionlegalnews.org
Tel: 206-246-1022.
[Editor’s Note: PLN is not affiliated with NCPLS or ACCESS.]

NCPLS ACCESS

Volume VI, Issue 2, June 2006

Page 3

PROOF OF “DERIVATIVE” CITIZENSHIP
PREVENTS DEPORTATION
By: Hoang Lam, NCPLS Staff Attorney

Recently, NCPLS helped inmate
Juda Ha correct his sentence and
prove his United States citizenship.
As a result of these efforts, Mr.
Ha’s overall prison time will be
reduced by six to nine years, and he
will not face deportation to Vietnam at the end of his sentences.
In 2004, Mr. Ha pled guilty to
robbery with a dangerous weapon.
Because of mitigating circumstances in the case, the court
imposed a sentence of 82 to 108
months, to be run concurrently with
an existing sentence. However, the
clerk mistakenly marked the sentence as consecutive on the judgment. Investigating Mr. Ha’s claim
that the sentence was to run concurrently, neither Mr. Ha’s former
defense attorney nor the court
reporter could substantiate Mr.
Ha’s claim. NCPLS Attorney Ken
Butler and Paralegal Kira Weiss

citizen, he was under eighteen
years old when his mother subsequently became a naturalized citizen, at which time he automatically
became a citizen as well by law.

Juda N. Ha

sought the help of the assistant
district attorney (ADA) prosecuting
the case. The ADA acknowledged
the clerical error and agreed to
have it corrected.
Because of Mr. Ha’s convictions,
the government initiated deportation proceedings against him. Neither Mr. Ha nor the government
realized that Mr. Ha is a “derivative” United States citizen.
Although Mr. Ha was admitted to
the United States as a permanent

In defense of the deportation
proceedings, NCPLS helped Mr.
Ha submit an application which
explained the facts to an immigration agency. NCPLS Attorney
Hoang Lam accompanied Mr.
Ha to an interview conducted by
the Citizenship and Immigration
Services (formerly known as the
Department of Immigration and
Naturalization (INS)). After the
interview, the agency issued Mr. Ha
a Certificate of Citizenship, which
settles the dispute. Consequently,
the deportation proceedings against
Mr. Ha will almost certainly be
terminated, and he will be able to
rejoin his family and community
when he completes his sentences.

POLL REVEALS BROAD SUPPORT
FOR PROGRESSIVE REHABILITATION
AND RE-ENTRY POLICIES
According to a poll recently conducted by Zogby International,
87% of Americans favor rehabilitation services for prisoners instead
of a punishment-only approach.
Eighty-two per cent feel that a lack
of job training is a very significant
barrier to successful re-entry. By

overwhelming majorities, people
feel that the availability of medical
care (86%), public housing (84%),
and student loans (83%) are key
factors to a successful transition.
The poll, commissioned by the
National Council on Crime and
Delinquency (NCCD), can be

obtained by writing to:
NCCD Headquarters
1970 Broadway, Suite 500
Oakland, CA 94612
or on the Internet at:
www.nccd-crc.org

NCPLS ACCESS

Page 4

Volume VI, Issue 2, June 2006

THE SUPREME COURT OF THE
UNITED STATES (SCOTUS) REPORT
[Editor’s Note: The Supreme
Court of the United States
(SCOTUS) has decided a number
of cases that affect criminal defendants and prisoners during this
term. Due to space limitations, the
most significant developments are
summarized in this article.]
Holly v. Scott, 548
U.S. ___, 126 S.Ct.
2333, 74 USLW 3668
(May 30, 2006).
NCPLS sought review
of the decision of the
Fourth Circuit Court
of Appeals which
held that employees
of private prisons do
not act under color
of state law because
prison operation is not
an exclusive government function, and
because the plaintiff had a remedy
in state court through a common
law negligence action. Although
other prisoner advocacy groups
supported the NCPLS petition, the
Supreme Court denied certiorari by
order dated May 30, 2006.
Woodford v. Ngo, 548 U.S. ___,
___ S.Ct. ___, 2006 WL 1698937
(No. 05-416) (June 22, 2006). The
Prison Litigation Reform Act of
1995 (PLRA) requires prisoners
to exhaust all available administrative remedies before they can
file a federal lawsuit. 42 U.S.C.
§1997e(a). A prisoner who failed
to meet procedural requirements
of the prison grievance procedure
was barred from maintaining a

§1983 lawsuit due to failure to
exhaust. According to the Court,
it was the congressional intent to
require administrative exhaustion,
which gives prisoners an incentive
to make full use of the grievance
procedure and, provides prison
officials an opportunity to correct

The U"ited State... Supreme COlirt

errors. Additionally, the grievance
procedure reduces the quantity
and improves the quality of prisoner suits that are eventually filed,
the Court opined. The Court left
open the possibility that exhaustion might not be required when a
grievance procedure failed to provide a meaningful opportunity to redress prisoner
grievances, either due to a limitation on the subject matter that
could constitute a grievance, or
due to objectively unreasonable
time-limits for filing or appealing a
grievance.
Samson v. California, 548 U.S.
___ (No. 04-9728) (June 19,
2006). Prisoners who are paroled

in California are required to agree
in writing to be searched without
a warrant and without cause. In a
6-3 decision, the Court held that
requirement did not violate the 4th
Amendment because it is “reasonable under ‘a totality of the circumstances.’”
Davis v. Washington, 548 U.S. ___,
126 S.Ct. 2266, 74
USLW 4356 (No.
05-5224) (June 19,
2006) [together with
Hammon v. Indiana,
Id. (No. 05-5705)]. In
Crawford v. Washington, 541 U.S. 36 (?),
the Court held that
“testimonial” statements of a witness
are not admissible
evidence unless the
witness is unavailable to attend the
trial and there was an opportunity
to cross examine the witness at
the time she made the statement.
In these cases, the Court defined
“non-testimonial” statements as
those made under emergency circumstances that objectively show
the witness was seeking police
intervention or assistance. “Testimonial” statements, on the other
hand, are those which are made
under circumstances that objectively show there was no such
emergency and the primary purpose of the police interrogation was
to gather proof for a subsequent
prosecution.
(Continued on Page 5)

NCPLS ACCESS

Volume VI, Issue 2, June 2006

Page 5

SCOTUS REPORT
(CONTINUED)

(Continued from Page 4)

Hudson v. Michigan, 548 U.S.
___, 126 S.Ct. 2159, 74 USLW
4311 (No. 04-1360) (June 15,
2006). The common law and statutory rule (18 U.S.C. §3109) that in
executing a search warrant, police
must “knock and announce” their
presence is based upon the 4th
Amendment’s prohibition against
unreasonable searches. Wilson v.
Arkansas, 514 U.S. 927, 931-932
(1995). The failure of police to
“knock and announce” does not
necessarily require the exclusion
of evidence thereafter obtained,
according to the Court. Instead,

evidence will be excluded “only
where the benefits of deterring an
unannounced entry is outweighed
by “substantial social costs.”
Pennsylvania Bd. of Probation and
Parole v. Scott, 524 U.S. 357, 363
(1998). Other than the exclusion
of evidence, there are alternative
mechanisms to deter police misconduct such as the increasing professionalism of law enforcement
officers or [the remote possibility
of successful] civil rights lawsuits.
Thus, the exclusion of evidence
to deter violations of the “knock
and announce” rule is unjustified,
accordign to the Court.

Beard v. Banks, 548 U. S. ____
(No. 04–1739) (2006). Prison
policy forbidding inmates in level
II Long Term Segregation Unit any
access to newspapers, magazines,
or photographs does not violate
the First Amendment where prison
officials set forth a “‘valid, rational
connection’” between the Policy
and “‘legitimate penological interests.’” Turner v. Safley, 482 U. S.
78, 89, 95 (1987). In this case, the
primary rationale was to promote
better behavior.

NCPLS BOARD MEMBER JOINS
BLUE-RIBBON COMMITTEE
Following the ground-breaking
decision of the Supreme Court in
the Booker/Blakely line of cases, a
“blue-ribbon” committee has been
formed to establish principles for
constitutional sentencing systems
and recommendations for revising
sentencing laws.
The Constitution Project, an organization that seeks bi-partisan
solutions to difficult legal issues,
embarked upon the “Sentencing Initiative” in response to the
Blakely decision. Readers of
ACCESS will recall that Blakely
stands for the proposition that
aggravating factors other than a
prior conviction must be proven
“beyond a reasonable doubt” as

determined by the jury. Blakely v.
Washington, 542 U.S. 296 (2004).
See also United States v. Booker, _
__ U.S. ___, 125 S.Ct. 738 (2005).
The Committee, co-chaired by
Philip Heymann, Deputy Attorney
General under President Clinton,
and Edwin Meese III, Attorney
General under President Reagan,
includes other distinguished scholars and authorities on sentencing
law, and notably NCPLS Board
member Ronald Wright. Wright,
who is a Professor of Law at Wake
Forest Law School, is a nationally
renowned authority on the Federal
Sentencing Guidelines.
The Committee has developed
principles for establishing post-

Booker sentencing systems that
both protect public safety and
respect the constitutional rights of
defendants. The Committee is also
exploring opportunities to reform
sentencing laws that have long
been recognized as having unjustifiable, disparate impacts on minorities, as well as sentencing schemes
that are costly and counter-productive.
Additional information can be
obtained by writing to:
Constitution Project
1025 Vermont Ave., NW, 3rd Floor
Washington DC, 20005
www.constitutionproject.org

Page 6

NCPLS ACCESS

Volume VI, Issue 2, June 2006

NATIONAL PRISON COMMISSION
IDENTIFIES REFORMS TO CURB
VIOLENCE AND ABUSE
Washington, DC – After a yearby the Vera Institute of Justice,
members of the religious comlong examination of correctional
a non-profit organization that
munity, and correctional profesfacilities in this country,
sionals. The co-chairs of
on June 8, the National
the Commission are the
Commission on Safety and
Honorable John J. Gibbons
Abuse in America’s Prisons
(formerly Chief Judge of
released its report: Confrontthe U.S. Court of Appeals,
ing Confinement. Although
Third Circuit, and a profesthere are more than 5,000
sor of Constitutional Law
correctional facilities in the
at Seton Hall University
U.S., the Commission identiLaw School), and Nicholas
fied four major challenges
de B. Katzenbach (former
that are common to most:
Attorney General of the
(1) Inadequate conditions
United States). Distinof confinement (including
guished Commission
violence, poor health care,
members include Stephen
and improper use of segregaB. Bright, founder of the
tion); (2) labor/management
Southern Center for Human
relations; (3) a dearth of
Rights – a non-governmenstatistical data about prison
tal organization serving
operations, especially conprisoners, and a nationally
cerning violence and abuse;
recognized expert who has
and (4) inadequate oversight
testified before commitDirector
Hilary
O.
Shelton
of the closed environments
tees of both the U.S. Senate
Gary D. Maynard
of correctional settings. The
and House of RepresentaCommission offers 30
tives. Another prominent
works to improve governmenrecommendations for reform,
member of the Commission is
tal services upon which people
including recommendations to reGary Maynard, Director of the
depend for safety and justice. The Iowa Department of Corrections
invest in programming to enhance
organization conducts empirical
education and build skills necesand president-elect of the Ameriinvestigations to formulate innosary for success after release;
can Correctional Association. With
vative
programs
which
improve
reduce the use of high-security
more than 34 years in the field of
the quality of justice, sharing new
segregation; increase training and
corrections, Mr. Maynard has held
approaches
and
positive
results
compensation for correctional
senior positions in the Oklahoma,
with city, state, and national govprofessionals; amend the Prison
Arkansas, and South Carolina
ernments.
Litigation Reform Act to broaden
corrections systems. And a third
access to the courts; and develop
key member of the Commission
In
creating
the
National
Coma unified and consistent method
is Hilary Shelton, director of the
mission on Safety and Abuse in
for correctional facilities to report
NAACP’s Washington Bureau,
America’s
Prisons,
the
Vera
Instia range of data, and particularly
which is the federal government
tute brought together a diverse and affairs and legislative policy divistatistics relating to violence and
prestigious group of professionals, sion of oldest and largest civil
abuse.
including former prisoners and
prisoner advocates, civic leaders,
(Continued on Page 11)
The Commission was sponsored

NCPLS ACCESS

Volume VI, Issue 2, June 2006

Page 7

CORRESPONDING WITH NCPLS
NCPLS receives 500 or more letters from inmates each week. Our
goal is to try to assist each inmate
who writes. The following suggestions are offered to help us serve
the inmates who write.

lated without facts to support your
claims, cannot be investigated.
Broad (hypothetical) questions
cannot be answered.

1. Put your OPUS number on
all your letters/envelopes. If you
are in a jail that assigns you a
jail ID number, please use that
number. (Many inmates have the
same name, but OPUS and jail ID
numbers are unique. Using your
OPUS number helps to ensure the
mail will be delivered to you (and
not someone with the same name)
when we send you a response.)

7. If you are writing to complain
about a condition of confinement,
an injury, or a medical issue, start
the grievance process before you
write to us. If you have begun the
grievance process, be sure to let us
know. Remember that NCPLS is
NOT the place to file your DC-410
grievance forms. DC-410 forms
must be submitted to staff at your
unit, or in the case of a confidential
grievance, to the Director of Prisons.

2. Try to write as clearly as possible, especially when writing your
name. Print clearly. Block letters
are the best. Do not use small or
elaborate handwriting (if your letter
is hard to read, it could delay our
response time).

8. NCPLS will NOT forward mail
for inmates. (That would violate
DOC rules, and we cannot effectively function on your behalf if we
jeopardize our relationship with the
Department or abuse the trust we
have built over the years.)

3. If possible, write in ink.

9. There are many types of lawsuits an inmate can file. If you
are requesting one of our self-help
packets to file on your own, be as
specific as possible about the type
of lawsuit you are planning to file
so that we can send you the right
packet. However, if you know the
name of the specific packet, you
can just write, “Please send me a
__________ packet.”

4. If you ever have been known by,
or are currently known by a different name (a nickname, an alias
[a.k.a. - also known as]), let us
know, especially if you have been
or are corresponding with NCPLS
by another name.
5. If you have a problem reading or writing, please let us know
in your letter that someone else is
writing the letter for you.
6. Be specific when describing
your problem(s) or asking questions. Broad claims that your
rights have been (or are being) vio-

10. It is not necessary to cite cases
when you write to us. NCPLS is
familiar with prisoner rights law
and stays up-to-date on changes in
the laws that affect prisoners and
their rights.

11. Do NOT send us any physical
evidence (other than paperwork)
that you believe supports your
allegations. It is hard to store and
keep-up with that kind of material.
We will let you know if we need
anything more than documents.
12. Be patient. Our goal is to
respond to every letter we receive.
If you follow the above suggestions
and you are requesting forms or
other information, it is likely that
we will respond within 24 hours of
receiving your request. For some
requests for assistance, it will take
a little longer, but we try at least to
acknowledge all inquiries within 30
days.

NCPLS ACCESS

Page 8

Volume VI, Issue 2, June 2006

ABA’S LIAISON TO THE ACA
At the end of July 2006, NCPLS
Executive Director Michael
Hamden will complete a term of
service as the American Bar
Association’s (ABA) liaison to the
American Correctional Association
(ACA).
In 1998, Hamden began a four-year
term on the ACA’s Commission on
Accreditation for Corrections
(CAC). In addition, the President
of the ACA appointed Hamden
to the Standards Committee for
a two-year term. A second twoyear appointment to the Standards
Committee was renewed in 2000.
Hamden’s second four-year term
on the CAC began in August 2002.
Hamden was elected to the CAC’s
Executive Committee, and in 2004,
he was reappointed to another twoyear term on the Standards Committee.
During his tenure, Hamden worked
to enhance the procedural and substantive integrity of accreditation;
contribute to a more meaningful
process; and increase understanding and cooperation between correctional professionals, members
of the legal profession, government
officials, and others. In his role
as ABA’s liaison, Hamden collaborated with Professor Lynn S.
Branham to develop the Crowding Protocol, a systematic and
uniform approach to dealing with
overcrowding in facilities seeking
accreditation or reaccreditation.
Hamden also played a role in shaping ACA Correctional Policy. For
example, Hamden’s initiative to
address the problem of excessive
charges for inmate-initiated telephone calls led to the adoption of

the Public Correctional Policy on
Inmate/Juvenile Offender Access
to Telephone Services (unanimously ratified by the American
Correctional Association Delegate
Assembly of the Winter Conference in Nashville, Tenn., January
24, 2001.) That policy provided
the basis for a new standard that
encourages correctional agencies
and administrators to make telephone services available to inmates
at “rates and surcharges that are
commensurate with those charged
to the general public for like
services.” Adopted by unanimous
vote of the Standards Committee
in August, 2002, that standard was
incorporated into standards manuals for ten different types of correctional facilities.
The relationship with ACA had
reciprocal benefits for the ABA.
For example, the Corrections &
Sentencing Committee, a body
co-chaired by Hamden, proposed
a Resolution & Report Regarding
Telephone Services in the Correctional Setting for consideration by
the ABA’s Criminal Justice Section in May 2005. The Resolution
provided: “RESOLVED, That the
American Bar Association encourages federal, state, territorial and
local governments, consistent with
sound correctional management,
law enforcement and national security principles, to afford prison and
jail inmates reasonable opportunity
to maintain telephonic communication with the free community,
and to offer telephone services in
the correctional setting with an
appropriate range of options at the
lowest possible rates.” The ACA’s
Correctional Policy and related

standards provided supporting
authority for the Resolution. The
ABA’s House of Delegates adopted
the Resolution & Report in August
2005.
Through its liaison, the ABA
had a salutary influence on ACA
standards and accreditation. For
instance, in 2001, Hamden chaired
a subcommittee to compare ACA
standards to the UN’s Minimum
Rules for the Treatment of Prisoners, and to recommend conforming
changes. The Standards Committee acted on more than a dozen of
the subcommittee’s recommendations for the revision of then-existing standards and the adoption of
new standards. Similarly, in 2002,
Hamden chaired a subcommittee to
update ACA standards to conform
to the requirements of the Americans with Disabilities Act (ADA).
Pursuant to the recommendations
of that subcommittee, about a
dozen standards were revised, two
new standards were adopted, and
the changes were reflected in standards manuals for twelve types of
correctional facilities.
ACA accreditation procedures have
been significantly improved as a
result of the ABA’s involvement.
A case in point was an initiative to
improve auditing and accreditation
procedures for Bureau of Prisons
facilities that began in 1999 and
culminated with a Memorandum
of Understanding (MOU) between
the Bureau and ACA in 2003. The
MOU regularized auditing procedures, specified those standards
that were applicable to the Bureau,
(Continued on Page 11)

NCPLS ACCESS

Volume VI, Issue 2, June 2006

EXCESSIVE TELEPHONE FEES

The problem of excessive fees
charged for inmate telephone
services is an issue with which
NCPLS has been concerned for
almost a decade. Regrettably, the
problem is national in scope. For
example, according to an article
published in the Atlanta JournalConstitution, telecommunications
giant WorldCom was charging “a
$3.95 connection charge and 69
cents per minute” for calls originating from correctional facilities in
2001. Atlanta Journal-Constitution, “WorldCom May Pay Refunds
for Prisoner Phone Calls,” by
John McCosh (October 19, 2001).
Similarly, from 1997 through 2000,
AT&T raised its interstate long distance inmate service rates 57%. At
$14.30 for a 15-minute interstate
long distance call, AT&T’s rate was
about 15 times the $.85 rate for a
15-minute local call that then prevailed in Tennessee. (Rates vary
among carriers, in different markets, and over time, but charges for
inmate telephone services are
uniformly priced well above rates
charged the ordinary consumer.)
Families of prisoners are among
the poorest, least able to pay excessive telephone charges, and they
are completely powerless to choose
alternative service providers.
Inmates who wish to speak with
family and friends by telephone
are equally powerless to affect any
change.
These exorbitant rates cannot be
justified on the basis of any legitimate costs associated with the
provision of inmate telephone services. Instead, industry practices
of paying “commissions” drive
ever-escalating charges. Telephone

service providers compete for
exclusive contracts with correctional facilities and entire systems
by offering commissions on revenue ranging from 33 to 60%.
[North Carolina reportedly receives
no such commissions, a matter that
is currently being investigated by
this office.] Under these contracts,
some correctional facilities generate huge sums of money.

Page 9

But state utilities commissions and
the Federal Communications
Commission have also declined to
impose regulations to reign-in the
abuses. See, for example, North
Carolina Utilities Commission,
Docket No. P-100, Sub 84; Docket
No. P-55, Sub 1005; Docket No. P100, Sub 126; and Federal Communications Commission, CC Docket
No. 96-128, Voluntary Remand of
Inmate Telephone Services Issues.
Despite wide-spread abuses, the
The North Carolina Utilities Comcourts have refused to put a halt to
mission cases and the Federal
the practice. There is no constiCommunications Commission case
tutional right for inmates to use a
were matters in which NCPLS filed
telephone, at least so long as they
several briefs, appeared at oral
can communicate with the outside
argument, and engaged in discusworld through other means (such as sions with commission personnel,
correspondence.) See, for example, all without success.
Arsberry v. Illinois, 244 F.3d 558
(7th Cir. 2000). Illinois granted
Prisoner advocates have thus far
one phone company the exclusive
met with no success in challenging
right to provide telephone services
the legality of exorbitant pricing
to inmates in return for 50 percent
schemes for inmate telephone serof the revenues generated. Inmates vices, either in the courts, in state
and members of their families chal- utilities commissions, or in the
lenged the practice as a violation of Federal Communications Commistheir free speech rights, as a dission.
criminatory denial of equal protection of the laws, and as a violation
However, as readers of ACCESS
of federal anti-trust laws. In the
know, the American Correctional
Arsberry case, the U.S. Court of
Association (ACA) has provided
Appeals for the Seventh Circuit
important leadership in the initiaconcluded that the practice did not
tive to address this problem. In the
violate the constitution or any fedyear 2000, NCPLS asked the ACA
eral law. See, also, Daleure v.
to adopt a policy against excessive
Kentucky, 119 F. Supp. 2d 683
telephone rates. ACA’s Delegate
(W.D. Kentucky 2000) (The court
Assembly unanimously ratified the
found defendants’ actions did not
policy at its Winter Conference in
violate the Constitution); Miranda
Nashville, Tennessee on January
v. Michigan, 141 F. Supp. 2d 747
24, 2001. A conforming proposal
(E.D. Mich. 2001) (Plaintiff’s
for a new ACA standard was
Federal Telecommunications Act
adopted in August 2002.
claims fell within the primary
jurisdiction of the Federal Communications Commission and were (Continued on Page 10)
dismissed).

NCPLS ACCESS

Page 10

EXCESSIVE TELEPHONE FEES

Volume VI, Issue 2, June 2006

(CONTINUED)

(Continued from Page 10)

Furthermore, on August 11th, the
ABA’s House of Delegates passed
by overwhelming voice vote a resolution on correctional telephone
services. Encouraging correctional
professionals to provide prisoners reasonable opportunities “to
maintain telephonic communication with the free community, and
to offer telephone services in the
correctional setting with an appropriate range of options at the lowest
possible rates,” the resolution is
now official ABA policy.

Recently, Congressman Bobby L.
Rush introduced The Family Telephone Connection Protection Act
(H.R.4466), legislation to amend
the Communications Act of 1934
which would require the Federal
Communications Commission to
prescribe rules regulating inmate
telephone service rates. The ABA
has taken an official position
strongly supporting the bill and
urging the House of Representatives to pass the legislation.

You can express your support for
H.R. 4466 by writing to Congressman Rush and your congressional
representatives. Members of the
House of Representatives can be
reached at U. S. House of Representatives, Washington, DC 20515.
Senator Richard Burr can be contacted at 217 Russell Senate Office
Building, Washington, DC 20510;
and Senator Elizabeth Dole’s
address is 555 Dirksen Senate
Office Building, Washington, DC
20510.

SEXUAL HARASSMENT, ASSAULT, EXPLOITATION
& ABUSE IN PRISON: A CASE STUDY
BY:

[Editor’s Note: The following letter is a

combination of letters/comments we have
received from several clients in the past
few months. This letter is not real, but it
is a realistic example of some of the letters we’ve received. Each of the clients
who wrote to us about sexual abuse and
harassment has been involved in a situation similar to the one described below.
We have been able to help some of
the people who wrote to us. To date we
have settled four such cases. We removed
references to our clients’ names and their
specific situations to protect their privacy.]

Dear NCPLS,
I wrote to you about a year ago and
told you that I had been victimized
by an officer at the unit where I
was housed. It was very difficult
to write and explain that I had been
involved in a sexual relationship
with this man. I explained that I
was scared and hurt that the prison

MICHELE LUECKING-SUNMAN, NCPLS STAFF ATTORNEY

where I was sent to serve time was
not protecting me from a predator
such as him, but subjecting me to
him on a regular basis. I also explained that I was ashamed of what
I had been forced to do and my
friends and family were not even
aware of what I had endured.

released. Thank you for listening
and believing in me. I know there
are other women like me in prisons
across this state. I hope they will
write and ask for the same help I
received from you.
Sincerely, NCPLS Client

You responded quickly and asked
for more information. You visited
me and pursued a lawsuit on my
behalf. Throughout the course of
the past year we investigated the
matter together and entered into
settlement negotiations with the
defendants. You were able to settle
my case for monetary damages.

position to engage in “consensual” sexual
relations with an officer. Officers have
power over virtually every aspect of a
prisoner’s life. Acts of kindness, “special
favors,” or personal accommodations may
be performed for the best of reasons or
with ulterior motives. It is never alright
for an officer to engage in intimate relations with a prisoner. It’s against the law,
the DOC won’t stand for it, and the people
who are involved will almost certainly be
hurt in some way. If you feel that you’re
being victimized, you may contact NCPLS
for assistance. We will hold the information you provide in confidence and work
with you to handle the matter in a way that
is attentive to your feelings and responsive
to your needs.]

I do not feel that any amount of
money could compensate me for
what I experienced at the hands
of an officer, but I can now begin
my life over, now that I have been

[Editor’s Post-Script: Prisoners are in no

NCPLS ACCESS

Volume VI, Issue 2, June 2006

Page 11

ABA’S LIAISON TO THE ACA
(CONTINUED)

(Continued from Page 8)

and provided new statistical information about the particular facility
seeking accreditation (including
rated/design capacity, actual population, average daily population,
and average length of stay, and
population demographics). This
statistical information proved so

useful that it was incorporated into
audit reports for all types of facilities.
Commenting on his involvement,
Hamden stated, “It has been a
privilege and an honor to serve for
the past eight years as the American Bar Association’s liaison to the

American Correctional Association. The relationship between the
two organizations has proven to be
a productive and mutually beneficial alliance, and one that has great
promise for the future.”
Lynn S. Branham succeeds
Hamden as the ABA’s liaison to

NATIONAL PRISON COMMISSION
(CONTINUED)

(Continued from Page 8)

rights organization in the United
States. Previously, Mr. Shelton
was Federal Liaison and Assistant
Director of the Government Affairs
Department of the College Fund/
UNCF, also known as The United
Negro College Fund.
On the same day the Commission
report was released, June 8, five

Commission members testified
before the U.S. Senate Judiciary
Subcommittee on Corrections and
Rehabilitation about the report’s
key findings and recommendations.
While the report was well-received,
it is unclear what further action
will result from the Commission’s
recommendations.

To order a free copy of the report,
Confronting Confinement, contact:
National Commission on Safety
and Abuse in America’s Prisons
601 Thirteenth Street, NW
Suite 1150 South,
Washington, DC 20005
The report can also be downloaded
at: www.prisoncommission.org/
report.asp.

- ADVERTISEMENT A BOOK BY MICHAEL G. SANTOS
Inside: Life Behind Bars in America
A frequent contributor to ACCESS,
author Michael G. Santos has published a new book entitled Inside:
Life Behind Bars in America.
Convicted of drug distribution,
Santos has served 18 years of a
45 year sentence. From that experience, the author has gained an
understanding of life on the inside
which is powerfully conveyed
in this work. From first-hand
accounts of violence to insightful
critique and commentary on crimi-

nal justice policy, Santos delivers a
hard-hitting testimonial of a correctional system urgently in need of
reform. Inside: Life Behind Bars in
America is available at bookstores
everywhere, and may be purchased
by writing to MichaelSantos.net at:
10115 Greenwood Avenue
PMB 184
Seattle, WA 98133
The retail price is $24.95.

THE NEWSLETTER OF NORTH CAROLINA
PRISONER LEGAL SERVICES, INC.
1110 Wake Forest Road
P.O. Box 25397
Raleigh, NC 27611
Phone: (919) 856-2200
Fax: (919) 856-2223
Email: tsanders@ncpls.org

Visit our website at:
http://www.ncpls.org