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Trouble On The Line and Other Federal Prison News – Update for March 28, 2025

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

BOP SHORTS

cellphones230428Cotton Introduces Bill to Jam Cellphones:  Sen Tom Cotton (R-AR) and Rep David Kustoff (R-TN) have introduced companion bills in the House and Senate to permit prisons to use cellphone jamming devices to block  prisoners  from using contraband cellphones.

The Republican lawmakers are reintroducing identical legislation in their respective chambers of Congress that would amend § 302a(a) of the Communications Act of 1934 – which lets the Federal Communications Commission regulate “devices which in their operation are capable of emitting radio frequency energy by radiation, conduction, or other means in sufficient degree to cause harmful interference to radio communications” – to prohibit the FCC from banning cellphone jammers used in prison housing units.

Currently, the FCC says, “The Communications Act prohibits non-Federal entities from using cell jammers. The FCC cannot waive this statutory prohibition absent a change in the law by Congress.”  The Cotton-Kustoff bill is intended to solve this problem,  stating that the FCC “prevent a State or Federal correctional facility from operating a jamming system within the correctional facility to prevent, jam, or otherwise interfere with a wireless communication that is sent” by a contraband cellphone.

In announcing the bill, Cotton trotted out the overused refrain that “[f]or far too long, contraband cellphones have been a major security threat in our prisons, allowing criminals to coordinate crimes from behind bars. This legislation is a common-sense step to cut off their ability to threaten witnesses, organize drug trafficking, and endanger law-abiding citizens from within prison walls.” While there are instances of such crimes, the numbers pale next to cellphones’ real utility, to let prisoners get past telephone time and availability limitations on communications with friends and family.

Walter Pavlo described the phenomenon:

The risk of possessing and using a cell phone is something many prisoners wrestle with when they are in prison, but it is also a symptom of other problems in prison. It begs the question as to why prisoners take the extraordinary risk of having a cell phone. Federal prisoners are subject to lockdowns in prison where they are confined to their cells and not allowed to use sanctioned methods of communication like monitored calls and emails (Corrlinks, the prison email system, tracks and reads email messages). Lockdowns occur because of staff shortages or because of disturbances in the prison. Some of these lockdowns can last days, weeks or months. During lockdowns there is no television, no phone, no email and no visitation. In this isolation, prisoners long for some communication with the outside world, to talk to their family, to get some news, and to have some entertainment in stark confines of prison. The cell phones offer an escape from prison.

cellsandwich180216As a result, prison cellphones are at the heart of booming commerce: someone who has invested the $2,000 to $3,000 needed for a cellphone can then rent it out to other prisoners, who often have their own sim cards to insert into the phone.  Pavlo said, “A cell phone can be purchased by a prisoner for up to $3,000 and to cover the costs many are rented out to other prisoners for prices of $100-$200/hour, a price mostly determined by the number of phones in the prison. When cell phone inventory is high among the general population, prices tend to go down.”

Cellphone jamming unit prices currently range from about a hundred to several thousand dollars a unit, but with demand, the price would probably drop.

If the Cotton-Kustoff bill would pass, the effect on prisoner communication and commerce would be substantial, depending on how quickly prisons adopt and deploy the technology. While it is difficult to gauge the likelihood that the bill will pass, there is unlikely to be much opposition to the program.  The FCC has traditionally opposed any change in the law that permits use of devices intended to jam telecommunications, but this is now a different FCC, so its position (not to mention its influence with legislators) is unknown.

Transgender Injunction: A judge last week ordered the Bureau of Prisons to transfer two transgender inmates back to women’s prisons after they had been sent to male facilities due to Trump’s executive order withdrawing transgender protections.

U.S. District Judge Royce Lamberth (District of Columbia) issued a preliminary injunction in a suit over the impact of Trump’s executive order on transgender women in federal prisons.

Lamberth ordered the BOP to “immediately transfer” the two – identified in court papers as “Rachel and Ellen Doe” – back to women’s facilities and to continue to provide them with gender dysphoria treatment.

The inmates said in court papers that they were living in constant fear of sexual assault and violence after being moved to male prisons.

peters220930Colette Peters Lands on Her Feet: With inmate suicide rates in the California state prison system at an all-time high, Senior U.S. District Judge Kimberly Mueller (Eastern District of California) last week appointed former BOP Director Colette Peters as a “receiver-nominee” to develop an oversight plan for psychiatric services for California’s prison population intended to address the epidemic.

Peters was fired from her BOP position on January 20th within hours of Trump being sworn in as President. She has since filed with the Merit Systems Protection Board claiming that she was improperly fired.

Concerns Over BOP Pay Cuts: Sens Richard Durbin (D-IL), Cory Booker (D-NJ), Adam Schiff (D-CA), and 12 others wrote to Attorney General Pam Bondi last Friday expressing “deep[] concern” over BOP plans to cut retention pay by 50 percent at 42 facilities and eliminate it outright at seven others.

pooremptypockets231017Last month, 23,000 BOP employees were notified of the retention bonus change, effective Mar 23. The letter notes that the BOP “is already grappling with extreme understaffing at BOP institutions… Understaffed prisons already face immense challenges in keeping current populations and staff safe, ensuring access to necessary medical and dental care, and fully implementing the First Step Act in order to reduce recidivism risk and promote public safety… Reducing and eliminating staff retention incentives are certain to exacerbate staffing shortages.”

Newsbreak, Prisons could use cellphone jamming systems under bill in Congress (March 27, 2025)

Press Release, Cotton, Kustoff Introduce Bill to Keep Cellphones Out of Jails (March 26, 2025)

Forbes, Federal Prisoner’s Dilemma, Cell Phone Or Not (June 7, 2024)

Associated Press, Judge orders Trump administration to return two transgender inmates to women’s prisons (March 19, 2025)

Corrections1, Former BOP director named to lead overhaul of Calif. prison mental health system (March 21, 2025)

Sen Richard Durbin, Letter to Attorney General (March 21, 2025)

– Thomas L. Root

 

 

 

Senate Passes Bill to Crack Down on Prison Cellphones – Update for October 15, 2024

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

WHO SAYS CONGRESS CAN’T ACT QUICKLY?

quickbunny241015People who have watched Congress let criminal justice reform measures like the EQUAL Act and marijuana reform  – even the two-year trek for the First Step Act – languish for years may be surprised to see that the U.S. Senate can be quick like a bunny when it wants to.

Senator Jon Ossoff (D-GA) spent two years getting his colleagues to pass last summer’s Federal Prison Oversight Act (S.1401), a bill that tightens Dept of Justice review of prisoner mistreatment. However, when he introduced S.5284 – a bill that makes it a felony for people to smuggle cellphones into prison or for inmates to possess cellphones inside a facility – the Senate only took two days to pass the measure.

cellphonefelony241015The bill passed unanimously. After members return to Washington after the election, the House of Representatives will take up the measure in November. When the House passes the bill (and I expect the House will do so), the bill should dramatically increase prosecutions of inmates and their outside smuggling associates and make the use of cellphones inside much riskier.

Just in the past week, authorities intercept two attempted drone deliveries of contraband at federal facilities, one at FCI Pollock and the other at FCC Beaumont.

S.5284 – Lieutenant Osvaldo Albarati Stopping Prison Contraband Act

Press Release, Sen. Ossoff’s Bipartisan Bill to Crack Down on Contraband & Organized Crime in Federal Prisons Passes U.S. Senate (October 10, 2024)

DOJ Inspector General, Statement by DOJ IG Michael E. Horowitz on the Senate Passing the “Lieutenant Osvaldo Albarati Stopping Prison Contraband Act” (October 10, 2024)

KBMT-TV, Jefferson County deputies confiscate drone used to bring contraband into United States Penitentiary (October 7, 2024)

KALB-TV, 2 arrested for flying drone full of contraband into federal prison in Grant Parish (October 10, 2024)

– Thomas L. Root

“Code Blue” At BOP, GAO Says – Update for April 28, 2023

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

GAO PUTS BOP ON CRITICAL LIST

The Government Accountability Office last week added the BOP to its “high risk” list of “government operations with vulnerabilities to fraud, waste, abuse, and mismanagement, or in need of transformation.”

criticalcondition230428Federal prisons were the only program added to the 2023 list, which is updated every two years. The GAO has seen “good progress in certain areas due to congressional and executive branch actions, but there are still serious, very consequential problems that need to be addressed,” GAO head Gene Dodaro recently told the Senate Homeland Security and Governmental Affairs Committee. “We’re adding management of the Bureau of Prisons, there’s been problems with staffing, which has led to some concerns about inmate and staff safety and also their efforts to evaluate programs that are intended to help deal with the recidivism issue.”

GAO first identified BOP management as an “emerging high-risk issue” in March 2021. Since then, GAO reports, the BOP has addressed 22 GAO recommendations, leaving 28 recommendations still on the table. What’s more, Charles Johnson, managing director of GAO’s homeland security and justice team, told Congress the BOP’s staffing level remains down 15%.

Speaking of management failings, the Associated Press reported last week that an inmate whose death sentence was commuted in 2019 remains housed on death row at USP Terre Haute.

deathrow230428Four years later, AP reported, the BOP has not moved him to a less restrictive unit. Asked about the prisoner’s continued placement on death row, a Dept of Justice official told AP that “the Bureau of Prisons is considering [the inmate’s] designation determination.”  At least the BOP is taking the time to carefully consider whether someone without a death sentence should be housed somewhere other than death row.

AP said that the case “illustrates chronic bureaucracy in the prisons system and the difficulties in getting anyone off death row.”

“How can I not get this guy off death row?” federal defender Monica Foster said in a recent interview. “Well, I did get him off death row. But why can’t I physically get him off death row?”

Meanwhile, after a recent disturbance at FCI Miami, a BOP low-security facility, Miami TV station WTVJ reported, “multiple sources from inside the facility [said] that more than 100 weapons were found…” A prison security expert told the station, “Discovering a hundred weapons in a search following something like this would signal the administration. It would signal me, if I were the administrator, to look into my search processes.”

The station said that a 2019 Occupational Safety and Health Administration report likewise recommended that the BOP “increase number of searches for weapons, cellphones and contraband.”

cellphones230428Last week, the BOP fired a shot across the bow at illegal cellphones, as ubiquitous in prisons as spring flowers in the garden. The U.S. Attorney for the Eastern District of North Carolina said that six inmates housed at three different facilities at the FCC Butner complex have been criminally charged with possession of contraband cell phones.

If convicted, each inmate faces up to an extra year of prison for possessing a cellphone and disqualification for First Step Act credits and the 365 days sentence credit for eligible programming participation.

U.S. Attorney Michael Easley said, “By indicting these six inmates at FCC Butner, we hope to send a clear message to the inmate population that the possession of cellphones will never be tolerated at FCC Butner.”

Govt Executive, Management of the Federal Prisons System Is Added to GAO’s High-Risk List (April 20, 2023)

GAO, Efforts Made to Achieve Progress Need to Be Maintained and Expanded to Fully Address All Areas (April 20, 2023)

AP, Inmate stuck on US death row despite vacated death sentence (April 16, 2023)

WTVJ, Video Shows Disturbance That Led to Lockdown at Federal Correctional Institution in Miami (April 21, 2023)

DOJ, Six Federal Inmates Indicted for Contraband Cell Phones (April 20, 2023)

– Thomas L. Root

Can You Find Me Now? – Update for December 5, 2017

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

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PRIVACY IN THE SMARTPHONE AGE

Waldo171205The Supreme Court heard oral argument last Wednesday in Carpenter v. United States, an important criminal case asking whether prosecutors may use cellphone location records against a defendant when the records were obtained from cellphone companies without a warrant.

The more basic question is whether personal information collected by third parties (often without one’s consent or even knowledge) remains private to the extent that the 4th Amendment requires a search warrant before the government swoops in to commandeer it.

Cellphones send signals to the nearest cell towers as long as the phone is on, even when no call is being made. Cellphone companies store records of the tower to which a cellphone is linked for up to 18 months. By stringing together 18 months of cell tower records, one can easily build a historical record of just about everywhere one was for the past year and a half. Scary.

For robbery suspect Tim Carpenter, the data obtained by the government without a warrant showed he was in the vicinity of several Radio Shack locations right at the time those stores were being robbed (of smartphones, ironically enough). We call that location data “circumstantial evidence,” but – contrary to popular belief – circumstantial evidence is perfectly good evidence, and in Tim’s case, it was good enough to convict. Tim got sentenced to a mere 116 years.

radioshack171205At oral argument, the Supreme Court seemed sympathetic with the idea that information in the hands of a third party may nevertheless be so personal that a search warrant is required before it is retrieved. At the same time, the Court was puzzled as to how to frame a rule to cover the situation. As Justice Stephen Breyer put it at one point, “This is an open box. We know not where we go.”

Even if the Court does hold that cellphone location records required a search warrant to obtain, the holding probably would not help people who have already been convicted. The decision would be a new constitutional rule of criminal procedure, but in all likelihood it would not be a “watershed” rule that would be retroactive for convictions that were already final.

... except when it's not.
... except when it’s not.

What’s more, even if the location data is held to be protected by the 4th Amendment, incarcerated people who will someday be on supervised release should recognize that their cellphones – which now more than ever contain the user’s entire life story – are not private. In a decision last week affirming Valentino Johnson’s felon-in-possession conviction, the 9th Circuit held that a warrantless search of his cellphone was permissible because he was on parole.

The Circuit said parole is different from probation, because it is akin to actual imprisonment. “On the ‘continuum’ of state-imposed punishments,” the Court said, “parolees appear to hold the most limited privacy interests among people convicted of a crime but are not actually imprisoned.” Although the case relates to state parole, its analysis would apply equally to supervised release.

SCOTUSBlog.com, Argument analysis: Drawing a line on privacy for cellphone records, but where? (Nov. 29, 2017)

United States v. Johnson, Case No. 16-10184 (9th Cir. Nov. 27, 2017)

– Thomas L. Root

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