Conditions and Costs

Ahearn v. Vose – Challenge to the lack of adequate sanitation facilities at Southeastern Correctional Center. In 1994, after oral argument in the Appeals Court, PLS negotiated a settlement which required DOC to install toilets at SECC. After the toilets were installed, the Superior Court dismissed plaintiff’s damages claim on qualified immunity grounds. On September 2, 2005, the Appeals Court reversed this decision ruling that plaintiffs confined at SECC between 1991 and 1993 could go forward with a trial on damages. However, we were not able to find any class members who were able to satisfy the various hurdles by the court to be eligible for damages. The case has been dismissed.

Bentley v. Sheriff, Essex County This is a class action challenging the Essex County policy of charging prisoners fees for medical care, including a $30 “medical processing fee” charged to all prisoners upon admission. We are co-counsel in the case with David Kelston and Jeffrey Thorn under the auspices of the National Lawyers’ Guild. After we filed suit, Defendants’ agreed to stop charging the contested fees. The case has been certified as a class action. On February 10, 2014, the court approved a settlement agreement that requires the Sheriff to return all the fees previously taken. In March of 2016, the court authorized payment of attorneys’ fees, with PLS receiving $35,000 and approved distribution of $71,000 in residual funds to two organizations in Essex County that provide substance abuse treatment to released prisoners.

Briggs, et al. v. Department of Correction, et al. – This is a class action was filed on December 2015 on behalf of prisoners with hearing impairments who allege that the DOC discriminates against them in virtually all aspects of prison life. Specifically, DOC (1) failing to provide access to auxiliary aids and services, such as hearing aids or ASL interpreters, necessary to permit access to educational, vocational, and rehabilitative programming, medical and mental health care, and religious services; (2) denies deaf and hard of hearing individuals adequate, equally effective, and reliable means of communication with individuals outside of prison by failing to provide videophones or other assistive technology; (3) places deaf and hard of hearing individuals at serious risk of harm by not having an adequate emergency notification system; (4) failing to provide adequate interpretative services and auxiliary aids at disciplinary and classification hearings and (5) discriminating against deaf and hard of hearing prisoners in work assignments. We are co-counseling with Wilmer Hale and the Washington DC Lawyers’ Committee for Civil Rights. Settlement discussions have not proved fruitful and we are proceeding with discovery. The Court denied our motion for class certification without prejudice, but allowed discovery to proceed on a class-wide basis.

Crowell v. Massachusetts Parole Board – We filed an amicus brief on behalf of PLS, the Center for Public Representation, and the National Disability Rights Network in a case before the Supreme Judicial Court. The Plaintiff is represented by the Harvard PLAP. The issue is whether and to what extent the parole board may consider a person’s disability as a factor in determining the person’s suitability for parole; and whether the board has an obligation to reasonably accommodate a parole applicant’s disability in setting the terms and conditions of parole. Argument was held on January 6, 2017.

Does v. Patrick This class action case challenges the incarceration at MCI Framingham of women with alcohol or substance abuse disorders who have been civilly committed under G.L. c. 123, § 35, and who are neither charged or convicted of a crime. At Framingham these civilly committed women are housed with and treated as ordinary prisoners, and receive no substance abuse treatment. We are co-counseling the case with Wilmer Hale, the ACLU, and the Center for Public Representation. The case has been assigned to Judge Woodlock who granted our motion for class certification. In response to our suit, the Baker administration has established new treatment units for women at Shattuck Hospital and Taunton State Hospital. On January 25, 2016, the Legislature enacted an amendment to Section 35 that was intended to prohibit Section 35 commitments to MCI Framingham. Defendants have stopped committing women to MCI-Framingham as of April 24, 2016, and filed a motion to dismiss the case as moot. Shockingly, however, Defendants have taken the position that the amended statute still allows commitments to MCI-Framingham if “approved” by the Department of Public Health. Therefore, on June 10, 2016, the court denied Defendants’ motion to dismiss because a real controversy still exists about the meaning of Section 35.

Kelley v. Hodgson – This case deals with unlawful conditions and severe overcrowding at Ash Street Jail in New Bedford and the House of Correction in North Dartmouth (Bristol County). In 1998, the court issued a preliminary injunction designed to curb overcrowding. In September 2004, the court expanded the injunction to prohibit the Sheriff from housing prisoners in locked cells that do not have toilets. On September 24, 2008, the court denied, in major part, the Sheriff’s Motion for Summary Judgment. The Sheriff has appealed to the extent that the ruling rejected his claim to qualified immunity. On September 24, 2009, the court allowed Plaintiffs’ motion for partial summary judgment, essentially converting the preliminary injunctions issued in 1998 and 2004 into permanent relief. The Court also held the Defendants are not protected from paying damages by qualified immunity. The Defendants appealed the denial of qualified immunity. However, the parties were able to negotiate a settlement that memorializes all the relief granted by the court, and awards fees to counsel. The Court approved the settlement on December 18, 2012 and we are monitoring compliance.

Nathanson v. Commissioner of Correction This case challenges the new Department of Correction policy of subjecting prison visitors, including attorneys, to a search by a drug detecting dog as part of the initial screening search. If the dog alerts to the possibility of drugs, the visitor must agree to submit to a further search, including a pat search or strip search. PLS has challenged this policy on grounds that it violates existing Department regulations, and was promulgated without a public hearing as required by the Administrative Procedures Act. There are six plaintiffs, including attorneys and family members of prisoners. PLS is co-counseling with private attorney, Leonard Singer, and the ACLU. On February 28, 2014, the court issued a preliminary injunction barring DOC from using dogs to search lawyers, but denied our motion asking for a similar bar against searches of regular visitors. On November 1, 2016, the court issued a ruling on the parties cross-motions for summary judgment, basically affirming the preliminary injunction ruling appealed. We have appealed and filed our brief on April 14, 2017.

Petition Seeking Relief from Unjust and Unreasonable Cost of Collect Telephone Calls from Prisoners This is a petition filed with Massachusetts Department of Telecommunications and Cable on behalf of prisoners, family members, lawyers, and others who seek relief from the excessive costs and poor quality of telephone calls from prisoners in state and county facilities. In response to the Petition, DTC conducted a well-attended public hearing on July 19, 2012 at which it received powerful and compelling testimony about the high cost and terrible quality of prison and jail phone service, and on September 26, 2013, the DTC denied the phone companies’ motion to dismiss our petition and announced its intention to open an investigation. At the same time, the Federal Communications Commission was in the midst of its own regulatory process (dating back to 2000) in which PLS actively participated. In October of 2015, the FCC adopted permanent per-minute limits on in-state and intrastate rates as well as fees for services such as opening or closing a debit account. It also prohibited per-call surcharges. The Order cited and relied upon PLS comments in support of regulation. The providers challenged all of these provisions in the U.S. Court of Appeals for the DC Circuit, which stayed the per-minute limits pending appeal but left in place the prohibition of per-call surcharges, which took effect with regard to state prisons on March 17, 2016 and will take effect with regard to county facilities on June 20, 2016. The FCC also encouraged states to set lower rates. On August 4, 2016, the FCC granted a motion for reconsideration and ordered slightly higher rates: $0.13 per minute for debit card and pre-paid calls from state prisons, $0.19-$0.31 for debit calls from jails (with the smallest jails allowed the highest rate), and higher rates at the outset for collect calls, dropping to the debit rates by 2018. However, the court of appeals has stayed these limits.

The Massachusetts rate cap (as challenged by the Petitioners) was $0.10 per minute plus a per-call charge of up to $3.00. With the FCC’s ban on per-call charges, the telephone companies sought to maintain their profits – and their kickbacks to jails in the form of “commissions” – by folding the surcharge into the per-minute rate. They also asked that the Investigation in our case be closed. PLS asked that the full investigation into the rates and the quality of serviced proceed, and argued that in the interim the companies could profitably operate at $0.10 per minute. On June 14, 2016 the Hearing Officer ordered a full investigation into all issues raised by the Petitioners. However, it stayed the investigation pending a ruling on the FCC regulations, and set interim rates at $0.21 per minute for debit and prepaid calls, and $0.25 per minute for collect calls. One of the phone companies has now asserted that DTC has no jurisdiction to regulate prison phones and has unilaterally raised its rates above the cap. We are now asking the DTC to enforce its ruling and seek restitution. Together with the National Consumer Law Center, we are also considering bringing a chapter 93A action against Securus for taking money from customers to pay kick-backs to the Sheriffs.

Richardson v. Sheriff, Middlesex County, et al. – This case concerns overcrowding at the Middlesex County Jail in Cambridge. Although there is a court-ordered population cap at the Jail, the population regularly exceeds the cap by a substantial number. Since existing remedies failed to keep the population below the cap, we filed a motion for further injunctive relief asking the court to enforce the cap by releasing prisoners. The Defendants proposed moving prisoners from the Jail to the House of Correction in Billerica, which is also subject to a court-ordered cap in Doyle v. Sheriff, Middlesex County. We have assembled a team of lawyers, including the ACLU and private counsel to litigate both cases. On June 14, 2013, the Court allowed, in part, plaintiffs motion for further relief, ordering that a hard cap of 230 be established at the Jail, and imposing limits on the total number of prisoners who can be confined at the House of Correction. The Court subsequently imposed separate caps on each unit at the Jail, prohibited placing prisoners in a dungeon-like basement unit, and ordered the Defendants to notify plaintiffs and the Court if the population of any unit goes above the cap. Construction of new buildings at the Jail was complete in June of 2014. As a result, the Court allowed the Sheriff’s motion to close the Cambridge Jail and transfer all detainees to the newly constructed units at the House of Correction. We are continuing to monitor conditions at the House of Correction.

Souza v. Hodgson – Class action challenge to pay-for-stay fees, as well as fees for medical care, haircuts, and GED services, at Bristol County Jail and House of Correction. The court allowed our motion for summary judgment in July of 2004. In August 2004, the single justice denied the Sheriff’s motion relief pending appeal. On March 30, 2005, the court allowed our motion for class certification, and ordered the Sheriff to return the fees. The Sheriff appealed the judgment. On January 5, 2010, the Supreme Judicial Court affirmed the lower court’s ruling in all respects. On January 7, 2011, the court approved the process for prisoners to get back the fees with interest. Checks were mailed to eligible class members on May 3, 2012. Approximately $75,000 remains in the Settlement Fund, which will be distributed to four organizations in Bristol County that provide drug treatment and other services to former prisoners or individuals at risk of becoming prisoners.