This week, Thomas and Michael are joined by an unusual duo--Shawn Weneta of the ACLU of Virginia and Ben Knotts, Legislative Director of Americans for Prosperity. They discuss the lack of transparency in Virginia's prison system--including the exorbitant prices for phone calls and emails, the perverse incentives of the for-profit prison system, and the burden placed on poor families. This all comes in the context of Senator Joe Morrissey's new proposed bill calling for a study of fees that jails charge to people who are incarcerated.

Episode Transcript

Michael Pope 

This is Pod Virginia, a podcast that's going behind bars today to talk about consumer exploitation of a group of people that's often overlooked.

Thomas Bowman 

People in Virginia jails are constantly being hit up for money. Want to make a call? The average cost of a 15-minute phone call is nearly $5. And in some jails, people who are incarcerated pay almost $15. $15 for a 15-minute phone call.

Michael Pope 

And that's just the beginning of the way sheriffs and regional jail directors are hitting up vulnerable people for cash. So today, we're joined by a power duo who has been looking into this system. Shawn Weneta is the policy strategist for the ACLU of Virginia. Thanks for joining us.

Shawn Weneta 

Thanks, Michael and Thomas; good to be here.

Thomas Bowman 

Nice to have you back, Shawn. We're also joined by Ben Knotts. Ben's the legislative director for the Virginia chapter of Americans for Prosperity. Thanks for joining us, Ben.

Ben Knotts 

My pleasure. And thanks for giving a voice to these folks that are that really need to be heard.

Michael Pope 

All right. So I want to before we get into this discussion, I want to explain why we're talking about this, which is a bill that was passed in the last session by Senator Joe Morrissey and Delegate Irene Shin, this bill called for a study of the fees, the jails charge people who are incarcerated. So I talked to Senator Morrissey about this. And this is how he explained the transparency of sheriffs and regional jail directors.

Joe Morrissey 

We did not get all the data that we need in order to assess the problem is. But it is clear from the data that we do have that with telephone contracts, email commissaries that prisoners are paying an exorbitant amount of money in order to make a telephone call, send an email, buy a bag of chips.

Michael Pope 

So Shawn went on to explain here a little bit about the process. So this group was put together, and it said, okay, all the sheriff's out there, all the regional jails, send us your contracts. We want your telecommunications contracts. We want your commissary contracts, we want all the third-party vendors and all the language associated with them. So, how many of those contracts did this group end up getting?

Shawn Weneta 

Well, Michael, we really didn't receive very many. And there are 59 jails in Virginia. They all have multiple contracts. Some of them are for phones. Some of them are for commissary. Some of them are for deposit and lockbox services, a variety of goods and services that are provided to people that are incarcerated in our jails. We received I believe, 26 contracts. Unfortunately, they were fully redacted. We had also asked for five years with the financial data to sort of illustrate what sort of revenues they were bringing in as well as where those revenues were being spent. And unfortunately, we didn't receive any of that from a single jail. So 26 contracts were fully redacted to where there was no useful data. And just for the context of what they redacted. They sort of tried to say, Well, that was under the guise of trade secrets. But the Virginia Public Procurement Act, as well as FOIA, doesn't consider phone rates nor commission rates as being a trade secret. And they went so far as to even redact the address of the vendor, the physical business address of the vendor, and I certainly don't see that as a trade secret, and neither did we. So it really didn't seem like they were acting in good faith when they did finally submit the contracts.

Michael Pope 

Ben Knotts of Americans for Prosperity, what's your reaction to this? sheriffs and regional jail directors across Virginia just essentially saying no, we're not going to give you this data that you asked for, we're not going to hand over these third party contracts.

Ben Knotts 

We know, as the primary lobbyist, you know, we, you know, this didn't just happen in one session; we worked months and months and months beforehand because, you know, we like to really embrace the Virginia way you don't want to come in and assume somebody is just doing something on purpose and being bad or anything like that. But any cooperation that we asked for, to get to peace in the valley on legislation, was met with the status quo was fine. And that there were, there was no reason to change what they were doing. And again, when we're trying to get to the policy that the public can be very proud of and have confidence in it, you should be able to just put your books out on the table, especially when the General Assembly is giving you this authority in the first place. So it was really frustrating to me, and you know, even more, so that really bugged me is, you know, the General Assembly specifically gives them this authority for a reason. And it's to provide a program for prisoners, or for some other miscellaneous thing. But that seems to be a secondary reason for them, given that authority, then when we're in the committee, and they say, Oh, we spend all this money on programs. And then their own report shows that they can't reconcile that. And then when you get in the work group, and you hear them say, well, we can't, we don't know what we're spending the money on. You know that is not a good policy. And I think the general assembly is well within its right to ask for that. And I think there still needs to work to get them to turn that over so we can get to that ideal policy.

Thomas Bowman 

So you've got a really insufficient response from sheriffs and regional jail directors as to the data that needs to go into those recommendations. But it was also a law from Morrissey and Delegate Batten to compel this in the first place. So what remedy is there for the government to compel these agencies to reveal that data?

Ben Knotts 

I think there are a number of things the legislature could do. Shawn and I even talked about how they should put a sunset on the president's authorities until they comply to present that so that we can get to that again, go over the data, and make sure we can get an ideal policy AFP-never mandated. And when our discussions, it was just to make sure that there was fair market value for the goods and services being charged because one thing that gets mitt lost in the mix is that it's not prisoners paying for the services; it is their families. And if you look at the demographic data on the wellbeing of these folks, they're not wealthy people, they can't afford this. And so it makes sense that to really put some teeth to this to say, Listen, it's our job as General Assembly to make sure that this authority we've given you is being used in a way that those people know that this is the necessary cost to cover what we're doing here. And you know, if we say it's in the public interest to incarcerate someone for something, if we made that case, then it should be in the public interest to pay to incarcerate them; it should be that the taxpayer says this is worthy of being paid for because we've said this should be criminalized and it's worthy of the investment to protect people. So I think that's an essential part of this conversation that often gets lost because people are like, oh, you know, some tough-on-crime folks are saying, oh, we need to make prison as inconvenient as possible. But people that are paying this are not the ones who did an offense. I'm a bi-vocational pastor, and I put money in people's accounts. I didn't do anything, but I want to help them talk to their family so that they have hope, and they want to comply, they want to change and then they see that their family is going to be waiting for them when they get out. So it's essential that we make sure the policy is right.

Shawn Weneta 

I think one way that we could perhaps compel the sheriff's and the regional jails to produce their contracts and produce their financials are bypassing this bill as it was written and originally submitted last year, and as the committee recommended, it moves forward this year, but perhaps with a maybe a delayed enactment. Something like that might sort of push them to be more forthcoming because this bill is not what they want. In fact, they were vehemently opposed to it. That would be sort of one way to perhaps compel or maybe sort of be a bit of a stick to compel the sheriffs and the regional jails to produce their contracts and produce their financials and to really come and sit out on the table in good faith.

Michael Pope 

As a follow-up to Thomas's question, I saw an email exchange from one of the regional jail directors, who was saying; Look, I don't believe this bill requires me to do anything. Maybe this is a language question. In the legislation that was passed, we talked about delegate shin and Senator Morrissey that perhaps the language in their talking about this group receiving the third-party contracts, maybe it wasn't strong enough, maybe there was a "may" instead of a "shall" or I mean Like, is this a language thing where you just craft it in a way where they have to give over the third party documents?

Shawn Weneta 

I'm familiar with that email exchange. And it was a regional jail superintendent who was assigned to the committee, who was certainly opposed to this legislation, and I don't believe it was acting in good faith. And we're sort of willing to come to the table and have a discussion about what was going on. Ben sort of mentioned it earlier about sort of the posture of the sheriffs and the regional jails, of saying that the status quo is good, there's nothing to see here, nothing needs to be done. And I think this was just sort of a pretty, pretty conspicuous way for the regional jail superintendents sort of saying that what we're doing is fine. And you don't need to look at this, and to be sort of combative, and to sort of run the clock out.

Michael Pope 

One person who is not happy about regional jail directors trying to run the clock out is Republican Delegate Amanda Batten. So she is part of this group that's looking at this issue. And I spoke to her about her frustration with the lack of transparency. This is what she told me, the state.

Amanda Batten 

has a responsibility to people who are, you know, in the care of the state to make sure that they're not overpaying for services and goods that are central to their wellbeing? And it's just it's frustrating that we didn't get all the data that we needed.

Michael Pope 

This is not a partisan issue, or a bunch of Democrats is talking about people who are behind bars, bend notes. Is this going to see Republican buy-in here? And you know, in other words, are we going to see action on this and the General Assembly session, because this is not a lopsided, you know, one-party issue?

Ben Knotts 

The General Assembly has the authority of the people in order to oversee all this. And when you hear when, when I talked to him, my Republican friends and colleagues, they were very concerned about not having access to things that they're supposed to be telling the public, we're doing what's right. And it was, we were looking through some of these contracts. I mean, there's some stuff that people just have absolutely no clue about. And I was talking to another Republican delegate, who might be carrying legislation to address some of the contract issues that were that came to light, for instance, the, if you call into the system, if you're calling into somebody, if you're a pastor, you're a delegate, and you, you want to reach out to somebody who's in the system, doesn't matter who you are, in some of these contracts, they would be the vendor would have the privilege, they would get a part of the contract, they would be selling these people's voiceprint data, and their GPS location. And without any kind of like, sign off that people have no clue what they're signing into, when they're calling into that, you know, and stuff like that, or these contracts are just like so outside of what the public interest would be. When you have issues like a, you know, offering a cruise to anybody to the sheriff's if they take the contract or another instance was where they were having delegate Rob bill passed a bill that said, you know, localities can't pass quotas on how many tickets they write as a source of revenue for the, for their how they budget so that you don't have ticket quotas, if you will. But some of these contracts guaranteed that they had. Shawn, do you know what it is off the top of your head?

Shawn Weneta 

There was a jurisdiction that was seeking a new commissary vendor, and they put out an RFP that required the vendor to guarantee three-quarters of a million dollars upfront to even compete in the bidding process.

Ben Knotts 

So when you get contracts like that, I mean, that really, you know, where's the oversight and so with it doesn't matter your party, you have this responsibility to make sure this is fair, and that it's transparent, and that has the public trust. And the more that, the more digging that's happening in the media and journalists that are doing their job with this, the more reason lawmakers are being compelled to do something about it.

Thomas Bowman 

Ben, I want to ask a quick follow-up question on what we understand about some of those capabilities to be based on those predatory contracts. You mentioned some data location services voice printing ID. Can you get a little bit more into what we know and how we know it, and what it's used for?

Unknown Speaker 

When we found this out? It's basically your voice print data. Like it's almost like your voice picture if you will, and that can be utilized. However, they could profit off of it with no guardrails. And again, that's what we're advocating for guardrails on the contracting system. So that there is some transparency and trust that lawmakers can reasonably say yes, we are making sure that these contracts and these agreements aren't taking advantage of the situation. And Shawn, could you speak to that a little bit more and what y'all, even our friend Chuck at Salt, discovered?

Shawn Weneta 

Sure, so when we did receive the redacted contracts, and while we and sort of hearing that this might have been going on, we hadn't sort of hammered it down and determined that it, in fact, was the case. But one of the contracts that were submitted is a data exchange addendum to the phone contracts. And there's been a lot of articles about this, ranging from the New York Times to tech journals, about how these phone companies that work with the prisons and work with the jails are collecting this data and then reselling it to law enforcement, or they're entering into these data exchange, sort of networks that people can and anybody that's really willing to pay can subscribe to. And again, that Voiceprint data is there, that GPS data of end users is there. And it really, it's a privacy violation. And, of course, at the ACLU, we were particularly alarmed by this. And we know that if it's going on going on in one jail in Virginia, out of the 26 that made some of these contracts, we're very confident that it's going on and several others because it's just another way to sort of monetize people that are incarcerated and sort of taking advantage of their families and loved ones.

Thomas Bowman 

So what recommendations are the workgroup making to the General Assembly with regard to reducing fees and charges for people incarcerated in Virginia?

Shawn Weneta 

What we want to do is try and start looking at communications between people that are incarcerated and their loved ones and family in the community as a program. It's not it shouldn't be looked at as a privilege or something that can be used as punishment; this should really be looked at as a program. And as a program that has the greatest bang for your buck. A lot of people participate in programs while they're in jails that go towards rehabilitation, whether that's a GED program, a vocational program, job skills, or substance use disorder treatment. But those only reach a small handful of people. And they're incredibly expensive. And we know that strong community ties are one of the greatest indicators of successful reentry upon release. So we should be facilitating that. And we really believe that this is the best bang for your buck program that there is and that's families, communication, community communication, speaking with potential employers speaking with people within the community. And so, in that vein, we believe that we should be providing communications without cost to people that are incarcerated, with their families, and with their loved ones. And just to sort of add to that, we also know that the families are really the ones paying for these services. They're the poorest people in our communities; it's 87% of them are women, and we know that one in three families goes into debt simply trying to stay in contact with an incarcerated loved one. And again, it's mostly women, and most of them are Black and brown.

Michael Pope 

You know, there's that recommendation from the report about providing free calls to people who are incarcerated up to 120 minutes a day; I asked my local sheriff about that, Sheriff Sean Casey, here in Alexandria, and this is his response to that.

Sean Casey 

There are folks that come into the jail who are not able to pay for things; there are folks who are in the jail that can pay for things, you know. So it's a little bit of both. So the question is, how do we set up a system where those that really can't afford to pay for things are given the help and assistance they need? And those that can pay for them, well, maybe they pay for them? You know, I think that means that's how we work as a society. Right?

Michael Pope 

But not so. I'd love to get your perspective on this because it's a kind of market question here. I mean, if there's a wealthy person who is incarcerated, that person probably could afford to make the call; it's also important to point out here it's not just the money for the call; you also have to do the money transfer to put the money on a card in order to use it, that they built them there too. It's like 30% fees, that when you leave incarceration in order to get that money back, they charge you another transaction fee on top of that. So keep in mind there are exorbitant fees on top of the exorbitant fees we're talking about here. But what about this idea of free calls? This is going to strike a lot of people as being a little bit over the top, right? So what would What's your argument for people who are incarcerated being able to make free calls on the public dime?

Ben Knotts 

Well, if you look at it, it would be different if there were there weren't vendors out there who could say they could do this at little to no cost once the infrastructure is in place. So the initial investment is the infrastructure. I mean, it's not just phone calls. It's emails, I mean, when you're being charged, you know, if this isn't AOL and we want to treat everybody equally under the wall regardless of their, you know, their financial wellbeing, and we want to make sure that the system by all the data proves that if when people are in contact with their loved one and their community that supports them, that they are less likely to re-offend and reenter the criminal justice system. So I like Shawn's point that it's more of a program in the sense that we can either just hope people change when they get out, or we can provide them conditions in which they are more likely to change based on data that shows when they get out, and that's in the public interest it's an investment that makes sense. And so, you know, I think that we need a policy that treats everybody equally under the law. And we need to make sure that the system is not using this captive market as an opportunity to drive up revenue because they have the authority and no oversight to do that. The prison system is not designed for profit. It is not a business. It is not a business that says we want to produce profits. It's an institution that is put in there for the public interest of public safety so that people do not re-offend and do not harm other people. And so, phone calls are an essential part of keeping people connected to their community so that they want to get out that there is a reason for them. There's somebody waiting for them to get out when they get out. And so it's essential that we understand it like that.

Michael Pope 

Okay, so we talked about one of the key recommendations, which is that people who are incarcerated have the ability to make free telephone calls for up to 120 minutes a day. That's one of the key recommendations. We will see that discussed in this upcoming General Assembly session. The other key recommendation I want to make sure we touch on is getting rid of commissions. So if you're a sheriff, and you're engaged in one of these third party contracts, if you're a regional jail director, and you've got one of these third party contracts, these vendors will give you commissions, some people might call them kickbacks. So they're things like there's a company called Smart Communications that had a contract with the Fairfax County jail that included cruises from Tampa Bay to the Caribbean as part of the telecommunications contract. So, you know, clearly, there's some shady stuff going on here with the Commissions. In other words, the revenue and or other things that are coming into the sheriffs and regional jail directors. What kind of feedback is either of you hearing on this recommendation to get rid of the commission structure so that there's no financial incentive to move forward with a lot of this stuff?

Shawn Weneta 

It's been interesting; Ben and I were in a meeting with a Republican legislator not terribly long ago, and that came up in that specific contract. And, they had a really interesting take on who should actually be behind bars, you know, based on that contract. And, you know, in reality, it should really like we really just don't think that the jail should be profit centers. And because the thing is, those costs get translated back to back to people that typically can't afford it. If you have, for instance, that the Hampton City Jail, a 15-minute call costs $10, the provider, the phone company that does all of the work and is providing all the service and making a profit, charges $2 for that call, that additional $8 is going to the sheriff's office. And we don't know what's going where that money is going after that. But we know that $8 from that call is going to the sheriff's office; that's an 800% tax, and it is artificially quintupling the price of a call. And I would challenge anybody to find a tax in Virginia that's more onerous or more aggressive than that.

Ben Knotts 

The thing that drives me nuts about this, though, is that this is all this has only been discovered because people were digging, and they wanted to know. And the fact is, we weren't given access to the contracts across the board to know what's there. Because you know, we need to be the general assembly needs to be on the front end of this. They need to be saying we're going and we're digging, we're finding out because when this stuff comes out like this, it does nothing but inflames people's suspicions about the system. And it's so frustrating to think that the wind when we approached a number of these sheriffs about these things, though, their responses, well, we didn't know about that. But we would never have taken advantage of that.

Michael Pope 

Yeah, that's, in fact, that's just for the record there. That is exactly how the Sheriff of Fairfax County responded is that, you know, none of our people actually took this cruise that was here in the contract. So that was the sort of defense. What do you make that?

Ben Knotts 

Yeah, and like that says in and of itself, should? Should there be more oversight and more guardrails on these contracts? And it's a resounding absolute yes. But you can't put guardrails we don't know where to put the guardrails if we're not given access to the contracts so that people can see them, and they can see they're trustworthy, and they were well done. And that's a sad state of affairs that we assume they're not going to know what's in the contract because that has been, or even where the money's been spent. Because that is that it's, it's pleading, we don't know, we don't know, we don't know. And so if they don't know, then it stands to reason the general assembly needs to know, and they need to take action to make sure they know so that they can address this for the public so that they can have confidence in the system.

Shawn Weneta 

Suppose I can add to that, as well. And you sort of touched that, like the response from the Fairfax sheriff was that we never took the cruise, and I believe that I have no reason to think that they did, in fact, take the cruise or that they're being dishonest, I believe that they didn't take the cruise; however it is in the contract. And the vendor has accounted for having to provide that if the sheriff does choose to take it, they can avail themselves of that perk of the contract anytime they want. And the cost for that is being translated from the people that are using the phones to the end user. And I think it was; I was really disappointed to sort of see that response from the Fairfax sheriff. Because I think that they really had a good opportunity to sort of be to be a good actor to be a hero in this, they could have very easily said, you know what, this is, you know, this is a bad idea, we should go ahead and, and rebid this contract, and make sure that we don't have things that might be that might have bad optics like this. And really, maybe not even do business with vendors that are providing these sorts of CDs and, sort of seemingly, just bad incentives are perverse incentives to sheriffs. So I think that was really a missed opportunity on behalf of the Fairfax Sheriff where they really could have gotten out in front of it and rebid the contract and really done some good and, and been really transparent in that process.

Thomas Bowman 

Gentlemen, I can jump in here real quick because it strikes me that one fundamental challenge here to Shawn's point about not wanting prisons to be profit centers, in some ways, is the Constitution itself. Right, the 13th Amendment creates a prison exception to slavery. And then, once you can be enslaved because you're in prison, you lose everything else, as far as your freedoms go. And you can be used as a guinea pig. You can have that data put at risk and jeopardized and shared with federal agencies for them to build out their own criminal profile network, and know who they're talking to, or who you're talking to on the other line, and who those people talk too much the way the NSA does for international groups, right? So the way you actually start changing that might require, in my strategic consultant's brain here, an effort to amend the Constitution, to repeal the prison exemption to slavery.

Shawn Weneta 

And I'd love to have some comments on that. And there's a big movement with some of even some of the partners that we worked on the study are a part of something called the end the exception campaign. And, and I think a good question for a lot of people are like, well, you're, you're you broke the law, you're in jail, sort of whatever happens to you happens to you, or you're in prison. And, you know, that's just tough. That's just the way it is. Don't break the law, and you won't have to worry about it. But I would challenge people to sort of answer this question or to sort of finish this sentence. Slavery is okay, when, and I can't imagine adding when you're in prison or when you're in jail. Slavery is not okay. Ever. Full stop. And I agree with you, Thomas. That would be one way to begin to address some of this is by ending the exception to the 13th Amendment.

Thomas Bowman 

Well, that's a strong ending. Let's leave it right here. Thank you for being on Pod Virginia. Both of you.