The Covid-19 pandemic has hit American incarcerated people hard. Besides being subject to higher rates of infection in often overcrowded and unsanitary facilities, they’ve found themselves cut off from in-person visits, one of their only connections to the outside world.

The main lifeline prisoners now have to their loved ones is phone calls—but they come at a prohibitive cost. Phone calls from jails and prisons can cost $1 per minute or more, even if they’re in-state. Even before the pandemic, 1 in 3 families of incarcerated people—predominately low income and people of color—were going into debt to pay for prison phone calls. Coronavirus has made this burden worse.

At the start of the pandemic, the federal prison system made all phone calls free, but most local and state systems haven’t followed suit.

The result is a national patchwork that makes an already unfair system even more punishing. People in federal prisons still get free phone calls, until the National Emergency has been lifted; people in state and local facilities are subject to whatever rates their local systems charge. Some have offered one free 5-minute phone call per week, while others offer no assistance.

Congress has a chance to fix it, with legislation on the table to cap rates. But even reviving that provision in the next pandemic aid package doesn’t go far enough: jails and prisons nationwide need to scrap their phone fees, providing calls as a basic cost of doing business, and getting out of the business of profiting off the need to stay connected, which research shows is one of the most important factors in helping incarcerated people eventually successfully return to society.

This won’t be an easy change, in part because prison systems themselves say they have become so dependent on the revenue they get from phone service providers.

Two Key Players

The $1.2 billion prison telecom industry is dominated by a handful of private companies, though two key players, Securus Technologies LLC, which serves 3,400 facilities, and Global Tel Link, GTL, which serves over 2,400, gained an oligopoly over the industry by buying out their major competitors. Together, they own 70 percent of the non-federal prison telecom market, and they’re able to maintain that hold on the market, while also setting rates and fees significantly higher than regular commercial providers, because of a system of concession fees, essentially kickbacks, paid by the phone companies to the very facilities that award them exclusive contracts.

When players in the prison telecom industry began offering jails and prisons a percentage of their revenue in order to win contracts in the 1990s, facility managers started prioritizing commissions over low rates when choosing a phone provider. Companies competed with each other by offering higher and higher commissions until many sheriffs became dependent on the new source of income. Jail and prison officials now sought the contracts from vendors that would share the largest percentage of their revenue.

Criminal justice advocates and impacted families have fought this practice over the years and even won some victories in which the Federal Communications Commission, the body that regulates the prison phone industry, lowered rates. In 2013, a Democratic-majority FCC put a cap of 21 cents per minute on interstate calls from both jails and prisons.

However, in-state calls, which make up more than 90 percent of all calls, were unchanged and remained high, costing as much as $30 for a 15-minute call in some states. In 2015, the FCC expanded those caps to apply to in-state calls, making them as low as 11 cents per minute. But in 2017, major prison phone companies sued the FCC. The U.S. Court of Appeals for the D.C. Circuit struck down the 2015 caps for in-state calls, saying the FCC had exceeded its regulatory authority. The Telecommunications Act prevents the FCC from regulating intrastate communications. The FCC did not defend the regulation in a federal appeals court case, leaving families back where they started.

A Drop in the Bucket

Under pressure as a global crisis rages and American families struggle to stay afloat, Securus provided limited credits for free e-messaging and some free and reduced rates for phone calls and video chats during the pandemic. And GTL has offered one free 5-minute phone call or two free messages per person per week. But even these efforts, which are not consistent across facilities and have been reduced or even ended in some places, represent a drop in the bucket compared with the hundreds of millions of dollars in profit the phone companies have made from families over the past few decades. And it’s nowhere near a long-term solution.

What’s more, prison phone services have sought federal aid throughout the pandemic. Just five days after announcing their initiative to help families, Securus filed an emergency petition requesting the FCC waive inmate calling service providers from their obligation to contribute the required 20 percent of their revenue from interstate and international prison calls into the FCC’s Universal Service Fund, a fund that provides vital programs to keep rural and low-income communities—schools, libraries and health care providers—digitally connected. Fortunately, they lost this round. More than 60 public interest organizations petitioned against their request, and in July, the FCC denied it, saying it undermined the mission of the USF, was not in the best interest of the public, and would not be competitively and technologically neutral.

A Good Start

Under pressure from families and advocates of people in prison, Congress has been weighing legislation that would be a good first step in addressing the problem. In March, following on the work of Sen. Tammy Duckworth (D-Ill.), Rep Bobby Rush (D-Ill.) introduced the Martha Wright Prison Phone Justice Act, which was included in the nearly $3.5 trillion HEROES Act that the House passed in May but remains stalled in the Senate. The bill would reverse the D.C. Court of Appeals ruling and reinstate the FCC’s authority to regulate all prison and jail phone call rates. It would also cap intrastate and interstate calls at 4 cents per minute for debit prepaid calling and 5 cents per minute for collect calling, and it would ban commissions.

While Republicans and Democrats on the Hill seem sharply at odds in coronavirus relief negotiations, on this not only economic but criminal justice issue, there’s at least some bipartisan agreement in Washington. On Aug. 6, 2020, Trump-appointed FCC Commissioner Ajit Pai announced a Notice of Proposed Rulemaking to further cap rates for interstate calls, which would lower prison call rates by up to 44 percent. The goal, Pai wrote, was “to do what we can do as a matter of law and what we should do as a matter of justice.” He called on state government to cap intrastate call prices, which the FCC lacks authority to change. In addition, commissioners will vote to cap ancillary service charges.

Still, the optimal solution—called for by some Senate Democrats and activists—goes further than capped rates: Phone calls for people in prison should be made free, even after the pandemic ends. And to achieve that, the decadeslong trend of local and state governments shifting the costs of incarceration on to incarcerated people and their families must be reversed. The costs of communication from prisons and jails should be considered no less a basic cost of facility operation than the costs of plumbing or lighting. Advocates have successfully pushed for cities like New York and San Francisco to reassume responsibility for communications costs, but ultimately a federal push seems necessary for the patchwork of locally operated prisons and jails across the country to follow suit. The costs of telecom services should not be as high as it appears anyway. With laws mandating free calls, telecom companies like Securus would no longer be able to offer kickbacks—previously funded by jacking up the rates on incarcerated people and their families—to facilities in exchange for exclusive contracts, and real competition for those services could flourish.

Right now, the economic burden of prison phone call costs, shouldered disproportionately by Black, brown and poor people, is yet another way that mass incarceration punishes not only those who are incarcerated but entire communities, and it perpetuates poverty and disadvantage. The longer politicians continue to delay in passing at least the Martha Wright Prison Phone Justice Act tucked in the Covid relief legislation, the more bills will keep piling up for families already struggling under the weight of isolation, incarceration and racial inequity.

This article originally appeared in Politico.

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