Among the long list of new state laws going into effect on July 1 is one that will allow incarcerated people to be charged with a felony if they are caught in possession of a cellphone. The Tennessee Department of Correction trumpeted the new law last week as a way to “increase public safety and security inside Tennessee prisons.”
“Contraband cellphones are a significant security threat that makes possible the type of illegal activity that leads to criminal conspiracies between people inside our correctional environment and those on the outside,” TDOC Commissioner Tony Parker said in a media release. “Inmates use these cellphones to engage in drug operations, sex trafficking, and other organized criminal activities that cause devastating consequences for public safety, and empower these criminals to continue a life of crime.”
Previously, the act of smuggling contraband like cellphones into a prison was a felony, while possessing a phone inside a prison was not a criminal offense. In pushing the law at the state legislature, TDOC officials argued that criminalizing cellphone possession would assist them in their efforts to investigate and stop the proliferation of phones on the inside, as well as the crimes they claim the devices lead to. At a Senate committee meeting in March, the department’s senior counsel and legislative liaison, Torrey Grimes, told lawmakers that the status quo meant that seized contraband cellphones could not be entered into stolen phone databases and that service providers often wouldn’t cooperate with investigations because possession of the phone itself wasn’t a crime. The bill ultimately passed the House and Senate with no opposing votes.
But attorneys and advocates say the department’s talk of crimes aided by cellphones is overstated. Instead, they say, the criminalization of cellphone possession is far more likely to further isolate incarcerated people and make it harder for them to report abuse and misconduct. Indeed, many news stories on the conditions inside Tennessee prisons — including many Scene stories on the topic — rely at least in part on information obtained because somebody on the inside had a contraband cellphone.
“Cellphones are key for having any sort of meaningful transparency, often,” says Jeannie Alexander, a longtime advocate for incarcerated people. “We understand and have learned things about what’s taking place in prisons like South Central and Trousdale because there are cellphones, and people are documenting things.”
Daniel Horwitz is a Nashville-based attorney who is currently representing an incarcerated person in a lawsuit against Tennessee-based CoreCivic related to conditions at Trousdale Turner Correctional Center. He agrees.
“Contraband cellphones are a lifeline to the outside world, and they afford people who are incarcerated an indispensable means of communicating in real time without fear of retaliation,” Horwitz tells the Scene. “If you’re wondering how it is that photos of moldy prison food or videos of frozen prison cells reach the public, the answer — every time — is via a contraband cellphone. If one’s goal were to prevent effective whistleblowing about dangerous or otherwise deplorable prison conditions, one of the most effective ways to do that would be to ratchet up penalties for contraband cellphone possession. Doing so does not actually address the underlying problems, of course; it just prevents the public from seeing and hearing about them.”
Horwitz and Nashville-based criminal defense attorney Amanda Gentry both note the challenges attorneys also face in ensuring that their privileged discussions with clients are kept truly confidential. Each cites instances of attorney-client conversations being illicitly recorded.
TDOC says its Office of Investigations and Conduct confiscated more than 2,500 cellphones from its facilities between July 2020 and March 2021. Spokesperson Sarah Gallagher notes to the Scene, however, that many of those devices were discovered by TDOC staff before they made it to an incarcerated person. So how do phones and other contraband make it there?
“Cellphones and other contraband enter TDOC facilities in a variety of ways,” Gallagher says, “thrown over a perimeter fence, smuggled in with a shipment of facility supplies, concealed on a visitor, volunteer, or staff member, etc.”
Her answer subtly acknowledges what advocates and attorneys inevitably emphasize when the topic of contraband phones comes up — the role staff members and correctional officers play in bringing them into prisons in the first place.
“It happens every single day that COs are bringing in the contraband,” Gentry says.
“I’ve represented correctional officers accused of that,” she adds. “Depending on the location, the correctional officers make anywhere from $12 to $14 an hour, if they’re lucky.”
Low pay contributes to an incentive for officers to sell contraband. Meanwhile, incarcerated people often turn to cellphones as a way to communicate with family and loved ones on the outside without paying the exorbitant rates charged by the prisons.
“If you don’t want people to use cellphones, then stop charging people between $2.30 for 30 minutes up to $7 for 30 minutes or more,” Alexander says. “How are people supposed to maintain contact with those kinds of insane phone rates?”
Continued connection with the outside world while people are incarcerated has been shown to reduce recidivism, Gentry notes. And so the new law, she says, makes that connection harder to maintain while also creating another criminal charge that carries collateral consequences even after a person’s release.
“A felony strips people of multiple constitutional rights — the right to carry a firearm, the right to vote, the right to live in certain places, the right to work in certain places,” she says. “Why does it have to be a felony? Why does it have to be so harsh?”
TDOC highlights the role phones play in facilitating crime. In March, federal prosecutors charged 27 individuals with crimes related to a violent drug distribution ring they say was orchestrated by a Tennessee prisoner using contraband cellphones and encrypted messaging apps. But opponents of the new law argue that its overly broad language will ensnare people who aren’t using contraband cellphones to plan criminal activity.
“What TDOC claims is that cellphones are being used to traffic drugs and so-called prostitution, and therefore you have to stop the use of cellphones,” Alexander says. “If that’s the case and if that’s what they were actually concerned about, then that statute could’ve been more narrowly drawn to make it a Class C felony if they could prove that the cellphone was being used in furtherance of a crime.”