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Friday, February 22, 2013

Viewpoint: Governor Wrong to Criticize Inmates' Lawyers

The state's opposition to the California Supreme Court's mandate in Brown v. Plata to reduce inmate population has recently taken a surprising turn.

This article is reprinted with permission from the Feb. 22, 2013 edition of The Recorder.

by Hadar Aviram

In public appearances, Governor Jerry Brown has been pointing an accusatory finger at the inmates' attorneys, and primarily at the nonprofit Prison Law Office and at Rosen Bien Galvan & Grunfeld, which worked respectively on the medical and mental health care aspects of the Plata litigation. According to Brown, these lawyers and experts, to whom he refers as "the prison lobby," are racking up profits and prolonging the litigation for their own benefit.

How much money are we talking about? The Washington Post offers the breakdown. The Prison Law Office is reported to have received $8.3 million in attorney fees; Rosen Bien has received $19 million. But while it might be convenient for Brown to focus on these expenses, there were other lofty expenditures on this case, including the salaries for Brown's own attorneys and for the people appointed by the court to mix his mess of a correctional health care system, which he conveniently ignores.

The expenses related to the federal receiver were $7 million, and the expenses related to the special master in charge of the mental health system were $48.4 million. And of course, state attorneys, and private attorneys hired by the state, also need to be paid for their services. The Justice Department salaries amount to more than $4 million, and the private attorneys hired by the state were paid $15 million.

The conclusion from the numbers is that Brown is misled at best, and misleading at worst. Yes, the lawyers for the inmates won attorney fees — as they well deserve for their important service. It would be naive to expect so many people on both sides of the litigation to commit so many hours to these cases as volunteer work. As Brown no doubt knows, this is how civil rights cases are litigated in this country: relentlessly, and by taking a financial gamble that the court will eventually see the serious civil and human rights violations for what they are, the inmates will win, and their attorneys will recoup their costs as well as make a well-deserved living.

But the remark is also infuriating in principle. Nonprofits that help those to whom the state turns its back are important watchdogs in the struggle to humanely treat the weakest links in our social chain. And solid, prosperous law firms that devote a substantial amount of their human and material resources to civil rights litigation, rather than pay lip service to the idea of pro bono, should be commended and encouraged.

As a coda, it would behoove Brown and his number crunchers to get a broader perspective. In 2012 — the year at the end of which the state began realigning its nonserious offenders to county jails — the total budget for the California Department of Corrections and Rehabilitation was $10 billion. Out of this amount, $2 billion was spent on correctional health services, to mixed results. These expenditures dwarf the dwindling funds spent on inmate vocational and educational programming.

They also dwarf the expenses of the lawsuit itself. Brown is to be commended for advocating fiscal responsibility but perhaps some of CDCR's expenses could be lowered if Californians had abolished our costly and broken death penalty years ago, or if anyone had considered the possibility that some of the many people we are now diverting to county jails need not be incarcerated in the first place. Perhaps retooling parole as an instrument of hope, rather than a revolving door of recidivism, could have lowered the price tab. Perhaps our 19-year affair with the Three Strikes law, which brought into prison thousands of people, many of them for nonviolent offenses and for disproportionately lengthy sentences, has unnecessarily encumbered us with their health care expenses. And perhaps providing people with skilled, prompt and humane health care could prevent the many iatrogenic health problems that plague our prison systems and jails, and save a few nickels and dimes as well.

As to the accusation of prolonging litigation in this matter, perhaps the fault for that lies with the state's stalling techniques in what could amount, under a less forgiving judicial system, to contempt of court. Complying with the court mandate, which left the state ample leeway in choosing its course of action, would also be a way to save money.

The California prison health care cases shone a bright light on one of our state's most invisible populations and its plight. We would not have known that our tax money was being wasted on abysmal medical treatment to a population doing time (sometimes excessive and sometimes unnecessary) in overcrowded, unsanitary conditions; sleeping in triple bunks in converted gyms; and receiving medical attention in cages. Like Brown, I am pleased that serious steps have been taken to cure this disease. But when someone draws our attention to human rights violations, we don't shoot the messengers, nor do we complain about their salary. We thank them for opening our eyes.

Professor Hadar Aviram teaches criminal law at UC-Hastings. She analyzes the impact of the state's financial crisis on the corrections system at CaliforniaCorrectionsCrisis.blogspot.com.

The Recorder welcomes submissions to Viewpoint. Contact Vitaly Gashpar at vgashpar@alm.com.

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