Thursday, July 17, 2008

Why Caps on Attorney Fees Hurt Citizens: Fed Prosecutors say Cook County Jail (Chicago Il.) Systemically Violates Prisoners CONSTITUTIONAL RIGHTS

Russian novelist and philosopher Fyodor Dostoevsky once wrote that "The degree of civilization in a society can be judged by entering its prisons." If that is the case, then the jails of Cook County Illinois (Chicago) and I think those of Nassau County NY present an utter lack of civilization on their citizen's part.

Patrick Fitzgerald, bane to the Bush-(and more exactly) Cheney administration, and US Attorney of the Northern District of Illinois has issued a scathing report which bashes the nation's largest single sight jail for being violative of its prisoners basic civil rights under the 8th amendment.

The report gives the USA N.D.IL. The right to bring an action in about 1.5 months to force the city and state to fix the problems. These are very serious charges.

Now for specifics: the study found that the jail "Key findings of the investigation conclude that the jail has failed to adequately protect inmates from harm and serious risk of harm, including physical harm caused by inappropriate and excessive force used by staff and violence by other inmates; failed to provide adequate medical and mental health care, including suicide prevention; and failed to provide adequate environmental conditions, including fire safety and sanitation, all resulting in unconstitutional living conditions."

These violations have led to suicides, murders, amputations (by the jails own doctors) and beatings at the hands of the guards. The level of violations rises to that of a constitutional violation.
What's worse is, these folks are HAVE NOT BEEN CONVICTED OF ANY CRIME. They are awaiting trial and are too poor to make bail. In other words they are PRESUMED INNOCENT

Now things in Chicago are pretty bad, but are they any less so here in Nassau County? The Nassau County (NY)Jail in East Meadow is a miserable place. There is gang violence and regular violence against people who are different (think gay). Medical attention in the jail (as opposed to the NCUMC next door) is very poor and many inmates do not get any much less proper doses of their medicines. The Jail instituted programs that made it impossible to file complaints, made it so that prisoners had to file the complaints with the same people who they were complaining about, and came up with a scheme to make sure complainants never exhausted the administrative remedies they had to finish before they could sue. Oh yeah, lawyers were not permitted to help for those that did get to file a complaint.

Now why are things like this allowed to fester?

Because Congressmen do not understand the laws they pass. Because Prisoner's have no lobby. Because politicians pander to voters by being "tough" on Crime. Because Americans are stupid. No not in the imbecile kind of way, but in the "I don't want to think about or learn about this" or the "Government will take care of this stuff" or in my personal favorite "those people don't deserve better" kind of way. Because even though most of Congress is made up of lawyers, they hate lawyers.

What happened here is that under the original civil rights law, prisoner's could file suits "willy nilly" and were costing the local governments a ton of money in legal fees for "Frivolous litigation". (One inmate sued both the Devil and G-d in two very separate law suits.)

Normal solution: require that the litigation be filed by an attorney who has reviewed it and is open to Rule 11 sanctions.

Congressional solution: Close the court house door to most prisoner civil rights suits and while we are at it, make it impossible for a lawyer to make any living in representing someone who is in jail and has a legitimate civil rights suit by capping his legal fee at 150% of the recovery.

This is the gravamen of the Prison Litigation Reform Act of 1995. Now why cap the legal fee, well civil rights cases allow the court to switch the legal fee of the winning party to the losing party. That means a lawyer will get paid by the government. Now it was completely lost on the congressional geniuses that wrote this bill that most of America's best lawyers charge more than 350 per hour and that they were already taking less because they are paid at no more than 112.50 an hour under the civil rights act (See also the Lodestar case).

NOPE, if the lawyer succeeds in saving prisoner's lives, the jury can give the victim/prisoner a buck and the lawyer gets... $1.50. That's absurd right?? I mean a guy can work for 300 hours on a case, win it, save lives because he wins it and all he gets for all that work would be a half cent an hour?? That's got to be absurd right? Well the 10th Circuit court of Appeals thought so (See this decision) but then when they looked at the decision en banc (a fancy way of saying all of the judges on the Circuit Court of Appeals reheard the case) they agreed that absurdity wins out, Congress screwed up and they couldn't legally fix it. Hence the Court house doors are effectively shuttered because a lawyer has to feed his family and pay his staff and we can't do that on this type of fee. Big law firms don't take too many of these types of cases pro bono. Hence disturbing behavior begins, goes unchecked, increases, and people die.

There are a few proposed laws to reform the PLRA. You can learn more about those proposals here.

Lawyers and the threat of a law suit, while expensive and not without some downside, keep people safe without sacrificing the needs of these people. Our professions ability to find a wrong and right it without taking up arms makes our nation stronger and our people healthier and safer.

Do not give in to the platitudes of others. Ask questions. When a Congressman or lobbyist wants to limit the right of someone to use the capitalistic system to better themselves, usually it betters all of us. Putting artificial stops on the free market never succeeds in anything but waste and loss of life and limb.

It is the same with Medical Malpractice and Class action fees. Doctors still want to make money, and so do insurance companies. They will continue their services. Same with Pharma and other developers. It may make things a little expensive at times, but then again, would you rather pay more for a safe drug, or less...
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