The recent settlement proposal between the tobacco industry and the attorney general's of 41 states has been in the news a lot lately. I share a home with 158 other men, 90% of whom smoke. The walls literally weep nicotine. A woefully inadequate ventilation system blows the smoke of countless handrolled, unfiltered cigarettes around. Even though the state pays virtually 100% of our medical costs if we get sick, nothing in the tobacco settlement will affect my state of affairs. The state of Washington ensures that loose leaf tobacco is readily available at 68¢ per 3/4 ounce box. The same state makes millions selling tobacco products to my neighbors. I am a prisoner at the Washington State Reformatory in Monroe, WA.
On March 20, 1997, the attorney generals of 22 states held a press conference in Washington D.C. to announce the settlement of their lawsuit against the Liggett Group, the smallest of the big tobacco companies. Florida Attorney General (AG) Bob Butterworth used the occasion to wonder how many lives would have been saved, how many people would have lived longer to enjoy life with their children and grandchildren if the tobacco industry had not lied to them about the dangers of tobacco when they first began smoking. 
Arizona AG Grant Woods noted of the tobacco industry "They produce a product which, when used as intended by them, causes lung cancer, heart disease, and emphysema.... Their product contains nicotine and that nicotine is addictive... In courts, in the halls of congress, on television shows, and in newspapers, every place they've gone through the history of this industry, they have denied these allegations." 
Three months later, on June 20, 1997, the AG's of forty states held another press conference in Washington D.C. to announce their settlement of lawsuits against the four largest tobacco companies in the U.S., including Brown and Williamson and Philip Morris. The theory behind the states' lawsuits was that the tobacco companies had known about the dangers related to smoking and had concealed these dangers from the public. The states sued seeking reimbursement for Medicaid money spent by the states to provide medical care to those smokers who became sick as a result of their smoking. A fawning corporate media duly gave each AG the TV soundbite they needed for the newscast back home. The print media obliged by running lengthy op ed by their respective AG lauding their achievement in settling the lawsuit under terms that will ensure the financial viability of the tobacco industry for the foreseeable future. Typical of this was an almost full page op ed in the Sunday, July 20, 1997, Seattle Times by Washington AG Christine Gregoire, titled "It's Not About Money, It's About Smoke." In her article Gregoire calls tobacco an "addictive, deadly product" and estimates Washington state will receive up to $100 million a year, forever, under the settlement. 
Smoking is Harmless
The attorney general's office in each state primarily provides counsel and representation to other state agencies. They have virtually no role in criminal prosecutions and do relatively little in the way of consumer protection in terms of their budget expenditures. When representing state agencies against the interests of the citizenry, the latter invariably loses.
Thomas Waugh is a Florida smoker who wants to quit but can't do it on his own. He filed a lawsuit in federal court in Jacksonville seeking nicotine replacement patches from the state to help him overcome his tobacco addiction. Waugh is a prisoner and the defendant, represented by AG Bob Butterworth, is the Florida Department of Corrections (DOC). Butterworth responded to Waugh's lawsuit with a motion to dismiss, telling the court that nicotine isn't addictive and Waugh can quit smoking whenever he wants simply by not buying cigarettes from the prison commissary. The state's argument says Waugh "is in no way entitled to medical intervention to 'cure' a habit which [he] himself continues to indulge and over which he has ultimate control." In his Medicaid lawsuit against the tobacco industry Butterworth argued the exact opposite: nicotine is so habit forming it "virtually extinguishes personal choice in those who become addicted" and cigarette makers "capitalize upon the known addictive nature of nicotine. Nicotine addiction is similar to the addictions of illegal drugs such as heroin, cocaine and amphetamines." Unless you're a prisoner.
Tobacco company lawyers were very interested in the state's response to Waugh's lawsuit. When Philips Morris lawyer Stephen J. Krigbaum deposed Waugh he asked him "It's pretty hypocritical, isn't it?" "Yes sir, it is," said Waugh. 
This response, that smoking is harmless, from an AG's office is far from unusual. It's the norm. In 1993 the U.S. supreme court issued a ruling saying that exposing non smoking prisoners to Environmental Tobacco Smoke (ETS, a.k.a. second hand smoke) violates the eighth amendment's ban on cruel and unusual punishment. See Helling v. McKinney , 113 S.Ct. 2475 (1993). The percentage of prisoners who smoke varies from a high of 95% in the District of Columbia to a relative low of 75% in Florida. Outside of prisons the numbers are reversed, with non-smokers being a majority. The result has been a steady number of lawsuits brought by non smoking prisoners seeking injunctions against ETS exposure.
Invariably the defendant prison officials are represented by their state's attorney general. As in Waugh's case, they argue that smoking is harmless. In Washington state prisoners filed a lawsuit over ETS exposure. Christine Gregoire's office defended the DOC and argued there was no significant danger associated with ETS exposure , despite significant medical evidence to the contrary.
When Gregoire announced Washington's lawsuit against the tobacco industry on June 5, 1996, at a Seattle hospital press conference, she said "The tobacco industry has targeted our kids, withheld safer products and deliberately mislead the public about the safety of smoking. This lawsuit is intended to make the tobacco cartel play by the same rules as other businesses." Two days later, an indignant editorial in the Seattle Times criticized the tobacco company CEO's who told congress, under oath, in 1994, that nicotine was not addictive. "The industry's strategy of total denial reads like fiction...." [10 ]
Met with silence by the media was a ruling by Washington D.C. federal Judge Stanley Sporkin, who granted an injunction to three District of Columbia prisoners to prevent their exposure to ETS. The District of Columbia DOC argued that ETS was harmless and posed absolutely no danger whatsoever to human health.
Judge Sporkin used scathing language to describe the position of the DOC's attorney. "The District of Columbia in this action requests the court to go along with its repudiation of its prior findings concerning the ill effects of second hand smoke. This court declines to accept the District's unwise and, indeed, unconscionable position." Judge Sporkin expressed his "mystification" when the DOC's counsel opposed introduction of the District's policy on "Smoke Free Environments," on the basis that it was hearsay!
Noting that the District imposes widespread restrictions on smoking outside prison: "Inexplicably, the District has taken a somewhat different tact when it comes to the health of its prison population. Having recognized the dangers of ETS the District has not adequately explained why it is all right to expose its prison population to such hazards." [11 ]Perhaps the commonality of the District's argument in court makes it unnewsworthy.
It's Not About Money
Prisons are responsible, under the eighth amendment, for providing medical care to the prisoners in their custody. While many states charge nominal fees to access medical care, the reality is that the state picks up more than 99% of the medical cost tab. In 1996, the state of Florida spent $213 million on prisoner health care, an annual average of $3,148 per prisoner. In a report on the possible consequences of a ban on prison tobacco sales, the Florida Senate noted that the DOC was "reluctant to assess the number of inmates who have cancer or other medical conditions as a result of their tobacco use." The report estimated that thousands of Florida prisoners seek treatment each month for medical conditions that are either smoking related or worsened by exposure to tobacco smoke. [12 ]State senator Locke Burt claims smoking related illness adds $41 million to prisoner health care costs in Florida each year. [13 ]
So while AG Bob Butterworth is carping about Medicaid costs caused by the tobacco industry he willingly defends a state agency that promotes tobacco use. In 1996 the Florida DOC bought more than $5 million worth of tobacco products (cigarettes, cigars, chewing tobacco and loose leaf tobacco) to sell to prisoners at a 33% markup. [14 ]Gross sales of tobacco products in Florida prisons totaled $7,592,172 in 1996. [15 ]
The First One's Free Kid
When I entered the Washington state prison system in 1987 each week every prisoner was given two boxes of loose leaf tobacco.
The practice ended in 1989 when the legislature balked at spending $289,000 a year to give prisoners the tobacco. The practice had been going on since at least the mid fifties and continued long after the negative health effects of tobacco were well known. Christine Gregoire has not commented on the state of Washington giving tobacco away, (even to minors), to prisoners.
Bob Butterworth, however, has. Stephen Krigbaum, the Philip Morris attorney, rocked the Florida state tobacco litigation team when he introduced documents from the Florida state archives showing that the state made cigarettes at two prison tobacco factories and gave them away to prisoners, juvenile prisoners and mental patients, and sold them to hospitals and county jails. At the time the Florida DOC was making and giving away cigarettes the state knew nicotine was addictive and that cigarettes killed. The state of Florida spent more than $500,000 a year between 1972 and 1980 to give away cigarettes. "The fundamental claim in their lawsuit is that the state is an innocent third party. And these documents show the hypocrisy of that" said Krigbaum. [16 ]
Kim Tucker, Butterworth's deputy handling the Medicaid suit downplayed the revelation, saying it was no secret the DOC made cigarettes. "It was one of our prison industries. We discontinued it," she said. [17 ]Left unsaid is that it was only prisoners' health at stake.
Evidence revealed by Krigbaum showed that:
$9,660 worth of cigarettes were sold by the DOC to the Department of Health and Rehabilitative Services and hospitals such as the Florida State Hospital.
County governments bought $73,209 worth of prison made cigarettes, mainly to distribute in their jails.
DOC documents showed:
A net profit of $81,245 was made from the state tobacco factory at the Raiford prison in one quarter in 1977.
A 1978 State Senate document showed:
The Florida state prison began manufacturing cigarettes in 1972, and state prison officials estimate that half the prisoner population accepted the free cigarettes.
The report said the cigarettes made by the state were unfiltered and contained "some of the highest tar and nicotine levels, thus are particularly unhealthy."
Minutes from a 1980's governor's panel meeting showed:
DOC officials said the state stopped providing the free cigarettes after the University of Florida said the state cigarettes were causing cancer in prisoners due to their high nicotine content.
The legislature rejected a request for money to make cigarettes with lower nicotine so the state decided to stop making them.
According to a 1993 state memo produced by Krigbaum, a juvenile detention facility spent state money to buy cigarettes from a tobacco distributor in order to give them away to juvenile detainees. Janet Ferris, the recipient of the memo who is now general counsel to the Florida Department of Juvenile Justice, said she didn't recall any details about the memo. [18 ]Under Florida law it is illegal to give or sell cigarettes to minors.
In May, 1997, the tobacco industry filed its own lawsuit against the state of Florida arguing the state had "unclean hands" in that it had done pretty much everything it was accusing the tobacco industry of doing: manufacturing cigarettes; targeting minors; downplaying and ignoring the health risks associated with tobacco use; denying nicotine was addictive, etc. The tobacco industry said it should not be required to pay for Medicaid costs that were caused by the state's promotion of tobacco. The parties settled both lawsuits in June, 1997.
While several states, including Minnesota, Texas, Idaho, Nebraska and Indiana have banned tobacco use in prisons, most states have not. On the contrary, virtually all states that allow tobacco use by prisoners go to great lengths to ensure tobacco is available at very low prices to generally indigent prisoners .Loose leaf tobacco comes in 3/4 ounce boxes with no warnings at all of any health risks and sells for as little as 68¢ a box. Prisoners too poor to afford that fish cigarette butts out of ash trays to feed their nicotine habits.
In Washington, Florida, Michigan and other states, efforts to ban prison smoking go unheard or are stopped in their tracks. In Washington legislators looking to cut prison health care costs are prepared to spend hundreds of thousands of dollars to hire physical fitness instructors. The prison I am at has such classes: it stops after 45 minutes so participants can take a smoke break. Washington, like many other states, has a Clean Indoor Act which bans smoking inside state owned buildings. By executive order, prisons are exempted from this law. Likewise, when president Clinton recently restricted smoking on federal property he exempted prisons from the law.
In states where legislation has been introduced to ban prisoner smoking. the most vociferous group lobbying against such a ban was none other than prison guards and administrators. Each predicting dire consequences of prisoner violence if smoking were banned. Typical was Florida DOC sergeant S.D. Williams who testified before the Florida legislature "If you take these cigarettes away from them boys, you're going to have officers going to the hospital in large numbers." Williams later admitted he too was a smoker and would resent not being able to smoke on the job. [19 ]
In Michigan, Mel Grieshaber, a lobbyist for the Michigan Corrections Organization, a guard union, opposed a tobacco ban, saying "Operationally, we think it's a safety issue. We don't need anything more in there to make the prisoners tense." [20 ]When pressed, Grieshaber admitted no assaults on guards could be tied to tobacco bans.
What makes these protests ring hollow is that these same groups have pushed for or acquiesced to draconian prison policies and laws that have done a lot to make prisoners "tense." Including: elimination of television, drastic cuts in visiting, elimination of personal property, chain gangs, etc.
While the attorney generals focused their lawsuits on Medicaid, the fact remains that state prison employees, a majority of whom smoke, enjoy extensive health care benefits that, like the prisoners, results in the state picking up 100% of the health care tab caused by their smoking habits. All without a peep from the AG's office.
The annointment to sainthood of the AG's who sued the tobacco industry ignores the fact that those same AG's routinely defend the exposure of non smoking prisoners to ETS as well as acquiescing to feeding the nicotine addictions of a captive population. No, like Gregoire said, it's not about money. It's about good soundbites and getting reelected. We'll be seeing a lot of campaign ads using the tobacco press conferences as a backdrop.
In the meantime, prisoners and guards keep smoking, getting sick and having the state pick up the health care tab. What about the thousands who became addicted when they entered a prison system, even as juveniles, that gave them free tobacco? We won't talk about that.
By the way, according to the Seattle Times , 45 states, including Washington, have millions of dollars in state pension funds invested in tobacco stocks, and they plan to keep them since they perform very well. Philip Morris stock went up 31% last year. Rick Steiner, head of an Alaska group seeking state divestment of tobacco stock, summed it up: "The governor and legislators feign this self righteous indignation over smoking, then the state gives the tobacco companies millions of dollars to play with." [21 ]Too bad no one will say that about the AG's or their clients that each year spend millions of state dollars on tobacco products.
[Next month's PLN will have a companion piece to this article discussing tobacco litigation strategy.]
Endnotes to Smoking Article:
1. "Tobacco Litigation," Trial News , page 28, May, 1997. Leonard Schroeter.
3. "It's not about money, it's about smoke." Seattle Times , page B7, July 20, 1997. Christine Gregoire
4. "Smoking Prisoner Sues State." Times Union (Jacksonville, FL), page A1, June 30, 1997. June Bell.
6. Crowder v. District of Columbia , 959 F. Supp. 6. (D DC 1997).
7. Bill Research and Economic Impact Statement. House Bill CS/HB 769, FL House of Representatives. April 10, 1997. Page 2.
8. Sindars v. Gardner , Case No. C91-1068R, U.S. District Court in Seattle. Unpublished ruling.
9. "State Sues Tobacco Companies." Seattle Times , page A1. June 5, 1996. Kery Murakami.
10. "Smoking out the falsehoods of Tobacco's Brash Barons." Seattle Times , page B4, June 7, 1997. Terry Tang.
11. Crowder, supra .
12. Senate Analysis and economic impact statement. Senate Bill CS/SB 10. Florida Senate. March 25, 1997.
13. Letters to the editor. Palm Beach Post , page 21A, March 20, 1997. Senator Locke Burt(R).
14. "Suit Hasn't Ended Sale of Tobacco in Prisons." St. Petersburg Times , page 1B, May 12, 1996. Amy Herdy.
15. Florida House Report, supra , page 10.
16. "Big Tobacco Counterpunches: State Made Cigarettes." Palm Beach Post . January 25, 1997. Page 1A. Stephanie Artero.
18. "State Gave Juveniles Cigarettes." Palm Beach Post . Page 1B. March 1, 1997. Stephanie Artero.
19. "House Derails Prison Smoking Ban." Palm Beach Post . March 12, 1997. Page 1A. Mary Klas.
20. "Prison Guards Air Fears About Full Smoking Ban." Grand Rapids Press . Page A10. April 16, 1997. Judy Putnam.
21. "States Keep Tobacco Stocks." Seattle Times , page A2. April.
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