PLN Interviews Randy Berg, Director of the Florida Justice Institute
by Paul Wright
On December 27, 2018, Prison Legal News editor Paul Wright interviewed Randall C. Berg, Jr., executive director of the Florida Justice Institute (FJI) in Miami. It is fair to say that no one has done more for Florida prisoners in that state’s history than Randy. He was also instrumental in developing the first Interest on Lawyers Trust Accounts (IOLTA) system, which is used to fund legal programs and assistance for the poor. Thus far, IOLTA has generated around $5 billion for legal services for people who otherwise could not afford them.
This interview took place on Randy’s last day as FJI’s executive director. He had been diagnosed two years earlier with ALS, also known as Lou Gehrig’s disease, and died of respiratory complications on April 10, 2019 at the age of 70.
Randy was one of PLN’s earliest subscribers in the early 1990s and we became friends over the years. He represented PLN in two censorship cases against the Florida Department of Corrections (FDOC). I believe this was Randy’s last interview, and am sorry he did not get to see it in print and that Florida prisoners will not be able to see it either, since the FDOC continues to censor PLN statewide.
Randy was born in Georgia in 1949 but grew up in Jacksonville. He graduated from the University of North Carolina in Chapel Hill in 1971 and served three years in the Navy as a Lieutenant Junior Grade before attending George Mason Law School. He moved to Miami in 1978 to start FJI. Randy is survived by his wife, Carol, and his son, Randall Berg III.
This interview has been edited for length and clarity.
PW: At what point did you decide to go to law school?
RB: I actually decided to go to law school during my sophomore year in college.I had some really, really good professors who challenged me to rethink my political beliefs and what was going on in the country at the time in terms of civil rights and civil liberties, and I think the people that were really making a difference in society were lawyers in the civil rights movement. I finished law school in ‘78.
PW: That was around the time you started the Florida Justice Institute.
PW: And this has been your sole job as a lawyer?
RB: Yes it has.I had an opportunity when I was in law school.I applied to a number of different places to intern during the summer after my first year and second year, but the place that challenged me the most in terms of a job offer was to intern for Bill Sheppard in Jacksonville.
PW: At that time he was a civil rights lawyer, correct?
RB: He was a civil rights lawyer and criminal defense attorney.I think he would probably put criminal defense first, civil rights second. Bill had been appointed by U.S. District Judge Charles Scott, who was ... overseeing the major prison class-action lawsuits in Florida.There was a pro se case that had been filed against the Duval County Jail in Jacksonville, and Judge Scott asked Bill if he would accept appointment to represent the plaintiffs.... That was my first exposure to prisoner civil rights.
PW: So this time you were working with Bill Sheppard?
RB: I was working almost exclusively with Bill the first summer, mainly doing criminal defense research and writing for him, but also getting my feet wet [in] Miller v. Carson, which I considered the seminal jail conditions case in the Fifth Circuit at the time, if not the country.[Ed. Note: The Fifth Circuit Court of Appeals split in 1981, with Florida being moved to the newly-formed Eleventh Circuit].It was truly kind of a soup to nuts lawsuit dealing with everything that the cases now deal with when you bring a conditions case against a county jail.So it dealt with not only overcrowding, but with medical care, food service, mental health care, exercise, you name it.
Bill did some research and found that the Florida legislature in 1949 had passed Florida Statute 951.23, which required the Florida Department of Corrections to promulgate rules and regulations concerning county jails, to inspect county jails – well, I should say county and municipal jails because they had municipal jails – and to bring enforcement actions against noncompliant facilities.After Bill won Miller, the county appealed to the Fifth Circuit. The Fifth Circuit affirmed Judge Scott’s ruling but entered a separate decision in Miller v. Wainwright.At the time, Louie Wainwright was Secretary of the Florida Department of Corrections, and they found that [he] had a responsibility under Florida law....
PW: Which he never exercised.
RB: Which he had never exercised.Well, he had promulgated some rules and regulations.He had inspected some jails, but he had never done any enforcement actions.So the thing that intrigued me and one of the reasons I decided to accept the job starting the Florida Justice Institute was this case that came out of that decision, which was to be our first lawsuit.
The case was Arias v. Wainwright, and when I was finishing law school in ‘78, I met with [ACLU attorney Alvin] Bronstein, Ralph Knowles, a couple of very talented lawyers from Wilmer, Cutler and Pickering, and Bill Sheppard and Al Hadeed to discuss how do we take the Fifth Circuit’s decision in Miller v. Wainwright to make it a statewide lawsuit against the Florida Department of Corrections, not against all 67 counties, or 66 if you subtract Duval? How do you take that case and make it statewide?So we decided in a number of meetings to break up Florida.There were three districts in Florida – northern, middle, southern.
PW: These are federal districts?
RB: Federal districts.We decided to pick out, as I recall ... three jails in each of the three districts and get plaintiffs from each of the three districts, and to pick the worst jails.So one of my first jobs as the youngest person was to go to the Florida Department of Corrections and make photocopies of all the inspection reports that had been done.I ended up tying up their copy machine at the Florida Department of Corrections for two or three days making those photocopies myself.Back then it was under the public records act.They would say, “Here’s the copy machine.Here’s the file drawer.Have at it.”
So I was there for three or four days making photocopies.We went through all the inspection reports and figured out using the Department of Corrections’ own reports which jails were the worst in Florida and we ranked them ... then we picked three jails in each of the three districts and we went and interviewed inmates in those jails. Actually I went and interviewed the inmates in those jails to pick the plaintiffs for this [case] to be filed, a statewide lawsuit against the Florida Department of Corrections.
We filed the case in 1979 and the counsel was Bill Sheppard, the Florida Justice Institute, Southern Legal Counsel (which was directed by Al Hadeed), Wilmer, Cutler and Pickering, and [the ACLU’s] National Prison Project.So we filed this statewide case.It was the biggest case really, and the only statewide jail conditions case that has ever been successfully brought in the country.We ended up winning the motion to dismiss;we got a wonderful order from the magistrate judge in Tallahassee, who ironically had been an assistant attorney general, but he....
PW: He saw the light.
RB: He saw the light.He rendered a wonderful opinion and the Department of Corrections decided [to settle] as a result because they had not enforced any violations, even though their own inspection reports showed all these problems. The worst jail in the state was the Key West Jail, and the guy that I interviewed down there to be the plaintiff was Willie Arias, and they had no outdoor rec.When I went in to interview Willie Arias it was up to the top [floor] and the guards would not go up with me because they said it was too violent.
They called it the “Texas Jail.”I couldn’t figure out for the life of me why would they call the Key West Jail – Monroe County Jail – the Texas Jail.It turned out they had actually purchased this prefab, all-steel jail from the State of Texas. And they had put it on a barge in Texas and taken it over to Key West and used cranes to put it up on top of the court house and then cemented the thing in with concrete blocks and everything.Since it was on the water in Key West, it rusted.
It was probably rusting the day they brought it in to Key West. There were holes so when inmates would take showers in this grungy, rusty jail, the water would leak and of course there were cracks in the ceiling so the inmates, when they would get pissed off because of the food or lack thereof or whatever they were being punished for in the Texas Jail, they would plug up the drain pipes of the showers.It would fill up with water and the water would leak down on the heads of the judges in the courtrooms and that was actually in the reports to Louie Wainwright, and they recommended that Wainwright take legal action against the Monroe County Jail, which of course he never did.
PW: Was this lack of interest or political will or...?
RB: Probably political will. Wainwright was the longest-serving DOC Secretary in Florida history, 30 years or something. And there was only one political party in Florida at the time, the Democrats.
He decided [to settle] because they had no defense for not having enforced this statute.We alleged that by his failure to not enforce state law he had deprived the inmates of their civil rights and civil liberties, and that was the law back then.The law later changed with the Supreme Court’s decision in Pennhurst [State School and Hospital v. Halderman, 465 U.S. 89 (1984)], that state law does not grant a right to enforce it in federal court.
We settled the case.Wainwright wanted the plaintiffs’ lawyers to become his compliance counsel to him.We were the ones to enforce it and we were the ones to travel around with our experts, so I spent the next 15 years touring jails with our expert, Gene Miller.
PW: For a matter of perspective, you have been involved in Florida prison and jail litigation for 40 years now –your entire career as a lawyer – and you have seen where things were when you started out and kind of almost at the beginning, almost ground zero, of prison and jail litigation in Florida.Where would you say things are both at the jail level and the DOC level in the State of Florida today?
RB: Well, I think they are different.I think enforcement actions that were brought during the 15, 16-year period after the settlement of Arias, the Department of Corrections filed lawsuits against 67 counties.They filed 80-some lawsuits.
PW: To just put things in perspective, how bad were conditions?
RB: Conditions were horrible.
PW: And we are talking the late 1970s, early ‘80s, right?
RB: It was actually the early ‘80s.We settled in I think ‘81, either ‘80 or ’81, so it was the early ‘80s that we started doing the enforcement tours and [the FDOC] started bringing enforcement actions against noncompliant jails. They started out doing it using assistant attorney generals, but it became politically kind of impossible for an attorney general to be, you know, trying to get votes in a county but also suing the county, so they ended up farming it out to a private firm in Tallahassee.This private firm did the enforcement actions so we’re actually dealing with the private lawyers who were bringing those actions.
PW: What were the main problems in the jails at that time?
RB: Primarily overcrowding, lack of exercise, abominable medical and mental healthcare, suicides, lack of staff.
PW: Everything that can go wrong?
RB: Yes.One of the things we did not settle in this case – it was a partial settlement– we did not settle whether the rules limited crowding levels.We never thought that their rules were to our liking.I think we later learned that some of the stuff they had done in the rules was okay.One of those things is when a jail is built, architects use square feet per inmate.It is a standard and all these jails had been built already.
RB: So how do you go back and decide this cell may be 40 square feet per inmate, but if they are giving the inmate a lot of out-of-cell time....
PW: Right, then that is less important.
RB: That is less important. So the department came up with a very clever thing, they call it “factored capacity.”For the new jails they imposed a square foot per inmate standard, but for the existing jails they had factored capacity [which] was actually pretty good.I mean it rebounded to our clients’ favor so we liked the factored the best. But getting back to your question, the county jails were abysmal.We saw a huge surge in building county jails in the State of Florida.I think the number of inmates statewide then was maybe 20,000.
PW: Was that at the DOC level or the county level?
RB: County level, and today it is like 55,000.Our objective, our hope was that the counties would see it was impossible for them to build their way out of it and implement bail reform. But bail reform did not come about.
PW: They had built their way out, so to speak.
RB: They did, they built their way out of it.
PW: How did FJI come about from your work with Bill Shepard to become an independent organization?
RB: FJI was founded by a lawyer who had been head of the justice program at the Edna McConnell Clark Foundation in New York.Edna McConnell Clark was the woman who started Avon Products, and they had, I think, three different areas that they gave money to.One was justice programs, another was tropical diseases and there was a third one.I do not remember what the third one was, but the justice program was big and they were the initial funders. Rod Petrey is the guy who was head of the justice program and he was there for about four or five years and funded the ACLU’s National Prison Project.He funded the Basics Program for the American Bar Association. He tried to get the ABA involved in doing more prison reform stuff, the Mental Health Law Project which is now Bazelon, Native American Rights Fund [and] a lot of the do-gooder organizations.
He was from Florida.He had grown up in Haines City and when he left the Clark Foundation they gave him a going away present. It was a small grant of $150,000 to start the Florida Justice Institute. He had gotten to know Bill Sheppard in Jacksonville and asked Bill if he could recommend somebody to start the Florida Justice Institute.[Petry] had accepted a job as a banking lawyer in Miami with a small boutique firm, and had convinced them to give free office space to the Florida Justice Institute.He said, “All you need is one office for a lawyer and a secretary.”So he interviewed me. I had been clerking for a criminal defense firm in D.C., and I had a job offer from them or starting the Florida Justice Institute, and that was a no-brainer for me.
PW: You have spent literally 40 years representing prisoners and poor people.What is it that attracted you to doing this type of law as opposed to anything else?
RB: I think prisoners are the most underrepresented segment of our society there possibly is.I cannot think of any other segment of society that needed legal representation more than prisoners.I mean, they are shut off from society for the most part and they have no political will.
PW: They may have a will.They do not have a voice.
RB: Voice, yes.No political voice whatsoever and after hearing the plight of prisoners from reading letters and talking to them it does not take you long to see that these people need help and there are not lawyers out there that are going to help them unless somebody steps up to do it.
PW: My experience with prisoner rights litigation is that I started out in Washington and went national, and one of the things that really strikes me about Florida is how few lawyers in the private sector are willing to represent prisoners, which seems to be far fewer than in the rest of the country – even in other states in the Eleventh Circuit. Even in Alabama or Georgia it seems there are a few more lawyers. Do you have ideas or thoughts on why so few lawyers in Florida do these cases?
RB: Yes.I have run two pro bono programs during my tenure at the Florida Justice Institute, trying to get more lawyers to represent poor people, particularly prisoners.One was called the Public Interest Law Bank for the Dade County Bar and it later become Put Something Back; the other was the Volunteer Lawyer’s Project for the U.S. District Court.The one for the U.S. District Court was much more oriented to represent prisoners because we were mainly dealing with pro se cases that were primarily filed by prisoners.
So we were looking for lawyers to [provide representation] and I did that for 21 years.The reason I think lawyers in Florida do not step up is because Florida does not have the established practice or history that you see in some of the other major cities like New York, Boston, Washington, D.C. of doing pro bono work. That is the first thing.
PW: It seems like first off the major corporate firms in Florida do not seem to do much if any pro bono work of any kind, but even outside of that it seems like the personal injury bar and lawyers that look at cases to make a living do not seem to take that many prison or jail cases or even police violence cases for that matter.
RB: Well, that is true. I think it is the lack of history and every now and then, you know, if you make a big hit or get a big settlement and the word gets out, then you hear about lawyers taking these cases or calling you up and saying, “I’d be interested having one of those cases.” But they seem to think that these cases are easy to do and they are not.
PW: Right, if they were then everyone would be doing it. The FJI also does other types of cases.Can you talk about those?
RB: We have done a lot of housing discrimination cases over the years.We have done other civil rights and civil liberties cases.Some of them have to do with prisoners, but mainly deal with poor people.
PW: Can you give some examples?
RB: Sure.We did a vote dilution case with the ACLU of Florida, dealing with a county in Florida that decided it would count the prisoners in terms of making the districts....
PW: Even though prisoners cannot vote.
RB: Yes, knowing prisoners cannot vote and of course that results in vote dilution of people in the other outlying districts, so we did that case.We have done cases challenging the requirement that poor people be drug tested prior to getting benefits, got that struck as unconstitutional.There are a couple of other cases.
PW: And you have also done police shooting cases as well.
RB: Done police shootings ... as well as class actions. Did a class action against the Palm Beach County Sheriff’s Office for these things called “Tax Squads,” with [deputies] dressed in black.They went in primarily into Haitian communities and they would ostensibly be looking for crack cocaine, but they would sexually harass the women, steal the cocaine if they found it.
PW: Ah yes, Florida’s finest.
RB: We got that enjoined.
PW: You have actually litigated cases throughout Florida?
RB: Yes.We have had cases literally from Key West to Pensacola.
PW: I think one of my favorite quotes of yours is you refer to FJI as Florida’s law firm of last resort.
PW: What do you think best exemplifies FJI’s role as the law firm of last resort?
RB: Well, I think the case we just recently won challenging Florida’s statute ... banning sex offenders from being on the Internet.We challenged that in federal court and won, got the new version of the law enjoined and got the judge to enjoin the remainder portion so it is successfully tabled right now.So people who are convicted sex offenders can use the Internet for commercial purposes and they can engage in entrepreneurship just like anyone else, because today’s highway for making a living is the Internet. They are not shut out of being able to make their living.
PW: Over the 40 years that you have been at FJI, what would you say was your biggest or most significant case in terms of its impact?I know it’s a tough call.You have had so many.
RB: Well, the first one that I worked on probably had the largest impact on conditions ... that was the Arias case that I did with, as a young lawyer, with the National Prison Project and Wilmer, Cutler and Pickering.
PW: Just because it impacted all 67 jails in the State of Florida?
RB: Right, and the consent decree lasted until the Florida legislature vacated the statute.So you see ... I mean it was not our objective to have massive jail construction across the state.
RB: But the jails were so shitty that....
PW: That is what happened.
RB: That is what happened.The other thing that happened, I think, is the nature of the professionalism of the correctional officers changed.It used to be when we started the case that the sheriff’s deputy who would crash the sheriff’s new cruiser he had just purchased for him got shit-canned to the county jail to be a corrections officer.We started seeing more professionalism in corrections in Florida.
PW: Became more of a profession as opposed to a punishment?
RB: Right, exactly.I think that benefited our clients substantially. The one that had the largest legal precedence was Ancata v. Prison Health Services. It was the first case in the country from an appellate court finding a for-profit entity operated under color of state law for purposes of [42 U.S.C. Section] 1983.
PW: Yes.That company was Prison Health Services, which is now known as Corizon.
RB: Corizon, right.And then we also found that the governmental contracting entity still had a non-delegable duty to provide constitutionally adequate medical care, which later paved the way for West v. Atkins in the Supreme Court, but for years before West came down [Ancata] was the only case out there that held the for-profit entities liable for violating constitutional rights.There have been a number of others since then.Osterback [v. Moore] was our first and only challenge to solitary confinement and close management.I think that had a tremendous impact on decreasing the number of inmates held in solitary confinement as well as decreasing the number of prisons having close management units.
RB: So that had a huge impact.The one we are dealing with now, Hoffer [v. Jones], is the first case in the nation finding that departments of corrections have to provide quick-acting antiviral medications for inmates with hepatitis C.That is the first and I think it is still maybe the only [case] decided on the merits. There are settlements, but I think most of the settlements are based on the reasoning in Hoffer.
PW: Do you have any idea how many cases you have done over your 40-year career?
RB: I have no idea. There is one thing that we used to do a lot of that we can no longer really successfully do.We used to bring a lot of state tort actions against the Florida Department of Corrections.For example, guys working in prison industries....
PW: Like the negligence cases.
RB: Yes.Such as not giving steel-toed safety shoes, and a fork lift runs over the foot and crushes the toes.We used to bring those cases and the problem is the DOC and the legislature enacted a cost of incarceration statute which was held to be constitutional. So any time we would bring a negligence case, be it medical malpractice or one of these work industry cases, they would file a counterclaim for cost of incarceration which ... wipes out whatever judgment you get.
PW: Right.So basically the Department of Corrections is given carte blanche to be as negligent, as deadly as it wants to be.
PW: Okay.Well, speaking of damages cases, what is the largest damages or award you have obtained in a prisoner jail case, either through settlement or verdict?
RB: Probably the Dade County Jail strip search case.I think it was $6.25 million.We originally settled for 10-something million ... we settled in mediation and the mediator called me up that night and said, “Just got a call from the county attorney.He can’t sell this to the commission.We’re going to have to continue mediation tomorrow.”So we went back and settled it for $6.25 million.Fortunately, based on the structure of the settlement we paid off everybody to the penny, did not have to reduce any of the amount they would have gotten, so it worked out quite well.
PW: Of all the cases you have done, which was your favorite case?
RB: Well, maybe Armstrong v. Harris.The Florida legislature passed an amendment to Article 1, Section 17 of the Florida Constitution changing the cruel or unusual punishment clause to cruel and unusual punishment, and....
PW: Which they did to ward off challenges to the death penalty in Florida.
RB: Exactly. And it requires the interpretation [of the amendment] to comport with the U.S. Supreme Court’s interpretation of cruel and unusual punishment.I was asked by some religious leaders to challenge it before the election, so we filed suit in state court.I filed original jurisdiction in the Florida Supreme Court.The Court refused to hear it, four to three.They said “Go file it in state court, you know, circuit court.”So I filed it in circuit court.
I got the first District Court of Appeal to bypass it and got back to the Florida Supreme Court before the election, and they still refused to hear it.It passed by 72 percent.There is a Florida Supreme Court case that says you can challenge a ballot’s title and subject, and that was the challenge.The challenge was the ballot title and summary did not adequately tell the public what they were voting on,that they were actually decreasing the rights of citizens instead of increasing rights, so I challenged it.
A year later I argued it in the Florida Supreme Court after it had passed by 72 percent and got the Court to strike it as misleading the public and hiding the ball, and they struck it. So they went back, rewrote the ballot title and summary, and then hired [the law firm of ] Holland and Knight to do it. [Ed. Note: The revised amendment passed in 2002 with 69.7 percent of the vote].
PW: So the Florida electorate really is okay with diminishing people’s rights?
PW: What are your views on private prisons?
RB: I have different views on private prisons and private contractors that provide medical and mental healthcare.I have found private companies providing medical and mental healthcare to be worse than the state-run entities and that is ... I just do not think they can do it cheaper.
PW: Yes, and this is in the context that you were involved in cases requiring the FDOC to provide adequate care to prisoners.
PW: And you have litigated many, many medical neglect cases on behalf of prisoners over the decades.
RB: Right, in county jails and in state prisons. But by the same token I have found, although I am opposed to it philosophically, I have found that the privates tend to run a better prison than the Florida Department of Corrections. And I say that because they have figured out if they keep the inmates occupied, if they keep the prisons air conditioned, if they treat them decently....
PW: It is actually a better environment for everyone.
RB: It is a better environment for everyone and less of a headache for them to manage and they can actually run the prison probably safely with less staff and without any problems.But by the same token they also use a kind of carrot and stick approach that if you screw up they are going to send you back to the FDOC, though my clients prefer being in the private prisons.
PW: And in some respects it is almost as much of a testament of how bad the state and government-run prisons are in Florida.
RB: It is.
PW: And not how great or good the private ones are.
RB: It is, but as you know, Florida has no air-conditioned prisons and the privates are air conditioning their prisons.The other thing they have done is they have actually hired some pretty good wardens; they tend to hire federal BOP retired wardens, people that....
PW: Have experience.
RB: ... have experience and know what they are doing.Philosophically, I do not believe government should be contracting away police, military or prison functions.
PW: With a 40-year perspective on the criminal justice system in Florida, and I think you probably have as up-close a view as anyone else, you are also unique in having a statewide view, as you mentioned, from Pensacola to Key West.At this point you are retiring almost 40 years after you started this work. What is your takeaway on the criminal justice system in Florida?Is it better off now or worse off?I mean obviously it has changed, but is it changing for the better or for the worse after 40 years?
RB: It has changed,I would say, for the worse.There has been a 335 percent increase in the number of prisoners.
PW: I thought it was higher than that.It was like 500 percent just since....
RB: Yes.I am not using the right term, maybe comparison to the population.
RB: I think it is 300 and some percent, but nevertheless the amount of people per 100,000 we incarcerate has gone through the roof.It was 235 per 100,000 and now it is up around 500 and some or 600.
PW: At least we are not Louisiana with their 800 per 100,000, right?
RB: Right.So despite the fact that crime has gone down we are still incarcerating lots of people for long periods of time and the problem is we have increased the length of sentences.That is the real problem.
PW: And what would you say about conditions of confinement?
RB: The conditions have gotten much worse.Roofs leak, there are [problems] with guards, it is total warehousing.There are no programs.There are no rehab facilities.There is no education to speak of.I mean all we are doing is warehousing these people.We are not making them better [than] when they go in.The goal ought to be to make them better when they get out, not worse.
PW: We report in Prison Legal News about the abnormally high death rate of prisoners in Florida prisons.Until a couple of years ago an average of 35 to 40 prisoners a year died and now we are up to over 300 prisoners a year.
RB: Yes. It is a huge increase.A lot of it has to do with the poor medical care given by Centurion now.It used to be Corizon and Wexford.
RB: I think it probably also has to do with the prevalence of opioids and fentanyl and spice, or whatever.
PW: One of the things I have to say, as someone who has been reporting on prisons for almost 30 years, that struck me as being unusual about the Florida prison system is the brutality of the staff – and this goes to the regularity not just the brutality of the staff, and the impunity of the staff in well-publicized cases where they commit brutal murders and get away with it. Frank Valdes, around 20 years ago, was a death row prisonerbeaten to death by guards.
RB: Yes,I knew Frank. He was my client. So was his co-defendant, William Van Poyck.
PW: They were convicted of killing a prison guard during a botched escape attempt.
RB: Right, right.
PW: They were on death row and Frank Valdes was beaten to death by....
RB: Stomped to death.
PW: Stomped to death by a group of guards, who were put on trial in state court and fully acquitted.Then we have the recent case, for example, of Darren Rainey, a mentally ill Florida prisoner who was scalded to death.Andthe Human Rights Defense Center is representing the estate of a Florida prisoner, Vincent Gaines, who was starved to death ... and we could go on.
These are just the incidents that we specifically know about that have gotten widespread public attention, and it seems that even compared with the other 49 state prison systems and the Bureau of Prisons, all of which have plenty of problems, that even given that baseline, Florida prisons seem to be exceptionally brutal and exceptionally immune from any type of accountability.Do you have any thoughts on why that might be?
RB: It is a good question.Well, I do not think there is any will in the U.S. Attorney’s office to do anything dealing with prisons.
PW: And that is in the context that in other states, even in the South – Louisiana for example, or Texas – the U.S. Attorney’s office regularly prosecutes government employees who beat and kill prisoners.
RB: Yes, I do not think there is any will to prosecute Florida prison staff.I could not believe the U.S. Attorney did not do anything about Darren Rainey.I did not expect Kathy Rundle to do anything about it for sure.
PW: She’s the state attorney for Dade County, where the murder occurred.
RB: Yes.I never expected her to do anything about it, but I certainly expected the U.S. Attorney to do something.
PW: And this is in the context, too, that in Florida the Attorney General is not doing anything about it, but also within the Department of Corrections this seems to happen on a regular basis.
RB: It does.Every now and then you do hear about them taking some type of action against guards.
PW: To what do you attribute the dismal status of Florida prisons and jails?
RB: The perceived popularity of locking people up for a lot of crimes for long periods of time, and not spending an adequate amount of money to pay for the infrastructure necessary to house people for long periods of time.
PW: So basically, you’re saying they want to cage people, they just don’t want to pay the money it takes to cage them?
RB: Exactly. And [former Governor Rick] Scott came in and cut the budget dramatically for the Florida Department of Corrections.They have not decreased the population.The population is still hovering around 100,000 [prisoners], give or take.They did away with parole.The Commission on Offender Review has been pretty much non-existent in terms of releasing people.They arbitrarily and capriciously set presumptive parole release dates out into the stratosphere and these guys....
PW: Aren’t going to live that long.
RB: Yeah, they’re not going to live that long.They’ll reduce it a couple of years but not a realistic amount that the guys are going to get out.
PW: So, I ask conversely, what could be done to improve conditions in Florida prisons and jails?
RB: Reduce the number of people they put in, close a number of [prisons] and have people serve much shorter sentences. I mean, you’ve got to realize you have a finite amount of money that the state is going to pay to incarcerate people, and you have to figure out how many people you can incarcerate for that amount of money.They’re incarcerating entirely too many people for too long a period of time.And they’re not adequately protecting the public.I mean, these guys are getting out, they’re much worse than when they went in.Most of them are going to recidivate and go right back to crime because they’re not learning anything.They’re not adequately dealing with their various addictions.It’s a disaster.
PW: So, as we sit here now, a number of FDOC officials, James Crosby and a bunch of his underlings from around 10 or 12 years ago, went to prison on corruption charges. We earlier discussed the brutality and the high-publicity murder cases of prisoners. Give me a sense of how endemic corruption and brutality is in the FDOC.
RB: You know, I don’t have anything to compare it to because I’ve lived in Florida pretty much all of my adult life.So in comparison to other states, I can’t tell you how endemic it is. I think politically, the Florida Department of Corrections Secretary is under the Governor and, as a result of that, the Secretary has to do everything to please the Governor.The budget has to be in line with what the Governor wants, otherwise the Governor rejects the budget.
PW: The bigger thing, too, is there doesn’t seem to be any oversight by anyone in the executive or legislative branches.
RB: I was getting to that. The first thing is the budget.The budget is way underfunded for what needs to be done.The second thing in terms of oversight is that the Inspector General really is like....
PW: A toothless tiger.
RB: A toothless tiger, and does whatever the [FDOC] Secretary wants him to do.And the Inspector General is probably even worse in terms of protecting the Governor.So, you have nobody within the executive branch doing anything about public corruption and brutality.You can’t expect the state attorney to do anything because they’re just – that’s not their constituency.They could care less about it.
PW: If anything, it’s a conflict of interest because their job is to defend the state agencies.
RB: No, it’s the Attorney General that defends the state agencies, not the state attorney.
PW: Oh, okay.You’re talking about the county level prosecutors.
RB: Yeah, the county level prosecutors.
RB: The state attorney, there’s no reason why they should ever get involved in bringing prisoners or correctional staff to task for abusing prisoners.I mean, it was kind of rare [the Valdez murder prosecution] that was done in the Starke area.
PW: Right, that was the first and last time the guards had been charged.
RB: And it was pretty well known that that was going to be a whitewash because seven out of 10 people [in the area] either worked for the Florida Department of Corrections or they....
PW: Are related to someone that does.
RB: Related to someone, or they make their livelihood off the Florida Department of Corrections.And then the U.S. Attorney has been nowhere in terms of prosecuting guards for guard-on-inmate brutality. The thing with the corruption with [former FDOC Secretary] Crosby, you know, that was pure greed on his part and his regional director’s part.They were getting kickbacks from the canteen company.
PW: Against that backdrop, what are your views on the federal judiciary as they pertain to prisons and jails in Florida?
RB: It’s gotten progressively worse.
PW: So, over your 40-year career, I guess when you started litigating, Florida was still part of the Fifth Circuit because the breakup happened in 1981.
RB: Right, in ’81, but there were still some good judges in the Eleventh Circuit.
PW: When you say it’s gotten worse, in what respect?
RB: Well, I think the Prison Litigation Reform Act has had a detrimental impact on the ability of prisoners to bring cases as well as lawyers representing prisoners to bring cases. I mean, you can’t expect lawyers to bring these large class-action cases that need to be brought for $211 an hour.
PW: And one would say that was the exact purpose of the Prison Litigation Reform Act – to strip prisoners of lawyers capable of representing them and depriving them of meaningful relief when they did prevail.
I’m going to ask you a separate question about the impact of the PLRA because I think you’ve got a perspective where you’ve practiced almost half your career pre-PLRA and you’ve practiced the other half of your career post-PLRA.
PW: I think the consensus is that Congress passed and President Clinton signed the PLRA into law specifically to shut down meritorious prison litigation.What’s your view on how effective it’s been in achieving that goal?
RB: I think it’s been fairly effective.The most effective thing has been the ability of defendants to move to vacate consent decrees or judgments or settlements two years after they’ve been enacted.
PW: The reason for that is, I think, the consensus that for institutional reform litigation, two years is literally a drop in the bucket and you’re barely getting started.
RB: Right.Right.You’re barely getting started and it’s just not enough time to turn around a ship the size of a Department of Corrections, particularly a statewide Department of Corrections.
PW: In your opinion, would you say that’s the worst aspect of the PLRA from a prisoner-plaintiff perspective?
RB: I think it’s worse than the – from my perspective – worse than the attorney fee issue.
PW: It’s interesting because when I talk to different attorneys who have experience in this, including the ones that work at HRDC, it’s always a toss-up.Is it the administrative exhaustion part that keeps you from getting into court?Is it the injunctive termination feature that keeps you from achieving injunctive relief when you win? Or is it the attorney fee provision that keeps you from attracting qualified counsel in the first place?It just seems that it’s a toss-up on those, but they all have the synergistic effect of effectively barring the courthouse door to prisoners.
RB: That’s true.
PW: What do you see as the challenge – against this backdrop of the PLRA and a somewhat hostile federal judiciary, at least compared to previous years – of being a civil rights or prisoners’ rights attorney in Florida today?
RB: I think the biggest challenge is bringing systemic litigation that’s going to have a profound effect on improving prison and jail conditions quickly, knowing that within two years of any judgment or settlement they’re going to be moving to vacate.So you really need to make certain that the relief you’re seeking is doable within a limited period of time.And if not, from the beginning, even after the settlement is entered or approved or a judgment is entered, you have to begin defending the motion to vacate from the get-go.You’re almost beginning your next round of litigation immediately.
PW: And in part that’s because the government lawyers representing these agencies are more focused on getting out of the relief than they are about actually implementing the relief.
PW: Okay.So we’ve talked mostly about the county jails and the Department of Corrections in Florida, but the federal Bureau of Prisons maintains a fairly large number of facilities. In fact, I believe the prison complex in Coleman is the largest federal prison complex in the country.
PW: They also have a metropolitan detention center in Miami.
RB: Yeah, 15,000 federal prisoners in Florida.
PW: Okay, and I know that FJI has represented federal prisoners over the years as well.Do you have any big insights or takeaways?
RB: Medical care in the federal prison system is horrible.They are providing medical care with a lot of unlicensed doctors and physician assistants.
PW: And that’s because it’s the federal government, so state license requirements don’t apply.
PW: From a civil or a human rights perspective, is there any difference in dealing with the BOP as opposed to the Florida Department of Corrections?
RB: Yes.Bivens cases are pretty much non-existent.
PW: And the reason for that is there are no attorney fee provisions?
RB: No attorney fee provisions.The U.S. Attorney usually cuts the defendants loose.
PW: Cuts them loose in the sense that they....
RB: They won’t represent them.
PW: They won’t represent them or they won’t indemnify them if you win?
PW: Because there have also been cases where the government will provide a vigorous defense right up until verdict.A jury comes back with a verdict, finds the BOP defendants liable, then at that point the government says, well, we’re not representing them and you’re on your own as far as collecting damages.
RB: Right. So for the most part if you bring an action – I’ve had this happen twice recently – you’re better off bringing a Federal Tort Claims Act challenge for damages as opposed to a Bivens action against someone individually. And the U.S. Attorney or Assistant U.S. Attorney will tell you that flat out.Don’t amend your complaint to make it a Bivens suit because if you do, you’re not going to get a dime.
PW: And that’s in the context that you have had a remarkable degree of success in terms of obtaining money damages for federal prisoners who have been mistreated and are the victims of medical neglect by the Bureau of Prisons.
RB: Yeah, we’ve had a couple of cases that have been successful. The other thing on those is, you know, you do have issues dealing with sovereign immunity but you also have a cap of 25 percent on fees.
PW: If there was one thing that you could change about the FDOC, what would it be?
RB: I would decrease the amount of people going in.I would decrease the length of sentences and I would shrink their budget to....
PW: That’s three things. [laughter]
RB: Well, I guess it would be to decrease the numbers going in. If they were operating with the same amount of money then, hopefully, they would provide for adequate medical care and adequate staff.
PW: One thing I wanted to ask, too, is you’ve been doing this for 40 years now.You’ve been representing, I’d say, by definition, the poorest and most oppressed people in the state of Florida for 40 years. As we sit here in your office you’ve received many, many awards over the years for the cases you’ve won and representation you provided.Have you encountered much official hostility for your legal activities?
RB: From prisoners or from corrections officials?
PW: I’d say from the government in general, as you’re probably the biggest hero for Florida prisoners.
RB: Well, we’re both the biggest hero but also the biggest scapegoat.As you say, no good deed goes unpunished. We’re being sued right now for malpractice because in the Hoffer case we didn’t seek monetary damages for one inmate who thought we should have.
PW: And that’s in the context that no one was precluded from seeking monetary damages.
RB: Yeah, and he still could file today if he wanted to.It’s just that we didn’t in that particular case.And there was a reason for that.We wanted to get medical care to these guys.If we sued them for damages and qualified immunity kicked in and [the defendants] appealed to the Eleventh Circuit, we’d be getting these guys medical care five years from now.So we filed a complaint within less than a month and moved for class certification and a preliminary injunction.
PW: And you won both?
RB: We won both.Immediate hearing. We won both.We got guys treatment now.We didn’t get them money?No, we didn’t get them money but we didn’t ask for money.
PW: Right.But overall, over 40 years of doing litigation, has there ever been any hostility?
RB: No, there really hasn’t.I mean there have been a number of people in government that will say something to the press publicly, but behind our backs will say thank you very much for getting me the budget that I need.I’ve actually had sheriffs tell me that.
RB: [They say] without you suing us, we never would have gotten the money to build a new jail or adequately staff it.
PW: And I think in some respects that’s almost the flip side of prisoners’ rights litigation – at least indirectly, it’s expanded the size of the police state.
PW: You’ve been doing this for 40 years and looking back on things, do you have any regrets on anything you’ve done or didn’t do?
RB: Not at all.
PW: Is there anything you’d have done differently?
RB: Not at all.I kind of feel like, you know, Lou Gehrig.I don’t know if you know about his famous speech in Yankee Stadium after he was diagnosed with ALS.He got up and told the fans in Yankee Stadium, “don’t feel sorry for me.”He said, “I have lived a great life.I’ve done exactly what I wanted to do and I want to thank you for allowing me to do it.”
And I feel the exact same way.I have no regrets whatsoever. I went to law school to become a public interest lawyer.I’ve been a public interest lawyer for 40 years.Very few people who go to law school wanting to do this type of work actually end up doing it.And I can say I’ve done it, I’ve been successful doing it and I enjoyed it. I’ve had a good life.
PW: And you’ve been really good at it, too.
RB: Well thanks.
PW: I think as opposed to, “I want to be a civil rights lawyer and I’ve lost every case I’ve filed.”On that note, my closing question is going to be – which I think is such a really good note to end on – do you have any advice for people who are considering going to law school or for lawyers who are considering doing this type of work?
RB: Yeah, I do.And I give it to young lawyers all the time.If you’re going into the practice of law to make a lot of money, don’t be a lawyer.Go to business school.Be a business man and hire lawyers to work for you. On the other hand, if the reason you’re going to law school is to make a difference in society, be a public interest lawyer.Represent the unrepresented.It’s a doable profession.It’s very doable.And you just have to stick to it and not give up.
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