Is state’s defense of prison rape allegations another $100 million gamble?

Michigan Attorney General Bill Schuette is drawing heat for aggressively defending a lawsuit by young prison inmates who say they were sexually assaulted by adult prisoners. Some critics say the state should look to settle.

Second of two parts

Toni Bunton believes she knows how this story will end.

She knows, because she’s lived it.

For 13 years, the Michigan Attorney General’s office fought a lawsuit that alleged sexual assaults of women inmates in state prisons, including Bunton. The state fought the class-action lawsuit, which eventually involved about 500 prisoners, even after a guard was convicted of sexual assault and the state lost the first two of several trials involving some of those women, both with multi-million-dollar verdicts.

In 2009, the state finally agreed to settle for $100 million – four times what lawyers for the women offered to settle for years earlier.

Today, the state finds itself in a similar legal predicament.

In late 2013, before Michigan had even finished paying off that $100 million settlement, the Michigan Department of Corrections was sued again, this time by male inmates 17-years-old or younger, who say the state did little to protect them from sexual assaults in the adult prison system.

So far, to the dismay of critics, the state appears to be following the same legal game plan of foot-dragging used to disastrous effect in the earlier sex assault case ‒ even as state lawyers battle the same civil rights attorneys who successfully represented Bunton and other women prisoners. Despite stark, detailed testimony from several young inmates, the state Attorney General’s office has flatly denied all of the claims, filed appeal after appeal during the case and, according to lawyers for the inmates, rebuffed overtures to settle the litigation.

The outcome for the state in this case could be even worse. U.S. Rep. Bobby Scott of Virginia, who sponsored the Prison Rape Elimination Act in 2003 that first attempted to address prison sexual assaults, told U.S. News and World Report in 2013 that for states that are not addressing sexual assault aggressively, “damages could reach billions” if they ignore or slow-walk rape prevention policies recommended in PREA.

A puzzling strategy

Teenage prison inmates contend Michigan prison staff laughed at or ignored their complaints of being raped by older prisoners.

It’s a strategy that puzzles legal experts, and could prove costly to state taxpayers, because Michigan is an outlier in continuing to mandate that 17-year-olds be treated as adults for sentencing purposes, and because more inmates are seeking to join the lawsuit as it drags on.

“This case is going to grow by the minute,” Bunton said. “If they’re concerned about taxpayers, if they want to lower recidivism rates, we have to put a stop to this (lawsuit) now.”

The current suit claims teen offenders were sexually assaulted in Michigan prisons under a state policy that, until August 2013, allowed young inmates to be placed in cells with adult inmates. Prison officials, the suit contends, ignored or laughed off the inmates’ complaints, and even groped several of the teenagers themselves. The inmates’ lawyers accuse state prison officials of creating a culture of institutional indifference to the attacks.

All of the alleged incidents took place between 2010 and 2013, long after the state acknowledged in 2004 that juvenile offenders were “five times more likely” to be sexually assaulted in prison than adult prisoners.

Since the suit was filed in December 2013, lawyers representing the state’s Attorney General’s office have papered courtrooms from the Washtenaw Circuit Court to the Michigan Supreme Court with at least seven interlocutory (interim) appeals, seven requests to delay the case until motions are appealed, and motions so numerous that Washtenaw Circuit Judge Carol Kunhke set up a weekly Thursday afternoon hearing time for the case.

Lawyers for the state have been sanctioned three times by judges for delays. The Attorney General’s scorched-earth defense recently drew attention when the office issued subpoenas for a reporter’s notes following interviews with prisoners involved in the lawsuit and recordings from an interview plaintiffs attorney Deborah LaBelle conducted with Michigan Public Radio (AG Bill Schuette later apologized and withdrew the subpoenas).

Schuette’s office’s handling of the case drew the ire of Court of Appeals Judge Amy Ronayne Krause, who blasted a legal maneuver to transfer the case to the state’s Court of Claims, where it could not be heard by a jury. "This request for declaratory actions is really some sort of horrible, frivolous attempt to manufacture jurisdiction in the Court of Claims," Krause said. "I find your arguments to be really rather ... odious."

The voluminous legal filings is the same approach the state used in Neal v. Michigan Department of Corrections, the lawsuit involving the women prisoners who were sexually assaulted.

“It’s a tactic,” said Ron Reosti, one of the team of attorneys representing the women prisoners, but who is not involved in the current juvenile offender lawsuit. “There’s nothing conceptually complicated about this litigation. This was a matter of them objecting and filing these appeals and interlocutory appeals. They tried to exhaust the other side.”

It’s an especially puzzling tactic to try again, considering that the attorneys for the juvenile offenders are largely the same ones who successfully slogged through 13 years of court hearings in the women prisoner lawsuit.

The state appears to be addressing the case the same way it addresses run-of-the-mill legal challenges by inmates, the vast majority of which are filed by the prisoners themselves without attorneys, said University of Michigan Law Professor Margo Schlanger, who helped develop policy recommendations for the federal Prison Rape Elimination Act. In those cases, the state’s maneuvers can be effective, because prisoners often can’t effectively address appeal after appeal on technical issues.

A class-action lawsuit, brought by the same team of attorneys who won a $100 million settlement in a similar case, can’t be handled like a pro se lawsuit of a prisoner complaining about cafeteria food, Schlanger said.

“It’s one thing for Michigan to make this mistake once,” Schlanger said. “Maybe they think (the women prisoner sex assault case) was a once-in-a-lifetime case and now this is back to normal. But there’s normal and not normal.”

Roesti said the Attorney General’s office’s aggressive tactics in the earlier case were obvious and, in retrospect, a disservice to the state and its taxpayers.

“There were many occasions (in the women’s prisoner case) when they could have gone to trial much sooner,” Reosti said. “They delayed it as much as they could. There’s no doubt that was a tactical choice by the state.”

It may have cost the state $75 million.

Pay me now or pay me more later

In the earlier cases involving the women inmates, a federal court awarded 32 women prisoners a total of $2.8 million. After that case concluded in 2000, LaBelle says she offered to settle the virtually identical state case involving about 250 women prisoners for $25 million.

In 2007, when the class of women inmates had grown to 381, LaBelle said she made another offer to settle, this time for $47 million.

The state chose not to settle. Two years later, the state agreed to pay $100 million to more than 500 prisoners and their attorneys.

Of course, in the current lawsuit the state pays nothing if it wins against the young inmates in court, and those inmates have yet to prove their claims under a difficult legal standard.

But if the state loses, the longer the case goes on the larger the payout is likely to be. That’s partly because the number of people in the class grows as word spreads. Attorney fees can also increase as they spend more time and effort in court, while interest piles up on any damage awards. That’s what happened in the women prisoner case, Reosti said.

“It cost the state to continue to have the problem (of prison sexual assault) fester, and removed the possibility of negotiating a settlement,” Reosti said. “We would have settled the case at an earlier stage for a lot less money.”

The current case involving teen offenders began with seven prisoners, and now has more than 200 current or former young prisoners.

Former Attorney General Mike Cox, who was in office for the final seven years of the women prisoner's lawsuit, did not respond to a request by Bridge Magazine for comment.

Neither Bill Schuette, his Attorney General’s office nor the Department of Corrections will answer specific questions about the current case.

MDOC Spokesperson Chris Gautz sent a statement to Bridge saying that “we are confident the assertions made in the lawsuit are false and we are vigorously defending the department.”

AG Spokesperson Andrea Bitely declined to tell Bridge how many AG attorneys are assigned to the teenage inmate lawsuit or how many hours have been devoted to the case so far.

But documents indicate the AG’s office has already paid $311,000 for a firm to locate and redact portions of more than 400,000 pages of MDOC documents relevant to the suit, with 31 attorneys and 17 other staffers working to complete the MDOC contract.

“The Michigan Attorney General’s office has a duty to represent the State of Michigan and the taxpayers in all cases against the State,” Bitely told Bridge in a statement, “and John Doe v. MDOC (the teenage offender lawsuit) is no different.”

In one way, though, John Doe V. MDOC is very different from the thousands filed by prisoners annually: the potential it holds to punch a $100 million hole in the state budget.

LaBelle, who now is leading the case for the teenage offenders, said the MDOC and the attorney general’s office have declined to discuss a settlement.

The state’s decision to dig in its feet doesn’t surprise Bill Goodman, a civil attorney in Detroit who has decades of experience in lawsuits against government entities.

“There is this triggered response that the state Attorney General’s office has for litigation like this, that this is the enemy and we’re at war,” Goodman said. “It’s far too much of a programmed response … that can cost the state a lot of money.”

Schlanger, the U-M professor, sees the same counterproductive dynamic at work.

Lawyers for the state “are used to pricing out cases as not worth very much, because they’re used to facing prisoners who can’t prove their claims, and if they prove their claims, they can’t prove damages because they can’t show lost wages,” said Schlanger. “But when a prison is faced with a case where there is a lawyer who knows how to prove damages, and you’ve got these kind of damages (civil rights violations) that don’t turn on wages and medical care, that’s unusual.

“They should understand from a risk management standpoint, they should be handling it different from normal cases.”

Good lawyering or good politics?

There may be more than legal strategy involved. Joe DiSano, a Democratic political consultant, speculates that there may be no political upside for Schuette, who is widely expected to run for governor in 2018, to appear “soft on crime” by offering juvenile offenders millions of dollars in a court settlement.

Despite growing bipartisan consensus both in Michigan and nationally that the U.S. incarcerates too many people for too long, and that prison itself is not the best setting for young offenders, Schuette helped kill sentencing reform bills last year that would have decreased the number of inmates in state prisons.

Schuette “is an old-fashioned, law-and-order candidate who understands the strength of being seen that way,” DiSano said.

The state’s approach isn’t playing well even among some conservatives.

Detroit News columnist Nolan Finley recently called for the state to settle the case, saying the AG’s office and the MDOC were either being “stubborn or stupid,” and that the state was “again rolling the dice in a very expensive game.”

“When (Schuette) has lost Nolan Finley,” DiSano said, “there’s no one left to lose.”

‘The nightmares never go away’

Bunton, one of the plaintiffs in the women prisoner case, is out of prison now. But she said the current case brings back memories of her own court struggles.

“People say prisoners are liars or they deserve what they get,” Bunton said.

“They see them just as prisoners, but they’re human beings. For men, it takes an incredible amount of courage to come forward and talk about the horrendous things that happened to them. It’s not just what is going on in prison; 98 percent of them are coming home to a community near you, and you want them to come out as redeemable human beings.

“If (the state) settled this case now and make the appropriate changes, they will walk away spending a few dollars, but walk away doing the right thing,” Bunton said. “If they let this case go on, there’s going to continue to be more abuse, more retaliation and all the other trauma that goes on when a lawsuit like this happens.

“We can’t let our prisons be like this,” Bunton said. “The nightmares never go away.”