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

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

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.”

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Thu, 04/16/2015 - 9:42am
This is believable, but intolerable. Why don't we have an email address for Schuette, and pound him with email about this policy affecting any future opportunities to run for office?
Thu, 04/16/2015 - 9:48am
miag@michigan.govBut I very much doubt Schuette gives a hoot what the public says or wants. He lives in 'Bill's World' where everything is upside down.
Jamie Lowell
Thu, 04/16/2015 - 9:45am
"Puzzling strategy" + Michigan = Bill Schuette the worst attorney general in Michigan's history
Thu, 04/16/2015 - 10:53am
The article is totally one-sided and biased. Better research by the writers and minimal, but objective, analysis from attorneys not part of the plaintiff team would have provided insight as to why this case differs greatly from the earlier one involving the female inmates. To begin, the earlier suit involved sex between inmates and guards. Even though usually consensual, the law is clear that the vulnerable situation of the inmates eliminates any consent defense. So, once it was established that sex occurred (the female inmates often kept dna material to support their claims), it was just matter of damages. After a couple of Washtenaw county juries awarded multimillion dollar verdicts in the most egregious cases, the state was left with no choice but to settle. With these violent juvenile felons on the other hand, the assaults are almost exclusively between inmates. In most instances, the young felons failed to report the assaults or agree to testify against their assailants. Even when questioned now, most cannot provide basic details to support their claims. Understandably, the plaintiff lawyers want another multimillion dollar settlement and appear to be using this media to secure that end. Attorney General Schuette has a duty to defend the State against frivolous claims and we (the taxpayers) would be disappointed, even critical, if he simply issued a check any time an inmate alleged they were the victim of a prison assault. No jail in the country can protect every inmate against every assault every time. If Michigan where outside the norm, I would think the US Justice Department would be in there enforcing the federal law you mention. And if you you would have bothered to check the record of AG Schuette's office, you would have found that most cases brought by inmates, who naturally lack credibility, are dismissed by the courts. You are far too quick to agree with the plaintiff lawyers and give away tax dollars that could better be spent hiring more guards and installing security cameras to help prevent these assaults from occurring in the first place. These young felons are completely aware of what the female prisoners won in their case and are jumping on the class-action bandwagon hoping to get their share of this litigation lottery. Lets see a little more perspective in future installments of this series. I hate to see a reputable media outlet simply acting as shills for the plaintiff attorneys who appear to be feeding the reporters this story. And how about identifying the inmates so the victims of their heinous crimes can secure their rightful part of any settlement?
david zeman
Thu, 04/16/2015 - 12:44pm
Bob, Thank you for weighing in on this package of stories, and I appreciate your strong support for the Attorney General's tactics in the case. I would say in defense of these stories, however, that Bridge has in no way simply accepted the arguments of plaintiffs lawyers in this class action, as a full reading of this week's articles will show. We started by seeking interviews with lawyers on both sides of the case (plaintiffs would talk, state would not) and branched out to various experts on the issue of prison rape and litigation. We've not only reviewed the full deposition testimony of the seven original plaintiffs, but also noted time and again the seriousness of the plaintiffs' crimes and how their backgrounds pose challenges to their credibility. There has been much less to bite off in terms of the state's defense to individual inmates' accounts, since it has basically just been, "None of these incidents happened." Criticism of the state's approach to this case, particularly in light of the earlier women's case, has not just come from plaintiffs lawyers. Outside experts and, as this story makes clear, judges who have ruled in this litigation have also castigated the state's tactics. It's also not true that all the woman's claims were undisputed and that all the young inmate's claims are he said/he said. Only some of the women in the earlier class action benefited from criminal judgments of sexual assault by guards; others were in essentially the same position as these teenage male inmates, with allegations of rape or assault in an environment where their credibility was open to being challenged. LIkewise, the current case is not entirely made up of prisoner-on-prisoner crime, but includes dozens of accusations of guards themselves sexually assaulting these inmates and/or showing indifference to their complaints of assault or their likelihood of being targeted by older predators. The fact that so much of their testimony, and it is detailed testimony, echoes the testimony of other young inmates, even though these young men appeared not to know each other and were in different facilities at different times, unquestionably presents a challenge to the state's nothing-happened defense. That is not to say that these plaintiffs will prevail, nor that they necessarily should. That's what the court system is supposed to figure out. But we at Bridge do believe the state's handling of this issue, and this lawsuit, presents important public policy issues that our readers and state policymakers will want to explore and consider. Thanks for reading. David Zeman Bridge Editor
Thu, 04/16/2015 - 6:29pm
Shuette has his own agenda and is trying to make a name for himself! Wouldn't this guy make a great governor? He would probably be about as good as Obama and his gang! Schuette is also enforcing a law that was made to take on convicted drug dealers by taking their assets, houses they own and money they have in the bank, which was a great law! But he doesn't go after the assets they have hidden in their families names! He is also using it to take the savings of anyone who goes to prison making them go on the welfare line when they get out making it impossible to live. He takes their retirement away, unless they retired from the railroad, school systems, or the union! He only goes after the ones who have the least money to save what little they have! Got to be politically correct don't you know! Waste a dollar to get a nickel!
Fri, 04/17/2015 - 10:07am
Editor, I appreciated reading your article when it hit our newsfeed. This is a great topic and one that we train on and address often. Both the sponsor of the PREA Act (US Rep Bobby Scott, VA) and the vast amount of media covering these topics have completely failed to address the differences between the Act and the DOJ PREA standards. The Act is law emphasizing the duty to protect for those incarcerated. While the Act really created no new cause of action, it certainly has placed attention on what is happening in prisons. All corrections and detention officials have this responsibility and should do whatever they can to protect inmates against sexual abuse and assault. The DOJ standards are one way of meeting compliance to the Act, but they ARE NOT required for states and for jails. They are voluntary (read the summary in the DOJ Standards and the Act itself). This is important and often overlooked, many outside folks loop them together under a single flag of PREA incorrectly. The standards, according to the DOJ, are not "safe harbors" for meeting conditions of confinement, do not protect against liability, do not create liberty interests for inmates and "do not meet every avenue" for combating sexual abuse in facilities. In other words, a state or jail can be compliant to the Act but still not have to adopt and follow every practice and standard recommended by the DOJ. Because an agency may make the decision not to adopt every standard does not mean they are doing something illegal nor does it mean they are ignoring the PREA Act. I have read many articles suggesting noncompliance shows administrators must then "encourage rape" in their facilities. This is simply false and ridiculous. There are some DOJ PREA standards that many facilities choose not to abide by because they could easily compromise safety, security, increase liability, eliminate the benefits of a grievance system afforded under the Prisoner Litigation Reform Act, go against state statutes and codes, are extremely costly and would shift a tremendous financial burden to taxpayers to implement, and/or may produce results that are contrary to what the Act requires. These concerns have been brought up to the DOJ and there have been no answers other than be obedient. Such is the case with the issue over 17 year olds judicated as adults. Michigan and many others have state laws that are contrary to the requirements set forth in the DOJ PREA standards. Administrators should be aware of who is prone to sexual abuse and assaults and utilize all their resources, classification systems, surveillance and monitoring to try to reduce and prevent such events from occurring. Not all juveniles behave like juveniles. That is why they were certified as adults and institutionalized. Ask any jail administrator and they will tell you some of the most violent inmates they have are juveniles. Putting juveniles with juveniles because of age and ignoring judication and offense is simply a poor decision. The liability will then shift to those facilities to handle murderers housed with tire slashers. Many juvenile facilities are unequipped, underfunded and ill-prepared to handle those situations. With the many questions on the use of restrictive housing and segregation, this issue becomes further complicated. Again, I would like to hear solutions that meet safety, security, and funding by those that are advocating this approach. The issue here is not compliance to the DOJ PREA standards. The issue is a duty to protect issue (how the MDOC has tried to reduce, detect, prevent and respond to sexual abuse and assaults in their facilities). Please do not loop the voluntary DOJ PREA standards in with the Act or suggest noncompliance to the DOJ PREA standards equals indifference to the rights of inmates. There are many correctional institutions that have come up with their own solutions, policies and procedures not relying on federal government to do so, and have proven very successful in protecting inmates from sexual abuse and assaults.
Mon, 04/20/2015 - 8:47am
keep them in there ONE Cell..lets them out ONLY one at a time
John S.
Sun, 04/19/2015 - 2:39pm
Prospect theory: When confronted with near certain losses, people take on even greater risks. It's behavior that can be observed in any of the state's casinos. What makes this situation worse is that it's taxpayer's money that's being thrown away. It's a lot easier to risk other people's money than your own.
Mon, 04/20/2015 - 8:44am
Hello it is my understanding that the prison are in private "HANDS" and so no longer a state matter? Any one kowns better?
Mon, 04/20/2015 - 8:49am
ARE THE Prisons not in PRIVATE HANDS ?
david zeman
Tue, 04/21/2015 - 11:03am
Sam, Prison operations remain the responsibility of the state. I think what you may been thinking of are the prison system's food operations, which were bid out with...complicated results.