PLN's private prison public records litigation profiled
On Christmas Eve 2014, a high-profile lawsuit involving the brutal death of a Hawaii prisoner named Clifford Medina came to an official end: settlement out of court.
It was an unceremonious, if predictable, finale to a legal saga that began two years earlier, when a team of attorneys sued the state and its mainland contractor, Corrections Corporation of America, on behalf of Medina’s family.
At issue was a key question: Just who is ultimately responsible for the death of Medina, a 23-year-old who was strangled by his cellmate at the Saguaro Correctional Center, a CCA-run prison in Eloy, Arizona, that housed about 1,800 Hawaii inmates at the time?
In the lawsuit, Medina’s family laid the blame squarely on CCA — and, by extension, the state.
According to a 48-page complaint, Medina, diagnosed as moderately mentally retarded, was “particularly vulnerable to manipulation and violence by other inmates,” and CCA’s “pattern of greed-driven corner-cutting and short-staffing” failed to protect him.
In the end, after many rounds of legal wrangling, the parties agreed to settle the lawsuit out of court.
But, to this day, much of the details surrounding the settlement — the amount of damages, as well as corrective steps, if any, that CCA promised to take — remain shrouded in secrecy.
That’s because the settlement was signed with a caveat that its terms be kept confidential.
In many ways, the case illustrates what typically happens when Saguaro prisoners and their families sue the state and CCA: settled quietly, with the terms kept out of the public eye.
Kat Brady, coordinator of the Community Alliance on Prisons, says the practice flies in the face of “the principle of accountability and transparency.”
“A good government is really dependent on this principle,” Brady said. “It’s frustrating that our people are not only held thousands of miles from their ancestral land, but we send them over there and forget about them: ‘Oh, well, if something happens over there, that doesn’t count.'”
The Saguaro Loophole
As a rule, when the state settles a lawsuit against any of its departments and employees, it must go through a vetting process: The Legislature has to sign off on the use of taxpayer dollars to pay for damages.
In the 2016 legislative session, for instance, state lawmakers took up House Bill 2279, which spelled out the details of 23 settlements and judicial orders involving seven departments.
Eventually, the lawmakers agreed to set aside nearly $11 million, including $4 million for a medical malpractice lawsuit filed by a former Oahu Community Correctional Center inmate, who lost all of his fingers and both feet as a result of a jailhouse infection.
But the legislative scrutiny doesn’t extend to settlements involving Saguaro prisoners, thanks to a loophole: the indemnity clause in the state’s contract with CCA that requires the company to cover “all costs, attorney’s fees and other litigation expenses.”
With no taxpayer dollars at stake, the Hawaii Department of Public Safety doesn’t have to go before the Legislature to justify the settlements.
Still, that doesn’t mean that the department isn’t keeping track of the settlements involving CCA.
In fact, under the state’s contract, the department is supposed to get semi-annual updates from CCA about news lawsuits filed by Hawaii prisoners and their families
The department also required CCA to submit a five-year “history of the cases filed against it and/or its employees by inmates” as part of its bid for the state’s contract in 2011 and again this year.
But, in its bids, CCA made it clear that the information is not meant for public inspection.
“It is a unique compilation and is confidential and proprietary,” the company wrote. “Further, if vendors fear that reports of this nature will be released to public view, they would be reluctant to provide them via a procurement process, depriving the government of material that contributes to making an informed procurement decision in ‘frustration of a legitimate governmental function.'”
Toni Schwartz, public safety spokeswoman, declined Civil Beat’s request for the information and referred all questions about CCA’s settlements to the company.
“They would be responsible for releasing information on the settlements that they have agreed on,” Schwartz said.
For his part, CCA spokesman Jonathan Burns declined to provide the terms of the settlement with Medina’s family, noting that “both CCA and the plaintiffs’ counsel … worked together to achieve these confidential agreements on behalf of their clients.”
Successful Challenges Elsewhere
Honolulu attorney Myles Breiner says CCA’s insistence on confidentiality stems from the fact that it’s “a publicly traded corporation, and they don’t want to be embarrassed by the nature of the settlements and conditions and so on.”
Breiner, who has filed a number of lawsuits against CCA on behalf of Hawaii prisoners, says most attorneys, including himself, go along with the company — for one reason or another.
“In theory, yes, an attorney can say, ‘No, if we settle this, we want to make it public record,'” Breiner said. “But agreeing to confidentiality helps move the cases forward.”
But the Vermont-based Human Rights Defense Center, which publishes Prison Legal News, has been challenging CCA and other for-profit prison companies on the confidentiality provision in a number of courts across the country.
Paul Wright, executive director of the HRDC, which provided legal assistance to Medina’s family, says the argument is simple: The government can’t contract away its accountability and transparency obligations.
“The thing to remember is that every penny these private prison companies get is taxpayer money,” Wright said. “They have no private customers. Every penny is from taxpayers somewhere. And I think the public has the right to know how it’s costing us.”
The argument has been gaining traction in recent years.
In 2013, for instance, the HRDC sued CCA in a Texas court when its request for an array of records — including settlements, as well as judicial orders against the company — was denied.
The HRDC argued that, under the Texas Public Information Act, CCA is a “government body” that receives public funds and performs a function “traditionally provided by governmental bodies.”
The court ultimately sided with the HRDC, ordering CCA to release the requested records, as well as reimburse $25,000 in attorney fees.
Five years earlier, a Tennessee appeals court had ruled against CCA in more blunt terms.
“With all due respect to CCA, this court is at a loss as to how operating a state prison could be considered anything less than a governmental function,” the court wrote. “In short, we conclude, without difficulty, that … CCA is operating (a south Tennessee prison) as the functional equivalent of a state agency.”
In a 2013 lawsuit, a Vermont court cited the Tennessee ruling to deny CCA’s motion for dismissal, rejecting the company’s “literalistic, categorical approach” to define what constitutes “public agency.”
While allowing that CCA’s argument, on its face, had “some appeal,” the court went on to note:
“If accepted, however, it would have an anomalous and disturbing consequences: It would enable any public agency to outsource its governmental duties to a private entity and thereby entirely avoid, intentionally or unintentionally, the fundamental interests in transparency and accountability.”
Wright says the HRDC has considered bringing a similar case in Hawaii.
“Basically, every time we litigate this issue, we’ve won. So I don’t think this is undoable or unwinnable,” Wright said. “We just haven’t gotten around to doing it in Hawaii because we don’t have enough resources.”
Breiner says he’s all in favor of the idea.
“In a better world, I’d prefer that all these matters are transparent and disclosed. I think it would serve the public’s purpose,” Breiner said. “As a matter of public policy, it gives more confidence to our state government when the public is told, ‘This is what’s going on.'”