Holland & Knight



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Holland & Knight scored a victory in its effort to improve prisoner rights in Florida's state prison system in January. A federal district court judge ruled that the Department of Correction's practice of using chemical agents on two mentally ill inmates was unconstitutional. The suit is one of several challenges that the firm has brought to improve prison conditions in Florida and surrounding states.

The Am Law Pro Bono 100In 2004 partners George Schulz, Jr., in Jacksonville and Stephen Hanlon in Washington, D.C., and former associate Leon Fresco in Miami filed suit against the Florida corrections department, hoping to strike down its practice of using pepper spray, tear gas, and other chemical agents on disorderly inmates with mental illnesses, such as schizophrenia and bipolar disorder. Public interest organizations Florida Justice Institute and Florida Institutional Legal Services, which previously collaborated with Holland & Knight on other issues, also worked on the suit.

Brought on behalf of six mentally ill inmates who had been sprayed with chemical agents at Florida State Prison, the lawsuit sought injunctive relief to prevent the prison from gassing them further. The plaintiffs' counsel also hope to see the practice halted throughout Florida's state prisons, arguing that gassing is cruel and unusual punishment because mentally ill inmates can't control their symptoms or obey guards' orders to stop. That makes the practice unconstitutional as well as ineffective, they say.

"It's not only the legal thing to do, it's the humane thing to do," Schulz says. Inmates describe being gassed as often as twice a day and of suffering burns from the chemicals, he says.

The plaintiffs also question the prison system's current procedure for handling disruptive inmates. Officers must first tell an inmate to stop the disruptive behavior, and then—before resorting to the use of force or chemical agents—must ask the prison's medical staff whether the inmate has medical conditions that would preclude such measures. But no such procedure exists for checking the inmate's mental health, which means that guards must distinguish between willful disobedience and mental illness symptoms. "A mental health professional should make that distinction," just as is done in federal prisons, Schulz says.

During four years of resolving the plaintiffs' individual claims, two inmates won injunctive relief; the claims of the others were dismissed for lack of evidence.

The constitutional issues were tried in September 2008 before U.S. district court judge Timothy Corrigan in Jacksonville. Prison system lawyers maintained that the practice of using chemical agents is effective for some inmates, and that each incident should be looked at on a case-by-case basis.

Corrigan ruled that the practice violated the constitutional prohibition against cruel and unusual punishment when used against the two remaining plaintiffs. He found that—although the use of chemical agents against prisoners is not inherently unconstitutional—the practice "becomes brutality" when used against mentally ill inmates who cannot control their actions. The department has said it will appeal the order to the U.S. Court of Appeals for the Eleventh Circuit this summer.

—Vivian Yee | July 1, 2009

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