MoFo Takes Role in New York Deal on Solitary Confinement

, The Am Law Daily

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prison-entrance

Under a settlement negotiated with lawyers from the New York Civil Liberties Union and Morrison & Foerster, the New York State Corrections Department agreed this week to change the way it uses solitary confinement to punish prisoners.

The deal, which was approved Wednesday by a federal district court judge in Manhattan, stays litigation initiated by a New York prisoner nearly three years ago—though the case can be revived if the plaintiffs persuade the court that the state's reform efforts over the next two years are inadequate.

Among the changes expected to be adopted: a ban on the placement of particularly vulnerable prisoners—a category covering pregnant women, offenders under age 18 and mentally ill inmates—in solitary confinement, and the creation of clear guidelines for what types of violations can result in prisoners being dispatched to so-called special housing units. As part of the agreement, the state has agreed to retain two corrections experts to help develop additional reforms.

Jennifer Brown, who serves as MoFo's senior pro bono counsel and worked on the case, says the litigation and resulting settlement involve the kind of fundamental issues the firm is drawn to in such matters.

"We know prisoners are in prison because they broke the rules of society," Brown says. "But it’s really a measure of our justice system that people who broke the rules are still treated according to the rules. That’s a real motivator for our firm in taking on prison rights cases, large and small."

The case dates to April 2011, when lead plaintiff LeRoy Peoples, a convicted rapist, filed a handwritten complaint claiming his constitutional rights had been violated when he was placed in solitary confinement for 780 consecutive days for allegedly filing false legal documents.

Traditionally, New York state corrections officers have had the power to punish prisoners for violent and nonviolent infractions by placing them in either complete isolation, where they receive food through a slot in the door and are only allowed outside for an hour each day in a walled-in pen, or in a cell the size of a parking spot with one other inmate.

U.S. District Judge Shira Scheindlin found merit in Peoples' claim and refused the defendants' request to dismiss it. In August 2012 the NYCLU joined the case as peoples' counsel and filed an amended complaint seeking class action status on behalf of all New York prisoners.

A Morrison & Foerster team led by MoFo partner David Fioccola joined the suit in November 2012. Alexander Reinert, a professor at Yeshiva University Benjamin N. Cardozo School of Law, has also served as cocounsel.

The NYCLU had investigated New York's solitary confinement system for a year before taking on Peoples' case, finding that roughly 3,800 prisoners were locked down daily for between 22 and 24 hours, for 150 days on average. In an October 2012 report, "Boxed In," the organization detailed New York's solitary confinement practices and presented research showing that extended periods of isolation lead to serious mental health problems and increased recidivism rates among prisoners who are released.

"It had always been our contemplation to bring litigation challenging the constitutionality" of New York's solitary confinement practices, says Taylor Pendergrass, the senior staff attorney at NYCLU who served as lead attorney on the case. Peoples' suit, which the organization combined with two other pro se complaints, became the vehicle for that challenge.

"It took an incredible degree of courage to step forward," Pendergrass says of the plaintiffs. "All three filed them while still in solitary confinement and brought the claims forward with the [possible] threat of retaliation." (The three plaintiffs are still serving out sentences in New York prison facilities.)

Last May, two months after Pendergrass and MoFo filed a third amended complaint, the state expressed an interest in discussing a settlement and the court temporarily halted the litigation.

Fioccola, who frequently works on class actions as part of his regular commercial litigation practice, says he hopes the reforms will have an impact beyond New York state. "If New York is doing this, other states are going to pay attention to it," he says. "Hopefully New York will be the model. Hopefully there will be a string of reforms."

The other MoFo attorneys who worked on the case include of counsel Kayvan Sadeghi and associates Daniel Matza-Brown, Leda Moloff and Adam Hunt. Fioccola estimates the firm has spent close to 1,000 hours on the assignment so far and will continue to be involved in an active way now that reforms are being put in place.

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