Custody Battle

Hundreds of inmates in state prisons need special protection from gang paybacks. When officials tried to mix them in with the general-prison population, they filed suit--and won.

Lewis wanted to change that. On June 6, 1995, he established a special review committee and ordered a complete reevaluation of all PS inmates to get the number down to 200.

In keeping with DOC's get-tough policies, the new standards were much stricter. An inmate had to prove that there was a "verified, potential attacker" out there in the system in order to remain in PS.

The review committee didn't think the nature of the inmate's crime was a factor in deciding if protection was necessary--child molesters couldn't stay in just because they were child molesters, for example. Nor did the committee consider the stigma attached to being in protective segregation. If the other inmates knew you'd been in PS, and thought you might be a molester or a snitch, that was your own problem.

The committee also didn't regard gang threats as a reason to stay in PS, unless the inmate could name a specific gang member who might hurt him. And the committee could opt to transfer that inmate out of PS and to a facility away from that gang member.

After the 1995 review, only 92 inmates made the cut to stay in protective segregation. Ninety-seven inmates left protective custody voluntarily. The other 274 were to be forced back on the yards, including 164 who were in PS for gang-related issues.

The lawsuits came in a flurry after that. More than 170 of the inmates being tossed out of PS filed actions against DOC, arguing that they were in real danger if they were forced back into the general-prison population.

That's when the case landed on the desk of Larry Hammond.

Hammond is best remembered for a case many people would like to forget: the John Knapp appeal. Knapp was convicted and sentenced to death for setting a fire which killed his two baby daughters in 1973. Hammond, after years of effort, proved Knapp was wrongly convicted and saved his life. (The story is recounted in full in the book Triple Jeopardy by Roger Parloff.) In his office at the downtown firm of Osborn Maledon, Hammond points to a photo of himself and Knapp on the courthouse steps, almost 14 years after Knapp's conviction. "That's the happiest day of my life," Hammond says. "That's the first day he [Knapp] left the courthouse without shackles on."

The dog pile of inmate lawsuits over DOC's new policy on protective custody had drawn the attention of both the Justice Department and U.S. District Court Magistrate Judge Barry Silverman. They both asked Hammond to represent the inmates in a class-action suit to settle the issue.

Hammond was leery at first, especially about taking another, possibly expensive, pro bono suit to his partners. "You always have to do a little marketing when you bring these things up before the [pro bono] committee," he says. "Every case is a small case; it won't take longer than the blink of an eyelash, and, of course, it never turns out that way."

But a federal judge and the Justice Department had asked; duty had called. And Hammond honestly thought the case would end fairly quickly.

"If you had told me this case would last as long as it did, that it would go to trial with 56 witnesses, including 36 inmates testifying, over 19 days, I never would have believed you," he says.

Hammond first enlisted Debbie Hill, another attorney at Osborn Maledon, to take on the case with him. In December 1995, U.S. District Court Judge Charles Hardy appointed Hammond, Hill and four other lawyers--Andrew Gordon, Don Peters, Alice Bendheim and Sam Whitten--to represent the inmates.

Andrew Gordon had already worked on one prison case--Hook v. Lewis, which was one of the cases where the former DOC director was held in contempt. Like Hammond, he was a little wary.

"It's hard work," he says of prison lawsuits. "You're representing a segment of society no one likes, it's politically hostile, the pay is rare if not nonexistent. But aside from that, it's great."

By way of contrast, Hill, a partner with Hammond at the firm and his co-counsel on many cases, jumped at the chance to work on the lawsuit. Pro bono work is one of the reasons Hill works at Osborn Maledon, she says.

Hill sometimes worked on the case until 4 a.m., answering the letters of inmates and talking to their families. One of the other lawyers, Don Peters, even worried she was taking on too much, trying to save the world.

Hill admits she got much more emotionally involved than many lawyers would. But given what she was learning, she says, "I don't see how you could do this case and be detached."

Peters, who mostly does commercial litigation, took the case because Hammond, an old friend, asked him. He admits that prisoners' rights aren't usually his first concern.

"Some guy who commits serial rapes is not going to be at the top of my list of people to help," he says. But the more he worked on the lawsuit, the more he realized that no one else was going to help people who were in real danger.

"Of course, these people have to be locked up, but there's a responsibility that goes along with that . . . prisons are doomed to be barbaric without court intervention because there's no one there to stand up for these prisoners," Peters says.

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