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Delays, Fee Concerns Threaten Illinois Inmates' Settlement

30 December 2016
The National Law Journal

When more than 11,000 mentally ill inmates reached a class action settlement with the Illinois Department of Corrections in 2015, the deal was celebrated for ending a practice of segregating prisoners and forcing the crash-strapped state's corrections system to build its first psychiatric hospital.

Less than a year later, the agreement is showing signs of breaking down.

More than 250 inmates have written letters to the federal Illinois judge handling the case, many complaining that they remain in segregation or can't get the help they need without a functioning psychiatric hospital. According to one of the lead lawyers behind the case, the complaints raise the possibility that the settlement may be scrapped in favor of a push for trial.

Other inmates are writing about something else, sparked by a recent fee award to their legal team: Money.

"I deserve 5 to $10,000 for the hell I went through," writes inmate Bob Donley. "How do I get paid money [too]?" asks Nickolas Garcia. "Why shall the attorneys receive a equal amount or more than us plaintiffs who has went through hell in these madhouses?" writes Henry Muounson, who is scheduled for release in 2041 from a 1986 murder conviction. He asked the judge for $2,000.

There's just one problem: There's no money to go around. The case never sought monetary damages on behalf of the inmates. The plaintiffs—represented by the nonprofit Uptown People's Law Center and by pro bono counsel at Mayer Brown and Dentons—demanded and were promised changes to the way the inmates were treated.

The letters, some of which do not object to the attorneys' compensation, were spurred by a required notice sent to the inmates earlier this month informing them that their lawyers would be receiving up to $6 million in fees.

The letters began pouring in on Dec. 8, but they have slowed more recently. Ninety-eight letters were added to the court docket on Dec. 12. Another 14 were added on Thursday.

BUDGET BOTTLENECK

Alan Mills, executive director of the Uptown People's Law Center and a lead attorney for the class, said the letters are not just the result of confusion. They are an indication that the state has not lived up to its agreement.

"That's the bigger issue," Mills said. "The department clearly isn't doing everything they should be doing under the agreement."

The settlement called for the state to build a new psychiatric hospital in Joliet, Illinois. Mills said that the hospital has been constructed, but staff have yet to be hired. The building sits empty, he said. The state also agreed to hire 300 mental health counselors and to remove from solitary confinement mentally ill inmates without a history of violent offenses.

Mills said the corrections department has had difficulty hiring the staff required by the settlement because of the state's budget crisis. The Illinois Legislature hasn't passed a budget in more than 18 months. A stopgap budget will expire at the end of the year and negotiations for a new one have stalled, extending the crisis. No state has gone a full year without a budget since before the Great Depression, according to the National Conference of State Legislatures.

The settlement allows the plaintiffs to abandon the settlement in favor of a trial if the state fails to comply with the deal, Mills said. The lack of a budget means they are unable to hire the necessary staff, he said, pushing him to explore a trial.

"Our hope is that the new legislature will pass a budget in the New Year," Mills said. "But frankly, if they don't, I'm not sure what other choice we have. We have not made a decision yet on [going to trial], at all. But we're approaching a year into this thing where many things have not been done because of the lack of a budget."

Nicole Wilson, an Illinois Department of Corrections spokeswoman, said the agency has made "significant progress towards compliance" with the settlement, including ongoing training for staff members on how to deal with mentally ill offenders and a plan to provide inpatient care at mental health facility in Elgin, Illinois next year. The department is also working to hire administrators that would allow inmates to occupy the Joliet facility, she said.

"The IDOC is committed to enhancing the delivery of services for offenders on the mental health caseload," Wilson said.

Meanwhile, the prisoners' complaints have caused extra work for U.S. District Judge Michael Mihm, who has to respond to inmates' pleas for help. Burl Mason Jr., for example, wrote that his mother had recently gone into a coma and he was considering suicide. Meanwhile, he was being denied access to a mental health counselor.

"This Court is not in a position where it can assess the mental health needs of every inmate currently incarcerated," Mihm wrote in an order denying Mason's emergency motion. He also sent the complaint to the Department of Corrections and ordered the class counsel to investigate the claim.

Mihm has entered more than a dozen other orders addressing complaints that the department is withholding mental health treatment from prisoners. He has not yet addressed the inmates who are seeking a cut of their attorneys' fees.

"I understand the inmates' frustration," said Mayer Brown's pro bono adviser Marc Kadish, who represents the name plaintiff in the lawsuit. "Even though it is a declaratory-action lawsuit, many of them are expecting that there will be money for them at the end. So they are frustrated when they see the lawyers are getting money but they don't see any changes."

Reprinted with permission from the December 30, 2016 edition of The National Law Journal © 2016 ALM Properties, Inc. All rights reserved. Further duplication without permission is prohibited.

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