CCA ordered to pay $349,019 in attorney fees

jsowell@idahostatesman.comFebruary 22, 2014 

Failure of the Corrections Corporation of America to abide by a $29 million state contract and an agreement to increase staffing and fix other problems at the Idaho Correctional Center has led a federal judge to award extraordinary fees to the attorneys representing a group of inmates who filed suit against the private prison company.

U.S. District Judge David Carter found that attorneys Stephen Pevar and Richard Eppink uncovered "substantial evidence" of noncompliance with the settlement agreement and longstanding knowledge of the noncompliance by high-ranking CCA officials.

The attorneys also obtained a finding of contempt against CCA for its inaction, obtained a court order mandating compliance and appointment of an independent monitor. They also got a judge to set a fine for every hour a prison security post was vacant over 12 hours per month.

The lawsuit was brought in 2010 by the American Civil Liberties Union and prisoners who claimed the Kuna prison, with a capacity of 2,080 men, was so violent prisoners called it "Gladiator School." The settlement agreement was signed the following year.

CCA, which has operated the prison for 10 years, publicly admitted that company employees falsely billed the state for 4,800 hours of security staffing that wasn't covered over a seven-month period in 2012. However, the inmates' attorneys provided evidence, Carter said, that the 4,800 hours seriously underestimated the actual number of bogus hours billed and that the security posts were frequently vacant before the seven-month period that was scrutinized.

Carter noted that Warden Timothy Wengler acknowledged the problem in correspondence between the CCA and the Idaho Department of Correction in late 2010 and early 2011, yet the problem persisted right up until before a contempt hearing last August.

"The court found that CCA had ample opportunity to ensure compliance because it was aware of the problem for months," Carter wrote in his 27-page decision issued earlier this week. "The court further found that the 4,800 vacant hours constituted a significant underestimate, and that posts had been empty even in the weeks before the contempt hearings."

Under the Prison Litigation Reform Act, attorneys representing prisoners in civil rights actions in Idaho are limited to a rate of $213 an hour, with a limit of $65 for legal assistants.

Pevar provided evidence that an attorney with his experience and expertise would bill $435 an hour, without the cap. Eppink showed that he had billed an hourly rate of $275 an hour in a case without the limit.

Under a law that gives a judge discretion to increase lawyers' fees to reasonably compensate lawyers for "extraordinary performance yielding extraordinary results," Carter allowed Pevar to double his fees and for Eppink to raise his by a third.

Pevar was awarded $249,082 for 585 hours of work spent on the case, while Eppink received $72,022 for 260 hours.

CCA argued that the attorneys were not entitled to the additional fees because the plaintiffs did not prove anything beyond what the prison company had admitted prior to the filing of the contempt complaint. Carter rejected that argument.

“We are grateful that Judge Carter has approved appropriate fees in this case and we remain committed to ensuring that CCA complies with the 2011 agreement,” said Pevar, senior attorney with the ACLU Racial Justice Program. “None of this would have been necessary had CCA kept its word.”

On Tuesday, Gov. Butch Otter met with Attorney General Lawrence Wasden and ordered the Idaho State Police to investigated CCA's operation of the prison. Earlier, Otter had resisted opening an operation.

For the past year, state officials said an investigation was being conducted. However, after The Associated Press asked for investigation documents, the state police admitted no investigation had been undertaken.

In January, Otter ordered the Idaho Correction Department to take over operation of the prison when CCA's contract expires at the end of June.

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