Thoroughly Fair

David Fathi, J.D. ‘88, wants social justice to reach the depths of U.S. prisons.
By Michael Taylor

Living in a bare, concrete, windowless cell 24 hours a day, for months and even years on end with no one to talk to, there is little to do except stare at the wall and think about how to survive, let alone get out of here—return to the normal prison population would be a godsend. In here, the prisoner is without friends. He has been erased from the company of others. The government has branded him the worst of the worst and he is spending his days in the land of the forgotten. The Hole. This is the end of the trail. If you are locked indefinitely into this utter aloneness, you might well go mad.

There is hope. A ray of light. A few select lawyers around the country have taken up the job—perhaps more a calling—of alleviating, modifying, somehow improving the lot of this prisoner. One of the best known of these lawyers is David Fathi, J.D. ’88. Fathi, 49, is the director of the American Civil Liberties Union’s National Prison Project. He spends his days conducting a multifaceted campaign to make life better for prisoners.

One part of Fathi’s campaign is to sue prison systems and get problems in front of a federal or state judge. Another is to pepper the public with op-ed piece after op-ed piece, using well-marshaled arguments to persuade a recalcitrant public and its politicians that perhaps there’s a different, more compassionate way of looking at prisoners: as men (and a few women) who are essentially forgotten by society once that cell door clangs shut behind them.

The problems of American prisons—overcrowding, health endangerment, gangs, solitary confinement—are nothing new. In an interview, Fathi pointed out that with 2.3 million men and women behind bars, the United States not only has the highest per capita rate of prison inmates in the world, but “we are five to ten times higher than the countries we think of as our peer nations.” This burgeoning of the prison population started “around 35 to 40 years ago. There was Nixon’s war on crime and Reagan’s war on drugs.” Sentences got stiffer, prisons got more crowded, and the problems just got bigger.

About 20 years ago, solitary confinement became a normal way to solve some of the problems. “We went from using solitary as short-term punishment for discrete misconduct to using it as long-term management strategy for tens of thousands of prisoners,” Fathi said. “It went from 10 to 20 days in the hole for being caught with drugs, to where we now have many people who have been in solitary for 10 years or more.”

Few of the prisons’ problems were examined by either the media or the public with the same enthusiasm devoted to, say, major league sports or the annual Oscar awards. Most of California’s prisons are tucked away—out of sight, out of mind—up and down the rural Central Valley, or in the boondocks, like the notorious Pelican Bay State Prison near Crescent City. There is one prison, however, that is smack in the middle of Idyllic California—on a jutting peninsula in a sun-kissed suburb of San Francisco. And San Quentin is where David Fathi first heard his calling.

“I got my start as a prisoners’ rights litigator when I walked into San Quentin,” he said during a lengthy interview recently. It was 1985 and Fathi had just arrived at Boalt Hall, on a Cal campus seething with anti-apartheid demonstrations. He and other law students helped defend protesting students who were being threatened with expulsion. Fathi went to San Quentin one day to visit Elmer “Geronimo” Pratt, the Black Panther investigated by the FBI’s Counterintelligence Program operation during the Panthers’ heyday. (Pratt was later released after his murder conviction was reversed. He died in 2011.)

“My first reaction when I walked into San Quentin was, this is a place where people really shouldn’t be,” Fathi said. “But as an unfortunate necessity, we have to keep some people separated from society. I just remember thinking, this is a very destructive environment. It’s impossible to think anyone would come out of here a better person, more functional than when he went in.”

What about those who say lock ‘em up and forget about ‘em?

“Most of these [inmates]—90 percent of them—are getting out someday and they will live next door to you and me,” he said. “We have a very rational, selfish interest in making sure they’re not further damaged by being incarcerated.” But Fathi, who was born in Los Angeles and grew up in Canada, has a deeper motivation. He comes by it naturally, he thinks, from his father, Asghar Fathi, a sociology professor at the University of Calgary.

“He taught me to look at things in maybe a less conventional, less knee-jerk kind of way; to ask, why are there so many people in prison? Why are so many black and brown? He taught me to think critically and not just accept things.” Fathi also figured out early on that “for people who are interested in social change, a law degree is a useful credential.” Hence his sojourn at Boalt Hall.

Fathi joined the ACLU’s National Prison Project in 1990, spent four years in Seattle honing his skills as an attorney by mounting legal challenges to jail and prison conditions, and returned to the ACLU. (In addition to a three-year stint directing a program for Human Rights Watch.) He was appointed director of the prison program in 2010. By then, Fathi was well known in the arena of prison litigation in the United States.

One of Fathi’s big cases for the prison program also exemplifies the need for people like him. Wisconsin’s ultraprison, then called the Supermax, is in the town of Boscobel. In a federal suit against the Wisconsin prison authorities, inmates argued that prisoners with mental illness were not being treated properly. This may have been an understatement. In a 2001 preliminary injunction, Barbara Crabb, the federal judge who oversaw the case, summarized the conditions experienced by some Supermax prisoners: They “spend all but four hours a week confined to a cell. The ‘boxcar’-style door on the cell is solid except for a shutter and a trapdoor that opens into the dead space of a vestibule through which a guard may transfer items to the inmate without interacting with him.… The temperature fluctuates wildly, reaching extremely high and low temperatures depending on the season.” Judge Crabb found that “for seriously mentally ill inmates, the conditions can be devastating. Lacking physical and social points of reference to ground them in reality, seriously mentally ill inmates run a high risk of breaking down and attempting suicide.” In 2002, the state settled the case and agreed to sweeping changes in the Supermax prison, including outdoor exercise and regular psychiatric screening. Those who were close to that case say Fathi was key to bringing about the changes.

Terry Kupers, an Oakland psychiatrist who appears as an expert witness in prison cases, has known Fathi since the Wisconsin case, and the experience made a lasting impression. He found that Fathi’s way of making progress in a case like that is not the hard-charging witness-evisceration of TV dramas, but to look for a way to solve what is an extremely complex legal and human problem. Part of Kupers’s job is to make recommendations about what should be done to resolve the prisoners’ demands.

“When you testify,” Kupers said, “you’re under attack. The other side is trying to impeach you, knock down your opinions. That’s fair; it’s OK in court.” Fathi makes the experience easier, he said, makes it smoother. On the stand, Kupers tries to give “a continuous narrative that makes sense. When the other side makes objections, [Fathi] gets them overruled. And he does it with warmth, with grace and with humor. It has a calming effect.” What Kupers learned from watching Fathi is that a lawsuit may often be “an imperfect remedy for large social problems. He taught me to think about what’s possible in a lawsuit, so I don’t make unreasonable demands. I make my recommendations very reasonable so we can win. What David says is, ‘Let’s see what’s possible.’”

The “what’s possible” part depends on how Fathi deals with the other side. In the Wisconsin case, the other side was represented by, among others, Francis Sullivan, an assistant attorney general in the Wisconsin Department of Justice, defending the state’s prison director. For his part, Sullivan admires Fathi’s style of lawyering, even if they were on opposite sides. Part of the prelude to a court appearance is depositions, a legal term for testimony taken outside of court by attorneys involved in the case. Fathi, according to Sullivan, “takes the most thorough depositions of anyone I’ve ever seen.” In the complex arena of the state’s prison policy, “when David deposed the director of mental health for the state’s prisons, he could have gone in any number of directions. What I saw him doing was really thorough investigating. How do you screen these [prisoners] to make sure they’re not mentally ill? Who designed the [set of questions asked of the prisoners]? Who administers it? How do you know you’re administering it the right way? David would show up with a stack of documents and go through them tirelessly. That went on for a couple of days.”

And how did the prison director stand up to all this? “I think he’d been thoroughly, but fairly, worked over. And that’s the important part of David—he’s thorough and he’s also fair.”

Fathi also is someone who realizes that although the law may be the fundamental weapon—sometimes the strongest weapon—in the arsenal of the prisoners’ rights attorney, the law alone is not going to get the problems solved. Fathi has “a very sophisticated understanding of the law and of the politics about people in prison,” yet he also “knows how to talk to state legislators and corrections officials and administrators, many of whom can be reform-minded,” said attorney Hope Metcalf, director of the Arthur Liman Public Interest Program at Yale Law School.

In his campaign to change the nation’s prison policies, Fathi has an unerring knack for getting his name in the paper. He’s the kind of expert who gets quoted again and again because reporters have learned that he speaks clearly on a dense and complicated subject and can do so again and again. At the end of March, Fathi was quoted on the front pages of The New York Times and The Washington Post in their separate articles about solitary confinement.

But “the tools of litigation don’t solve all the problems,” said John Boston, director of the Prisoners Rights Project of New York City’s Legal Aid Society. “So you have to invoke democracy—go beyond the courts, appeal to legislators and ordinary people. Write op-ed pieces, write letters to the editor, get quoted in The New York Times and The Washington Post.” Boston credits Fathi with being “about as persuasive an individual as we can have, at the top of the [prisoners’ rights litigation] pyramid. He’s a very good person to have in the spotlight.”

The spotlight in this particular field is, of course, like its victories, fleeting. Not many people go into this kind of law—it’s harder than ever to get a job these days, and if a big corporate law firm beckons, a young lawyer, freshly minted by his state bar, may well go and start learning the corporate ropes. Fathi went a different way.

“The corporate route never interested me in the least,” he said. “I went to law school to change the world.”

And did you?

“I’m still trying,” he said. “Still working on it.”

Reporter Michael Taylor is currently working on a book about two Northern California men who escaped from Auschwitz.
From the Summer 2012 North South issue of California.
Filed under: Law + Policy
Image source: Zaid Hamid
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