An Interview with Randall Berg, Executive Director of the Florida Justice Institute

by Todd Matthews

With approximately 100,000 people in Florida’s prisons, and another 66,000 in its county jails, Florida has joined the ranks of Texas and California as a state that has taken the practice of mass incarceration to new and frightening heights.

One person on the front lines of Florida’s prisoners’ rights movement is attorney Randall Berg. As executive director of the Florida Justice Institute (FJI) – a non-profit, public interest law firm with a small team of attorneys and support staff –- Berg has tackled a variety of issues impacting prisoners. Most notably, FJI helped start the first Interest on Lawyers’ Trust Account (IOLTA), which has leveraged more than $3 billion nationally toward legal services to the poor.

Even after 30 years at FJI, Berg says a “bleak” environment for prisoners in Florida persists. “Nothing has changed,” he says. “The biggest concern [in 1978] was how few people cared about prison reform and the plight of prisoners. If anything, there are even fewer persons today who are interested in prison reform. The lack of concern coupled with a dramatic conservative shift in the federal judiciary and the Prison Litigation Reform Act are making prisoners’ rights attorneys an endangered species.”

Berg is director of the Volunteer Lawyers’ Project at the U.S. District Court, and adjunct professor of law at the University of Miami Law School. He also served on Florida Governor Lawton Chiles’ Transition Criminal Justice Task Force, was past president of the ACLU of Florida, and was chairman of the Corrections Committee of the Florida Bar.
Prison Legal News recently spoke with Berg about FJI and its work on behalf of Florida’s prisoners.

Early in your career, you served as a Lieutenant Junior Grade in the United States Navy before enrolling at George Mason University School of Law, earning a law degree, and moving to Florida to start the Florida Justice Institute (FJI). What was the motivation for shifting from the Navy to a career in law? And why did you become interested in prisoners’ rights?

RB: I was not interested in pursuing a career as a Naval officer, and departed as soon as possible. I had earlier decided to become a public interest lawyer as a sophomore at the University of North Carolina at Chapel Hill because civil rights attorneys were “making a difference.” While in law school, I clerked two summers for a talented civil rights’ and criminal defense attorney in my home town of Jacksonville, Bill Sheppard, who exposed me to prisoners’ rights. Bill had successfully litigated a seminal jail conditions lawsuit against the Duval County Jail in Jacksonville (Miller v. Carson), and he engaged me in other prison and jail cases. Bill convinced me I could pursue my dream of being a civil rights attorney as well as the importance of representing prisoners because they were the least able in society to fight for themselves.

Describe FJI. How many attorneys were at the firm when it began? How many today? What types of cases does the firm handle?

RB: The Florida Justice Institute is a small, non-profit, public interest law firm founded by leaders of the private bar who were interested in leveraging money and pro bono attorneys to represent the poor, and prisoners’ rights in particular. The Miami Herald once called the Institute a “law firm of last resort.” I was its first attorney, and about 5 years later was joined by a very committed legal services attorney, Peter Siegel, who practiced with me for 24 years before retiring in 2006. FJI has always been “lean and mean” with only 2 to 3 attorneys, a wonderful support staff of 4 or 5, and a committed board of directors. We have been fortunate to have first class office space donated by large, private law firms. We are now housed by Carlton Fields. While we have primarily handled large, impact class actions for prisoners, we have also taken other civil rights cases in various areas such as housing discrimination, disability rights, and civil liberties.

When you look back at the law firm’s work over the past 30 years, which two or three cases, decisions, or areas of reform would you consider to be ‘landmark’ and heavily involved FJI?

RB: Tough question as there have been many meaningful cases. Most have been settlements and are not reported. The first case I worked on as an attorney -– Arias v. Wainwright -- was a statewide jail conditions lawsuit brought against the Florida Department of Corrections for failing to promulgate rules and regulations for county jails, to make exacting inspections, and to enforce jail standards. Arias resulted in significant improvement to Florida’s 211 jails until the order was vacated in 1996. It was a wonderful collaborative effort of FJI, the National Prison Project, Bill Sheppard, and Wilmer Cutler & Pickering. Other significant cases include Stapleton v. Singletary (successful statewide challenge to protective management), Osterback v. Moore (successful statewide challenge to Florida’s close management [solitary]), and McIntyre v. Roth (closure of the worst jail in Florida in Key West). But FJI is best known nationally for helping to start the nation’s first interest on lawyers’ trust account (IOLTA) program, and then working to spread it nationwide and to protect its constitutionality from several challenges, two of which went to the Supreme Court, while operating the National IOLTA Clearinghouse as a project of FJI. IOLTA has leveraged more than $3 billion to primarily fund legal services to the poor and IOLTA continues to produce hundreds of millions each year to primarily fund legal services for the poor.

When someone incarcerated in a Florida jail or prison seeks out the Florida Justice Institute for assistance, how do they learn about the firm? What are the most common reasons for a prisoner to contact your firm? How many of those contacts turn into cases the firm will take on?

RB: For years it seemed prisoners learned of FJI by word of mouth, and from class action notices posted at the prisons or jails for comment after a settlement. That has changed somewhat due to the PLRA and the closure of law libraries. Today, family members and friends of prisoners find out about FJI through news articles and the internet. The most common reason we are contacted these days are failure to provide adequate medical care, and guard on prisoner brutality. As a small firm, we try to limit the cases we take to those which will have the largest impact for the largest number of prisoners, or damages or wrongful death cases where there is significant injury or death, and a large verdict or settlement is likely to result in change.

What area(s) of prison and jail reform need the most work, and are currently being pursued by the Florida Justice Institute?

RB: Medical care appears to be the area most in need for work, and I suspect it will only get worse as government resources do not keep pace with a growing population and the high cost of medical care. We just finished trying a lawsuit for mentally ill inmates acting out the manifestations at Florida State Prison who are being gassed in their cells with chemical agents. We are preparing to litigate over Florida’s failure to provide timely liver biopsies and treatment for persons with Hepatitis C, the ban on prisoners’ ability to advertise for pen pals, and several guard on prisoner assaults. The list is endless.

What is the picture like for Florida jails and prisons? How many people are incarcerated in prisons and jails, and has that number increased in recent years?

RB: Very bleak. Florida warehouses 100,000 prisoners, and its county jails have another 66,000. Florida has surpassed New York and now has the third largest prison population behind California and Texas. While some politicians and corrections officials are beginning to state publicly that Florida can not build its way out of prison crowding and must do something else, Florida continues to build with no end in sight.

Are there issues in Florida jails and prisons that differ from prisons and jails in other parts of the country? If so, what are some of those issues?

RB: Hard for me to say as I do not have much actual experience with prisons in other parts of the country. However, our national prison expert witnesses relate that Florida is much more punitive than other states in many areas such as the use of solitary confinement and the use of chemical agents. And based on other opinions, it appears Florida has more idleness and fewer programs. But Florida does not have gang problems as does California and elsewhere.

[Editor’s Note: This interview is part of PLN’s ongoing series of talks with the unsung heroes and heroines of the prisoner rights movement: the lawyers who have made their careers representing prisoners and advancing the rights of prisoners against formidable odds. The world of prisoner rights is a small one and I tend to personally know many of the people being interviewed. In 2005 Randy, FJI attorney Cullin O’Brien and Seattle attorney Mickey Gendler represented Prison Legal News in a challenge to the Florida DOC’s ban on PLN due to our ad content and a prohibition on paying prisoner writers.
We were in Jacksonville for a bench trial for five days. On the day of trial the defendants informed the court they had changed their ad policy and would deliver PLN and the court ultimately dismissed our case as moot. It was thanks to FJI’s excellent representation and tenacious prosecution that the Florida DOC ultimately changed its policy and allowed Florida prisoners to receive PLN. PLN has been privileged to be represented by Randy Berg and the FJI. I hope that this series will prove an inspiration to law students and lawyers alike about what is possible within the legal system of making an impact and bringing about positive change. More interviews will follow.

Todd Matthews is a freelance journalist based in Seattle, Washington.]

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