Skip navigation

PLN mentioned in profile of VA attorneys Jefrey Fogel and Steven Rosenfield

Daily Progress, Jan. 1, 2011.
PLN mentioned in profile of VA attorneys Jefrey Fogel and Steven Rosenfield - Daily Progress 2011

Published: January 02, 2011

Local lawyers fight for inmates' rights

Daily Progress
By Tasha Kates

If things had turned out differently, lawyer Jeffrey E. Fogel might have become an auto mechanic. Fellow lawyer Steven D. Rosenfield could have been a woodworker.

But neither of those careers panned out for the Charlottesville-based lawyers, who have repeatedly filed suit against the Virginia Department of Corrections over censorship issues and inmate rights.

“Jeff and I grew up in a time when the adage was, if you’re not part of the solution, you’re part of the problem,” Rosenfield said.

In the last year, one or both of the lawyers have represented publishers who said their First Amendment rights were violated by the DOC banning editions, a blind inmate who said she wasn’t receiving reasonable accommodations for her disability and a Muslim inmate whose copies of a weekly Nation of Islam newspaper were disapproved without appropriate notice. Most of the cases have ended in concessions for their clients that address the concerns in the initial lawsuits, such as damages and policy changes.

Rosenfield and Fogel said the cases that interest them aren’t necessarily easy or lucrative.

“When you’re a civil rights lawyer, you have to expect to get beaten up a lot to accept that unjust decisions are going to be the norm,” Rosenfield said.

Q. What is it about civil rights litigation that appeals to both of you?

ROSENFIELD. It always comes out corny to talk about representing people with less power against those people with greater power. That is why I became a lawyer, to help those people who were powerless. I primarily represent employees and little people, but each of us has represented police officers. I have represented county police officers against the hierarchy in their respective governments.

FOGEL. I was politically active in college in the ’60s. At the time I went to law school, which started in 1966, tremendous changes were occurring in the country in part because of the law and the Supreme Court. I saw the opportunity there to help make changes consistent with my personality and the skills I felt I had.

Q. How did you both end up litigating cases involving the DOC’s Disapproved Publications List?

F. They came to Steve. He was the only lawyer subscriber of Prison Legal News [in the region]. They got frustrated in their efforts to negotiate directly. … That opened the floodgates. I think we were both a little surprised and somewhat shocked by what we saw. I think in the past it was easy for them to say, ‘We don’t like it, no one is challenging us, so we will ban it.’ Now that they know, they’re watching, doing something and paying attention to the law requirements.

R. We’re working on third-party gifts right now. If you wanted to send a publication to a prisoner who requested it, the prisoner would first have to get prior approval and then send you the money out the prisoner’s account. We’ve got changes for particular publications, but we’re in the process of trying to get them to change it generally so Mom and Dad could send their child a book directly from the publisher without having to get prior approval, and the parents could pay for it as well.

F. There is a broader question here other than the specifics of the censorship, which is the incredibly arbitrary conduct that prison officials engage in for which there is virtually no oversight, no transparency and something that the public and politicians know virtually nothing about. That is not to say that people in prison are entitled to be in Club Med like the opponents talk about. We’re talking about situations where a person may have done something wrong and is paying a debt to society, and that debt is paid by being locked up behind prison walls, locked up in a cell with bars in front of you, unable to participate in any aspect in life other than what is allowed to them, and that is very limited. They are making 23 to 42 cents an hour with a limited ability to do anything.

Q. Have you seen any changes to the DOC as a result of your litigation?

R. The changes are miniscule, when they come at all. But some of this is an opportunity for us to speak to the public and to ask the public to be looking at what is happening in prisons. This is the least transparent institution in our society.

We’ve made an offer on many occasions to sit down with them and say, ‘We can tell you all of the things we think are unconstitutional about what you’re doing, for example, with periodicals. We don’t need to litigate all of it.’ So far, they have expressed no interest in sitting down with us.

Q. The DOC has had a recent change in leadership with the appointment of Harold W. Clarke to the director position. Do you anticipate a new director will lead to systemic change?

R. Historically, we’ve had a culture that doesn’t budge very much. But one always holds out hope that a new person brings a different philosophy and a different and better humanity than the predecessor and that changes to the culture will finally occur.

F. Both Steve and I respect the fact that it is not an easy job, either running a prison system or working in a prison system. But there is no call for the kind of arbitrary conduct that we have been challenging. In fact, some of these things, like the censorship, … run directly contrary to every penological concern you could have about prisoners. Everything says that the best thing you can do is educate prisoners, and the more educational programs, the less likely they are to recommit crimes, which is a concern that everybody should have.