Justice for all

Attorney Dan Smolen takes the system to court

Venue: Fassler Hall

Drink: Stoli and soda

The Tulsa Voice: So, let’s talk about the lawsuit you’ve brought against the Tulsa Sheriff’s Department.

Dan Smolen: Which one?

TTV: The most recent.

[Editor’s note: Smolen is representing the family of Eric Courtney Harris, an unarmed man who died after a Tulsa County deputy shot him in the back on April 2, the day before this interview.] 

DS: Well, there’s one that’s breaking right now, the newest one, but we can’t talk about it in specifics.

TTV: You’ve sued them before. And won.

DS: Yeah, we won a series of race discrimination cases involving African Americans who were employed by the former company that ran the jail.

But all of the things you can research—and I can point you to the public records—that’s just the tip of the iceberg. I could show you videos of different facilities where people have been starved to death in correctional facilities. These people have been denied basic medical care and have died. 

[Author’s note: Smolen presented video evidence to support his claim. I won’t say what I saw due to pending litigation, but what I saw legitimized Smolen’s previous claims.]

TTV: Is this just a Tulsa problem?

DS: No, it’s nationwide. It’s a poor people problem.

TTV: Because poor people get arrested more often.

DS: Yes, and because poor people’s families cannot afford the representation to take these people to court and win after something like this has happened to them. When you take someone who is poor and can’t afford to bail themselves out of jail, and you put them in a cage and deny them medical treatment, they die. 

A homeless person could walk into an emergency room and receive treatment, but when you physically lock someone up and they are begging you for treatment and you deny that treatment—that’s where we are in this country.

TTV: So, when people are arrested and denied necessary treatment and subsequently die, is that murder?

DS: Absolutely. If you locked your grandmother up in a room and denied her medical treatment to the point at which she passed away, you’d be charged with something—I guarantee it.

TTV: The difference is that these people are criminals; they’re in jail. So we care less.

DS: Even when you’ve committed a crime, you have rights. These people are poor. That’s the biggest strike against them. 

TTV: Is the problem the privatization of correctional facilities?

DS: Well, you have some privatized jails; the County runs the majority. What we’ve seen is that when you have the County running the jail and a private group providing health services, the private group acts kind of like an HMO—they’re trying to make as much money as they can. If you look at the contracts, there’s a provision in there that says that for any inmate that goes to the hospital, the first $40,000 is paid by the medical group. Any additional monies are owed by the Sheriff’s Department. So, there’s a dual incentive not to send them to the hospital. The medical group builds their profit into that $40,000 into not sending inmates to the hospital for care.

TTV: Oklahoma sends more people to prison per capita than almost any other state; we’ve ranked fourth out of 50. Why?

DS: There’s a ton of money in incarceration. Look at the contracts for private prisons, private jails and private medical groups within jails; there’s a lot of money there. Then you have law enforcement—they want to keep their jobs, so they are incentivized to arrest and fill the jails. And the jails in turn, sometimes you find out that members of those private companies might fund a Sheriff’s campaign. That’s just the way it goes.

TTV: Would there not be just as much money in rehabilitation? 

DS: A lot of this goes back to education and opportunity. 

Look, a kid gets arrested for robbing a car when he’s 17. He’s a poor black kid, and he can’t afford a lawyer like the white kid who goes to private school. So the white kid who commits the same crime gets a deferred sentence and the black kid a felony conviction. He might already have a hard time getting a job because of his race, and now he has a felony conviction. The white kid is graduating from college, and the black kid can’t get a job—they made the same mistake. So, what’s the black kid gonna do? Well, like anybody else, he’s gonna try to find a way to make money any way he can.

This is a huge problem, a societal problem. The jails have an obligation to take care of these people while they are there. It’s a transient place. They can’t be there longer than a year, and most of them are just there waiting for their case to be heard. And in that time they are often being neglected, and as a result, some of them die.

I can tell by your questions that you are looking at the big picture, and sure, that’s there—but I don’t think you can solve the problem that way.

TTV: Then let’s get granular. What do you do?

DS: You take it county by county, and then you break it down even further. Look at the difference between the Police Department and the Sheriff’s Office. To work for the PD, you have to have a college degree. To work for the Sheriff’s Department, you just have to have 60 hours of completed classwork in any discipline. It’s the good ol’ boy system—I mean, they’re all good ol’ boys—but nothing is as good ol’ boy nationally as the Sheriff’s Department. So you’ve got that element, you’ve got the lucrative contracts for incarceration, you have the way laws are written to shield liability—there are all of these factors to prevent someone from being held accountable. And if you’re not going to be held accountable, then why would you ever change? They are in positions of power, and they are abusing that power because they can.

There’s people who think that cops can’t do any wrong, and there are people that think cops don’t do anything right—and they’re both wrong. But the shit that goes wrong is really, really bad. And the shit that goes right is what should be fucking happening. 

Put yourself in this position: I’m a poor African American. My loved one dies in the Tulsa County Jail. No one wants that case.

TTV:  There’s no money.

DS: Right. No lawyer wants that case. How are you gonna prove it? People are generally biased against people in jail, and they think they aren’t telling the truth. But I started looking at these cases, and what I was seeing was not, in the medical context, simple malpractice or even negligence. It was torture. 

TTV: Why does your firm want that case?

DS: I want it because it’s wrong.

TTV: Yeah, but there are a lot of things that go wrong every day in the world—things that you can sue people for and actually get money.

DS: Well, I think that these people who are committing these crimes will pay money. The only way this type of abuse is going to change is if you put these people in jail or take all of their money. 

TTV: Can you do that?

DS: It’s very hard to put the government in jail. But the only way you can make these people stop doing what they’re doing is to threaten their jobs and make it cost more for them in lawsuits than it would to simply operate their departments appropriately.

TTV: Are Sheriff’s Departments wealthy entities? If you hit them enough times with lawsuits, would they go broke?

DS: Every governmental agency has a funding source that can pretty much cover any litigation. They’re funded by taxpayers, so you figure it out. But I can actually sue the government official in his individual capacity. So I can take his home, and his ranch, and his cars, and his guns and all of his horses—everything. The trick is getting a jury behind it to say, “This is wrong.” So you have to be very thorough and very good at what you do to build the case.

TTV: Did you see parallels between Tulsa and what happened in Ferguson?

DS: First of all, “Ferguson” happens all the time—a lot more than it gets covered. That’s a strong African American community that has a very loud voice. I wish the African American community in Tulsa had a stronger voice. But their voice has been systematically shut down for years.

TTV: Cut them off from the rest of town; leave them with no access to services, healthcare, grocery stores or even sidewalks—

DS: Right. They have no voice here, and it’s been so ingrained for so long that they just don’t feel like they have any power. In Ferguson, that group took to the streets and made people listen to them. They made people pay attention. Regardless of outcome, look at the attention it generated. 

For more Day Drinking with Beau Adams, check out his chats with Tulsa Athletics co-owner Sonny Dalesandro or eccentric woodworker and musician Eric Fransen.