Transcript Jail Mail Blues What is “access to the courts” and how do law libraries fit in?

Jail Mail Blues
What is “access to the courts”
and how do law libraries fit in?
Why Does Jail Mail Exist?
• No textual constitutional right for
prisoners to access a law library
• Not in the federal Constitution
• Nor in any state constitution
Why Does Jail Mail Exist?
• Access differs from prison to prison
•
•
•
•
Some are well-stocked facilities (federal)
Some barely meet basic standards
Some exist in name only
Some have gone completely electronic – has
its own set of challenges
Federal Constitution
Amendments in the federal Constitution are to
make sure one:
 is lawfully arrested (4th),
 is not given excessive bail (8th),
 does not have to incriminate oneself (5th),
 has a speedy and public trial (6th), and
 is not tortured (8th).
Facts & Figures
From 2005 to 2010, inmates filed almost
330,000 petitions in federal courts
claiming guards' use of excessive
force, deliberate indifference to their
medical needs, and retaliation for their
assertion of rights, among other
claims.
- Michael W. Martin, Clinical Associate Professor of
Law at Fordham University School of Law in his article Panel Discussion:
the "Solo Practitioner”: Pro Se Litigants and Their Obstacles to Justice:
Foreword: Root Causes of the Pro Se Prisoner Litigation Crisis.
Sept 2010 – Sept 2011
U.S. District Court – Western District of Texas
Civil cases filed: 3,223
Civil cases filed pro se: 1,177
Prisoner petitions filed: 957
Prisoner petitions filed pro se: 875
Approximately 37% of all civil filings were filed pro se
Approximately 74% of pro se filings were filed by
prisoners
Approximately 91% percent of civil filings by prisoners
were filed pro se
http://www.uscourts.gov/uscourts/Statistics/JudicialBusiness/2011/appendices/C13Sep11.pdf
Sept 2010 – Sept 2011
5th Cir. Courts of Appeals—Pro Se Appeals Filed by
Prisoners During the 12-Month Period Ending
September 30, 2011
Nearly 90% of prisoner-filed civil appeals were filed
pro se
Total prisoner petitions filed: 15,678
Total prisoner petitions filed pro se: 14,057
http://www.uscourts.gov/uscourts/Statistics/JudicialBusiness/2011/tables/S04Sep11.pdf
Habeas Corpus
Less than two-fifths of one percent of
these petitions receive any type of
relief, and that relief often is a new trial
or sentence that results in the inmate's
return to prison.
- Michael W. Martin, Clinical Associate Professor of Law at
Fordham University School of Law in his article Panel Discussion: the
"Solo Practitioner”: Pro Se Litigants and Their Obstacles to Justice:
Foreword: Root Causes of the Pro Se Prisoner Litigation Crisis.
The Facts
“Although many states are seeking to reduce their prison populations amid
government budget crises, there are still significant numbers of people held in
correctional institutions - 1.6 million as of the end of 2009. These individuals
are entirely dependent on corrections officials for food, shelter, medical care,
sanitation facilities, and the other elements of habitable living conditions.
Living inside closed institutions, they also face risks that they could be
subjected to discrimination, physical abuse, or denial of opportunities to
practice their religion unless there are mechanisms to ensure that such abuses
and deprivations do not occur. The history of American corrections contains
numerous examples of brutality, neglect, and horrific living conditions when
corrections officials are unsupervised and unaccountable. Despite some
commentators' belief that judges should avoid ordering intrusive remedies for
constitutional rights violations, the judicial definition and enforcement of
constitutional rights for prisoners played a key role in improving living
conditions and professionalizing and bureaucratizing institutions that were
often administered through autocratic fiat and discretionary violence.”
- “The Changing Supreme Court and Prisoners' Rights” by
Christopher E. Smith, Professor of Criminal Justice, Michigan State University
Perfect Storm of a Problem
The pro se inmate dilemma is the pro se problem's perfect storm.
The clear precipitants outlined above result in a large class of
legally disempowered persons - most of whom have
educational, mental health, and resource deficits to boot - with
compromised rights so fundamental (e.g., wrongful
convictions, inmate beatings, and rape) that society grimaces
at the possibility of impingement. Further, pro se prisoner
litigation comprises the largest portion by far of the federal pro
se docket, and threatens to overwhelm the courts.
- Michael W. Martin, Clinical Associate Professor of Law at Fordham
University School of Law in his article Panel Discussion: the "Solo
Practitioner”: Pro Se Litigants and Their Obstacles to Justice: Foreword:
Root Causes of the Pro Se Prisoner Litigation Crisis.
Overview of Access to
Law Libraries
Since statutory law has not specified
whether a prisoner shall have access to
a law library and what that law library
shall contain, case law had to fill in the
gap.
Supreme Court Cases
Case law has created & modified the
rights of prisoners. Big ones are:
• Johnson v. Avery, 393 U.S. 483 (1969)
• Bounds v. Smith, 430 U.S. 817 (1977)
• Lewis v. Casey, 518 U.S. 343 (1996)
Johnson v. Avery, 393 U.S. 483 (1969)
“It has not been held that there is any general obligation of the
courts, state or federal, to appoint counsel for prisoners who
indicate, without more, that they wish to seek post-conviction
relief…. Accordingly, the initial burden of presenting a claim to
post-conviction relief usually rests upon the indigent prisoner
himself with such help as he can obtain within the prison walls
or the prison system. In the case of all except those who are
able to help themselves-usually a few old hands or
exceptionally gifted prisoners-the prisoner is, in effect, denied
access to the courts unless such help is available.”
Prisons not required to do anything but
keep from interfering with inmates who
are helping each other.
Bounds v. Smith, 430 U.S. 817 (1977)
“…the fundamental constitutional right of access to the courts requires
prison authorities to assist inmates in the preparation and filing of
meaningful legal papers by providing prisoners with adequate law
libraries or adequate assistance from persons trained in the law.”
“Simply providing a prisoner with books in his cell, if he requests them,
gives the prisoner no meaningful chance to explore the legal remedies
he might have. Legal research often requires browsing through
various materials in search of inspiration; tentative theories may have
to be abandoned in the course of research in the face of unfamiliar
adverse precedent. New theories may occur as a result of a chance
discovery of an obscure or forgotten case. Certainly a prisoner,
unversed in the law and the methods of legal research, will need more
time or more assistance than the trained lawyer in exploring his case.
It is unrealistic to expect a prisoner to know in advance exactly what
materials he needs to consult.”
Bounds v. Smith, 430 U.S. 817 (1977)
In this decision, the Court said, “a legal access program need not
include any particular element we have discussed, and we
encourage local experimentation.”
So then various states implemented various programs:
• Prepackaged forms but no books
• Employment of 2 full time attorneys and some law students and a
small library
• Outsourcing legal research requests
• Taking prisoners to a nearby law library
• Electronic kiosks
Bounds required prisons to actively provide access to
either a law library or trained legal help or both.
Bounds v. Smith, 430 U.S. 817 (1977)
States the right of access to the courts
includes the state’s obligation to provide
indigent prisoners “with paper and pen
to draft legal documents, with notarial
services to authenticate them, and with
stamps to mail them.”
Lewis v. Casey, 518 U.S. 343 (1996)
• Lewis case cut the legs out from under Bounds
• Court said prisoners do not have “an abstract,
freestanding right to a law library or legal assistance.”
• And now, in order to win a denial of access to courts
suit under Bounds, a prisoner must first show that:
1. an actual injury has occurred because he has
been denied access to the courts due to little or
no access to a law library
2. AND you have to show that you had a “nonfrivolous” legal claim.
Lewis v. Casey, 518 U.S. 343 (1996)
State does not have to tell you about your
rights or help you effectively litigate
your claim in court.
“Impairment of any other litigating
capacity is simply one of the incidental
(and perfectly constitutional)
consequences of conviction and
incarceration.”
Actual Injury cases
• Rarely successful because prisoner does
not understand what he must prove to the
court
• Sets up a Catch 22 - prisoner is trying to
prove he had a valid legal claim, but in order
to do so, he needs access to a decent law
library.
• Most prisoners do not have the legal
expertise required to successfully litigate
actual injury case & no one wants to do it
pro bono
What is an adequate prison
law library?
• Nobody knows. Supremes have never
exactly defined it.
• Court said in Bounds that prisoner
access to the courts should be
adequate, effective, and meaningful”
and that “meaningful access” to the
courts is the touchstone.”
What is an adequate prison
law library?
• Various federal circuit courts have come up
with their own lists of what a prison law
library should contain.
• Some federal cases refer to the AALL
Special Committee on Law Library Services
to Prisoners guidelines.
• In the appendix of Werner's Manual for
Prison Law Libraries by Rebecca
Trammell
5th Circuit says
•
A library should include federal court reporters.
Cruz v. Hauck, 627 F.2d 710, 30 Fed. R. Serv. 2d 494
(5th Cir. 1980)
•
A prison law library without any assistance in its
use does not suffice to provide access to the courts
for all the prisoners detained; it is not enough
simply to say the books are there, when the inmates
contend that they do not have the assistance
necessary to use the books properly. Cruz v. Hauck,
627 F.2d 710, 30 Fed. R. Serv. 2d 494 (5th Cir. 1980)
5th Circuit says
•
•
•
In regard to affording legal assistance to jail inmates, county's
bookmobile check-out system, accompanied by circumscribed
assistance from law students, did not meet the Bounds
requirements; greater access to a law library than afforded by
the check-out system was required unless greater assistance
by students, paralegals or writ writers was furnished. - Morrow
v. Harwell, 768 F.2d 619
Absence of all federal materials from prison library, without
making some alternative arrangements to apprise prisoners of
their rights, violates right of access to courts. - Egerton v.
Cockrell, 334 F.3d 433
The right of access to the court does not afford prisoners
unlimited access to prison law libraries, and limitations may
be placed on library access so long as the regulations are
reasonably related to legitimate penological interests. - Jones
v. Greninger, 188 F.3d 322
State of Texas says
Inmate's right of access to courts can be satisfied
either through appointed counsel, access to law
library, or access to legally trained
paraprofessionals. Thomas v. Brown, 927 S.W.2d 122
(1996)
•
§ 152.29. Standards for Functional Areas Increases to capacity shall satisfy the following
criteria…“Adequate assistance from persons trained in the law
or a law library with a collection containing necessary
materials and space adequate for offenders to use the law
library for study related to legal matters.” - 37 Texas
Administrative Code § 152.29
State of Texas says
• Excellent discussion and overview of
Texas law at 58 Tex. Jur. 3d Penal and
Correctional Institutions § 85
Texas Inmate Copy Service
• Fee-based service available to inmates
• Allows them to access their records from
Texas Court of Criminal Appeals, the Texas
Supreme Court or the Texas Third Court of
Appeals
• Used to be quick turn around but recent
budget cuts made turn around 4-6 weeks
Tarrant County’s Program
• Inmates send a check or money order
to Tarrant County law library to set up
an account.
• Copies are .20 cents a page and a
postage charge is added. This is
deducted from the account and a
receipt is sent along with the research.
• Turn around is less than a week.
5th Circuit Program
• Ran for 6 years, evolving as it went
• Recently shut down & given back to
the Clerk’s office
• Now jail mail requesters are sent a
postcard
5th Circuit Program
• Goal = tell prisoners what they
can/can’t sue for so that new prisoner
lawsuits will be reduced
• Many don’t know about the limitations like the
AEDPA or PLRA
• Save court money by giving prisoners
proper forms so our staff attorneys
don’t waste so much time trying to
decipher their pleadings
5th Circuit Program
• Limited to one letter per month
•
Excel database by name and inmate number
• Kicked out those who refused to follow
rules
• Excel database – only about 5 people
• Used pseudonym “Pat Smith”
• Sent out initial packet
• Used form letters to send with other
materials
5th Circuit Program
• Limited requests to 4 items
•
•
Pulling 2 cases and Shepardizing them = 4 items
Initial letter listed what we could/could not send (no
books, pocket parts, etc)
• Only for inmates in TX, LA or MS
•
Others given library contact into for other states
• No charge for postage or copies
•
•
•
Printed double-sided, limited to 50 sheets or less per package
Spent about $750 last year, answered about 300 requests
Did not make copies of items
5th Circuit Program
• Backlog ran anywhere from 8 to 20
weeks, depending on the time of year
• Letters answered in chronological
order
• No payment of any kind accepted
Why do prisoners need outside
access to legal materials?
Books get mutilated and are not
replaced.
• Prisoners don’t want to be known as snitches
or rapists.
• Many times jail staff are not trained librarians.
They do not know how to update materials so
even if the jail has a subscription to
Dorsaneo, if it isn’t filed, it is useless.
Why do prisoners need outside
access to legal materials?
Information purposefully excluded
• Civil rights actions for lack of medical care
• Civil rights actions for excessive force
• Post-conviction DNA testing statutes, cases,
forms usually not available in prisons
• Info on how to contact Innocence Projects
and other prisoner rights groups
Why do prisoners need outside
access to legal materials?
Law libraries are the first to go when
budgets are cut.
• Hours are reduced.
• Books are not replaced. Sets are cancelled.
• Prison libraries have inadequate
materials.
• Do not have correct forms.
• Have limited materials
Why do prisoners need free help?
Some prisoners are truly indigent and
cannot afford the fees for outside legal
research.
• Disabled and unable to work in prison to earn
money
• No family/friends to give them money
• Many Vietnam Vets fall in the category
Why do prisoners need free help?
Even prisoners who earn a small wage in
prison use it to buy food/toiletries
• Meals in prison are short on protein so
prisoners buy tuna/mackerel in pouches to
supplement
• Toilet paper is not supplied & must be
purchased by prisoners
• Other basics of life (toothpaste,
toothbrushes) must be purchased too
Where can we get funds to help?
• Local bar associations might have
funds or grants you can apply for
• Local law firms are being pushed by
ABA and the state for more pro bono
involvement, so you might ask them to
donate rolls of stamps or pre-paid
envelopes
• Ask your library associations if they
are willing to fund a grant
Why Should Law Librarians Help?
• We are part of the system and the
system is not functioning well.
•
•
•
Note the numbers of wrongly convicted people
Public defender departments are going bankrupt
Private attorneys have no financial incentive to help
• We can help reduce the strain on our
court systems by educating inmates.
•
Due to PLRA (3 Strikes law) inmates do not want to
file frivolous lawsuits
Why Should Law Librarians Help?
• We know how not to give legal advice.
• We understand the difference between an
open-ended question seeking legal advice
and a query for information.
• We can suggest a resource that can help the
inmate refine their legal question.
•
Tables of contents to ALRs, parts of TexJur
Why Should Law Librarians Help?
• We have the ability to translate difficult
legal concepts into plain language.
• Many of us teach legal research courses or
are active in educating the public
• We can translate materials for nonEnglish speakers and/or find vendors
for Spanish law books.
• Many of us are bilingual or are able to search
the web and find publishers who sell Spanish
language books.
Why Should Law Librarians Help?
• We can send inmates information on
how to contact groups to help themInnocence Projects, various pro bono
projects, etc.
• There is no way for the newly incarcerated to
get this type of information, and the AEDPA
puts a one year time limit on filing a habeas
appeal.
Why Should Law Librarians Help?
• Because no one else will do it.
• While the American system is the best in the
world, it is not perfect, and no one
understands the system better than we do.
• For proof the system isn’t perfect, take a look
a the list of exonerations of the wrongfully
convicted
Amy Hale-Janeke
Head of Reference Services
5th Circuit Court of Appeals Library
New Orleans Headquarters
600 Camp Street, Room 106
New Orleans, LA 70130
ph: (504) 310-7755
[email protected]
Bibliography
Joseph L. Gerken, Does Lewis v. Casey Spell the End to Court-Ordered
Improvement of Prison Law Libraries?, 95 Law Libr. J. 491 (2003).
A Jailhouse Lawyer’s Manual (9th ed., 2011),
http://www3.law.columbia.edu/hrlr/jlm/toc/.
Michael W. Martin, Panel Discussion: the "Solo Practitioner”: Pro Se Litigants and
Their Obstacles to Justice: Foreword: Root Causes of the Pro Se Prisoner
Litigation Crisis, 80 Fordham L. Rev. 1219 (2011).
Christopher E. Smith, The Changing Supreme Court and Prisoner’s Rights, 44 Ind.
L. Rev. 853 (2011).
Rebecca S. Trammell, Werner’s Manual for Prison Law Libraries (3rd ed. 2004).