Part II Constitutional Law of Corrections

Chapter 6 – Access to Courts Introduction: Chapter looks at how inmates get into court to get their complaints heard Amendments do not specifically provide this right Yet, the courts, and most importantly, the Supreme Court, have found that inmates do have a right of access to the courts -This question is distinguished from the writ of habeas corpus – Article 1, Section 9. The writ provides only special relief – the release from illegal confinement. It does not address the many other complaints that inmates may have.

Chapter Outline Opening the Gates Ex parte Hull Johnson v. Avery Shaw v. Murphy Bounds v. Smith Lewis v. Casey Murray v. Giarratano Wolff and Martinez Frivolous Complaints and Frequent Filers

Opening the Gates As noted earlier, until the 1960s, courts generally had a “hands-off” attitude towards prisons and inmate complaints

Pre-1960: Ex parte Hull (1941) Michigan regulation required prison official to review inmate legal documents before inmate could send to court U.S. Supreme Court (Court) struck down regulation – this is a leading decision for the principle that prison officials can’t screen, censor, or interfere with an inmate’s submissions to courts --In Houston v. Lack (1988), the Court held that an inmate’s appeal was “filed” on the date it was dropped into the prison mailbox. This ruling recognized that the inmate had no discretion as to getting his document to the court, that all she can do is to provide the mailing to prison officials. This effectively removes the adverse impact that can be caused by any delay on the part of prison officials.

Johnson v. Avery (1969) Leading part of the abandonment of the “hands off” philosophy Prison regulation barred one inmate from assisting another in preparing legal documents Inmate was disciplined for violating this regulation Such inmate assistance is commonly known as “jailhouse lawyering”

Johnson v. Avery : cont’d Court noted, like in Hull, that inmates were to have access to courts to present complaints Case based constitutionally on provision protecting the writ of habeas corpus (Article 1, Section 9)

Johnson v. Avery : cont’d Court held unless State provided reasonable alternatives to help inmates prepare petitions for post-conviction relief, prison could not enforce regulation barring inmates from assisting other inmates

Shaw v. Murphy (2001) Prison regulation barred inmates in separate housing locations from assisting one another Inmate law clerk charged with, and found to have violated, prison regulation, including interference with due process hearings Inmate sued, in part claiming violation of first amendment rights, including the right to provide other inmates with legal assistance --In this case, the charged inmate had been offered the assistance of another law clerk.

Shaw v. Murphy: cont’d Court held that inmates do not have such a special 1st Amendment right Cited Turner v. Safley (1987) standard – restrictions on inmate’s constitutional rights are allowed if reasonably related to legitimate penological objectives Inmate not able to show prison regulations were unrelated to such objectives --Turner is discussed in some detail in Chapter 7.

Bounds v. Smith (1977) Expanded Johnson v. Avery constitutional protections Bounds – issue was whether States must protect inmates’ right of access to courts by providing law libraries or alternative sources of legal information

Bounds v. Smith: cont’d In Bounds, lower court had found state did not provide assistance for inmates to prepare their petitions to the courts District court required state to come up with a plan to ensure access to the courts State responded with a plan to provide seven libraries in facilities around the state Inmates objected to the plan, saying it did not go far enough

Bounds v. Smith: cont’d District court approved the state plan, and held the state did not have to provide legal assistance in addition to the libraries Appeals court affirmed district court, with one amendment to the state’s plan – that female inmates were to have access rights to library facilities similar to the men’s

Bounds v. Smith: cont’d Supreme Court held that the “fundamental constitutional right of access to the courts requires prison authorities to assist inmates [in filing ‘meaningful’ legal papers] by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law”

Bounds v. Smith: cont’d Law libraries not constitutionally required Provided there is alternative means of adequate legal assistance Court left decision of means to States --Examples of “adequate” legal assistance might include paralegal assistants working under a lawyer’s supervision, hiring lawyers; and having a volunteer attorney assistance program.

Bounds v. Smith: cont’d Bounds seen as holding that access to courts is guaranteed for habeas corpus and also for civil rights (constitutional) complaints (Section 1983) In practice, no distinction made in most prisons on inmate legal actions, even if not one of the above Basis – improper for prison officials to scrutinize an inmate’s legal work or to interfere with an inmate’s legal mailings Most prisons today have law library access --The Court has emphasized that habeas and civil rights actions are of “fundamental importance. . . in our constitutional scheme” because they protect our most valued rights. By implication, this might then exclude such actions as common law torts or personal legal matters (such as researching domestic relations cases). In practice, this has not occurred, for some of the reasons noted above, and inmates generally are allowed to work on any kind of legal matter.

Lewis v. Casey (1996) In Casey, the lower federal courts held that the Arizona Department of Corrections wasn’t meeting Bounds standards - said the Department was providing inadequate assistance Supreme Court criticized lower courts for not deferring to the judgment of the prison officials regarding the type of law library and other legal assistance offered

Lewis v. Casey: cont’d Court held lower court ruling on type of relief too broad based on limited number of inmate complaints Court said record indicated only two inmates were shown to have been injured (by not getting their legal matters drafted or filed) Court held only limited relief to address specific violations should have occurred, not a system-wide corrective plan

Lewis v. Casey: cont’d Court, in Casey, limited the guidelines of Bounds In Casey, Court held inmates’ rights to court access encompass Direct appeals from their convictions Habeas corpus actions, and Section 1983 lawsuits Court held the required assistance was that needed for initial preparation and filing, not for later litigating steps

Lewis v. Casey: cont’d Supreme Court did not overrule Bounds, just limited it Court also emphasized the message of deference to prison authorities

Murray v. Giarratano (1989) Counsel need not be provided to inmates in collateral attacks on their sentences, even in death penalty cases --The lower courts had ruled that inmates under death sentence were entitled to counsel in order to pursue collateral attacks after their initial appeals. This was primarily based on Bounds, which required assistance to be given to inmates to provide them meaningful access. Supreme Court held the applicable standard was the one it set forth in Pennsylvania v. Finley (1987), that the provision of counsel by the state was not required for postconviction relief (by collateral attacks on their convictions and sentences).

Wolff (1974) and Martinez (1974) Cases deal with attorney-client (inmate) contacts Must be a balance between Government’s need for proper oversight of inmate activities, including legal ones, for the security and the orderly running of the institution, and The needs of the attorney and inmate to have adequately and specially protected opportunities for communications (phone, visits, and mail)

Wolff and Martinez: cont’d Wolff primarily prison discipline case, but one part of decision governed inspection of attorney mail sent to inmates Nebraska regulation provided for inmate legal mail to be opened (not read) and inspected for contraband Had to occur in the presence of the inmate

Wolff and Martinez : cont’d Court held attorney mail required more protection than ordinary mail When mail is identified on the envelope as attorney mail, the Court approved the mail being opened and inspected (not read) in presence of the inmate Serves prison security concerns Protects confidentiality of mail contents --The Court said that the opening of the mail in the presence of the inmate, but not reading it, can “in no way constitute censorship.” --Lower courts have split on the issue of whether officials can read the incoming mail from attorneys, but most follow the Supreme Court guidance that the opening of mail is only for the purpose to ensure the absence of contraband. If improper content is enclosed, the mail could be refused for delivery; if it is used for improper purposes, the mail can be forwarded to law enforcement for possible prosecution. Improper use of mail by an attorney also can be grounds for the placement of restrictions on the legal mail of that attorney. --As an aside, the Court in Wolff also ruled that access to courts opinions apply to the preparation and submission of habeas corpus and Section 1983 actions, the standard that was expressed in 1977 in Bounds.

Wolff and Martinez : cont’d Martinez primarily dealt with inmate mail restrictions, but also addressed attorney visits The issue was whether it was permissible for California to restrict attorney visiting privileges to members of the bar and licensed private investigators

Wolff and Martinez : cont’d Lower court ruled that the regulation was an “unjustifiable restriction on the right of access to the courts” Supreme Court agreed but recognized that any requested practice must be weighed against legitimate penal interests

Wolff and Martinez : cont’d As a result, today prisons allow paralegals and law students, as well as other professional assistants, to have legal visits in the same manner as attorneys Attorney must identify the person who is to have the visit, and the attorney is responsible for supervising the work (and professional behavior) of the assistant --One caveat – inmates who are charged with a crime have additional protections. Sixth Amendment provides for assistance of counsel in all criminal prosecutions. Courts are very protective of the pretrial rights of detainees, especially attorney-client communications. Prison staff must carefully protect those rights so as not to jeopardize the prosecution of criminal cases.

Frivolous Complaints and Frequent Filers Inmates clearly have right of access to courts, but what about inmates who abuse Recent legislative actions (for example, the PLRA) and court interpretations have led to procedures to prevent such abuse Inmates pay filing fees Dismissal by court of frivolous claims “Three strikes” provisions --If the inmate has no funds, the PLRA allows for filing to occur with payment to be made on a time payment plan. --The referenced “three strikes” provision applies to inmates who want to proceed in forma pauperis. An exception to this provision is where the inmate is under “imminent danger of serious physical injury,” in which case the filing will be allowed. This provision has been interpreted to apply to cases where the danger existed at the time that the complaint was filed, not to revisit a harm that had already occurred.