60th IFLA General Conference - Conference Proceedings - August 21-27, 1994

Prisoners' Right of Access to the Courts:
Law Libraries in U.S. Prisons


Vibeke Lehmann
Library Services Coordinator
Wisconsin Department of Corrections
Madison, Wisconsin, U.S.A.

ABSTRACT

This article examines the history that led to the establishment of law libraries in state and federal prisons in the United States. The author explains the fundamental right of prisoners' "access to the courts" and provides examples of how this access is granted. The law library is the most widely used option to guarantee prisoners' constitutional rights, including the right to file writs of ha beas corpus, sentence appeals, and claims relating to civil rights violations and the conditions of confinement. The article examines the challenges and problems of operating law libraries in the unique environment of prisons, including the areas of administration, collection management, staffing, space utilization, security, physical access, and inmate services.


PAPER

I. INTRODUCTION

In the United States, inmates in both state and federal prisons are guaranteed certain constitutional and civil rights. They include freedom from cruel and unusual punishment, the right to due process, freedom of speech, freedom of religion, the right to adequate medical care, freedom from racial discrimination, and the right of access to the courts. Only in unusual circumstances and for the sa ke of safety and security may limitations be imposed on these rights.

The existence of constitutional rights for any individual is dependent upon mechanisms to uphold these rights and protect them from violation or denial. Consequently, access to the courts is a pivotal right upon which the vindication of prisoners' other constitutional protections depends. It is important to understand that, with the exception of the U.S. Constitution, federal and state statutes do not guarantee any significant rights for convicted prisoners. Most of the rights now guaranteed to prisoners, including the civil rights extended to all other U.S. citizens, are the result of judicial rulings rather than legislative or administrative action.

During the last three decades, the Unites States Supreme Court and lower federal courts have recognized and confirmed these rights and ended the existing "hands-off" policy previously applied by courts to inmates. Although federal courts had long received habeas corpus petitions, until the 1960s the "hands-off" policy prevented the judiciary from considering other claims from prisoners. The co urts lent great discretion to prison administrators regarding the internal management of prisons which led to extensive abuse.

II. ACCESS TO THE COURTS

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.

This quote is taken from Bounds v. Smith (430 U.S. 817), the 1977 landmark Supreme Court decision, which led to the establishment of law libraries in most major U.S. prisons. Bounds was the culmination of thirty-six years of significant federal court decisions that markedly enhanced a prisoner's ability to seek redress of complaints before courts of law. It went beyond these decisions by statin g emphatically that states have an affirmative duty to provide assistance not only in the area of postconviction relief but also in the area of institutional civil rights. Prior decisions of the Court had held that inmates could not be required to submit habeas corpus petitions for prison administration approval before sending them to the courts.(1) The Court also had ruled that a state could n ot condition the right to appeal a conviction (2) or the right to file a petition for habeas corpus(3) or other form of postconviction relief on the payment of a filing fee when the petitioner had no means to pay. Further, the Court had held that the right to legal assistance -especially in the context of the constitutional right to the writ of habeas corpus--meant that in the absence of other adequate assistance, a state may not deny a prisoner the right to seek and obtain legal assistance from another prisoner, a "jailhouse lawyer"(4), and it must make available certain minimum legal materials (5).

Further, the Court ruled that access to the courts must be guaranteed to persons seeking to present claims dealing with conditions of confinement and civil rights violations(6) --generally referred to as "section 1983" (of the U.S. Code Title 42) actions. And for the the first time the Court explicitly stated that access to the courts must be guaranteed to totally and functionally illiterate inm ates and that the right of access is founded in the Due Process Clause (the Eighth Amendment to the Constitution). Through these Supreme Court decisions a new judicial philosophy gradually evolved away from the earlier "hands-off" position. It was seen as the affirmative responsibility of state officials to guarantee satisfactory means of legal assistance to all prisoners, i.e., the state was to take a proactive stance in this area and no longer just refrain from obstructing or impeding access. Still unclea r was what options or methods the states were to adopt to provide this access. In the Bounds case (1977), however, the Supreme Court finally gave the states several options to pick from in deciding how to fulfill their constitutional mandate.

The three most widely used methods of compliance today are 1) establishing law school clinical programs where law students, under the supervision of attorneys, assist inmates, 2) employing full-time staff attorneys or contracting with prisoner assistance organizations and 3) providing adequate law libraries. Each of these three alternatives have been put into practice by various states. During the last decade, however, most states have as a result of federal district and appellate court rulings been forced to provide more than one option or a combination of options, since no single method guarantees access for all prisoners. By so ruling, the courts have given a broader and more liberal interpretation to Bounds, emphasizing the key phrase of "meaningful" access to the courts.(7)

III. LAW LIBRARIES -MANAGEMENT AND SERVICES

Nearly all prisons have opted for law libraries over legal services as their primary access method. The cost of establishing an adequate law library is an important factor in opting for this alternative. Initial start-up costs are significant (currently between $60,000 and $70,000 per library for a basic core collection of state and federal materials). Upkeep costs run between $8,000 and $10,0 00 per year. With the rapid rate of prison population growth and prison building expansion in the U.S. (combined state and federal prisoners number approximately 1 million today!), law libraries are a major expense item.

The purpose of the law library, from a constitutional point of view, is to comply with a Supreme Court order. From the point of view of the law library, the purpose is to provide a collection of books and other resources with which prisoners may conduct legal research. Although there are some differences among states in how they operate the law libraries, the general problems of administration , collection management, staffing, space utilization, security, physical access, and level of service are quite similar. One major problem for prison librarians and administrators is that the Supreme Court never specified what materials are necessary to ensure adequacy. In 1972, the American Association of Law Libraries (AALL) compiled a minimum list of law books they considered necessary to meet the adequacy requirement. This list has been regularly updated and expanded. The AALL list has been cited by state and federal courts as standing the test of adequacy, and most prison administrations refer to it as a minimum standard. Therefore, by following the prescribed AALL list, a state can be reasonably sure that it has met its constitutional obligation if its total service plan ensures each inmate competent assistance in the use of the materials, sufficient time to conduct legal research, file petiti ons, and meet court deadlines. In spite of the fact that prison administrations are perfectly aware of these requirements, numerous inmates file law suits each year alleging inadequate access to the law library, claiming limited hours, schedule conflict, limited space, disciplinary actions, and damaged or incomplete collections. This trend is likely to continue in the present situation of serio us prison overcrowding.

In the majority of prisons, the law library and the general inmate library are managed as separate program areas but are often operating in the same space or in adjacent locations. From the administration's point of view, this arrangement facilitates supervision and reduces staffing needs. In many states a professional librarian supervises both library areas; in some prison systems the law lib rary is administered as a separate entity and is staffed by a law librarian or a non-librarian prison employee. Most prisons also employ inmates as law library clerks, and where inmate paralegals exist, they generally operate out of the law library.

Both the Library Standards for Adult Correctional Institutions(8) and the proposed Prison Law Library Guidelines (9) call for separate operations of the prison law library and the general library. The main rationale for this is that the two types of libraries have very different missions, i.e., the law library provides "access to the courts" and the general library serves informational, recreati onal and educational needs. The fear is also very real that in times of tight budgets, the general library will be shortchanged, if the court mandated law library is competing for the same funds. Prison administrations will take all measures possible to avoid getting sued by inmates. Whoever is in charge of the law library has responsibility for planning and evaluation, policy and procedure development, budgeting, collection development, staff training and supervision, inventory, legal reference and referral, and scheduling inmate access. When these responsibilities are added to those of managing the general library, the demands on the librarian are indeed high. Many of the larger states have seen the need to have a central coordinator of law library services, who has responsibility for uniform standards, equity of service, planning new libraries, collection specifications, and auditing library performance. Sometimes this coordinator is a law librarian or an attorney, but often the job is combined with that of general library services coordinator.

The basic core collection that will stand up to constitutional scrutiny consists of a federal and a state component, each containing codes, statutes, reporters (case law), digests to the reporters, and research tools such as Shepard's citators. Additional materials are criminal and constitutional law treatises, legal dictionaries and directories, legal research and writing manuals, forms, genera l "how-to" guides for the layperson, legal practice and procedure manuals, and the prison department's rules and regulations. The codes, statutes, reporters, digests and citators require continuous updating with pocket parts and inserts, and other materials must be available in the latest editions in order to be useful. Most libraries find a written collection development policy helpful, especially where the collection is larger and more comprehensive than the mandated minimum core. Often inmates will donate personal materials or donations from law firms and government agencies occur. Since it is expensive to keep all these titles current, there should be policies dealing with such situations. Maintaining the collection is a time consuming job which is often performed by a detail oriented inmate clerk, who also checks for missing pages and pocket parts. Many prisons have found that with direct user access t o the shelves come considerable loss and vandalism of materials. Consequently, a system where the content of the entire collection is prominently listed for all to browse but inmates request individual items from a service counter works better from both an inmate and administration point of view. It provides better control of the collection, and the fact that inmates sign for each item provides useful statistics on library use and proof that access was granted.

Legal collections grow rapidly, and housing them is a big problem for many, especially older, institutions where libraries are located in space that was not designed for this purpose. In some states, older and less frequently used parts of the collection are made available in microfiche and microform reader/printers are provided. The latest development in providing legal materials in alternativ e format is the introduction of CD-ROM. State and federal codes, reporters, and other materials are now published in CD-ROM format, and some prisons (e.g., in California, Massachusetts, and Wisconsin) are experimenting with CD-ROM workstations and local area networks (LANs). It will probably be at least a year before data can be analyzed from these pilot projects and access to the courts evalua ted as to its adequacy.

Besides maintaining and making available the legal collection, the law libraries provide several other services. Photocopying of legal materials and correspondence usually is available at a charge, but indigent inmates must be provided with loans against future earnings to pay for certain copies, stamps, envelopes, etc. Photocopying is heavily used by inmates. In most states, profits from inma te produced revenue must be used for the direct benefit of inmates; this often includes library materials and recreational equipment. Although photocopy machines are not mandated for inmate use, most prisons have them for practical reasons: an inmate who must copy many pages by hand requires a lot of time in the library.

Typewriters are generally provided for correspondence and filling out forms. Some law libraries have personal computers with legal forms stored on disk. Although there has been reluctance to allow inmates the use of computers for other than educational or work related purposes, the move towards wider acceptance is inevitable in places where priority is placed on a professional and efficient operation. Interlibrary loan in most prisons includes both general and legal library materials. The demand is mostly for law review articles and copies of case law from other states. Since this service is not mandated, it may be denied to inmates who abuse the privilege. Law library managers have also found it useful to be certified notaries, since many of the documents inmates send to the courts must be publicly notarized. Similarly, for practical reasons most libraries keep a supply of frequently used legal forms or master forms that may be duplicated. In addition to providing general reference assistance, the law library staff is often required to refer inma tes to sources of legal assistance outside the institution. The civilian library staff must be careful to distinguish between providing legal reference assistance and giving legal advice. The latter, along with drafting legal documents and taking an active role in inmate litigation, could be interpreted as "practicing law without a license" and has on occasion led to law suits by dissatisfied cu stomers.

Most prison law libraries are staffed by law librarians or general librarians who have had some training in legal research and managing legal collections. In some states, however, a civilian program or security officer supervises the library with inmates clerks performing most tasks. The law library functions most effectively when the library manager has a good knowledge of the law and the prop er use of legal materials. The best run libraries also provide extensive training to inmate clerks and formal orientation to users. Some have developed in house training and publicity materials, others have purchased commercial "how-to-use-the-law-library" books and videos. In order to employ the best qualified inmate law clerks, many states require candidates to pass a test measuring legal k nowledge and skills. These jobs are very desirable and carry much prestige.

Depending on the security level of the prison and the physical layout, there may or may not be a security officer stationed in the library. Most librarians feel quite safe in their work area, since inmate behavior is closely regulated and monitored; an added incentive to behave properly is that no inmate wants to have his access to the law library curtailed. The presence of a security officer i s generally welcomed by the librarian, who then has more opportunity to move around the institution and attend meetings, training, or other activities. The officer can answer the telephone and supervise patrons and inmate staff. The security of the collection is important for both financial and legal reasons. Replacement costs for legal publications are high, and if volumes or pages are missing, inmates may sue claiming that their right to an adequate law library has been denied.

Closely related to security is the layout and utilization of the library space. New prisons have been able to plan libraries with their specific functions in mind, incorporating new technology and space saver shelving. Seating is arranged for efficient use of space and easy visual supervision. The size of the study area is proportional to the prison population and the number of hours open. Whe ther or not the institution permits free inmate movement (as opposed to a pass or call-out system) also impacts on the size of the seating area. Older prisons have limited options for space utilization. Their libraries are often crowded and have limited storage; infrequently used materials may have to be stored elsewhere. And there is a long waiting list to get to the law library. Because of these conditions, the library must remain open days, evenings, and weekends.

The main purpose of the prison law library is to provide access to the courts through the availability of legal materials. If too many restrictions are placed on the physical access to the library and the collection (e.g., not enough time to conduct research; total hours allotted insufficient to meet court imposed deadlines; access denied for disciplinary reasons; materials not available when ne eded; inadequate assistance provided), prisoners sue the institution, the librarian, or the entire prison system. This happens regularly; sometimes the complaints are legitimate, sometimes frivolous. Having policies and procedures on the books that deal in detail with the access issue is imperative. Several states have been ordered by the courts to provide adequate access to legal materials to inmates who are in administrative, medical, or disciplinary segregation. These persons are entitled to "comparable" services, and most prisons with long-term segregation units have within the last five to six years had to establish socalled legal "starter" collections in each segregation unit. These "starter" collections consist of basic finding tools that enable inmates to identify and reques t specific cases, titles, and volumes from the main library or outside sources. In the past, the libraries generally required these inmates to furnish specific citations or article names on their request forms but did not provide them with the tools to do so. Much progress has been made in the area of access over the last ten years -- however, as the prison population keeps growing, the access problem remains with us.

REFERENCES

(1) Ex parte Hull, 312 U.S. 546 (1941).

(2) Burns v. Ohio, 360 U.S. 708 (1961)

(3) Smith v. Bennett, 365 U.S. 708 (1961)

(4) Johnson v. Avery, 393 U.S. 483 (1969)

(5) Younger v. Gilmore, 404 U.S. 15 (1971)

(6) Wolff v. McDonnell, 418 U.S. 539 (1974)

(7) Canterino v. Wilson. 562 F. Supp, 106, 111 (W.D. Ky. 1983); Glover v. Johnson, 478 F. Supp. 1075, 1096 (E.D. Mich. 1979); Wetmore v. Fields, 458 F. Supp. 1131 (W.D. Wis. 1978)

(8) American Library Association/Association of Specialized and Cooperative Library Services, 1992.

(9) American Association of Law Libraries (1994 draft document)

SELECT BIBLIOGRAPHY

MONOGRAPHS

American Association of Law Libraries. Standing Committee on Law Library Service to Institution Residents, Contemporary Social Problems Special Section. Correctional Facility Law Libraries: An A to Z Resource Guide, Laurel, Maryland: American Correctional Association, 1991.

Flittie, Roger G. Bibliography of Selected Prison Cases: Law Library Edition. Sioux Falls, South Dakota: Prison Information Service, Inc., 1991.

Flores, Arturo A. Werner's Manual for Prison Law Libraries. 2nd ed. Littleton, Colorado: F.B. Rothman, 1990.

Gobert, James and Neil Cohen. Rights of Prisoners. Colorado Springs: Shepard's McGraw Hill, 1991 with cumulative supplements.

Hartz, Fred R. et al. Prison Librarianship: A Selective, Annotated, Clarified Bibliography, 1945-1985. Jefferson, North Carolina: McFarland & Co., 1987.

Rodovsky, David, et al. The Rights of Prisoners. 4th ed. (An American Civil Liberties Union Handbook). Carbondale, Illinois: Southern Illinois University Press, 1988.

Wise, Olga B. and J. MacGregor Smith. Planning a Legal Reference Library for a Correctional Institution. Champaign, Illinois: National Clearinghouse for Criminal Justice Planning and Architecture, 1976.

ARTICLES

Albert, Myra. "Prison Libraries: Rationale and Role", Journal of Correctional Education 40 (September, 1989): 126-129.

Alpert, G.P. and C.F. Huff. "Prisoners, the Law, and Public Policy --Planning for Legal Aid," New England Journal of Law 7 (Summer 1981): 307-386.

Audet, William M. "Representing the Institutionalized Mariel Cubans -- The Wisconsin Experience," Wisconsin Law Review 1987 (May June 1987): 455 491.

Belz, Richard A. "Legal Services for Florida's Inmates: Expanding Access to the Courts by Hooks and Bounds," Florida Bar Journal 56 (February, 1982): 183-185.

Bodine, Larry. "New Mexico's Prison Lesson: Inmates Have Turned to the Courts in 28 States as a Last Resort to End Intolerable Conditions," The National Law Journal 3 (February 25, 1980): 1.

Champion, Dean J. "Some Recent Trends in Civil Litigation by Federal and State Prison Inmates", Federal Probation 52 (September, 1988): 43-47.

Dale, M.J. "Writ Writers, Jailhouse Lawyers, and Pro Se Plaintiffs: An Analysis of Prisoners' Right of Access to the Courts", American Jails 2 (Fall 1988): 29-31.

Davis-O'Hay, Jessica. "Inmates Victorious in Library Litigation (Pennsylvania)," Pennsylvania Law Journal-Reporter 12 (December 4, 1989): 1.

Dean, Scott. "Court Reinstates Prisoner's Suit: Civil Rights Action over Access to Law Library not Frivolous," Pennsylvania Law Journal 15 (October 12, 1992): 8.

Flores, Arturo A. "Bounds and Reality: Lawbooks Alone Do Not a Lawyer Make" Law Library Journal 77 (Spring 1985): 275-287.

Gordon, Barbara. "Correctional Librarians : Providing Service by the Book," Corrections Today 51 (December, 1989); 60.

Haas, Kenneth C. and Geoffrey P. Alpert. "American Prisons and the Right of Access to the Courts: A Vanishing Concept of Protection" The American Prison: Issues in Research and Policy. Ed. by Lynne Goodstein and Doris Layton MacKenzie. New York: Plenum Press, 1989: 65 87.

Hinckley, Steven D. "Bounds and Beyond : A Need to Reevaluate the Right of Prisoner Access to the Courts," University of Richmond Law Review 22 (Fall 1987): 19-49.

Kempinen, Ben. "Prisoner Access to Justice and Paralegals: The Fox Lake Paralegal Program," New England Journal on Criminal & Civil Confinement 14 (Winter 1988): 67-90.

Marke, Julius J. "Prisoners' Right of Access to Law Libraries," New York Law Journal 200 (December 20, 1988): 4.

Meshnick, Howard. "Constitutional Law-Prisoners' Right of Access to Courts Does Not Mandate Additional Legal Assistance When Law Library Access is Adequate", Suffolk University Law Review 19 (Spring 1985): 120-128.

"Prison Law Libraries (Editorial)," National Law Journal 7 (October 7, 1984).

Remington, Frank J. "Change in the Availability of Federal Habeas Corpus: Its Significance for State Prisoners and State Correctional Programs," Michigan Law Review 85 (December 1986): 570 591.

Remington, Frank J. "Restricting Access to Federal Habeas Corpus: Justice Sacrified on the Altars of Expediency, Federalism and Deterrence," New York University Review of Law & Social Change 16 (June, 1988): 339-357.

Rubin, Rhea Joyce and Sandra J. Souza. "The Challenge Continues: Prison Librarianship in the 1980s," Library Journal 114 (March 1, 1989): 47-52.

Ryan Wayne. "Access to the Courts: Prisoners' Right to a Law Library," Howard Law Journal 26 (Winter 1983): 91-117.

Smith, Christopher E. "Examining the Boundaries of Bounds: Prison Law Libraries and Access to the Courts," Howard Law Journal 30 (Winter 1987): 27-44.

Smith, Christopher E. "Improving the Use of Prison Law Libraries: A Modest Proposal," Law Library Journal 79 (Spring 1987): 227-239.

Stowe, Charles R.B. "Equal Access to Courts: A Look at Texas Prison Libraries," Texas Bar Journal 50 (December 1987): 1238 1240.

Sullivan, Larry. "Between the Covers: Prison Libraries in Historical Perspective," Wilson Library Bulletin 64 (October, 1989): 26-29.

Suvak, Daniel. "Pen and Ink: Writing Standards for Prison Libraries" Wilson Library Bulletin 64 (October, 1989): 29-30.

Thomas, Jim. "The Reality of Prisoner Litigation: Repackaging the Data", New England Journal on Criminal & Civil Confinement 15 (Winter 1989): 27-53.

Westling, Wayne T. and Patricia Rasmussen. "Prisoners' Access to the Courts: Legal Requirements and Practical Realities", Loyola University of Chicago Law Journal 16 (Winter 1985): 273-317.