Application for a writ of habeas corpus shall be in writing signed and verified by the person for whose relief it is intended or by someone acting in his behalf.

 

See also Article VI Section 2 of the U. S. Constitution which provides:

This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

Since the above clearly establishes a right under the Constitution and laws of the United States, such right cannot be precluded without criminal penalty pursuant to 18 U. S. C. 241, 242 and/or 245 and/or civilly liable to the injured party(s) pursuant to 42 U. S. C. 1983 and/or 1985.

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

By: William Marshall

Paralegal & Post Conviction Consultant

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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.

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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, i.e. 'paralegals'. 

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 and subsequently extended to apply to jails housing inmates in excess of sixty days pursuant to Williams v. Leeke, 584 F 2d 1336. 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.

Narrowing the Scope of the Right of Access to Court

A 1996 Supreme Court case specified in Lewis v. Casey, 116 S. Ct. 2174 that a prisoner must show a denial of access to court, not a denial of access to a law library or legal assistance, in order to claim a denial of court access.    Therefore, a prisoner must show that the inadequacies in the prison's library or assistance program "hindered his efforts to pursue a legal claim" and an "actual injury" resulted.  An "actual injury" occurs where the effort of a prisoner to pursue a non-frivolous legal claim was hindered or "has been frustrated or was being impeded. For example, the Court clarified that if a prisoner's complaint is dismissed because the individual was unable to research pleading requirements or unable to file a complaint, a hindrance had occurred. 

Access can be impeded if detention personnel interfere with an inmate’s ability to exhaust administrative remedies for non-frivolous claims as required by Prison Litigation Reform Act (PLRA).See: Davis v. Milwaukee, 225 F. Supp. 2d 967. Some courts assume that only dismissal or inability to file satisfies the injury requirement. See: Ingalls v. Florio, 968 F. Supp. 193. Others assume the obstacles that interfere with the ability to present one's case effectively are actionable. See: Goff v. Nix, 113 F. 3d 887.  To establish injury, an inmate does not need to show that if he had been provided with adequate legal facilities he would have prevailed in a lawsuit. See: Walters v. Edgar, 163 F. 3d 430.  He need only show that he was prevented "from litigating a non-frivolous case. Consequently, to some extent, the Lewis decision has made more clear as to foresee that inmates are afforded access to an adequate law library in order to be afforded their right of access to the courts or in the alternative as mandated in Bounds v. Smith, supra, that inmates are given access to and receive the assistance of a paralegal as is this author.  

While it is the courts' role to provide relief to prisoners who are in present or imminent danger, it is the job of the other branches of government to "shape the institutions of government in such fashion as to comply with the laws of the Constitution.  The roles between the branches briefly coincide when a court remedies an actual injury by directing changes in institutional organizations or procedures. To view copy of the Bounds court decision or to hear the actual audio version, such can be accessed from my homepage referencing the case in Bounds v. Smith, 430 U. S. 817.      

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)

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Ex Post Facto Law In The United States

In the United States, the federal government is prohibited from passing ex post facto laws by Article I, section 9  of the U.S. Constitution and the states are prohibited from the same by clause 1 of section 10. This is one of the very few restrictions that the United States Constitution made to both the power of the federal and state governments prior to amendment. Over the years, when deciding ex post facto cases, the United States Supreme Court  has referred repeatedly to its ruling in the Calder v. Bull case of 1798, in which Justice Chase  established four categories of unconstitutional ex post facto laws. The case dealt with Article I, section 10, since it dealt with a Connecticut state law.

However, not all laws with ex post facto effects have been found to be unconstitutional. One current U.S. law that has an ex post facto effect is the Adam Walsh Child Protection and Safety Act of 2006. This law, which imposes new registration requirements on convicted sex offenders, gives the United States Attorney General the authority to apply the law retroactively. The U.S. Supreme Court ruled in Smith v. Doe (2003) that forcing sex offenders to register their whereabouts at regular intervals and the posting of personal information about them on the Internet does not violate the constitutional prohibition against ex post facto laws, because compulsory registration of offenders who completed their sentences before new laws requiring compliance went into effect does not constitute a punishment.^[3]

Another example is the so-called Lautenberg law  where firearms prohibitions were imposed on those convicted of misdemeanor domestic violence offenses and subjects of restraining orders (which do not require a criminal conviction). These individuals can now be sentenced to up to 10 years in a federal prison for possession of a firearm, regardless of whether or not the weapon was legally possessed at the time the law was passed. Among those that it is claimed the law has affected is a father who was convicted of a misdemeanor of child abuse despite claims that he had only spanked his child, since anyone convicted of child abuse now faces a lifetime firearms prohibition. The law has been legally upheld because it is considered regulatory, not punitive - it is a status offense.

Finally, Calder v. Bull expressly stated that a law that "mollifies" a criminal act was merely retrospective and not an ex post facto law.

A large "exception" to the ex post facto prohibition can be found in administrative law, as federal agencies may apply their rules retroactively if Congress has authorized them to do so. Retroactive application is disfavored by the courts for a number of reasons,^[4] but Congress may grant agencies this authority through express statutory provision. Furthermore, when an agency engages in adjudication, it may apply its own policy goals and interpretation of statutes retroactively, even if it has not formally promulgated a rule on a subject.

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FUTURE ARTICLES

1.     Individuals cannot be jailed for 'inability'  to pay fines, restitution or other cost in connection with a court judgment.

2.     Civil & Criminal penalties against government officials acting under color of law for violation of civil rights pursuant to 18 United States Code 241, 242 and/or 245; and/or  42 United States Code 1983 and 1985.