Jail Mail Blues

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

2. 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

3. 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

4. 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).

5. 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.

6. 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

7. 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

8. 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.

9. 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

10. 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.

11. 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.

12. 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)

13. 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.

14. 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.”

15. 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.

16. 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.”

17. 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: • an actual injury has occurred because he has been denied access to the courts due to little or no access to a law library • AND you have to show that you had a “non-frivolous” legal claim.

18. 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.”

19. 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

20. 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.”

21. 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

22. 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)

23. 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

24. 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

25. State of Texas says • Excellent discussion and overview of Texas law at 58 Tex. Jur. 3d Penal and Correctional Institutions § 85

26. 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

27. 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.

28. 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

29. 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

30. 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

31. 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

32. 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

33. 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.

34. 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

35. 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

36. 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

37. 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

38. 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

39. 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

40. 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

41. 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 non-English 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.

42. Why Should Law Librarians Help? • We can send inmates information on how to contact groups to help them- Innocence 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.

43. 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

44. Amy Hale-Janeke Head of Reference Services5th Circuit Court of Appeals LibraryNew Orleans Headquarters600 Camp Street, Room 106New Orleans, LA 70130ph: (504) 310-7755 ahjaneke@ca5.uscourts.gov

45. 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).