Constitutional Rights of Inmates Chapter 8 Legal Services

1. Constitutional Rights of Inmates Chapter 8 Legal Services

2. Legal Services • Fundamental element of due process clause of 14th Amendment is access to courts. • Includes right to hearing appropriate to the case. • At meaningful time and in meaningful manner

3. Legal Services • Ex parte Hull, 312 U.S. 546 (1940) • state prison regulation required all inmate court proceedings be cleared by censor before filing. • Supreme Court held this invalid. • State may not impair inmate’s rights to petition federal court for writ of habeas corpus.

4. 6th Amendment Right to Counsel • Applies at trial and appeal • Originally not applied to post-conviction relief-a collateral proceeding • Courts held right to counsel at trial and appeal were sufficient protection

5. Access to Courts • 5th and 14th Amendment due process clause • 1st Amendment right to petition government for redress of grievances • 6th Amendment right to assistance of counsel in criminal cases

6. Legal Services in Prison • For many years prison regulations impaired inmates’ right of access to courts • Disciplinary actions brought against inmates for pursuing legal remedies • Confiscation of inmate’s legal documents and materials • Prisons rarely provided inmates with services related to legal matters

7. Legal Services in Prison • Inmates relied on “jail-house lawyers” or “writ-writers” • Inmate self-educated in legal matters • Minimal level of legal skill • Provides legal advice • Drafts legal pleadings and petitions

8. The “right” guaranteed by this decision was that of an illiterate inmate prisoner to receive legal aid from a fellow prisoner in the preparations for writs of habeas corpus Johnson v. Avery, 393 U.S. 483 (1969)

9. Restrictions on Legal Services • Storage of law books in cells prohibited (justified on security reasons) • Prohibition of legal materials from sources other than attorneys and publishers.

10. Jailhouse Lawyer Issues • Which inmates may receive assistance from jailhouse lawyer? • Who may act as jailhouse lawyer? • What restrictions may prison place on jailhouse lawyer? • What type of assistance may jailhouse lawyer give? • What is reasonable alternative to the jailhouse lawyer?

11. Who may be “client” of jailhouse lawyer? • Johnson - illiterate inmates working on habeas corpus petitions • Courts not limited assistance to this type of case • Types of cases handled by jailhouse lawyers • Transfer of inmate to maximum security • Prison disciplinary hearings • Not limited to illiterate “clients” • Jailhouse lawyer may not aid a parolee • Inmates temporarily confined to isolation cannot see jailhouse lawyer: unless confinement will be lengthy

12. Who may be a jailhouse lawyer? • Not a right to practice law by the jailhouse lawyer • Right of inmate to receive help with legal matters from another inmate

13. Who may be a jailhouse lawyer? • Generally, “attorney substitute” must be in same institution as “client”

14. Reasonable Restrictions • Regulate time and place of “services” • Prohibit “fees”

15. Reasonable Restrictions • Courts held uncontrolled discretion of prison officials regarding jailhouse lawyers is unconstitutional • Discretion should be subject to established guidelines.

16. Reasonable Restrictions • Courts have allowed jailhouse lawyers to have papers of”client” until case is over, then returned. • Unlikely that rule that prohibited jailhouse lawyer from having his client’s paper would be upheld. • Where can attorney substitute have papers?

17. Restrictions on Jailhouse Lawyers • Prison rule did not allow inmate to file as a “next friend.” • Such a filing is as a substitute or proxy party – example a parent may file on behalf of minor child as a “next friend” • Court will only allow such a filling in unusual circumstances and it is doubtful that a court would allow such a filing • Court struck down prison’s rule, holding it for court to decide, not prison.

18. Restrictions on Jailhouse Lawyers • Restricting number of books jailhouse lawyer had in his cell was upheld. • Inmates do not have right to possess law books beyond that set out in Turner v. Safely. • If inmate “client” could prove that he being harmed by jailhouse lawyer not having access to books, then there may be remedy. • Right involved is of inmate-“client” not the jailhouse lawyer.

19. Type of Assistance • Avery decision limited to habeas corpus actions. • Courts have found other types of cases equally protected • Civil rights actions under 42 USC 1983 • Any legal petitions • Wolf v. McDonnell, 418 U.S. 539 (1974) Avery not limited to habeas corpus cases, but extends to civil rights actions as well. • Graham v. State Dept. of Corrections, when inmate is unable to competently handle his reclassification hearing he may have a jailhouse lawyer help.

20. “Reasonable” Alternative to Attorney Substitute • Johnson v. Avery- prison administration may not restrict jailhouse lawyer unless a “reasonable alternative” to legal services is available. • Alternatives: • Licensed attorney • Law school program

21. “Reasonable” Alternative to Attorney Substitute • If alternative exists, courts do not seriously look at effectiveness of alternative • Ayers v. Ciccone, one attorney working 12 hours per week was reasonable alternative to jailhouse lawyer • Novak v. Beto, state district court held Texas Dept of Correction could bar jailhouse lawyer because dept had two full-time attorneys for 13,000 inmates • On appeal case was reversed because district court did not consider adequacy of program.

22. Alternatives • Beard v. Alabama, 5th Circuit held that jailhouse lawyers could be prohibited if state provided a “sufficient” legal aid program. • Noorlander v. Ciccone, 8th Circuit Court of Appeals held prisoner not entitled to law library at institution. • Inmates had access to public defenders • Not entitled to access by all available means

23. Alternatives • Williams v. Dept. of Justice and Cross v. Powers • Legal services provided to inmates through law school clinic programs • Expanded Johnson v. Avery to cases other than habeas corpus proceedings • Williams included all pro se actions • Cross held all inmates filing civil rights complaints could use jailhouse lawyers

24. Alternatives • Both cases ruled that law school programs were inadequate • Petitioner in Williams claimed an 18 month delay between requesting help from law school program and meeting with a student • Court held this delay was not reasonable • In Cross law school program would not help inmates who wanted to sue prison officials

25. The former director of the Texas Department of Corrections was held personally liable in money damages to a group of indigent prisoners for depriving them of the opportunity to consult with their attorney Cruz v. Beto, Civil No. 71-H-1371 (S.D. Tex., filed Mar. 18, 1976)

26. Restrictions on Attorneys • Procunier v. Martinez, • US Supreme Court voided regulation that prohibited attorneys from using more than two investigators and did not allow attorneys to delegate interviews of inmates to law students and paralegals • Prison did allow law school clinic programs to send students to interview • Court found this was an unreasonable distinction between students working for private attorneys and those involved in the clinic program.

27. Access to Legal Materials • Before Johnson v. Avery, courts often upheld regulations which limited the legal materials inmates could have in their cell. • Some decisions now hold access to courts includes right to possess legal materials to assist with preparation of court pleadings. • Decisions do not prevent prison officials from restricting legal research to certain areas and from not allowing storage of notes in the cell. This may be restricted to maintain security and fire safety.

28. Access to Legal Materials • Prisoners allowed to have copy of state rules of criminal procedure. • Officials may restrict number of books inmate may have. • Prison may regulate manner in which inmate conducts research, but may not result in “wholesale confiscation” of legal documents. • Regulations may not amount to an unconstitutional impediment to access to courts.

29. Access to Legal Materials • Gilmore v. Lynch, (N.D. Calif. Decision affirmed by US Supreme Court) held access to courts includes all means petitioner must have to receive fair hearing. • Prison officials have duty to take affirmative action to assure inmates have access to courts. • Includes sufficient legal materials to file required pleadings

30. Access to Legal Materials • Georgia department of correction had plan for law library • Library to be open minimum of 9 hours per week with such additional time as to give each inmate who wanted to use the library 8 hours every three weeks • Library must contain certain reference materials • Prisoners could receive certain volumes from county library • Paralegals not required.

31. Access to Legal Materials • Limited resources of prison library not a denial of access if the inmate could get the materials from another library.

32. The Supreme Court took an affirmative view toward the responsibility of prison authorities to provide prisoners with adequate law libraries or a sufficient alternative No mandate for law libraries if sufficient alternative program Bounds v. Smith, 430 U.S. 817 (1977)

33. Law Library • Inmates must be given reasonable opportunity to use the library • Time: no specific rule, but 7th Circuit approved 10-12 hours per week as a minimum amount of time an inmate needs for meaningful research

34. Law Library • Assistance in using library • Not providing advice, • Merely providing assistance in finding materials

35. Transferred Inmates • How to provide legal materials to inmate who is now in another state; • State transfers inmate to another state to house him • Transferring state should assume costs of getting legal material for the state whose laws or procedures are involved in the dispute.

36. Right to Counsel • Person accused of crime has right to counsel under 5th and 6th Amendments • Indigent person must be appointed counsel • Not changed by fact of incarceration

37. Right to Counsel • Prison may not unreasonably interfere with inmate’s right to communicate with attorney. • mailing • visitation

38. Right to Counsel • Inmates who waive counsel • Not entitled to law library

39. Right to Counsel • Right to counsel attaches at point of filing an adversary judicial proceeding • No right to pre-indictment investigator

40. Appointed Expert Witness • 9th Circuit Court of Appeals remanded second-hand smoke case against state for determination as to whether or not to appoint an expert witness who could give testimony about environmental smoke and it health impact on inmates.

41. Right to Counsel in State Post-Conviction Relief Proceedings • Murray v. Giarratano, 492 U.S. 1, (1989)

42. Right to Counsel • Inmate has right to attorney at trial and direct appeal (6th Amendment, 14th Amendment) • No absolute right to counsel while inmate is considering filing complaint for relief. • Inmate has right of access to courts. • This means either a law library or legal assistance

43. Right to Counsel • If inmate can file case, court has power to appoint counsel. Bee v. Utah State Prison, 823 F.2d 397 (10th Cir. 1987). • No absolute right to appointed counsel if inmate files pro se complaint. • Court has discretion to appoint counsel.

44. Right to Counsel • Jailhouse lawyers in court – absolutely not. Thomas v. Estelle, 603 F.2d 488 (5th Cir. 1979). • Court has no authority to designate lay advocate for inmate. • Courts have discretion to appoint counsel • Generally will require that inmate present facts indicating basis for relief

45. Right to Counsel • Post-conviction relief stage no right to appointed counsel • Does this result in other constitutional arguments? • Equal protection – inmates with money have lawyer, while indigent inmates are on their own • Due process – fundamental fairness argument.

46. Appointed Counsel • In federal habeas corpus actions, court has discretion to appoint counsel under Criminal Justice Act of 1970 18 U.S.C. 3006(A) • Court must consider complexity of case and ability of inmate • Consider merits of case and chances of success

47. Appointed Counsel • Who pays appointed counsel? • Federal civil rights cases-attorney is paid fee only if suit is successful • Court will award fee in successful cases and state will be required to pay

48. Retaliation • Woods v. Smith, an inmate was told that if he did not become an informant he would be transferred to less desirable unit of the prison. • Inmate wrote letter to federal judge and was given a disciplinary charge for defiance. • This violated his right to access to the courts.

49. Elements of Retaliation Claim • Prison official acting under color of law • Intentional retaliation for exercise of a constitutionally protected right

50. Elements of Retaliation Claim • Violation of specific constitutional right • But for the retaliatory motive, the incident would not have occurred. • Requires direct evidence of motive, or series of events from which retaliatory motive may be inferred.