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Inmate Access to Legal Resources & Materials, LJN Exchange, 2004

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Jnmate Access to Legal
Reso~Af>4ces & Matef>4ials
How Do We P~ovide J~mates
Access to the Cot,t~s?

he question posed in this article's title has challenged correctional
administrators for decades. Just when most thought they had it right,
the U.S. Supreme Court in 1996 handed down their landmark decision in Lewis v. Casey. In that decision, the justices reviewed the "meaningful
access to the courts" requirement established in their prior decision in Bounds v.
Smith. During that same period, Congress passed the Prison Litigation Reform
Act. This act places strict regulations on inmate litigation, the most notable being
that a prisoner must exhaust all available administrative remedies before filing
suit. These two actions together have altered the way law library programs are
implemented and maintained today.
We must recognize that there is no one perfect law library access program.
Unfortunately, Lewis did not provide detailed guidelines for one. However, Lewis
did define what rights must be provided, and, for corrections professionals who
were awaiting change, Lewis did not disappoint. The justices clarified that there
is no constitutional right to a law library, only a "right of access to the courts."
Almost immediately, many administrators across the country took this decision
as a green light to eliminate their law libraries altogether.
Such an extreme action should not be taken lightly:
•

A recent nationwide survey among large jails showed that 41% have had
litigation regarding law library services.

•

Even more eye-opening is the fact that 32% of the agencies reporting
were under court orders on the issue.

by
Mark 5. Cacho,
Law Library
Operations
Officer,
Orange County
Corrections
Department,
Orlando, Florida

History of Lewis v. Casey
The right of access to the courts for inmates was established in 1977 in Bounds
v. Smith:

[T]he fundamental constitutional right of access to the courts requires prison
authorities to assist inmates in the preparation and filing of meaningful/ega/
papers by providing prisoners with adequate law libraries or adequate
assistance from persons trained in the law.
Lewis v. Casey was originally a class action lawsuit brought by Arizona state
prisoners. Following a 3-month bench trial, th e district court held that the plaintiffs had been denied access to the courts and ordered system-wide changes.
The court identified a number of systemic deficiencies related to the law libraries
system and found specific prison practices deficient in regard to illiterate prisoners and prisoners in "lockdown."
In 1996 the U.S. Supreme Court reversed the lower court's judgment and held
that the "success of [the plaintiffs'] systemic challenge" to the adequacy of the
Arizona prison law libraries "was dependent on their ability to show widespread
actual injury, and that the court's failure to identify anything more than isolated
instances of actual injury renders its findings of a systematic Bounds violation
invalid." The Court reasoned that "Bounds did not create an abstract, freestanding right to a law library or legal assistance," and therefore, "an inmate cannot
establish relevant actual injury simply by establishing that a prison's law library
or legal assistance program is subpar in some theoretical sense." Rather, "the
inmate must.. .go one step further and demonstrate that the alleged shortcomings in the library or legal assistance program hindered his efforts to pursue a
legal claim."
Establishing a Bounds injury requirement is no easy task for inmates. The
Lewis court explained, "[T]he Bounds injury requirement for an inmate's C:aim of
denial of access to the courts is not satisfied by just any type of frustrated legal
claim; Bounds does not guarantee inmates the wherewithal to transform themselves into litigating engines capable of filing everything from shareholder
derivative actions to slip-and-fall claims; rather, the tools it requires to be
provided are those that inmates need in order to attack their sentences, directly
or collaterally, and in order to challenge conditions of confinement. Impairment of
any other litigating capacity is simply one of the incidental (and perfectly constitutional) consequences of conviction and incarceration."
As might be expected, the core holding of Lewis, and particularly the actual
injury requirement, now present a significant impediment to an inmate's effort to
prove deprivation of the right of access to the courts. Does this mean we can
totally eliminate inmates' access to legal resources and materials? Of course that
answer is no, but we can and should continue to improve the legal access services we already provide.

ACA Legal Access Standards
The American Correctional Association (ACA) has dealt with this sensitive issue
for many years and has adopted the following legal access standards for agencies seeking accreditation:

Access to Courts: 3-ALDF-3E-01 I Written policy, procedure, and practice
ensure the right of the inmate to have access to courts.
Comments: The right of access to the courts minimally provides that
inmates have the right to present any issue, including the following:
challenging the legality of the conviction or confinement; seeking redress for
illegal conditions or treatment while under correctional control; pursuing
remedies in connection with civil legal problems; and asserting against
correctional or other government authority any other rights protected by
constitutional or statutory provisions or common law. Inmates seeking relief
are not subjected to reprisals or penalties because of the decision to seek
such relief.

Access to Counsel: 3-ALDF-3E-02 I Written policy, procedure, and
practice ensure and facilitate inmate access to counsel and assist in making
confidential contact with attorneys and their authorized representatives;
such contact includes, but is not limited to, telephone communications,
uncensored correspondence, and visits.
Comments: Facility authorities should assist inmates in making confidential
contact with attorneys and their authorized representatives; these
representatives may include law studenis, special investigators, lay counsel,
or other persons who have a legitimate connection with the legal issue being
pursued. Provision should be made for visits during normal facility hours,
uncensored correspondence, telephone communications, and after-hours
visits requested because of special circumstances.

Access to Law Library: 3-ALDF-3E-03 I Written policy, procedure, and
practice provide that inmates have access to legal materials if there is not
adequate free legal assistance to help them with criminal, civil, and
administrative legal matters.
Inmates have access to paper, typewriters or typing service, and other
supplies and services related to legal matters.

American Association of Law Libraries
The American Association of Law Libraries (MLL) has been in existence since
1906, but, surprisingly, many in the corrections community have never heard of
it. The organization has been committed to serving inmates and prison law
libraries since the early 1970s. To fulfill this mission, it has undertaken a variety
of projects, including publications, consultation activities, and official representation for related organizations.

The AALL publication, Recommended Collections for Prison and Jail Law
Libraries, has frequently been cited in litigation focusing on inmate access to the
courts. In addition, the association has a standing special interest committee on
Law Library Service to Institutional Residents (www.aallnet.org/sis/srsis/
lsirhome.html) and an online database where institution residents can locate
local law library services (www.aallnet.org/sis/srsis/llsp/).

American Civil Liberties Union
Mention the American Civil Liberties Union (ACLU), and many correctional
administrators become defensive. I must admit that was my reaction when AALL
invited my colleague and me to speak on a program panel that included David
Fathi, Staff Counsel for the ACLU National Prison Project (www.aclu.org/Prisons/
PrisonsMain.cfm). Even more intimidating was the fact that Mr. Fathi was cocounsel for the plaintiffs in the Lewis v. Casey case. The Orange County
Corrections Department (OCCD) law library system was to be explained and
discussed in this program.
The program's main topic was "Prison Law Librarians and AALL, Five Years
After Lewis v. Casey." Though many challenging issues and topics were
discussed, Fathi confirmed our position that OCCD was moving in the right direction. In his appreciation letter to OCCD Chief Timothy P. Ryan, he stated, "The
hands-on, real world perspective Officers Mark Cacho and William Jackson
brought to the panel was extremely valuable. I was impressed both with the law
library program, and by the knowledge, initiative, and dedication shown by these
officers. I hope that they and their program will continue to enjoy your full
support."

Elements of an Exemplary Law Library Access Program
An exemplary inmate law library access program must demonstrate compliance
with the following principles:
•

The program musi provide inmates the tools necessary to challenge the
legality of their conviction or confinement; seek redress for illegal
conditions or treatment; and pursue remedies to address their civil legal
matters.

•

The program must have a clear and specific purpose, stated in a formal
mission statement.

•

The program must have specific and measurable goals and objectives.

•

The program must be effective, efficient, and creative in addressing the
legal information needs of inmates.

In addition, if ACA accreditation is desired, then ACA's legal access standards
must be adopted into the agency's policies and procedures.

~fAt&.J~rNB!JI·~·I.B!IBII.IIIIII·················
OCCD's Law Library Access Program
The mission of the Orange County Corrections Department Law Library is to
secure all offenders' constitutional right to access the courts by providing a law
library access program that enhances meaningful access to legal resources,
materials, and services.
After the Lewis decision, OCCD modified its law library program into what it is
today. It is a centralized system with one extensive legal collection at the main
facility. All satellite facilities and inmates who are classified special risk are
served via the Inmate Legal Material Request Procedure. Three certified correctional officers with formal legal training serve a population of approximately 3,500
inmates.
By using mediated electronic and online research, the law library provides
current, accurate, legal information in a cost-effective and efficient manner. This
approach reduces the expense in terms of both money and space for purchasing
most new court reports. Our program provides timely service to all inmates,
regardless of their location, and eliminates the need to establish extensive legal
collections at every residential facility.
The law library is a member of AALL and is actively involved with AALL's Law
Library Service to Institutional Residents special interest committee. This
membership and committee affiliation give our staff an opportunity to gain invaluable knowledge, skills, and resources necessary to fulfill our mission. Attending
AALL's annual conference also gives us exposure to the latest technologies and
trends in legal information gathering. The expertise we acquire helps to reduce
our agency's costs. It also allows us to bring back vital legal information
resources for the entire department, not just the inmate population. These and
other activities assist in creating an environment that enhances an inmate's
access to the courts, while also allowing for a meaningful and educational experience for classified offenders who choose to visit the law library physically. The
law library has numerous self-help materials, and a number of legal software
companies have recruited OCCD to enroll in their pilot programs relating to
inmate legal research.
For example, one new product is the law library research unit, TSTLL, developed by Touch Sonic Technologies, Inc. (www.touchsonic.com/index.php). This
unique technology includes a hardware unit and a complete system of monitoring, maintenance, and service to deliver a complete law library to. inmates. The
key is the use of a shatter-proof touch screen that allows users, even those with
no computer experience, to research every type of legal data that must be available to inmates. This type of law library investment may not meet your agency's
needs, but it is an example of the valuable tools that are available.

·······················~~~~~-~41tf~Nc~,The Value of an Investment
You may assume that an exemplary law library program is beyond your agency's
available budget. At OCCD we have found that since we modified and implemented our program, the law library budget is now less than when the library first
began operations. This cost reduction has resulted from applying the efficiencies
learned through our various activities.
As mentioned earlier, there is no textbook formula for a perfect and flawless
law library program. What works for one agency may not work for others.
However, correctional administrators who are committed to supporting a progressive and proactive law library program can reap far more rewards than they ever
anticipated. •

Resources
Information contained in this article has been obtained in part from the following
sources, which are highly recommended for those researching the subject.
Caselaw and Statute
Bounds

v. Smith, 430 U.S. 8·:7 (1977).

Lewis v. Casey, 518 U.S. 343 (1996).
Prison Litigation Reform Act-Section Titled, "Suits by Prisoners." 42 USC§ 1997(e).

Articles
Karen Westwood, "Meaningful Access to the Courts and Law Libraries: Where Are We
Now?" 90 Law Libr. J. 193 (1998).
Peter Hobart, "The Prison Litigation Reform Act: Striking the Balance Between Law and
Order," 44 Viii. L. Rev. 981 (1999).
Margo Schlanger, "Inmate Litigation," 116 Harv. L. Rev. 1555 (2003).
Joseph Gerken, "Does Lewis v. Casey Spell the End to Court-Ordered Improvement of
Prison Law Libraries?" 95 Law Libr. J. 49 (2003).
American Association of Law Libraries 2002 Conference Program, "Breaking Connections
or Making Connections-Prison Law Librarians and AALL Five Years After Casey v.
Lewis." To order program, contact Mobiltape at 1-800-369-5718 or on-line at www.mobiltape.com/search.asp. Utilize SKU#02AALL-E6.

 

 

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