Experiment in Access: Law Libraries Eliminated in Arizona Prisons
The August 1996, issue of PLN reported Lewis v. Casey, 116 S.Ct. 2174 (1996). The Lewis court, though not explicitly overturning Bounds v. Smith, 430 US 817, 97 S.Ct. 1491 (1977), redefined the meaning of "court access" as it applies to prisoners. The Bounds court held that prison officials are required "to provide indigent inmates with access to a reasonably adequate law library."
The Lewis court redefined the scope and intent of Bounds by relying instead on its experimental doctrine and actual harm clauses. "Moreover," justice Antonin Scalia wrote for the majority, "the assumption of an actual-injury requirement seems to us implicit in the opinion's statement that 'we encourage local experimentation in various methods of assuring access to the courts."'
On remand from the Lewis court, on July 1, 1997, district judge Roger G. Strand, based strictly on the merits of "actual harm," which the supreme court in Lewis said did not warrant "system-wide relief'' dismissed the plaintiffs legal access claims with prejudice.
Strand's ruling essentially closed the book on Lewis. "The class action case challenging ADOC's legal access program is over," said Marjorie Rifkin, staff counsel for the ACLU-National Prison Project which represented Arizona prisoners on Lewis.
Within days of judge Strand's dismissal order, ADOC Director Terry Stewart issued a memo to all AZ prisoners which states: "This is official notice that on August 4, 1997, all libraries [34 statewide], with the exception of Central Unit, will be permanently closed... I am implementing Department Order 902 which completely revamps and streamlines inmate access to the courts. The law libraries are being eliminated because the U.S. Supreme Court has said they are not required for inmate legal access."
And the 'experiment" is afoot. DO-902, in addition to eliminating prison law libraries, establishes 226 new rules governing court access for Arizona prisoners. DO-902 defines what it terms "Qualified" and "Non-Qualified Legal Claims." Only direct appeals from current conviction, habeas, section 1983 actions and conditions of confinement cases determined to be "non-frivolous" are considered "qualified legal claims."
The law libraries are replaced by a paralegal under contract with the DOC [essentially a quasi-DOC employee]. Each paralegal will act as a "gateway" to the courts for as many as 2,500 prisoners [nine paralegals to serve 23,000 prisoners in 14 Arizona state prison complexes]. The paralegal will only provide assistance for filling out "forms" for initial filing of 'qualified legal claims."
To request the paralegal, an Arizona prisoner fills out a form listing his/her claims, and on habeas or appeal, "shall include the legal documents/orders of the court out of the trial court record." This request is given to designated ADOC staff [who may be defendants] who will forward the request and associated documents to the paralegal who visits each facility once per week. The paralegal will then decide whether the request has merit and is "qualified," and if not, will deny the request for legal assistance.
'It should be self-evident to all but the most deluded that, at every stage of this new system, actual access to the court is the farthest notion of its designers and implementers," wrote Donna Hamm, President of Middle Ground Prison Reform, in a memorandum of analysis of DO-902 to judge Strand. "This system," she adds, "is designed to RESTRICT access to the court and to skew the balance of power in favor of the state in the most inequitable ways possible."
The contract paralegal's denial of a prisoner's claim as "non-qualified" or "frivolous," is final. There is no appeal. Moreover, if the paralegal does assist in filling out forms to forward to the court, after this "initial filing," further assistance of the paralegal is prohibited by DO-902.
"Nothing in the Lewis opinion," stated Rifkin in response to questions submitted to her about DO-902, "suggests that prison paralegal staff may act as judges and decide which legal claims are 'non-frivolous' and therefore entitled to legal assistance. The policy [DO-902] also strays from Lewis because it cuts off any legal assistance beyond the initial pleading."
"In addition," adds Rifkin, "in order for a plaintiff to 'present' a claim, he must defend it by responding to motions to dismiss or for summary judgement, and advance it toward trial through discovery and other motions. Without access to research cases cited in opposition motions and briefs, prisoner-plaintiffs will be unable to defend their claims. The legal materials available [in regular prison libraries: 11 law books, 3 collections of legal forms, and two self-help manuals] do not include any federal or state case law reporters whatsoever, or any annotated statutory material. As a result, prisoners will no longer be able to review or rebut case law cited by their adversaries in opposition briefs."
DO-902 also targets jailhouse lawyers and bans "all formal use of Inmate Legal Assistants and Law Clerks." In other words: Need legal assistance? Fill out a form and give it to a DOC contract employee. DO-902 dictates that "inmates are prohibited from assisting other inmates with non-qualified legal claims."
"Non-qualified" legal claims that Arizona prisoners will not receive assistance from the state paralegals (and are prohibited from seeking the help of jailhouse lawyers on) include: divorce proceedings, probate, child custody matters, wills, civil property matters, disciplinary infractions, and a host of other significant legal matters.
Under DO-902, prisoners found "creating a security problem" [undefined) or "assisting inmates with non-qualified claims will be disciplined and precluded from helping other inmates in the future."
DO-902 also redefines procedures for photocopying legal materials and attorney phone call and legal mail monitoring. Prisoners who require legal photocopying must fill out a request, attach it to the documents to be copied, and hand it over to designated ADOC staff [who, again may very well be defendants named in legal documents the prisoner is photocopying] who shall forward it to the contract paralegal. The paralegal then has three days to approve, modify, or deny the request. If approved, the documents are forwarded to designated ADOC staff who have three days to make the photocopies and return them to the prisoner.
The cost of photocopies is doubled by DO-902 to 10ยข a page. The fee for a notary is one dollar, whereas before DO-902 notary services were free. Former provisions for indigent photocopying are eliminated. The average pay for Arizona prisoners able to work is $18 a month, from which prisoners must purchase their own hygiene items, writing materials, $3 medical co-payments, etc.
Attorney phone calls are monitored by ADOC staff, tape recorded and limited to 15 minutes. All outgoing legal mail must be provided to ADOC staff who shall inspect it before it is sealed. Legal mail will not be censored, "but staff is [sic] not prohibited from reading such documents to the extent necessary to establish the absence of contraband."
"The Lewis v. Casey decision does not address attorney-client communications," according to ACLU-NPP staff attorney Marjorie Rifkin. "Legal mail in Arizona prisons is governed by the court order in Hook v. Arizona. Neither the Hook order nor prevailing case law authorizes the substantial breach of confidentiality fostered by the new ADOC policy."
Marjorie Rifkin foresees mounting litigation "through individual lawsuits, rather than a consolidation of claims under one class," as Arizona Prisoners experience "actual harm" under the provisions of DO-902. 'The new policy reflects a fundamental distortion of the Supreme Court's ruling," she adds, "and will undoubtedly cost taxpayers more, rather than less."
As Donna Hamm concludes in her memorandum to judge Strand: "Lewis v. Casey was remanded to the trial court with explicit criticism of the original judge for not allowing ADOC to provide a plan for providing reasonable access to the court before it [the trial court] imposed a series of detailed mandates upon prison officials. Left to their own devices, DO-902 is what the ADOC has come up with. We cannot be proud of a system that so readily discards the constitutional right of access to the court for ALL of our citizens in favor of the lip-service provided in Department Order 902."
The Lewis court redefined the scope and intent of Bounds by relying instead on its experimental doctrine and actual harm clauses. "Moreover," justice Antonin Scalia wrote for the majority, "the assumption of an actual-injury requirement seems to us implicit in the opinion's statement that 'we encourage local experimentation in various methods of assuring access to the courts."'
On remand from the Lewis court, on July 1, 1997, district judge Roger G. Strand, based strictly on the merits of "actual harm," which the supreme court in Lewis said did not warrant "system-wide relief'' dismissed the plaintiffs legal access claims with prejudice.
Strand's ruling essentially closed the book on Lewis. "The class action case challenging ADOC's legal access program is over," said Marjorie Rifkin, staff counsel for the ACLU-National Prison Project which represented Arizona prisoners on Lewis.
Within days of judge Strand's dismissal order, ADOC Director Terry Stewart issued a memo to all AZ prisoners which states: "This is official notice that on August 4, 1997, all libraries [34 statewide], with the exception of Central Unit, will be permanently closed... I am implementing Department Order 902 which completely revamps and streamlines inmate access to the courts. The law libraries are being eliminated because the U.S. Supreme Court has said they are not required for inmate legal access."
And the 'experiment" is afoot. DO-902, in addition to eliminating prison law libraries, establishes 226 new rules governing court access for Arizona prisoners. DO-902 defines what it terms "Qualified" and "Non-Qualified Legal Claims." Only direct appeals from current conviction, habeas, section 1983 actions and conditions of confinement cases determined to be "non-frivolous" are considered "qualified legal claims."
The law libraries are replaced by a paralegal under contract with the DOC [essentially a quasi-DOC employee]. Each paralegal will act as a "gateway" to the courts for as many as 2,500 prisoners [nine paralegals to serve 23,000 prisoners in 14 Arizona state prison complexes]. The paralegal will only provide assistance for filling out "forms" for initial filing of 'qualified legal claims."
To request the paralegal, an Arizona prisoner fills out a form listing his/her claims, and on habeas or appeal, "shall include the legal documents/orders of the court out of the trial court record." This request is given to designated ADOC staff [who may be defendants] who will forward the request and associated documents to the paralegal who visits each facility once per week. The paralegal will then decide whether the request has merit and is "qualified," and if not, will deny the request for legal assistance.
'It should be self-evident to all but the most deluded that, at every stage of this new system, actual access to the court is the farthest notion of its designers and implementers," wrote Donna Hamm, President of Middle Ground Prison Reform, in a memorandum of analysis of DO-902 to judge Strand. "This system," she adds, "is designed to RESTRICT access to the court and to skew the balance of power in favor of the state in the most inequitable ways possible."
The contract paralegal's denial of a prisoner's claim as "non-qualified" or "frivolous," is final. There is no appeal. Moreover, if the paralegal does assist in filling out forms to forward to the court, after this "initial filing," further assistance of the paralegal is prohibited by DO-902.
"Nothing in the Lewis opinion," stated Rifkin in response to questions submitted to her about DO-902, "suggests that prison paralegal staff may act as judges and decide which legal claims are 'non-frivolous' and therefore entitled to legal assistance. The policy [DO-902] also strays from Lewis because it cuts off any legal assistance beyond the initial pleading."
"In addition," adds Rifkin, "in order for a plaintiff to 'present' a claim, he must defend it by responding to motions to dismiss or for summary judgement, and advance it toward trial through discovery and other motions. Without access to research cases cited in opposition motions and briefs, prisoner-plaintiffs will be unable to defend their claims. The legal materials available [in regular prison libraries: 11 law books, 3 collections of legal forms, and two self-help manuals] do not include any federal or state case law reporters whatsoever, or any annotated statutory material. As a result, prisoners will no longer be able to review or rebut case law cited by their adversaries in opposition briefs."
DO-902 also targets jailhouse lawyers and bans "all formal use of Inmate Legal Assistants and Law Clerks." In other words: Need legal assistance? Fill out a form and give it to a DOC contract employee. DO-902 dictates that "inmates are prohibited from assisting other inmates with non-qualified legal claims."
"Non-qualified" legal claims that Arizona prisoners will not receive assistance from the state paralegals (and are prohibited from seeking the help of jailhouse lawyers on) include: divorce proceedings, probate, child custody matters, wills, civil property matters, disciplinary infractions, and a host of other significant legal matters.
Under DO-902, prisoners found "creating a security problem" [undefined) or "assisting inmates with non-qualified claims will be disciplined and precluded from helping other inmates in the future."
DO-902 also redefines procedures for photocopying legal materials and attorney phone call and legal mail monitoring. Prisoners who require legal photocopying must fill out a request, attach it to the documents to be copied, and hand it over to designated ADOC staff [who, again may very well be defendants named in legal documents the prisoner is photocopying] who shall forward it to the contract paralegal. The paralegal then has three days to approve, modify, or deny the request. If approved, the documents are forwarded to designated ADOC staff who have three days to make the photocopies and return them to the prisoner.
The cost of photocopies is doubled by DO-902 to 10ยข a page. The fee for a notary is one dollar, whereas before DO-902 notary services were free. Former provisions for indigent photocopying are eliminated. The average pay for Arizona prisoners able to work is $18 a month, from which prisoners must purchase their own hygiene items, writing materials, $3 medical co-payments, etc.
Attorney phone calls are monitored by ADOC staff, tape recorded and limited to 15 minutes. All outgoing legal mail must be provided to ADOC staff who shall inspect it before it is sealed. Legal mail will not be censored, "but staff is [sic] not prohibited from reading such documents to the extent necessary to establish the absence of contraband."
"The Lewis v. Casey decision does not address attorney-client communications," according to ACLU-NPP staff attorney Marjorie Rifkin. "Legal mail in Arizona prisons is governed by the court order in Hook v. Arizona. Neither the Hook order nor prevailing case law authorizes the substantial breach of confidentiality fostered by the new ADOC policy."
Marjorie Rifkin foresees mounting litigation "through individual lawsuits, rather than a consolidation of claims under one class," as Arizona Prisoners experience "actual harm" under the provisions of DO-902. 'The new policy reflects a fundamental distortion of the Supreme Court's ruling," she adds, "and will undoubtedly cost taxpayers more, rather than less."
As Donna Hamm concludes in her memorandum to judge Strand: "Lewis v. Casey was remanded to the trial court with explicit criticism of the original judge for not allowing ADOC to provide a plan for providing reasonable access to the court before it [the trial court] imposed a series of detailed mandates upon prison officials. Left to their own devices, DO-902 is what the ADOC has come up with. We cannot be proud of a system that so readily discards the constitutional right of access to the court for ALL of our citizens in favor of the lip-service provided in Department Order 902."