From the February 2010 Idaho Observer:

Criminal Law - Part VIII Access to the Courts

It may be difficult or impossible to discover what duties prison administrators have to ensure a prisoner has adequate and meaningful access to the courts, because prisoners are at a tremendous disadvantage when it comes to having access to legal material to study and research the ‘law’. The Supreme Court has ruled that prisoners have a ‘fundamental constitutional right of access to the courts,’ Bounds v. Smith, 430 U.S. 817 (1977), and that the right is guaranteed through the due process clauses of the Constitution. Procunier v. Martinez, 416 U.S. 396 (1974). Yet, due to unconstitutional prison policies, many state and federal prisoners still suffer from lacking resources or outright denial of assistance. Law libraries may be inaccessible or may have unduly restrictive hours, Taylor v. Perini, 413 F.Supp. 189, 203, 205 (N.D. Ohio 1976), and may not provide adequate case books. Gilmore v. Lynch, 319 F.Supp. 105, 110-11 (N.D. Cal. 1971), affirmed sub nom, Younger v. Gilmore, 404 U.S. 15 (1971); Ramos v. Lamm, 639 f.2d 559, 584 (10th Cir. 1980); Wade v. Kane, 448 F.Supp. 678, 684 (E.D. Pa 1978), affirmed, 591 F.2d

1338 (3rd Cir. 1979). Instructional, educational and research matter may be unavailable for prisoners to learn how to prepare and file challenges to a criminal conviction, or the law library may be understaffed. Taylor, supra. Regardless, prisoners are entitled to some form of assistance when litigating constitutional claims. Walters v. Thompson, 615 F.Supp. 330, 336 (N.D. Ill 1985); also, Knop v. Johnson, 977 F.2d 996 (6th Cir. 1992), and prisoners should be allowed to help each other conduct research and prepare legal documents. Johnson v. Avery, 393 U.S. 483 (1969).

Often, when a prisoner is placed in segregated housing, access to personal legal material and a law library is denied. Owens v. Maschner, 811 F.2d 1365, 1366 (10th Cir. 1987). An ‘exact-cite’ case request system, mandating use of exact citations to request case law and other material, may be inadequate, DeMallory v. Cullen, 855 F.2d 442, 446-49 (7th Cir. 1988), and segregated prisoners who are denied physical access to law books may be entitled to free photocopies. See Walters, supra at 340.

Courts have addressed financial inability of prisoners to afford supplies and postage: ‘It is indisputable that indigent inmates must be provided at state expense with paper and pen to draft legal documents, with notarial services to authenticate them, and with stamps to mail them.’ Bounds, supra; Wade, supra at 685, Smith v. Erickson, 884 F.2d 1108, 1109-11 (8th Cir. 1989).

When a prisoner is housed in one state but challenging an out-of-state conviction ‘adequate’ access must still be provided. The fact that out of state legal material is being sought is irrelevant; the inquiry should be whether a particular prisoner is being denied access to materials from the, relevant jurisdiction that are necessary to challenge the conviction. See Lehn v. Holmes, 364 F.3d 862 (7th Cir. 2004); Corgain v. Miller, 708 f.2d 1241(5th Cir. 1983). Some courts have ruled that inadequate libraries may, but do not necessarily, constitute a state imposed impediment which would allow for tolling (pausing) time limitations for filing habeas corpus petitions. Egerton v. Cockrell, 334 F.3d 433 (5th Cir. 2003); Whalen-Hunt v. Early, 233 F.3d 1146 9th Cir. 2000). An ‘impediment’ is whatever prevents a prisoner from filing his petition. Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998); Moore v. Battaglia, 476 F.3d 504 (7th Cir. 2007).

It is bitterly offensive for a government to convict people based upon mere theories, spun into melodramatic fiction for courtroom display, and again when it restricts a prisoner’s access to the courts after the fact. Such malicious action should not be tolerated from a government that is supposed to be by and for the people. Stay tuned for a discussion on Hearsay.

sempre avanti
D.M. sal salerno
Toledo, Ohio

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