PRISONERS HUMAN RIGHTS MOVEMENT
YOU HAVE A RIGHT TO
• Adequate medical care
• Protection from assault
• Humane living conditions
• Safety from officer abuse
Most of all, YOU HAVE
A RIGHT TO BE HUMAN!
AND TO BE TREATED WITH
DIGNITY AND RESPECT.
This Human Right is re-
cognized and guaranteed
by International , State, and
Federal laws: (Read United
Nation’s DECLARATION OF HU-
MAN RIGHTS: & CONVENTION
AGAINST TORTURE; U.S. CON-
STITUION’S “PREAMBLE”: CA-
Article 1, Section 1)
STOP THE TORTURE…
END LONG TERM SOLITARY
Support our Class Law-
suit at the up-coming
Trial (For more info go to:
– First Amendment Center – http://www.firstamendmentcenter.org –
Why I care about prisoner rights
A friend recently asked: “Why do you care and write so much about prisoner rights? After all, they’re convicted criminals.” The question came after the U.S. Supreme Court’s ruling this week in Brown v. Plata that dealt with overcrowded prisons and terrible medical and mental care in California prisons.
I’ve fielded similar queries in the past. The questions reflect a mentality shared by many: Why care about the rights of those who didn’t care about the rights of their victims?
The question deserves a response.
First, prisoners file an inordinate amount of litigation alleging deprivation of their constitutional rights. Some studies have shown that prisoner litigation makes up more than 20% of the federal court docket. It would be negligent not to report on at least some of these pleadings — even if many prisoner complaints leave much to be desired in terms of form and validity.
Second, much deprivation of constitutional rights occurs in prisons. One attorney described prisons to me years ago as “constitutional black holes.” Think about it. Prisoners are under the control of government officials 24/7 — there are bound to be many rights violations.
Third, principles from prisoner free-expression cases often seep out and affect other areas of First Amendment law. The classic example occurred with two U.S. Supreme Court cases that arose out of Missouri. In Turner v. Safley (1987), the Court rejected inmate Leonard Safley’s claim that he had a First Amendment right to send letters to his girlfriend — later his wife — who was an inmate at another prison (though the Court did uphold his right to marry her). The Court created a standard for prisoner constitutional claims — that prison officials do not violate inmates’ constitutional rights if their actions are “reasonably related to legitimate penological concerns.”
Just a year later, the Supreme Court rejected the First Amendment claims of three young female student journalists in Hazelwood School District v. Kuhlmeier. In that decision, the Court ruled that school officials could censor student speech if their actions were “reasonably related to legitimate pedagogical concerns.” The Court simply substituted the word “pedagogical” for “penological.” When I lecture on this substitution to student groups, there normally is a collective gasp.
Fourth, prisoners — whatever they have done — are still human beings worthy of some level of respect. I’ve quoted many times the words of Justice Thurgood Marshall from his concurring opinion in Procunier v. Martinez (1974):
“When the prison gates slam behind an inmate, he does not lose his human quality; his mind does not become closed to ideas; his intellect does not cease to feed on a free and open interchange of opinions; his yearning for self-respect does not end; nor is his quest for self-realization concluded.”
Justice Anthony Kennedy said it even more succinctly in Brown v. Plata: “Prisoners retain the essence of human dignity inherent in all persons.”
Finally, we all know the First Amendment and its free-exercise clause protects our right to religious belief and some religiously motivated conduct. As a Christian, I believe strongly in the Bible verse Hebrews 13:3 “Remember the prisoners as if chained with them.”
****INTRODUCTION TO HUMAN RIGHTS****
RE: PHRM EDUCATION MATERIAL ON HUMAN RIGHTS
Universal Declaration of Human Rights
Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,
Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people,
Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law,
Whereas it is essential to promote the development of friendly relations between nations,
Whereas the peoples of the United Nations have in the Charter reaffirmed their faith in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women and have determined to promote social progress and better standards of life in larger freedom,
Whereas Member States have pledged themselves to achieve, in co-operation with the United Nations, the promotion of universal respect for and observance of human rights and fundamental freedoms,
Whereas a common understanding of these rights and freedoms is of the greatest importance for the full realization of this pledge,
Now, Therefore THE GENERAL ASSEMBLY proclaims THIS UNIVERSAL DECLARATION OF HUMAN RIGHTS as a common standard of achievement for all peoples and all nations, to the end that every individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance, both among the peoples of Member States themselves and among the peoples of territories under their jurisdiction.
All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.
Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty.
Everyone has the right to life, liberty and security of person.
No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms.
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.
Everyone has the right to recognition everywhere as a person before the law.
All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.
Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.
No one shall be subjected to arbitrary arrest, detention or exile.
Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.
- Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.
- No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offence was committed.
No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.
- Everyone has the right to freedom of movement and residence within the borders of each State.
- Everyone has the right to leave any country, including his own, and to return to his country.
- Everyone has the right to seek and to enjoy in other countries asylum from persecution.
- This right may not be invoked in the case of prosecutions genuinely arising from non-political crimes or from acts contrary to the purposes and principles of the United Nations.
- Everyone has the right to a nationality.
- No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.
- Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.
- Marriage shall be entered into only with the free and full consent of the intending spouses.
- The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.
- Everyone has the right to own property alone as well as in association with others.
- No one shall be arbitrarily deprived of his property.
Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.
Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.
- Everyone has the right to freedom of peaceful assembly and association.
- No one may be compelled to belong to an association.
- Everyone has the right to take part in the government of his country, directly or through freely chosen representatives.
- Everyone has the right to equal access to public service in his country.
- The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.
Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international co-operation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality.
- Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment.
- Everyone, without any discrimination, has the right to equal pay for equal work.
- Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection.
- Everyone has the right to form and to join trade unions for the protection of his interests.
Everyone has the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay.
- Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.
- Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection.
- Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit.
- Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace.
- Parents have a prior right to choose the kind of education that shall be given to their children.
- Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.
- Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.
Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized.
- Everyone has duties to the community in which alone the free and full development of his personality is possible.
- In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.
- These rights and freedoms may in no case be exercised contrary to the purposes and principles of the United Nations.
Nothing in this Declaration may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein.
Sources of Legal Support
Below is a short list of other organizations working on prison issues, mainly with a legal focus. When writing to these groups, please remember a few things:
- Write simply and specifically, but don’t try and write like you think a lawyer would. Be direct in explaining yourself and what you are looking for.
- It is best not to send any legal documents unless they are requested. If or when you do send legal documents, only send copies. Hold on to your original paperwork.
- Because of rulings like the PLRA and limited funding, many organizations are small, have limited resources and volunteer staff. It may take some time for them to answer your letters. But always keep writing.
Please note: The contact information for these resources is current as of the printing of this Handbook in 2011.
Do not send money for publications unless you have verified the address of the organization first.
Aid to Children of Imprisoned Mothers, Inc.
906 Ralph David Abernathy Blvd. SW
Atlanta, GA 30310
Information for incarcerated mothers.
American Civil Liberties Union National Office
125 Broad Street, 18th Floor, New York, NY 10004
The biggest civil liberties organization in the country. They have a National Prison Project and a Reproductive Freedom Project, which might be helpful to women prisoners. Write them for information about individual chapters. See Appendix J for some of their publications for people in prison.
American Friends Service Committee Criminal Justice Program – National
1501 Cherry Street, Philadelphia PA, 19102
Human and civil rights issues, research/analysis, women prisoners, prisoner support.
California Prison Focus
1904 Franklin St., Suite 507, Oakland, CA 94612
Publish a quarterly magazine, Prison Focus, and other publications. Focuses organizing efforts on CA and on SHU conditions.
Center for Constitutional Rights
666 Broadway, 7th floor, New York, NY 10012
Legal organization that brings impact cases around prison conditions, co-publisher of this handbook.
Criminal Justice Policy Coalition
15 Barbara St., Jamaica Plain, MA 02130
Involved in policy work around numerous prison issues.
Critical Resistance, National Office
1904 Franklin St., Suite 504, Oakland, CA 94612
Uniting people in prison, former prisoners, and family members to lead a movement to abolish prisons, policing,
surveillance, and other forms of control.
Family and Corrections Network
32 Oak Grove Road, Palmyra, VA 22963
Federal Resource Center for Children of Prisoners
Child Welfare League of America
1726 M St. NW, Suite 500, Washington, DC, 20036
Friends and Families of Incarcerated Persons
PO Box 93601, Las Vegas, NV, 89193
Legal resources for friends and families of prisoners.
Human Rights Watch Prison Project
350 5th Ave. 34th Floor New York NY 10118-3299
National organization dedicated to research, analysis, and publicizing human rights violations, and working towards stopping them.
Immigration Equality, Inc. (only for lesbian, gay, bisexual, transgender, and HIV + immigrants)
40 Exchange Place, 17th Floor, New York, NY 10005
Lambda Legal (only for gay, lesbian, bisexual, transgender, & HIV+ people)
120 Wall Street, Suite 1500, New York, NY 10005-3904
Legal Publications in Spanish, Inc.
Publicaciones Legales en Espanol, Inc.
PO Box 623, Palisades Park, NJ 07650
Legal resources in Spanish, focusing mostly on criminal defense and federal courts.
Legal Services for Prisoners with Children
1540 Market St., Suite 490, San Francisco, CA 94102
Legal resources and issues around women in prison, including guides and manuals for people in prison with
National Center for Lesbian Rights (only for gay, lesbian, bisexual, and transgender people)
870 Market St. Ste. 370, San Francisco, CA 94102
National Clearinghouse for the Defense of Battered Women
125 South 9th Street #302, Philadelphia PA 19107
Legal and other assistance for battered women.
UNDERSTANDING PRISON LAW AND THE RIGHTS OF PRISONERS
I believe firmly in the right of prisoners and their families to know the law. All too often, lawyers, judges and prosecutors mystify the law to preserve their privilege and status. This shielding of the law is particularly obnoxious given that the impact of the law is most felt by those who are shut out from knowing the law.
In the classic example of this mystifying of the law, I hear countless stories first hand of young men who have accepted life sentences from lawyers who gave little or no legal advice, or even worse have lied to secure a plea agreement and conviction.
I believe that those most impacted by the law have the greatest right to understanding how it works. Here is my attempt to help prisoners, their families, and their supporters know the legal rights of prisoners.
I. Overall Rights of Prisoners:
The last 30 years in prisoner and constitutional law has been the erosion, rather than an expansion, of legal, civil, and political freedoms for inmates. Prisoners have lost more rights than they have gained. Despite this, prisoners have retained some rights in the courts which can be defended and advanced. The most basic prisoner rights can be divided into two categories:
- the right to challenge a criminal conviction and
- the rights which affect the conditions of a prisoner’s confinement
Let’s deal with the first – namely, the right to challenge a criminal conviction.
(a) The right to challenge a criminal conviction
Here’s the truth on how criminal appeals work: A person is convicted in state court by either a plea agreement or by a jury. If a plea is accepted, the prisoner has fewer recourses for challenging the conviction. There is no right to appeal a plea agreement, and accordingly, prisoners who accept a plea are not given appointed counsel to appeal the plea in the California Court of Appeals. All too often, prisoners who accept a plea based on faulty, inaccurate, or misleading information realize after arriving in prison that they made a terrible mistake. Undoing the plea, however, is no easy task.
When a prisoner petitions the court to reverse or undue a plea agreement, courts will generally examine whether the plea was made in a “knowing” and “intelligent” manner. The evidentiary standard for reviewing the legality of a plea agreement is to assess whether the plea was made in a “voluntary and intelligent” manner. On the topic of “voluntary,” an appellate court may review whether the accused entered into the contract freely. In other words, was the accused threatened, coerced, or under undue duress in entering his plea? Obviously, being scared of going of trial does not constitute sufficient duress. A plea becomes involuntary when an accused is threatened or abused or a confession or plea is coerced, Unless those characteristics are present, an appellate court will assume that the plea was voluntary.
An appellate court will review whether a plea was intelligent by gauging whether the accused was properly informed of the rights he waived; knows the consequences of the plea (time to be served); and knows that the government is otherwise prepared to proceed to trial, etc. There is an equally difficult bar to establish that a plea was not made in an intelligent manner.
If a prisoner has been convicted by a jury, it is easier — although it’s still hard — to challenge the conviction. Here’s how this appeals process works: A person is convicted in the trial court or what is called the “California Superior Court for the County of ____.” Once the jury convicts, the convicted is given one appeal as a matter of right. This means that the convicted is given a free-of-charge appellate attorney to file an appeal in the California Court of Appeals. These attorneys handle too many appeals and consequently have limited time to investigate and attack the conviction in a thorough manner. Many appellate attorneys don’t even visit their clients in prison. If the Court of Appeals affirms the conviction, the prisoner must on their own or through a hired lawyer bring their appeal before the California Supreme Court. It is critical for a prisoner to bring their appeal before the California Supreme Court because according to a federal law passed in 1996 called the Antiterrorism and Effective Death Penalty Act, prisoners must have the California Supreme Court hear an appeal before one is reviewed by the federal courts. This means that prisoners may never get into federal court unless they file an appeal before the California Supreme Court. All too often, prisoners who want their convictions heard in federal court are precluded from doing so because they haven’t filed a timely appeal in the California Supreme Court. This bad outcome underscores the absolute importance of having, if available, a good and knowledgeable appeals attorney who can file a thorough appeal in the California Supreme Court which will provide the foundation for an appeal in federal court.
Some common pitfalls and traps of prisoners occur when prisoners fail to file a timely appeal in the California Supreme Court. In this instance, the prisoner is forced to file what is known as “Collateral Attack” or “Collateral Appeal.” This legal instrument is an appeal filed when the statute of limitations (amount of time to file) has expired on a direct appeal. Courts are leery to accept Collateral Attacks because they consider such appeals to be late. Prying open the court house door is only allowed on two grounds. A prisoner must first prove to the court the existence of either:
- new court precedence which due to its retroactive application would render the conviction unlawful; and/or
- that newly discovered evidence exists which could not have been reasonably discovered earlier and upon which the prisoner did not delay in presenting the court.
Let me try to make sense of these two requirements for you. On the first, a prisoner would have to show that a new controlling court decision has been issued that would call into question the legitimacy or legality of the conviction. Moreover, this new court decision(s) must apply on a retroactive basis — meaning that the decision applies to criminal cases which were decided in the past as well as to new cases. This retroactive requirement is difficult to meet because while new cases are decided all the time it is rare that the court decides that a new case has retroactive application because the court system hates to unravel old decisions. The court system frowns on such retroactive application because it makes more work for judges and brings uncertainty into the law.
Often the sole ability to get back into court once the statute of limitations has expired rests on the grounds of establishing newly discovered evidence. This requirement can be tricky so it’s important to understand how it works. The newly discovered evidence requirement has several components. One, that the evidence could not have been discovered without a reasonable degree of diligence (effort); two, that the evidence is not cumulative (meaning merely echoing other evidence which was already heard); three, that the convicted brought such evidence to the court’s attention within a reasonable period of time; and four, that if the evidence is assumed true that such evidence would serious undermine the conviction. Now be careful because many prisoners and their families mistake this requirement as a license to raise issues that were known at trial (like a particular fact wasn’t raised by the defense attorney). Newly discovered evidence means just that — it was not known at trial and was recently discovered.
(b) The Rights of Prisoners In Their Conditions of Confinement
Almost all rights of prisoners is judged against what is called the “Turner” test. This “Turner” test refers to a 1987 U.S. Supreme Court case where the high court established a four part test for deciding whether a prison rule or regulation is constitutional. There are 4 criteria that any court will apply when reviewing the constitutionality of a prison regulation. The court will consider:
- whether there is a valid and rational connection between the prison regulation or practice and the legitimate governmental interest that justifies it;
- whether there are alternative means of exercising the right that remain open to prison inmates;
- the impact accommodation of the constitutional right in question will have on guards and other prisoners, and on the allocation of prison resources generally;
- whether there are readily available alternatives that fully accommodate the prisoner’s rights at de minimis cost to valid penological interests.
Once known, it becomes clear how easy it is for prison administrators to meet the low threshold in the “Turner” test for constitutionality, and we begin to see why prison wardens and other correctional staff exude such great confidence in enacting any rule or regulation regardless of its intelligence or harm to prisoners because the courts are not likely to overturn or declare the rule unconstitutional.
Apart from prison rules and regulations, courts are even more deferential to the decisions of prison staff under a different standard known as the “some evidence” standard. Under this criteria — established in another U.S. Supreme Court case known as Superintendent v. Hill — the “some evidence” standard only requires that prison staff refer to minimal evidence to support their conclusion or decisions. For example, when deciding whether a prisoner has broken the prison’s rules (e.g. attacking another inmate or having contraband), the prison staff has to merely refer to “some evidence” or proof that the prisoner has broken the rules. As long as the prison staff can refer to some evidence or proof, courts of law are precluded from looking further into whether the evidence actually supports the claims of the prison’s staff. This highly deferential standards basically allows prison staff a “free-ride” to make any decision regardless of its merit as long as they can offer some proof or evidence that they considered.
How to Protect Your Freedom to Take Legal Action
Just like people on the outside, prisoners have a fundamental constitutional right to use the court system. This right is based on the First, Fifth and Fourteenth Amendments to the Constitution. Under the First Amendment, you have the right to “petition the government for a redress of grievances,” and under the Fifth and Fourteenth Amendments, you have a right to “due process of law.” Put together, these provisions mean that you must have the opportunity to go to court if you think your rights have been violated. Unfortunately, doing legal work in prison can be dangerous, as well as difficult, so it is important to KNOW YOUR RIGHTS!
A terrible but common consequence of prisoner activism is harassment by prison officials. Officials have been known to block the preparation and filing of lawsuits, refuse to mail legal papers, take away legal research materials, and deny access to law books, all in an attempt to stop the public from knowing about prisoner issues and complaints. Officials in these situations are worried about any actions that threaten to change conditions within the prison walls or limit their power. In particular, officials may seek to punish those who have gained legal skills and try to help their fellow prisoners with legal matters. Prisoners with legal skills can be particularly threatening to prison management who would like to limit the education and political training of prisoners. Some jailhouse lawyers report that officials have taken away their possessions, put them in solitary confinement on false charges, denied them parole, or transferred them to other facilities where they were no longer able to communicate with the prisoners they had been helping.
With this in mind, it is very important for those of you who are interested in both legal and political activism to keep in contact with people in the outside world. One way to do this is by making contact with people and organizations in the outside community who do prisoners’ rights or other civil rights work. You can also try to find and contact reporters who may be sensitive to, and interested in, prison issues. These can include print newspapers and newsletters, broadcast television and radio shows, and online sites. It is always possible that organizing from the outside aimed at the correct pressure points within prison management can have a dramatic effect on conditions for you on the inside.
Certain court decisions that have established a standard for prisoner legal rights can be powerful weapons in your activism efforts. These decisions can act as strong evidence to persuade others that your complaints are legitimate and reasonable, and most of all, can win in a court of law. It is sometimes possible to use favorable court rulings to support your position in non-legal challenges, such as negotiations with prison officials or in administrative requests for protective orders, as well as providing a basis for a lawsuit when other methods may not achieve your desired goals.
This Chapter explains your rights regarding access to the courts. This includes your right to:
(1) File legal papers, and to communicate freely about legal matters with courts, lawyers, and media;
(2) Reasonable access to law books;
(3) Obtain legal help from other prisoners or help other prisoners; and
(4) Be free from retaliation based on legal activity.
A. THE RIGHT TO FILE PAPERS AND COMMUNICATE WITH COURTS, LAWYERS, LEGAL WORKERS, AND THE MEDIA
In 1977, the Supreme Court held in a case called Bounds v. Smith, 430 U.S. 817 (1977), that prisoners have a fundamental constitutional right of access to the courts. This right of access requires prison authorities to help prisoners prepare and file meaningful legal papers in one of two ways. They can give you access to a decent law library OR they can hire people to help you with your cases. The prison gets to choose which way they want to do it. However, that ruling was changed by a later Supreme Court case, Lewis v. Casey, 518 US. 343 (1996), which held that prisoners have to show an “actual injury” and the existence of a “nonfrivolous legal claim” to win an access to the courts case. In other words, even if your prison isn’t allowing you to use the law library and isn’t giving you legal help, you still can’t necessarily win a lawsuit about it. To win, you would also have to show that you have a real case that you lost or had problems with because of your lack of access to the law library or legal assistance. Courts do not agree on exactly what constitutes “actual injury” and it is not yet clear whether you need to show actual injury if prison officials have actively interfered with your right of access, like by stopping you from mailing a complaint.
For a few different takes on these questions, compare Benjamin v. Fraser, 264 F.3d 175 (2d Cir. 2001) and Tourscher v. McCollough, 184 F.3d 236, 242 (3d Cir. 1999).
The “actual injury” requirement in Lewis v. Casey also applies if you are seeking damages for a past injury. In another recent Supreme Court case, Christopher v. Harbury, 536 U.S. 403 (2002), a woman who wasn’t a prisoner claimed that she had been denied access to the court because the U.S. government had withheld information from her about her husband’s torture by Guatemalan military officers in the pay of the CIA. The Court dismissed her claim because she still had a way to get damages. The Court explained that to get damages for a past denial of court access the plaintiff must identify a remedy that is presently unavailable.
Ο IMPORTANT: Keep the Lewis v. Casey “actual injury” requirement in mind as you read the rest of this chapter. It may or may not apply to all of the following rights related to access to the courts, and it means that many of the cases cited in this chapter from before 1996 are of somewhat limited usefulness. For this reason, it is very important for you to find out how the courts in your circuit interpret Lewis v. Casey.
1. Attorney and Legal Worker Visits
Your right of access to the courts includes the right to try to get an attorney and then to meet with him or her.
For pretrial detainees, the Sixth Amendment right to counsel protects your right to see your attorney. However, even prisoners without pending criminal cases have a due process right to meet with a lawyer. In a case called Procunier v. Martinez, 416 U.S. 396 (1974), the Supreme Court explained that not only do you have a right to meet with your attorney, but you also have a right to meet with law students or legal paraprofessionals who work for your attorney. However, you should be aware that prisons can impose reasonable restrictions on timing, length, and conditions of attorney visits. For example, the right to meet with legal workers and lawyers does not necessarily mean that you have a right to meet them in a contact visit. Most courts have held that you do have the right to a contact visit with your attorney. On the other hand, other courts have held that a prison may be able to keep you from getting a contact visit if there is a legitimate security reason. For more about contact visits with attorneys, compare: Ching v. Lewis, 895 F.2d 608 (9th Cir. 1990) and Casey v. Lewis, 4 F.3d 1516 (9th Cir. 1993).
2. Legal Mail
Mail that is sent to you from attorneys, courts, and government officials is protected by the First and Sixth Amendments. This means that prison officials are not allowed to read or censor this type of incoming mail. However, they can open it and inspect it for contraband as long as they do it in front of you. Wolff v. McDonnell, 418 U.S. 539 (1974). Mail you send to attorneys and courts is also privileged and may not be opened unless prison officials have a special security interest that must meet certain Fourth Amendment requirements. Washington v. James, 782 F.2d 1134 (2d Cir. 1986); Taylor v. Sterrett, 532 F.2d 462 (5th Cir. 1976).
3. Media Mail
Mail to and from reporters is treated much the same way. Mail you send to reporters usually may not be opened or read. Incoming mail from the press can be inspected for contraband, but only in front of you.
Taylor v. Sterrett, 532 F.2d 462 (5th Cir. 1976). However, requests from news media for face-to-face interviews can be denied, since the press does not have a special constitutional right of access to jails and prisons any more than the average person does. Pell v. Procunier, 417 U.S. 817 (1974).
4. The Prison Law Library
If your prison decides to have a law library to fulfill their requirements under Bounds, you can then ask the question: Is the law library adequate? A law library should have the books that prisoners are likely to need, but remember, under Lewis v. Casey, you probably can’t sue over an inadequate law library unless it has hurt your non-frivolous lawsuit. The lower courts have established some guidelines as to what books should be in the library.
Books Required to be Available in Law Libraries:
ο Relevant state and federal statutes
ο State and federal law reporters from the past few decades
ο Shepards citations
ο Basic treatises on habeas corpus, prisoners’ civil rights, and criminal law
For more detailed information on what must be available, you may want to read some of the following cases: Johnson v. Moore, 948 F.2d 517 (9th Cir. 1991); Corgain v. Miller, 708 F.2d 1241 (7th Cir. 1983); Cruz v. Hauck, 627 F.2d 710 (5th Cir. 1980) or take a look at the American Association of Law Libraries list of recommended books for prison libraries. This list is reprinted in the Columbia Human Rights Law Review Jailhouse Lawyers’ Manual. Ordering information for the Columbia Manual is in Appendix E. However, you need to keep in mind the fact that these cases and lists have limited value today, and must be understood in connection to Lewis v. Casey.
Federal courts have also required that prisons libraries provide tables and chairs, be of adequate size, and be open for inmates to use for a reasonable amount of time. This does not mean that inmates get immediate access, or unlimited research time. Some cases that explore these issues are: Shango v. Jurich, 965 F.2d 289 (7th Cir. 1992); Lindquist v. Idaho State Bd. Of Corrections, 776 F.2d 851 (9th Cir. 1985); Cepulonis v. Fair, 732 F.2d 1 (1st Cir. 1984).
Inmates who cannot visit the law library because they are in disciplinary segregation or other extra-restrictive conditions must have meaningful access some other way. Some prisons use a system where prisoners request a specific book and that book is delivered to the prisoner’s cell. This system makes research very hard and time-consuming, and some courts have held that, without additional measures, such systems violate a prisoner’s right to access the courts. See, for example, Marange v. Fontenot, 879 F. Supp. 679 (E.D. Tex. 1995).
What if I don’t have a law library?
Many prisons have either closed their law library or not re-stocked it with new material in years. If this is the case in your law library and you or someone you know on the outside has access to a lawyer, you can try and bring suit against the prison for not complying with Bounds. If not, you could try publicizing the fact that your prison is failing to comply with a Supreme Court ruling by sending press releases to various media outlets, like newspapers, television, and the internet.
5. Getting Help from a Jailhouse Lawyer
You have a limited constitutional right to talk with other prisoners about legal concerns. You have a right to get legal help from other prisoners unless the prison “provides some reasonable alternative to assist inmates in the preparation of petitions.” Johnson v. Avery, 393 U.S. 483, 490 (1969). This means that if you have no other way to work on your lawsuit, you can insist on getting help from another prisoner. In Johnson, the Supreme Court held that the prison could not stop prisoners from helping each other write legal documents because no other legal resources were available.
If you have other ways to access the court, like a law library or a paralegal program, the state can restrict communications between prisoners under the Turner test if “the regulation… is reasonably related to legitimate penological interests.” Turner v. Safley, 482 U.S. 78, 89 (1987). The Supreme Court has held that jailhouse lawyers do not receive any additional First Amendment protection, and the Turner test applies even for legal communications. Therefore, if prison officials have a “legitimate penological interest,” they can regulate communications between jailhouse lawyers and other prisoners. Shaw v. Murphy, 532 U.S. 223, 228 (2001).
Courts vary in what they consider a “reasonable” regulation. Johnson itself states that “limitations on the time and location” of jailhouse lawyers’ activities are permissible. The Sixth Circuit Court of Appeals said that it was OK to ban meetings in a prisoner’s cell and require a jailhouse lawyer to only meet with prisonerclients in the library. Bellamy v. Bradley, 729 F.2d 417 (6th Cir. 1984). The Eighth Circuit Court of Appeals upheld a ban on communication when, due to a transfer, a jailhouse lawyer is separated from his prisoner-client. Goff v. Nix, 113 F.3d 887 (8th Cir. 1997). However, the Goff court did require state officials to allow jailhouse lawyers to return a prisoner’s legal documents after the transfer. Id. at 892.
6. Your Right to Be a Jailhouse Lawyer
The right to counsel is a right that belongs to the person in need of legal services. It does not mean that you have a right to be a jailhouse lawyer or provide legal services. Gibbs v. Hopkins, 10 F.3d 373 (6th Cir. 1993); Tighe v. Wall, 100 F.3d 41, 43 (5th Cir. 1996). Since jailhouse lawyers are usually not licensed lawyers they generally do not have the right to represent prisoners in court or file legal documents with the court, and the conversations between jailhouse lawyers and the prisoner-clients are not usually privileged. Bonacci v. Kindt, 868 F.2d 1442 (5th Cir. 1989); Storseth v. Spellman 654 F.2d 1349, 1355-56 (9th Cir. 1981). Furthermore, the right to counsel does not give a prisoner the right to choose whom he wants as a lawyer. Gometz v. Henman, 807 F.2d 113, 116 (7th Cir. 1986). Some courts require a jailhouse lawyer to get permission from prison officials before helping another prisoner. For example, a New York state court held that the prison could punish a prisoner for helping another prisoner by writing to the FBI without first getting permission. Rivera v. Coughlin, 620 N.Y.S.2d 505, 210 A.D. 2d 543 (App. Div. 1994). Nor will being a jailhouse lawyer protect you from transfer, although the transfer may be unconstitutional if it hurts the case of the prisoner you are helping. For more on this, compare Buise v. Hudkins, 584 F.2d 223 (7th Cir. 1978) with Adams v. James, 784 F.2d 1077, 1086 (11th Cir. 1986). The prison may reasonably limit the number of law books you are allowed to have in your cell. Finally, jailhouse lawyers have no right to receive payment for their assistance. Johnson v. Avery, 393 U.S. 483, 490 (1969).
Do Other Prisoners Have a Right to Have You as Their Jailhouse Lawyer?
In some parts of the country, jailhouse lawyers do not have a “right” to help others. However, if the other prisoner can’t possibly file a claim without you, the he or she may have a right to your assistance, Gibbs v. Hopkins, 10 F.3d 373, 378 (6th Cir. 1993). Prisoners are guaranteed “meaningful” access to the courts, so if the person you are helping can’t file their claim because he or she doesn’t speak English or is locked in administrative segregation without access to the law library, their rights may be being violated.
B. DEALING WITH RETALIATION
If you file a civil rights claim against the warden, a particular guard, or some other prison official, there is a chance that they will try to threaten you or scare you away from continuing with your suit. Retaliation can take many forms. In the past, prisoners have been placed in administrative segregation without cause, denied proper food or hygiene materials, transferred to another prison, and had their legal papers intercepted. Some have been physically assaulted. Most forms of retaliation are illegal, and you may be able to sue to get relief.
In many states, you may be transferred to another correctional facility for any or no reason at all. Olim v. Wakinekona, 103 S.Ct. 1741 (1983). However, you cannot be put into administrative segregation solely to punish you for filing suit, Cleggett v. Pate, 229 F. Supp. 818 (N.D. Ill. 1964). Nor can you be transferred to punish you for filing a lawsuit. Of course, there are other, more subtle things that officers can do to harass you. Perhaps your mail will be lost, your food served cold, or your turn in the exercise yard forgotten. One of these small events may not be enough to make a claim of retaliation, but if it keeps happening, it may be enough to make a claim of a “campaign of harassment.” Bart v. Telford, 677 F.2d 622 (7th Cir. 1982).
To prove that the warden or a correctional officer has illegally retaliated against you for filing a lawsuit, you must show three things:
(1) You were doing something you had a constitutional right to do, which is called “protected conduct.” Filing a Section 1983 claim is an example of “protected conduct.”
(2) What the prison official(s) did to you, which is called an “adverse action,” was so bad that it would stop an “average person” from continuing with their suit, and
(3) There is a “causal connection.” That means the officer did what he did because of what you were doing. Or, in legal terms: The prison official’s adverse action was directly related to your protected conduct.
If you show these three things, the officer will have to show that he would have taken the same action against you regardless of your lawsuit.
Ο Example: An officer learns that you have filed suit against the warden and throws you into administrative segregation to keep you away from law books or other prisoners who might help you in your suit. The “protected action” is you filing a lawsuit against the warden; the “adverse action” is you being placed in the hole. You would have a valid claim of retaliation unless the officer had some other reason for putting you in the hole, like you had just gotten into a fight with another prisoner.
It is possible — but not easy — to get a preliminary injunction to keep correctional officers from threatening or harming you or any of your witnesses in an upcoming trial, Valvano v. McGrath, 325 F. Supp. 408 (E.D.N.Y. 1970).
Here are some of the most common Eighth Amendment challenges to prison conditions:
ο Food: Prisons are required to serve food that is nutritious and prepared under clean conditions. Robles v. Coughlin, 725 F.2d 12 (2d Cir. 1983). As long as the prison diet meets nutritional standards, prisons can serve pretty much whatever they want. They must, however, provide a special diet for prisoners whose health requires it and for prisoners whose religion requires it. See Part 2 of this section, on religious freedom.
ο Exercise: Prisons must provide prisoners with opportunities for exercise outside of their cells. Keenan v. Hall, 83 F.3d 1083, 1089 (9th Cir. 1996); Delaney v. DeTella, 256 F.3d 679 (7th Cir. 2001). Courts have not agreed upon the minimum amount of time for exercise required, and it may be different depending on whether you are in the general population or segregation. One court has considered three hours per week adequate, Hosna v. Groose, 80 F.3d 298, 306 (8th Cir. 1996), while another has approved of just one hour per week for a maximum security prisoner. Bailey v. Shillinger, 828 F.2d 651 (10th Cir. 1987). Some circuits have determined that prisoners cannot be deprived of outdoor exercise for long periods of time. LeMaire v. Maass, 12 F.3d 1444 (9th Cir. 1993). Prisons must provide adequate space and equipment for exercise, but again, there is not clear standard for this. It is generally acceptable to limit exercise opportunities for a short time or during emergencies.
ο Air Quality and Temperature: Prisoners have successfully challenged air quality when it posed a serious danger to their health, particularly in cases of secondhand smoke, Reilly v. Grayson, 310 F.3d 519 (6th Cir. 2002), Alvarado v. Litscher, 267 F.3d 648 (7th Cir. 2001) and asbestos, LaBounty v. Coughlin, 137 F.3d 68 (2d Cir. 1998). While you are not entitled to a specific air temperature, you should not be subjected to extreme hot or cold, and should be given bedding and clothing appropriate for the temperature. Gaston v. Coughlin, 249 F.3d 156 (2d Cir. 2001).
ο Sanitation and Personal Hygiene: Prisoners are entitled to sanitary toilet facilities, DeSpain v. Uphoff, 264 F.3d 965 (10th Cir. 2001), proper trash procedures, and basic supplies such as toothbrushes, toothpaste, soap, sanitary napkins, razors, and cleaning products.
ο Overcrowding: Although overcrowding is one of the most common problems in U.S. prisons, it is not considered unconstitutional on its own. Rhodes v. Chapman, 452 U.S. 337 (1981); C.H. v. Sullivan, 920 F.2d 483 (8th Cir. 1990). If you wish to challenge overcrowding, you must show that it has caused a serious deprivation of basic human needs such as food, safety, or sanitation. French v. Owens, 777 F.2d 1250 (7th Cir. 1985); Toussaint v. Yockey, 722 F.2d 1490 (9th Cir. 1984).
ο Rehabilitative Programs: In general, prisons are not required to provide counseling services like drug or alcohol rehabilitation to prisoners unless they are juveniles, mentally ill, or received rehabilitative services as part of their sentence. Women Prisoners of District of Columbia Dept. of Corrections v. District of Columbia, 93 F.3d 910, 927. (D.C. Cir. 1996).
ο Other Conditions: Prisoners have also successfully challenged problems with lighting, Hoptowit v. Spellman, 753 F.2d 779, 783 (9th Cir. 1985), fire safety, Id. at 784, furnishings, Brown v. Bargery, 207 F.3d 863 (6th Cir. 2000), accommodation of physical disabilities, Bradley v. Puckett, 157 F.3d 1022, (5th Cir. 1998), and unsafe work requirements. Fruit v. Norris, 905 F.2d 1147 (8th Cir. 1990), as well as other inadequate or inhumane conditions. Instead of challenging a particular condition, you may also bring an Eighth Amendment suit on a “totality of the conditions” theory, either on your own or as part of a class action lawsuit. Using this theory, you can argue that even though certain conditions might not be unconstitutional on their own, they add up to create an overall effect that is unconstitutional. Palmer v. Johnson, 193 F.3d 346, (5th Cir. 1999). The Supreme Court has limited this argument to cases where multiple conditions add up to create a single, identifiable harm. Wilson, 501 U.S. at 305, but the courts are in disagreement as to what exactly that means.
9. Your Right to Medical Care
The Basics: The prison must provide you with medical care if you need it, but the Eighth Amendment does not protect you from medical malpractice.
The Eighth Amendment also protects your right to medical care. The Constitution guarantees prisoners this right, even though it does not guarantee medical care to individuals outside of prison because, as one court explained, “An inmate must rely on prison authorities to treat his medical needs; if the authorities fail to do so, those needs will not be met.” Estelle v. Gamble, 429 U.S. 97, 103 (1976).
If you feel that your right to adequate medical care has been violated, the Constitution is not the only source of your legal rights. You can bring claims under your state constitution or state statutes relating to medical care or the treatment of prisoners or bring a medical malpractice suit in state courts. You might also bring a claim in federal court under the Federal Tort Claims Act or a federal statute such as the Americans With Disabilities Act. This section, however, will focus exclusively on your rights to medical care under the U.S. Constitution.
Unfortunately, the Eighth Amendment does not guarantee you the same level of medical care you might choose if you were not in prison. To succeed in an Eighth Amendment challenge to the medical care in your prison, you must show that:
(a) You had a serious medical need;
(b) Prison officials showed “deliberate indifference” to your serious medical need; and
(c) This deliberate indifference caused your injury.
Estelle v. Gamble, 429 U.S. 97 (1976). These requirements are described in more detail below.
(a) Serious Medical Need
Under the Eighth Amendment, you are only entitled to medical care for “serious medical needs.” Courts do not all agree on what is or isn’t a serious medical need; you should research the standard for a serious medical need in your circuit before filing a suit.
Some courts have held that a serious medical need is “one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor’s attention.” Hill v. Dekalb Reg’l Youth Det. Ctr., 40 F.3d 1176, 1187 (11th Cir. 1994). Courts usually agree that the medical need must be “one that, if left unattended, ‘pos[es] a substantial risk of serious harm.’” Taylor v. Adams, 221 F.3d 1254, 1258 (11th Cir. 2000). In other words, if a doctor says you need treatment, or your need is obvious, than it is probably “serious.”
STATE OF CALIFORNIA
DEPARTMENT OF CORRECTIONS
SUMMARY OF DISCIPLINARY PROCEDURES AND INMATE RIGHTS
(See Title 15, California Code of Regulations, for details)[pdf Here]
A. HEARING – A serious rule violation may result in the loss of credits. A hearing will normally be held within thirty (30) days but not less than 24 hours, from the date you receive a copy of the Rules Violation Report. An exception is provided in the California Code of Regulations when a case has been referred for possible prosecution and you have requested, in writing, and been granted, a postponement pending the outcome of such referral. Failure of staff to meet time constraints will usually act as a bar against denial or forfeiture of time credits, but will not bar against other authorized disciplinary actions, (CCR 3320)
B. INVESTIGATIVE EMPLOYEE/STAFF ASSISTANCE –
General Information – You may request to have an investigative employee and/or a staff assistant assigned to assist you in the investigation, preparation, or presentation of your defense at the disciplinary hearing if it is determined by staff that (1) you are illiterate, or (2) the complexity of the issues, or (3) your confinement status makes it unlikely that you will be able to collect and present the evidence necessary for an adequate comprehension of your case. (CCR 3315-3318)
- Staff Assistant – A staff member will be assigned to assist you in the disciplinary process if you are deemed to be incapable of representing yourself. The assigned staff will assist you in preparing for the hearing and assist at the hearing. The staff assistant will maintain any confidence you request about your past conduct. (CCR 3318)
- Investigative Employee – An investigative employee, if assigned, will gather information, questions staff and inmates, screen witnesses, and complete and submit a written, non-confidential report to the disciplinary hearing officer. You have the right to receive a copy of the investigative employee’s report 24 hours before a hearing is held. (CC 3318)
- Witnesses – You may request the presence of witnesses at the hearing who can present facts related to the charges against you. You may also request the presence of the reporting employee and the investigative employee. (CCR 3315)
- Personal Appearance – A hearing of the charges will not normally be held without your presence, unless you refuse to attend. (CCR 3320)
C. REFERRAL FOR PROSECUTION – Referrals for prosecution will not delay a disciplinary hearing unless you submit a request in writing for postponement of the hearing pending the outcome of such referral. You may revoke such request in writing at anytime prior to the filing of accusatory pleadings by the prosecuting authority. A disciplinary hearing will be held within 30 days of staff receiving your written revocation of your request to postpone the hearing or within 30 days of receiving a response form the prosecuting authority. (CCR 3316-3320)
You have the right to remain silent at a disciplinary hearing, and no inference of guilt or innocence will be drawn from your silence. Any statements you do make may be used against you in criminal proceedings.
D. DISPOSITION – At the end of the hearing, you will be advised of the findings and disposition of the charge. Within five working days following review of the CDC 115 and CDC 115-A by the Chief Disciplinary Officer, you will be given a copy of the completed rule violation report, which will contain a statement of the findings and disposition and the evidence relied upon to support the conclusions reached. (CCR 3320)
E. APPEAL – If you are dissatisfied with the process, findings or disposition, you may submit an inmate appeal, from CDC 602, within fifteen days following receipt of the finalized copy of the CDC 115/CDC 115-A. When filing your appeal, be sure to attach a copy of the finalized CDC 115/CDC 115-A., if applicable and any other pertinent documentation. (CCR 3003)
F. ABBREVIATIONS – HO-Hearing Officer; SC-Sub Committee; FC-Full Committee; SHO-Senior Hearing Officer; BPT-Board of Prison Terms
The Right of Legal Access
Just because the Prison Gates slam on you doesn’t mean that you forfeit numerous substantive rights as guaranteed by the Constitution. Some of these are: the right to receive political publications, to engage in political writing including writings which are critical of the Gulag Administration, right to correspond with press, attorneys and other officers of the court, right to engage in political discussions with other prisoners. These are but a few of many rights you should be aware of. The one area of “Prisoners Rights” this article will focus on is access to the courts. The right of access to the courts is based upon the First and Fourteenth Amendments (right to petition all branches of the government for redress). Fifth and Fourteenth Amendments (guarantee of due process). Sixth and Fourteenth Amendments (right lo counsel. This right of access to the courts is probably the most violated and or curtailed.
NUTS AND BOLTS
Let’s examine a little more carefully this substantive right of “access”. In Bounds v Smith 430 U .S. 817. 97 S. Ct 1491 (1977), the Supreme Court firmly established your Constitutional right to access to the courts and that access has to be adequate, effective, and meaningful. Any regulation or policy that obstructs any aspect of that right to access is held invalid. Basically the Gulag overseers can create all the rules they want regarding the law library, but under careful examination they may be held invalid. Before running OK to kite the Warden there are a few other things you should know Right of access involves access to a law library, necessary materials (postage, paper, pens). legal assistance either provided by the State or other prisoners. Confidential communication with the courts, attorneys, and public officials. Finally the right to exercise any of these without fear of retaliation.
THE PIT FALLS
Now at this point you may be thinking about suing the Warden. Because of the fact that claims of denial of access have been brought as both individual claims. and as class action suits. Without citing a lot of case law. you should know that generally individual cases require you suffered actual harm i.e. having a case dismissed. In class actions you have the burden to prove that the system can’t provide access to all without having to establish harm to an individual(s), see Williams V Leeke, 584 F. 2nd 1336 (4thCir. 1975).
So lets say you want to find out if the Warden can shut off the T.V. 15 minutes early, or if he can AD-SEG you for no reason You should start your research by reviewing the regs and then playing a visit to the Law Library. Prisoners have a right of access to an adequate law library or adequate assistance from persons trained in the law so that you may have an adequate opportunity to present claimed violations of your right to a court. But its an either or situation. Courts have held that if the state provides adequate legal assistance it doesn’t have to provide you with a law library. Basically if there’s a legal assistance program serving your prison, a court may decide that you have no right to a law library unless:
* You’ve been rejected by the program.
* The program doesn’t cover full range or prisoner’s legal needs.
* Programs resources are inadequate to serve the population.
So far we’ve thrown the term adequate around quite a bit but what doesn’t it mean? We could find out by looking in Webster Dictionary for a neat definition. but it wouldn’t give us a factual basis on which to present a case. Courts have issued various conclusions about what a law library should contain. For example some courts have said the American Association of Law Libraries Services for Prisoners List is what they should contain. Basically it just takes a bit of common sense to know that once law dictionary for a population of 100 just isn’t adequate. But of course the courts may rule differently. It’ll take some research on you part to see if there exists any case law that is similar in fact to yours. Access to law libraries likewise must be adequate. While prison authorities can restrict reasonable access in terms of time, manner, and place, the courts have condemned schedules that didn’t provide enough time for meaningful research, actual physical access to the library, and other types of restrictions. If you’re in segregation the courts have approved a cell delivery system. Wajtczak v Cuyler 180 F.Supp. 1288 (E.D. PA 1979). held that a protective custody prisoner must have at least the equivalent of the opportunity [to do legal research] that is available to an inmate who is permitted to go personally to the prison library. By looking at the end of this article you will find a find. Legal cites concerning how courts have interpreted what is adequate vs. inadequate. Always remember to Shepardize each cite fully and to its very end. Not doing so will jeopardize your case.
Everybody wants to get out of the cage. By limiting your legal work to this long term goal, you won’t get jacked by the Warden. Oh the T.V. may get turned off 15 minutes early, dinner might be a bit cold. but other than that you’ll be left alone. It’s only when you demand that your rights be respected will play you close. Remember it is illegal for them to retaliate against you for exercising your rights. It doesn’t matter if its official policy or not if you can prove retaliation, you have several remedies available to you including suing for monetary damages. If you’re serious about exercising your rights and helping others to do the same, expect to get harassed. One of the things you should be considering now is “How do I protect myself from getting thrown in the hole:'” defending yourself from petty prisoncrats is handled best by organizing on two levels. On the inside by hooking up with other “Rights Conscious” prisoners and forming a club or organization. You can call it Gulag Committee to Safeguard Prisoner’s Rights or whatever. Parallel to this is to organize a second level, that of an outside support group. There are many such groups already in place doing prisoner support work. Hooking up with “Free World” allies is an excellent point of leverage arbitrary harassment.
The role of the support group is just that, to support your efforts through publicizing your issues, research, material support, etc. Your outside supporters can be considered your lifeline. No matter what happens, they’re there. If you happen to find yourself in an uncomfortable relationship with support people, express your concerns in an open, honest, and fair manner. Resolve the situation as quickly as possible. If resolution isn’t happening then cut these folks loose quickly. I hope this has helped you at least think about what your rights are. There are a lot of additional resources to help you along and some are listed after the case cite. Take care. good luck. THE STRUGGLE DOES NOT STOP AT THE PRISON GATES.
NOTE: This article was written by a lay person. The reference used is Prisoner’s Self-Help Litigation Manual copyright 1983 Daniel E. Manville. Special thanks for Prison Legal News for their invaluable assistance and Prison Law Office for sending us all their material.
Cruz v Hauk, 627 F.2d 710. 720 (5th Cir. 1978).
two or three hours a week might be inadequate.
Walker v Johnson, 544 F. Supp. 345 (E.D. Mich. 1982).
four and a half hours a week required.
Ramos v Lamm, 485 E Supp. 122. I66 (D. Colo. 1979).
aff’d in part and rev’d in part 639 F.2d 559 (10th Cir. 1980). cert denied S. Ct 1759 (1981).
three hours every four to six weeks inadequate.
Millhouse v Carlson, 652 F 2nd 371 (3rd Cir. 1981)
conspiratorially planned disciplinary actions.
Ferrari v Moran, 618 F 2nd 888 (1st Cir. 1980).
denial of transfer and medical care.
Cruz v Beto, 603 F.2d 1178 (5th Cir. 1979).
placement of attorney’s clients in segregated unit.
Hudspeth v Figgins, 584 F.2d 1345 (4th Cir. 1978).
death threat. Carter v Newburg Police Dept., 523 F Supp. 16 (S.D.N.Y. 1980),
threats and beatings.
McDaniel v Rhodes, 512 F. Supp 117 (S.D. Ohio 1981).
threats of adverse parole action.
ACLU HANDBOOK: THE RIGHTS OF PRISONERS
ACLU 132 W. 43rd St. New York, NY 10036
A guide to the legal rights of prisoners, parolees, and pre-trial detainees. Contains citations. $5 to prisoners.
BLACKSTONE SCHOOL OF LAW
P.O. Box 790906 Dallas, TX 75379-0906
Low cost paralegal course by mail. Covers principles of civil and criminal law.
CALIFORNIA ATTORNEYS FOR CRIMINAL JUSTICE
660 J Street, #200, Sacramento, CA 95814
Attn: Melissa Nappan
CRIMINAL PROCEDURE PROJECT
Georgetown Law Journal 600 New Jersey Ave. NW, Washington D.C. 20001
Information on criminal procedure, habeus corpus relief, and prisoners rights. $5 Ask about free copies of their special issue of the Georgetown Law Journal.
D.C. PRISONERS LEGAL SERVICES PROJECT
1400 20th NW Suite 117 Washington, D.C. 20036
EQUAL JUSTICE U.S.A.
P.O. Box 5206 Hyattsville, MD 20782
Legal support. Involved heavily in Mumia’s case.
P.O. Box 819 Winnie, TX 77665
Legal information, self-help project.
HENRY GEORGE INSTITUTE
121 East 30th St. New York, NY 10016
Check it out, they may have legal stuff. Definetly has a home study course in economics. Small charge for materials. No tuition cost.
JAILHOUSE LAWYER’S MANUAL
Colombia Human Right Law Review, West 116th Street, Box 25, NY, NY 10027
With such a cool and nifty name how can you go wrong. What a shame the thing costs $13 for prisoners.
Lewisburg Prison Project, Box 128, Lewisburg, PA 17837
Write for FREE catalog of federal prisoner’s rights.