Providing Inmate Access to the Courts

• Author: William Payne,Michael J. Sabath
• Published date: 01 March 2012
• DOI: 10.1177/0032885511428798
• Date: 01 March 2012

The Prison Journal

92(1) 45 –62

© 2012 SAGE Publications

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DOI: 10.1177/0032885511428798

http://tpj.sagepub.com

428798TPJ92110.1177/003288551142

8798Sabath and PayneThe Prison Journal

© 2012 SAGE Publications

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1San Diego State University, Calexico, CA, USA

Corresponding Author:

Michael J. Sabath, San Diego State University, Imperial Valley Campus, 720 Heber Avenue,

Calexico, CA 92231, USA

Email: msabath@mail.sdsu.edu

Providing Inmate

Access to the Courts:

U. S. Prison Strategies

for Complying With

Constitutional Rights

Michael J. Sabath1 and William Payne1

Abstract

As the federal courts have established the right of inmates to seek post-

conviction relief, prisons systems have struggled with a variety of strategies

to come into compliance. Using data from a national survey of prisons, this

study describes court access strategies employed by state correctional systems

and examines how prison contextual characteristics, such as security level,

population size, and the court ruling in Lewis v. Casey (1996) affect their

use. Results indicate that strategies are influenced by size, security level and

demand for legal services, and offer evidence of the adverse effects of the

Lewis decision on prison law libraries.

Keywords

Inmate rights, postconviction relief, Lewis v. Casey

As prison populations have grown across the United States, so has the demand

for legal services and materials related to inmate efforts to seek postconviction

relief through the courts. State correctional administrators have been hard

pressed to respond to this demand, not only because of shrinking budgets

46 The Prison Journal 92(1)

and cuts in personnel, but also because of difficulties deciphering and using

as guidance a long line of federal and state court cases that define the rights

of prisoners to access the courts. Beginning with Ex Parte Hull (1940), the

U.S. Supreme Court established that states “may not abridge or impair a

petitioner’s right to apply to apply to a federal court for a writ of habeas cor-

pus.” In the decades following Ex Parte Hull, a number of supreme court and

state court cases attempted to delineate more clearly the rights of inmates to

seek postconviction relief and institutional civil rights, particularly with

respect to the right to counsel and the legal resources needed by incarcerates.

Most significant among these are Johnson v. Avery (1969) in which the

supreme court established the right of inmates to use other inmates (often

referred to as jailhouse lawyers or writ writers) to pursue their cases in the

absence of other reasonable alternatives, and Younger v. Gilmore (1971)

which held that incarcerates must be assured an adequate supply of legal

research materials and resources in seeking postconviction relief. In these

cases, the court prescribed neither the precise court-access mechanisms to be

employed by prisons nor the types of legal resources and materials that must

be made available. A few years later, however, in Bounds v. Smith (1977) it

did emphasize that whatever prison authorities did, they had an affirmative

obligation to ensure that it resulted in “meaningful access” to the courts for

inmates. For many prisons, this Bounds-defined obligation translated into the

development and support of law libraries, principally in the form of up-to-date

legal text collections. Yet a more recent supreme court ruling, Lewis v. Casey

(1996), held that Bounds did not “create an abstract, free-standing right to a

law library”, or legal assistance. For advocates of court-ordered improve-

ments in access to the courts, this ruling signaled a serious setback to efforts

to improve the quality and completeness of prison law libraries. It was also

seen as a return to a “hands off” policy with respect to court oversight of

access strategies implemented by prison administrators (Cacho, 2003;

Gerken, 2003; Wilhelmus, 1999a & 1999b).

Given the latitude and complexity of the court’s guidance, as well as the

differences in the characteristics of prisons and prison populations, it is not

surprising that today there is wide variation in court-access strategies put in

place by correctional administrators across the country. Although some pris-

ons have complete law libraries, offer legal assistance classes, make Westlaw

on-line services available, or have access to a vibrant public defender system,

many offer only the bare essentials (Dixen & Thorson, 2001; Hall,

2001). Recognizing the varying circumstances faced by prisons, the

courts have supported a variety of remedies to encourage compliance with

court-access constitutional standards, including the use of jailhouse lawyers,