may it please the court: law students and legal research instruction in prison law libraries

This article was downloaded by: [Duke University Libraries]On: 05 October 2014, At: 10:05Publisher: RoutledgeInforma Ltd Registered in England and Wales Registered Number: 1072954 Registeredoffice: Mortimer House, 37-41 Mortimer Street, London W1T 3JH, UK

Legal Reference Services QuarterlyPublication details, including instructions for authors andsubscription information:http://www.tandfonline.com/loi/wlrs20

May It Please the Court: Law Studentsand Legal Research Instruction in PrisonLaw LibrariesEmily Shepard Smith aa University of Washington School of Law , Seattle, Washington, USAPublished online: 08 Dec 2010.

To cite this article: Emily Shepard Smith (2010) May It Please the Court: Law Students and LegalResearch Instruction in Prison Law Libraries, Legal Reference Services Quarterly, 29:4, 276-317, DOI:10.1080/0270319X.2010.529370

To link to this article: http://dx.doi.org/10.1080/0270319X.2010.529370

PLEASE SCROLL DOWN FOR ARTICLE

Taylor & Francis makes every effort to ensure the accuracy of all the information (the“Content”) contained in the publications on our platform. However, Taylor & Francis,our agents, and our licensors make no representations or warranties whatsoever as tothe accuracy, completeness, or suitability for any purpose of the Content. Any opinionsand views expressed in this publication are the opinions and views of the authors,and are not the views of or endorsed by Taylor & Francis. The accuracy of the Contentshould not be relied upon and should be independently verified with primary sourcesof information. Taylor and Francis shall not be liable for any losses, actions, claims,proceedings, demands, costs, expenses, damages, and other liabilities whatsoever orhowsoever caused arising directly or indirectly in connection with, in relation to or arisingout of the use of the Content.

This article may be used for research, teaching, and private study purposes. Anysubstantial or systematic reproduction, redistribution, reselling, loan, sub-licensing,systematic supply, or distribution in any form to anyone is expressly forbidden. Terms &Conditions of access and use can be found at http://www.tandfonline.com/page/terms-and-conditions

http://www.tandfonline.com/loi/wlrs20

http://www.tandfonline.com/action/showCitFormats?doi=10.1080/0270319X.2010.529370

http://dx.doi.org/10.1080/0270319X.2010.529370

http://www.tandfonline.com/page/terms-and-conditions

http://www.tandfonline.com/page/terms-and-conditions

Legal Reference Services Quarterly, 29:276–317, 2010Copyright © Taylor & Francis Group, LLCISSN: 0270-319X print / 1540-949X onlineDOI: 10.1080/0270319X.2010.529370

May It Please the Court: Law Students and LegalResearch Instruction in Prison Law Libraries

EMILY SHEPARD SMITHUniversity of Washington School of Law, Seattle, Washington, USA

According to the administrative office of the U.S. Courts, a signifi-cant part of the present docket of federal district courts consists ofprisoner litigation. This category of litigation, composed largely ofhabeas corpus petitions, civil rights suits, and suits related to prisonconditions, is often pressed by prisoners whose only legal assistanceis the resources and materials available in their prison law library.Although prisoner litigation is an essential means of ensuring thatour prisons and criminal justice systems operate within the confinesof the U.S. Constitution, these often poorly researched and poorlywritten lawsuits also present special challenges to the federal courtstasked with processing them. This article explores how establish-ing programs that involve law students in teaching legal researchin prison law libraries could help to both ameliorate the burdensthat prisoner litigation places on the federal court system and im-prove prison law libraries’ ability to provide prisoners with mean-ingful access to the courts. The article begins by discussing thehistory of prisoner litigation in federal courts and describes fourmodels of legal research instruction and assistance that have beenemployed in prisons. Based on the lessons learned from these efforts,the article presents a proposal for a prison legal research clinic thatcould be established by interested law schools and their librarians,and discusses the benefits to law students, prisoners, and the courtsthat such a program has the potential to deliver.

KEYWORDS legal research, prison law libraries, prisoner litiga-tion, prisoners, teaching and instruction, law students

This article was the winner of the 2010 Earl C. Borgeson Research in Law Librarian-ship Award, University of Washington School of Information. The author thanks all of theindividuals interviewed for this article for sharing so much of their time and insight.

Address correspondence to Emily Shepard Smith, M. G. Gallagher Law Library, Universityof Washington School of Law, William H. Gates Hall, Box 353025, Seattle, WA 98195-3025,USA. E-mail: [email protected]

276

Dow

nloa

ded

by [

Duk

e U

nive

rsity

Lib

rari

es]

at 1

0:05

05

Oct

ober

201

4

Prison Libraries 277

INTRODUCTION

Beginning in the 1960s and 1970s, federal courts, which had previously takena hands-off approach to state prisons, began to entertain increasing numbersof prisoner lawsuits. This increase was the result of U.S. Supreme Courtdecisions affirming prisoners’ right to seek redress in the courts for allegedconstitutional violations and requiring states to provide prisoners with themeans to effectively petition courts for review of their grievances. Most stateschose prison law libraries as the vehicle to secure prisoners’ access to thecourts.

Prisoner litigation—often filed by inmates proceeding pro se with the as-sistance of resources from their facilities’ law libraries—remains an importantmeans of ensuring that criminal prosecutions and subsequent confinementsadhere to the dictates of the U.S. Constitution. The volume and quality ofprisoner petitions, however, present significant challenges for the courts.Processing large numbers of poorly constructed petitions continues to chal-lenge the courts, even though a legislative and judicial contraction of theright of access in the 1990s reduced the overall number of prisoner suitsfiled in federal court.

Prison law libraries signify both a challenge and an opportunity forthe legal community. They present a challenge because using libraries asa sole means of securing prisoner access to federal courts presents well-documented problems. At the same time, though, prison law libraries presentan opportunity for law schools and their librarians to become directly in-volved in helping these institutions function more effectively.

This article proposes a program that librarians in academic law librariescan use to establish a student-based legal research instruction and assistanceprogram in prison law libraries. Student benefits from such a program includegaining practical experience and improving research skills—goals of manylaw schools. Additionally, anecdotal evidence shows that providing inmateswith legal research instruction decreases the number of meritless filings inthe federal courts and increases the number of successful inmate filings, twofailed goals of the late 1990s reform legislation.

The article begins with an overview of prisoner litigation and its impacton the federal court system, including a description of prison libraries’ rolein facilitating prisoners’ ability to present their grievances to the courts. Itexamines prison law libraries’ shortcomings and discusses the burdens thatprisoner litigation continues to impose on federal court dockets, despite leg-islative efforts to address the issue. The article then moves on to discuss pastand present, formal and informal programs that demonstrate the potentialbenefits of providing legal research assistance and instruction to prisoners.The final part of the article presents my recommendations for the form thatsuch a program within a law school could take, based on lessons learnedfrom the programs studied.

Dow

nloa

ded

by [

Duk

e U

nive

rsity

Lib

rari

es]

at 1

0:05

05

Oct

ober

201

4

278 E. Shepard Smith

OVERVIEW OF PRISONER LITIGATION AND ITS IMPACTON THE FEDERAL COURT SYSTEM

The U.S. Administrative Office of the Courts, which tracks, among otherthings, statistics related to the type and number of suits filed in the fed-eral district and appellate courts each year, includes a separate category ofstatistics for “prisoner petitions.”1 Motions to vacate sentence, habeas corpuspetitions, petitions seeking mandamus and other immediate relief, civil rightssuits, and suits related to prison conditions are all included in this litigationcategory. For the twelve-month period ending September 30, 2009, the to-tal number of prisoner petitions filed in federal district court was 52,304.2

This was down slightly from the total for the preceding period and moresignificantly from the high of 68,235 in 1996.3 Despite the downward trend,however, prisoner petitions continue to make up a significant part of the fed-eral district courts’ docket. For comparison, in 2009, contract actions totalednearly 20,000 fewer at 35,634, and the total of all product liability actions(which amounted to 58,335 actions filed), was only slightly higher.4

The vast majority of petitions and complaints filed by prisoners are civilrights and prison condition suits and habeas petitions. In 2009, for example,these cases made up nearly eighty-seven percent of all prisoner litigationfiled.5 Of these, civil rights and prison condition suits constitute the majority,at forty-eight percent of the total.6

History of Prisoner Litigation and Prison Law Libraries’ Rolein Providing Access to the Courts

EXPANSION OF ACCESS TO THE COURTS: 1960S–MID-1990S

Despite the present-day significance of prisoner litigation on the federalcourt docket, these types of suits were largely unheard of in the earlierpart of the twentieth century. In 1941, the Supreme Court’s decision in ExParte Hull confirmed the unequivocal right for state prisoners to petitionthe federal courts for review of asserted constitutional violations in trialand sentencing.7 Nonetheless, federal courts continued to operate undera “hands-off” doctrine, in which they shied away from interference in stateprison administration.8 In 1964, however, the Supreme Court decided Cooperv. Pate, which held that an inmate in the Illinois State Penitentiary hadstanding to bring suit against prison officials under 42 U.S.C. § 1983.9 Thisdecision marked the beginning of a steep increase in prisoner litigation10

and the start of a period during which federal courts actively intervened inprison administration, issuing injunctive relief against civil rights violationsand enforcing consent decrees aimed at ameliorating unconstitutional prisonconditions.11

Dow

nloa

ded

by [

Duk

e U

nive

rsity

Lib

rari

es]

at 1

0:05

05

Oct

ober

201

4


Prison law libraries soon found themselves playing a key role in prisonerlitigation. In 1977, the Supreme Court in Bounds v. Smith expressly held forthe first time that prisoners are entitled to “meaningful access to the courts,”an affirmative right which “requires prison authorities to assist inmates in thepreparation and filing of meaningful legal papers . . .”12 The Court expresslyidentified prison law libraries as one of the means by which states couldsatisfy this duty.13 Following Bounds, the vast majority of states—forty-sevenby one count—chose to provide law libraries as the means of ensuringprisoners access to the courts.14 Prison law libraries accordingly became thetools with which prisoners pressed their habeas corpus petitions and civilrights complaints—actions for which the Supreme Court’s decision in Cooperv. Pate had cleared the way.

POST-BOUNDS CRITICISM OF PRISON LAW LIBRARIES

Despite the Supreme Court’s endorsement of prison law libraries and thenear universality with which states adopted them to fulfill their constitutionalobligations, criticism over the reliance on law libraries for this purpose soonemerged. O. James Werner, whose Manual for Prison Law Libraries becamea standard text in this area, was an outspoken skeptic of law libraries’ ability,standing alone, to provide prisoners with meaningful access to the courts.Werner “maintained that exclusive reliance on law libraries . . . was like refer-ring a sick person to a medical library rather than a doctor.”15 Other criticismwas equally pointed, asserting that most prisoners lacked the education andliteracy skills to permit them to effectively use legal resources.16

Law librarians and commentators also generally recognized that lawlibrary staffing improvement was crucial to providing meaningful access tothe courts.17 However, many prison law libraries fell short in this respect.A 1983 survey indicated that staffing varied greatly in terms of training andeven existence.18 Then, as well as now, the challenges prisoners faced ineffectively using their law libraries were compounded by the absence of alibrarian or trained staff person who could oversee the collection and assistprisoners in navigating the legal resources provided to them.

Following the Court’s decision in Bounds, prisoners brought numerousright-of-access cases challenging the sufficiency of prison law libraries.19 Thecases required courts to evaluate whether prison libraries were providingmeaningful access to the courts, and if not, to question whether they couldachieve this purpose under any circumstances.20

MID-1990S: RESTRICTIONS ON THE RIGHT OF ACCESS AND FEDERAL RELIEF

The PLRA and AEDPA. In the years after the Supreme Court’s moveto open federal courthouse doors to prisoners and ensure them means forpresenting grievances, commentators also became concerned about courts’

Dow

nloa

ded

by [

Duk

e U

nive

rsity

Lib

rari

es]

at 1

0:05

05

Oct

ober

201

4


ability to deal effectively with the meteoric rise in the numbers of prisonerlawsuits.21 Inmates’ civil rights suits, in particular, became the subject ofincreasing scholarly criticism.22 Judges who felt besieged by the increasedvolume of litigation complained,23 and language in judicial opinions oftenexpressed frustration with serial filers.24 Coupled with the concern expressedby commentators and courts regarding the number and nature of prisonerlawsuits inundating federal courts, a political backlash developed against thefederal consent decrees and court orders that were the outcome of manyprisoner suits. State officials and others perceived and characterized theseremedies as federal overreaching and meddling in matters of state interest.25

In addition, some commentators suggested that providing law libraries with-out adequately trained staff increased the likelihood that prisoners wouldfile frivolous petitions.26 Perhaps not surprisingly, the increase in prisonerlitigation led to blaming prison law libraries for “fostering jailhouse lawyersand providing means for excessive prisoner litigation.”27

The increased prominence of prisoner litigation on the federal courtdocket also sparked news stories relating to frivolous prisoner complaintssuch as suits over towel color and whether inmates were entitled to creamy,rather than chunky, peanut butter.28 Such reports ultimately created a cli-mate of pervasive hostility to prisoner litigation. It is debatable whether theincrease in litigation was the result of prisoners filing a disproportionatenumber of frivolous suits or whether it merely reflected the rise in the na-tion’s prison population during these years.29 Nonetheless, as one articlenoted, “a general consensus about prisoner litigation seems to exist . . . thatprisoners are filing lawsuits for entertainment and recreational purposes inepic proportions.”30

In 1996, popular sentiment regarding prisoner litigation facilitated thepassage of two pieces of legislation: the Prison Litigation Reform Act (PLRA)and the Anti-Terrorism and Effective Death Penalty Act (AEDPA). The PLRApassed as a rider to an appropriations bill, leaving very little legislative historyin its wake. The comments of its sponsors emphasized the flood of frivolousclaims inundating federal courts, however, and left little doubt as to itsobjective.31 The act’s supporters suggested that its provisions would alsohelp improve the quality of filings and thereby facilitate courts’ identificationand consideration of legitimate claims.32 As enacted, the PLRA imposes anumber of significant procedural and substantive restrictions on the filingof prisoner suits in federal court.33 Similarly, the 1996 amendments to thefederal habeas corpus statute, passed as the AEDPA,34 considerably heightenthe barriers to federal court review of prisoners’ convictions.35

Lewis v. Casey. In the same environment that led Congress to enact thePLRA and AEDPA, and in the midst of continued debate and litigation overthe constitutional adequacy of prison law libraries as a means of providingaccess to the courts, the Supreme Court handed down its landmark decisionin Lewis v. Casey.36 This case grew out of a challenge to the adequacy of a

Dow

nloa

ded

by [

Duk

e U

nive

rsity

Lib

rari

es]

at 1

0:05

05

Oct

ober

201

4


prison law library by a group of Arizona prisoners and held that while theConstitution requires meaningful access to the courts, it does not provide a“freestanding right” to a law library.37 Under Lewis, prisoners can no longerdemonstrate a denial of the right of access by demonstrating that their libraryfalls short in some theoretical sense. Rather, they must show that particulardeficiencies actually prevented them from presenting their grievance to thecourt. Lewis also significantly restricted the type of suits that can serve asthe basis for a denial-of-access claim, holding that Bounds requires onlyenough access for prisoners “to attack their sentences, directly or collaterally,and . . . to challenge the conditions of their confinement.”38 Clearly reflectingpopular antipathy to prisoner litigation, the Court admonished, “Bounds doesnot guarantee inmates the wherewithal to transform themselves into litigatingengines capable of filing everything from shareholder derivative actions toslip-and-fall claims.”39

Although many states retain their correctional law libraries today, abouthalf abandoned them after Lewis.40 For its part, Arizona responded to itsvictory by closing its prison law libraries and contracting with paralegalsto “answer inmate requests by mail or by visit if the inmate has a courtdeadline.”41 Overall, the result of Lewis “has been a marked contraction inthe availability of law libraries and other legal services to prison inmates.”42

Impact of Prisoner Litigation on Federal Courts Today

The PLRA has been somewhat successful at reducing the number of prisonersuits filed in federal court.43 It appears to have failed in its secondary objectiveof clearing federal dockets of frivolous claims to make way for meritorioussuits, however.44 AEDPA appears to have had even less impact; state prisonerhabeas corpus filings were at a high in 2000, four years after AEDPA wasenacted.45

Therefore, although fewer prisoner petitions are filed in federal courttoday than during the late 1990s, their numbers remain very high. They farexceed the number that provoked concern from scholars and judges at theoutset of the Supreme Court’s expansion of prisoner access to the courts.46

The fact remains that these suits constitute a significant part of the federaldocket—so much so that some courts rely on staff attorneys whose solejob is to read and make initial recommendations regarding the complaints.47

Further, even though the total number of filings has decreased, many districtsstill labor under a very heavy prisoner docket.48 Moreover, although it is truethat most civil prisoner litigation never goes to trial or involves court time,these lawsuits are also not candidates for settlement and are burdensome inother ways. Unlike other private lawsuits where the parties are representedby attorneys, prisoner litigation requires “some court action . . . on almost allcases.”49 In 2000, processing these cases cost the federal court system morethan $31 million.50

Dow

nloa

ded

by [

Duk

e U

nive

rsity

Lib

rari

es]

at 1

0:05

05

Oct

ober

201

4


IMPORTANCE OF PRISONER LITIGATION

Even though prisoner petitions place huge demands on federal district courts,it is important to recognize that prisoner litigation serves crucial purposeswithin the legal system and provides penological and societal benefits. Asa primary matter, by allowing prisoners to file habeas corpus petitionsseeking federal court review, we are ensuring that state criminal justicesystems—police, prosecutors, and courts—operate within the confines ofthe U.S. Constitution and that their trials and convictions are constitutional.51

Habeas petitions prepared and filed by pro se inmates (often with the prisonlibrary as their only resource) are the means by which most prisoners presenttheir constitutional challenges to the federal courts for review. Lest anyoneforget or doubt the importance of this oversight, one need only review thenewspaper headlines from the last decade. These headlines are a reminderof the alarming numbers of individuals sentenced to death row who weresubsequently exonerated by DNA evidence—many thanks to efforts of lawschool innocence projects—or who have had their questionable convictionsreversed after egregious misconduct by prosecutors and defense attorneysalike.52

Similarly, the Supreme Court has consistently held that prisoners, despitea significant loss of liberty during the period of their confinement, retain cer-tain constitutional rights while incarcerated.53 Suits challenging conditionsof confinement and treatment by corrections personnel are an importantmeans of not only vindicating these rights but also encouraging prisons totake proactive steps to ensure that these violations do not occur in the firstplace. It is worth noting that in 1995, more than a quarter of state prisonswere operating under a court order or consent decree.54 As the American BarAssociation observed, this figure “suggests that the possibility that legitimateconcerns about prison practices, policies, and conditions have sparked orare sparking some pro se prisoners’ civil rights litigation is not a speciousone.”55 Early prison condition cases detail some horrific confinement condi-tions, and prisoner lawsuits played a crucial role in putting a stop to suchpractices.56

Permitting prisoners to petition the courts to address their grievancesalso serves broader penological and societal objectives.57 These include cul-tivating respect for the law as a means of redress when one’s rights areviolated58; rehabilitative benefits59; and litigation’s function as a “safety valve”providing prisoners with a nonviolent means of responding to wrongs byprison officials, whether actual or perceived.60

CHALLENGES POSED BY PRISONER LITIGATION

Despite the importance of prisoner litigation and its crucial role in ensur-ing that constitutional rights are upheld during conviction and confinement,this litigation continues to pose significant challenges for the federal court

Dow

nloa

ded

by [

Duk

e U

nive

rsity

Lib

rari

es]

at 1

0:05

05

Oct

ober

201

4


system. As previously noted, the PLRA does not appear to have had anyimpact upon the legal merit of suits filed in federal courts. This does notnecessarily mean that most prisoners are intentionally using the system toharass their incarcerators (and by extension, the courts). However, givenmost prisoners’ educational shortcomings and unfamiliarity with legal re-search, they face difficulty determining what grievances constitute legallycognizable claims continues, and courts continue to struggle with identify-ing and separating poorly written but meritorious claims from poorly writtenunmeritorious claims.61

Further, although there may be fewer suits and petitions filed in federalcourt today overall, the litigation that is filed still suffers from the same defi-ciencies that existed during years of peak filing.62 First, prisoner submissionsare often poorly written and lack supporting research or citations. The edu-cation level among prisoners is often low, and submissions prepared withoutthe assistance of counsel generally reflect this.63 “Unfamiliar with the toolsof legal reasoning and argumentation, prisoners’ complaints and briefs areoften written in an intellectual fog.”64

The number of legally incompetent briefs filed greatly increases theamount of time law clerks and judges need to determine if a prisoner’s claimhas any legal merit. Attorneys on either side of a case who can identify rel-evant case law and governing principles to help orient a clerk or judge inan area of law greatly decrease the amount of time it takes for the court toeducate itself in preparation for rendering a competent decision. Although itmay be true that many prisoner suits and habeas petitions present less com-plicated legal issues, this is not always the case. Especially given that manyprisoner suits are initially reviewed, researched, and evaluated by law clerkswho spend only one year with a federal judge and thus do not benefit fromseeing many issues repeated, the lack of a coherent brief to guide processingmakes even initial screening of these suits time consuming.65 Prison law li-brarians interviewed during research for this article who assist prisonerswithout legal research or writing instruction confirmed that many prisonershave no concept of what a submission to a court should look like.66 Therudimentary nature of the vast majority of prisoner filings is compoundedby the Supreme Court’s long-standing directive that pro se pleadings mustbe liberally construed by the courts.67 Thus, the lack of a clear submissiondoes not relieve the courts of the duty to comprehensively address any claimsthat are suggested or potentially raised (with however little support) by thesesubmissions. Setting aside the accuracy of the assertion that prisoners file adisproportionate number of nonmeritorious claims, the bottom line is thelevel of prisoner litigation remains high, and even where nonfrivolous, ischallenging for courts to process.

Even when states continue, post Bounds, to provide prison law li-braries, the question of whether such access ensures meaningful access tothe courts persists.68 This is especially true for libraries that are not staffed by

Dow

nloa

ded

by [

Duk

e U

nive

rsity

Lib

rari

es]

at 1

0:05

05

Oct

ober

201

4


professionals trained in legal research. Although my research did notundertake a systematic survey of prison law library staffing, discussions withprison librarians suggests that the uneven and sometimes inadequate staffingidentified in the early 1980s69 persists today. For instance, as Susan Tromb-ley of Minnesota’s Law Library Service to Prisoners Program discusses in thesection of this article titled Addressing the Challenges Associated with Pris-oner Litigation, there is no statewide standard for law library staffing andonly three or four libraries in the correctional system (of eight total facilities)are staffed by individuals with training in librarianship.70 Wanda Heimannof the Washington State Penitentiary confirmed that the qualifications forprison law librarian positions in Washington State similarly do not require amaster’s in library science or law library experience.71

Prison library staff and others confirm that prisoners’ limitations nega-tively affect their ability to make effective use of the law libraries.72 All prisonlaw librarians interviewed as part of the research for this article had storiesto tell of inmates’ inability to comprehend basic legal research and writingprinciples.73 Inmates with education- and ability-level challenges also havedifficulty even using library resources.

ADDRESSING THE CHALLENGES ASSOCIATEDWITH PRISONER LITIGATION

Despite Congress’s attempt to reduce prisoner litigation’s impact on the fed-eral docket, the legislative fixes passed in the late 1990s appear to havesimply limited prisoners’ access to the courts, without improving the qual-ity of the filings.74 As one commentator noted prior to the passage of thePLRA: “. . . we view the basic problem as twofold: (1) reducing the num-ber of frivolous cases and (2) improving the ability of the courts to identifythe meritorious cases and fairly adjudicate them.”75 These problems remaintoday.

This article suggests one way the legal community can help addressthese problems. As previously discussed, the main reasons prison law li-braries are ineffective at providing inmates with access to the courts is thatmany inmates lack a basic understanding of research tools and process andthe underlying legal system, and the libraries are often insufficiently staffedand unable to fully assist prisoners in their use.76 Prisoners’ court submis-sions in turn reflect this handicap, increasing the burden of processing thesesuits. One way to improve libraries’ effectiveness is to provide legal researchinstruction to inmates. This would improve inmates’ ability to research andevaluate potential claims, both to better determine which claims are worthyof pursuit and to present legitimate claims more clearly. Law students, aidedby law librarians, are well situated for this effort.

Dow

nloa

ded

by [

Duk

e U

nive

rsity

Lib

rari

es]

at 1

0:05

05

Oct

ober

201

4


Although no law school has attempted a formal legal research instructionclinical program, a number of prison research assistance programs are usefulin considering a law student program. The section titled Past and PresentPrograms Involving Research Assistance or Instruction in Correctional Facil-ities describes four different models of legal research instruction that havebeen employed in prison libraries or in conjunction with outside librariesproviding service to prisoners. The next section then proposes an outlinethat law schools could use to implement a legal research instruction pro-gram in prison libraries that would be beneficial to both prisoners and thecourt system. The discussion also raises questions and choices that wouldneed to be addressed in designing the program, as well as challenges likelyto be encountered in its implementation and management.

Although no empirical evidence has been collected on the success ofthe programs I will describe, the anecdotal evidence from both participantsand outsiders suggests that such efforts can be effective in improving thequality of submissions to the court, reducing frivolous filings, and helpingprison law libraries better fulfill their intended purpose.

Past and Present Programs Involving Research Assistance orInstruction in Correctional Facilities

Each of the following programs takes a very different tack in structure anddelivery. However, each has certain features in common, and the programs’participants identify key issues to be considered in developing a formallaw school program involving prison research assistance and instruction.Each program is described in turn, and commonalities among them are thenidentified and discussed.

RESEARCH INSTRUCTION BY PRACTICING ATTORNEYS IN PRISON LIBRARIES: LEGAL

INSTRUCTION IN THE WASHINGTON STATE PRISON LIBRARY AT PURDY, WA

For eleven years, from approximately 1991 to 2002, Marc Lampson,currently a practicing attorney in Seattle, WA, and then a legal research andwriting instructor at Seattle University, taught a weekly legal research classto inmates in a women’s prison in Purdy, WA.77 The class was institutedpursuant to a consent decree entered in the early to mid-1980s, which grewout of a lawsuit involving prison conditions. As part of this consent decree,the facility was required to establish a law library and provide instruction onits use at the state’s expense. The director of the prison law library duringthis time had worked for the state library but had no library degree andwould have been unequipped to teach a legal research class—a commonstaffing situation, as the study discussed above demonstrates.78 Accordingly,the state looked elsewhere for qualified instructors.

Dow

nloa

ded

by [

Duk

e U

nive

rsity

Lib

rari

es]

at 1

0:05

05

Oct

ober

201

4


Mr. Lampson organized his instruction as a ten- to twelve-week coursethat met one evening per week in the prison library for approximately threehours. Because the prison did not then have access to electronic resources,all instruction was in the use of print resources including primary and sec-ondary materials and digests. The course was designed so that each classbuilt on skills learned in preceding classes, and inmates were therefore dis-couraged from joining the course once it was underway, or attending sporad-ically. The courses typically began with a large enrollment that diminishedby two or three students once it was explained that the course would notoffer legal advice. Generally, a core of around twelve inmates remainedto complete the course in full, at which time the inmate received a cer-tificate of completion to mark her achievement. Mr. Lampson encouragedstudents to repeat the course as necessary to master the skills and conceptstaught.

The three-hour classes were structured to include a more formal lectureon the research topic of the day, followed by questions and discussionbetween the students and instructor, and then in-class exercises to practicethe skills and concepts that had been learned. Students were given timeto work on their individual research projects, which were assigned at thebeginning of the course and designed to complement the substantive issuespresented by any litigation in which the inmate was then involved. Duringthis time, the instructor was available to give assistance and guidance on aone-on-one basis. According to Mr. Lampson, one of the biggest challengesin teaching this course was dealing with the wide range of abilities in theclass. This one-on-one instruction time was a solution that permitted himto give each student the individualized help needed. Those students whoseliteracy issues made the course more challenging could receive additionalattention at a pace that suited their abilities.

As part of the course, Mr. Lampson instructed his students on how tobrief cases through the method that first-year law students are taught (iden-tifying the court’s holding, rationale, and relevant facts). The final project forthe course consisted of a legal memorandum related to an issue or issuespresented by each inmate’s case. Along with the memo, students were re-quired to submit three to five relevant cases that had been briefed accordingto the method taught by the instructor.

In addition to general legal research instruction, Mr. Lampson taughtstudents to research in specific substantive areas likely to be relevant totheir cases (such as the Fourth, Fifth, and Sixth Amendments to the U.S.Constitution). He also spent time explaining the general significance ofthese laws and constitutional provisions. Therefore, although this was aprocess-oriented class, it did not operate in a vacuum. Instead, it was gearedtoward those legal issues and concepts most likely to be relevant to theinmates.79

Dow

nloa

ded

by [

Duk

e U

nive

rsity

Lib

rari

es]

at 1

0:05

05

Oct

ober

201

4


OUTSIDE LAW LIBRARIAN RESEARCH ASSISTANCE: “GUERILLA REFERENCE” THROUGH

THE MINNESOTA STATE LAW LIBRARY SERVICE TO PRISONERS PROGRAM

For many years, the American Association of Law Libraries has main-tained a list of law libraries in each state that offer photocopy or otherresearch-related services to prisoners.80 Law librarians outside the correc-tional setting have been moved to offer such services out of a shared senseof responsibility for meeting the legal research needs of inmates needingmaterials they cannot otherwise get. Among law libraries providing suchservices to prisoners, however, the Law Library Services to Prisoners (LLSP)Program, based at the Minnesota State Law Library, is unique.81

The LLSP program provides more than just photocopies of legal ma-terials to prisoners. Instead, the program has two full-time librarians andone part-time librarian who visit each of the eight prisons in the state ona monthly basis. At the prisons, the librarians meet with prisoners, discusstheir research requests, provide advice on research through the facilities’ li-braries, and deliver requested materials from the state libraries. In addition,when questions cannot be answered using the prison’s law library, the li-brarians continue the research at the Minnesota State Law Library (wherea team of volunteers and interns from the College of St. Catherine’s Li-brary School assist).82 The librarians in this program not only fill requestsfor materials, but they provide one-on-one research consultation and infor-mal instruction in legal research to the state’s prisoners. The librarians alsoreview the prison law libraries’ core collections annually to make sure thelibraries contain the recommended materials.83 The program’s philosophyis “to emphasize legal information services rather than to establish largeprison law libraries . . . Inmates are encouraged to make use of the corecollections, but questions that are more complex are researched by LLSPstaff at the state law library.”84 The LLSP program was started as a pilot pro-gram in 1984, with one state law librarian who regularly visited five correc-tional facilities.85 It is funded by an interagency agreement between the Min-nesota State Law Library and the Minnesota State Department of Corrections,which has been supportive of the program— likely for the reasons discussedbelow.

Susan Trombley, a law librarian who has been part of the program fornine years, describes a typical prison visit, which starts with the librarianentering the prison and leaving any mail (fulfilled requests) in the mailroom.The librarian then meets individually with prisoners who have requestedconsultations through the “kite” system.86 The meeting is in the library ifpossible and wherever the inmate is confined, if not. The librarians evenvisit segregated housing units and medical wards. A librarian may see tento thirty-five inmates in a three-hour period and must quickly determinewhat the inmate is requesting. This often requires separating the legal issuesfrom many extraneous details. (The librarians in this program spawned theterm “guerilla reference” to refer to the intense pace of the assistance they

Dow

nloa

ded

by [

Duk

e U

nive

rsity

Lib

rari

es]

at 1

0:05

05

Oct

ober

201

4


provide). Because the majority of research requests come by kite, librarianssometimes know ahead of time what kind of substantive request the inmatewill have. Inmates, however, are often reluctant to provide specific details ontheir requests for fear of having them read by prison officials. The requestsrange from issues related to conviction, to conditions of confinement, toother civil matters such as divorce.

The legal research instruction done by the librarians in the LLSP pro-gram is informal, occurring while librarians are meeting with prisoners inthe library. Once their time with inmates is up, the librarians then answerany questions the library staff (including the inmate clerk) may have. Al-though the law librarians cannot and do not give legal advice, they mayoffer suggestions regarding resources to help guide inmates.87

LAW STUDENT INSTRUCTION IN PRISON LAW LIBRARIES: THE STUDENT-RUN PRISONER

COUNSELING PROJECT AT THE UNIVERSITY OF WASHINGTON SCHOOL OF LAW

In what appears to be the only program to date to have involved lawstudents in legal research assistance and instruction in prison law libraries, astudent-run program for this purpose existed at the University of Washington(UW) School of Law from the early-to-late 1980s.88 This program was offi-cially sanctioned as a student organization but was entirely student-initiatedand run and without faculty supervision. The program was sponsored bythe Black Prisoners’ Caucus at the maximum-security prison in Monroe, WA,where the consultation and instruction took place. According to Thao Tiedt,a law student who graduated from UW in 1983, the program existed at thetime she matriculated at the UW in 1981 as a second-year law student, but ithad been moribund for some time. Ms Tiedt was instrumental in reactivatingthe program.

At its outset, the program involved law students meeting individuallywith prisoners to provide guidance on research and then evolved to encom-pass the prison law library, which had been neglected and was not well main-tained. Recognizing these deficiencies, the students approached the prisonadministration to advise them that they were not providing prisoners withthe tools required by Bounds and offered to help the facility retool the libraryto meet its constitutional requirements. On receiving recommendations fromthe program, the prison improved its law library holdings, including pur-chasing a complete Revised Code of Washington and Washington Supremeand Appellate Court Reports. After improving the law library’s holdings, theprogram embarked upon a course of instruction for the prison populationas a whole, including offering both a weekly course in legal research and ayear-long course in brief writing.

The legal research class met weekly and was open to both inmateswho attended regularly and those who did not. Lectures and exerciseswere accordingly kept simple enough to accommodate inmates who did

Dow

nloa

ded

by [

Duk

e U

nive

rsity

Lib

rari

es]

at 1

0:05

05

Oct

ober

201

4


not attend each week. Class attendance ranged from eight to twelve in-mates when classes were held in the law library, which occupied a smallspace, and up to approximately eighteen students when classes could beheld in a larger classroom. Inmates were shown how to use the West keynumber system and digests and how to Shepardize primary law. The in-structor assigned search-and-find exercises to be completed using the li-brary materials, so that the students could then practice the skills they hadlearned.89

The brief-writing course focused on educating inmates on how to writean effective appellate brief, with the goal of helping them to better under-stand how to organize their issues and complaints into a presentation thatthe court could understand.90 The class was structured to require regularattendance throughout the year and was held one to two times per monthfor the duration of the school year. It was open to the prison population asa whole and was well attended throughout the year by approximately fortyinmates. Classes, which were two and a half hours long with a short break,consisted of informal lectures that allowed back-and-forth discussion withthe students, a format that helped to accommodate the differing levels ofability among students. Instruction was kept as simple as possible, and basicconcepts were stripped of legalese.91

Both Dr. Smith and Ms. Tiedt observed that instruction in very basiclegal concepts could go a long way in improving inmates’ understanding ofthe legal system, legal research, and their ability to prepare papers for thecourt. For instance, the brief-writing class helped inmates understand whatsections need to be included and taught them some basic procedure. Theinmates, for example, often lacked such basic knowledge as the need tocite case law to support legal arguments and the general rule that facts notpresented at trial may not be introduced in an appellate brief or petitionfor postconviction relief. Similarly, with respect to the legal research class,Dr. Smith observed:

[I]t was evident that the prisoners needed basic information about howto undertake legal research. Those prisoners experienced at using thelaw library regularly conducted legal research by thumbing through vol-umes of Federal Supplement and Federal Reporter 2d looking for casesinvolving prisons. Law student instructors made a significant contributionto the prisoners’ education simply by explaining the use of digests andcreating exercises that required inmates to look for various cases andlegal concepts within the digests. These examples illustrate how simplethe prison library teaching programs can be. The prisoners’ need forinformation about legal research can be so basic that law students canmake a contribution just by explaining how to use reporters, digests, andother legal materials.92

Dow

nloa

ded

by [

Duk

e U

nive

rsity

Lib

rari

es]

at 1

0:05

05

Oct

ober

201

4


The students in the UW program also provided some elementary substantiveinstruction. For instance, one student taught an informal class in criminalprocedure that consisted mainly of discussions with the inmates about basiccriminal procedure concepts.93 Similarly, in the brief-writing class, Ms. Tiedtrecalled that the first thing she taught inmates was how to determine whatlegitimate issues they might have and what issues a court might recognize. Aspart of the effort to help inmates better understand what claims were viable,inmates were given basic information about the elements of specific claimsoften in issue and difficult to prove (e.g., ineffective assistance of counsel).94

The program appeared to be very successful and well received by bothprisoners and the state during the time it operated. After her involvementended, Ms. Tiedt received an award from the state of Washington in recog-nition of her contribution to criminal justice.95

FORMAL RESEARCH INSTRUCTION BY PRISON LAW LIBRARIANS: LEGAL RESEARCH

COURSE AT THE MASSACHUSETTS CORRECTIONAL INSTITUTION AT NORFOLK

A fourth model of research instruction is a formal legal research class taughtby a prison law librarian.96 William Mongelli, the prison law librarian at theMassachusetts Correctional Institution at Norfolk, began teaching such a classafter the Massachusetts Department of Corrections established law librariesin all prisons with populations totaling more than 250, in 1974. He wroteabout his experience in his 1994 article, De-Mystifying Legal Research.97 Thesixteen-week class continues today in substantially the same format.98

The course is held once per week (twice weekly, if time permits),for two hours at a time. Two hours permits sufficient time for legitimatequestions following lecture, and holding the class at least once per weekhelps preserve continuity.99 (Mr. Mongelli notes that for the latter reason, themore often the class can be held, the better.100) When the course is heldonly weekly, the first ten minutes of class are set aside for reviewing thesubstance of the previous course, a practice implemented because inmates“in general seem to possess a short memory and attention span.”101 The classgenerally begins with an enrollment of twenty-five to thirty-five, and quicklyreduces to a core of eight to twelve inmates who complete the course.102

Class is somewhat informal, allowing for discussion with inmates, butthe syllabus is highly structured, teaching ten core research competencies:

1. Course rules/library terminology;2. Primary sources/secondary material/finding tools;3. Institution grievance procedure;4. State/federal court structure;5. Framing the legal question (three weeks);6. Case briefing (three weeks);

Dow

nloa

ded

by [

Duk

e U

nive

rsity

Lib

rari

es]

at 1

0:05

05

Oct

ober

201

4


7. Digests, state and federal;8. Shepard’s (three weeks);9. Specialty publications; and

10. “Bringing it all up-to-date.”103

In the last two years, Lexis training (including instruction on how toconstruct search queries) has also been added to the syllabus.104 Mr. Mongelliregularly uses handouts because he found that inmates generally “like to beshown, not told.”105 He also uses in-class exercises and quizzes to allowstudents to practice the skills they are learning and evaluate their grasp ofthe concepts. They additionally receive “cell work” (assignments they arerequired to complete between classes on their own time).106 The in-classexercises, quizzes, and cell work are “arguably the most important part[s]”of the course.107

The students take a final cumulative exam at the end of the course thatis composed of questions from previously administered in-class quizzes.108

Some librarians in the Massachusetts prison system who have taught thecourse designed by Mr. Mongelli have opted to give inmates a lengthier andin-depth “take-home” exam at the end of the class to assess the researchskills learned, requiring the inmates to complete the exam during a periodof days.109 Although the take-home format gives inmates better hands-onexperience, the testing procedure offers better control of the evaluation pro-cess by the instructor.110 Instructor evaluations are distributed after the finalexam. According to Mr. Mongelli, “Inmate feedback regarding class length,perceived effectiveness of quizzes, cell work, and in-class exercises, as wellas suggestions regarding additional topics for discussion, are vital to keepingthe course information appropriate, current, and interesting.”111 Given thedemands of the course, it is designed for those inmates “with a certain levelof literacy . . . In other words, this course is not for the learning disabled.”112

LESSONS LEARNED FROM THE PROGRAMS

Each program provides research service to prisoners, but each is differentin its administrative aspects, focus, and the details of its organization andimplementation. There are, however, a number of commonalities.

In all, the inmates were very receptive to receiving legal research in-struction. All of the participants reported enthusiasm from the inmates forthe services offered and a sense of reward and accomplishment in workingwith inmates and helping them to better understand the legal system and theprocess of legal research. Marc Lampson noted that inmates were very ap-preciative of the opportunity to learn the skills he taught in his research classand often told him that they felt they were learning. Like the prison law li-brarian at the Massachusetts Correctional Institution at Norfolk, Mr. Lampson

Dow

nloa

ded

by [

Duk

e U

nive

rsity

Lib

rari

es]

at 1

0:05

05

Oct

ober

201

4


described the role his instruction played as a way of “demystifying” thelegal system for inmates.113 Thao Tiedt similarly observed that providing in-mates with knowledge about the legal system and the way courts processcases helped to give them a sense of control over what was happening tothem that was otherwise lacking.114 This effect has been observed in othersettings. For instance, the New York State Department of Correctional Ser-vices’ Law Library Program for Inmates, which incorporated legal researchtraining programs by West, noted, “Frustration and anger is significantly re-duced as the inmates obtain a clearer picture of their legal situation and whythey can or cannot obtain relief.”115

Similarly, librarians in the LLSP program often receive letters from in-mates expressing gratitude for their research assistance. In an article, oneformer LLSP librarian discussed a letter from an inmate to whom she hadsent information regarding the different degrees of theft under Minnesotalaw. The inmate stated, “My charge was dropped to attempted theft thanksto your efforts. You are truly a holy of holies. . . . ”116 Similar testimonials areincluded in the LLSP annual reports.117 Susan Trombley of the MinnesotaLLSP program recalls the reward of being visited at the State Law Libraryby a former inmate who had received a substantial amount of research as-sistance from the program. The individual had completed his sentence andsubsequently found a job working for an attorney; on the day he stoppedby, he was at the courthouse filing legal papers for his new employer.118 Ms.Trombley noted that for inmates who are locked down twenty-three hoursper day, the librarian is often the only outside person they see, and theyappreciate moments of being treated with respect and having their ques-tions and requests taken seriously.119 Michael Tillman-Davis, who servedas the legal coordinator for the libraries on Rikers Island for almost twoyears, noted that some inmates had legitimate grounds to challenge theirdetentions, and while he could not give them legal advice, he could helppoint inmates toward the best places to focus their research. Mr. Tillman-Davis recalls meeting some of these individuals on the street after they hadbeen successful in securing their release and being thanked for his researchassistance.120

Secondly, these programs provide evidence of improving the qualityand likelihood of success of inmates’ filings. This certainly suggests thatthanks to the basic research instruction they received, the inmates werebetter able to communicate their issues to the courts. The prison law librar-ian at the Massachusetts Correctional Institution at Norfolk reports hearingfrom inmates that his research course “helped them communicate with thecourts and helped them get what they need.”121 Legal research instructionalso had the observed result of improving inmates’ communication withtheir attorneys. Marc Lampson recalled an inmate who repeated his courseand through it learned how to communicate her legal issues effectively. Ulti-mately, this inmate was able to convince an attorney to represent her, and she

Dow

nloa

ded

by [

Duk

e U

nive

rsity

Lib

rari

es]

at 1

0:05

05

Oct

ober

201

4


subsequently secured her release from prison.122 Mr. Lampson also recalledthat a number of inmates during the time he taught were individuals con-victed in a large crime-ring case in Eastern Washington. Many of these in-mates were ultimately exonerated (a large number with the help of the UW’sInnocence Project Northwest). Mr. Lampson believes that the legal researchinstruction they received helped them to communicate more effectively withtheir attorneys while efforts to secure their release were underway.123 One ofthe former students involved in the UW program similarly recalled that prisonadministrators had observed that inmates’ relationships with their attorneysimproved after the program began.124

The Manager of Litigation and Offender Property Claims for the Min-nesota Department of Corrections has also observed that the research assis-tance by LLSP has improved the quality of inmate filings. She has stated, “Isee every inmate suit filed against the Department of Corrections . . . and I amso happy to be able to tell inmates to visit their law libraries to help constructmore coherent pleadings.”125 This correctional employee also stated that “in-mates who can research their claims are better able to determine whetheror not to proceed, and if they do proceed, can write a more reasoned com-plaint, making handling the complaint that much easier.”126 Minnesota StateSupreme Court Justice Rosalie Wahl also reportedly told LLSP librarians thatshe had observed an improvement in the quality of inmate filings after theLLSP program began.127 Similarly, the law librarian at the Massachusetts Cor-rectional Institution at Norfolk asserts that instruction on how to “write andsubmit an administrative grievance accurately and completely . . . reduce[s]the number of improperly filed grievances . . . [and] directly aids the belea-guered grievance coordinator, who must sift through hundreds of writtengrievances annually.”128 The New York State Department of CorrectionalServices’ Law Library Program for Inmates, which is previously briefly notedand which has incorporated legal research training programs by West, isreported to have had similar effects: “Prisoners have been pleased with thehelp, claims have been reduced and the quality of the petitions and writsfiled from the prisoners have improved.”129

That this improvement has been observed is not surprising: If inmatesbetter understand the legal system, how to research a claim and construct abrief, and how to identify relevant cases to include in their submissions, theyare better equipped to put together a coherent and well-supported filing.As one of the former student instructors in the UW program observed, alegal research instruction program can help prisoners “be more effective inpresenting legitimate legal issues. This will allow the federal courts to paymore attention to the clearly stated, valid legal claims from prisoners.”130

Librarians in prisons that do not provide research instruction agreed that alegal research class would be very helpful for inmates.131 One librarian statedthat such an effort would be of “tremendous value.”132

Dow

nloa

ded

by [

Duk

e U

nive

rsity

Lib

rari

es]

at 1

0:05

05

Oct

ober

201

4


Finally, the anecdotal evidence supports the conclusion that these pro-grams can help reduce the number of frivolous complaints or petitions filedin federal court. The administrators of the Minnesota LLSP firmly believe thatthe program benefits the court system in addition to inmates by reducing thenumber of nonmeritorious claims that are filed.133 In 2004, Daniel Lunde, theHead of Outreach Services for the State Law Library, stated, “We believe thatby educating inmates about the resources available to them and providingaccess to the legal information they request, the work of the LLSP diminishesthe number of lawsuits filed by Minnesota prisoners—and there is some sta-tistical evidence that Minnesota prisoners file fewer lawsuits than inmatesin other states.”134 This assertion is supported by the experience of one ofthe law librarians who is part of the program. She stated that she has seenthe provision of legal information regarding various claims help inmates un-derstand when they do not have a valid legal claim and accordingly decidenot to proceed with a lawsuit. For instance, this librarian recalled assisting aprisoner whose facility’s food service had taken milk off its menu; she wasable to provide him with the prison regulations that establish a minimumcalorie count but do not entitle the inmates to specific items of food. Afterseeing these regulations, the inmate changed his mind about wanting to filea lawsuit against the prison’s administrators.135 Similarly, this librarian hasbeen able to help prisoners understand that privileges established by statelaw have either been repealed or are from a jurisdiction outside of Min-nesota, thereby eliminating the inmates’ desire to file suit based on theseprovisions.136 She noted that she had seen a number of instances in whichinmates have backed down from a desire to file litigation after receiving legalinformation relevant to their grievances.137

The instructors involved in the UW program saw similar results: Prisonofficials in the Monroe prison told students that the number of petitions fileddecreased after the program began.138 One of the legal research instructors inthe program stated that the single most common question he received fromprisoners was how to identify a legally cognizable claim. The legal researchclasses were accordingly an opportunity to help the prisoners understand thatnot everything they feel is unjust constitutes a legal claim.139 The instructorrecalled prisoners changing their mind about filing suit after being exposedto such basic legal principles as prosecutorial immunity.140 “[I]mproved legalresearch and education can help prisoners determine whether they have validlegal claims before they try to file suits that will be dismissed instantly.”141

The observation that legal research instruction in prisons helps to re-duce the filing of nonmeritorious claims is supported by similar results inother contexts. For instance, a Harvard study of prisoner litigation concluded,“Prison legal assistance programs can ‘discourage the filing of frivolous claimsand promote the administrative resolution of prisoner grievances, thereby re-ducing the volume of prisoner litigation.’”142 In Bounds, the Supreme Courtitself noted the advantages of providing assistance beyond the provision

Dow

nloa

ded

by [

Duk

e U

nive

rsity

Lib

rari

es]

at 1

0:05

05

Oct

ober

201

4


of a law library, observing that “[i]ndependent legal advisors can mediateor resolve administratively many prisoner complaints that would otherwiseburden the courts, and can convince inmates that other grievances againstthe prison system are ill-founded, thereby facilitating rehabilitation by as-suring the inmate that he has been treated fairly.”143 The same results havebeen observed where prisoner litigants receive assistance from jailhouselawyers.144 One commentator notes that this benefit “is no different fromthe one motivating many states to invest heavily in measures that will as-sist unincarcerated pro se litigants [providing assistance through forms, Websites, do-it-yourself books and support personnel]. . . . Part of this movementobviously stems from a desire to make litigation more efficient.”145

COMMON ISSUES AND CHALLENGES

In addition to facilitating certain results, the programs described in this articlealso raise a number of issues to be aware of in developing a legal research in-struction program for prisoners. First, the demands of a legal research course,which will necessarily require the reading of legal texts, will to some extentself-select for inmates who are literate or educated.146 However, participantsin the programs previously described and other prison law librarians empha-sized that the intellectual ability and education level of inmates nonethelessvaries widely even among literate inmates.147 One of the librarians involvedin the Minnesota LLSP program noted that while some inmates are very ef-fective at using the prison law library for legal research, some are not, andthat the prison population represents a wide range of abilities.148 Similarly,one of the instructors in the UW program noted that although there weresome very bright students in her class, many inmates functioned at no morethan a sixth-grade level. Other prison librarians interviewed for this articleechoed this observation.149 Marc Lampson, the attorney who taught at thewomen’s correctional facility in Purdy, WA, described students’ differing lev-els of ability and motivation as one of the biggest challenges of teaching inthe correctional setting. Accordingly, any program will need to consider howto effectively instruct a group that may be operating at very different levelsof competency.

Secondly, experiences with some of the programs indicate that theirability to help reduce the number of nonmeritorious suits that are filed canbe greatly aided not merely by instruction in the structure of the legal system,legal sources, and research techniques, but also by some level of substantiveinstruction regarding particular legal claims and issues that arise often in theprison setting. As previously discussed, once inmates understood the lawbetter, they were not so eager to file ineffective assistance of counsel orprosecutorial misconduct claims. Marc Lampson also noted that he foundit useful for prisoners to receive some basic instruction on the parameters

Dow

nloa

ded

by [

Duk

e U

nive

rsity

Lib

rari

es]

at 1

0:05

05

Oct

ober

201

4


of certain constitutional rights or laws potentially implicated by commonprisoner complaints.150 A former coordinator for the law libraries at RikersIsland in New York City similarly noted that because most of the individualsusing the libraries there were being detained prior to trial, certain issues,such as the legality of stop-and-frisk procedures, came up repeatedly. Thislibrarian said he found it helpful to train his inmate clerks to recognize whenthose issues might be implicated so that they could better assist the researchprocess.151 This observation was echoed by some of the prison librariansinterviewed for this article. One Washington State prison law librarian notedthat inmates’ research efficiency would be greatly aided by some basic legalinstruction, which she is not equipped to provide, about what laws may beimplicated by various complaints or factual scenarios.152

Third, both nonlibrarian participants in the programs previously de-scribed and other prison law librarians interviewed for this article stresseda challenge familiar to law librarians whose patron base includes pro selitigants: the need for vigilance against crossing the line from research in-struction and assistance into legal advice.153 Law students involved in anyresearch instruction program should be made aware that inmates might testthis line. Students should also recognize that they will be functioning as in-structors, not as lawyers whose communications with inmates are protectedby the attorney-client privilege.154

Finally, nearly all individuals—both librarians and lawyers—interviewedfor this article stressed that working in a prison environment and with inmatesinvolves special challenges. The prison environment itself can be depressingand sometimes tense.155 Prison librarians described coping with the feel-ing that they were also “locked up” during the hours that they staffed theprison library.156 None of the individuals involved in the programs describedin this article (or any of the prison law librarians with whom I spoke) re-ported any negative experiences directly related to the prison setting inwhich they worked. However, it was noted that there were a number ofstudents involved in the UW’s Prisoner Counseling Project who ended theirinvolvement because they found the environment too challenging.157

Like the environment itself, dealing with prisoners—even in the roleof educator who is there to help—also has its challenges. Prisoners mayhave mental problems or illnesses.158 One of the former students involvedin the UW program noted that inmates can be emotionally, mentally, andsocially immature and that they are often impatient regarding results—a factthat sometimes requires an ability to temper inmates’ expectations aboutoutcomes.159 A second former student discussed at length the challengesof teaching prisoners in a classroom setting, noting that prisoners step intothe classroom with baggage from relationships that exist outside the class-room, in the broader institutional setting. Student instructors accordinglyneed to be able to steer conversations away from topics that may lead toconflict.160 Teaching inmates also requires a certain amount of patience: the

Dow

nloa

ded

by [

Duk

e U

nive

rsity

Lib

rari

es]

at 1

0:05

05

Oct

ober

201

4


Massachusetts Correctional Institution law librarian states that the most chal-lenging aspect of working with inmates is “holding my tongue” and “keepingmy temper.”161 Although all of the librarians interviewed expressed enthusi-asm for their jobs, the challenges involved in working in a prison setting anddealing with inmates are factors that both program advisors and law studentsmust be prepared to encounter.

Proposal

This section provides general guidelines for a law student–taught legal re-search instruction program in prison libraries. Particular proposals couldbe tailored based on specific prison settings; however, the goal should betwofold: (1) teaching inmates how to use prison law library resources moreeffectively, thus improving the library’s ability to provide meaningful accessto the courts, and (2) enhancing inmates’ ability to distinguish valid from in-valid legal claims, thereby improving the quality of filings and lessening theburden of processing prisoner petitions. Such a program is uniquely suitedto law student involvement because, as already discussed, the basic legalresearch knowledge possessed by law students can vastly improve inmates’abilities to effectively use law library resources.162 In addition, the programcould be implemented at much lower cost than a program involving le-gal assistance by trained attorneys and would provide practical experienceand cultivate improved research skills for law students. Law librarians, whooversee the law library’s resources and are responsible for legal research in-struction at most law schools, are perfectly situated to facilitate and overseesuch a program if time and staffing permit.

PROGRAM ORGANIZATION

Approval from the law school administration and cooperation of the relevantdepartment of corrections are initial requirements. The law school adminis-tration’s receptivity to a program of this type may of course vary dependingupon the school, its mission, and its current clinical offerings. However, fol-lowing the 2007 release of the “Carnegie Report,” law schools are generallymore receptive to new clinics.163 When presenting a formal proposal to theadministration for approval, the potential practical benefits for law students(discussed in more detail below) should be heavily stressed.

Finding a receptive ear in the state’s department of corrections will alsobe key. States administer their prisons (and prison libraries) differently,164

so identifying the appropriate officials to approach may require some fa-miliarization with the individual state’s prison administration. One approachwould be to reach out to one of the state’s prison law librarians for sugges-tions about individuals within the department of corrections who might be

Dow

nloa

ded

by [

Duk

e U

nive

rsity

Lib

rari

es]

at 1

0:05

05

Oct

ober

201

4


approached with the proposal.165 Contact information for all state prison li-braries can be found on the Maryland Correctional Education Libraries’ Website.166 In general, and in the absence of a specific contact name, an individ-ual involved in educational programming for the state prisons would be asensible place to start.167

Conversations with those involved in past and present programs indi-cate the importance of emphasizing benefits to the department of correctionswhen approaching the department.168 For example, any proposal shouldemphasize the anecdotal evidence suggesting that this type of program re-duces the number of grievance suits filed against prison officials and helpschannel complaints into the prison’s administrative process. It should alsoemphasize that the program may help prisoners draft more coherent peti-tions that can be processed or responded to more easily. One of the formerstudent instructors involved with the UW program advises that she was suc-cessful in obtaining cooperation from the Department of Corrections for anoverhaul of the library and institution of the teaching program because shecouched her proposal in terms of what it could do to make prison officials’lives easier and ease the workload of Department of Corrections employees.For instance, she noted that the Washington State Department of Correctionshad some concerns at the time about whether their prison libraries wereconstitutionally sufficient to provide the requisite court access. Accordingly,her offer to evaluate the library’s holdings and suggest improvements wasviewed as beneficial by the prison administration.169 Similarly, the proposalto supply legal research and writing instruction was explained as a means ofhelping to train inmate clerks who worked in the library so that this removedthe burden of doing so from the facility’s employees. Above all, this formerstudent stressed, approach the prison administration as a facilitator, not acrusader, and ask what can be done to make their lives easier.170

William Mongelli, prison law librarian in Massachusetts, also noted thatlaw libraries are often viewed with suspicion by facility staff (as they areoften seen as the source of legal complaints against the administration andindividual staff members). He stressed the need to foster good public re-lations between the library and correctional staff both before and after theinstruction program is implemented. This includes sharing information aboutwhy prisoners are being educated and why such education is important andbeneficial for all concerned.171 One Washington State prison law librarianoffered advice along similar lines:

Whatever you propose, expect the [Department of Corrections] to replywith lots of questions and scrutiny. Have all your details worked outahead of time and use a direct and professional communication style totell them exactly what you intend to do. In addition, expect them to raiseissues, because that is part of their job. Often the first answer is “no,” orsounds very much like a no, but if you listen closely it is often coupled

Dow

nloa

ded

by [

Duk

e U

nive

rsity

Lib

rari

es]

at 1

0:05

05

Oct

ober

201

4


with specific reasons why they are concerned. If you can address theirconcerns adequately, the “no” often turns into a “yes.” Moreover, keepin mind that structured activities are beneficial because these activitieskeep offenders busy (instead of using their time to be destructive). Youmight also keep in the back of your mind that it is very unpleasant tobe sued by an offender, and you may be talking with people who havebeen targeted and sued in the past. Make sure you don’t come acrossas someone who is simply going to come in . . . and help offenders sue[Department of Corrections] staff.172

Professor Jackie McMurtrie, director of the Innocence Project Northwest,which resides at UW Law School, notes that one of the more challenging as-pects of creating a clinical program is to determine what type of initial trainingis necessary for the students, so that they feel comfortable handling the workof the clinic. Professor McMurtrie notes that most clinics provide intensivesubstantive training at their outset and then move on to involve the studentsmore heavily in the cases being handled by the clinics, with regular infor-mal meetings to keep tabs on progress and discuss issues with students.173

Considering this, one means of organizing a formal prison research instruc-tion program is to offer it as the second quarter or semester of a basic legalresearch class that included a teaching presentation as a final project. Thiswould ensure that before the students move into the prison classroom setting,they have received basic, comprehensive legal research training and haveexperienced the process of putting together and teaching a research topic.Organizing the program in this manner could also allow overlap betweenthe classroom portion of the program and the actual teaching component.This would give students in the initial classroom portion the opportunity toshadow those who had moved on to the teaching component before theyalso graduated to a teaching role in the following academic period.

An additional practical consideration is whether the location of thestate’s correctional facilities will permit regular instruction. Because it is im-portant that the research course be held regularly and at least once per week,student travel time between the correctional facility and school should notbe too far. Because instruction works best in the prison law library, wherethe resources are, the organizer should schedule class time when the librarycan be closed to general inmate access. The organizers also need to makesure they leave sufficient time for the facility to complete its backgroundchecks and preclearance on the students. It is also essential to visit theprison library before making the course syllabus: The course can only besuccessful if prisoners are taught how to use resources to which they haveaccess. Viewing the facilities will also provide a better idea of how manystudents can be comfortably accommodated by the class. Finally, as alreadydiscussed, prison will present a challenging environment for most students,and instructing inmates may come with a special set of concerns. Students

Dow

nloa

ded

by [

Duk

e U

nive

rsity

Lib

rari

es]

at 1

0:05

05

Oct

ober

201

4


should be well prepared for what they may encounter before they committo the teaching program. Once the course of instruction is underway, regularmeetings with students should be planned to allow students to discuss withone another and with the faculty overseer the issues and challenges that willinevitably come up.174 If possible, the program should seek to secure somespace in the school that is dedicated to the program and where students canwork on material for their upcoming classes. Having a physical space thatthe program can call home will help to create a valuable sense of communityfor the students.175

COURSE STRUCTURE AND CONTENT

One of the first decisions that must be made is whether inmates will be per-mitted to drop by on an irregular basis or whether regular attendance willbe required. This decision will determine how the course is organized andwhether classes will build on each other. Although the UW program per-mitted inmates to drop by on an irregular basis, the two other longstandingprograms discussed in this article require regular attendance.176 The courseis more likely to be effective at teaching inmates to do skillful legal researchif regular attendance is required and students build on skills learned in ear-lier lessons. The educational benefits probably outweigh any diminishedattendance. Accordingly, the organizer of this type of program should thinkseriously about designing the course as a sequence of classes that must betaken in order.

Because experience has shown that a number of inmates will dropout, initial enrollment should be as large as feasible.177 However, in theinitial stages of the program, smaller classes will be easier to administer. Theexperience also suggests that an ideal class length is two hours: to permittime for formal instruction as well as questions from the inmates. It is alsocritical that inmates know at the outset that no legal advice will be providedand that the student instructors cannot review individual briefs or give adviceabout the legal arguments they contain.

William Mongelli’s 1994 article, De-Mystifying Legal Research for Pris-oners, provides a detailed syllabus that has been demonstrably successfulin the prison setting and continues to be followed today.178 The syllabus,discussed in more detail in the section titled Formal Research Instructionby Prison Law Librarians, could serve as a useful basis for developing thecourse content and schedule, with alterations made as necessary to alignthe class with the resources available in the particular facility’s law library.Because many inmates lack even a basic understanding of the legal systemand research process, lessons can be kept simple. Where electronic researchtools are provided, a class introducing the inmates to the content availablethrough the tools and basic searching techniques should be included. Based

Dow

nloa

ded

by [

Duk

e U

nive

rsity

Lib

rari

es]

at 1

0:05

05

Oct

ober

201

4


on comments from certain individuals interviewed for this article, it may alsobe a very useful idea to incorporate a class, or part of a class, on basicbrief-writing format and skills.179 Given Mr. Mongelli’s long experience inlegal instruction in the institutional setting, it would also be wise to notehis assertion that the in-class exercises, regular quizzes, and cell work areamong the most important aspects of a research course. In attempting tostructure the course to deal with potentially divergent ability and educationlevels, Marc Lampson’s advice to set aside class time for individual work andone-on-one questions and instruction should also be considered.

In developing the syllabus, the organizer should also give seriousthought to including at least one lesson on the prison grievance procedure.As previously noted,180 the PLRA now requires inmates to exhaust alladministrative remedies before filing suit in federal court. In addition, fa-miliarizing inmates with this procedure and how to effectively research andpresent a complaint may be one of the key means by which the need to filefederal litigation can be avoided.181

Perhaps the most crucial decision to be made with respect to coursecontent, however, will be whether and to what extent to incorporate anysubstantive instruction on laws or legal principles that are likely to be highlyrelevant to prisoner grievances (for example, the Fourth, Fifth, and SixthAmendments, or the concept of immunity). As discussed above, it appearsthat a small amount of substantive instruction can go a long way in improvingprisoners’ ability to objectively evaluate the strength or viability of theirnascent claims and thus discourage the filing of nonmeritorious suits.182 Suchtopics could be addressed in a general way that avoids the specifics of anyindividual inmate’s claims. However, once substantive instruction becomesa part of the course, the line between legal research instruction and advicemay become hazy. Further, if law students will be advising inmates on thesubstantive components of laws or legal principles that may affect them, theprogram organizer may need to involve other law school faculty who areexpert in the particular areas being discussed to ensure that only accurateinformation is being disseminated. Alternatively, assistance could be soughtfrom local attorneys willing to provide their expertise on a pro bono basisand perhaps gain some teaching experience in the bargain.

Because inclusion of a substantive component may significantly com-plicate the program, any decision on this issue should be made carefully.One potential compromise might be to include lessons or exercises regard-ing how to research particular substantive claims (similar to a detailed re-search guide), without getting into hard and fast discussions of the contentof the law or topic. Particular substantive areas to be emphasized could bedetermined by allowing the inmates to vote based on their particular inter-ests and needs. As the program progresses, the organizer could considerinvolving students in drafting legal research guides on particular topics thatcould remain in the library for consultation by inmates in between classes.183

Dow

nloa

ded

by [

Duk

e U

nive

rsity

Lib

rari

es]

at 1

0:05

05

Oct

ober

201

4


In preparing the students to teach and in overseeing the classes, it willbe useful to consider pedagogical advice from those individuals who havehad experience teaching in the prison setting. This includes recognizing theusefulness of humor, keeping things upbeat, providing plenty of positivereinforcement, and being open to some level of informality during class.184

Students should also be reminded to keep “lawyer jargon” to a minimumand explain concepts in the simplest terms possible,185 and to resist as-sumptions about inmates’ level of knowledge about the legal system, whichcan be rudimentary even though their lives have been directly impacted byit.186 Finally, students should be made aware that they might need to makeadjustments and adapt their teaching style or class format as needed, and asthe class progresses.

BENEFITS AND LIMITATIONS

As previously discussed, legal research instruction in prison law librarieshas been observed to impart a number of benefits, including improvingthe quality of prisoners’ filings, facilitating better communication betweeninmates and their attorneys, and helping inmates to more objectively evaluatetheir claims, thus reducing nonmeritorious filings. An improved ability forprisoners to research and support their claims with relevant case law shouldalso reduce the cost to the court system of processing the petitions.187

Formal legal research instruction by law students may also have the ad-ditional benefit—at least for those libraries that are not staffed by an individ-ual familiar with legal resources or the legal research process—of providingtraining for both that individual and the inmate clerks who may assist him orher. For instance, in his article about the UW program, Dr. Smith observedthat “[t]he classes conducted by law students had the additional benefit ofproviding instruction for the law librarian, a part-time employee with a bach-elor’s degree in education, who had been attempting unsuccessfully to learnthe basics of legal research through ‘trial and error self-education.’ Thus, theprison law librarian was able to use the information from the classes to betterassist the prisoners in effectively using the library’s resources.”188 The lackof training for prison librarians appears to continue to be an issue today. Alegal research instruction program could accordingly have the added benefitof improving the staffing of prison law libraries, which has been recognizedas imperative in helping the libraries to function effectively for inmates.189

Unlike legal assistance programs that provide representation, legal re-search instruction programs also carry with them the benefit of education,teaching inmates new skills that may enable them to function more effectivelyoutside prison walls, and keeping them occupied while inside.190 Equally im-portant, a research instruction program involving law students brings withit a host of benefits and practical skills training for young lawyers in the

Dow

nloa

ded

by [

Duk

e U

nive

rsity

Lib

rari

es]

at 1

0:05

05

Oct

ober

201

4


making. Both student research instructors from the UW program who wereinterviewed for this article stressed these benefits. Notes one: “Working inprisons can enhance law students’ legal education. Students are placed inclose and regular contact with a segment of society intimately affected by thelegal system. Students in the Washington program gained practical knowl-edge and useful insights concerning litigation from discussions with experi-enced jailhouse lawyers who participated in class.” He adds, “In addition . . .

students can solidify and refine their own understanding of legal research. . . .Students who teach legal research are forced to prepare presentations, de-velop legal research exercises, and seek advice from law librarians, andthus can strengthen their grasp of research techniques.”191 Similarly, anotherstudent recalled that her experience with the program was her most fondmemory from law school. She stated that the experience helped her developpublic speaking skills, taught her to recognize the fine line between coun-seling and legal advice, and helped her learn how to break down compli-cated concepts into elements that could be easily understood by people nottrained in the law. This in turn improved her legal writing skills by improv-ing her ability to analyze concepts at very basic levels and work creativelywith those elements.192 Because prison law libraries often contain very basiccollections of legal materials, working with these collections in instructinginmates would also give students experience in working with a more limiteduniverse of legal resources. This is a real-world challenge that most studentsdo not encounter while in law school, where they have access to the virtuallyunlimited legal universe of their school law library. Students might also beencouraged to make suggestions for improving the law libraries’ holdings,giving them an important opportunity to evaluate and think critically aboutthe value of particular resources and research tools.

Finally, law libraries themselves are often not looked upon kindly bycorrectional officials,193 and following Lewis, prison law libraries hold a moretenuous and uncertain role within correctional facilities and as a means ofproviding inmates with access to the courts.194 A program that encouragesprison officials to view libraries not merely as a source of lawsuits but as ameans to educate prisoners, improve filings, and reduce frivolous complaintsmay also help to increase support for these institutions.

The proposed program will not improve libraries’ usefulness to illiterateor non-English speaking inmates. It is not a panacea for all the problems withrelying on law libraries to be the sole guarantor of prisoners’ constitutionalright of access to the courts. It does, however, have the potential to improveaccess for a significant portion of the prison population. Prisoners fortunateenough to have legal representation generally have meaningful access tothe courts. A legal research instruction program can potentially provide thisbenefit to many more inmates.

Dow

nloa

ded

by [

Duk

e U

nive

rsity

Lib

rari

es]

at 1

0:05

05

Oct

ober

201

4


CONCLUSION

Prisoner litigation often raises fundamental issues of the utmost constitutionalimportance, including the rights to be free from wrongful conviction andlife-threatening treatment at the hands of government authorities. However,most prisoners do not enjoy the assistance of a trained attorney who cancompetently evaluate the merits of their claims and formulate coherent andwell-supported legal briefs. Federal courts today are therefore faced not onlywith a significant volume of prisoner suits but with submissions written bypro se litigants with no knowledge of how to determine the legitimacy oftheir claims, conduct legal research, and construct appropriate legal papers.The resulting litigation poses unique burdens for the courts that must processlarge numbers of poorly constructed petitions and complaints.

Although legislative restrictions on access to the federal courts havesomewhat curtailed the numbers of prisoner suits that are filed each year,they largely failed to relieve the burdens imposed by this litigation. A formalclinic to provide research instruction in prison law libraries, overseen by lawlibrarians, the schools’ legal research experts, could help to both address theshortcomings of poorly staffed libraries and lessen the burden that prisonerlitigation continues to place on the federal courts. Although there are nocurrent law school programs to guide the design of such a clinic, otherefforts involving research instruction and assistance in prison law librariesprovide a workable blueprint and suggest the many benefits—for courts, lawstudents, and prisoners—of such a program. Given both the recent interestin prison reform195 and the increased emphasis on developing law students’legal research skills, the time may be particularly ripe for such collaborationtoday.

NOTES

1. See statistics at http://www.uscourts.gov/statistics/FederalJudicialCaseloadStatistics.aspx; seealso Annual Report of the Director, Judicial Business of the United States Courts, http://www.uscourts.gov/judbususc/judbus.html

2. See U.S. District Courts—Civil Cases Commenced, by Nature of Suit, During the 12-MonthPeriods Ending September 30, 2005 through 2009, at 145, Table C-2A, www.uscourts.gov/statistics/FederalJudicialCaseloadStatistics2009.aspx

3. See Sourcebook of Criminal Justice Statistics Online, Table 5.65.2008, http://www.albany.edu/sourcebook/pdf/t5652008.pdf

4. Supra n. 2, at 144.5. Supra n. 2, at 145.6. In 2009, there were 24,888 civil rights and prison conditions suits filed; habeas corpus petitions

totaled 20,564. Supra n. 2, at 145.7. Ex parte Hull, 312 U.S. 549, 549 (1941). This decision states that “the state and its officers may

not abridge or impair petitioner’s right to apply to a federal court for a writ of habeas corpus.”8. See, e.g., Banning v. Looney, 213 F.2d 771 (10th Cir. 1954). This decision states that federal

courts are “without power to supervise prison administration or to interfere with the ordinary prison rulesand regulations.”

Dow

nloa

ded

by [

Duk

e U

nive

rsity

Lib

rari

es]

at 1

0:05

05

Oct

ober

201

4


9. Cooper v. Pate, 378 U.S. 546 (1964). Section 1983 provides a cause of action for deprivationof any rights secured by the laws or Constitution of the United States, by any official acting under colorof state law. See 42 U.S.C. § 1983 (West 2010).

10. See Robert C. Hauhart, Organizing a Prisoners’ Legal Aid Office, 22 Clearinghouse Rev. 335,336 (1988). After Cooper, “[t]he increase in prisoner litigation was immediate and phenomenal. Between1960 and 1970, prisoner petitions increased roughly ten times—from about 2,000 per year to more than20,000 per year.” In 1981, it was noted that “prisoner filings rose 689% between 1962 and 1980. Jack B.Weinstein, The Poor’s Right to Equal Access to the Courts, 13 Conn. L. Rev. 651, 659 (1981).

11. As one commentator observed, “the Court’s early prison reform cases did less to set forthsubstantive rights than to develop procedural routes for getting such cases before federal district judges. Byopening the door in the school desegregation cases for large-scale institutional reform through litigation,expanding the availability of 42 U.S.C. § 1983, and giving an expansive and flexible reading of the EighthAmendment’s ban on cruel and unusual punishment, the Warren Court ensured that the federal districtcourts would have an important role in responding to complaints that state prison conditions violatedthe Constitution. Similarly, by increasing the availability of federal habeas corpus for state prisoners,the Court enlisted federal district judges in its effort to protect the federal rights in state criminal trials.”Developments in the Law—The Law of Prisons, 115 Harv. L. Rev. 1838, 1848 (2002).

12. Bounds v. Smith, 430 U.S. 817, 825, 828 (1977).13. Id. at 828. This decision holds that prison authorities are required to “assist inmates in the

preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries oradequate assistance from persons trained in the law”). The court expressed confidence that law librariescould be used effectively by prisoners (“this Court’s experience indicates that pro se petitioners arecapable of using law books to file cases raising claims that are serious and legitimate even if ultimatelyunsuccessful”). Id. at 826–27.

14. Brenda Vogel, Bailing out Prison Libraries, 122 Lib. J. 35 (Nov. 15, 1997), at 35.15. Rebecca S. Trammell, Werner’s Manual for Prison Law Libraries, at xv (3d ed., Hein 2004).

An evaluation of law libraries as compared with other forms of legal assistance programs for pro-viding prisoner access to the courts is beyond the scope of this article, which focuses on what canbe done to make prison law libraries more effective for the states that rely on them. However, itshould be noted that prisoner assistance programs that involve attorney or paralegal assistance in lieuof law libraries can be far from perfect. As one commentator notes, workloads make provision ofeffective services to all prisoners very difficult. See Evan R. Seamone, Fahrenheit 451 on Cell BlockD: A Bar Examination to Safeguard America’s Jailhouse Lawyers from the Post-Lewis Blaze Consum-ing Their Law Libraries (2006), reprinted in The Prison Library Primer: A Program for the Twenty-FirstCentury, at 96–97 (Scarecrow 2009). Even with provision of legal assistance from law students or at-torneys, Maryland found that inmates still sought access to library resources outside the prison. SeeBrenda Vogel, A Prisoner’s Locus Sanctum: The Law Library, in The Prison Library Primer: A Programfor the Twenty-First Century, 62 (Scarecrow 2009). “In spite of or perhaps due to the legal services,program, the donated law book collections, and the jailhouse lawyers, librarians throughout the statewere bombarded by prisoners seeking legal advice and photocopies of cited materials. To assist aca-demic, public, and law librarians who felt an obligation to respond to these requests, a Library Servicesand Construction Act grant (1978) was awarded to the School of Law Library at the University of Mary-land to inaugurate a massive interlibrary photocopy service for institutionalized persons throughoutMaryland.”

16. One commentator wrote after Bounds that “[t]he substantial reliance upon prison law librariesis doomed to fail in its assigned task of providing access to the courts because the vast majority of prisoninmates are incapable of effectively utilizing legal resources. The capability to use legal materials in alaw library for the preparation of legal claims requires two important sets of skills. First, prisoners mustbe proficient in reading and writing English. However, many prisoners lack basic literacy skills. . . . Thesecond aspect of the skills problem involves legal research skills and knowledge about the court systemand legal procedure. A prisoner who has college-level reading ability would still not be able to utilizea law library effectively without extensive training and experience in legal research and procedure.”Christopher E. Smith, Examining the Boundaries of Bounds: Prison Law Libraries and Access to theCourts, 30 Howard L.J. 27, 34 (1987). Another opined that law libraries “are worthless to prisoners wholack the reading and writing skills or legal understanding to use them.” William Bennett Turner, WhenPrisoners Sue: A Study of Prisoner Section 1983 Suits in the Federal Courts, 92 Harv. L. Rev. 610, 656 n. 216(1979). A 1996 study on pro se inmate litigation supported this notion, concluding that seventy percent of

Dow

nloa

ded

by [

Duk

e U

nive

rsity

Lib

rari

es]

at 1

0:05

05

Oct

ober

201

4


prisoners “cannot comprehend or synthesize material from complex texts, which legal research requires.”Jill Schachner Chanen, Banned in the Bighouse, 84 ABA J. 26, 26 (1998).

17. As one commentator stated: “Assistance in using the legal materials contained in a law libraryis an integral part of effecting the law library alternative in meeting the Bounds requirements . . . . Notonly is there the obvious necessity to provide a law library staff of sufficient size, it is imperative thatthe staff is trained and capable of assisting inmates.” Richard E. Ducey, Survey of Prisoner Access to theCourts: Local Experimentation a’ Bounds, 9 New Eng. J. on Crim. & Civ. Confinement 47, 98 (1983).The American Association of Law Libraries (AALL) stated clearly that to help inmates with research inprison libraries, legal research training is “imperative.” American Association of Law Libraries StandingCommittee on Law Library Service to Institution Residents, Correctional Facility Law Libraries: an A to ZResource Guide (American Correctional Association 1991). In 1979, Virginia Davis, then a member of theLaw Library Services to Institutional Residents Special Interest Section of the AALL, opined, “no matterhow good a library’s collection is, it will be totally useless if there is no middleman to help provide a linkbetween the prisoner’s need for legal information and the information itself.” Prison Law Library Service:Questions and Models, 72 L. Lib. J. 598, 608 (1979).

18. For example, out of the ninety-nine correctional facilities that responded to the author’s surveyand indicated that their facility provided a law library, more than half had no law librarian (forty-eight)or were staffed solely by one or more inmate clerks (seven). Another twelve libraries were staffed witheither paralegals or individuals with a college degree unrelated to law or librarianship. Only twenty-threereported being staffed by a librarian with a master’s of library science or information science. Ducey,supra n. 17, at 108–118.

19. These cases, which were especially frequent during the 1990s, were aimed at “defining therequirements necessary to provide prisoners with adequate access to the courts” and included challengesregarding library resources and hours of access. Trammell, supra n. 15, at 2. With respect to the corecollection necessary for the libraries to function effectively, it should be noted that the AALL had beeninterested in the issue of prison law libraries years prior to the Bounds Court’s pronouncement that theycould serve as a vehicle to secure prisoners’ access to the courts. In 1972, AALL had issued collectionstandards for prison law libraries, and these regularly updated standards came to be used by most prisonlibraries as the minimum requirements to satisfy Bounds. See Vibeke Lehmann, Prisoners’ Right of Accessto the Court: Law Libraries in U.S. Prisons (60th IFLA General Conference Proceedings, Aug. 21–27, 1994),http://archive.ifla.org/IV/ifla60/60-lehv.htm

20. As discussed during a meeting of the Law Library Services to Institutional Residents SpecialInterest Section of the AALL, the judge in a large prison reform case in Oklahoma found as fact that onlythirty percent of the prisoners had the ability and education to do legal research. Supra n. 17, at 604(citing Battle v. Anderson, 457 F. Supp. 719, 731 [E.D. Okla. 1978]). Similarly, in Wetmore v. Fields, 458F. Supp. 1131 (W.D. Wis. 1978), the judge concluded that Bounds seeks to insure meaningful access tothe courts only for prisoners capable of preparing their own legal papers. Prison Law Library Service,at 605 (citing Wetmore, at 1142). In Falzerano v. Collier, 535 F. Supp. 800, 803 (D.N.J. 1982), the courtoffered this scathing critique of libraries’ ability to fulfill the states’ constitutional duties: “Access to thefullest law library anywhere is a useless and meaningless gesture in terms of the great mass of prisoners.The bulk and complexity have grown to such an extent that even experienced lawyers cannot functionefficiently today without the support of special tools, such as the computer research systems of ELITE,JURIS, [Lexis], and [Westlaw]. To expect untrained laymen to work with entirely unfamiliar books, whosecontent they cannot understand, may be worthy of Lewis Carroll, but hardly satisfies the substance ofconstitutional duty. Access to full law libraries makes about as much sense as furnishing medical servicesthrough books like: ‘Brain Surgery Self-Taught,’ or ‘How to Remove Your Own Appendix,’ along withscalpels, drills, hemostats, sponges, and sutures.”

21. As early as 1972, Justice Powell’s dissent in Boyd v. Dutton had expressed trepidation overthe increase in prisoner filings resulting from the Court’s decisions: “The current flood of petitions . . .

already threatens—because of sheer volume—to submerge meritorious claims and even to produce ajudicial insensitivity to . . . petitioners.” Id., 405 U.S. 1, 5 (1972) (Powell, J., dissenting).

22. One article complained, “Prisoner civil rights suits create an undisputed drain on the federalcourts. The number of suits filed has increased exponentially in the past twenty years, and is not likely toabate in the future . . . . Unfortunately, in addition to protecting legitimate claims, the right of access alsoprovides a vehicle for an overwhelming number of patently frivolous claims filed by indigent prisonersto harass their incarcerators.” Wayne T. Westling & Patricia Rasmussen, Prisoners’ Access to Courts: LegalRequirements and Practical Realities, 16 Loy. U. Chi. L.J. 273, 303 (1985). In an often-cited article, Robert

Dow

nloa

ded

by [

Duk

e U

nive

rsity

Lib

rari

es]

at 1

0:05

05

Oct

ober

201

4


Doumar concluded in 1994, “It appears that the handling of prisoner petitions is becoming a judgelesssystem. Many prisoner complaints never receive more than a cursory review from a federal judge at eitherthe district or appellate level. Meritorious prisoner civil rights cases will continue to be buried unless thedeluge of prisoner civil rights cases can be stopped.” Robert G. Doumar, Prisoner Cases: Feeding theMonster in the Judicial Closet, 14 St. Louis U. Pub. L. Rev. 21, 30–31 (1994).

23. One commentator reported that “[j]udges regularly lament the effects of frivolous prisoner suitsupon their courts and the administration of justice,” and quoted a federal judge who complained, “‘[t]hesheer volume of these prisoners’ cases causes extreme frustration and hardship for all who deal withthem,’ beginning with prison officials and subsequently including court clerks, state attorneys, judges,magistrates and law clerks.” Note, The End of the Prison Law Firm? Frivolous Inmate Litigation, JudicialOversight, and the Prison Litigation Reform Act of 1995, 29 Rutgers L. J. 361, 368 (1998). A 1988 studyconducted by the district court for the Southern District of New York concluded that more than half of theprisoner filings it received were “frivolous.” Hauhart, supra n. 10, at 339 (describing study). A 1979 articlehad concluded that those districts that have a large volume of prisoner litigation were finding it difficultto do justice in individual cases: “In the districts faced with an exceptionally high volume of prisonersuits, the ability of the courts to do justice in individual cases, or even to give them fair consideration, isplainly handicapped.” Turner, supra n. 16, at 638. This article quoted the chief judge for the district ofMaryland, a jurisdiction with an exceptionally heavy caseload of prisoner petitions, who described theimpact of those petitions as “devastating.” As the backlog increases daily, this judge stated, “The chancesof speedy disposition of a truly meritorious claim are diminished by the sheer weight of the numbers.”Id. at 638 & n. 141.

24. Note, supra n. 23, at 368 (citing cases).25. Id. at 369–375.26. For example, in speaking as part of a panel at the annual meeting of the AALL Law Library

Services to Institutional Residents Special Interest Section, Virginia Davis observed that “[b]ecause ofan inadequate system of staffing, TDC’s [Texas Department of Correction] reasonably well-equippedlaw libraries are rendered inaccessible and useless to the vast majority of prisoners. This statement issupported by the TDC Evaluation Report’s conclusion that the number of frivolous writs and appealshas increased in the Texas courts and that this is due to the lack of professionalism which exists in theinformation-gathering stages of the writ procedure.” Supra n. 17, at 609. Prison law libraries in WashingtonState came under the same fire: “I conclude that the situation greatly resembles the one in Texas. Eachunit has a law library equipped to follow the AALL checklists’ guidelines but these libraries are notkept up-to-date with the most current decisions, and staffing is not very adequate. The Head Librarianis usually a guard who has received minimal formal instruction for his duties at a seminar. In turn, heis supposed to train prisoners to help him perform his duties. As in Texas, lots of frivolous writs arereported from prisoners who are doing their own legal work.” Id.

27. Trammell, supra n. 15, at 3. An attempt to verify empirically the impact of prison law librarieson the litigation burden is beyond the scope of this article, and I am unaware of any study that has exam-ined the trends in prisoner filings in states that have chosen to dismantle their libraries following Boundsor that selected not to provide them in the first place. However, the Supreme Court’s endorsement ofprison libraries occurred in tandem with an increased willingness to pass judgment on prison adminis-tration practices. It would therefore likely be very difficult to determine whether the establishment ofprison law libraries had a negative causal effect on the number of nonmeritorious suits filed by inmates,or whether the Supreme Court’s opening of federal court doors would have led to the same or a greaternumber of suits by prisoners without access to law libraries as resources—however flawed they may be.It is at least plausible that the lack of law libraries through which prisoners have some hope of educatingthemselves about the merits of their claims would have resulted in even higher numbers of unsuccessfulfilings in the years preceding the Prison Litigation Reform Act (PLRA) and the Anti-Terrorism and EffectiveDeath Penalty Act (AEDPA). As one commentator argued, prison librarians “provide inmates with infor-mation, tools and programs necessary to research and prepare petitions to be filed with the courts . . . .Without libraries and librarians, inmates will seek to resolve frivolous issues by filing petitions. The prisonand the public will find it costs more to process such petitions than it would to provide the informationin the first place . . . . Without prison libraries and librarians to provide inmates with the information nec-essary to challenge their convictions, inmates would continue to flounder in an informational vacuum.This would lead to meritless lawsuits clogging the judicial system.” Jay M. Ihrig, Providing Legal Access, inLibraries Inside, 200, 203 (Rhea Joyce Rubin & Daniel S. Suvak, eds., McFarland 1995). Similarly, although“some [court] decisions [following Bounds] have prohibited punishment for ‘writ writing’ and mandated

Dow

nloa

ded

by [

Duk

e U

nive

rsity

Lib

rari

es]

at 1

0:05

05

Oct

ober

201

4


expanded legal libraries, it is equally plausible that the more widespread knowledge of the law whichthese cases have promoted may reduce the number of marginal and frivolous claims.” Turner, supra n. 16,at 635. Indeed, the state-proposed library plan approved by the district court in Bounds, which involvedsetting up prison libraries and training librarians and inmate clerks to staff them, was championed by thestate on the very grounds that it would result in “a diminution in the number of groundless petitions andcomplaints filed . . . . The inmate himself will be able to determine to a greater extent whether or not hisrights have been violated and judicial evaluation of the petitions will be facilitated.” Supra n. 12, at 821.

28. For a discussion of suits, see Margo Schlanger, Inmate Litigation, 116 Harv. L. Rev. 1555,1568–1569 (2003).

29. Despite concerns that the Supreme Court’s decisions in the 1960s and 1970s had unleashed aflood of inmate lawsuits, it should be noted that the upward trend in prisoner litigation largely kept pacewith the increase in the prison population, which also continued a steady rise. The Bureau of JusticeStatistics reports that between 1970 and 2002, the number of incarcerated people increased sixfold.Brenda Vogel, Introduction to The Prison Library Primer: A Program for the Twenty-First Century, atxvi (Scarecrow 2009). During the same period, the number of petitions filed in federal courts by stateand federal inmates rose less than fivefold. See Christopher E. Smith, Federal Judges’ Role in PrisonerLitigation: What’s Necessary? What’s Proper? Judicature, Oct.–Nov. 1986, at 144 (noting that filings bystate prisoners totaled 11,812 in 1970); supra n. 3 (state and federal filings totaled 55,295 in 2002).Other statistics show that the prison population remained fairly level between 1968 and 1973 but then“shot upward significantly every year since 1973. In contrast, section 1983 prisoner filings have increasedsteadily since they were first counted in 1966.” Turner, supra n. 16, at 626. In 1997, the Criminal JusticeSection of the American Bar Association (ABA) concluded that research regarding prisoner litigationdisproved the common perception of prisoners filing repeated civil rights and prison condition lawsuitsas a means of harassing the courts and their incarcerators. Rather, the ABA concluded, “research showsthat prisoners are doing the opposite. The majority of those prisoners who are filing civil-rights suits arefiling only one lawsuit.” Lynn S. Branham, Limiting the Burdens of Pro Se Inmate Litigation: A Technical-Assistance Manual for Courts, Correctional Officials, and Attorneys General, at 42 (ABA 1997). The ABAalso observed that little empirical work had been done to determine whether the perception of a tideof frivolous litigation created by the Court’s decisions in the 1960s and 1970s had basis in fact, a pointechoed by other researchers. It noted that “[o]ne researcher who examined every § 1983 complaint filedin the United States District Court for the District of Illinois between 1980 and 1986 concluded that ‘thereis strong evidence that most suits possess substantive, if not judicial merit.’” Id. Another commentatorasserted: “‘No research supports the notion that inmates litigate extravagantly, or that their lawsuits areunusually purposeless or frivolous. The media are responsible for this myth.’” Vogel, supra n. 14, at 35.At the time of the PLRA’s passage, there were some efforts to promote a more nuanced view of thesubstance of the complaints being presented to courts by prisoners. For instance, Judge Jon O. Newmanof the Second Circuit Court of Appeals spoke out against the pending legislation’s “effort to disparagethe vindication of prisoner rights and to limit the opportunities for legal redress” and concluded that theaccounts of prison lawsuits are often “misleading.” See Vogel, supra n. 15, at 69. After examining threeof the main suits that had become grist for the popular opinion engine railing against prisoner litigation,Judge Newman concluded “that they had merit in the context of prison life and limits.” Id.

30. Note, Return to Hard Time: The Prison Litigation Reform Act of 1995, 31 Ga. L. Rev. 879, 917(1997).

31. Senator Robert Dole, for instance, stated during debates that “[f]rivolous lawsuits . . . tie up thecourts, waste valuable legal resources, and affect the quality of justice enjoyed by law-abiding citizens.”141 Cong. Rec. 19, 27042 (1995).

32. Schlanger, supra n. 28, 1633–1634 & n. 269.33. Specifically, the Act amended the Civil Rights of Institutionalized Persons Act and Federal

Tort Claims Act to prohibit an inmate from bringing a claim for mental or emotional injury sufferedwhile in custody, unless accompanied by physical injury. See 42 U.S.C. § 1997e(e) (West 2010). Theact also added restrictions to the statute governing filings in forma pauperis, which permits waiver offiling fees for indigent parties. See 28 U.S.C. § 1915 (West 2010). The PLRA increased the federal courts’screening power of prisoner complaints, directing courts to dismiss inmate claims against governmentofficials before service, either upon the court’s motion or that of a party, if the claim is determinedto be “frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetaryrelief from a defendant who is immune from such relief.” 28 U.S.C. § 1915A. The PLRA also enacteda “three strike” rule, providing that an inmate who has previously had three lawsuits dismissed on the

Dow

nloa

ded

by [

Duk

e U

nive

rsity

Lib

rari

es]

at 1

0:05

05

Oct

ober

201

4


grounds that they are frivolous, duplicative, or fail to state a claim, will henceforth be ineligible forin forma pauperis status. See 28 U.S.C. § 1915(g). The act further requires that prisoners exhaust alladministrative remedies before filing suit in federal court. See 42 U.S.C. § 1997e(a). Finally, the PLRA alsoexpanded courts’ ability to dismiss sua sponte nonindigent prisoner filings under § 1983. See 42 U.S.C. §1997e(c).

34. Pub. L. 104–132, 110 Stat. 1214 (1996).35. Among other things, AEDPA raised the substantive bar for relief, permitting relief only if

the state court’s decision is contrary to “clearly established” federal law, and imposed a strict one-yearfiling deadline for all federal habeas corpus claims. See 28 U.S.C. §§ 2244, 2254(d)(1) (West 2009). Theamendments also place limits on successive petitions and require exhaustion of state remedies prior toseeking relief in federal court. See 28 U.S.C. §§ 2244(b), 2254(b)–(c) (West 2009).

36. Lewis v. Casey, 518 U.S. 343 (1996).37. Id. at 351. Accordingly, the Court found, an inmate can demonstrate a denial of access based

on an inadequate law library only by showing a concrete injury, such as evidence that “a complaint. . . was dismissed for failure to satisfy some technical requirement which, because of deficiencies inthe prison’s legal assistance facilities, he could not have known. Or that he [the prisoner] had sufferedarguably actionable harm that he wished to bring before the courts, but was so stymied by inadequaciesof the law library that he was unable even to file a complaint.” Id.

38. Id. at 355.39. Id. Interestingly, not a single library association filed an amicus curiae brief for the prisoners

in Lewis. “The American Library Association is said to have declined to file one because it was not a FirstAmendment issue.” By contrast, “[o]n behalf of the correctional agency, no fewer [than] thirty-two statesand Washington, D.C., filed amicus briefs along with the National Conference of State Legislatures andother state and municipal government associations.” Vogel, supra n. 15, at 65.

40. Vogel, supra n. 15, at 70. By contrast, the Federal Bureau of prisons has retained its lawlibraries, and plans to convert its print libraries to electronic by 2012. Id. at 67; see also U.S. Dept. ofJustice Federal Bureau of Prisons Program Statement no. 1315.07 , http://www.bop.gov/policy/progstat/1315 007.pdf (mandating law libraries and outlining required legal materials).

41. Vogel, supra n. 15, at 70. With respect to other states: “Iowa closed its prison law libraries(1999) and relies on attorneys. Idaho stopped providing case law and copies (2000) and assigned parale-gals to each main facility instead. Michigan kept a minimum law library and hired attorneys or paralegalsto train inmates to provide assistance to other inmates (2004); Mississippi opted for paralegals with attor-ney supervision; New Mexico kept skeleton libraries and assigned ‘educators’ who function as paralegals,but no cases, copies, or fill-in-the-blank forms are available; North Carolina contracted with N.C. PrisonerLegal Services.” Id. “Other states, such as Florida and California, severely cut back expenditures on lawmaterials.” Seamone, supra n. 15, at 93–94.

42. Schlanger, supra n. 28, at 1633 & n. 268. In practical terms, the Court’s decision in Lewismakes it less likely that— whatever the parameters of the right of access—any prisoner has a chance ofsucceeding on such a claim. David C. Fathi, staff counsel with the American Civil Liberties Union NationalPrison Project, speaking at the AALL 2002 annual meeting, noted that “successful cases involving claimsof denial of access to the courts based on inadequate law libraries are few and far between.” Trammell,supra n. 15, at 5. Similarly, an American Law Reports annotation cites sixteen cases prior to Lewis wherelaw library materials were held sufficiently inadequate to constitute a violation of prisoners’ right of accessto the courts; similar cases following Lewis number only four. See George L. Blum, Sufficiency of Accessto Legal Research Facilities Afforded Defendant Confined in State Prison or Local Jail, 98 A.L.R. 5TH 445(2002 & Supp. 2009)

43. Around 2003, Margo Schlanger, an associate professor at Harvard Law School, conducted anextensive empirical study to determine the impact of the PLRA on prisoner civil rights litigation. Sheobserves that between 1995 and 1997, there was a thirty-three percent decrease in the number of civilrights cases filed by prisoners, even though the prison population increased ten percent during thistime. Schlanger, supra n. 28, at 1634. Schlanger also concludes that the number of filings overall havedecreased. Similarly, a 2006 report on confinement conditions noted that since the PLRA’s enactment,“prisoner lawsuits in federal court are dramatically down, by nearly half when the increase in prisonpopulation is taken into account.” John G. Gibbons et al., Confronting Confinement: A Report of theCommission on Safety and Abuse in America’s Prisons 87 (Vera Institute of Justice 2006). This study notesthat the year before the law took effect, the rate of filings was 37 per 1,000 prisoners, but that five years

Dow

nloa

ded

by [

Duk

e U

nive

rsity

Lib

rari

es]

at 1

0:05

05

Oct

ober

201

4


later, that rate had dropped to 19 per 1,000. Id. Prof. Schlanger concludes from her research that thisreduction is most likely attributable to the impact of PLRA. Schlanger, supra n. 28, at 1634.

44. Schlanger, supra n. 28, at 1644 (stating that the PLRA has not lived up to its promise to getrid of frivolous claims and make way for courts to consider meritorious ones). Instead, the proportion ofsuccessful claims decreased after the PLRA’s enactment. Gibbons et al., supra n. 43.

45. In 2000, they numbered 21,349. In 2008, that number had declined slightly to 18,450. Seesupra n. 3.

46. In 1977, five years after Justice Powell expressed concern that the volume of prisoner petitionsthreatened “to submerge meritorious claims and even to produce a judicial insensitivity to . . . petitioners,”Boyd v. Dutton, 405 U.S. 1, 5 (1972), prisoner petitions filed in federal court totaled just over 19,000. Seesupra n. 3.

47. For instance, in the Eastern District of New York, where I clerked from 2005 to 2006, all prosecases are initially screened by a staff attorney employed by the court.

48. For instance, while there were only 355 habeas corpus petitions filed in the West-ern District of Texas in the 12 months ending September 30, 2009, there were 1,594 petitionsfiled in the Central District of California in the same period. See Administrative Office of theU.S. Courts, Table C-3, U.S. District Courts—Civil Cases Commenced, by Nature of Suit and Dis-trict, During the 12-Month Period Ending September 30, 2009, at 150, 152, http://www.uscourts.gov/statistics/FederalJudicialCaseloadStatistics2009.aspx

49. Turner, supra n. 16, at 637.50. Schlanger, supra n. 28, at 1642.51. The federal habeas corpus statute, 28 U.S.C. § 2254 (West 2009), provides that a state prison

may apply for a writ of habeas corpus on the ground that he or she is “in custody in violation of theconstitution or laws or treaties of the United States.”

52. In 2000, then-Governor George H. Ryan of Illinois declared a moratorium on the deathpenalty due to “grave concerns about [Illinois’] shameful record of convicting innocent peopleand putting them on death row.” See Press Release, Governor Ryan Declares Moratorium on Ex-ecutions, Will Appoint Commission to Review Capital Punishment System, http://www.illinois.gov/PressReleases/PressReleasesSearch.cfm (January 31, 2000). Examples of federal courts overturning statecourt convictions after finding state court proceedings infected with misconduct and incompetence arefar from commonplace—especially given AEDPA’s heightened restrictions—but they are nonetheless un-acceptably frequent. In just one example, a New York City law firm won the 2004 release from deathrow in Texas of a defendant who, without objection from his attorney, was doped with excessive dosesof an unprescribed antipsychotic medication throughout his trial, creating an affectless demeanor thatthe state used as a basis to argue for an inference of guilt and future dangerousness. Willis v. Cockrell,2004 WL 1812698 (W.D. Tex. Aug. 2, 2004). In Herrera v. Collins, 506 U.S. 390 (1993), the dissent citeda study concluding that twenty-three innocent people have been executed in the United States in thetwentieth century. Id. at 431 & n. 1 (citing Hugo Adam Bedau & Michael L. Radelet, Miscarriages of Justicein Potentially Capital Cases, 40 Stan. L. Rev. 21, 36, 173–179 [1987]; Michael L. Radelet et al., In Spite ofInnocence: Erroneous Convictions in Capital Cases, 282–356 [Northeastern U.P. 1992]).

53. Wolff v. McDonnell, 418 U.S. 539, 555 (1974). “A prisoner is not wholly stripped of constitu-tional protections when he is imprisoned for a crime.” See also Bell v. Wolfish, 441 U.S. 520 (1979); Pellv. Procunier, 417 U.S. 817 (1994) (noting that prisoners retain First Amendment rights not inconsistentwith their status as a prisoner or legitimate objectives of the correctional system). Under the EighthAmendment, prisoners are also entitled to “reasonably adequate ventilation, sanitation, bedding, hygienicmaterials, and utilities.” Lewis v. Lane, 816 F.2d 1165, 1171 (7th Cir. 1987).

54. See Branham, supra n. 29, at 38.55. Id.56. See Note, supra n. 30, at 883. “Some of the conditions described in these [prison condition]

cases defy the imagination. In Alabama, for example, up to six inmates might be simultaneously confinedto the ‘doghouse’ as punishment; it measured the square footage of an ordinary door and had no lights,water, beds, or toilets. These prisoners often languished in the same doghouse, without exercise, forweeks on end. Similarly, the Supreme Court once described the Arkansas prison system as ‘a dark andevil world completely alien to the free world.’ In the Arkansas case [Hutto v. Finney, 437 U.S. 678 (1978)],the Court discovered that, in addition to overcrowding and guard brutality, inmates known as ‘creepers’would crawl along the barrack’s floor at night, stalking their sleeping victims. As a result, ‘homosexualrape was so common and uncontrolled that some potential victims dared not sleep; instead they would

Dow

nloa

ded

by [

Duk

e U

nive

rsity

Lib

rari

es]

at 1

0:05

05

Oct

ober

201

4


leave their beds and spend the night clinging to the bars nearest the guards’ station. Further, inmates couldget medical treatment only by bribing the ‘trusty,’ an inmate to whom the prison had entrusted certainfunctions, on medical care duty.” Another commentator notes that “lawsuits of prisoners have played astrong role in putting a stop to practices such as sanctioned beatings and placement in life-threateningenvironments.” Robert M. Stearns, The Prison Library: An Issue for Corrections, or a Correct Solution forIts Issues? 23 Behav. & Soc. Sci. Libr. 49, 65 (2004).

57. The ABA’s 1997 study on the impact of pro se prisoner litigation on the federal courts, whichwas based upon extensive surveys and site visits of numerous federal district courts, state attorneysgeneral, and state departments of corrections, observed that “[i]t was clear from the feedback receivedfrom judges, correctional officials, Attorneys General, prisoners, and prisoners’ rights organizations” thatthe benefits resulting from prisoner litigation (in this case, prisoner civil rights suits), extended beyondthe value of any damages or injunctive relief rewarded to improve prison conditions or put a stop tounconstitutional treatment as a result of the suits. Rather, other “unquantifiable benefits,” “no less realand important” were identified. “In fact,” the ABA study reported, “many survey respondents underscoredthat these benefits are of overriding importance.” Branham, supra n. 29, at 44.

58. With respect to the first of these latter three benefits, the ABA reported that “[e]nforcingprisoners’ constitutional rights can teach prisoners that the law does matter. The cynicism that can resultwhen prisoners, who are incarcerated for violating the law, watch as some of their ‘keepers’ violate thelaw with impunity can then be avoided. In short, providing inmates with redress when their rights underthe law have been violated can help to inculcate a respect for the law in persons who tend to view thelaw as a tool of oppression.” Branham, supra n. 29, at 45.

59. The ABA study also recognized the “spin-off rehabilitative value of treating inmates withprocedural fairness” that has been recognized repeatedly by the Supreme Court. Branham, supra n. 29,at 45 (citing Morrissey v. Brewer, 408 U.S. 471, 484 [1972]). This benefit has also been identified by thoseinvolved in legal assistance programs within prisons. For example, one author notes of the Fox LakeParalegal Program, which provided paralegal assistance to Wisconsin inmates: “Fairness in the resolutionof such offender problems encourages an understanding of, and respect for, legal institutions. This, inturn, may complement rehabilitative efforts within the correctional system.” Ben Kempinen, PrisonerAccess to Justice and Paralegals, The Fox Lake Paralegal Program, 14 New Eng. J. on Crim. & Civ.Confinement 67, 68 (1988). Another commentator observes that “[t]he ability to initiate a lawsuit andrealize one’s civil rights reduces vulnerability and powerlessness. The ability to participate actively in aproject which helps develop competence, usefulness, and legitimate political power removes much ofthe bitterness and hostility which incarceration has come to develop.” Geoffrey P. Alpert, Legal Rights ofPrisoners, 47 (Sage 1978).

60. Regarding the reported safety valve function of prisoner litigation, the ABA has reported: “Pris-oners, it is said, will one way or the other react to mistreatment, whether constructively or destructively.A court action offers a peaceful way for inmates to air grievances about the alleged violation of their legalrights. Without such an avenue for redress, prisoners may unfortunately, but not surprisingly, respondto wrongdoing by doing wrong themselves—rioting and employing other violent modes of expression.As one Department of Corrections Administrator observed when being interviewed during this study, ‘Iwould rather have an inmate pick up a pen than a sword.’“ Branham, supra n. 29, at 45. This obser-vation has been echoed by other commentators. For example, one author noted that “the buildup ofunresolved grievances may in fact cause the disturbances. If this is true, the airing of prisoner complaintsboth through administrative channels and in court would tend to defuse prison tensions and enhancethe prisoners’ perception that justice is being done.” Turner, supra n. 16, at 637. In sum, “offenders whobelieve their problems are being attended to may be less likely to create disciplinary problems whileconfined.” Kempinen, supra n. 59, at 68.

61. Dr. Christopher Smith, who as a law student at the University of Washington in the 1980swas involved in one of the prison research instruction programs discussed in the section of this articletitled Addressing the Challenges Associated with Prisoner Litigation, noted that in his experience, the issueprisoners needed the most help in understanding was how to determine whether they had a legally validclaim that could be redressed by the courts. Telephone interview with Dr. Christopher Smith, Professor atMichigan State University School of Criminal Justice (Mar. 26, 2010). Poorly written claims is a challengethat becomes impossible in facilities located in states that have chosen to dismantle their prison libraries.As Justice Jackson noted in his concurring opinion in Brown v. Allen, a habeas corpus case: “It mustprejudice the occasional meritorious application to be buried in a flood of worthless ones. He who mustsearch a haystack for a needle is likely to end up with the attitude that the needle is not worth the search.”

Dow

nloa

ded

by [

Duk

e U

nive

rsity

Lib

rari

es]

at 1

0:05

05

Oct

ober

201

4


Brown v. Allen, 344 U.S. 443, 536 (1953) (Jackson, J., concurring). “Many serious claims of mistreatmentare doubtless lost in the sea of clumsy and prolix pleadings, while legally meritless claims consume thetime and erode the sympathy of court personnel.” Turner, supra n. 16, at 612. Similarly, Dr. ChristopherSmith, who reviewed prisoner complaints while conducting research for his Ph.D. on magistrate judges,observed that the steady stream of poorly written and nonmeritorious submissions made it difficult toapproach each individual submission with the attitude that it could present a valid claim, rather than witha focus of merely disposing of the complaint. Smith interview, supra n. 61.

62. In addition to the difficulties and challenges associated with prisoner litigation that have beenwell documented elsewhere, this discussion is informed by my own experience as a law clerk to a federaldistrict judge in the Eastern District of New York from 2005 to 2006.

63. As Wanda Heimann, the law librarian at the Washington State Penitentiary in Walla Walla,WA, noted, legal research is challenging even for individuals with a college degree. Telephone interviewwith Wanda Heimann (April 5, 2010). Branham, supra n. 29, at 36. Another judge observed: “Whatmakes a good case? Well, the first thing that makes a good case is good spelling, good typing, goodgrammar. You don’t see a lot of that in prisoner cases . . . . If I can read it, I take the time to read it. If it’sillegible, I don’t take the time to translate it. I just can’t. I don’t have the time.” Schlanger, supra n. 28, at1589.

64. Wayne T. Westling & Patricia Rasmussen, Prisoners’ Access to the Courts: Legal Requirementsand Practical Realities, 16 Loy. U. Chi. L.J. 273, 308 (1985). See also Turner, supra n. 16, at 636 (notingthe “deciphering-screening burden” imposed by pro se inmate litigation).

65. Although processing of habeas petitions often benefits from a responsive brief by the state,where a prisoner files a suit against a government official, no service is made upon the defendant (andno answer or subsequent motion to dismiss required) before the court reviews the merits of the case.See 28 U.S.C. § 1915A (West 2010).

66. For instance, as the Washington State Penitentiary Law Librarian noted, she routinely observesinmates with no concept of the way the legal system works preparing duplicate and unnecessary docu-mentation or preparing to make submissions to the courts without required forms. Heimann interview,supra n. 63. Similarly, Thao Tiedt, a law student at the University of Washington during the 1980s whowas involved in one of the prison research instruction clinics discussed in the “Addressing the ChallengesAssociated with Prisoner Litigation” section below, observed that inmates lacked basic understanding ofproper brief structure or principles of procedure. Telephone interview with Thao Tiedt, attorney, Ryan,Swanson & Cleveland PLLC, Seattle, WA (Mar. 31, 2010).

67. Haines v. Kerner, 404 U.S. 519 (1972).68. See discussion supra p. 4 (section titled “Post-Bounds Criticism of Prison Law Libraries”).69. See Ducey, supra n. 17, at 108–118.70. State guidelines provide only that a degreed librarian be available to prison law library staff

for consultation, so the presence of these three or four degreed librarians within the system fulfills thisrequirement. Telephone interview with Susan Trombley, Librarian, Minnesota State Law Library Serviceto Prisoners Program (Mar. 25, 2010).

71. Heimann interview, supra n. 63.72. One librarian who performs a screening of prisoner library loan requests states, “If you worked

with inmates you would see the unbelievable requests we get. Many do not know how to verbalize theirrequest or how to give proper citation. Some requests are unreasonable: . . . ‘I’ll want all of the court casesrelating to constitutional law.’ . . . If they asked us for all the statutes and cases relating to a particularpoint of law we would consider this a reasonable request.” See Ducey, supra n. 17, at 91–92.

73. For instance, Wanda Heimann, librarian at the Washington State Penitentiary law library,noted that some inmates lack even very basic understanding of how to put together a court filing, usingincorrect forms, duplicate documents, and demonstrating a failure to understand the need to present alegal argument to the court. She also noted that inmates often simply do not understand the legal system(for instance, the difference between state and federal law, how the court system is structured, and thesignificance of jurisdictions). Ms. Heimann noted that this lack of understanding shows in prisoners’research methods, as they jump from one reporter to another without any rhyme or reason. Heimanninterview, supra n. 63. Similarly, Michael Tillman-Davis, who served close to two years as the legalcoordinator in charge of the day-to-day library operations at Rikers Island in New York City, noted thatsome inmates need to be shown many times how to perform a research task before they grasp theprocedure. Telephone interview with Michael Tillman-Davis (Apr. 8, 2010). One of the students involvedin the prisoner legal research instruction program through the University of Washington in the 1980s

Dow

nloa

ded

by [

Duk

e U

nive

rsity

Lib

rari

es]

at 1

0:05

05

Oct

ober

201

4


recalled in his article about his experience with that program that “prisoners experienced at using thelaw library regularly conducted legal research by thumbing through volumes of Federal Supplementand Federal Reported 2d looking for cases involving prisons.” Christopher E. Smith, Improving the Use ofPrison Law Libraries: A Modest Proposal, 79 L. Lib. J. 227, 232–233 (1987). Marc Lampson, an attorney whoas discussed in the section titled, “Addressing the Challenges Associated with Prisoner Litigation,” belowtaught legal research in state prison for many years, also observed that many prisoners have surprisinglylittle grasp of the legal system, despite its impact on their lives. Interview with Marc Lampson, director,Employment Law Project, Seattle, WA (Mar. 25, 2010). (Nonetheless, it should also be noted that many ofthese librarians are also quick to observe that inmates’ abilities vary greatly and that some are perfectlycapable of grasping the mechanics of legal research if shown. For instance, Mr. Tillman-Davis noted thatsome of the jailhouse lawyers he encountered during his time at Rikers Island had skills that surpassedtrained attorneys’ skills.)

74. See discussion supra p. 6 (section titled “Impact of Prisoner Litigation on Federal CourtsToday”).

75. Turner, supra n. 16, at 641.76. See discussion supra p. 4 (section titled “Post-Bounds Criticism of Prison Law Libraries”).77. All information in this section was gathered during an in-person interview with Mark Lampson

(Mar. 25, 2010). Supra n. 73.78. See Ducey, supra n. 17.79. In teaching his class, Mr. Lampson used Christopher G. Wren and Jill Robinson Wren, The

Legal Research Manual: A Game Plan for Legal Research and Analysis (A-R Editors 1986). This book wasauthored by a husband-and-wife team and is based on the authors’ experience teaching a similar course.Lampson interview, supra n.73.

80. The most recent list may be accessed online at http://www.aallnet.org/sis/srsis/llsp81. Unless otherwise noted, information in this section was gathered during a telephone interview

with Susan Trombley, law librarian for the Minnesota Law Library Service to Prisoners program (Mar. 25,2010).

82. See Law Library Service to Prisoners 2008 Annual Report, http://www.lawlibrary.state.mn.us/llsp.html

83. Id.; and 2000 Core Collection and Recommended Retention Schedule for Prison Law Libraries,http://www.lawlibrary.state.mn.us/ar2000/corecollection.html

84. Karen Westwood, Prison Law Librarianship: A Lesson in Service for All Librarians, Am. Libs.Feb. 1994, at 152.

85. See supra n. 82.86. The “kite” system uses forms that inmates fill out to request research assistance. The request

forms are regularly batched at the library and sent to the state law library ahead of the librarians’ scheduledvisits. Trombley interview, supra n. 70.

87. For example, Ms. Trombley explained that if she observes an inmate using the wrong formto file his suit, she might suggest to the inmate that he consider whether the proper form might be moreappropriate. Trombley interview, supra n. 70.

88. Unless otherwise noted, information in this section is taken from telephone interviews withThao Tiedt (Mar. 31, 2010) and Dr. Christopher Smith (Mar. 26, 2010), supra n. 61 and n. 66. Both wereparticipants in the UW Prisoner Counseling Project.

89. Smith interview, supra n. 61.90. Tiedt interview, supra n. 66.91. Id.92. Smith, supra n. 73, at 232–233. As discussed above, the prison law librarians interviewed

for this article also commented on inmates’ often very rudimentary grasp of the legal system and legalprocess. See discussion supra pp. 7–9 (section titled “Challenger Posed by Prisoner Litigation”).

93. Smith interview, supra n. 61.94. Tiedt interview, supra n. 66. Another aspect of the program not strictly related to legal research

instruction was a mock trial held at the prison at the end of the school year. The students recruited asitting judge to preside over the trial, which involved a defamation claim, and ten to twelve inmates whohad remained active in the research classes throughout the year were empanelled as jurors. Both thejurors and audience members were allowed to cast votes for the verdict at the end of the trial, and thefollowing week, the students led a discussion of what had occurred during the trial. Many inmates saidthey had not realized how difficult it was to make a decision as a juror. Tiedt interview, supra n. 66.

Dow

nloa

ded

by [

Duk

e U

nive

rsity

Lib

rari

es]

at 1

0:05

05

Oct

ober

201

4


95. Mar. 26, 2010 e-mail from Thao Tiedt, on file with the author.96. Unless otherwise noted, information in this section is taken from an e-mail interview with

William Mongelli, Law Librarian at the Massachusetts Correctional Institution at Norfolk (Apr. 2, 2010).97. William D. Mongelli, De-Mystifying Legal Research for Prisoners, 86 L. Lib. J. 277 (1994).

Mr. Mongelli has also published a book aimed at individuals interested in teaching a legal researchclass in the prison setting, titled William Mongelli, CONSentrating on the Law: A Program of Self-Directed Legal Research for Prison Course Givers (F&W Associates 2001). The book is aimed at indi-viduals interested in teaching a prison legal research course and is available through LMC Source, athttp://www.lmcsource.com/. E-mail from William Mongelli (Apr. 1, 2010), on file with author.

98. Mongelli interview, supra n. 96.99. Mongelli, supra n. 97, at 286.

100. Mongelli interview, supra n. 96.101. Mongelli, supra n. 97, at 286.102. Id.103. Id., at 277, 287.104. Mongelli interview, supra n. 96.105. Id.106. Mongelli, supra n. 97, at 286.107. Mongelli interview, supra n. 96.108. Mongelli, supra n. 97, at 286, 290.109. Mongelli interview, supra n. 96.110. Id.111. Mongelli, supra n. 97, at 286, 290.112. Mongelli interview, supra n. 96.113. Lampson interview, supra n. 73.114. Tiedt interview, supra n. 66.115. Davis, supra n. 17, at 609–610.116. Westwood, supra n. 84, at 154.117. For example, one inmate wrote, “With all the things I request, I decided to just go straight

to the source. Thank you for your help. It is greatly appreciated. You don’t know how important theLaw Library is to all of us. If it wasn’t for you, I wouldn’t have a way to get a thing . . . . I gotta reachout to whoever I can.” Law Library Service to Prisoners 2004 Annual Report, at 2, http://www.lawlibrary.state.mn.us/llsp.html

118. Trombley interview, supra n. 70.119. Id.120. Tillman-Davis interview, supra n. 73; see also Michael W. Tillman-Davis, First Person . . . My

Time on Rikers Island, 99 L. Lib. J. 151, 153 (2007).121. Mongelli interview, supra n. 96.122. Lampson interview, supra n. 73.123. Id.124. Tiedt interview, supra n. 66.125. Supra n. 117.126. Id.127. Trombley interview, supra n. 71; April 6, 2010 e-mail from Susan Trombley, on file with

author.128. See Mongelli, supra n. 97, at 280.129. Supra n. 17, at 609–610.130. Smith, supra n. 73, at 238.131. Heimann interview, supra n. 63; telephone interview with Melisa Gilbert, Librarian, Coyote

Ridge Correctional Facility, Washington State (Apr. 3, 2010). Ms. Gilbert noted that she would like toprovide legal research training for inmates including basic instruction on using the LexisNexis databaseas well as more advanced search techniques, but does not have the time given the other demands of herjob. E-mail from Melisa Gilbert, Apr. 9, 2010, on file with author.

132. Gilbert interview, supra n. 131.133. See Law Library Service to Prisoners Annual Report (2001–2008), http://www.lawlibrary

.state.mn.us/llsp.html

Dow

nloa

ded

by [

Duk

e U

nive

rsity

Lib

rari

es]

at 1

0:05

05

Oct

ober

201

4


134. Supra n. 117,at 1. The statement is not attributed, and more specific information on its sourcewas not available through the LLSP. However, some statistics do indicate that at least in past years, thenumber of suits filed by Minnesota prisoners has been quite small compared with other states. See AnneMorrison Piehl & Margo Schlanger, Determinants of Civil Rights Filings in Federal District Court by Jailand Prison Inmates, 1 J. Empirical Leg. Stud. 79, 101 (2004). Minnesota prisoners filed forty-four suits in1999 as compared with hundreds or thousands in other states.

135. Trombley interview, supra n. 70.136. Id.137. Id.138. Tiedt interview, supra n. 66; Smith interview, supra n. 61.139. Smith interview, supra n. 66.140. Id.141. Smith, supra n. 73, at 238.142. Smith, supra n. 16, at 41–42.143. Bounds, supra n. 12, at 831.144. “When . . . [they] are competent, they serve as ‘gatekeepers between prisoners and the federal

courts by weeding out suits that do not possess legal merit from those that do.’ They can substantiallyreduce the amount of information presented to the court simply by ‘assisting prisoners in writing theircomplaints in terms that are understandable by the clerk and the judges.”’ Seamone, supra n. 15, at90 (citing Dragan Milovanovic & Jim Thomas, Overcoming the Absurd: Prisoner Litigation as PrimitiveRebellion, 36 Soc. Problems 48, 50 [1989] and Dep’t of Justice & Nat’l Inst. of Corrs., Alternative DisputeResolution Mechanisms for Prisoner Grievances: A Reference Manual for Averting Litigation [U.S. Depart-ment of Justice, National Institute of Corrections 1984]). “‘Jailhouse lawyer’ is a term used to describean inmate who holds himself or herself out to be an expert in the law, and is willing to provide legalassistance to other prisoners in their own legal actions.” Trammell, supra n. 15, at 3 n. 8.

145. Seamone, supra n. 15, at 90 (citing Marie McCain, More Defendants Face Judges and JuriesAlone, Cincinnati Enquirer A1 [Aug. 26, 2002]). In its study of pro se inmate litigation, the ABA similarlyconcluded that litigation costs “incurred because of the lack of knowledge and illiteracy of many of theprisoners bringing pro se civil rights complaints” could potentially be avoided “though a carefully craftedlegal assistance program. Through such a program, nonmeritorious claims that would otherwise be filedby prisoners who do not understand the requirements of the law could be weeded out, and meritoriousclaims could be litigated more efficiently and effectively.” Branham, supra n. 29, at 39.

146. This was the experience of students in the UW Prisoner Counseling Project, who noted thatthe class did not attract prisoners with literacy problems, as well as that of the law librarian at theMassachusetts Correctional Institution at Norfolk. Smith interview, supra n. 61. Mongelli interview, supran. 96.

147. See Tillman-Davis interview, supra n. 73. Tillman-Davis noted that there was a wide range ofskills and abilities among inmates; although some grasped the basic research process quickly once theyhad been instructed, others needed to be walked through it multiple times.

148. Trombley interview, supra n. 70.149. Lampson interview, supra n. 73. Lampson noted that the level of ability and motivation among

students varied greatly. See also Heimann interview, supra n. 63. Heimann noted that some inmates arevery good at legal research, but others are not at all capable.

150. Lampson interview, supra n. 73.151. Tillman-Davis interview, supra n. 73.152. Gilbert interview, supra n. 131.153. Lampson interview, supra n. 73. Lampson noted that if prisoners were working on specific

documents for a case, he would refuse requests to look over legal briefs because that came too close toproviding legal advice. Trombley interview, supra n. 70. Trombley noted that librarians are often askedto review and give feedback on briefs; those requests are refused because that crosses the line into legaladvice.

154. Thao Tiedt noted that she often received requests to provide feedback on prisoners’ briefs,which she refused because she was not the prisoners’ attorney and did not want to learn about mattersthat were not protected by attorney-client privilege. Tiedt interview, supra n. 66.

155. Lampson interview, supra n. 73; Smith interview, supra n. 60.156. Heimann interview, supra n. 63; Tillman-Davis, supra n. 120, at 153.

Dow

nloa

ded

by [

Duk

e U

nive

rsity

Lib

rari

es]

at 1

0:05

05

Oct

ober

201

4


157. Smith interview, supra n. 61.158. Trombley interview, supra n. 70; Smith interview, supra n. 61.159. Tiedt interview, supra n. 66.160. Smith interview, supra n. 61.161. Mongelli interview, supra n. 96.162. See Smith, supra n. 73, at 232.163. William M. Sullivan et al., Educating Lawyers: Preparation for the Profession of Law (Jossey-

Bass/Wiley 2007). For a criticism of law schools’ failure to provide sufficient practical skills training tostudents, see Interview with Professor Jackie McMurtrie, Director, Innocence Project Northwest (Apr. 2,2010).

164. For instance, in Washington State, most law librarians are employed by the Department ofCorrections, while other librarians report to the state library. However, Washington has also recentlylaunched a pilot program under which the law library in one correctional facility is being run by alibrarian employed by the state library. Gilbert interview, supra n. 133.

165. For instance, during my interview with the prison law librarian at the Washington StatePenitentiary in Walla Walla, WA, I received the name of an individual within the Department of Correctionswho is currently responsible for overseeing all correctional facility law libraries in the state. Based onthis librarian’s eighteen years of experience in the law library, she advised that this individual would bea good person to approach with a proposal for law student research instruction in the state’s prison lawlibraries. Heimann interview, supra n. 63.

166. http://www.dllr.state.md.us/ce/lib/celibdirstate.shtml167. McMurtrie interview, supra n. 163.168. Tiedt interview, supra n. 66; Smith interview, supra n. 61.169. Tiedt interview, supra n. 66.170. Id.171. Mongelli, supra n. 97.172. E-mail from Melisa Gilbert, Librarian, Coyote Ridge Correctional Facility, Washington State

(Apr. 9, 2010), on file with author.173. McMurtrie interview, supra n. 163.174. Id.175. Id.176. See discussion supra at p. 11, 15 (sections tilted “Research Instruction by Practicing Attorneys

in Prison Low Libraries” and “Formal Research Instruction by Prison Law Librarians”).177. Id.178. Mongelli interview, supra n. 96; Mongelli, supra n. 97.179. The law librarian at the Washington State Penitentiary noted that she had asked contract

attorneys who visit the prison on a periodic basis to provide prisoners with some basic instruction onbrief writing. She stated that it would be helpful to have law students show inmates how to put togethera better document and explain basic court procedures so that inmates understand what they need to dowhen they file a document with the court. Heimann interview, supra n. 63. See also Tiedt interview,supra n. 66 (noting that inmates found instruction on the basic structure of a brief very useful).

180. See discussion supra n. 33.181. See Mongelli, supra n. 97, at 280 (noting that instruction on prison grievance procedure

facilitates resolution of conflicts “at the institution level, avoiding litigation altogether”). See also Turner,supra n. 16, at 621 (noting that in the District of Vermont, “relatively few cases are dismissed sua sponte[under the in forma pauperis screening process], probably because of the assistance of the VermontDefendant General’s Office. The Defender General provides in-prison counseling and sometimes advisesprisoners to use the institutional grievance system prior to filing suit. This kind of screening results in‘tighter’ and doubtless fewer cases being filed”); Robert C. Hauhart, The First Year of Operating A Prisoners’Legal Services Program: Part I , 24 Clearinghouse Rev. 106 (June 1990) (“as a review of Prisoners’ RightProgress delivery of legal services over its first year of operation shows, the great majority of applicationsfor assistance warrant nothing more than internal administrative relief”).

182. See discussion supra pp. 20–21 (section titled “Common Issues and Challenges”).183. The law librarian at the Washington State Penitentiary law library noted that she formerly

compiled a guide on how to navigate the resources in the library that was useful for the inmates, but sheno longer has time to keep the guide up to date. Heimann interview, supra n. 63. This type of researchassistance has been used in the Maryland correctional facility system, one of the states not to opt to

Dow

nloa

ded

by [

Duk

e U

nive

rsity

Lib

rari

es]

at 1

0:05

05

Oct

ober

201

4


establish law libraries following Bounds, to supplement a law school clinic established by the Universityof Maryland and the placement of public defenders in major facilities to provide legal assistance. Basedon a survey of legal information needs, law school library student clerks at the University of Marylandcreated a series of “criminal law and post-conviction pathfinders, or Legal Information Packets,” that werelater digitized and were placed in the prison libraries and lockdown units. See Vogel, supra n. 15, at 62.

184. Trombley interview, supra n. 70; Smith interview, supra n. 61; Mongelli, supra n. 99, 286–287.185. Tiedt interview, supra n. 66.186. Lampson interview, supra n. 73.187. “Judge James Murphy, a Washington State jurist, has explained the risk of complaints premised

solely upon forms without extensive legal analysis: ‘If it’s a case that can be handled by summary judgmentand a person has an opportunity to research the issue, state their opinion in their own brief, and argueit perhaps over a phone conference, we can dispose of the matter in a timely and effective manner, ifit’s a well-taken motion. If they don’t have access to law libraries, it’s probably going to cost a lot more.Judges wouldn’t have much choice, really, than to set the matter for trial and let the person come in anddefend themselves at trial. You’re going to have to transport the prisoners and have security during theentire trial and probably make available the local library for a person to research, anyway.” Seamone,supra n. 15, at 100–101.

188. Smith, supra n. 73, at 233.189. One prison law librarian in Washington State noted that additional training in legal research

would be useful in better assisting the inmates. Gilbert interview, supra n. 131. This librarian noted thatshe would like additional training but that the resources to provide it are not available.

190. See e-mail from Melisa Gilbert, Librarian, Coyote Ridge Correctional Facility, Washington State,Apr. 9, 2010, on file with the author. Gilbert noted that “structured activities for offenders are beneficialbecause those activities keep offenders busy [instead of using their time to be destructive]”). See alsoGibbons et al., supra n. 43, at 29. “The commission heard from expert criminologists, psychologists,corrections professionals, and community advocates about the dangers associated with ‘warehousing’prisoners . . . . Increasingly, programs tested through research demonstrate that the old pessimism of the1970s about rehabilitation was misguided . . . . Education—particularly at the college level . . . reducesrule-breaking and disorder in prison. Studies show that post-secondary education can cut recidivismrates by nearly half . . . . We need a strong investment in education, vocational training, and cognitivebehavioral programs that have been demonstrated to promote safety in the short and long term.”

191. Smith, supra n. 73, at 237.192. Tiedt interview, supra n. 66.193. See Mongelli, supra n. 97, at 285. “Few topics generate as much controversy among prison

line staff as inmates’ use of law libraries.”194. Trammell, supra n. 15, at 8. Trammell noted uncertainty about the role and responsibility of

prison law libraries.195. Gibbons et al., supra n. 43. “According to Michael Jacobson, the director of the Vera Institute

of Justice, ‘there is now a greater willingness on the part of many states to pursue correctional and prisonreform. Budget pressures, growing public support for alternatives to prison for non-violent offenders,and yawning needs in education and health all have created the most receptive political environment forreform in decades.”’

Dow

nloa

ded

by [

Duk

e U

nive

rsity

Lib

rari

es]

at 1

0:05

05

Oct

ober

201

4

may it please the court: law students and legal research instruction in prison law libraries

Documents