As prison law libraries go digital, many inmates are encountering significant barriers to getting the materials they need to pursue their cases. TCR investigates a barrier to justice that has received little attention.
In 2006, jailhouse lawyer Thomas C. O’Bryant sent a handwritten article to the Harvard Civil Rights-Civil Liberties Law Review detailing across 40 pages the never-ending obstacles prisoners face in accessing legal materials.
The editors were so impressed they published the piece, and O’Bryant — who taught himself the law while serving a life sentence in Florida — even lectured at Harvard later that year via telephone.
His message was damning:
“…the entire system seems to prevent indigent prisoners from obtaining meaningful review of constitutional violations: undereducated prisoners, prisoners with mental disorders, unreliable memories of trial court proceedings, under-trained and under-educated law clerks, ‘psych inmates’ working as law clerks, law libraries with meager resources, restricted access to these law libraries, law clerks, and jailhouse lawyers—the list goes on.”
Twelve years later, he says it’s even worse now.
“Unfortunately, I believe the problems have gotten worse,” O’Bryant wrote to The Crime Report in an interview conducted by snail mail.
One big reason is Florida’s prison system — and a majority of state prisons systems — have dumped print materials for computer kiosks with subscriptions to legal databases.
“There’s a difference between access and meaningful access,” he wrote. “Some inmates can’t navigate the digital material at all. They were better off with print materials.”
O’Bryant says he typically gets two-and-a-half hours at the library in a week and there’s a high demand for computers: “Twenty to 25 inmates trying to use five computers over a two-and-a-half-hour period. Not much time for each inmate, assuming the inmate even knows how to utilize the software.”
Print is dying in the digital age — and it’s having a significant impact on how prisoners access court.
Prison law libraries are going digital to cut costs. Large text collections, libraries and legal assistants are being replaced by computer kiosks with custom-tailored subscriptions to LexisNexis or Westlaw. Currently, 45 state prison systems and the federal Bureau of Prisons contract with an electronic legal database company, up from nine states a decade ago, according to an investigation by The Crime Report.
While there are some obvious benefits to digital materials — case law is updated easily and inmates can’t rip out pages from of a computer — dumping print materials and human legal aid for a digital subscription has added a barrier to access and weakened prisoners’ ability to pursue their cases. The switch to digital has created a logjam for information and made it easy for prison systems to provide a bare minimum of resources to inmates.
“It’s certainly not a level playing field,” said David Shapiro, director of the MacArthur Justice Center at Northwestern University. “The principal problem is that the creation of digital access is used to undermine print access and what’s available digitally doesn’t necessarily mean everything that was available in print.
“Often it’s a real narrowing of what’s available and it’s pretty narrow already.”
Through interviews with prisoners, attorneys, scholars, librarians and other stakeholders — as well as a review of policies in every state and information provided to this reporter from every state DOC — TCR’s investigation reveals a system where inmates are desperate for legal materials and assistance, but regularly hit roadblocks and have little legal recourse to fight back.
Better access to legal materials would have a significant impact on correcting sentencing errors, revealing wrongful convictions and serving as a check into dysfunction and abuse in the nation’s prisons, inmates and advocates told TCR.
“An awful lot of legitimate grievances go unresolved because of the difficulty in accessing the courts and that’s really a tragedy for our society,” said Donna Leone Hamm, a retired lower court judge in Arizona who now runs the criminal justice reform non-profit Middle Ground Prison Reform.
1996 was a big year for prison law libraries.
That year, the Supreme Court decided in Lewis v. Casey that “prisoners did not have a “freestanding right to a law library or legal assistance.” The decision limited a previous Supreme Court ruling from 1977, Bounds v. Smith, which said prisoners’ constitutional right to access courts required prisons to assist inmates in filing legal papers through libraries or trained legal professionals.
Since Lewis, it’s been a free-for-all.
Idaho sold its legal collection on eBay for $100 and Iowa tossed its books into the prison courtyard to rot. In the 22 years since that decision, there’s been a mishmash of methods of providing inmates access to courts from behind bars, with most states jumping to cheaper options as they become available.
A year after the decision, South Dakota eliminated its prison law libraries and contracted an attorney and paralegal to assist inmates with legal matters. According to state corrections authorities, it was cheaper than maintaining those heavy (and pricey) law books.
Jump ahead 20 years and it’s now cheaper to buy a customized subscription to an electronic legal database, so the South Dakota Department of Corrections in September ended its contract with the attorney, and contracted LexisNexis for one-year at a cost of $54,720 (far less than its $135,400 legal aid contract).
Newspaper editorials and prisoners’ rights advocates immediately questioned the move. Can tablets or touch-screen kiosks with LexisNexis replace human legal assistance and still fulfill prisoners’ constitutional right to access courts?
The law says it’s OK.
Because of Lewis v. Casey, it’s nearly impossible for prisoners to prove a prison’s lack of resources hindered their access to court, which is why similar lawsuits are routinely tossed. Essentially, the ruling meant prisoners must prove in court that inadequate legal resources hindered their access to court — which prisoners and scholars have criticized as a paradox.
Inmates in South Dakota are indeed suing, with complaints about faulty equipment and the need for human legal aid hindering their access to court. Lawsuits like this are filed regularly in courts across the country alleging similar problems: time restrictions, limited materials, inadequate library staff and retaliation from prison officials for filing lawsuits. But because of Lewis, they are routinely tossed.
While the switch from physical books to digital databases might seem to make it easier to get more legal materials to prisoners, in many states it’s had the opposite effect.
Unlike typical LexisNexis or Westlaw subscriptions at state law libraries or in legal offices, terminals with electronic legal databases in prisons are not connected to the Internet. Instead they are computer terminals or touch-screen kiosks with DVDs or hard drives loaded with a customized list of resources and case law that is updated every month or so.
LexisNexis still provides physical books to some prison systems, but such printed materials are slowly disappearing. LexisNexis formed a corrections division in 2008 dedicated to prison sales.
“When we started this division it was 90 percent print,” said Kevin Taylor, LexisNexis’ account manager for Eastern and Central United States. “Now it has completely flipped, 90 percent of our customers are using something electronic.”
As prisons go digital, they typically stop updating their print books or discard them. While it’s more reliable to get updated case law or statutes through one of these databases, inmates complain it’s created a logjam for information.
In the past if a dozen inmates needed different books, they could all work at the same time by ordering them individually from the prison librarian. But now there are lines to get on one of the computer terminals or kiosks.
One state, Oklahoma, actually decided to keep its old books because it helps free up lines at their Westlaw terminals. LexisNexis’ Taylor said they recommend one terminal for every 100 or 125 inmates, but “there are no regulations that we are aware of” and depends entirely on what a state wants to spend.
To make matters worse, the number of texts available to prisoners is shrinking as prisons go digital.
Prisons ask the legal database companies to tailor their digital collection to include only materials they are required to have (required materials vary by state and often created by law or court opinion). Decades ago, some prison libraries had collections that rivaled law firms and included books donated from schools, lawyers or non-profits.
That’s largely gone now.
“We have this conversation with administrators all the time,” said LexisNexis’ Taylor. “There really is a bright line in the sand in what you have to have and what would be nice to have.”
For example, a common suit filed by prisoners is a habeas corpus petition based on ineffective assistance of counsel. To pursue this claim, a pro se litigant might need to understand police procedure, jury selection or scientific evidence like DNA. Whereas articles or books on these topics are readily available online or at public law libraries, it’s rare to find them in the custom-tailored legal database subscriptions.
“…the prosecution has experts available to help prepare their cases, medical doctors, biomechanical engineers, psychologists, etc. The pro se litigant? He gets a boilerplate form to fill out and copies of case law. Good luck,” the Florida jailhouse lawyer O’Bryant wrote to The Crime Report.
O’Bryant argued the Antiterrorism and Effective Death Penalty Act (AEDPA) — which created a one-year time limit for prisoners filing federal habeas corpus petitions — causes inmates to race against a ticking clock and it’s nearly impossible to file meaningful suits with a never-ending series of obstacles in accessing the legal information they need.
He’s not alone.
“You never get enough time,” Lorenzo Johnson wrote to The Crime Report from a Pennsylvania prison before eventually getting released after fighting his conviction for 22 years. “You have to submit a prison request slip two weeks in advance for sessions. If you’re lucky, you might receive three sessions tops a week for two to two-and-a-half hours a session.”
While most legal research from behind bars has gone digital, the actual filing of lawsuits is still very much in the paper world.
Nevada is currently conducting a pilot program that allows inmates to file conditions of confinement cases electronically, but typically inmates get paper, a pen, an envelope and postage. They fill out forms by hand — or copy the forms by hand from a computer before filling them out — and send them to court through the mail.
Getting to that point can be challenge.
Regulations vary state to state. For example, Hawaii’s prison policy only guarantees inmates at least three hours per week at the law library, with “the possibility” of three additional hours if an inmate has a verified lawsuit in court. Nevada allows inmates one pen per month. Pennsylvania charges $1.50 for a copy of a government form. Few state prison systems employ actual librarians to assist inmates.
The Crime Report found only eight state prison systems that employ librarians with Master’s degrees in library science to assist inmates.
For the most part, legal assistance is provided by fellow inmates who take a class and work as “inmate law clerks.” Vermont even trains inmates to serve as ILLs, or “Inmate Law Librarians.” If you’re lucky to know a jailhouse lawyer, that can help. But states like Florida or Utah have bans on inmates possessing another’s legal materials, making it difficult for inmates to assist others.
Aside from lawsuits, prisoners have fought back in other ways. In 2013, 29,000 California inmates went on hunger strike. They were protesting solitary confinement, but included “more access to the law library” in their list of demands.
New Jersey inmates won a small victory in 2015 when they successfully petitioned the state prison system to lower the cost of photocopying legal materials from 10 cents per page to 5 cents per page.
Courts are supposed to give additional leeway to handwritten pro se lawsuits. But it’s not always that nice.
“The basic thing is that most judges regard these people as kind of trash not worth the time of a federal judge,” former 7th Circuit Court of Appeals Judge Richard Posner told The New York Times last year after announcing he was retiring so he could dedicate his life to helping pro se litigants.
Librarians to the Rescue?
“Before I came along our letters from inmates would go in the trash,” says Elizabeth Johnson, a reference librarian and professor at Wake Forest University.
In 2013, Johnson started the Prison Letters Project, a pro bono program where law students field requests for legal assistance from North Carolina prisoners. Students send copies of case law, articles or chapters of books. Everything they send to prisoners is freely available online, like Google Scholar or the North Carolina state website that has a copy of state law and statutes.
“I see it as a librarian’s civil duty,” she says of the project. “I, personally, felt a strong conviction to help assist inmates in their information needs as a part of access to justice, bringing legal information and access to courts to those who are under-served and unable to access these materials.”
In recent years, other librarians have started similar programs to assist inmates and the American Association of Law Libraries (AALL) maintains a list of every program in the country.
A few years ago, Sara Gras, then a law librarian at Georgetown Law, saw a demand for legal materials from prisoners and overhauled their program to allow requests from every state. Over five months in early 2015, they received 610 requests from prisoners across the country and continue to field requests.
“People ask me if I’m ever concerned [that] I’m helping guilty people get out of prison and the answer is no,” she said at a conference sponsored by the AALL on how librarians can support requests from prisoners.
“What we are doing through these types of programs is providing an opportunity for those who cannot afford good legal representation to stand up for themselves and make a case for their rights, according to the same policies and procedures that those who are more economically advantaged have access to.”
“This really matters to me as a lawyer, as a librarian, as a person.”
This story was made possible through the generous support of a Freelance Fellowship grant from Investigative Reporters & Editors (https://www.ire.org/). Adam Wisnieski is a freelance reporter based in Connecticut and a contributor to TCR. You can follow him on Twitter @adamthewiz. He welcomes comments from readers.