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thesis entitled

LEGAL ACCESS FOR PRISONERS: AN ASSESSMENT
OF THE LEGAL CONSTRUCTION OF REALITY BASED
ON CRITERIA MANDATED BY THE FEDERAL COURT
OF THE WESTERN DISTRICT OF MICHIGAN

presented by
DONALD KALL LOPER

has been accepted towards fulfillment
of the requirements for .

MASTER OF SCIENCE degree in CRIMINAL JUSTICE

 

 

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1/” WWW“

LEGAL ACCESS FOR PRISONERS: AN ASSESSMENT OF THE LEGAL
CONSTRUCTION OF REALITY BASED ON CRITERIA MANDATED
BY THE FEDERAL COURT OF THE WESTERN DISTRICT OF
MICHIGAN.

By

Donald Kall Loper

A THESIS
Submitted to
Michigan State University
in partial fulfillment of the requirements
for the degree of

MASTER OF SCIENCE
School of Criminal Justice

1998

ABSTRACT
LEGAL ACCESS FOR PRISONERS: AN ASSESSMENT OF THE LEGAL
CONSTRUCTION OF REALITY BASED ON CRITERIA MANDATED
BY THE FEDERAL COURT OF THE WESTERN DISTRICT OF
MICHIGAN.
By

Donald Kall Loper

This thesis uses social construction theory to examine the issue of inmate access
to the courts. Through an examination of relevant case law and statutes, this thesis
establishes the current construction of prisoner access to the courts. Because the case law
and thus the legal construction of reality vary from jurisdiction to jurisdiction, this thesis
uses only mandatory authority and persuasive authority with direct relevance to a
precedential case in the Western District of Michigan. This resulting statement of reality
is compared to an examination of prisoners (N=1715) screened for impairments defined
by the Western District. The resulting comparison shows that 468 prisoners have some
form of impairment that could impair the inmate’s ability to achieve meaning access to
the courts. During the six months examined in this thesis, 38 of these impaired inmates
presented a meritorious claim.

The methods used in this thesis include a combination of quantitative categorical
data with a qualitative analysis. The screening for impairment was conducted by the
Michigan Department of Corrections pursuant to an order from the Court of the Western
District of Michigan. The screening combined interviews, review of records, educational

assessment, and clinical evaluation.

ACKNOWLEDGEMENTS

The author would like to gratefully acknowledge the assistance and guidance of the
following (in chronological order):
Michigan Department of Corrections and Specifically
The Special Administrator of the Executive Division, Nancy Zang
The staff of the Michigan Reformatory and specifically
The Warden of the Michigan Reformatory, Pamela Withrow
The Legal Writer Project Staff and Inmate Legal Writers
The thesis committee who have risen above the call of their respective duties to help me

complete this work in an academically acceptable form.

iii

TABLE OF CONTENTS

LIST OF TABLES .......................................................................................................... vi
INTRODUCTION ........................................................................................................... 01
Introduction to the Issue ...................................................................................... 01
Introduction to the Theory .................................................................................. 03
Introduction to the Research ............................................................................... 06
LITERATURE REVIEW ................................................................................................ 10
Applicability of the Theory ................................................................................. 10
Prior Applications of Social Construction Perspective ....................................... l4
Substantive Sources ............................................................................................ 22
The Basics of Prisoner Litigation ........................................................................ 24
Burden to the Courts ........................................................................................... 25
Background of the Instant Cases ......................................................................... 26
Legal Issues ......................................................................................................... 28
Access to the Courts in Michigan ....................................................................... 32
Legal Access after Lewis v. Casey ...................................................................... 36
Typology of Assistance in Access to the Courts ................................................. 40
The Effect of Legislation on Prisoner Access to the Courts ............................... 42
DATA COLLECTION .................................................................................................... 49
Mandate for Data Collection ............................................................................... 49
Method of Data Collection .................................................................................. 49
Method of Quality Assurance in Data Collection ............................................... 51
PRISONERS IN NEED OF SPECIAL ASSISTANCE .................................................. 55
Eligible Prisoners ................................................................................................ 55
The prisoner cannot read and/or write at or above the ninth
grade. ...................................................................................................... 56
The prisoner lacks the intelligence necessary to prepare
coherent pleadings ................................................................................... 58
The prisoner possesses a learning disability that would
hamper him from filing coherent pleadings. ........................................... 59

The prisoner possesses a physical or mental impairment

that prevents him from using a law library to prepare and

file a coherent pleading. ......................................................................... 59
Prisoners in segregation with court deadlines that are not

able to prepare a timely and coherent pleading with

materials available within the segregation unit. ..................................... 6O
Qualifying Prisoners ........................................................................................... 6O
Eligible Requests ................................................................................................ 61

iv

DISCUSSION ................................................................................................................. 64

The Construction of Prisoner Access to the Courts ............................................ 65

Ability of Prisoners to Vindicate the Right of Access ........................................ 66

Steps and Deadlines of a Typical Inmate Suit in Michigan ................................ 67

Policy Implications for the Michigan Cases ....................................................... 69

Conclusion .......................................................................................................... 75
APPENDIX A

Simplified § 1983 Form ...................................................................................... 80
APPENDD( B

Screening Criteria ............................................................................................... 83
APPENDIX C

Intake Screening Form Legal Access Project ...................................................... 85
APPENDIX D

Annotated Michigan Post Conviction Remedies Time Line .............................. 86
REFERENCES

Works Cited ........................................................................................................ 89

Case law Cited .................................................................................................... 93

General References ............................................................................................. 94

LIST OF TABLES

TABLE 1, Typology of Inmate Access to the Courts
TABLE 2, G.E.D. Criterion

TABLE Three, T.A.B.E. Locator

TABLE 4, T.A.B.E. Battery

TABLE 5, Special Education Criterion

TABLE 6, Medical or Mental Health Criterion
TABLE 7, Eligible Requests

TABLE 8, A Typical Inmate’s Path to Habeas Corpus Relief

vi

INTRODUCTION

Introduction to the Issue

Since the introduction Of prisons in the United States, the courts have maintained
a “hands off” policy toward corrections. The “hands off” doctrine essentially precluded
intrusion into the realm of prison official’s expertise by the courts except in the most
extreme cases (Cripe, 1997). During the 19603 and 19705, the civil rights movement in
free society entered the prisons. Prisoners began demanding basic Constitutional rights,
and the courts began the gradual expansion of the rights of prisoners. The “hands off”
doctrine rapidly evolved, through a series of progressively intrusive decisions, to a
standard that required correctional officials to justify policies that restrict Constitutional
rights. For example, prison officials can rightfully restrict an inmate’s Second
Amendment right to bear arms. However, a prison official cannot restrict an inmate’s
right to freedom of religion without demonstrating how the practice of that religion
interferes with legitimate correctional goals such as security or rehabilitation. This
evolving standard of treatment has caused considerable change in the prison environment,
and this change has been the subject of research by social scientists. Much of the
literature on prisoners’ rights notes these changes in a historical sense, but leaves analysis
of cause at the strictly legal level (Palmer, 1991; Sulivan, 1975). By limiting the analysis
to the abstract right of access to the courts, this thesis examines a Specific legal fiction of
corrections that illustrates the mechanism of the legal construction of reality in
corrections. For the purposes of this thesis, ‘legal construction’ refers to the products of

the judiciary rather than the legislative branch.

A review of the literature on prisoners’ rights suggests that the study of the
mechanism of change has been deferred to legal analysis rather than social scientific
analysis (Barkin, 1968; Palmer, 1991; Pollock, 1997). Under conventional structural
frameworks, legal analysis was sufficient. Given a structural framework, this seems most
reasonable. For instance, a prisoner challenges a policy. If the courts uphold the
challenge, an order is issued to remedy that policy. There is little opportunity for
examination beyond understanding the law and how the agency implements the court’s
order. All of the issues involved are decided on their legal merits with no recourse to
empirical study. This fact presents a considerable challenge to establishing an
understanding of prisoners’ rights outside of a strictly legal context. To meet this
challenge, this work will use legal scholarship to define and establish the phenomena to
be studied and borrow standards already established by the courts. However, this
analysis departs from standard legal research in that it explicitly acknowledges the legal
fictions that produce rights and the nature of those rights as socially constructed

phenomena.

In the broadest terms, the construct of interest in this thesis is prisoners’ rights.
Rights can be granted by the Constitution, by statute, or case law (Palmer, 1991).
Political theory describes the way in which these rights come into being (Tushnet, 1982).
Legal theory describes the definition of rights in the court (Eastman, 1988). Social
science usually reserves analysis for the effects of these rights (Alpert, 1982). In this
work, social construction is used to explore the mechanism of the creation of a legal
fiction and its evolution into legally mandated reality without attempting to artificially

separate legal cause from empirical effect. Since it is beyond the scope of this thesis to

2

examine all Of the rights granted to prisoners, the specific construct of interest must be

restricted to a single right.

Along with several rights enjoyed by the free world population, prisoners have
been granted rights that are unique to an incarcerated population. These rights are often
meta-rightsl that are required to make use of other rights. Other such unique rights serve
to protect prisoners as a population that is particularly vulnerable to abuse by the
government. Access to the courts is an example of such a “meta-right.” The right of
access to the courts does not appear in the Constitution or in Federal statute; however, the
courts have cited a loose interpretation of several amendments to justify it. Without
access to the courts, the prisoner’s sole recourse to vindicate other rights is the
benevolence of the institutional Officials or help from an outside, ex parte, action. AS

such, all other rights of prisoners are subsequent to access to the courts.
Introduction to the Theory

This unique “priority” among rights makes access to the courts an excellent basis
from which to explore the mechanism by which prisoners’ rights are created and defined
and the legal fictions upon which they are based. Recent developments in the right of
access to the courts actually emphasize this point by requiring the courts to look outside
of the courtroom to assess the adequacy of rulings regarding the right. Briefly, the right
of access requires that all prisoners be able to bring non-frivolous complaints to the
courts in such a manner that they are recognizable and meet minimum standards of legal
procedure. Formerly, the Supreme Court had ruled that access to a law library and non-

interference on the part of prison officials assured adequate access to the courts. The

development of this meta-right illustrates the court’s role in creating legal reality. Social
science can expand understanding of this phenomena using Berger and Luckmann’s
(1966) formulation of social construction. In Bounds v. Smithz, the Supreme Court
mandated a particular construction of the reality of the right of access to the courts in
stating that a law library and non-interference was sufficient to allow access to the courts.
From the time of the ruling until it is expanded or overturned, it is reality for all cases
involving access to the courts. For years Bounds produced subsequent reality in policy
and mechanisms for challenging conditions of confinement. Recent developments in the
debate surrounding access to the courts call into question the adequacy of the old
standard in providing access for inmates unable to make use of the law library for reasons
of policy or impairment on the part of the inmate. The construction of adequate access

has been challenged with the empirically verifiable presence of impairment.

Social construction perspective seems ideally suited to any discussion of the legal
system. Law is a construct of the society in which it exists. It has an existence and
impact on the members of society regardless of their feelings or even their knowledge of
the law. A review of the literature shows that there has been no specific development of
the conceptualization of law as a social construct as defined by Berger and Luckmann
(1966). It may seem almost self-evident that law is created by society, but theories
regarding natural law and variations of religious law Show that it may not necessarily be
so. Natural law proposes a Platonic archetype of law and freedom which civil law
approximates (Rousseau, 1954-1763; Locke, 1964-1698). These natural laws and rights
associated with them simply exist. Man discovers these laws by applying reason to his

native moral sense (Black, Nolan, & Nolan-Haley, 1990). Religious law is by definition

4

derived from a supernatural source or earthly agency of a supernatural force (Black,
Nolan, & Nolan-Haley, 1990). While there has been no specific development of law as a
social construct per se, many authors have used constructionism to model the workings of
criminal courts (McConville & Mirsky, 1995; Jacobs & Fuller, 1986; Ryan & Alfini,
1979). Others have used constructionism to redefine legally recognized statuses into
more meaningful descriptions. Gender and sexuality in the context of punishment and
social control are explored as legally defining variables in corrections and punishment
predating formal corrections (Brown, 1995; Eigenberg, 1992). Mental illness, another
status with legal Significance, has been reconceptualized or critiqued using a
constructionist perspective (Pfohl, 1976; Scheid & Teresa, 1993; Warren, 1979). In all,
the literature shows a rich method for the exploration of complicated social variables and
their use in the legal process. The literature does not Show a direct analysis of law as a

social construct and the meaning attached to rights granted by law.

The law offers a well-defined and documented construction of reality. Using this
feature of law, this work first defines the legal reality of access to the courts through a
review of case law and law review articles. This analysis culminates in a statement of
current law regarding access to the courts for prisoners. From this assertion of legal
reality, the question of impairment among the inmate population is introduced and
established as a challenge to the accepted legal realities of the issue. Rather than relying
on the court to repair or reconstruct the reality of access through a ruling, this thesis
develops an empirical assessment of the legal fiction of inmate access to the courts. The
entire population of a close security prison is screened for impairments that preclude

access to the courts under the standard of law libraries and non-interference. It is beyond

5

the scOpe of this work to provide an empirical validation of the standards of impairment;
thus, the reality of impairment established by the courts will be used to define
impairment. The findings of this screening are discussed in terms of constructionism and
in terms of policy intervention based on an understanding of the construction of the issue.
It is hoped that analysis based on an established social science theory rather than simply a
legal analysis will yield a deeper understanding of the process by which this right and
rights in general are created. Further, this new understanding should provide an
innovative solution to old policy problems. Having established the proposed mechanisms
by which this thesis will examine the issue of prisoner access to the courts, there remains
only the setting or case that acts as a basis for this inquiry.
Introduction to the Research

In crafting a decision, the judge must act as if the available (and allowable)
information is a sufficient basis for a rational decision. In the Knop case, as in many
others, the court was forced to rely on two sources of conflicting information- the parties
to the case. Although the court’s decision is considered to be well crafted by appellant
and appellee alike, it is hampered by the process that created it. The decision of the court
is the authority on the legality of a question, but the court cannot reliably address the
effect of a decision upon reality. In this case, the ultimate question, as defined in Bounds
is "meaningful access" with the additional requirement Of providing that meaningful
access to all prisoners regardless of impairment or literacy. The true measure of this goal
is not whether the parties are satisfied or whether the letter, or even the spirit, of the law
is fulfilled; rather, it is whether prisoners have actually achieved meaningful access to the

courts. Based on this understanding, it seems that social science research is the most

6

appropriate method to explore whether meaningful access is a reality or just a legally
viable fiction.

It sometimes falls within the power of the judge deciding a civil case to order just
such an examination. The research presented in this work represents the results of that
examination. The interim decision of the Knop court required that the Michigan
Department of Corrections conduct a six-month pilot program to determine the
applicability of the proposed system of assistance to specific classes of prisoners. This
pilot program allowed an unprecedented level of data collection. However, it must be
stressed that the pilot program did not determine if effective assistance could be provided
by the system created. That point was determined solely on legal merits. As the
respondent to the actions brought by prisoners with access to the court, the Michigan
Department of Corrections was not allowed to collect data about impending actions.
Such actions are protected by law from mandatory disclosure to the Department of
Corrections. In effect, such mandatory disclosure, necessary for proper research of the
question of effective assistance, would have violated other, more concretely established
rights of the claimant prisoner. Thus, the research could not directly measure the
effectiveness of inmates seeking access to the courts because the state could only be
aware of successful claims, not the ones that were dismissed or were never made.

Based on the needs of the Michigan Department of Corrections and the order of
the Knop court, the pilot program evaluation3 addressed four basic questions. 1) How
many prisoners in the plaintiff class are actually eligible for Special assistance? 2) Under
which categories are they eligible? 3) How many eligible claims will this group present

during a six month period? 4) Can enough prisoners be trained to provide such assistance

7

in a manner acceptable to the Knop court and the Michigan Department of Corrections?
To the Court, the pilot represented a chance for adversarial parties to make specific
attacks and defenses based on the facts of the pilot rather than courtroom speculation. It
was the avowed intention of the Court for the pilot to provide the basis for a compromise
on details of the wholesale implementation of a program of assistance.

This thesis is intended to present the findings of the pilot to a wider audience in an
attempt to begin to fill in the lack of information available in the social science literature
base regarding prisoner access to the courts. Social construction perspective is best
suited to examine the relationship between legally constructed reality (i.e., the law
regarding access to the courts) and obdurate reality (i.e., the characteristics of prisoners
which may render them unable to exercise legally constructed rights as understood by the
courts). An added benefit of social construction perspective is its ability to define non-
dichotomous concepts and explain the relationships between such variables without
redefining the issue out Of context or artificially impose crisp distinctions. Specifically,
this thesis will use data on prisoner impairments collected in the natural setting to prove
that there is significant disparity between the legally constructed right of access to the

courts and the ability of impaired prisoners to achieve equal access.

 

Endnotes for Chapter 1, Introduction

' The term “meta-right” addresses the concept of a right that facilitates other rights with
real world application. For instance, the right to due process applied only in conjunction
with a separate violation. All persons are not at all times entitled to due process; rather,
due process attaches to proceedings stemming from a real world cause.

2 Bounds v. Smith, 430 US. 817 (1977).

3 It must be noted that the court ordered data collection and evaluation referred to as the
"pilot program evaluation" does not conform to the usual social science notion of
program evaluation. The goal Of the program was the production of information for use
in court, not the work product of the legal writers or a direct measure of access to the
courts.

LITERATURE REVIEW

Applicability of the Theory

The law has often been explored by sociologists. Durkheim conceptualized law
as a viable means to distinguish the nature of societies in The Division of Labor in Society
(1893/ 1984). His first major work used the nature of laws, retributive or restorative, to
distinguish the type of solidarity that binds the particular society in question. Durkheim’s
work is typical of the sociology of law in that it uses law as an indicator of reality rather
than a studying it as a reality in itself. AS with the sociology of knowledge (the parent of
social construction) fixating on ideology, the sociology of law studies the actors, roles,
and even the effects of law rather than the process by which law creates realityl. The
actors involved in the process of law seek an outcome. It is understandable that their
interest would lie at a very utilitarian level. Actors play the role of advocate for lay
people with real world interests in outcomes rather than process, so long as the process is
deemed “fair” 2. Given this nature of the legal process, the obvious direction for
sociology Of law tends toward either structural functional or structural inequality analysis
of law. Not surprisingly, structural functionalists see the process as essentially workable
and seek to understand its workings, and conflict scholars steeped in structural inequality
examine the social control exerted by oppressive hegemonies upon vulnerable classes,
genders, and other minority power groups. Both groups assume that law is reality.

The structural functional framework provides an incomplete or idiosyncratic
understanding of law that may be internally consistent, but less than useful in
understanding law as a social construct. A procedural framework describes such an

understanding. Laws are created by courts or legislatures and enacted upon society by

10

the executive. This framework leads to questions of implementation at the expense of
understanding. Research in this framework is the leading form published in the criminal
justice literature base. Many works simply attempt to report the decisions of the courts
and explain the implications of those decisions to practitioners (Call, 1995; Cripe, 1997;
Palmer, 1991; Sulivan, 1975). The intent of these works is to facilitate the appropriate
implementation of the law rather than understand it. There is little if any development of
the effects that the given law will have upon society. Other sources take an instrumental
approach to understanding law. Simply put, laws are not the subject of study. Social
action produced by law is emphasized. An instrumental approach concentrates solely
upon the observable effects of law. Silberman (1992; 1994) addresses the relationship
between inmate violence and access to the courts as a means of dispute resolution. The
law and the mechanism by which it effects prisoners are not at issue. Silberman focuses
on the right of access to the courts as a means to redress grievances, which in turn

reduces tension among prisoners.

Conflict ideology and Marxist perspective provide extensive critique of the power
imbalance between keeper and kept. However, there is little material available for
conflict in power differentials within the walls of prison. Conflict based analysis
invariably turns to greater society as the breeding ground of power inequities which reach
their ultimate conclusion within the walls of prison (Lynch & Groves, 1989). There is no
specific treatment of prisoners’ right of access in the Conflict literature base, but more
general critiques of prisoners rights depict them as illusory and insufficient for social
justice. Although each of the preceding frameworks has merits, they do not address the

nature of law as a construct of society subject to the differing perceptions of opposing

ll

stakeholders (Palumbo & Petersen, 1994). On the surface conflict theory offers a similar
interpretation of the nature of law as social construct. However, Conflict ideology differs
in that it presents a static version of law controlled by dominant power groups. Social
construction unmodified by conflict ideology makes no static attribution of power. Thus,
analysis guided by social construction perspective is able to better interpret dynamic
power relationships such as those presented in the issue Of access to the courts litigation.
To address the operation of prisoners’ rights and by extension the operation of the rights
Of all persons, these other frameworks will be dispensed with in favor of a constructionist

framework.

Constructionist theory is based on the work of Berger and Luckmann in The
Social Construction of Reality: A Treatise on the Sociology of Knowledge (1967). In
Social Construction, Berger and Luckmann examine the “everyday knowledge” of our
common sense world. Actors construct interpretations of our environments and use these
to guide us through our everyday lives. This constructed reality goes unquestioned.
These assumptions of reality, thus, have the force of reality. We only become aware of
these assumptions when we are confronted with empirical inconsistency or Opposing
constructions of the same empirical event or phenomena. The courts demonstrate
construction of reality on a grand scale. Courts produce legal fictions that are binding
upon actors in the legal process. This happens with such regularity that we come to
accept these legal fictions as reality. This reality may be so evident as to fall into Berger
and Luckmann’s “everyday reality.” Since the assumption of legal fiction’s reality goes
unexamined in the above-mentioned frameworks, there is a gap in how the reality of law

is constructed. This gap indicates the need for empirical examination of the legal

12

construction of reality. Social construction perspective also facilitates a direct
examination of the empirical facts or obdurate reality underlying constructed reality.
Inconsistencies between these two realities plague structural examinations. Conflict
incorporates the inconsistencies but can only explain them as manifestations of power
differentials, essentially, blame without explanation of the mechanism.

Berger and Luckmann’s theory of the social construction of reality can be applied
to the legal construction of reality to fill this gap in our theoretical understanding of law.
Constructed realities have been a conscious part of the governance of society from the
earliest times. There are tantalizing hints at this fact in Plato’s The Republic. Although
Plato and Socrates do not specifically address the question Of “how do we know what we
know,” they make use of two specific arguments that indicate a deep understanding of the
implications of the question. Specifically, “the allegory of the cave?” and “the noble lie4”
(Plato, n.d./1987) both hint at an understanding of knowledge of reality as a derivative of
experience, thus subject to manipulation. Whether constructions benefit a caste of
priests, a philosopher king, or a Machiavellian prince, those in positions to create reality
for their subjects have been aware of the possibility of manipulation and at least
implicitly, the socially derived nature of reality. Modern law is no exception. This leads
to the research question of this work. Under the framework of the social construction of
reality, do the observable facts of selected court orders regarding the legal needs of
prisoners (mandates of emergent reality) indicate a reality of need separate from that
constructed by the judiciary? Having established the applicability of social construction
theory to this topic, a review of prior works using this theory is informative to

demonstrate the application of the theory in practice.

13

Prior Applications of Social Construction Perspective

A review of the literature reveals that social construction has been used to model
the workings of criminal courts (Jacobs & Fuller, 1986; McConville & Mirsky, 1995;
Ryan & Alfini, 1979). Unlike the prior research using social construction perspective,
this thesis examines law itself as a social construct. The possible inquiries based on this
application are virtually limitless. Social construction is free of political ideology; thus, it
can be applied to any situation where law produces an impact on social reality. Other
perspectives that come with political ideology tend to be self limiting by only addressing
their niche. For instance, conflict theory could not properly address instances in which
the law is used to protect the interests of the lower and working classes. Social
construction could examine the use of law as a reality unto itself and be free to determine
whichever result presents itself without undercutting its ideological base. Thus, political
conflict through law can be examined without attribution of motives which consistently
form the basis of debate in politically value laden works. Narrowing the scope of
inquiry, other applications of prisoners’ rights law as a social construct could deal with
law as a final arena of conflict available to prisoners against corrections staff. Silberman,
(1992; 1994) approaches this conflict atheoretically, but it is an obvious application for
an examination of the social construction of reality. Two power groups (prisoners and
correctional officials) are attempting to assert their construction of reality. The binding
authority of the court will sanction one version and the other will become irrelevant.
Unfortunately, all of these topics cannot be pursued in this thesis. This thesis uses the
issue of prisoner access to the courts to provide a timely a meaningful application of the

broader inquiry into law as social construct.

14

The existing work using social construction does not address law as social
construction in itself. However, the implications of social construction perspective on
specific legal issues are clearly developed and provide a concrete application of theory to
fact.

McConville and Mirsky (1995) explore the social construction of legal processes
that are not addressed by law. Their study combines statistical data for 1986-1993 and
field observation (n=236) Of court room procedures dealing with guilty pleas by felony
defendants in New York. The authors posit that the court room “work group,” composed
of prosecutor, defense attorney and judge (Walker, 1993) constructs a reality of case
processing which legitimizes practices necessary to handle the flow of cases. Thus,
within the social construction of legal reality which punishes members of society for their
misdeeds in society (i.e., law) the authors identify another construction that punishes
defendants for hampering case flow in the court, independent of their actions in society
(i.e., sanctions for failure to plea). When stripped of the legitimacy of familiarity, the
practice of plea bargaining can be evaluated under the law which it subverts. The authors
fall short of analyzing law as a social construct but parallel their arguments about plea
bargaining to the law.

Jacobs and Fuller (1986) illuminate the social construction of a legal concept.
Their work explores legal versus extra-legal considerations in drunk driving cases
(n=498) in Maryland. The authors explore guilt and innocence in these cases as a social
construction. Guilt or innocence is determined by a courtroom social process, and the
nature of that process was found to influence the outcome of the trial. The authors did

not acknowledge law as a social construct but did deal with the introduction of empirical

15

facts (i.e., evidence) which parallels this work’s in the introduction of an inmate’s
impairment to the construction of the right of access to the courts. The study concluded
that extra-legal factors (e. g., gender, race, and income) influenced the determination of
guilt. In agreement with McConville and Mirsky above, the authors conclude that the
court provides its own construction of reality in dealing with guilt or innocence rather
than relying on rational legal factors (e. g., prior convictions & the severity of the
offense). Once guilt or innocence is determined (i.e., at sentencing), rational legal factors
have a stronger predictive value of the outcome. Here, social construction perspective
provides an avenue for analysis of facts that may be taken for granted in other
perspectives.

Ryan and Alfini (1979) also use constructionist perspective to describe the trial
judge’s role in plea bargains. At the time of their study, the judge was not considered to
play a prominent role in plea bargains. By using two national mail surveys (n=3775)
augmented by Observations and interviews with judges in fifteen states, the authors
established that the rational-legal role of the judge and the generally held understanding
of that role did not stand to empirical scrutiny. The authors describe a construction of
reality apart from the general understanding of the law and common courtroom practice.
As with the McConville and Mirsky (1995), the authors found that the courtroom work
group5 constructed a reality that considered extra-legal factors. In Ryan and Alfini
(1979) those were the judge’s perception of his own skill as a negotiator and case law

regarding judicial intervention in plea bargains6.

In all three of the works described above, the authors have used social

construction perspective to illuminate some complex working of the court system that

16

does not follow a rational-legal or instrumental perspective. To instrumental
perspectives, judges determine guilt or innocence under the law and extra-legal factors
predict the outcome. This understates the complexity of the trial. It would seem that
judges might just be flawed, prejudiced, or corrupt. By examining the outcome as a
social construction, the authors see the judge as a player in the construction of reality.
This perspective allows for examination of the processes by which the decision occurs,
rather than quantifying a “decision maker” or “decision point.” The broader perspective
of social construction allows consideration of complex intervention during the process of
the decision rather than an overly simplified action (e.g., demanding less emphasis on
extra-legal factors from the judge) to address an overly Simplified model of the problem.
The judge may not be aware of any single action that produces this effect. It can be
frustrating for policy makers and activists alike when they cannot force the “proper”
results. In this case, the empirical facts are accurate and reliable, but by examining the
process as well, the authors make recommendations beyond the usual identification of a

problem point and call for the self-evident solution,7 which never seems to work.

Aside from describing courtroom processes, social construction perspective has
also been applied to explore the meaning of legally recognized statuses. Gender and
sexuality in the context of punishment and social control are explored as legally defining
variables in corrections and control mechanisms predating formal corrections. The
authors pursuing the topic of the construction of gender and sexuality distinguish between
biological reality and social reality as it is enforced by the criminal justice system. In an
extreme example of a legally binding construction of reality, Brown (1995) describes the

trial of Thomas Hall in 1629. Hall was biologically neither male nor female. He was a

17

hermaphrodite, a person having the sexual characteristics of both. He had been raised as
a woman but changed his avowed gender to allow him to travel to the United States as a
servant. In the American Colonies, order maintenance was a primary concern of the
judiciary. In the interest of standards of community decency, Hall was assigned a gender
by the courts. In this article, the author examines a fundamental reality for an individual

being constructed by the court out of necessity.

Eigenberg (1992) applies social construction perspective to the issue of
homosexuality in prison. Although the author does not deal specifically with decisions of
the courts, the article warns of essentialist errors when defining complex situations.
Viewing the complex actions of humans in dichotomous categories can be misleading
and cause needless complexity in return for illusory precision. The issue of
homosexuality in prisons is obfuscated by an unnatural concentration of a single gender.
Heterosexual prisoners may engage in homosexual activities while prison. Science has
been forced to account for this behavior with a complex and unreliable theory of
situational homosexuality (Eigenberg, 1992). McNeill and Freiberger (1993) describe
this dilemma of definition in their work on Fuzzy Logic. Virtually all empirical facts can
be defined dichotomously. However, the meaning of that definition approaches
meaninglessness in reality as the case in point approaches the border between the two
categories. The ‘fact’ of homosexuality is really a socially constructed label (Eigenberg,
1995). The label is useful to the administration of prisons, and there is an official interest
in being able to define homosexuals with crisp labels. McNeil] and Freiberger (1993)
assert that the border cases, like the situational homosexuality described in Eigenberg’s

work, represent a failing of dichotomous definitions. When judgement must be used to

18

force an arbitrary category onto empirical fact, crisp logic is much more inaccurate that
fuzzy labels. Eigenberg suggests the use of social construction perspective to allow
inmates to define their own sexuality in more accurate terms. The reality of prisoners’
actions is more accurately modeled as a continuum of few homosexual experiences to
predominantly homosexual activity. The fact that the administration uses an inaccurate
crisp model of homosexuality enforces a construction of reality that labels a mostly
heterosexual prisoner as a homosexual. This attributed definition can follow the prisoner

and may even be internalized.

These articles (Eigenberg, 1995 and Brown, 1995) provide an illustration of the
binding nature of legal reality over obdurate biological fact and fundamental
psychological makeup. Social construction perspective is perfectly illustrated in the
Brown (1995) article because there was no dichotomous reality of male or female prior to
the decision of the court. Hall had been both male and female. He chose the gender that
was to his best advantage. After the court imposed legal reality, Hall was effectively
male to society. There is a similar, but less dramatic, parallel in the label of
homosexuality. The Eigenberg (1992) article provides a more subtle but also more
broadly applicable example in this day and time. Modern biology has crisp, if somewhat
complex, categories for gender, but there is no easy definition for sexuality. Many
people are unsure of their own sexuality. The power of the courts to impose reality on
issues as fundamental as gender and sexuality easily allows for speculation as to its
power over a judicially created right like access to the courts. Perhaps empirical realities

are ignored in the need for crisp definitions to satisfy the legal process.

Another legal status with profound effects for prisoners and free citizens is mental
19

illness. Courts have the power to declare citizens mentally incompetent and forcibly
commit them to psychiatric care. With this judgement, citizens can be forced to take
psychotropic medication. Prisons cannot force inmates to take medication. If an inmate
will not take medication, he or she must be under direct medical care to force it.
Variation in diagnostic practices and technique make any diagnosis questionable
(Adebimpe, 1981; Mendel & Rapport, 1969; Pfohl, 1976). Pfohl (1976) found that
construction of illness was more related to the theoretical orientation of the clinician than
any other factor, including the presenting problem. In this study, court-appointed
diagnostic teams evaluated inmates for necessity placement in the state’s maximum
security psychiatric hospital. This action came pursuant to a federal court decision in a
right to treatment case. Here the courts deferred to the expertise of psychiatric
professionals in deciding the status of inmate mental health. The diagnostic teams were
charged with constructing the legal reality of the inmate’s mental health. Pfohl
illuminates the process by which this reality is created and concludes that the legal status
of inmates is better left to a system of advocacy rather than the demonstrably flawed
diagnostic procedure. Diagnosis is the most obvious application of social construction
perspective, but other junctions of the legal system and the mental health system have

been examined with it.

Scheid and Teresa (1993) apply social construction perspective to an examination
of the court mandated outpatient commitment. The primary focus of the research was a
qualitative analysis of this alternative to commitment to a locked ward or psychiatric
hospital. The authors found that the most pressing issue to clinicians and patients alike

was the construction of a status vulnerable to more social control. Similarly, Warren

20

(1979) used social construction perspective to examine the legal construction of
dangerousness in mentally ill patients. In the setting of Warren’s study, involuntary
commitment required ‘dangerousness.’ Warren examined cases (n=50) in which persons
were committed. In only five cases was there any evidence or contention of actual
assault. Warren found that the construction of dangerousness used by the courts had no
empirical basis. In both studies, the authors found the construction of the patient’s reality
to be determined by legal processes. In both studies this legally mandated reality was
found to have profound effects on the person thus constructed. The determination of
mental illness illustrates another application of social construction perspective to the legal
construction of reality, but beyond that, it has particular bearing on the issue of inmate
access to the courts. Mental illness is one of the disorienting conditions thought to impair
inmates from adequately vindicating their right without assistance. Thus, the mentally ill
inmate is constructed as too dangerous or incapable of living in free society but under the
prevalent construction of the right of access to the courts unable to access assistance in

fighting that status or for other rights.

This literature base shows the applicability of social construction perspective to
occasions in which the legal system defines reality. The research cited here also
demonstrates a history of application in criminal justice and even correctional research.
There is no evidence that social construction perspective has been used to explicitly
examine abstract rights like access to the courts. This work intends to extend previous
research by using social construction perspective to examine the right of access. By
examining the right of access as a legal construction and applying empirical facts to the

rational legal understanding of the right, this work parallels earlier work specifically

21

targeted at the courts (e.g., McConville & Mirsky, 1995; Jacobs & Fuller, 1986; Ryan &
Alfini, 1979). This work also uses legally constructed definitions for which there is
ample support in the literature. The works described in this section provide the method
of application of theory to fact. The following section establishes the place of prisoner

rights in the criminal justice literature base.

Substantive Sources

The literature base used in the substantive preparation of this work is primarily
that presented in law reviews and case law surrounding the issue of prisoner access to the
courts. The general social science literature base on prisoners’ rights places emphasis on
the context in which rights are granted, but until this work, does not specifically address
the ability of prisoners, as a group, to make use of those rights. It is also hampered by a
reliance on procedural definitions rather than subjective understanding of the issue. The
spectrum of work on prisoners’ rights in general tends to deal with the existence of rights
and interpretations of those rights by the courts (Cripe, 1997; Palmer, 1991; Sulivan,
1975). The fundamental question posed by this research is; can prisoners exercise their
rights? As previously noted, access to the courts is fundamental to the vindication of any
right. The legal system of the United States is based on the ability of a plaintiff, prisoner
or otherwise, to bring a valid issue before the courts. The courts can then rule according
to the law. Obviously, inability to bring the claim to the proper venue precludes any
action of the plaintiff’s behalf. While the literature base covers the rights granted by the
Constitution and the court’s interpretation of those rights vis-a-vis successful challenges
of prison policy, there is little systematic review of the ability of a given prisoner to

vindicate a right already established. Without examining this issue, the reader must make

22

the assumption that an established right will be understood as the court intends and
respected by correctional administration.

By restricting the research question to the right of access to the courts, this thesis
can establish whether a minimal basis exists for prisoners to vindicate all subsequent
rights. The issue of access is not a decisive test of the rights of prisoners, but if the
Opportunity for access is established, it provides justification of the assumption of other
works related to prisoners’ rights. The findings of such works are meaningful in a
broader context, but fail to address specific questions about their assumption of access to
the courts. While a review of the general literature base regarding prisoners’ rights is
informative, a comprehensive review would be beyond the scope of this thesis. The
literature reviewed in this section has been restricted to that which facilitates a more
direct understanding of the issue of access to the courts. Published articles that mention
access to the courts tend to come in terms of moral imperatives (Forer & Menninger,
1980; McShane, 1987; Milovanovic, 1990), summation of case law (Call, 1995; Cripe,
1997; Palmer, 1991; Sulivan, 1975), the relationship between inmate violence and access
to the courts as a means of dispute resolution (Silberman, 1992; Silberman, 1994) or as
an underdeveloped section in a general work on prisoners’ rights (Murphy, 1973; Gilrnan,
197 9). The strength of these works, when taken as a whole, is that they place the issue of
prisoner rights in a context other that a mechanistic analysis of law. Although these
works contribute to the theoretical understanding of the issue, they do not provide
methods of inquiry or suggestions for operational variables with which to analyze the
issue. The criminal justice literature base provides broad indications of prisoner’s rights,

but fails to establish a sufficiently detailed picture of the problem. The framework

23

provided by social science in theory and direction of application is fleshed out with
substantive legal literature in the following sections. First is an orientation to the three
specific vehicles of prisoner litigation.
The Basics of Prisoner Litigation

The three primary actions filed by prisoners in Federal Courts are 1) Habeas
Corpus petitions, 2) Section 1983 actions, and 3) Claims under the Federal Tort Claims
Act. The Habeas Corpus and Section 1983 claims each have ‘facilitated’ mechanisms
that allow prisoners to submit simplified forms to raise an action. The mechanism also
includes broad discretion for the judge on which claims are meritorious. Typically,
prisoners are expected to complete a simplified form (see Appendix A). The Habeas
Corpus petition is most often used to challenge unlawful captivity or conditions that
amount to punishment. It has also become the plea of last resort for many inmates in a
variety of situations. Section 1938 and Federal Torts Claims Act actions both primarily
allow prisoners to challenge conditions such as actions taken against them by prison
officials or neglect of basic needs. The Federal Tort Claims Act allows for recovery of
damages against prison officials. Section 1983 challenges illegal or abusive actions taken
under color of law. These are the three basic vehicles for Federal Court action available
to prisoners. State prisoners are now required to exhaust all state and administrative
actions prior to bringing federal suit. Thus, there is an entirely separate set of procedures
that must be accomplished before many federal actions can proceed.

The use of these vehicles has caused considerable attention to be directed at the
topic of prisoner litigation. The following section explores the ramifications of prisoner

litigation for the courts. While not directly related to the ability of prisoners to vindicate

24

their rights, the topic of prisoner access tot he courts would be incomplete without a
treatment of the burden to the courts caused by prisoner litigation. Prisoner access to the
courts is indirectly effected by the perception of burden to the courts. This burden has
forced reconstruction of the right of access through the intervention of the legislature.9
Finally the burden of prisoner litigation usually falls directly on the federal district level
judges most directly responsible the enactment of legal reality.
Burden to the Courts

The Bureau of Justice Statistics reports that between 196610 and 1992 the number
of prisoner’s rights cases has climbed from 218 to 26,824 (Hanson & Daly, 1995). This
is evidence of the undeniable “up-surge” in prisoner instigated lawsuits. Turner (1979)
observes that most of these lawsuits are filed pro se, by the litigant without counsel, and
in forma pauperis, without filing fees due to the indigence of the litigant. This rapid
proliferation of lawsuits from untrained prisoners has placed a substantial burden on the
courts. Hanson and Daley (1995) note that 98% percent of the cases in their study of
Federal Habeas Corpus Actions were dismissed or denied on merits. Reasons for such
dismissals included: Failure to exhaust State remedies (57%), procedural default (12%),
failure to meet court deadlines or court rules (7%), issues not cognizable (6%), and abuse
of the writ (5%) (Hanson & Daly, 1995, p.17). All of these causes in some way reflect
the ability of the prisoner/petitioner to properly file a petition. The volume of Pro se
petitions has placed a burden on the courts that has caused delays in cases with merit
(Eastman, 1988). Further, rejection on procedural grounds does little good for the inmate
and may result in repeated resubmission of sub-standard work, thus further burdening the

system. On the assumption that at least some of these petitioners have valid claims, the

25

courts are unable to vindicate the rights of prisoners unable to file procedurally correct
petitions. The courts cannot draw cognizable claims from the flood of unintelligible or
procedurally incorrect claims.

Although the affirmative duty of corrections does not extend to solving the docket
problems of the courts, a program that assists prisoners in presenting valid claims would
also serve to reduce the flood of improper petitions. This research is of benefit to the
courts in that it provides a recommendation to departments of correction for
programming needed by inmates to present procedurally appropriate petitions. The
following sections are devoted to establishing the construction of the right of access in
the cases giving rise to the research in this thesis.

Background of the Instant Cases

On September 18, 1980, the plaintiff class in Hadix v. Johnson, filed a complaint
under 42 U.S.C. § 1983, alleging violation of their civil rights by the administration Of
the Michigan Department of Corrections. The plaintiff class comprised prisoners “who

are now or who in the future will be housed” at the State Prison of Southern Michigan’s

Central Complex (security level 4) in Jackson, MI.11 Hadix deals with out of cell activity
and access to the courts, but this work concerns itself with only the legal access portions
of the case. Hadix v. Johnson is an active case as of March, 1998, but the legal access
portion was remanded to the Knop court after a combined decision by the Sixth Circuit
12

Court Of Appeals.

On April 16, 1985, the plaintiff class in Knop v. Johnson, brought suit against the
administration of the Michigan Department of Corrections. The plaintiff class comprised

prisoners “who are or will be imprisoned” at: the State Prison of Southern Michigan

26

(level 4) in Jackson, MI; Marquette Branch Prison (level 4) in Marquette, M1; the

Michigan Reformatory (level 4) in Ionia, MI; and Riverside Correctional Facility (multi-

level) also in Ionia, MI. 13 Before a break up mandated in an unrelated federal law suit,
SPSM and the Central Complex were united with two other prisons as the world’s largest
walled prison. They are now physically separate structures. Knop presented multiple
issues, but this work concerns itself with only the legal access portions Of the case. The
legal access portions of Knop, as originally presented, concern the classification and
search Of legal mail and the adequacy Of the various prisoner legal access programs via
the institutional law library. Knop v. Johnson is an active case as of March 1998”.

On October 16, 1992, the Sixth Circuit Court of Appeals ruled on separate
decisions in each of these cases. The Sixth Circuit combined these cases on remand to
the Knop court. The decision of the Sixth Circuit affirmed the findings of both courts

that law libraries alone did not fulfill the Bounds requirement of “meaningful access to

the courts”15 for specific groups of prisoners unable to make adequate use of law
libraries. These groups include: non-English speaking prisoners, fimctionally illiterate
prisoners, prisoners with learning disabilities, physically impaired prisoners, mentally
impaired prisoners, and otherwise unimpaired prisoners unable to use the law library
because of segregated confinement. Judge David A. Nelson of the Sixth Circuit held that
some form of assistance was necessary beyond the Bounds standard (access to adequate
law libraries). However, the Court re-emphasized that the proper role of the courts is not
an active one. Both lower courts mandated overly intrusive remedies to the prisoners’
perceived lack of access to the courts and were reversed, in part. TO assure a uniform

decision, the legal access portions of both cases were remanded to Judge Enslen of the

27

Western District. Judge Enslen ordered the Michigan Department of Corrections to
submit a plan for a pilot program to identify and assist eligible prisoners in achieving
access to the courts. The Michigan Department of Corrections agreed to implement a
pilot program that identified eligible prisoners based on criteria determined, in part, by
the Court (with input by plaintiff attorneys) and, in part, by the Michigan Department of
Corrections. The pilot program provided assistance through specially trained prisoner
“legal writers.”

The federal courts have provided the following constructions of the issue of
prisoner access to the courts. Such cases informed the Knop and Hadix Courts as legally
binding precedent to their cases. The intention of these precedential cases is as important
a consideration in the cOnstruction of legal reality as the facts of the instant cases.

Legal Issues

Prisoner access to the courts:

Access to courts: Right of person to require fair hearing from judiciary. From Gilmore v.
Lynch, D.C.Cal., 319 F.Supp. 105 (Black, Nolan, & Nolan-Haley, 1990, p. 110).

‘Access’ [to the courts] which means getting the courthouse door opened in such a way
that it will not automatically be slammed shut on them [prisoners]. 6

The Supreme Court affirmed access to the courts as a specific right in Ex parte
Hull '7. Congress is forbidden to suspend the Writ of Habeas Corpus in the body Of the
Constitution”, but no specific requirement is made of the Executive Branch to provide
affirmative assistance to see that petitions are forwarded to the courts. In Ex parte Hull,
the Court denied the state’s demand to review all legal petitions before forwarding them
to the courts as undue interference with the operation of the Writ of Habeas Corpus. That
simple protection became the first tangible right of access to the courts. Since that

decision, a number of other decisions have expanded the state’s obligation to provide, not
28

just allow, access to the courts. The Supreme Court has cited the Due Process Clause19 of
the Fourteenth Amendment, the Equal Protection Clause”, and the Right to Petition for
Redress of Grievances” of the First Amendment as a constitutional basis for the right.
Interestingly, the landmark decision in access to the courts for prisoners does not provide
Constitutional authority for the mandate; the Court is Silent as to legal reasoning in
Bounds”. While there have been numerous sources cited as supporting the right of
access to the courts, there are no direct statements in the Constitution that explicitly grant
it; however, case law has been firmly established that grants some form of access to the
courts for prisoners.23 In these cases, disputes over access to the courts are most often
fought over the implementation of the right as opposed to disputes of its existence.

In 1941 , the Supreme Court created prisoners’ right of access to the courts by
interpreting Article One, Section Nine, of the United States Constitution to guarantee all
prisoners the right to petition for a writ of habeas corpus without interference from prison
officials. Hull, a prisoner at the State Prison of Southern Michigan, was unable to file a
petition for a writ of habeas corpus because Michigan had a regulation requiring petitions
from prisoners to be reviewed for accuracy and quality before forwarding them to the
courts. After successive attempts to file for the writ, Hull’s petition was filed ex parte by
a relative and taken up by the Supreme Comt. The Court ruled that the state could not
block a prisoner’s petition for the Writ. This decision marked the end of the “hands off”
policy for prison cases in federal court. It also marked the beginning of a right.

Although the verbiage had existed since 1789, Ex Parte Hull established that the right of
access to the courts applied to prisoners. This right was constructed by an action of the

courts“. To paraphrase Berger and Luckmann (1966), a social reality must be reaffirmed

29

in daily life until it achieves the status of common sense. Although Hull may not have
been instantly embraced by prison officials at all levels, allowing prisoner to file petitions
of habeas corpus soon became a matter of everyday life in prisons, if not an everyday
occurrence. The reality of prisoner access to the courts, which had no existence before
Hull, began to effect all prisons and prison official. It would be inappropriate to analyze
this effect as if the right had always been there. Such an analysis quickly lends itself to a
spurious conclusion of conspiracy on the part prison officials to deny prisoners their
rights25 . The reality of the Hull decision and prisoners’ right of access to the courts has
been reaffirmed in subsequent cases.

In 1969, the Supreme Court extended the right of access beyond the decision in
Hull, but for similar rational. Johnson v. Avery26 continued the protection Of the Writ of
Habeas Corpus, but constructed a new right of access by prohibiting prison
administrators from restricting legal assistance among inmates. Johnson, a prisoner in
Tennessee, was accused Of violating a prison rule prohibiting inmate assistance to other
inmates in the preparation of legal materials. His challenge to this rule was upheld by the
District Court, but denied by the Sixth Circuit. The Supreme Court found that in the
absence of other methods for illiterate prisoners to file petitions for the Writ of Habeas
Corpus, prison rules could not prohibit inmate legal agreements. This was one of the first
substantial intrusions into prison official’s authority. “Johnson v. Avery. . .can be noted
as a leading part of the abandonment of the ‘hands-off’ doctrine in the 19608” (Cripe,
1997, p. 87). Johnson has a prominent position in inmate litigation because of its role in
weakening the “hands-off” doctrine, but it is relevant to this work because it is the first

Supreme Court case that introduces a challenge to the construction of access. The “hand-

30

off” doctrine was defeated by challenging the construct the right of access with the fact
that illiterate prisoners could not make use of it. This conflict forces the Court to
reconstruct the right of access to include help from other inmates.

In 1971 , the Supreme Court rendered a decision that first established the duty of
the state27 to take affirmative action to guarantee the right of access to the courts to
prisoners.28 In Younger v. Gilmore, the Court affirmed a California District Court’s
decision that granted prisoners access to all means which are required to get a fair
hearing.29 Three important conclusions can be drawn from this decision: 1) the Court
envisioned a proactive responsibility borne by the state to support prisoners’ right of
access, 2) the Court did not intend a continuing Obligation to render aid to the prisoner
after his or her petition was accepted to the pleading stage, and 3) there was no specific
operational requirement attached to guide departments of correction so there would
necessarily be more such cases.

Numerous subsequent cases in the lower courts dealt directly with the issue of
access to the courts, but it was not until 1977 that the Supreme Court finally attempted to
address the issue concretely. Bounds v. Smith30 firmly asserted the Court’s desire to place
the burden of affirmative measures on the state. In this case, the Court pushed beyond
the minimum standard of prisoner legal assistance enunciated in Johnson v. Avery31 to
satisfy the requirements of “meaningfirl access” to the courts. The Court rejected the
petitioner’s (North Carolina Department of Corrections) claim that their constitutional
duty ends with keeping prisoner legal agreements free from unreasonable restriction.
Interestingly, Justice Marshall asserted:

We reject the State’s claim that inmates are ill equipped to use...the tools...of the legal
profession, making libraries useless in assuring meaningful access. [T]his Court’s

31

experience indicates that pro se petitioners are capable of using law books to file case
raising claims that are serious and legitimate.32

This statement is especially ironic given the assertion of contemporary prisoner
rights advocates and some district court judges that even the most competent of jail house
lawyers frequently produce sub-standard work that may harm their “client’s” case”.
Bounds v. Smith clearly indicates that nothing short of law libraries will suffice to fulfill
the constitutional requirement placed on prison officials; however, the Court also went to
lengths to enumerate other more expansive Options that met the standard. The application
of these precedential cases to the facts of the instant cases is examined in the following
section.

Access to the Courts in Michigan

With the clear and concrete minimum standard set forth in Bounds v. Smith, many
states either assessed their legal access programs to be in compliance with the
“meaningful access” standard or procured law library collections. Many more cases
developed in the lower courts regarding compliance with the Bounds standard, but
generally, the lower courts only had to make determinations of fact, not set new
standards. It would be fruitless to examine all such cases; rather, now the analysis will
switch to suits against the Michigan Department of Corrections which are active at the
time of this writing. Such cases exemplify the variances applied to the Bounds standard
by the lower courts. These cases are best summarized not as direct challenges to the
overall standard set by the Court, but as exceptions based on circumstance.

One such exception to the Bounds standard lies in Glover v. Johnson”. The

Glover action was started in May of 1977 by female prisoners of the Michigan

Department of Corrections and eventually came to include all convicted female felons in
32

Michigan as plaintiff class members. Although Glover covers numerous diverse areas
within the women’s prison system, all issues hinge on the notion of parity with the men’s
system. The Glover action draws on the Equal Protection Clause of the Fourteenth
Amendment for authority. It is under this rationale that the Glover court set aside the
Bounds standard. The Glover court reasoned that since women did not have the
traditional experience with “self-help” law that men did, women required remedial
measures to assure that parity with the men’s system exists. Toward this end, the Glover
court ordered the state of Michigan to provide attorneys from Prison Legal Services
(PLS), a private non-profit law firm, and later Women’s Legal Services35 (WLS),
paralegal training, and law libraries to assist women in matters never contemplated for
aid in the male system“. In a recent decision by the Sixth Circuit,37 the court of appeals
reversed an order finding the Michigan Department of Corrections in contempt for an
attempt to end WLS’ involvement in family law work for female prisoners. In their
opinion, the Sixth Circuit rebuked the Glover Court for overstepping the boundaries of
the state’s obligation to provide legal access as set forth in Lassiter v. Department of
Social Services38 which clearly states that the only conditions under which the
appointment of counsel was mandatory occurred when the personal liberty of the litigant
was at stake. Based on the ruling of the Supreme Court and absent similar services
provided to male prisoners, the Sixth Circuit determined that the Department of
Corrections was imprOperly ordered to provide full time legal counsel for convicted
female felons for child custody litigation. However, a mandate from the district court
still governs the training of paralegals and their employment by the state, the adequacy of

and access to the collection contained in the law libraries, and the continuation of the

33

WLS contract for legal counsel to female felons, albeit under more limited conditions.

Another exception to the Bounds standard lies in the legal access portions of Knop
v. Johnson & Hadix v. Johnson39 which were unified for decision by the Sixth Circuit
Court of Appeals. The Knop/Hadix Court put aside the Bounds standard on the basis that
the “touchstone” of “meaningful access” was untouched by illiterate and otherwise
unqualified prisoners. The Bounds decision specified that the goal of the Court was to
assure “meaningful” access to the courts. Prison law libraries were presented as a
constitutionally acceptable method to achieve this goal. However, the plaintiff classes in
Knop/Hadix contend that the law library system was implemented in such a way that
access to the courts is effectively denied; moreover, even well implemented law libraries
would not be of assistance to illiterate prisoners or prisoners otherwise unable to make
use of them. The Hadix40 decision ordered that PLS (Prison Legal Services“) be instated
to aid prisoners unable to make sufficient use of the law library. Included in the
provisions made for PLS was a requirement to educate prisoner paralegals as a work
force for PLS. Further, the order required the Michigan Department of Corrections to
enhance the law libraries at the facility housing the plaintiff class. Finally, the order
required that the Department of Corrections adopt a grievance system that meets the
standards of the federal prison grievance system. In the Knop42 decision, the court
mandated an external non-profit corporation be formed to administer a system of civilian
and prisoner paralegals with a practicing attorney as director to be selected by a board of
governors (three chosen by the Michigan Department of Corrections and three chosen by
the plaintiff class). The Knop court explained this requirement as a remedy to the

potential conflict of interest created by having an employee of the state representing a

34

prisoner against the state.“

In Knop/Hadix44 the Sixth Circuit affirmed the motivation of the lower court’s
orders but denied the methods as overly intrusive. The Hadix45 decision was described as
“judicial legislation run wild” and a “’mother knows best approach’... [to] constitutional
adjudication.”46 The Knop47 decision received less critical treatment as the Sixth Circuit
only saw fit to comment:

The Supreme Court seems to have been far less concerned than the Knop court
about reliance on assistance provided by employees of the state. Perhaps the advantages
of placing all prisoner paralegals on the payroll of a non-profit corporation would
outweigh the disadvantages of doing so. We do not believe, however, that the courts may
appropriately tell the Department of Corrections how to strike this balance.48

Clearly the overly intrusive and elaborate remedies mandated in Hadix drew a
fairly strong reprimand from the Sixth Circuit; indeed, the most striking result from the
Sixth Circuit was remand of the legal access portion of both cases to the Knop court. In
contrast to the rebuke of the Hadix court, the Knop court received only passing comment
on a more conservative application of comity and parsimony of action.

Upon remand, the Sixth Circuit ruling in Knop/Hadix was interpreted to require
the functional equivalent of the "fabled jail house lawyers.” Both the Hadix and Knop
courts originally expressed interest in the jail house lawyers, determined by the Supreme
Court to be the least intruSive remedy sufficient to assure access to the courts in Johnson
v. Avery.49 However, both courts had previously abandoned the idea, citing the
inadequacy of untrained prisoners. The Knop and Hadix courts stated the following

respectively:

35

The often fabled jailhouse lawyers or writ-writers are, at least in the Michigan system,
too few and often too uninformed to provide adequate assistance to the inmates. [also
quoted by the Sixth Circuit]50

At most ten per cent [sic] of the...jailhouse lawyers possess rudimentary legal Skills...
Inmate paralegals Offer no better source of legal assistance than the doubtful aid available
from jailhouse lawyers."51

This lies in direct contradiction to Justice Marshall's assessment of the nation's jailhouse
lawyers in Bounds from 1971.52

The Knop court issued an order requiring submission of a “Revised Interim Plan
for Legal Access” from the Michigan Department of Corrections. The Court required
that the plan include a system, utilizing inmate ‘writ writers’ to render aid to prisoners in
certain categories that were hindered from making full use of the law library or other
available avenues of access to the courts. A component of this plan includes an extensive
examination of the transient population the Michigan Reformatory (one of three prisons
housing the Knop plaintiff class) to determine eligibility for service under the plan. The
information collected to under the Revised Interim Plan is the basis of this work. Lewis
v. Casey is the controlling precedent in prisoner access to the courts. However, it does
not render previous precedent moot, because of the way the Court constructs the reality
of prisoner’s right of access.
Legal Access after Lewis v. Casey

Plaintiff counsel in Hadix/Knop includes Elizabeth Alexander, an accomplished
litigator for the ACLU’s Prison Project. Ms. Alexander also argued for the plaintiff class
in Lewis v Casey. 53 That class had been granted certiorari at the time that the Revised

Interim Plan was submitted. In crafting his order for Knop/Hadix, Judge Enslen was

aware that Lewis v. Casey dealt with substantially similar issues and would have

36

mandatory authority in Knop/Hadix. This, in part, explains the cautious steps taken by
both parties and the court in deciding the issues“. Any conclusions of law drawn from
Knop/Hadix are subject to review under Lewis v. Casey. Any analysis of the facts
regarding legal access must also consider the new realities of Lewis v. Casey.

Plaintiff counsel was not the sole participant in Lewis v. Casey55 from
Knop/Hadix. The Attorney General of Arizona solicited the signatures of all of the
Attorneys General from other states on an Amicus Curiae brief in support of the appeal in
Lewis v Casey,56 a case that has since been decided by the Supreme Court. When
Michigan received the brief, thirty other states had already signed. The decision rendered
in this case was anticipated to be the definitive statement on the requirements of access to
the courts, but as with many opinions by Justice Scalia, the answer tends toward a precise
legal definition of problem and resolution, rather than a simple mandate.

Instead of codifying exceptions to the Bounds standard or reversing flagrant
intrusions into the executive branch’s sphere of control, the Court ruled eight to one that
Lewis v. Casey would be decided on the basis of ‘standing.’ Rather than addressing the
unequal protection offered to prisoners with specified impairments or the recent trend of
micro-management of state departments of correction by the federal bench, the Court
directed the lower courts to assess standing of cases on the basis of ‘actual harm’ done to
a specific prisoner’s ability to access the courts. Thus, the key factor in subsequent cases
involving access to the courts would be a determination of whether the plaintiff suffered
an actual harm to him/herself and, thereby, established standing to appear before the
court. While the decision in Lewis was unexpected by both parties, it is not without

precedent in the field of prisoner access to the courts. The Ninth Circuit had developed a

37

substantial body of case law that hinged primarily on the proof of actual harm to the
prisoner which effects the standing of the case.

"[A] reviewing court should focus on whether the individual plaintiff before it has
been denied meaningfirl access." (internal quotations omitted.)57

"Appellant also contends that inadequacies in the breadth of legal materials provided
and in the availability of the CBCC [Clallam Bay Corrections Center] law library
unlawfully denied him access to the courts... In addition, we have recognized that the
Constitution does not guarantee a prisoner unlimited access to a law library. Prison
officials of necessity must regulate the time, manner, and place in which library
facilities are used. More importantly, Mr. Johnson failed to demonstrate that these
inadequacies in any way handicapped his access to the courts." (internal quotes
omitted and emphasis added.)58

"A prisoner contending that his right of access to the courts was violated because of
inadequate access to a law library must establish two things: First, he must Show that
the access was so limited as to be unreasonable. Second, he must Show that the
inadequate access caused him actual injury, i. e., show a specific instance in which
[he] was actually denied access to the courts." (internal quotations omitted.)59

In rendering the opinion, Justice Scalia departed from the arguments of both appellants
and appellees in Lewis v. Casey and focused on the fact bound nature of standing in this
particular case. Lewis v. Casey made the following points of law: 1) To establish a
violation of Bounds, the plaintiff must demonstrate “actual injury” in his/her efforts to
present a non-frivolous claim to the courts. 2) Bounds may only be read to provide
affirmative assistance to access the courts for direct or collateral attacks on convictions
and conditions of confinement. 3) The instant case had only two instances of ‘actual
harm’ and could not require system-wide relief. The Opinion also reaffirmed the
substantial deference to the executive branch required by previous decisions like Turner
v. Safley60

Thus, the new standard in access to the courts cases is to be actual harm of a

specific prisoner's case because of inadequate access to the courts. The implication is

38

that this new standard precludes any valid action in the area of access to the courts by
making a claim present in the courts defacto proof of no violation. At the very least
there will never be another access to the courts case citing access to the courts as the
basis of the original claim. Critics of the decision have gone further in positing that if a
prisoner is not so impaired that he or she can make a valid claim to the courts, he or she
has no valid claim. If the prisoner has an impairment that precludes access to the courts
he or she cannot get the petition to be seen by the courts. Although this statement has
great rhetorical value, it is not precisely true. An inmate may be able to petition the
courts through a “simplified” filing process and a more lenient standard of review
mandated for prisoner actions. However, recent federal court “reforms” have made
summary dismissal of such petitions much more likely than in the past. Further, reforms
in the Michigan State Court System have imposed substantial procedural burdens on
prisoner litigation. This issue is dealt with in the Legislation Section.

Lewis v. Casey clearly takes access to the courts into a much more favorable
realm for state departments of corrections by increasing the threshold of a valid claim
from a situation that could adversely influence their access to one that has occurred and
must be proven to be non-frivolous. However, state departments of correction are
simultaneously in a seemingly unenviable position if such a suit gets to the courts
because to be there it must be valid, primafacia. Also in the favor of the state, Lewis v.
Casey gives guidance that almost precludes the system-wide remedy so familiar to
current access to the courts related suits.

The implications of Lewis v. Casey for Knop/Hadix are less clear. Although

Judge Feikens (the original Hadix judge) has denied the applicability of Lewis v. Casey to

39

Glover v. Johnson, Judge Enslen has not yet ruled as of the time of this work. As stated
above, many such cases existed as exceptions to the Bounds standard and there will
doubtlessly be exceptions to the Lewis standard. Many federal judges have ignored the
Supreme Court's demand for comity and deference to the experience of the executive
branch. Many will doubtlessly ignore the Court's intent in Lewis. Given the bewildering
array of remedies for inmate access to the courts, a tool is needed to impose order and
establish a clear comparison based on relevant factors common to all prior cases.
Typology of Assistance in Access to the Courts

The following typology was presented at the 1996 annual meeting of the
Academy of Criminal Justice Sciences (Loper, 1996). It has been updated but remains
substantially intact. With the profusion of standards for access to the courts enacted since
Ex Parte Hull, it seems warranted to make use of a tool to organize these various
standards. This typology differentiates standards of access by intrusiveness to the
executive branch, but is also informed by funding. Each category is annotated with a
citation(s) of the decision in which it was used. For purposes of illumination, the cases
discussed above have been inserted in the appropriate annotated portion of the typology.
In some cases the standard listed in the typology has received a small amount of actual
use, but all standards in the typology have at least been suggested in numerous cases or
law review articles (Smith, 1987; Bluth, 1972).61 In some cases remedies were denied by
the court for lack of adequate implementation, but not on their merits. These cases are

noted with an asterix in the typology itself.

40

TABLE 1, Typology of Inmate Access to the Courts

 

 
 

ETasSive- No state
{resources / Minimal
intrusion

Affirmative Infervéniioii:

Minimal state resources

 

' iRe'mediaHnterv, ‘ “tiers;
, Extra—ordinarys’tatet -
’ " £9.59; L...‘

   

 

No Mandated Access to the
Courts

Prior to Ex Parte Hull, 312 U.
S. 546 (1941)

Law Libraries
Bounds v. Smith, 430 US. 817
(1977)

Smith v. Bounds, 538 F.2d 541
(4‘h Cir. 1975)

Smith v. Bounds, 610 F .Supp.
597 (E.D.N.C. 1985)

Paraprofessional Trainin
Courses

Glover v. Johnson, 855 F.2d
277 (6* Cir. 1988).

Glover v. Johnson, 721
F.Supp. 808 (E.D.Mich.
1989).

Hadix v. Johnson, 694 F.Supp.
259 (E.D.Mich. 1988).

 

Legal Mail Privileges-
Access to External
Professionals or
Paraprofessionals

Exparte Hull, 312 U. S. 546
(1941)

Nolan v. Scafati, 430 F.2d 548
(1" Cir. 1970)

Cross v. Powers, 328 F .Supp.
899 (W.D.Wis. 1971)

Paid Jailhouse Lawyers /
Writ Writers Using
Libraries

Knop v. Johnson, 977 F.2d
996 (6‘h Cir. 1992)

Casey v. Lewis, 43 F.3d 1261
(9th Cir. 1994), Segregation
only.

Casey v. Lewis, 834 F.Supp.
1553 (D.Ariz. 1993).*
Segregation only.

Paid Civilian
Paraprofessionals

Knop v. Johnson, 685 F.Supp.
636 (W.D.Mich. 1988).

Hadix v. Johnson, 694 F.Supp.
259 (E.D.Mich. 1988).

 

Jailhouse Lawyers (Non-
sanctioned or Tolerated)
Johnson v. Avery, 393 US.
483 (1969)

Wolflv. McDonnell, 418 US.
539 (1974)

Cruz v. Hauck, 515 F.2d 322
(6‘h Cir. 1975)

 

 

Legal Classes / Assistance
from Law Students
(Outreach or Law Clinic)
Williams v. Department of
Justice, 433 F.2d 958 (5‘h Cir.
1970)

Cross v. Powers, 328 F.Supp.
899 (W.D.Wis. 1971)
Cepulonis v. Fair, 563
F.Supp. 659 (D.Mass. 1983)
Cepulonis v. Fair, F.2d 1
(lstCir. 1970)

Contract Legal Assistance
Glover v. Johnson, 855 F.2d
277 (6'h Cir. 1988).

Glover v. Johnson, 721
F.Supp. 808 (E.D.Mich.
1989).

Hadix v. Johnson, 694 F.Supp.
259 (E.D.Mich. 1988).

 

 

Staff Lawyers

Murray v. Giarrantano, 109
S.Ct. 2765 (1989)*

Smith v. Bounds, 538 F.2d 541
(4th Cir.1975)* ,
Smith v. Bounds, 657 F.Supp.
1327 (E.D.N.C. 1986).

 

In many cases the courts have risen above the requirement of affirmative aid to

remedial level orders which demand extraordinary measures that go beyond even the

41

"he“... . .

 

 

most invasive of “affirmative” orders. Remedial level orders are often entered to repair a
harm, as with the Glover order requiring extra assistance for women until they gain the
experience with self-help law to the point of parity with male prisoners. Remedial level
orders may also punish the state for failure to adhere to less intrusive orders, as with the
decision in Smith v. Bounds requiring staff attorneys because of "contumacious" behavior
on the part of the North Carolina Department of Corrections. 62 It is ironic that the case
that determined the least intrusive measure required to assure access to the courts, Bounds
v. Smith entered into a remedial level in 1986 when the state failed to comply with the
result of the remanded decision after ten years.

Based on this typology, it is apparent that all three Michigan cases, including
Glover, have been treated at the remedial level. After the Sixth Circuit decision
combining Knop and Hadix, it is also apparent that the facts do not support such intrusive
measures. On remand, the Knop/Hadix Court was directed to find less intrusive means of
assuring inmate access to the courts. Essentially, the Knop/Hadix Court was told to use
an affirmative intervention.

Federal judges do not have uncontested power in the construction of legal reality.
Legislatures enact the laws that courts interpret to construct that reality. Legislatures also
provide input to the ongoing construction of rights.

The Effect of Legislation on Prisoner Access to the Courts

The focus of this thesis is directed to an exploration of the judicial construction of
reality vis-a—vis prisoner access to the courts. No discussion of the legal construction of
reality would be complete without an understanding of the legislation that governs the

courts. Discussion of these laws do not further the analysis of the judicial construction of

42

the right of access; however, the laws in this section will provide a great deal of influence
on future construction of the right and deserve consideration as a reality imposed on the
judiciary. The influence of legislation is organic to prior decisions. Therefore, only the
most recent legislation with the most potential for direct influence in this arena of
prisoner’s rights is dealt with specifically.
The Prison Litigation Reform Act of 199663 (PLRA), is too recent to have
explicitly entered the decisions discussed in previous sections. However, the Sixth
Circuit issued an administrative order which is binding to District Courts and is thus the
relevant application of the legislation to the Michigan Cases“. The most significant
remaining section of PLRA applies only to prisoners filling In F orma Pauperis (IFP).
This status is literally: as a pauper. IFP status allows a prisoner to proceed with a lawsuit
without paying the required fees. Critics have claimed that PLRA “raises the bar” on
inmate litigation and makes it harder for indigent inmates to file Habeas Corpus and
Section 1983 actions (National Prison Project, 1996a; Prison Legal News, 1996). The
Sixth Circuit supports this interpretation:
No longer do courts first focus on the merits of a prisoner’s complaint. Rather, it is
the prisoner’s financial status that the courts must initially examine. Pauper status for
inmates, as we previously knew it, no longer exists. All prisoners while incarcerated
must now pay the required filing fees and costs. When an inmate seeks pauper status,
the only issue is whether the inmate pays the entire fee at the initiation of the
proceeding or over a period of time under an installment plan. In re Prison Litigation
Reform Act, 1997 FED App. 00471) (6th Cir.)

Other remaining sections of PLRA provide diverse mechanisms to reduce the amount of

prisoner litigation in the courts. PLRA granted more options for dismissal of prisoner

petitions and offers penalties for petitions without proper merit. There is nothing in the

PLRA to facilitate inmate access to the courts.

43

The section found most egregious by opponents of PLRA is a controversial
directive for summary disposal of existing consent decree, unless the court holds a trial
and makes a finding of a current violation of law. This section has been overturned in
fifteen separate actions by various Federal District Courts (National Prison Project,
1996b). Significantly, Judge Enslen ruled against this provision in Hadix/Knop65 and in
another Michigan prisoner’s rights case.66 In Hadix/Knop’57 he ruled that the provision
intruded on the ability of the courts to enforce an order. In the United States v. Michigan
consent decree, he ruled that PLRA was subject to a hearing before termination-
effectively reversing the language of the act. Judge Feikens, the original Hadix judge,
also ruled against this section of PLRA in the sections of Hadix remaining under his

control68

for similar reasons as Enslen had in Hadix/Knop.‘59
Another recent piece of legislation with potential effects on prisoner access to the

courts is the Antiterrorism and Effective Death Penalty Act of 1996. Since Michigan
does not have the death penalty, that section and the anti-terrorism sections are largely
irrelevant to the study at hand. However, one provision of the act serves to limit prison
access to the courts through restrictions on Habeas Corpus petitions. The Antiterrorism
and Effective Death Penalty Act places a one year time limit on Habeas Corpus petitions
filed by state prisoners to reduce the number of such petitions in the courts. Shortly after
the act was signed, the Supreme Courts ruled in F elker v. Turpin7o which upheld the
provisions of the act related to Habeas Corpus petitions. The Court ruled that the act did
not prevent courts from entertaining a petition.

The new restrictions on successive habeas petitions constitute a modified res judicata

rule, a restraint on what is called in habeas practice ‘abuse of the writ.’ The doctrine

of abuse of the writ refers to a complex and evolving body of equitable principles
informed and controlled by historical usage, statutory developments, and judicial

44

decisions. McCleskey v. Zant, 499 US. 467, 489. The new restrictions are well within
the compass of this evolutionary process and do not amount to a "suspension" of the
writ. F elker v. Turpin No. 95-8836 A-890 (1996) p. 10-12. [original page location]

In an effort to curtail abuse of the court system, Congress has passed these two pieces Of
legislation. The effect of this legislation is now working its way through the courts and
being incorporated into the construction of the access to the courts. The eventual effects
of this legislation are expected to hamper inmate’s ability to vindicate their rights in the
courts. The burden of extra procedural requirements can logically be expected to be most
severe for indigent and impaired prisons.

This literature review defines the issue of access to the courts in general terms, via
the typology created from case law and Specific terms in relation to the research
conducted in this work, via the Michigan cases. The typology establishes that there are
many constructions of the right Of access to the courts. The issues introduced in Hadix,
Knop, and Glover question the adequacy of these constructions in the face of real world
complications. By establishing the history of these cases, and positioning of the current
construction of access to the courts on the typology, this literature review establishes the
current dominant legal construction of the right of access to the courts. Inmates now
have a right to a law library (Bounds), the right to assist each other in the absence of other
aid (Johnson), and the right to come before the court and claim they have no access to the
courts (Lewis). The thesis question of this work is: Are inmates able to effectively access
the courts with these guarantees? This question can be answered by examining the
prevalence of impairments that the courts have recognized to prevent such access. The
social science literature has shown that a useful understanding of the actions of the courts

can be found in social construction perspective.

45

 

Endnotes for Chapter 2, Literature Review

‘ A narrow scope review of the literature revealed no single work that dealt with the law
as creating a reality that binds actors. This is discussed later in this work.
2 Fair can include a number of factors that are decidedly unfair. Consistency and relative
comprehensibility are all most lay people can expect.
3 In the allegory of the cave, Plato lays out a world where “reality” is, to the observers,
pictures on a wall formed by shadows cast by objects in front of a fire behind them. In
this allegory the actors have no concept of any other “reality” and never see the source of
the shadows. He then sets a cave dweller free to view the world. Plato claims that such a
person would recognize reality in its true form, if somewhat gradually. This
‘enlightened’ soul would then return to the cave and describe the newly discovered
‘truth’ and be thought mad by the cave dwellers. He uses this analogy to illuminate his
feelings about the relation between the thoughts of philosophers on an enlightened
intellectual plane and the resistance of baser sorts to new realities presented by the
philosophers. Plato indicates two separate realities for people of two different
orientations. More importantly, in establishing the knowledge base of the cave dwellers,
he describes a social construction of reality.
4 In an attempt to secure the loyalty of young men in defending society, Socrates suggests
convincing young men that they sprung from the earth fully formed and that their
childhoods were like dreams. Other citizens are brothers born of the earth and will surely
defend the land that gave them birth from attack. In effect, Socrates suggests
reconstructing reality for the young men for a higher purpose.
5 The term “courtroom workgroup” had not been coined at the time of the Ryan and
Alfini (1979) study.
6 While case law is not an “extra-legal” factor, the case law was external to the facts of
the case at hand.
7 If the problem extra-legal factors predicting outcomes and judges are identified as the
sole decision-makers, then judges must stop using these criteria. Court reform activists
have called for a change in their chosen indicators for years, but have largely failed to
explore the problem beyond positivist simplifications.
8 As a punishment, he was forced to wear female cloths over male cloths. Brown
continues to attribute this to a power imbalance between men and women (i.e., a man
humiliated by wearing women’s clothing).
9 The effects of which are examined in detail later in this chapter.
10 1966 is the first year in which prisoner’s rights cases were recorded as a separate
category.
:; Hadix v. Johnson, 694 F.Supp. 259 (E.D.Mich.]988).

Hadix v. Johnson, sub nom., Knop v. Johnson, 977 F .2d 996 (6thCir.1992).

‘3 Knop v. Johnson, 467 F.Supp. 467 (W.D.Mich.]987).

'4 Knop v. McGinnis, ----- U.S. ----- cert. denied.

‘5 Bounds v. Smith, 430 US. 817 (1977).

’6 Knop v. Johnson, 977 F .2d 996, at 1006 - 1007 (6th Cir. 1992).

‘7 Ex parte Hull, 316 US. 546 (1941).

'8 The Constitution of the United States, Article One, Section Nine, Sub-section two.

46

 

 

Under specified conditions Congress may abridge the Great Writ.

l9Wolfirv. McDonnell, 418 US 539 (1974). Procunier v. Martinez, 416 US. 396 (1974).
20Pennsylvania v. Finley, 481 US 551 (1987). Murray v. Giarratano, 492 US. l (1989).
2'Turner v. Safley, 482 US. 78 (1987). Johnson v. Avery, 393 US. 483 (1969). Hudson
v. Palmer, 468 U. S. 517 (1984).

22 Bounds v. Smith 430 US. 817 (1977).

23 Ex parte Hull, 316 US. 546 (1941). Johnson v. Avery, 393 US. 483 (1969).
Procunier v. Martinez, 416 US. 396 (1974). Wolflv. McDonnell, 418 US. 539 (1974).
Hudson v. Palmer, 468 U. S. 517 (1984). Turner v. Safley, 482 US. 78 (1987). Lewis v.
Casey, Slip Opinion No. 94-1511 (1996). These cases are a small proportion of the
category.

24 Part of the continuing adversarial debate between prisoners’ rights activists and prison
administrators stems from a misunderstanding of this point. The right did not exist
before the court created it. The prison officials did not prevent the prisoner from
exercising a right. Only once the right is created by the courts is it reality. There is a
tendency in both sides to consider their own position retroactively valid upon victory.
This only indicates their misunderstanding of the process.

25 The author does not intend this comment to deny such intentional violations of
prisoners’ right; rather, it Should emphasize the demarcation between a time when there
was no such right and the new legally constructed reality of the right.

26 Johnson v. Avery, 393 US. 483 (1969).

27In this case the state refers to all levels of government (Federal, State, County, and
Municipal) if that unit of government incarcerates convicted persons. This definition of
"state" will be used throughout this work.

28Younger v. Gilmore, 404 US. 15 (1971).

2" Paraphrased from Gilmore v. Lynch, 319 F.Supp. 105 at 110 (N.D.Ca1.1970) aff’d sub
nom. Younger v. Gilmore, 404 US. 15.

30Bounds v. Smith, 430 US. 817 (1977).

31Johnson v. Avery, 393 US. 483 (1969).

32Bounds v. Smith, 430 US. 817 (1977).

33 See Below

34Glover v. Johnson, 934 F.2d 703 (6th Cir. 1991).

35Women's Legal Services, succeeded PLS in the women's system.

36 The Glover court mandated assistance in matters related to conditions of confinement
and post conviction remedies, but also mandated assistance in matters ranging from child
custody to immigration law.

37Glover v. Johnson, Slip Opinion No. 94-1617 (6th Cir. 1996). Glover v. Johnson 75
F.3d 264, 268-269 (6th Cir. 1996).

38Lassiter v. Department of Social Services, 452 US. 18 (1981).

39Knop v. Johnson, 977 F .2d 996 (6th Cir. 1992) hereafter referred to as Knop/Hadix.

4° Hadix v. Johnson, 694 F.Supp. 259 (E.D.Mich. 1988).

“The same PLS as the Glover suit.

42Knop v. Johnson, 685 F.Supp. 636 (W.D.Mich. 1988).

“No such conflict was found with the State Appellate Defender's Office (SADO), which
represents indigent prisoners on appeals on their convictions. In fact, the director of

47

 

SADO, Barbara Levine, was an expert witness and advisor for the plaintiff class
throughout the Hadix action.

44Knop v. Johnson, 977 F.2d 996 (6th Cir. 1992).

45Hadix v. Johnson, 694 F.Supp. 259 (E.D.Mich. 1988).

46Knop v. Johnson, 977 F.2d 996 at 1010 and 1005 [quoting Murray v. Giarratano, 492
US. 1 at 11] (6th Cir. 1992).

47Knop v. Johnson, 685 F.Supp. 636 (W.D.Mich. 1988).

48Knop v. Johnson, 977 F.2d 996 at 1008 (6th Cir. 1992).

49Johnson v. Avery, 393 US. 483 (1969).

50Knop v. Johnson, 667 F .Supp. 467 at 488 (W.D.Mich. 1987).

“Hadix v. Johnson, 879 F.Supp. 743 (E.D.Mich.1995).

52Bounds v. Smith, 430 US. 817 (1977). Quoted above.

53Lewis v Casey, 43 F.3d 1261 (9th Cir., 1994) rev’d and remanded. A case charging that
the state's reliance on the Bounds standard is inadequate to insure access to the courts.
54 The Michigan Department of Corrections would not agree to a consent decree or
similar resolution prior to the announcement of the Supreme Court’s decision in Lewis v.
Casey. For similar reasons, the Knop court did not wish to render decisions only to be
forced to revise them under the forthcoming Lewis standard.

55Lewis v. Casey, Slip Opinion No. 94-1511 (1996).

56Lewis v Casey, 43 F.3d 1261 (9th Cir., 1994) rev’d and remanded.

57 Sands v. Lewis, 886 F.2d 1166, 1169 (9thCir.1989).

5“ Johnson v. Moore, 948 F.2d 517, 521 (9thCir. 1991), quoting from Lindquist v. Idaho
State Board of Corrections, 776 F.2d 851, 858 (9thCir.1985).

59 Vandelft v. Moses, 31 F.3d 794, 797 (9thCir.1994) quoting from Sands v. Lewis, 886
F.2d 1166, 1171 (9thCir.1989).

60Turner v. Safley, 482 US. 78 (1987).

6lFor a complete list of decisions reviewed in the formation of this typology see the “Law
Cited” section of the bibliography.

‘2 Smith v. Bounds, 657 F.Supp. 1327(E.D.N.C.1986).

63 Prison Litigation Reform Act, Pub. L. NO. 104-134, (3‘ 801-10, 110 Stat. 1321 (1996).
64 In re Prison Litigation Reform Act, 1997 FED App. 0047P (6th Cir.).

65 Hadix v. Johnson, No. 4:92:CV:110 (W.D.Mich.]996).

6" United States v. Michigan, No. 1:84 CV 63 (W.D.Mich.]996).

6’ Hadix v. Johnson, No. 4:92:CV:110 (W.D.Mich.1996).

6* Hadix v. Johnson, No. 80-73581 (E.D.Mich.1996).

69 Hadix v. Johnson, No. 4:92:CV:110 (W.D.Mich.]996).

7° Felker v. Turpin No. 95-8836 A-890 (1996).

48

DATA COLLECTION

Mandate for Data Collection

All original information presented in this paper was collected by mandate of the
Federal Court of the Western District of Michigan. The Knop/Hadix Court directed the
Michigan Department of Corrections to:
Develop and implement a system to identify prisoners who are unable to make effective
use of the legal access system that defendants operate. To accomplish this, defendants
must assess intelligence, reading ability, reading comprehension, writing ability, learning
disability, and level of physical or mental impairment. To the extent that any of these

factors impairs the capability of a prisoner to use a law library to prepare and file a
meaningful brief, the provision of access to a law library alone is insufficient.1

Within 30 days after the first six months of implementation [of the program detailed in
the Revised Interim Plan, ordered in this opinion], defendants shall submit to the parties
and the Court an evaluation of performance of their program.2

Thus, the information collected was originally intended to satisfy the above requirement
of the courts. The task of collecting and analyzing this data fell to the Office of the
Special Administrator of the Executive Division and select staff at the Michigan
Reformatory. The results were recorded into a computerized database and later analyzed
by central office staff. This analysis was presented to the Knop/Hadix Court and plaintiff
attorneys as agreed in the Revised Interim Plan submitted to the court prior to the pilot
implementation. As noted below, special consideration was given to the later use of this
data.
Method of Data Collection

For purposes of the pilot study, the Michigan Department of Corrections screened
the entire population of the Michigan Reformatory, a prison with a six month transient
population of 1,715 prisoners (and a mandated daily population not to exceed 1,234

prisoners). The first figure excludes transient prisoners with stays of less time than is

49

normally required to complete the intake process3 . Eligibility under any one criterion
made the prison eligible for assistance. In some cases verification of a criterion required
an extended review. During this time the prisoner was treated as if he were eligible. The
population was screened for the following eligibility criteria. 1) The prisoner cannot read
and/or write at or above the ninth grade. 2) The prisoner lacks the intelligence necessary
to prepare coherent pleadings. 3) The prisoner possesses a physical or mental impairment
that prevents him from using a law library to prepare and file a coherent pleading. 4) The
prisoner possesses a learning disability that would hamper him from filing coherent
pleadings. 5) Prisoners in segregation with court deadlines that are not able to prepare a
timely and coherent pleading with materials available within the segregation unit. A
detailed description of the criteria is available in Appendix B.

This screening required vast resource expenditures in terms of staff time and
material. Because of the massive effort on the part of the Michigan Department of
Corrections and the intrusive nature of the screening to prisoners, once declared eligible,
prisoners were not tested for other impairments. Testing also proceeded from the less
intrusive criteria to more intrusive. Because this method was used, the sample can only
accurately be used to assess the number of inmates in need of assistance under these
criteria. Forcing prisoners to undergo extensive testing to participate in the Legal Writer
Program would not have been legally or ethically defensible regardless of the quality of
data produced. The criteria used present a useful operationalization of “prisoners who
cannot read or write English, or [sic] who lack the intelligence to make coherent legal
pleadings, or who because of protracted confinement in administrative or punitive

segregation or protective custody, may not be able to identify the books they need.”4

50

These criteria were chosen by the court and represent a continuing expansion of the
construction of prison access to the courts.

The bulk of the task of data collection was performed by the Reforrnatory’s Intake
Case Manager for all incoming prisoners and Resident Unit Managers for prisoners
already at the Reformatory using a form created for the pilot program. The information
gathering process was monitored and corrected by the on-site program staff to insure
quality and central Office staff to insure consistency of method. Additional information
and professional judgment was provided from other sources. Reading level as
determined by completion of a GED. (General Educational Degree) or a current score
on the T.A.B.E. (Test of Adult Basic Education) was provided by the Reformatory school
psychologist. Information regarding a mental impairment that would prevent a prisoner
from making effective use of the law library, as determined by staff from the Michigan
Department of Corrections mental health team at the Michigan Reformatory and
Michigan Department of Mental Health. Diagnosis of a physical impairment or
temporary condition that would prevent a prisoner from making effective use of the law
library, as determined by Department of Corrections medical staff- was provided by the
Reformatory health care team. The partially completed forms for each prisoner were sent
to each of these departments for confirmation and completion. The on-Site program staff
did a commendable job of tracking forms generated throughout the process. Other
quality assurance methods are noted below.
Method of Quality Assurance in Data Collection

All prisoners in the transient Reformatory population are accounted for in the

database created for this project. There are 41 missing cases from prisoners who

51

transferred prior to screening and 66 incomplete forms that represent the last group sent
to the medical team. While there is not 100 percent representation, it appears that
missing data occur for reasons that do not indicate a systematic bias. The process used to
assure the quality of the final numbers included a number of verifications. First, the
actual transient population was verified through population count sheets and transfer logs
from the Michigan Reformatory records office. Second, information from prisoners
regarding their eligibility status was verified through their institutional records at the time
of their interviews. All discrepancies were tracked and resolved by the Program Manager
at the Reformatory. Third, original documents were subject to scrutiny for errors at the
conclusion of the pilot period by three different interest groups (plaintiff attorneys, on-
site program staff, and central office staff). Fourth, the data collection process was
scrutinized by the court appointed monitor. Fifth, the data collection process was
scrutinized by the Michigan Department of Corrections’ educational testing consultant.
Sixth, the data collection process was scrutinized by central office staff. Seventh, the
data presented in this paper was accepted into evidence without objection in the
subsequent Knop/Hadix hearing. Any inconsistencies found between cross referenced
records were resolved using the original document source information or further
investigation by staff.

Quality assurance would not be complete without mentioning ethical
requirements observed in data collection. First, the collection of data was mandated by
the courts and observed by plaintiff attorneys, legal counsel to the prisoner population.
Second, prisoners were not compelled to participate in any way. Their assistance was

requested during the initial interview; any prisoner that refused the interview was

52

described on the forms as having no response and the information was determined from
records. Third, because of the sensitive nature of medical and mental health records, only
clinical staff were aware of the actual impairment attached to an individual prisoner. The
rest of the project staff at any level, including the Warden and Special Administrator of
the Executive Division, were not aware more than the prisoners name and that an
impairment existed that could qualify the prisoner for assistance from the program. The
names of such prisoners are already commonly available to staff at all levels from the
mental health call out sheets. Finally, this presentation deals only with aggregated data

and does not uniquely identify individual prisoners.

53

 

Endnotes for Chapter 3, Data Collection

lKnop v. Johnson, Unpublished Order dated 22 December, 1994 on remand from 6th
Circuit. Page 7.

2Knop v. Johnson, Unpublished Order dated 22 December, 1994 on remand from 6th
Circuit. Page 21.

3 The time required to complete intake varies according to the prisoner’s situation. Some
prisoners are held overnight while in transit or for brief periods during court actions.
This group essentially includes prisoners not permanently assigned to the Michigan

Reformatory and represents a small number.
4Knop v. Johnson, 977 F .2d 996 at 1005-1006 (6th Cir. 1992).

54

PRISONERS IN NEED OF SPECIAL ASSISTANCE

Eligible Prisoners

The results of the Michigan Reformatory pilot evaluation may be of particular
interest because of the comprehensive scope of the data collection. Every effort has been
made to retain the detail of that data. As noted in chapter three, the intrusive nature of the
testing required the Michigan Department of Corrections to apply the least intrusive
measures first. Only prisoners who could not be definitely determined to be eligible or
not eligible by these less intrusive measures were assessed with the more intrusive
measures. Intrusive measures are those which may have been onerous to the prisoner
such as the complete T.A.B.E. (Test of Adult Basic Education) Reading test. Intrusive
measures also include those which presented a possible disruption to the functioning of
the institution such as testing prisoners in segregation. This would have required the
prisoner to be removed from segregation and brought to the school or it would have
required a teacher to leave the school and administer the test in the segregation unit.
Prisoners in segregation were assumed eligible until proven otherwise regardless of
impaired status so none were assessed with the more intrusive measures. Finally,
intrusive measures include resource intensive measures such as individual assessment of
an inmate by medical or mental health staff. Once a prisoner was determined eligible no
further assessment was required.

The product of this assessment process was compiled in a database rather than
with simple tabulation. The results of the pilot were comprehensive and accurate, but
circumscribed by the process that created them. The results presented in this section are

individually valid, but will not tabulate properly. The total number of eligible prisoners

55

is presented separately. The following tables represent the number of prisoners
qualifying under each eligibility criterion. These are followed by a table that indicated
the total number of eligible prisoners excluding overlap from multiple qualifying criteria.
Each sub-section is labeled with the qualifying criterion mandated by the Knop Court and
includes a brief explanation of the result.

The prisoneiannot read—agfor write at or above the ninth grade.

The least intrusive measure of this criterion required prison staff to review the
inmate’s educational record for notation of a GED. If the prisoner indicated that he had
a GED at the initial intake interview (on the intake screening form: LAP-1 - see
Appendix C), prison staff requested confirmation from the United States Department of

Education. Without some

TABLE 2, G.E.D. Criteon

9' abel Frequency _Per,centae ‘i confirmation present in an

    

1015 59.2% 1 inmate’s file, he was noted
639 37.3% -

61 3.6% ‘ not havingaG.E.D. The

 

_ _ 1000°__J results of the GED.
assessment do not qualify any prisoners. However, 639 prisoners were excluded from the
more intrusive tests dealing with reading level. The 1015 that did not possess a GED.
were further tested with the T.A.B.E. Locator.

The T.A.B.E. Locator is a short test used by the Department of Corrections to
estimate the approximate reading level of prisoners for specific detailed testing with the
more exhaustive T.A.B.E. Battery. Rather than requiring all 1015 prisoners to complete
the entire T.A.B.E. Battery prisoners scoring in the lower ranges on the T.A.B.E. Locator

were accepted as meeting the reading criterion of the Knop Court’s order. The T.A.B.E.

56

Locator is scored in five groups. In order, those groups are Low, Easy, Medium,

Difficult, and Advanced. Each grouping has a corresponding range of grade levels for

TABLE 3, T.A.B.E. Locao _

   

Frequency I Percentage

 

174 10.1%

16 0.9%

145 8.5%

156 9.1%

81 4.7%

‘ ‘ dvanced score grouping 73 4.3%
: risoner in segregation 46 2.7%
' 739 43.1%
285 16.6%

 

 

1715

reading ability. Low,
Easy, and Medium fall
entirely and
unambiguously below the
ninth grade reading level.
With only the T.A.B.E.
Locator results, 317
prisoners were assessed as

eligible. The 46 prisoners

in segregation were considered eligible until proven otherwise and 174 prisoners refused

to take the T.A.B.E. Locator. Scores in the 'Advanced' range ended at approximately the

8.9 grade level. The T.A.B.E. Locator could not distinguish actual reading level in that

degree of detail. Thus, all prisoners scoring in both the Advanced and Difficult ranges

were required to complete the T.A.B.E. Battery before they could be assessed as eligible

or ineligible.

The T.A.B.E. Battery is a more exhaustive and accurate assessment of reading

level. The complete Battery takes several hours to complete. Both the Department of

Corrections and Plaintiff Counsel recognized this fact. Unfortunately, in making the

program less onerous to prisoners, the data collection lost consistency across conditions.

One indication of the necessity of this decision can be seen by the number of prisoners

that refused the T.A.B.E. testing process (n=219). This figure combines the 45 that

57

refused the T.A.B.E. Battery and the 174 that refused the T.A.B.E. Locator. The
T.A.B.E. Battery was used to distinguish 37 additional eligible prisoners. Although the
recruitment of prisoner legal writers is beyond the scope of this work, it is worth noting
that many of the prisoners who elected to take the complete T.A.B.E. Battery were
motivated by a desire to be

selected for the legal writer

 

.A.B.E. Battery not needed 1462 85.2% training phase of the pilot.

37 2.2%

171 10.0% ._ 36 ofthe 171 prisoners
45 2.6% '-

 

 

assessed as ineligible for
otal 1715 100.0%

 

assistance applied for the
legal writer position. 354 prisoners were found eligible for legal writer assistance under
the reading level criterion.
Thgpfisoner lflks the intelligence necessary to prepare coherent pleading;

Screening for the intelligence criterion was accomplished by an examination of
the special education records at the prison school. Under Department of Corrections
policy, all prisoners with developmental disabilities are eligible for special education
W S eci a1 E dc Cnterin classes. Michigan State law also

Frequency ercentage requires special educational

    

 

1534 89.4% programming for the
123 7.2%

58 3.4% developmentally disabled.

1715 100.0° Screening for such impairments

occurs for all incoming prisoners during the reception and guidance phase. As an

additional check, the intake screening form (see Appendix C, LAP-1) includes an

58

assessment by the intake case manager or the resident unit manager of the inmate’s
deve10pmental disability. 123 prisoners qualifying for special education were qualified
under the intelligence criterion without further screening. Many of the special education
prisoners appear on the reading level screening totals because most have current T.A.B.E.
scores as part of their special education program. Prisoners with current T.A.B.E. scores

(less than 6 months old) did not require additional testing.

The prisoner possesses a learning disability thpt would hammr him from filing coherent
pleadings.

 

This criterion was operationalized as the need for Special education
programming. See Table Five. Physically based learning disabilities, those based on
hearing or visual impairments were operationalized as medical conditions. See Table
Six.

The prisoner possesses a physical or mental impairment that prevents him fiom using a
law lierarv to prepare and file a coherent pleading.

Screening for physically and mentally impaired prisoners was performed by

Michigan Reformatory clinical staff. In an effort to assure the privacy of medical records

TABE if M H1 riterion “maintain

    

Frequency Percentage doctor-patient

 

 

; - . . o
-. f: ....
iogéggegdmental health condition 518 (3)14: staff was not
1715 100.0% i informed of the
— " H '- — ’ impairment.

Rather, a form was returned to the Legal Writer Program office stating that the prisoner

possessed a qualifying impairment. Any prisoner not otherwise qualified or in

59

segregation was screened through his medical records. This screening process revealed
fifieen prisoners with qualifying mental health issues and one prisoner with a qualifying
medical condition. While these numbers may seem low, the Michigan Reformatory is
reserved for young and generally healthy male prisoners. Prisoners with known medical
conditions are generally housed closer to the Duane Waters Hospital in the Jackson, MI
(Michigan Department of Corrections, 1997).

Prisoners in segregation with court deadlines that are not able to prepare a timely and
coherent pleading with materials a_V_ailable within the segregation unit.

All prisoners in segregation were considered eligible for service under the pilot
program if they had a deadline while still in segregation or immediately after release.
Screening of segregation prisoners was accomplished by the legal writer assigned to the
segregation area. As with other prisoners, segregation prisoners were presumed qualified
until proven otherwise. The disposition of all cases started by the legal writers is
examined in Table Eight. There were no eligible requests made from segregation during
the pilot.

Qualifying Prisoners

Of the 1715 screened during the six month pilot, 468 qualified for assistance
under the criteria mandated by the Federal District Court. However, simply qualifying
under these criteria does not signify a need for assistance in accessing the courts. To be
eligible for assistance the prisoner must present a non-frivolous claim and state a specific
remedy. The next section details the requests for assistance received by the Legal Writer

Office during the pilot.

60

Eligible Requests

In all, 100 prisoners requested assistance. The request for service is the most
basic qualifying criterion. Without contact to the Legal Writer Office, no assistance can
be rendered. To be able to apply, prisoners must be aware of the program. Incoming
prisoners were told about the program during the intake and screening process. Other
prisoners were notified of the program during verbal announcements on numerous
occasions including their own screening by their Resident unit managers (RUMs). The
Hilltop News, the prison newspaper, carried extensive articles on the program, and flyers
were posted in common areas. Adequate notification of the prisons regarding the

program was not challenged by plaintiff attorneys. Requesting assistance was facilitated

5 Withdrew or Refused Testing
10 Verified not eligible
7 Transferred
78 Interviewed by LAP staff
1 Withdrew
l Verified not eligible
1 Service requested is not provided by LAP
75 Assigned a legal writer
13 Verified not eligible
8 Transferred before completion of requested assistance
7 Withdrew or Refused testing
5 Counsel assigned- no further LAP service
2 Service requested is not provided by LAP
3 Pending determination of eligibility
38 Verified eligible and requested authorized assistance
9 Currently working with legal writer
4 Withdrew / No service provided
1 Counsel assigned- no further LAP service
1
1

l
3 Assistance provided
Transferred orior to com letion of work

 

by a flexible and often informal process. Any prisoner could submit a kite1 to the office.
RUMs or assistant resident unit managers (ARUMs) were tasked with assisting prisoners

61

unable to make use of the institutional mail (kite system). Several requests for assistance
came with an informal endorsement from ARUMs. The Legal Writer Office was open to
prisoners on law library or regular library call out. Many verbal requests were submitted
during these times. In the case of verbal requests, staff or prisoner legal writers recorded
the request and processed it as other requests. Table Seven summarizes of all requests for
assistance received by the Legal Writer Office. The left column gives a diminishing tally
of requests and the column on the right describes their attrition through the eligibility
screening process. As with all other aspects of this program, prisoners were presumed
eligible until proven otherwise. Thus in many cases, the prisoner was determined
ineligible after the service was completed (i.e. letter requesting counsel or requests for
trial transcripts).

The progressive exclusion of cases represented in this table reflects the fact that
not all requests for assistance adhere to the specific guidelines for-eligible cases. Many
cases appear to require an eligible intervention, but subsequent facts arise that make the
service required ineligible. Only the final number of 38 should be used to measure the
actual number of prisoners that were verified eligible and made eligible requests for
assistance. Thus, out of 468 individual prisoners that met at least one qualifying

criterion, only 38 presented a valid request for service.

62

Endnotes for Chapter 4, Prisoners in Need of Special Assistance

' A Kite is intra-institutional mail.

63

 

DISCUSSION

This thesis uses the legally constructed reality of adequate access to the courts as a
basis for an analysis of the empirically verifiable fact of inmate impairment. This does
not exclude the possibility that the courts have not adequately addressed the impairments
that may effect inmate access. For example, the courts have decided that a ninth grade
reading level is sufficient to use a law library and existing mechanisms to meaningfillly
access the courts. This cutoff point is highly debatable, but for the purposes of this work,
the legal construct of reality is the 9th grade reading level. By its definition, the legal
construction of reality is a socially derived product of the court system. Although the
term ‘judicially created reality’ has been used freely in this work, it is with the
recognition that the judge only canonizes the results of the courtroom process. This
process relies on the input of both parties to a decision and the judge. The results of an
empirical analysis of impairment at the Michigan Reformatory indicate that there is
substantial deviation between the legal construction of access to the courts and the fact in
practice'.

Based on criteria mandated by the Federal District Court, 468 prisoners would be
unable to achieve meaningful access to the courts. However, given the final criteria of an
eligible claim, only 38 prisoners would be denied meaningful access to the courts without
the Legal Writers Program. This result indicates that 38 inmates would have standing to
bring a claim if they were able to submit a petition that would pass summary dismissal.

The simple result of this thesis is that there is a significant difference between the right of

64

access to the courts as constructed by case law and the ability of inmates to vindicate this
right.
The Construction of Prisoner Access to the Courts

The first objective of this work is to establish the current construction of prisoner
access to the courts. The courts have created this meta-right out of necessity. Early
decisions based on the right to petition for Habeas Corpus have been expanded to
provide a mechanism for prisoners to vindicate all other rights. Since its creation in Ex
Parte Hull, this legal reality has been reconstructed in the courts to encompass an ever-
increasing range of contingencies. Johnson v. Avery provides for assistance from other
inmates at the expense of the executive’s authority to govern prisons. Johnson is
significant in that it was the first to recognize that all inmates might not be able to
vindicate their right of access because of impairments. Younger v. Gilmore created the
requirement for the state to provide affirmative assistance to ensure a fair hearing.
Younger is unique in that it makes the prison administration responsible for providing
resources. In this regard, Younger places the right of access on equal footing with less
abstract rights like the right to medical care. Bounds v. Smith remains the most
procedurally applicable of the access to the courts decisions. Bounds establishes the
minimum duty of the state to assure access to the courts. For unimpaired prisoners,
Bounds is still the defining construction of the right of access.

Lewis v. Casey provides a legal solution to a real world condition that threatens
the construction of inmate access. If the court assumes that Avery’s legal assistance

agreements and the Bounds’ law libraries are sufficient to provide access to the courts,

65

Lewis v. Casey answers claims that prisoners with impairments cannot achieve access to
the courts. Lewis does not deny that some prisoners cannot achieve access to the courts
under the prevailing construction of the right. However, Lewis places the burden of
proving lack of access on the prisoner. Lewis left the current construction of the right of
access essentially unchanged but in doing so effectively ‘raised to the bar’ on an inmate’s
attempt to vindicate the right of access by requiring additional procedural barriers (i.e.
impaired inmates must prove standing by proving actual harm). Recent legislation such
as PLRA and the Antiterrorism and Effective Death Penalty Act of 1996 will only add
barriers to vindication of the right of access. The current construction of the right of
access is that inmates have the right to affirmative assistance to achieve meaningful
access to the courts, but have significant procedural barriers in place. In essence,
prisoners have the right to access the courts, but must prove, in court, any disability that
may require assistance to vindicate that right.
Ability of Prisoners to Vindicate the Right of Access

The second portion of this thesis is an inquiry into the reality of impairment
necessitating special assistance to achieve access to the courts. An assessment was made
of the entire six-month transient population of the Michigan Reformatory. The results of
this assessment answer the following questions. 1) What is the nature of the injury?
Systematic impediments to bringing a non-frivolous claim against a department of
corrections resulting in the continued or repeated violation of an inmate’s rights. 2) What
is the programmatic need based on the total eligible impaired population? In the

population of the Michigan Reformatory, 468 of 1715 or 27.2% of the prisoners may have

66

had standing if their rights had been violated and they chose to bring suit. 3) What is the
programmatic need based on the fusion of appropriate claims and eligible population?
During the six months of the pilot, only 38 eligible non-frivolous claims were brought to
the Legal Writer Office. This represents about 2.2% of the population. Despite this small
proportion, access to the courts is a right protected by extensive case law. Therefore,
correctional administrators must make plans to vindicate this right or suffer court action.
The reality of access to the courts is that all prisoners now suffer substantial procedural
burdens and impaired prisoners must find help or prove that they need assistance before
they can achieve access to the courts.
Steps and Deadlines of a Typical Inmate Suit in Michigan

The Table Eight provides a detailed description of the state remedies that federal
law requires a typical prisoner to exhaust before he or she can even file a Habeas Corpus
action. This list is based on a tool created by Legal Access Pilot staff to guarantee timely
service by the legal writers. Each action on this list has been regularly encountered
during the Legal Access Pilot at the Michigan Reformatory. The deadlines and
procedural burdens are accurate in the state of Michigan during the Legal Access Pilot.
This list does not convey the full onerousness of these requirements only the deadlines
and procedural path that any litigant, including an indigent or illiterate inmate, is required
to fulfill. For a more detailed examination of this information see (Appendix D,
Annotated Michigan Post Conviction Remedies Time Line). In this example, delayed
applications are used whenever possible to present a best case for the prisoner in terms of

deadlines.

67

TABLE 8, A Typical Inmate’s Path to Habeas Corpus Relief

 

Action

Deadline

 

Timely Appeal as of Right / Request for Counsel
Michigan Law requires a response within 14 days. This
application should be made by the trial attorney, but is
often ignored, thus requiring a Delayed Application for
Leave to Appeal (Court of Appeals). Prisoners with
attorneys appointed for the Court of Appeals have
achieved ‘meaningful access.’

42 days after sentencing

 

Request for Transcripts (Indigent)
Note: Michigan Law requires a response in 28 days if
conviction is by plea or 56 days if conviction is by trial.

No time limit

 

Motion to Show Cause
Needed if transcripts are denied or not received.

 

Delayed Application for Leave to Appeal (COA)
Must include a letter explaining delay. If denied in COA,
go to MSC.

12 months from denial of
motion for relief

 

Delayed Application for Leave to Appeal (MSC)
Includes same as regular leave to appeal plus a letter
explaining delay.

56 days from opinion
denial

 

Motion for Reconsideration (MSC)
Use only if MSC accepted the case and made a decision.
Note: denial = no decision.

21 days from opinion/order

 

Motion for Relief from Judgement (Sentencing Court)
The action is referred to as the state Habeas Corpus.

No time limit

 

Motion for Reconsideration (Sentencing Court)
If Motion for Relief from Judgement is denied.

21 days from denial of
motion for relief

 

Delayed Application for Leave to Appeal (COA)
Must include a letter explaining delay. If denied in COA,
go to MSC.

12 months from denial of
motion for relief

 

Delayed Application for Leave to Appeal (MSC)

56 days from denial by
COA

 

Federal Habeas Corpus

$5.00 filing fee or proof of indigency required. Must have
inmate account statement attached. Must request counsel
even if counsel has previously been denied.

No time limit

 

 

Response to Motion to Dismiss

 

60 days from Motion to
Dismiss

 

Note: MSC= Michigan Supreme Court

COA= Court of Appeals (Mich)

68

 

All these steps must be completed in order before federal actions can result.
Based only on the numbers provided by Hanson and Daley (1995), in 1992 nearly 15,3002
inmate suits were rejected by the federal courts for failure to navigate similar
requirements made by the states. Further, up to 32003 more petitions failed because of
the inmates’ inability to navigate the requirements of the federal appeals system. Policy
makers have tried to prevent further backlog by imposing additional burdens to the pro se
litigant. This in turn has forced more prisoners into failure to comply with the court rules.
It is conceivable that the dramatic increase in backlog is due in part to repetitions of
technically flawed petitions. Policy makers could address this by responding to the

impairment found in this research.

Policy Implications for the Michigan Cases

In Lewis v. Casey", the Supreme Court required that suits charging violation of a
prisoner’s right of access to the courts must show harm in fact occurring from an act or
omission on the part of state. This decision reverses years of case law requiring states to
answer speculations of essentially unprovable assertions of potential harm. While this
may seem like a broad victory for departments of correction, it requires a proactive role in
avoiding costly litigation by inmates who can prove actual harm.

Under this new standard, the state will have a more difficult task prevailing over
an inmate who has already established actual harm. It will therefore be desirable for the
Michigan Department of Corrections to prevent the harm in the first place. Failing that, it
would be desirable for the state to have verifiable proof that the instance of harm could

only occur in an exceedingly small portion of the prisoner population or only under rare

69

circumstances. This would reduce the possibility of class action or orders for system
level relief. The first Option would obviously be preferable. In this way, prisoner claims
would fail to enter costly litigation. For a state to recognize circmnstances that may harm
a prisoner’s access to the courts, the state would need a sound body of empirical research
defining the characteristics of its prisoner population that may effect access to the courts.
Using the results of this study, the Michigan Department of Corrections can more
accurately estimate the number of potentially eligible prisoners in its custody. An
administrator may also wish to conduct a similar, if somewhat more limited, assessment
of his or her own prisoner population. With this information, policy makers would be
free to rationally assess the impact of new programs to address the needs of prisoner
populations. While a new program may benefit a given category of prisoners, it may not
be cost effective or politically desirable to offer that program to the entire prison
population. Option two addresses such circumstances. A policy maker may make a
programming decision that ultimately produces harm in fact to a prisoner. When such a
circumstance occurs, the courts would be likely to find in favor of the inmate who has
already proven violation of his or her rights. As is often the case when courts assume the
role of policy maker, the executive branch loses its autonomy and ability to balance
expenditures against other needs5 . Even a cursory examination of the case law reveals
that such decisions, when implemented on a class wide basis, can be very costly and
seemingly infinite in duration".

This study removes access to the courts from the realm of speculation and

anecdote and provides basis to assess actual need. Although this will be a useful tool for

70

administrators, it may have greater effect in causing all players to reevaluate their roles in
what ofien tends to be a marathon litigation with few positive effects in relation to
resource expenditure. Decision making in cases regarding access to the courts is unlike
other areas. Rather than forcing a decision of least obnoxious remedial measures on
administrators, this information may present new opportunities to vindicate prisoners
rights while simultaneously lessening the risk and burden on correctional administrators.
Access to the courts for prisoners offers a unique situation for civil rights
advocates, attorneys general, and federal judges alike. It is one of the few instances when
they are bona fide experts in substantive as well as procedural aspects of a correctional
process. Unfortunately, this expertise often conflicts along the same boundaries as old
adversarial relationships. This situation places correctional agencies at an unusual
disadvantage. In most matters, correctional agencies are able to rely upon in-house
experts in procedural matters. In many cases contracted consultants bolster the opinions
of these experts. Unlike other subjects of inmate litigation, access to the courts hinges on
a judge's personal perceptions of “reality.” The reality of prisoner access to the courts is
not constructed by the usual means. The courtroom workgroup’s expertise plays a far
more prominent role than in other matters. The judge may preside over any number of
inmate suits. He or she may also be involved in the summary disposition of prisoner
suits. It is natural that a judge would become frustrated with the quality of prisoner
petitions and form his or her own opinions about the desirability of the remedy. In
actions not related to access to the courts, the judge must rely on testimony, evidence, and

the occasional fact finding tour. However, for the most part, he or she is swayed by the

71

credibility of expert witnesses. Many court actions against correctional agencies have
devolved into détente between opposing experts. Even in such cases, the Supreme Court
often finds it necessary to remind lower courts that these experts have more knowledge of
correctional management than the federal bench. This strategy is not as effective with
legal matters. Nearly all of the players in an inmate rights lawsuit are experts in the law
except the correctional administrators. Consultants brought in by a department of
corrections are at best viewed as just another voice coequal with the other “experts”
already present. At worst they are viewed with a contempt reserved for non-practicing
attorneys because the court room is already saturated with would-be experts each pressing
his or her own construction of the reality of inmate litigation.

It seems that some federal judges are pleased to administer agencies and public
policy by judicial flat in realms to which they freely admit no expertise (F eikens, 1991).
The arena of inmate access to the courts offers the federal bench additional temptation to
dispense with the notions of comity and federalism. First, the bench is tempted to
abandon deference to the sound penological goals as determined by agency. Correctional
policies are (or should be) based on a rational assessment of all known factors and all
projected outcomes. While a federal judge may know exactly what is required to get an
inmate’s pleading “[through] the courthouse door”7, he or she may not know the whole
effect of such an action. The judge’s knowledge of the procedural aspect of access to the
courts does not necessarily produce the programmatic, security, and political expertise

necessary to administer an executive agencys. Second, the expertise of the court may stir

72

the bench to seek the “best” solution that may or may not be balanced with the practical
need to refrain from resource expenditure.

What the court often fails to realize is that the same set of circumstances that
makes it a subject matter expert also presents a moral obligation to be part of the solution.
Generally, the court has no particular expertise in any given policy area within a
correctional system. The court relies on the testimony of witnesses and documents
offered in evidence by one of the adversarial parties (Defendants or Plaintiffs). The court
then renders a decision on whether the alleged harm violated the protected rights of the
prisoner or prisoners. A principal recently brought back to the forefi'ont of judicial
decision making, comity, demands that the court produce orders that respect the role of
the executive branch in decision making and only order the least intrusive remedy
available. This allows the “experts” to make penologically sound decisions on policy that

reflect the role chosen for the executive by the electorate and that best reflect the day to

day realities of a correctional institution.9 In cases involving access to the courts, nearly
everyone in the courtroom is a subject matter expert.

This fact often allows the adversarial players to openly encourage the bench to
recognize the apparent validity of anecdotal evidence presented by counsel in the form of
argument rather than testimony. When the court accepts this role as expert and active
player, by making decisions based on experience, it often fails to recognize the equally
active role it may play in the remedy. Until Lewis v. Casey"), the federal bench seemed
eager to exercise unconstitutional administrative power over the day to day operation of

various departments of correction. The federal judiciary has not exercised the

73

administrative powers granted under the constitution; the courts have the power to
administer their own offices. Within the narrowly drawn scope of constitutionally
protected access to the courts presented in Lewis v. Casey (direct and indirect attacks on
conviction and civil rights actions), the courts have seemingly ignored their own role in
facilitating prisoner access to the courts.

The court has no “facilitated” mechanism in place to serve the legal needs of the

indigent and/or impaired prisoner”. There are some “simplified” forms available to
prisoners, but the court rules governing the filing those forms are often enough to confuse
attorneys and thoroughly befuddle impaired pro se litigants. It is the duty of the court to
assess its own operation and the effects produced thereby that serve to limit an impaired
inmate’s ability to gain access. If the administration of the system of law is such that it
precludes those it was meant to protect, then corrections is less at fault for the deprivation
of the right of access to the courts than the bench itself.

Impaired prisoners are the group most directly effected by the absence of required
assistance in accessing the courts. Bounds granted literate prisoners the access to law
libraries or other means of accessing the courts. This standard of assistance has survived
challenges since the ruling of Bounds in 1978. There is no imperative to reassess this
standard. However, prisoners unable to use the law library effectively because of an
impairment cannot adequately vindicate their right of access. Although the mere
existence of this right should be enough reason to require assistance, there are legitimate
penological goals associated with this right. First, it allows for the redress of grievances

without recourse to violence (Silberman, 1992). Silberman claims that access to the

74

courts gives prisoners hope of an impartial hearing of their complaints. This forum of last
resort reduces tensions and facilitates the smooth operation of the prison. Second, any
attempts to curtail or failure in the duty to facilitate prisoner access would in fact be
counterproductive. Meritorious suits could result from efforts to curtail inmate access
(Thomas, 1988). Third, departments of correction sponsoring ‘writ writer’ programs
could benefit from the continued autonomy offered by a non-court-mediated solution.
Participation in the program by inmate paralegals could be used to enhance administrative
control of the inmate’s behavior (Bluth, 1972). Illicit payment could be more closely
controlled by restricting inmate’s access to a writ writer to a supervised situation in a
designated work area (Alpert & Huff, 1981).

Essentially, many authors have recognized the moral and legal imperative to
protect the rights of prisoners held by the state. There are also benefits to the
administration of prisons for maintaining a system in which prisoners can react
nonviolently to situations in which they feel wronged.

Conclusion

This thesis defines the current construction of the right of access to the courts for
prisoners and compares the legally constructed reality with the fact of inmate impairment.
There are many inmates with the potential to be denied the ability to pursue not just the
right of access but all other rights. Without the ability to access the courts, all other rights
are at the discretion of the prison administration. The construction of the right of access
assumes that all prisoners will be able make use of resources provided by the prison. Not

all prisoners are equipped to make use of these resources. This inconsistency will

75

produce the need for more litigation or the wholesale denial of rights to prisoners with

impairments.

76

 

Endnotes for Chapter 5, Discussion
’ As stated in Chapter 3, legal protections of an inmate’s right to confidential legal
correspondence prevented this study from actually using a direct measure of the inmates’
ability to obtain meaningful access to the courts on their own. Thus, this thesis relies on
the judicial construction of impairment that prevents meaningful access to the courts. It
is also appropriate to use a legally constructed definition to examine the legal construct of
the right of access.

2 Of 26,800 petitions for Habeas Coprus, 57% were rejected for failure to exhaust state
remedies.

3 Of 26,800 petitions for Habeas Coprus, 57% were rejected for procedural default.

4 Lewis v. Casey, ---- U.S. ----- (1996) Slip Opinion No. 94-1511, Decided 6/24/96.

5 The courts view only the issue at hand and have the power to mandate compliance with
a standard deemed necessary by the court. This often occurs at the expense of other
budget areas as executive departments are constrained by legislative allocations. While
the separation of powers long prevailed in this area, causing the courts to eschew prisoner
rights cases altogether, Rhodes v. Chapman, 452 US. 337, 357 (1981) described the
Court’s activist stance requiring expenditures beyond those provided for by the legislative
branch. “Funding for prisons has been dramatically below that required to comply with
basic constitutional standards” ibid. at 377 (Marshall Dissenting) “In the current political
climate, it is unrealistic to expect legislators to care whether the prisons are
overcrowded... the political process offers no redress.”

6 See Hadix v. Johnson 694 F .Supp. 259 (ED. Mich. 1988), Hadix v. Johnson 712
F.Supp. 550 (ED. Mich. 1989), Hadix v. Johnson 740 F.Supp. 433 (ED. Mich. 1990),
Hadix v. Johnson 792 F.Supp. 527 (ED. Mich. 1992), Hadix v. Johnson 977 F .2d
996(E.D. Mich. 1992), Hadix v. Johnson 879 F.Supp. 743 (ED. Mich. 1995), Hadix v.
Johnson 694 F .Supp. 259 (ED. Mich. 1988), Glover v. Johnson 478 F.Supp. 1075 (ED.
Mich. 1979), Glover v. Johnson 510 F .Supp. 1019 (ED. Mich. 1981), Glover v. Johnson
531 F.Supp. 1036 (ED. Mich. 1982), Glover v. Johnson 659 F.Supp. 621 (ED. Mich.
1987), Glover v. Johnson 662 F .Supp. 820 (ED. Mich. 1987), Glover v. Johnson 855
F.2d 277 (6th Cir.1988), Glover v. Johnson 721 F .Supp. 808 (ED. Mich. 1989), Glover
v. Johnson 934 F .2d 703 (6th Cir.1991), Glover v. Johnson 850 F.Supp. 592 (ED. Mich.
1994), Glover v. Johnson 862 F.Supp. 180 (ED. Mich. 1994), Glover v. Johnson 879
F.Supp. 752 (ED. Mich. 1995), and Glover v. Johnson 75 F.3d 264 (6th Cir.1996).

7Knop v. Johnson, 977 F.2d 996 at 1006 (6thCir.1992)
8 Knop v. Johnson, 977 F.2d 996

9The day to day realities of an institution are often ignored to facilitate the executive and
legislature's political needs. Nearly any "line professional" in criminal justice knows that
political consideration (including legal obligations forced on them by the courts) often
take precedence over day to day realities. I do not choose to pursue this argument
because it is nearly impossible for the line professional to recognize whether it is a
political or legal consideration that causes the seemingly ubiquitous "unrealistic" policies
that seem to flow from a central bureaucracy.

‘0 Lewis v. Casey, ---- U.S. ----- (1996) Slip Opinion No. 94-1511, Decided 6/24/96.

77

 

11There are other areas of the law in which court seemingly makes no effort to facilitate
the access of indigent and impaired prisoners or similarly disadvantaged free citizens. A
recent Sixth Circuit decision denied prisoners' claims of entitlement to assistance for
areas such as "domestic relations, personal injury, deportation, workers compensation,
social security, detainer, wills and estates, and taxation" Glover v. Johnson, 1996 FED
App. 0048P (6th Cir.) 96a0048p.06 (page 10). This opinion was reinforced in Lewis v.
Casey,( ---- U.S. ----- (1996) Slip Opinion No. 94-1511, Decided 6/24/96.) (pages 9-11)
wherein the court determined that the issue of legal access for prisoners applies only to
provision of "the tools to attack their [inmate's] sentences, directly or collaterally, and to
challenge the conditions of their confinement. Prior to the preceding decisions the federal
court ordered the Michigan Department of Corrections to provide assistance in precisely
the areas denied by the Sixth Circuit as not constitutionally required. At no time was the
lower court inclined to modify its practices or paperwork to facilitate inmate access.

78

APPENDICES

79

APPENIX A
Simplified § 1983 Form

FORM TO BE USED BY A PRISONER FILING A COMPLAINT
UNDER THE CIVIL RIGHTS ACT, 42 U.S.C. § 1983

In the United States District
Court

For the Western District of
Michigan

 

(Enter the full name of the plaintiff in this action)

V.

 

 

 

(Enter the full name of the defendant
or defendants in this action)

Instructions for Filing a Complaint by a Prisoner
Under the Civil Rights Act, 42 U.S.C. ' 1983

The clerk will not file your complaint unless it conforms to these instructions and to these
forms.

Your complaint must be legibly handwritten or typewritten. You, the plaintiff, must sign
and declare under penalty of perjury that the facts are correct. If you need additional space to
answer a question, you may use the reverse side of the form or an additional blank page.

Your complaint can be brought in this court only if one or more of the named defendants is
located within this district. Further, you must file a separate complaint for each claim that you
have unless they are all related to the same incident or issue

You are required to furnish, so that the United States marshal can complete service, the
correct name and address of each person you have named as defendant. A PLAINTIFF IS
REQUIRED TO GIVE INFORMATION TO THE UNITED STATES MARSHAL TO ENABLE
THE MARSHAL TO COMPLETE SERVICE OF THE COMPLAINT UPON ALL PERSONS
NAMED AS DEFENDANTS.

In order for this complaint to be filed, it must be accompanied by the filing fee of $60.00.
In addition, the United States marshal will require you to pay the cost of serving the complaint on
each of the defendants.

If you are unable to pay the filing fee and service costs for this action, you may petition the
court to proceed in forma pauperis by completing and signing the attached declaration “rage 4).
If your prison account exceeds 8 , you must pay the filing fee and service costs.

You will note that you are required to give facts. THIS COMPLAINT SHOULD NOT
CONTAIN LEGAL ARGUMENTS OR CITATIONS.

80

1. Previous Lawsuits

A. Have you begun other lawsuits in state or federal court dealing with the same

facts involved in this action or otherwise relating to your imprisonment?
YesE] Not]

If your answer to A is yes, describe the lawsuit in the space below. (If there is
more than one lawsuit, describe the additional lawsuits on another piece of
paper, using the same outline.)

1. Parties to this Previous lawsuit
Plaintiffs

 

 

Defendants

 

 

2. Court (If federal court, name the district. If state court, name the
county)
3. Docket Number

4. Name of judge to whom case was assigned

 

 

 

5. Disposition (for example: Was the case dismissed? Was it appealed? Is
it still pending?)

 

 

6. Approximate date of filing lawsuit

 

7. Approximate date of disposition

 

II. Place of Present Confinement

A.
B.

 

Is there a prisoner grievance procedure in this institution? Yesl] No [1
Did you present the facts relating to your complaint in the the state prisoner

grievance procedure?

C.

D.

E.

YesD NOE]
If your answer is YES,
1. What steps did you take?

 

 

2. What was the result?

 

 

If you answer is NO, explain why not

 

 

If there is no prisoner grievance procedure in the institution, did you complain

to the prison authorities?

F.

YesD Not]
If your answer is YES,

1. What steps did you take?

 

 

2. What was the result?

 

 

81

III. Parties
(In the item A below, place your name in the first blank and place your present
address in the second blank.
Do the same for additional plaintiffs, if any.)
A. Name of Plaintiff
Address
(In item B below, place the full name of the defendant in the first blank, his official
position in the second blank, and his place of employment in the third blank. Use
item C for the names, positions, and places of employment of any additional
defendants.)
B. Defendant is employed as
at

 

 

 

 

 

C. Additional Defendants

 

 

 

IV. Statement of Claim
(State here as briefly as possible the facts of your case. Describe how each
defendant is involved. Include also the names of other persons involved, dates, and
places. Do not give any legal arguments or cite any cases or statutes. if you intend
to allege a number of related claims, number and set forth each claim in a separate
paragraph. Use as much space as you need. Attach extra sheets if necessary.)

 

 

 

 

 

 

 

 

V. Relief
(State briefly exactly what you want the court to do for you. Make no legal
arguments. Cite no cases or statutes.)

 

 

 

 

 

Signed this day of , 19

 

 

 

(Signature of Plaintiff)
I declare under penalty of perjury that the foregoing is true and correct.

 

 

(Signature of Plaintiff) (Date)

82

APPENDIX B
Screening Criteria

The prisoner cannot read and/or write at or above the ninth grade.

3)

b)

Prisoner was not eligible under this criterion if he possessed a GED.
This indicates that he passed a nationally standardized test of reading and
writing at the eleventh grade level. Prisoners were screened for a GED.
at the initial interview and through a check of school records.

Prisoner was eligible if he scored an ‘L,’ ‘E,’ or ‘M’ on the T.A.B.E.
Locator]. The T.A.B.E. Locator is a survey test designed to gauge the
approximate functioning level of reading and language use. Results of
‘L,’ ‘E,’ or ‘M’ place the prisoner in the following academic ranges
respectively:

i) L, Low, grade 0 - 1.9

ii) E, Easy, grade 1.6 - 3.9

iii) M, Medium, grade 3.6 - 6.9

Prisoner was required to complete the full T.A.B.E. battery2 if he scored a
‘D’ or an ‘A’ on the T.A.B.E. Locator. Only a result of greater than ninth
grade on the T.A.B.E. battery made a prisoner ineligible under this
criterion. Locator results of ‘D’ or ‘A’ merely indicated that more testing
was required.

i) D, Difficult, grade 6.6 - 8.9

ii) A, Advanced, grade 8.6 - 14.9

The prisoner lacks the intelligence necessary to prepare coherent pleadings.

8)

Prisoners found eligible for Michigan Department of Corrections Special
Education programming were eligible for Legal Writer assistance.

The prisoner possesses a physical or mental impairment that prevents him from
using a law library to prepare and file a coherent pleading.

8)

Mental Health conditions meeting this requirement must meet a two part
test:
i) Global Assessment of Functioning (GAF)3 score of 55 or less

ii) Diagnosis of one of the following .
a) 295 Schizophrenia
b) 296, 301 Bipolar disorder
c) 295.70 Schizo-affective disorder

d) 296.2, 296.3 Major depressive disorder

e) 298.80, 295.40, 297.30, 298.90 Psychosis

f) 290, 293, 294 Chronic brain disorder with function
impairment

g) other condition considered to be a severe disorder of
thought or mood that significantly impairs judgment,
behavior, capacity to recognize reality or ability to cope
with ordinary demands of life (Michigan Department of
Corrections, 1996).

h) Medical conditions meeting this requirement are
determined by on-site health care professionals.

83

b) The prisoner possesses a learning disability that would hamper him from
filing coherent pleadings.

c) Prisoners found eligible for Michigan Department of Corrections Special
Education programming were automatically eligible for Legal Writer
assistance.

4. Prisoners in segregation with court deadlines that are not able to prepare a timely
and coherent pleading with materials available within the segregation unit.

a) Prisoners in segregation received immediate attention and review of their
cases upon notification of the Legal Writer Office. Cases of prisoners in
segregation were treated eligible until proven otherwise. Prisoners with
deadlines within ten days of their release from segregation were eligible.

b) Prisoners eligible outside of segregation are eligible while in segregation.

(Michigan Department of Corrections, 1995).

lTABE: Test of Adult Basic Education. The TABE is normed to a prison population and
is used throughout the Michigan Department of Corrections. “The TABE is a
comprehensive testing tool for reading, mathematics, language, and spelling. It provides
both diagnostic and prescriptive information. The TABE Locator is a brief pre-test,
established to help examiners choose the right battery test level for each examinee.”
(internal quotes omitted) (Michigan Department of Corrections, 1996).

:Note: TABE battery rs a description, and TABE Locator rs a proper name.

3GAF scores are determined by trained clinical staff using criteria in the DSM-IV
(American Psychiatric Association, 1994).

Diagnostic criteria for these disorders are taken from the DSM- IV (American Psychiatric
Association, 1994).

84

APPENDIX C

INTAKE SREENIN G F ORM- LEGAL ACCESS PROJECT
Number: DOB: / / Arrival Date: / /

Name:

 

 

 

I. This section identifies potentially eligible prisoners needing assistance:

 

 

MEDICAL INFORMATION:

Completed by: Date: / /
Does prisoner have any learning impairment that would impair his
ability to file coherent pleadings? Yes No
Mental Health Issue(s): Yes No

Describe mental health/learning impairment or health care issues below, and effect on
behavior which would limit his ability to file coherent pleadings:

 

Recommend for Legal Writer assistance?: Yes No
Is there a health problem STAFF should know about?: Yes No
State problem below:
Has a MEDICAL RELEASE been signed?: Yes No Date Signed: / /

CASEMANAGER CONDUCTING INTAKE INTERVIEW:

Completed by: Date: / I
Are there any conditions which would lead you to believe prisoner may be qualified for
assistance:

 

 

 

EDUCATIONAL BACK GROUND:
Completed by: Date: / /
Is his native language English? Yes No
If not, can he speak/write/understand English? Yes No Highest grade completed? __
When was prisoner given TABE test: / /
Scores: English:_Reading:
Level Scores: English:_Reading:

 

II. This section to be completed if prisoner potentially qualifies for Legal Writer
Training:

 

 

Completed by: Date: / /
Classified to General Population? Yes No
GED/11th Grade/ reading/writing ability verified? Yes No
Two Years Left to Serve at MR, and willingness to remain at MR? Yes No
Six Months Misconduct Free? Yes No
Overall prison record demonstrates good adjustment/trustworthiness? Yes No
LAP 1
Distribution: LAP Office, Counselor file 5722/95

85

APPENDIX D

Annotated Michigan Post Conviction Remedies Time Line

This form is not intended as an authoritative legal tool. It is a working product created to

enhance administrative control over the work of the Michigan Department of

Correction’s Legal Writer Pilot at the Michigan Reformatory and as an educational tool.
The authors: Peter Mingus and Kall Loper take no responsibility for the use or accuracy

of this working product.

 

 

 

 

 

 

 

 

 

 

Action Deadline Authority
Timely Appeal as of Right / Request for Counsel 42 days after MCR 7.203
Michigan Law requires a response within 14 days. This sentencing MCR 6.425(E)
application should be made by the trial attorney, but is MCR 6.425 (F)
often ignored, thus requiring a Delayed Application for
Leave to Appeal (Court of Appeals). Prisoners with
attorneys appointed for the Court of Appeals have
achieved ‘meaningful access.’
Request for Transcripts (Indigent) No time limit MCR 6.433(B)
Note: Michigan Law requires a response in 28 days if MCR
conviction is by plea or 56 days if conviction is by trial. 721093303)
Motion to Show Cause MCR 7.210(B)(l)
Needed if transcripts are denied or not received.
Application for Leave to Appeal 21 days from MCR 7.302
Requires 9 to 12 months for reply from MSC opinion/denial
(1) Application (6) Proof of service MCR 7.302(A)
(2) The opinions or orders (7) Notice of hearing
being filed
(3) Notice of hearing (8) An appendix
(4) Motion of waiver for (9) Statement as to why the
filing fee court should grant leave
(5) Affidavit of indecency (10) Letter requesting clerk

of the court to file package
*A complete copy is also sent to the prosecutor
Delayed Application for Leave to Appeal (MSC) 56 days from MCR 7.302(C)(3)
Includes same as regular leave to appeal plus a letter opinion denial
explaining delay.
Motion for Reconsideration (MSC) 21 days fiom MCR 7.313(D)
Use only if MSC accepted the case and made a decision. opinion/order
Note: denial = no decision.
Motion for Relief from Judgement (Sentencing Court) No Time Limit MCR 6.500
The action is referred to as the state Habeas Corpus.
Motion for Reconsideration (Sentencing Court) 21 days from MCR 6.504(B)(3)
If Motion for Relief from Judgement is denied. denial of

motion for
relief

 

 

 

Note: MSC= Michigan Supreme Court COA= Court of Appeals

Continued

86

 

 

 

 

 

 

 

 

 

 

 

Application for Leave to Appeal (COA) 21 days fiom MCR 7.205(A)
If Motion for Reconsideration is denied. denial of
motion for
reconsideration
Delayed Application for Leave to Appeal (COA) 12 months MCR 7.302(F)
Must include a letter explaining delay. If denied in COA, from denial of
go to MSC. motion for
relief
Application for Leave to Appeal (MSC) 21 days from MCR 7.302
denial 11y COA
Delayed Application for Leave to Appeal (MSC) 56 days from MCR 7.302(C)(3)
denial by COA
Federal Habeas Corpus No time limit 28 USC § 2254
$5.00Filing fee or proof of indigency required. Must have
inmate account statement attached. Must request counsel
even if counsel has previously been denied.
Response to Motion to Dismiss 60 days from FCR 12(b)6
Motion to
Dismiss
Note

MSC= Michigan Supreme Court
COA= Court of Appeals (Mich)
MCR= Michigan Court Rule #
FCR= Federal Court Rule #

All copy rights released to the public domain given proper credit to the authors and
acceptance of the disclaimer.

87

 

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88

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Case Law Cited

Bounds v. Smith, 430 US. 817 (1976)

Bounds v. Smith, 488 US. 869 (1988) cert. denied

Cross v. Powers, 328 F .Supp. 899 (W.D.Wis. 1971)

Cruz v. Hauck, 515 F.2d 322 (6“ Cir. 1975)

Exparte Hull, 312 U. S. 546 (1941)

F ulwood v. Clemmer, 206 F.Supp. 370 (1962)

Gilmore v. Lynch, 319 F.Supp. 105 (N.D.Cal.1970)

Glover v. Johnson, 721 F.Supp. 808 (E.D.Mich 1989)

Glover v. Johnson, 855 F.2d 277 («5th Cir.1988)

Glover v. Johnson, Order No. 94-1617, 1996 FED App. 0048P (6‘h Cir.)
Glover v. Johnson, 934 F.2d 703 (6th Cir. 1991)

Hadix v. Johnson, 694 F.Supp. 259 (E.D.Mich. 1988)

John L. v. Adams, 969 F.2d 228 (6th Cir. 1992)

Johnson v. Avery, 393 US. 483 (1969)

Knop v. Johnson, 667 F.Supp. 467 at 488 (W.D.Mich. 1987)
Knop v. Johnson, 685 F.Supp. 636 (W.D.Mich. 1988)

Knop v. Johnson, 977 F.2d 996 (6th Cir. 1992)

Knop v. Johnson, Order dated 22 December, 1994

Lassiter v. Department of Social Services, 452 US. 18 (1980)
Lewis v Casey, Slip Opinion No. 94-1511

Lewis v Casey, 43 F.3d 1261 (9th Cir., 1994) rev’d and remanded

93

Murray v. Giarratano, 492 US. 1 (1989)

Nolan v. Scafati, 430 F.2d 548 (18‘ Cir.1970)
Pennsylvania v. Finley, 481 US. 551 (1987)

Smith v. Bounds, 538 F.2d 541 (4th Cir. 1975)

Smith v. Bounds, 610 F .Supp. 597 (E.D.N.C. 1985)
Smith v. Bounds, 657 F.Supp. 1322 (E.D.N.C. 1985)
Smith v. Bounds, 813 F.2d 1299 (4th Cir. 1987)
Smith v. Bounds, 841 F.2d 77 (4th Cir. 1988)

Turner v. Safley, 482 US. 78 (1987)

Williams v. Department of Justice, 433 F.2d 958 (5‘'1 Cir. 1970)
Wolflv. McDonnell, 418 US. 539 (1974)

Younger v. Gilmore, 404 US. 15 (1971)

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96

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