Bounds v. Smith

Mr. Chief Justice Burger,

dissenting.

I am in general agreement with Mr. Justice Stewart and Mr. Justice Rehnquist, and join in their opinions. I write only to emphasize the theoretical and practical difficulties raised by the Court’s holding. The Court leaves us unenlightened as to the source of the “right of access to the courts” *834 which it perceives or of the requirement that States "foot the bill” for assuring such access for prisoners who want to act as legal researchers and brief writers. The holding, in my view, has far-reaching implications which I doubt have been fully analyzed or their consequences adequately assessed.

It should be noted, first, that the access to the courts which these respondents are seeking is not for the purpose of direct appellate review of their criminal convictions. Abundant access for such purposes has been guaranteed by our prior decisions, e. g., Douglas v. California, 372 U. S. 353 (1963), and Griffin v. Illinois, 351 U. S. 12 (1956), and by the States independently. Rather, the underlying substantive right here is that of prisoners to mount collateral attacks on their state convictions. The Court is ordering the State to expend resources in support of the federally created right of collateral review.

This would be understandable if the federal right in question were constitutional in nature. For example, the State may be required by the Eighth Amendment to provide its inmates with food, shelter, and medical care, see Estelle v. Gamble, 429 U. S. 97, 103-104 (1976); similarly, an indigent defendant’s right under the Sixth Amendment places upon the State the affirmative duty to provide him with counsel for trials which may result in deprivation of his liberty, Argersinger v. Hamlin, 407 U. S. 25 (1972); finally, constitutional principles of due process and equal protection form the basis for the requirement that States expend resources in support of a convicted defendant’s right to appeal. See Douglas v. California, supra; Griffin v. Illinois, supra.

However, where the federal right in question is of a statutory rather than a constitutional nature, the duty of the State is merely negative; it may not act in such a manner as to interfere with the individual exercise of such federal rights. E. g., Ex parte Hull, 312 U. S. 546 (1941) (State may not interfere with prisoner’s access to the federal court by screen *835 ing petitions directed to the court); Johnson v. Avery, 393 U. S. 483 (1969) (State may not prohibit prisoners from providing to each other assistance in preparing petitions directed to the federal courts). Prohibiting the State from interfering with federal statutory rights is, however, materially different from requiring it to provide affirmative assistance for their exercise.

It is a novel and doubtful proposition, in my view, that the Federal Government can, by statute, give individuals certain rights and then require the State, as a constitutional matter, to fund the means for exercise of those rights. Cf. National League of Cities v. Usery, 426 U. S. 833 (1976).

As to the substantive right of state prisoners to collaterally attack in federal court their convictions entered by a state court of competent jurisdiction, it is now clear that there is no broad federal constitutional right to such collateral attack, see Stone v. Powell, 428 U. S. 465 (1976); whatever right exists is solely a creation of federal statute, see Swain v. Pressley, ante, p. 384 (opinion of Burger, C. J.); Schneckloth v. Bustamonte, 412 U. S. 218, 250, 252-256 (1973) (Powell, J., concurring). But absent a federal constitutional right to attack convictions collaterally—and I discern no such right—I can find no basis on which a federal court may require States to fund costly law libraries for prison inmates. * Proper federal-state relations preclude such intervention in the “complex and intractable” problems of prison administration. Procunier v. Martinez, 416 U. S. 396 (1974).

I can draw only one of two conclusions from the Court's holding: it may be read as implying that the right of prisoners to collaterally attack their convictions is constitutional, rather than statutory, in nature; alternatively, it may be read as *836 holding that States can be compelled by federal courts to subsidize the exercise of federally created statutory rights. Neither of these novel propositions is sustainable and for the reasons stated I cannot adhere to either view and therefore dissent.

The record reflects that prison officials in no way interfered with inmates’ use of their own resources in filing collateral attacks. Prison regulations permit access to inmate “writ writers” and each prisoner is entitled to store reasonable numbers of lawbooks in his cell.