Respondents Brief — Bounds v. Smith

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Supreme Court, U. 5,

FILED

| | :

|

| MICHAEL RODAK IR free

IN THE =

Supreme Court of the Anited States

OCTOBER TERM, 1976

No. 75-915

VERNON LEE BOUNDS, et al.,

Petitioners,

ROBERT (BOBBY) SMITH, et al.,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FOURTH CIRCUIT

BRIEF FOR RESPONDENTS

BARRY NAKELL

School of Law

University of North Carolina

Chapel Hill, North Carolina 27514

Court-appointed Attorney for

Respondents

Washington, 0.C. ¢ CLS PUBLISHERS « LAW PRINTING CO. « (202) 393-0625

(i)

TABLE OF CONTENTS

CRED Ge RGIMNUOED oc cece sccscteceevccecs

SUMMARY OF ARGUMENT .............-.ceeeeee

ARGUMENT:

NORTH CAROLINA IS IN VIOLATION OF

ITS CONSTITUTIONAL OBLIGATION TO

PROTECT ITS PRISONERS’ RIGHT TO

MEANINGFUL ACCESS TO THE COURTS

BECAUSE IT HAS FAILED TO PROVIDE

THEM LAW BOOKS OR A REASONABLE

a a er oo 3

ERR REC agree cere ee 3

A. The North Carolina Department of

Correction and its Prisoners ..........5405.

B. The Right of Access to the Courts ........... 7

Il. THIS COURT’S DECISION IN YOUNGER

V. GILMORE REQUIRES THAT NORTH

CAROLINA PROVIDE ITS PRISONERS

ADEQUATE LAW BOOKS OR A REASON.

GENE GREENE ccc ccc wetsccecccess

A. The Holding in Younger v. Gilmore ..........

B. Younger v. Gilmore Deserves to be

EE PEPE nc cedccesecesees

III. NORTH CAROLINA DOES NOT PROVIDE

ITS PRISONERS LAW BOOKS OR A

REASONABLE ALTERNATIVE ..............

IV. NORTH CAROLINA HAS OFFERED NO

SATISFACTORY JUSTIFICATION FOR

ITS FAILURE TO COMPLY WITH

YOUNGER V. GILMORE BY PROVIDING

ITS PRISONERS ADEQUATE LAW BOOKS

OR A REASONABLE ALTERNATIVE ..........

(ii)

V. THIS COURT IN YOUNGER V. GILMORE Page

AND THE LOWER COURTS IN THIS

CASE ACCORDED PROPER REGARD TO

THE EXPERTISE AND DISCRETIONARY

AUTHORITY OF CORRECTIONAL OF- )

Pe +0: 6-666440048 Peambdbentuce es. ces 41

VI. ALTHOUGH A LEGAL SERVICES PRO.

GRAM WOULD MORE ADEQUATELY

PROTECT ITS PRISONERS’ CONSTITU-

TIONAL RIGHT TO MEANINGFUL AC.

CESS TO THE COURTS, NORTH CARO.

LINA IS REQUIRED, AT A MINIMUM, TO

PROVIDE LAW BOOKS FOR ITS PRIS-

WN 5466 64040 cna eee CUCL TEE CETRETe 52

CONCLUSION

EXHIBIT A - 1974 LEAA GRANT APPLICATION

PREPARED BY THE NORTH CAROLINA

DEPARTMENT OF CORRECTION ............... la

EXHIBIT B - YOUNGER V. GILMORE COMPLI-

ANCE RECORD IN THE STATES, THE

DISTRICT OF COLUMBIA AND THE FED-

BRAL GOVERNMENT 2. occ ccc ccc ccc cccee lb

TABLE OF AUTHORITIES

Cases:

Adams v. Carlson, 488 F.2d 619 (7th Cir. 1973) ........ 9,21

Aikens v. Lash, 371 F. Supp. 482 (N.D. Ind. 1974) ....... 9b

Andrade v. Hauck, 452 F.2d 1071 (Sth Cir. 1971) ....... 7,8

Argersinger v. Hamlin, 407 U.S. 25 (1972) ......... 29,34,35

Banner v. Coughlin, 517 F.2d 1311 (7th Cir. a 8

Battle v. Anderson, 376 F. Supp. 402 (E.D. Okla.

1974), subsequent order, No. 72-95-Civ (E.D.

Okla. July 16, 1975) ................. 6,7,22,59,21b

Black v. Brown, 513 F.2d 652 (7th Cir. an theeesce 21,8b

Boddie v. Connecticut, 401 U.S. 371 (1971) ....... 8,9,34,53

a ee Oe TG —

(iii)

Page

Brown v. Pitchess, 13 Cal. 3d 518, 119 Cal. Rptr.

204, 531 P.2d 772 (1975) 2. cece eee were eens 4b

Bryan v. Werner, 516 F.2d 233 (3d Cir. 1975) 21,32,54,21b,22b

Burns v. Ohio, 360 U.S. 252 (1959)... eee eee ee ee ee ee 34

Chaffin v. Stynchcombe, 412 U.S. 17 (1973) .......--+--- 15

Cochran v. Kansas, 316 U.S. 255 (1942) .........-.. 7,8,17

Collins v. Haga, 373 F. Supp. 923 (W.D. Va. 1974) .... 55,25b

Collins v. Schoonfield, 344 F. Supp. 257 (D. Md. i

SE cw haben ss cose rece Cesc seveee esi esses

Cross v. Powers, 328 F. Supp. 899 (W.D. Wis. 1971) . .19,54,28b

Cruz v. Be*o, 405 U.S. 319 (1972) .......---. 6,7,14,15,16

Cruz v. Hauck, 404 U.S. 59 (1971), on remand, 345

F. Supp. 189 (W.D. Tex. 1972), rev'd 475 F.2d

475 (Sth Cir. 1973), subsequent decision, 515

F.2d 322 (Sth Cir. 1975) .....- eee eeeeee 6,7,15,21,54

DeWitt v. Pail, 366 F.2d 682 (9th Cir. 1966) .........-.-. 8

Douglas v. California, 372 U.S. 353 (1963) .......-.-- 29,34

East Carroll Parish School Board v. Marshall, 96 S. a

eS |. Serer cere eee

Edelman v. Jordan, 415 U.S. 651 (1974) ........--005: 15

Ex Parte Hull, 312 U.S. 546 (1941)... ...- eee eee 7,16,31

Farrington v. North Carolina, 391 F. Supp. 714

(M.D. N.C. 1975)... eee ee eee reece eens 22,58

Foggy v. State ex rel. Eyman, 107 Ariz. 532, 490 a

P20 4 (IDTI) onc cccccccccccevervvcccccseees

Gaglie v. Ulibarri, 507 F.2d 721 (9th Cir. 1974) ...... 22,23

Gardner v. California, 393 U.S. 367 (1969) ......-...--. 34

Gates v. Collier, 501 F.2d 1291 (Sth Cir. 1974) ...... 35,38

Gideon v. Wainwright, 372 U.S. 335 (1963) .......---+> 29

Goldfarb v. Virginia State Bar, 421 U.S. 773 (1975)......-- 57

Goldsby v. Carnes, 365 F. Supp. 395 (W.D. Mo. m7

UEP oe ccces sconsvceen beeen tere eee eens

(iv)

Page

Griffin v. Illinois, 351 U.S. 12 (1956) ............... 34

Hampton v. Schauer, 361 F. Supp. 641 (D. Colo.

RTT LTTE eee re er oer eee 4b

Hamrick v. Raines, 376 F. Supp. 1273 (D. Kan.

PTE ee ee ee ere eee 6

Hatfield v. Bailleaux, 290 F.2d 632 (9th Cir. 1961) ......., 22

Hicks v. Miranda, 422 U.S. 332 (1975) .............8, 15

Hooks v. Wainwright, 352 F. Supp. 163 (M.D. Fla.)

on remand from 457 F.2d 502 (Sth Cir. 1973),

still pending as Nos. 71-1011-Civ-J-S, 71-144-

8. Oe errr Tir eerT passim

Houghton v. Shafer, 392 U.S. 639 (1968) ..... “eae deo 17

Imbler v. Pachtman, 96 S. Ct. 984 (1976) ............, 15

In re Harrell, 87 Cal. Rptr. 504, 470 P.2d 640

Cy sss siete neds 40endeleseweus Serre 10

Jackson v. Bishop, 404 F.2d 571 (8th Cir. 1968) ........ 34

James v. Strange, 407 U.S. 128 (1972) ............05. 34

Jarvis v. North Carolina, No. 73-2094 (4th Cir.

1974) (unpublished memorandum decision) .... . 21,32,33

Johnson v. Anderson, 370 F. Supp. 1373 (D. Del.

PET CCT TET ere eee eT Tee TT 7,54,6b

Johnson v. Avery, 393 U.S. 483 (1969) ............ passim

Kersh v. Bounds, 501 F.2d 585 (4th Cir. 1974) .......... 4

Kirby v. Ciccone, 491 F.2d 1310 (8th Cir. 1974) ...... 21,54

Knell v. Bensinger, 522 F.2d 720 (7th Cir. 1975),

after prior decision at 489 F.2d 1014 (7th Cir.

Te eT Ce ee TS ere Te 11,21

Long v. District Court, 385 U.S. 192 (1966) ............ 34

Massachusetts Board of Retirement v. Murgia, 44

Ss Se UW EE SC ccvceddnceBiacedueces 15

McCarthy v. Philadelphia Civil Service Commission,

96 S. Ct. 1154 (1976)

(v)

Page

McCarty v. Woodson, 465 F.2d 822 (10th Cir.

See” SSGNSG S66 Ch cee chOS Edd dwda bcos ance 6

McDonnell v. Wolff, 342 F. Supp. 616 (D. Neb.

BUND - i cdbwols deb Vb bves Ub ichecawdewd 23,50,18b

Mead v. Parker, 464 F.2d 1108 (9th Cir. 1972) .......... 22

Meltzer v. G. Buck LeCraw & Co., 402 U.S. 954

000) ) 9

Montanye v. Haymes, 44 U.S.L. Week 5051 (1976) ...... 19b

Morales. v. Schmidt, 489 F.2d 1335 (7th Cir. 1973),

on rehearing en banc, 494 F.2d 85 (7th Cir.

Ee . 6 bab eed bbs BREE Ore F450 ROR O Chose eens 14

Nickl v. Schmidt, 351 F. Supp. 385 (W.D. Wis.

SDS ecatk none ons ai tt inineen teh tan > oes 26b

Nolan v. Scafati, 430 F.2d 548 (Ist Cir. 1970) ........ 9,19

Noorlander v. Ciccone, 489 F.2d 642 (8th Cir.

SOU <SdBawekeoe th cence es ceensecescace: 22,54

Novak v. Beto, 453 F.2d 661 (Sth Cir. 1971),

remanding 320 F. Supp. 1206 (S.D. Tex. 1970),

subsequent decision sub nom. Corpus v. Estelle,

409 F. Supp. 1090 (S.D. Tex. 1975) .... 21,23,47,54,24b

Oxendine v. Williams, 509 F.2d 1405 (4th Cir.

SEN (5654 Bbns6 oe 6 Rd dG eo UR Cas oe sé needed 32

Padgett v. Stein, 406 F. Supp. 287 (M.D. Pa. 1975)...... 22b

Perkins v. North Carolina, 234 F. Supp. 333 (W.D.

i, ME e665 6s Gee neess PeNUecccedesceeeee 30

Potts v. Carlson, No. 74-124-C3 (D. Kan. 1975) ........ 12b

Procunier v. Martinez, 416 U.S. 396 (1974) ......... passim

Pugh v. Locke, 18 Cr. L. Rptr. 2370 (M.D. Ala.

DL. acti hn newt beh nee Che awn eaenss.ce.n9 4 35

Roberts v. LaVallee, 389 U.S. 40 (1967) ............ 9,34

Ross v. Moffitt, 417 U.S. 600 (1974) ........ 8,30,34,53,58

Russell v. Oliver, 392 F. Supp. 470 (W.D. Va. 1975). . . .55,25b

(vi)

Page

Seibert v. McCracken, 387 F. Supp. 275 (E.D. Okla.

SPPEe 860s 00 e-cesnnnddaeenesasess a éeuten 21b

Smith v. Bennett, 365 U.S. 708 (1961) .............. 34

Souza v. Travisono, 498 F.2d 1120 (1st Cir. 1974) .. 9,21,22b

Stevenson v. Reed, 530 F.2d 1207 (Sth Cir. 1976),

affirming 391 F. Supp. 1375 (N.D. Miss. 1975) ... . passim

Stone v. Boone, Civil Action No. 73-1083-T (D.

8 TET Tee Te eo eee eT eee 59,15b

Thompson v. Camp, No. 74 CV-97C (W.D. Mo.) ........ 17b

United States v. Kras, 409 U.S. 434 (1973) ............ 9

United States v. MacCollom, 96 S. Ct. 2086 (1976) .. 10,35,53

United States ex. rel. Russell v. Hendrick, 376 F.

es, ee ee Oe SE 6 She bce burescabuse™ 54

United States v. Simpson, 436 F.2d 162 (D.C. Cir.

SPU. oe bneeash cbicwennuweséuOuwenes 22,26,29b

Usery v. Turner Elkhorn Mining Co., 44 U.S.L.

eR On er rr an

Van Ermen v. Schmidt, 343 F. Supp. 377 (W.D.

Wb See. ‘92646san0s dnd emeeueneséean’ 6,7,26b

Vette v. Virginia Department of Corrections, 529

F.2d 518 (4th Cir. 1976) (unpublished opinion) . 21,55,25b

Washington v. Powell, Civil Action No. 74-43 (D.

Pe er rere mS ee eee a 21b

White v. Sullivan, 368 F. Supp. 292 (S.D. Ala.

og MTEL CERT Ce ee re eer oe Pee 59,2b

Williams v. Oklahoma City, 395 U.S. 458 (1969) ......... 34

Wilson v. Zahardnick, 406 F. Supp. 1195 (M.D. Ga.

VED chee sian sbeccwieswnne oheeiek's «éca 8

Woodson v. North Carolina, 44 U.S.L. Week 5267

GOPED: cewsensschdusdebeeeesawendese ss iew 4

Wolff v. McDonnell, 418 U.S. 539 (1974) ........., passim

(vii)

Younger v. Gilmore, 404 U.S. 15 (1971), affirming

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

1970), subsequent order, Gilmore v. Lynch, 2

Pris. L. Rptr. 21 (N.D. Cal. 1972) ...........

Books:

ABA Project on Minimum Standards for Criminal

Justice, Standards Relating to Post-Conviction

Remedies (Approved Draft 1968) ............

- ABA Project on Minimum Standards for Criminal

Justice, Standards Relating to Providing Defense

» Services (Approved Draft 1968) .............

ABA Resource Center on Correctional Law and

Legal Services and Prison Law Reporter, Pris-

oners’ Legal Rights: A Bibliography of Cases

and Articles (2d ed. 1974) 6... ee eee eee eee

American Association of Law Libraries, Directory of

Law Libraries (CCH 1974) .......22eeeeeee

American Correctional Association, Guidelines for

Legal Reference Service in Correctional Institu-

tions: A Tool for Correctional Administrators

28 GB. 1DTS) ccc ciccer sc cade cesscveves

Carnegie Council, The States and Higher Education

(Jousey Bass 1976) 6. cc ccicccscesccceces

Center of Law Enforcement and Correctional

Justice, Ohio Post-Conviction Manual (Ohio

Department of Rehabilitation and Correction

a) eee: eee eee ee ee ee

Cohen, Legal Research in a Nutshell (West 2d ed.

WTA) a cided’ cade cedewesiccceceeaes

Connecticut Department of Correction, Landmark

Decisions in Correctional Law: A Compendium

of Recent Case Law (1975) ......250+0005

Dix and Sharlot, Criminal Law (West 1973) ......

Ellis, The Jeffersonian Crisis (Oxford 1971) ......

Page

Spe @ ee

(viii)

Finkelstein and Krantz, Perspectives on Prison Legal

Services: Needs, Impact and the Potential for

Law School Involvement (LEAA Summary

PNG IPTED ccc cccssessevdsceveceegitteuds 27

Glen, Jailhouse Law Students: A Report on

Law-Student-In-Correction Programs (National

Council on Crime and Delinquency 1973) ........ 55,10

Goldstein and Orland, Criminal Procedure (Little,

Bese COGN. o.c's tac ceniawek cused ovis eekede 45

Inbau, Thompson, Haddad, Zagel and Starkman,

Criminal Procedure (Foundation 1974) ............. 45

Inbau, Thompson and Moenssens, Criminal Law

as We Sk ho es ok Bake ee al 45

Israel and LaFave, Criminal Procedure in a Nutshell

See Se GE: £6 We Ode Vow eee 6 66 046 06 45

Kadish and Paulsen, Criminal Law and Its Processes

CASO, TN BOG TONE cc be cee cetsccoccees: 45

Kamisar, LaFave and Israel, Modern Criminal

Procedure (West 4th ed. 1975) .........2.000e 2 4S

Kaplan, Criminal Justice (Foundation 1973) ............ 45

Kerper and Kerper, Legal Rights of the Convicted

> Pr ie Be ere 45¢

Krantz, Bell, Brant and Magruder, Model Rules and

Regulations on Prisoners’ Rights and Responsi-

Ee en ee 28,15b

Krantz, The Law of Corrections and Prisoners’

PG re a ae 45

Krantz, The Law of Corrections and Prisoners’

Rights in a Nutshell (West 1976) ..........000000: 45

’ LaFave and Scott, Criminal Law (West 1972) ........... 44

LeDonne, Survey of Library and Information

Problems in Correctional Institutions (HEW

Office of Education (1974) (four volumes) ....... passim

Lloyd, Finding the Law (Oceana 1974) ...........005. 46

(ix)

Page

Loewy, Criminal Law in a Nutshell (West 1975) ......... 45

Miller, Dawson, Dix and Parnas, Criminal Justice

Administration (Foundation 2d ed. 1976) ........... 45

Miller, Dawson, Dix and Parnas, Sentencing and the

Correctional Process (Foundation 2d ed. 1976) ....... 45

National Advisory Commission on Criminal Justice

Standards and Goals, Report on Corrections

SEWED. 60066 dave pudueun OW CNKEeM eed se wees 26

North Carolina Department of Correction, State

Correctional Statistical Abstract (March, 1976) .... 3,4,51

Orland, Justice, Punishment, Treatment (Free Press

SPD «hb dds Gehoews cdnhecedecdashesscvceye 45

Palmer, Constitutional Rights of Prisoners (An-

Ge ee re 44

Pollack, Fundamentals of Legal Research (Founda

ro 46

President’s Commission on Law Enforcement and

the Administration of Justice, Task Force

ES re 26

Price and Bittner, Effective Legal Research (Little,

nn cu is dui Sos Gibb g00 0409 0.6 46

Prison Law Collective, Jailhouse Lawyer’s Manual:

How to Bring a Federal Suit Against Abuses in

SE Steck oa cece bses bace eee es ib edves 47

Prison Law Project and Barristers Club of San

Francisco, A Manual on Habeas Corpus for Jail

et Re EEE on cb ad wa O wb de ahve cee 46

Rubin, The Law of Criminal Correction (student

i ee ee ko nee 6 66 6 45

Rudovsky, Rights of Prisoners: The Basic ACLU

Guide to a Prisoner’s Rights (Discuss 1973) .......... 47

I 'OGi6 dinintn 6 Nie eieed Bisic 0 c.coe cee 59

Singer and Statsky, Rights of The Imprisoned

PN 00 0 2455066466664 045 Ke cece'’s 45

(x)

Page

Sokol, Federal Habeas Corpus (Michie 2d ed. 1969)....... 44

Statsky, Introduction to Paralegalism (West 1974) ...... 44,46

Statsky, Legal Research, Writing and Analysis: Some

Starting Points (West 1974) .......... oteaneuteae 46

Strong, North Carolina Index (Lawyers Co-op. 2d

ee | ee a 44

Toal, The Emerging Rights of the Confined (South

Carolina Department of Corrections 1972) .........-. 47

Toal, Recent Developments in Correctional Case

Law (South Carolina Department of Corrections

tt) er en 7,8,47

Vorenberg, Criminal Law and Procedure (West

tt) a re 45

Weinreb, Criminal Law (Foundation 2d ed. 1975) ........ 45

Weinreb, Criminal Process (Foundation 2d ed. 1974)....... 45

Werner, Manual for Prison Law Librarians (Fred B.

Rothman & Co. 1976) ...ciccdscdauuebussewees 25

West Publishing Co., How to Find the Law (West

Gth of. 1965) 2. co ccccsnchgeesneeee ee 46

West Publishing Co., Modern Federal Practice Digest

(several WORREE) onc ccc cctcceseunseeseaueenee 59

Law Review Articles:

ABA Resource Center on Correctional Law and

Legal Services, “Providing Legal Services to

Prisoners,” 8 Ga. L. Rev. 363 (1974) ........... passim

Bluth, “Legal Services for Inmates: Coopting the

Jailhouse Lawyer,” 1 Capital U.L. Rev. 59

(19TZ) .cccccvesses04een eee 24-25,50,56,20b

Burger, “Our Options Are Limited,” 18 Vil. L. Rev.

16S (197Z) . .cccccccenssnteeaeeenees eens 30

Burger, “Post-Conviction Remedies: Eliminating

State-Federal Frictions,” 61 J. Crim. L., C and

PS. 148 (ISTH) 2... ccccccatveudsveeeeueeneues 51

(xi)

Cardarelli and Finkelstein, “Correctional Adminis-

trators Assess the Adequacy and Impact of

Prison Legal Services Programs in the United

States,“ 65 J. Crim. L. and Criminology 91

PEP eeh ia ce bsacegseeeresacesececs 25

Carlson, “Corrections in the United States Today: A

Balance Has Been Struck,” 13 Am. Crim. L.

iT Mee oh se cee keke se 6s 60.6.0'a0000 00 25

Dickey and Remington, “Legal Assistance for

Institutionalized Persons—An Overlooked Need,”

So. Ill. L. J. (1976) (forthcoming) ............... 28b

Jacob and Sharma, “Justice After Trial: Prisoners’

Need for Legal Services in the Criminal-

Correctional Process,” 18 Kan. L. Rev. 493

DP P EP PUe eee den ea eeeeecccbecocece passim

Kimball, “Correctional Internships — A Wisconsin

Experiment in Education for Professional Re-

sponsibility,” 18 J. Leg. Ed. 86 (1965) ............ 28b

Linde, “Let’s Disbar the Jail House Lawyer,”

Proceedings of the Am. Correctional Assoc. 124

eee e eek eed Oe ee be Whe ses 6% clececs 47

Metzger, “Legal Clinics: Getting Into the Routine,”

Ce eee eb ed edccvevcenues 57

Meyer, “The Defender Project,” The KU Laws 5

CT SECS SiA 0s Base ccceccrceccceces 23,10b

Norman, “Civil Legal Services to Prison Inmates,”

COED 0.2. 6a a6 6 toe cee 23,56,57,6b

Spector, “A Prison Librarian Looks at Writ-Writing,

SR ED Se eb cehbccscccscees 51

Stewart, “The Indigent Defendant and the Supreme

Court of the United States,” 58 Legal Aid

i Ceri. Ces ese Geee we ces eceecees 17

Walsh, “Jailhouse Lawyers: The Texas Department

of Corrections Revokes Their License,” 1

SE ei, I RP MRED cc Weweeccagcecs 25,57,24b

~

(xii)

Wedlock, “The Emerging Rights of the Confined:

Access to the Courts and Counsel,” 25 So. Car.

E. Se, Ge Ge nls ows Ge dk ee eee bia co kb be

Werner, “The Present Legal Status and Condition of

Prison Law Libraries,” 66 Law Lib. J. 259

CHU 006s eens te sede tices is oes

Wexler, “The Jailhouse Lawyer as a Paraprofes-

sional: Problems and Prospects,” 7 Crim. L.

8 er ee 50,57

Wilson, “Legal Assistance Project at Leavenworth,”

24 Legal Aid Brief Case 254 (1966) ....... 23,56,57,1

Ziegler and Herman, “The Invisible Litigant: An

Inside View of Pro Se Actions in the Federal

Ob

Courts,” 47 N.Y.U. L. Rev. 157 (1972) .......... 20,49

Comment, 1060 Wee. E. TO. SPO ncn cccctecccerecns 28b

Bete, 1068 Date b. DB BOD ccccccccsocvescsttddwes 51

Note, 23 So. Car. L. Rev. 294 (1971) .........22e eee. 57

Baste, BOGP Ws Be Gs BOO ccc cc cco ntibocdeosises 28b

Statutes:

Arizona Rules of Criminal Procedure, Rule 32.5 (b)......, 3b

Federal Rules of Civil Procedure, Rule 52(a) ..........., 33

Hawaii Revised Statutes §§802-1, 802-3 (1975

\PPVTTTITTTT Tiree Tr 8b

lowa Code Annotated §663A.5 (1976 Pocket Part) ...... 10b

North Carolina General Statutes:

SED CUPPED cotccvccessccncescevoans 4

DISSE Tee re GUD we cc ce dc cede edie ct nHeete 4

* BEDE GND | 6b bc ce ceed cet eeresns Cote cnee 5

BOS-OP TE Gir GUD co ccccccecconseceveseds 5

BERGEN 6.0.00 0806e0 we eweanne et on 65 ea 5

ee ere rer Te ee 5

RE PT ee 57

(xiii)

Page

See avin RAGAN c.bive Ketone 0006 cies 39

§105-163.25 to 105-163.30 (1972) .........2 ees 39

EEE: 5 cn evesaneneecacecces 39

EIS og osc bo pb bbe US Ue Stbine KES 3

PE PEED 'o'b'sb-0 sd dctedéctes 690 wen 6

a ana tne e men te ded sank 6

OUI ccs wens bn cbbeew ss eeeece 5

<<. coos bbueedscconcene 31

EE, <6 <6 nue cbeneseneeeeebe ve 6

ee CP Seth cod esesscosccasos vee 4

Ch. 1190, §§2, 46, N.C. Session Laws of the 1973

General Assembly (1974 Session) ................. 40

Oregon Revised Statutes §138.590 (1975) ............ 21b

Purdon’s Pennsylvania Statutes Annotated, Tit. 16,

$9960.6 (1976 Pocket Part) .............+.-4-. 22b

Supreme Court Rules, Rule 15(1X{(c) ...........-2008- 14

Ineo tc cece ces eccesesesseeons 38

CR hn oct touseanenereeanss 8

SOD. . oo cc éodébien bobs eteen coud 57

ee ON ic. 64 de seme ce ene be cennes 37

Miscellaneous:

and oenneeseusucetseseds 28

ns nme heehea-te.0.s. 9000 28

ABA Special Committee on Legal Assistants, New

Careers in Law II (Conf. Report 1971) ............. 44

ABA Young Lawyers Section, Behind the Bars: A

Report to the Chief Justice of the United States

Supreme Court (1975) ..........+. 7 ear .27,37

ACA Committee on Institution Libraries, Library

Standards for Adult Correctional Institutions .

Sas C646 660 0b E50 hb Ew eheeds ose s vce 24

(xiv)

Annual Chief Justice Earl Warren Conference on

Advocacy in the United States, “A Program for

Prison Reform; the Final Report” 15, Recom-

mendation XVI (The Roscoe Pound-American

Trial Lawyers Foundation 1972) ..............

Biennial Report of the Judicial Council of the State

CE £46 640066 etnbeemres 60 4

Carter v. Lally, Civil No. 72-642-K (D. Md.)

(Affidavits of Jerome L. Winters and William P.

Statsky) eeeeeseeeeeeseeeeeeeeesde 25,48,50,1 3b,19b

Center for Correctional Training, New York City

Department of Correction, Legal Research Meth-

odology (English and Spanish language versions)... .

Chapel Hill Newspaper, page 11, col. 4 (June 1,

SPEED cece cc eeehebcawoonte+ agbheennece

Clarke, “Prisoner Lawsuits and Prison Officials’

Liabilities” (Institute of Government Adminis-

tration of Justice Memoranda, November, 1975). ...

CLEPR, Survey and Directory of Clinical Legal

PEE. cacteensecdceds eaceeec 38,55,9b

Connecticut Department of Correction, Legal Assist-

ance to Prisoners (undated) ........2eseee000.

Consortium of States to Furnish Legal Counsel to

Prisoners, “Final Report, LEAA Grant 75

SE GEE cecoicencgdcnavcocseces

Consortium of States to Furnish Legal Counsel to

Prisoners, “Program Narrative” (undated) ........

Consortium, State of Kansas, Legal Services for

Prisoners, Inc.; Twelve Months Statistical Report

CRUE: « Bead e'e ide CUNO 6 6546s Hbkee) O68

Durham Morning Herald, page 12A, col. 4 (June 2,

Te: cenduadhseeseeebee teeny okbataee 3

Greene and Whitehead, Civil Legal Assistance to

EE rr are er

(xv)

Kansas Legal Services for Prisoners, Inc., The Facts

About Legal Services for Prisoners (1975

Report) (1976 Report) (two documents) .........

LEAA, A Compendium of Selected Criminal Justice

PEED. 32.5546 Gauacunoebeesee ss ah

LEAA, An Exemplary Project: The Public Defender

Service of the District of Columbia (undated) .....

LEAA, “LEAA-Funded Programs Relating to Legal

Law Libraries (Block Awards, °72-’76) (com-

puter printout June 4, 1976) .................

Memorandum from the Legal Assistance to Inmates

Staff re: Scope of Legal Assistance to Inmates

Pee GN G, EPTED cc cw er erecccsieces

National Clearinghouse for Criminal Justice Planning

and Architecture, Transfer, “United States

Incarceration and Commitment Rates” (Univer-

EE ove dnd 66066658 660666 0%

National Commission on Uniform State Laws,

Uniform Corrections Act (Proposed Code) ........

New York State Bar Association, “Grant Applica-

tion to the New York State Division of Criminal

Justice Services” (for grant to begin in 1976) .....

Regulation .0101 of Subchapter 2D, Policies and

Procedures of the North Carolina Department

of Correction, Division of Prisons ..............

Report of the Committee on Habeas Corpus, 33

Pe OP GEED 6 Save bt or eeEPe rise cccoes

Report of the Joint House-Senate Committee on

Minnesota State Prison (February, 1976) .........

Statement of Lillian Woo (January 12, 1976) ........

Turnier, “A Meaningful Corporate Estimated In-

come Tax for North Carolina” (1976) (report

submitted to the General Assembly) ............

United States Bureau of Prisons, Policy Statement

2001.2B, 1 Pris. L. Rptr. 243 (1972) ..........

(xvi)

West Publishing Company, Untitled Computer Print-

out showing law books sold by West to prisons

LS ere ee ee eee passim

Wilson and Meyer, Legal Education in the Jailhouse:

POE 66:0 6 ode bc cntdicnmrberecncs

Wisconsin Correctional Service, Corrections Legal

Services Program (February, 1975) ...........025-

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1976

No. 75-915

VERNON LEE BOUNDS, et al.,

Petitioners,

ROBERT (BOBBY) SMITH, et al.,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FOURTH CIRCUIT

BRIEF FOR RESPONDENTS

SUMMARY OF ARGUMENT

In Younger v. Gilmore, 404 U.S. 15 (1971),

affirming Gilmore v. Lynch, 319 F. Supp. 105 (N.D.

Cal. 1970) (three-judge court), this Court, after briefing

and argument, unanimously affirmed the judgment of a

three-judge court which held that a state is constitu-

tionally obligated to protect its prisoners’ right of

access to the courts by providing them access to the

law in the form of adequate law books or a reasonable

2

alternative. Gilmore has been widely acclaimed and has

received support from all of the Courts of Appeal that

have had occasion to pass on it, from the United States

Government, from national commissions, from the

American Bar Association, from the American Correc-

tional Association and individual correctional adminis-

trators, from the American Library Association and the

American Association of Law Libraries, and from many

other organizations as well as from the legal literature.

Almost every state is in compliance with Gilmore, Many

have gone beyond its minimal requirements and

provided comprehensive legal services programs, often

using law students and trained inmate paralegals as well

as lawyers, in addition to or instead of law libraries.

The experience with all of these programs has been

rewarding. Prisoners have received the constitutionally

required help with the preparation of their court

actions, and in the process frivolous petitions have been

reduced by as much as half and the quality of those

petitions that have been filed has improved con-

siderably.

North Carolina does nothing to help its prisoners

overcome the obstacles which incarceration imposes on

their access to the courts, It provides its prisoners with

no law books, except a few at its maximum security

prison, and no legal assistance in the preparation of

state or federal collateral attacks on their convictions,

in the preparation or pursuit of state or federal actions

challenging the conditions of their confinement, or in

the resolution of detainers lodged against them,

In finding that North Carolina was therefore in

violation of its constitutional responsibility, and in

approving the State's plan for bringing itself into

compliance, the District Court ang the Court of

3

Appeals accorded the proper regard for the expertise

and discretion of prison officials. North Carolina has

not suggested any respect in which those courts

disregarded their expertise or unreasonably disturbed

their discretion. They left the design of the method by

which North Carolina would comply with Younger y.

Gilmore to the State, and approved the plan submitted

by the State with only minor modifications.

ARGUMENT

NORTH CAROLINA IS IN VIOLATION OF

ITS CONSTITUTIONAL OBLIGATION TO

PROTECT ITS PRISONERS’ RIGHT TO

MEANINGFUL ACCESS TO THE COURTS

BECAUSE IT HAS FAILED TO PROVIDE

THEM LAW BOOKS FOR A REASONABLE

ALTERNATIVE.

I.

INTRODUCTION,

(A) The North Carolina Department of Correction

and its Prisoners, The North Carolina Department of

Correction administers the prison system in North

Carolina, and has custody of all persons serving prison

sentences in excess of thirty days. N.C, Gen. Stat.

§ 148-4 (1975 Supp.). Its inmates have been convicted

of crimes ranging from the felonies of murder and rape

to the misdemeanors of non-support, trespassing and

drunkenness. See North Carolina Department of Correc-

tion, State Correction Statistical Abstract 2 (March

1976). This includes the largest death row population in

4

the country, a situation that should change shortly as a

result of Woodson v. North Carolina, 44 U.S, L. Week

5267 (1976). In addition, the Department of Correction

has custody of “safekeepers’’ who have been convicted

of crimes and are in custody pending their appeals, N.C.

Gen. Stat. §15-183 (1975 Supp.); see generally Kersh y.

Bounds, 501 F.2d 585 (4th Cir. 1974), and occasionally

“safekeepers’’ who have not been convicted of crimes

but are in custody pending their trials when certain

conditions necessitate their being held in the prisons,

N.C. Gen. Stat. §162-39 (1975 Supp.), rather than in

the county jails as is the general practice. N.C. Gen.

Stat. §15-126 (1975 Supp.). The prisoners are housed

in eighty prisons situated in sixty-seven of the one

hundred counties in the state. App. 11. At the time this

case was before the District Court the average daily

population was 10,000 inmates. App. 11. As petitioners

point out, the prison system is now overcrowded with

13,000 prisoners. Brief for Petitioners 7, n. 3. More

than 10,000 are serving time for felony convictions;

over 3,000 have sentences of ten years or more, 3,000

have sentences of five to ten years, and another 3,500

have sentences of two to five years, North Carolina

Department of Correction, State Correction Statistical

Abstract 29 (March 1976). North Carolina ranks fifth in

the nation in the size of its prison population, and is

catching up to California, Texas, New York and Florida

because our State led the nation in the number of new

prison commitments in 1974 and 1975, National

Clearinghouse for Criminal Justice Planning and Archi-

tecture, Transfer, “United States Incarceration and

Commitment Rates” (University of Illinois 1976).

Already North Carolina ranks first in the nation in the

percentage of its residents who are locked up in its

prisons. /d.

5

Many persons charged with crime in North Carolina

and awaiting trial are, of course, not in custody. N.C,

Gen, Stat. §15A-533 (1975). In addition, many who

have been convicted of crimes and sentenced are not in

custody. Some are released pending appeal. N.C, Gen.

Stat. §15A-536 (1975). Many are sentenced to

probation and never go to prison. N.C,. Gen, Stat.

§15-197 (1975). Others have served time and are on

parole, N.C, Gen. Stat. § 148-58 (1975 Supp.); see also,

N.C, Gen. Stat. §15-197.1 (1975 Supp.) (split

sentences).

Those who are not in custody are, of course, free to

earn funds with which to retain counsel. In addition,

they are free to use several law libraries across the

state.’ By contrast, those who, like respondents, are

imprisoned are, naturally, deprived of those opportuni-

ties. Petitioners, as their custodians, prohibit them from

visiting any of the several public law libraries in the

'Those law libraries include the following: in Chapel Hill at

the University of North Carolina, the Law School library

consisting of more than 150,000 volumes, and the Institute of

Government library, consisting of more than 14,000 volumes; in

Charlotte, the Charlotte Law library, consisting of more than

18,000 volumes; in Durham, the Duke University Law School

library, consisting of more than 180,000 volumes, and the North

Carolina Central University Law School library, consisting of

more than 33,000 volumes; in Greensboro, the law collection at

North Carolina Agricultural and Technical College, consisting of

more than 12,000 volumes; in Raleigh, the North Carolina

Supreme Court library, consisting of more than 75,000 volumes;

and in Winston-Salem, the Wake Forest University Law School

library, consisting of more than 51,000 volumes. American

Association of Law Libraries, Directory of Law Libraries 36

(CCH 1974). A new law school will open this fall at Campbell

College in Buies Creek.

6

state. They also restrict their opportunities to accu-

mulate funds with which to purchase their own law

books or hire attorneys; under state law the maximum

wage that prisoners may earn is one dollar per day.

N.C, Gen, Stat. §14818 (1975 Supp.). Moreover,

petitioners forbid state prisoners to receive law books

except “directly from the publisher.”’ Regulation .0101

of Subchapter 2D, Policies and Procedures of the North

Carolina Department of Correction, Division of Pris-

ons.? The effect of this regulation is that prisoners

must learn the names of the publishers of law books

before they can order them, they may not receive law

books as gifts from family, friends, lawyers or others,

and they may not take advantage of special sales

opportunities for law books, such as opportunities to

buy them used or on sale. While each of these

restrictions may be permissible in its own right,’

individually and collectively they impair the constitu-

tional right of state prisoners to meaningful access to

?The Secretary of Correction has authority to promulgate

rules and regulations to which all state prison inmates are

subject. N.C. Gen, Stat. §148-11 (1975 Supp.) He has done so

and those rules and regulations are public documents on file in

the office of the Attorney General, N.C, Gen. Stat. §150A-59

(1975 Supp.).

*With regard to the “publisher only” rule, see Cruz v. Beto,

405 U.S. 319, 323 (1972) (Burger, C.J. concurring: “Buddhist

materials cannot be denied to prisoners if someone offers to

supply them.”); Cruz v. Hauck, 515 F.2d 322, 333 (Sth Cir.

1975); Battle v. Anderson, 376 F. Supp. 402, 435 (E.D. Okla,

1974); McCarty v. Woodson, 465 F.2d 822, 826 (10th Cir.

1972); Van Ermen v. Schmidt, 343 F. Supp. 377, 379 (W.D. Wis.

1972); contra, Hamrick v. Raines, 376 F. Supp. 1273, 1275 (D.

Kan. 1974),

7]

the courts unless the prison system provides them a

reasonable alternative. See Battle v, Anderson, 376 F,

Supp. 402, 426 (E.D, Okla, 1974); Hooks v, Wain-

wright, 352 F, Supp. 163, 167 (M.D. Fla, 1972),

(B) The Right to Access to the Courts, Prisoners’

constitutional right of meaningful access to the courts is

well established in the decisions of this Court. Wol/f v.

McDonnell, 418 U.S, 539, 579 (1974); Procunier vy.

Martinez, 416 U.S. 396, 419 (1974); Younger vy.

Gilmore, 404 U.S. 15 (1971), affirming Gilmore y.

Lynch, 319 F. Supp. 105 (N,.D, Cal. 1970) (three-judge

court); Johnson vy, Avery, 393 U.S, 483, 483, 485

(1969); Cochran v. Kansas, 316 U.S, 255 (1942); Ex

Parte Hull, 312 U.S. 546, 549 (1941), It may, indeed,

be their most important constitutional right because it

is necessary to the preservation of all others. Procunier

vy. Martinez, supra at 419; Cruz v, Hauck, 475 F.2d

475, 476 (Sth Cir. 1973); Johnson vy. Anderson, 370 F.

Supp. 1373, 1383 (D. Del. 1974); Van Ermen y.

Schmidt, 343 F. Supp. 377, 379 (W.D. Wis. 1972);

Toal, Recent Developments in Correctional Case Law 6

(S.C, Dept. of Corrections 1975). The right to access to

the courts is based in the first and fourteenth

amendment right to petition all branches of government

for a redress of grievances, in the fifth and fourteenth

amendment guarantees of due process and equal

protection of the law, and in the sixth and fourteenth

amendment right to counsel. Wolff v. McDonnell, supra

at 576, 579 (due process clause); Procunier v. Martinez,

supra at 419 (due process clause); Cruz v. Beto, 405

U.S. 319, 321 (1972) (first amendment); Younger y.

Gilmore, supra, 319 F. Supp. at 109, 111 (due process

and equal protection clauses); Andrade v. Hauck, 452

F.2d 1071, 1072 (Sth Cir. 1971) (first amendment);

Hooks v, Wainwright, 352 F. Supp. 163, 167, 168

(M.D, Fla, 1972) (first amendment, due process and

equal protection clauses); Toal, supra at 6 (first and

sixth amendments and due process clause). ‘No citizen,

regardless of his transgressions, is ever to be legally

consigned to the total and unreviewed power of any

single branch of government. To make the system work,

to maintain the proper checks and the proper balance,

no person subject to the power of government can be

denied communication with or access to each of the

three spheres of governmental authority. This principle

serves the highest interest of government, as much as it

serves the needs of the individual.”’ Andrade v, Hauck,

supra at 1072.

This Court has long held that applications to a

federal court for habeas corpus are included within the

constitutional right of access to the courts, Johnson vy.

Avery, supra at 485, More recently, the Court held that

the right of access to federal courts for.lawsuits under

the civil rights act, 42 U.S.C, section 1983, is also

included, Wolff v. McDonnell, supra at 579. Undoubt-

edly, the right also encompasses access to state courts

to seek similar relief. See Boddie v, Connecticut, 401

U.S, 371 (1971); Cochran vy, Kansas, supra at 258;

Banner v, Coughlin, 517 F.2d 1311, 1320 (7th Cir.

1975) (per Stevens, J.); Dewitt v. Pail, 366 F.2¢ 682,

685 (9th Cir. 1966); Wilson vy. Zahardnick, 40 F,

Supp. 1195, 1200 (M.D. Ga, 1975); Hooks ¥y,

Wainwright, 352 F. Supp. 163, 167 (M.D. Fla, 1975);

cf, Ross v. Moffitt, 417 U.S, 600, 616 (1974).* There

“This Court and the other federal courts have consistently

used the term “access to the courts” referring to the courts

generally without qualifying it by reference just to the federal

courts.

9

are also strong arguments that it should extend as far as

protecting access to the courts for problems with

detainers and for general civil claims not directly

related to a prisoners confinement, such as divorce

actions. Boddie v. Connecticut, 401 U.S. 371 (1971);

see Meltzer v. G. Buck LeCraw & Co., 402 U.S. 954

(1971) (opinion of Black, J.); Corpus v. Estelle, 409 F.

Supp. 1090, 1097 (S.D. Tex. 1975); Hooks ».

Wainwright, 352 F. Supp. 163, 167 (M.D. Fla. 1972);

but compare, United States v. Kras, 40° U.S. 434

(1973); Souza v. Travisono, 498 F.2d 1120, 1123-1124

(ist Cir, 1974).

The concept of access to the courts subsumes the

right to “access to the instruments needed to vindicate

legal rights....”’ Roberts v. LaVallee, 389 U.S. 40, 42

(1967); Adams v. Carlson, 488 F.2d 619, 632 (7th Cir.

1973). Thus, the right to access to the law through

legal materials or alternative resources is an important

aspect of the right to access to the courts. Younger v.

Gilmore, supra, “(A)n inmate’s right of access to the

court involves a corollary right to obtain some

assistance in preparing his communication with the

court.”’ Nolan v. Scafati, 430 F.2d 548, 551 (ist Cir.

1970); see also, Procunier v. Martinez, supra at 419

(“This means that inmates must have a reasonable

opportunity to seek and receive the assistance of

attorneys.”). In Younger v. Gilmore, the three-judge

court took “notice that more than simple ‘facts’ are

needed in order to file an adequate petition for relief

by way of habeas corpus” and that legal knowledge or

information is also essential. 319 F. Supp. at 110. The

District Court found that the same is true in the courts

in North Carolina and also in cases other than habeas

10

corpus (presumably civil rights actions).° Supp. App.

4-5, 12; see also, Jn re Harrell, 86 Cal. Rptr. 504, 470

P.2d 640 (1970). “Few trained lawyers could operate

with any degree of competence” without legal research

materials. ABA Project on Minimum Standards for

Criminal Justice, Standards Relating to Post-Conviction

Remedies, Commentary at 51 (Approved Draft 1968).

Prisoners need to know the law and the trends in the

law in order to know what facts to allege and what

facts are irrelevant and should be omitted so that they

do not obscure the material details. Prisoners also need

access to the law in order to understand and respond to

the pleadings filed by the Attorney General’s office in

opposition to their actions, which are usually replete

with citations to legal materials. Supp. App. 5. “(It is

necessary to understand what one’s rights are before it

is possible to set out in a petition the facts which

support them.” Johnson vy. Avery, supra at 501 (White,

J., dissenting). This is true in the area of criminal law

and procedure and in the area of prisoners’ rights

‘This is an area where the opinions of the District Court and

Court of Appeals are entitled to great weight because they

represent “expressions of essentially practical judgments on

questions which those courts must confront” on a regular basi-.

United States v. MacCollom, 96 S. Ct. 2086, 2093 (1976).

Interestingly, respondents Harrington, et al. did not cite

Gilmore or any cases in their complaint, App. 33-35, and the

District Court originally dismissed their case without mentioning

Gilmore or any of its progeny. Supp. App. 33. By contrast,

respondents Smith, et al. and Morgan, et al. did cite Gilmore in

their complaints. App. 7, 24. That was apparently what was

needed to bring that case and the relevant law to the attention

of the same District Court Judge, who promptly gave favorable

consideration to their cases. Supp. App. 7.

which, with the relatively recent decline of the

“hands-off attitude,” Procunier v. Martinez, supra at

404-405, is a developing field of law. See Wolff v.

McDonnell, supra at 570, 571-572. Thus, the failure of

petitioners to make law books or a_ reasonable

alternative available to their prisoners constitutes ‘‘an

effective denial of access to the courts.” Knell y.

Bensinger, 489 F.2d 1014, 1017 (7th Cir. 1973).

IL.

THIS COURT’S DECISION IN YOUNGER V.

GILMORE REQUIRES THAT NORTH

CAROLINA PROVIDE ITS PRISONERS

ADEQUATE LAW BOOKS OR A REASON-

ABLE ALTERNATIVE.

The District Court held that our State’s failure to

provide its prisoners with law books or a reasonable

alternative unconstitutionally interfered with their right

of access to the courts. The Court of Appeals agreed.

Both relied on this Court’s decision in Younger vy.

Gilmore, supra. Gilmore compels the conclusion that

they reached.

(A) The Holding in Younger v. Gilmore. Gilmore

involved the California prison system. California did not

provide law libraries in its two maximum security

prisons, and also arranged for law books in the state

library to be made available for prison circulation. It

decided to provide law libraries in its other prisons as

well. Accordingly, it promulgated a regulation which

listed a standard set of law books for each prison. At

the same time the Director of the Department of

Corrections in a separate Transmittal Letter ordered

12

that “‘all existing law books and references in inmate

law libraries not consistent with this section are to be

removed and destroyed.” 319 F. Supp. at 107, n. 2.

Although the contemplated destruction of existing

law books was a factor motivating the California

inmates to bring suit, the scope of the litigation was

broader. The inmates challenged the constitutionality of

the regulation limiting the law books to be provided at

each institution, and therefore a three-judge court was

convened, properly so as this Court held. 404 U.S. at

15. The directive for destruction of existing law books

beyond those included in the list was not part of the

challenged regulation, but was in an accompanying

transmittal letter. The three-judge court pointed out

that the subject of the challenge before it was the

regulation and that the provision for destroying law

books just helped explain the regulation. 319 F. Supp.

at 107.

At the time, California permitted its prisoners to help

other prisoners in the preparation of legal papers. 319

F, Supp. at 107, n. 1. Compare Brief for Petitioners

5-6, 12. It also permitted prisoners to buy their own

law books and other legal materials if able to do so.

319 F. Supp. at 107, n. 1. Presumably, California also

expended millions of dollars for the appointment of

counsel and other expenses to provide representation

for indigent defendants in criminal cases. Compare Brief

for Petitioners 3, n. 1. To justify the limited nature of

its standard book list California cited a need for

economy. 319 F. Supp. at 108. Compare Brief for

Petitioners 13. It also argued that “‘access to the courts’

has placed on prison officials only the passive, negative

duty of noninterference....”. Younger v. Gilmore, No.

70-9, Appellant’s Brief 19. Compare Brief for Petition-

ers 5-6, 8-9, 12.

13

California was in a stronger position in Gilmore to

argue that it was meeting its prisoners’ needs for

assistance in preserving their right of access to the

courts than North Carolina is. It not only permitted

inmate legal assistance and inmate law book purchases,

but, without court order, it was also willing to provide

law libraries in all of its prisons; it sought only to

restrict the number of books that it had to provide in

those libraries. When it invoked considerations of

economy, it did so not to justify a refusal to provide

any law books at all, but simply to justify its decision

as to the limits on the size of the legal collection that it

would provide. By contrast, petitioners do not want to

provide North Carolina prisons with any law books

whatsoever, except those few now available at Central

Prison.

Nevertheless, the three-judge court required California

either to expand its list of law books or “to adopt

some new method of satisfying the legal needs of its

charges,” 319 F. Supp. at 112, and this Court affirmed.

The three-judge court observed: “The alternatives open

to the State are legion.” 319 F. Supp. at 110.

In reaching its result the three-iudge court reasoned

from the following “basic test’:

““(T)he asserted interest of the State in enforcing

its rule is balanced against the claimed right of the

prisoner and the degree to which it has been

infringed by the challenged rule. Most prison

12gulations reflect the clear exigencies of a penal

situation and the courts are justifiably reluctant to

question their wisdom....Other rules, though,

touch upon interests of which the judiciary is

more solicitous, and the burden of justifying these

regulations is especially heavy... .”

14

319 F, Supp. at 109. See also, id, n. 6.° The

three-judge court emphasized that in order to prevail

the prisoners must show that their right to reasonable

access to the courts and the right to equal protection

was “infringed to such a degree as to render the

justifications offered by the State inadequate and

unreasonable as a matter of law.” 319 F. Supp. at 109;

see also, Supp. App. 4, 6. The court then concluded

that the prisoners had done so and that the State’s

asserted need for economy did not justify the

restrictions. 319 F. Supp. at 111.

When California appealed to this Court, it did not

raise any concern about being prohibited from

destroying the law books that it regarded as extras.

Instead, it complained only that: “The District Court

held that state prison officials are under an affirmative

constitutional duty to provide inmates in their charge

with either extensive law library facilities or the

professional assistance of attorneys or law students.”

Younger v. Gilmore, No. 70-9, Juris. Statement 6, 8,

14; Younger v. Gilmore, No. 70-9, Appellant’s Brief i,

5, 7, 8, 15, 16, 19, 29. The question presented to this

Court, as stated in the Jurisdictional Statement, Rule

15(1)(c), Supreme Court Rules, was:

®In Procunier v. Martinez, 416 U.S. 396, 420 (1974), this

Court used a similar formulation of the test. See also, Morales v.

Schmidt, 489 F.2d 1335, 1348 (7th Cir. 1973) (Stevens, J.,

dissenting), on rehearing en banc, 494 F.2d 85 (7th Cir. 1974).

Procunier’s formulation included explicit reference to “the

proper regard that judges should give to the expertise and

discretionary authority of correctional officials.” Procunier v.

Martinez, supra at 420; see also, Cruz v. Beto, 405 U.S. 319, 321

(1972). This was certainly part of the Gilmore statement of the

test. For a discussion of the proper regard given to these factors

by the lower courts in this case, see Argument V, infra.

15

“Does a state have an affirmative federal

constitutional duty to furnish prison inmates with

extensive law libraries or, alternatively, to provide

inmates with professional or quasi-professional

legal assistance?”

Younger v. Gilmore, No. 70-9 Juris. Statement 5.

This Court unanimously affirmed the affirmative

answer to that question given by the three-judge court.

404 U.S. 15. Although the opinion was brief and

rendered per curiam, it was not decided summarily.

Rather it followed full briefing and oral argument

which gave thorough exposition to the issues. Even if

Gilmore had been decided summarily, it would stand as

a holding of this Court that states have an affirmative

constitutional duty to furnish prison inmates with

reasonable law libraries or an adequate alternative.

McCarthy vy. Philadelphia Civil Service Commission, 96

S. Ct. 1154, 1154 (1976); Hicks v. Miranda, 422 U.S.

332, 344 (1975); cf, Usery v. Turner Elkhorn Mining

Co., 44 U.S.L. Week 5181, 5185 (1976); Massachusetts

Board of Retirement v. Murgia, 44 U.S.L. Week 5077,

5078, n. 1 (1976) (summary affirmance after only

“cursory consideration” does not “foreclose this

opportunity to consider more fully that question.”);

Edelman vy, Jordan, 415 U.S. 651, 670-71 (1974).

Because it was decided after full briefing and argument,

its precendential value is strong. See J/mbler vy.

Pachtman, 96 S. Ct. 984, 991 (1976). This Court has

cited it favorably and relied on it in at least three cases.

Wolff v. McDonnell, supra at 578; Cruz v. Beto, 405

U.S. 319, 321 (1972); Cruz v. Hauck, 404 U.S. 59

(1971); see also, Chaffin v. Stynchcombe, 412 U.S. 17,

34, n. 22 (1973). Although the Court did not expressly

adopt the opinion of the three-judge court, neither did it

16

disclaim that opinion. Cf, East Carroll Parish School

Board vy, Marshall, 96 S, Ct. 1083, 1085 (1976). Thus,

the holding of Gilmore is clear and its foundation in

the reasoning of the three-judge court is firm.

‘Gilmore is an important development in the general

body of law in which the federal courts have become

increasingly willing “to take cognizance of valid

constitutional claims” of state as well as federal

prisoners, and to “discharge their duty to protect

constitutional rights.” Procunier v, Martinez, supra at

~ 405: Cruz v, Beto, supra at 321. More specifically, it is

part of a line of cases which serve that body of law as a

beacon, facilitating voyages through its depths and

lighting its shoals to permit safe passage. In that

context, it stands not as a terminal decision but as one

layer of an edifice under cautious but continuous

construction. Its contribution to the structure was

quietly heralded for years and it has been widely

acclaimed since its appearance.

Twenty-five years ago, in Ex Parte Hull, supra, this

Court embarked upon a dialogue with the states about

their responsibilities in connection with the needs of

their prisoners to bring grievances about their convic-

tions and the conditions of their confinement to the

attention of the courts in petitioning for their redress.

Much of the initiative for raising constitutional

questions in criminal procedure and most of the

initiative for informing the courts about prison, parole

and other penal conditions has rested with the inmates

of our prisons. In Ex Parte Hull, this Court reminded

prison authorities that the courts have a legitimate

interest in those matters and declared the importance of

permitting prisoners to shine the light of their

understanding on the abuses that they perceive in their

17

own conditions. Thereafter in official and unofficial

statements, in subdued and careful steps, the Court

asked the states to cooperate with their prisoners in

measures which would prove to be good correctional

policy as well as good constitutional doctrine. See ABA

Resource Center on Correctional Law and Legal

Services, “Providing Legal Services to Prisoners,” 8 Ga.

L. Rev. 363, 364 (1974), Mr. Justice Stewart in a 1960

address to the annual meeting of the Legal Aid Society

said:

“(I)t would be of untold advantage if a way

could be found to provide legal assistance at the

large state and federal penitentiaries throughout

the country from which most of these [in forma

pauperis| petitions come. Our Court, and all the

federal and state courts to which in forma pauperis

appeals are directed, would be greatly aided in

their work if such legal assisiance could be

provided. A lawyer's help would insure that

meritorious claims were properly and clearly

presented, and that frivolous or irrelevant conten-

tions were eliminated.”

Stewart, “The Indigent Defendant and the Supreme

Court of the United States,” 58 Legal Aid Review 3, 7

(1960); see also, Houghton v. Shafer, 392 U.S. 639

(1968); Cochran v. Kansas, supra.

In 1963 a committee of the Judicial Conference of

the United States recommended legislation to provide

legal assistance for federal and state prisoners. Report

of the Committee on Habeas Corpus, 33 F.R.D, 367,

385 (1963).

In Johnson v, Avery, supra, the Court struck down as

a denial of the constitutional right to access to the

courts a Tennessee prison regulation prohibiting prison-

ers from helping other prisoners with the preparation of

judicial papers. The Court held that “the prisoner is, in

effect, denied access to the courts unless such help is

available.” /d. at 488. Confining its decision to the facts

presented to it, the Court ruled simply that the prison

could not punish its inmates for violating that

regulation. The Court made the breadth of its concern

clear, however, It stated that prisoners are constitu-

tionally entitled to help with their applications to the

courts. Acknowledging that inmate legal assistance may

be a source of problems for the prisons and for the

courts, the Court also told the states “that techniques

are available to provide alternatives if the State elects to

prohibit mutual assistance among inmates.”’ /d, at 490,

The Court described some of the available techniques:

attorneys on the public defender staff could include

consultation with prisoners on their legal claims among

their services; law students could advise inmates; and

voluntary bar association programs could provide

attorneys to consult with prisoners concerning their

cases, /d, at 489,

In an opinion dissenting from the judgment upsetting

the discipline of the prison writ writer, Mr. Justice

White more directly stated “‘that the State must provide

access to the courts by ensuring that those who cannot

help themselves have reasonably adequate assistance in

preparing their post-conviction papers.” /d. at 502,

Unless the inmate gets such help, Mr. Justice White

observed, the prisoner “will be as surely and effectively

barred from the courts as if he were accorded no help

at all.”’ Jd, at 499,

Gilmore can be read consistently with either the

narrow basis for Johnson vy, Avery — that the obligation

of the state is limited to overcoming its own hindrance

of its prisoners’ access to law books in libraries outside

19

the prison system — or with Mr. Justice White’s view,

also supported in the majority opinion, 393 U.S, at

488; see also Wolff v. McDonnell, supra at 577 — that

without regard to whether the State is a source of

interference with its prisoners’ access to the courts, the

prisoners have a “constitutional right to help.” 393 U.S,

at 502; see also, Nolan vy. Scafati, 430 F.2d 548, 551

(Ist Cir, 1970); Cross v. Powers, 328 F. Supp. 899, 903

(W.D, Wis. 1971), Either interpretation supports the

judgment of the District Court affirmed by the Court

of Appeals in this case.

(B) Younger v. Gilmore Deserves To Be Reaffirmed

By This Court, In their certiorari petition, petitioners

argued “that the only conclusion which can be drawn

from the YOUNGER per curiam is purely negative, that

a state cannot by regulation restrict the contents of

prison law libraries." Petition for Certiorari 4. The

foregoing discussion makes plain that such a narrow

interpretation cannot be maintained. See Wol/f y.

McDonnell, supra at 578-579 (Gilmore “required state

officials to provide indigent inmates with access to a

reasonably adequate law library for preparation of legal

actions.) Accordingly, in their brief petitioners pru-

dently abandoned that position and instead called for

a “fresh evaluation” of Gilmore to determine “whether

the rule in that case should be applied to every prison

in the nation or overruled as a mistake.” Brief for

Petitioners 11.

Such reevaluation would not be appropriate. Gilmore

was decided unanimously after plenary consideration

less than five years ago. Although the Court consisted

of only seven Justices at the time, six of the Justices

who joined in that decision still sit as Members of this

Court.

20

Moreover, the developments since Gilmore — in the

states and their prison systems, in the courts, in the

literature, and in professional organizations — demon-

strate the wisdom and correctness of that decision. The

support for it from all quarters is overwhelming. North

Carolina has little company in resisting it.

The record of compliance with Gilmore among the

states, the Federal Government and the District of

Columbia, is nearly complete, and is described in

Exhibit B to this brief. West Publishing Company

reported that soon after Gilmore was decided all but

ten states had placed orders to meet its requirement.

Ziegler and Herman, “The Invisible Litigant: An Inside

View of Pro Se Actions in the Federal Courts,” 47

N.Y.U, L. Rev. 157, 174, n. 56 (1972); see also,

Werner, “The Present Legal Status and Conditions of

Prison Law Libraries,” 66 Law Lib. J. 259, 262,

264-266 (1973). As Gilmore contemplated, the modes of

response have ranged from law libraries to trained

inmate paralegal assistance programs to law school

clinical programs to attorney lega services programs,

and have included a variety of combinations of all of

these. Exhibit B is a catalogue of the forms of legal

assistance provided by nearly all of the states for their

prisoners. The states’ record of compliance with

Gilmore which it shows argues forcefully against

reevaluation of Gilmore, The effect of Gilmore has been

to guarantee substantial legal assistance to the prisoners

throughout most of the country. Only a handful of

states would benefit from the overruling of Gilmore

recommended by petitioners. If conferred, any such

benefit would be a windfall reward for recalcitrance in

abiding by the decisions of this Court. The effect on

21

the several states which have complied with Gilmore is

hard to predict. Most have reported such satisfaction

with their programs that they would likely continue

them even without constitutional compulsion from this

Court. What would it mean in the others? Some even

though proud of their programs might feel discouraged

if the Court were to reverse the decision in this case.

They might then neglect their well maintained law

libraries until the lack of up-to-date materials renders

them largely useless or, worse, misleading to the

prisoners. Others might neglect their paralegal training

of inmates, Others might let their law student or lawyer

legal service programs lapse. What reasons do petitioners

offer for asking the Court to give possible encourage-

ment to such results?

Gilmore has received the support of all the circuits

which have had occasion to deal with it: the First

Circuit, in Souza v, Travisono, 498 F.2d 1120 (ist Cir.

1974); the Third Circuit, in Bryan v, Werner, 516 F.2d

233 (3d Cir. 1975); the Fourth Circuit, in this case, and

in Vette v, Virginia Department of Corrections, 529

F.2d 518 (4th Cir. 1976) (unpublished opinion); Jarvis

vy. North Carolina, No. 73-2094 (4th Cir. 1974)

(unpublished memorandum decision); the Fifth Circuit,

in Stevenson v, Reed, 530 F.2d 1207 (Sth Cir. 1976),

affirming 391 F. Supp. 1375 (N.D. Miss. 1975); Cruz y.

Hauck, 515 F.2d 322 (Sth Cir. 1975); Hooks y.

Wainwright, 457 F.2d 502 (Sth Cir. 1972); Novak y.

Beto, 453 F.2d 661 (Sth Cir. 1971); the Seventh

Circuit, in Knell v, Bensinger, 522 F.2d 720, 726 (7th

Cir, 1975), after prior decision at 489 F.2d 1014 (7th

Cir, 1973); Black v. Brown, 513 F.2d 652 (7th Cir.

1975); Adams v, Carlson, 488 F.2d 619, 632 (7th Cir.

1973); the Eighth Circuit, in Kirby v. Ciccone, 491

22

F.2d 1310 (8th Cir. 1974); Noorlander v, Ciccone, 489

F.2d 642 (8th Cir, 1973); the Ninth Circuit, in Gaglie

vy, Ulibarri, 507 F.2d 721 (9th Cir, 1974); Mead y.

Parker, 464 F.2d 1108 (9th Cir. 1972); the Tenth

Circuit, no cases, but see the District Court decision in

Battle v. Anderson, 376 F, Supp. 402 (E.D, Okla.

1974); and the District of Columbia Circuit, in United

States v. Simpson, 436 F.2d 162 (D.C, Cir, 1970).’ The

Petitioners cite only two cases contra: Hatfield v. Bailleaux,

290 F.2d 632 (9th Cir. 1961), Farrington v. North Carolina, 391

F. Supp. 714 (M.D. N.C. 1975).

In Farrington, the District Court observed: “The appointment

of counsel to advise with prisoners and prepare and file

meritorious actions would be far more beneficial than providing

them with law libraries.” 391 F. Supp. at 720. Then, interpreting

Gilmore exceedingly narrowly, it held that North Carolina need

not establish prison law libraries because “(i)t has not embarked

upon the hazardous task of furnishing ‘adequate’ law libraries,

with ‘adequate’ access, ‘adequate’ circulation, and with ‘adequate

replacement procedures.’ "’ 391 F, Supp. at 720. That is the only

federal case expressing disapproval of Gilmore, and it directed its

criticism only at law libraries while expressing approval of legal

assistance programs. To the extent that it refused to require

North Carolina to provide at least law libraries in its prisons, it

was effectively overruled by the Court of Appeals decision in this

case,

Hatfield was decided ten years before Gilmore, \t recognized

the constitutional right of access to the courts and that this right

included access to the state courts, 290 F.2d at 636, but it

upheld prohibitions against inmate legal assistance for other

inmates, and to that extent was overruled in Johnson v. Avery,

supra, \t also held that a state could deny prisoners all access to

the courts or to legal material while in disciplinary isolation for

periods of time ranging from two to twenty-seven days, and

could limit the time that prisoners could spend in the law library

and prohibit them from keeping legal materials in their cell. See

Johnson v. Avery, supra at 490. In dictum, the court observed:

(continued)

23

federal courts have found satisfaction in the improved

quality of petitions prepared by attorneys and inmate

paralegals. McDonnell v. Wolff, 342 F. Supp. 616, 621

(D. Nev. 1972); Novak v. Beto, 320 F. Supp. 1206,

1210 (S.D. Tex. 1970); Jacob and Sharma, “Justice

After Trial: Prisoners’ Need for Legal Services in the

Criminal- Correctional Process,” 18 Kan. L. Rev. 493,

593 (1970). There is evidence that giving prisoners

access to law libraries or legal services reduces the

number of frivolous petitions and increases the quality

of those petitions that are filed. Consortium of States

to Furnish Legal Counsel to Prisoners, “Final Report,

LEAA Grant 75 OF-99-0013” 14 (1975); Jacob and

Sharma, supra, 18 Kan. L. Rev. at 520-521, 602;

LeDonne, Survey of Library and Information Problems

in Correctional Institutions (H.E.W. Office of Education

1974), vol. 2 at 11; Meyer, “The Defender Project,”

The KU Laws 5, 9 (Fall 1973); Norman, “Civil Legal

Services to Prison Inmates,” 48 Fila. B.J. 736, 738

(1974); Wilson, “Legal Assistance Project at Leaven-

worth,” 24 Legal Aid Brief Case 254, 259 (1966);

Note, 1968 Duke L.J. 343, 359.

(footnote continued from preceding page)

“State authorities have no obligation under the federal

Constitution to provide library facilities and an opportunity for

their use to enable an inmate to search for legal loopholes in the

judgment and sentence under which he is held... .” 290 F.2d at

640. (The case may have involved prisoners who wanted access

to legal materials for cases in which they had been offered and

waived counsel. See 290 F.2d at 641.) This dictum was expressly

rejected by the three-judge court in Gilmore. California

continued to urge that dictum before this Court, Younger v.

Gilmore, No. 70-9, Appellant’s Brief 17, but without success.

Ninth Circuit law is now, of course, inconsistent with that

dictum. Gaglie v. Ulibarri, 507 F.2d 721 (9th Cir. 1974).

24

Professional organizations of lawyers, librarians and

correctional administrators and other concerned groups

reacted quickly to support Gilmore and to assist in its

implementation. Although most, like the lower courts

in this case, prefer that a state provide both legal

services and law libraries than one or the other, and

prefer legal services over law libraries, they strongly

support the need for prison law libraries at a minimum.

Gilmore spurred the American Library Association to

form a Task Force on Prison Library Service. LeDonne,

supra, vol. 1 at 1-2. The American Association of Law

Libraries established a committee to prepare a recom-

mended list of the contents of a prison legal collection,

to make recommendations to individual states, and to

compile a directory of law libraries which provide

services to prisoners. LeDonne, supra, vol. 2 at 5.

The American Correctional Association (ACA) aiso

created a Subcommittee on Legal Reference Materials.

LeDonne, supra, vol. 2 at 5. It proposed a conference

on the subject which was held in May, 1972. LeDonne,

supra, vol. 1 at 2; 36; vol. 2 at 2, 5. Out of this

conference came the Guidelines for Legal Reference

Service in Correctional Institutions: A Tool for

Correctional Administrators, which was formally ap-

proved by the ACA in 1972 and published in 1973.

LeDonne, supra, vol. 2 at 5. A second edition was

published in 1975. The ACA has also adopted library

standards for prisons which provide that, because legal

counseling is not available in an adequate supply, law

libraries are essential in prisons. ACA Committee on

Institution Libraries, Library Standards for Adult

Correctional Institutions 10-13 (1974). Individual cor-

rectional administrators have also expressed their

approval. Bluth, “Legal Services for Inmates: Coopting

25

the Jailhouse Lawyer,” 1 Capital U.L. Rev. 59, 61, 67

(1972); Cardarelli and Finkelstein, “Correctional Ad-

ministrators Assess the Adequacy and Impact of Prison

Legal Services Programs in the United States,” 65 J.

Crim. L. and Criminology 91, 94-102 (1974); Con-

necticut Department of Correction, Legal Assistance to

Prisoners 4-5; Kansas Legal Service for Prisoners, Inc.,

The Facts About Legal Services for Prisoners (1975

Report); Walsh, “Jailhouse Lawyers: The Texas Depart-

ment of Corrections Revokes Their License,’ 1 Capital

U.L. Rev. 41, 56 (1972); Carter v. Lally, Civil No.

72-642-K (D. Md.), Affidavit of William P. Statsky at 3

(“I conducted an extensive survey of prisons in America

which offered legal services to fellow inmates. My

contact with wardens and other administrators revealed

substantial support for the concept of inmate as

paralegal not only as a way of providing services but

also as preparation for a new career in law once

released.”); see generally, Carlson, “Corrections in the

United States Today: A Balance Has Been Struck,” 13

Am. Crim, L. Rev. 615, 635-639, 646-647 (1976).

Also, “West Publishing Company prepared recom-

mended lists of materials for each state and agreed to

provide training sessions in the use of the packaged

collections.” LeDonne, supra, vol. 2 at 6. The American

Association of Law Libraries, through its Committee on

Law Library Service to Prisoners, has embarked on a

long-range program “for one or more consulting law

librarians in each state to act as continuing consultants

to librarians in prison law libraries of the state.”

Werner, Manual for Prison Law Librarians 5 (Fred B.

Rothman and Co. 1976). Mr. Wemer’s recently

published book for the American Association of Law

Libraries is itself ~ service for prison law librarians.

26

The United States Government has also lined up

squarely behind Gilmore. In an amicus curiae brief filed

in the still pending case of Hooks v. Wainwright, Nos.

71-101 1-Civ-J-S, 71-144-Civ-J-S (M.D. Fla.) after the

interim decision in that case published in 352 F. Supp.

163 (M.D. Fla. 1972), the Government took the

position that ‘“‘meaningful access to the courts for

indigent inmates of the Florida penal system requires

both reasonably comprehensive prison law libraries and

adequate legal services.” Hooks v. Wainwright, supra,

Post Hearing Memorandum of the United States 6. The

Government made clear that it believed that even if

legal services are provided, “reasonably comprehensive

law libraries must also be provided.” Jd. at 15. The

United States Bureau of Prisons provides law libraries in

all of its prisons, Policy Statement 2001.2B, 1 Pris. L.

Rptr. 243-245 (1972) and legal services programs in

most. United States v. Simpson, 436 F.2d 162, 168-169

(D.C. Cir. 1970); Stevenson v. Reed, 530 F.2d 1207

(Sth Cir. 1976), Affidavit of Eugene N. Burkin, General

Counsel of the United States Bureau of Prisons, dated

December 20, 1973, R. Vol. 1, 137-138.

This position is consistent with the position taken by

two national commissions, one in 1967 and the other in

1973. President’s Commission on Law Enforcement and

the Administration of Justice, Task Force Report:

Corrections 84 (1967); National Advisory Commission

on Criminal Justice Standards and Goals, Report on

Corrections 26-30 (1973). The National Advisory

Commission was established by the Law Enforcement

Assistance Administration (LEAA) and the standards it

promulgated provide for law libraries in all prison

facilities with a design capacity of 100 or more

(standard 2.3) and also for legal assistance for prisoners

eee ee Eee ee aes

27

by attorneys assisted by law students or paraprofes-

sionals (standard 2.2). LEAA has invested substantial

sums Of money in the states to back up those

recommendations. See Exhibit B. LEAA has found that

“The need for prison legal services is confirmed in the

literature, in the results of our own empirical research,

and in the views of a national sample of correctional

personnel and law schools.” Finkelstein and Krantz,

Perspectives on Prison Legal Services: Needs, Impact

and the Potential for Law School Involvement 1 (LEAA

Summary Report 1972).

The American Bar Association (ABA) has also given

enthusiastic support to Gilmore. Even before Gilmore

was decided the ABA took a position in favor of the

states providing prisoners a law library, counselling by

lawyers or law students, and _ specifically-prepared

pamphlets or brochures outlining the relevant law in a

manner understandable to the prison population. ABA

Project on Minimum Standards for Criminal Justice,

Standards Relating to Post-Conviction Remedies 49-52

(Approved Draft 1968) (standard 3.1); see also, ABA

Project on Minimum Standards for Criminal Justice,

Standards Relating to Providing Defense Services 40-43

(Approved Draft 1968) (standard 4.2). Inspired by Mr.

Chief Justice Burger, see ABA Young Lawyers Section,

Behind the Bars: A Report to the Chief Justice of the

United States Supreme Court (1975), the ABA is

strengthening its support. Its Joint Committee on the

Legal Status of Prisoners has adopted a tentative draft

of standards concerning the situation of those confined

as a result of criminal justice system processing.

Tentative standards 2.1, 2.2 and 2.3 deal with the

general subject of “Access to the Courts, Legal Services

28

and Legal Materials.’ Following closely the recommen-

dations of the National Advisory Commission, the new

proposed standards call for states to provide law

libraries in their prisons and also to provide legal

assistance programs for their prisoners staffed by

attorneys or trained paraprofessionals under the super-

vision of an attorney. The ABA has also supported its

position financially. Its Commission on Correctional

Facilities and Services in 1972 created the Resource

Center on Correctional Law and Legal Services and in

1974 created a program called Bar Association Support

to improve Correctional Service (BASICS). Through the

BASICS program, the ABA provides funds to state and

local bar associations for several programs, among which

prison legal services programs are one of three priority

areas. Grants for this purpose have been provided to

several bar associations. ABA, BASICS (1976); ABA,

BASICS Il (1975). See generally, ABA Resource Center

on Correctional Law and Legal Services, “Providing

Legal Services to Prisoners,” 8 Ga. L. Rev. 363, 374,

375, 422 (1974).

Similar support has come from other organizations.

See Annual Chief Justice Earl Warren Conference on

Advocacy in the United States, “‘A Program For Prison

Reform; the Final Report” 15, Recommendation XVI

(The Roscoe-Pound-American Trial Lawyers Foundation

1972); Krantz, Bell, Brant and Magruder, Model Rules

and Regulations on Prisoners’ Rights and Responsibili-

ties 207-209 (West 1973); National Commission on

Uniform State Laws, Uniform Corrections Act §2-601

(Proposed Code).

ee Ot

29

IIL.

NORTH CAROLINA DOES NOT PROVIDE

ITS PRISONERS LAW BOOKS OR A

REASONABLE ALTERNATIVE.

North Carolina does nothing to help its prisoners

overcome the obstacles which incarceration imposes on

their access to the courts. The District Court so found.

Supp. App. 6, 10-11. The Court of Appeals agreed.

Petition for Certiorari 19. Petitioners nevertheless

contend that North Carolina does provide alternatives

to law libraries for their prisoners in the following

forms: (a)it provides counse! to represent indigent

defendants at trial and on their first appeal, Brief for

Petitioners 3, n. 1, 8, 22; (b)it provides counsel to

represent indigent prisoners in state post-conviction

proceedings, Brief for Petitioners 14, n. 9; and (c) it

provides an Inmate Grievance Commission, Brief for

Petitioners 14.

Point (a). The right of criminal defendants to the

assistance of counsel in trials and first stage appeals has

been developed in a distinct line of cases, Argersinger v.

Hamlin, 407 U.S. 25 (1972); Douglas v. California, 372

U.S. 353 (1963); Gideon v. Wainwright, 372 U.S. 335

(1963), aad the courts have customarily used the phrase

“access to the courts” in a narrow sense which does not

include these situations. Only the needs of prisoners for

access to the courts after their conviction and first

appeal are involved in this case. For this reason, the

State’s expenditures for appointed counsel are not

relevant. They are total expenditures for appointment

of counsel generally and not for assistance to prisoners

in proceedings which are part of the specific concept of

access to the courts which is involved in this case.

30

Point (b). This Court has already taken notice that

North Carolina’s statutory provisions for appointed

counsel are not construed as broadly as they appear on

their face. Ross v. Moffitt, 417 U.S. 600, 614 (1974).

As is generally the case with such statutes in

post-conviction proceedings, the court appoints counsel

only after first making an initial screening determina-

tion, according to uncertain criteria, that such appoint-

ment is justified in the particular case. Supp. App. 23;

Exhibit A at 4; Perkins vy. North Carolina, 234 F. Supp.

333, 334-335 (W.D. N.C. 1964); Jacob and Sharma,

supra, 18 Kan. L. Rev. at 518; see also, Johnson y,

Avery, supra at 488 (1969). Before a prisoner can take

advantage of this statute, then, he or she must present

to the court a case sufficiently compelling in its initial

documentary appearance to overcome this hurdle, The

right to access to the courts comes into play primarily

at this preparation stage, Wolff v. McDonnell, supra at

576 (1974), and at this critical time North Carolina

provides its prisoners with no assistance. Cf, Johnson y.

Avery, supra at 487, n. 6.

Point (c). Our Inmate Grievance Commission, while a

welcome resource, see Burger, “Our Options Are

Limited,” 18 Vil. L. Rev. 165, 171 (1972), can help

prisoners, if at all, only with grievances against the

institution and not challenges to their convictions. Even

in that area it is limited to making recommendations to

the Secretary of Correction, and cannot assist inmates

with the preparation of court papers to gain access to

the courts. Moreover, the Commission has the authority

only to make recommendations, not decisions. By

statute, the final decision on any grievance remains with

the Secretary of Correction who “shall affirm the order

of the Commission, or shall reverse or modify the order

31

if he disagrees with the findings and conclusions of the

Commission.” N.C. Gen. Stat. §148-106(2)(1975

Supp.). The Department of Correction need not,

therefore, pay any attention to the Inmate Grievance

Commission, and the Secretary has in fact rejected most

of the Commission’s orders. Conclusions about the

effectiveness of the Commission depend upon informa-

tion about its receptivity to grievances and about the

Department’s willingness to abide by or even be guided

by Commission recommendations. Petitioners have

provided no such information.

Thus, North Carolina provides its prisoners no legal

assistance in the preparation of state or federal

collateral attacks on their convictions, in the prepara-

tion or pursuit of state or federal actions challenging

the conditions of their confinement, or in the

resolution of detainers filed against them, or any other

matters,

Petitioners argue that the fact that some of the

respondents have filed many court actions shows that

petitioners “have not deprived the Respondents of their

access to the Courts.” Brief for Petitioners 8. That

information might be relevant if respondents were

charging that petitioners had prevented them from

communicating with the courts in the manner outlawed

in Ex parte Hull, 312 U.S. 546 (1941). But, as the

District Court held, “Access does not mean the ability

to file petitions or suits, but it rather means the ability

to file meaningful petitions and suits.”” Supp. App. 5.

“(Access to the courts by prison inmates must be more

than mechanical access; it must be meaningful access.”

Brief of the Commonwealth of Virginia as Amicus

Curiae in Support of the Petitioners 6.

32

As petitioners assert, “the North Carolina Depart-

ment of Correction has no regulations prohibiting

mutual legal assistance....”’ Brief for Petitioners 3, 6,

9. That does not mean, however, that inmates capable

of providing such assistance and willing to do so are

available to the prisoners at each of the State’s prison

units. Cf, Bryan v. Werner, 516 F.2d 233, 236-237 (3d

Cir, 1975); Stevenson v, Reed, 391 F. Supp. 1375,

1378 (N.D. Miss. 1975), aff'd, 530 F.2d 1207 (Sth Cir.

1976). It also does not mean that the State takes any

steps to encourage or facilitate such assistance or to

assure that such help is accessible to every inmate who

needs it. There is irony in petitioners’ contending that

by tolerating inmate legal assistance they satisfy their

constitutional obligation while also maintaining that

their inmates are “untrained individuals with neither an

understanding nor respect for the law....” Brief for

Petitioners 22. Not even the most accomplished writ

writer, no more than a skilled attorney, could be

expected to function properly without legal research

materials. Moreover, the fact that there is no regulation

against prisoners providing such assistance does not

mean that prison administrators do not take discretion-

ary steps such as administrative transfers to discourage

it. See Oxendine v, Williams, 509 F.2d 1405, 1407 (4th

Cir. 1975); Jarvis v. North Carolina, No. 73-2094 (4th

Cir. 1974) (unpublished memorandum decision), slip

opinion at 4.

In their certiorari petition, petitioners argued that

“legal assistance is also made available to inmates

through the various legal aid societies of the State of

North Carolina, the North Carolina Civil Liberties

Union, the Prison Research Counsel, Law School

Habeas Corpus and Constitutional Law Seminars,

33

various voluntary associations of attorneys and law

students....”" Petition for Certiorari 11. This assertion

was false and without support in the record, Wisely,

petitioners abandoned it in their brief.

Thus, the findings of the courts below that North

Carolina provides its prisoners with no legal assistance

in the preparation of their court actions are not

“clearly erroneous.” Rule 52(a), Federal Rules of Civil

Procedure. In this respect our State can be counted

among only a handful of states that have ignored this

constitutional responsibility. Unlike the overwhelming

majority of states, North Carolina provides its prisoners

no legal services beyond trial and the first appeal

(unless a state court judge decides to appoint counsel

for a prisoner who has filed a post-conviction petition),

no programs for law students or other legal paraprofes-

sionals to assist its inmates, no training or education in

legal matters for any of its inmates and no law books in

seventy-nine of its prison units and only a few in its

maximum security unit. North Carolina has refused to

provide any such assistance in spite of this Court's

decision in Younger v. Gilmore, supra, and the Court of

Appeals decision in Jarvis v. North Carolina, No.

73-2094 (4th Cir.- 1974) (unpublished memorandum

decision) (holding that a North Carolina prisoner's

allegation that he is provided no law books “states a

claim for relief if the prison system offers no adequate

alternative.”’),

34

IV.

NORTH CAROLINA HAS OFFERED NO

SATISFACTORY JUSTIFICATION FOR ITS

FAILURE TO COMPLY WITH YOUNGER

V. GILMORE BY PROVIDING ITS PRIS

ONERS ADEQUATE LAW BOOKS OR A

REASONABLE ALTERNATIVE.

Petitioners offer only one justification for their

failure to comply with Gilmore: that the cost would

divert scarce funds from what the North Carolina

General Assembly and the Department of Correction

“no doubt consider more valuable programs.” Brief for

Petitioners 13. This generalized justification was ex-

plicitly rejected in Gilmore. See also, Hooks y.,

Wainwright, 352 F. Supp. 163, 168 (M.D. Fla, 1972). It

deserves no grcatcr consideration in this case.

Many decisions of this Court proclaim the principle

that “constitutional requirements are not, in this day,

to be measured or limited by dollar considera-

tions....”” Jackson v. Bishop, 404 F.2d 571, 580 (8th

Cir. 1968) (per Blackmun, J.). E.g. James v, Strange,

407 U.S. 128, 141-142 (1972); Argersinger v. Hamlin,

supra at 37; Boddie v, Connecticut, supra at 381-382;

Williams v. Oklahoma City, 395 U.S. 458 (1969);

Gardner v, California, 393 U.S. 367 (1969); Roberts y.

LaVallee, supra at 42; Long vy, District Court, 385 U.S.

192, 194 (1966); Douglas v. California, supra; Smith vy.

Bennett, 365 U.S, 708, 709 (1961); Burns v. Ohio, 360

U.S. 252 (1959); Griffin v., Illinois, 351 U.S, 12 (1956).

This Court has permitted a state to take economic

considerations into account only after the Court first

found that the state was not constitutionally required

to provide the benefit involved. Ross v. Moffitt, supra

«eS Oe

35

at 618; see also, United States v. MacCollom, 96 §. Ct.

2086 (1976); Argersinger v. Hamlin, supra at 62

(Powell, J., concurring). “Where state institutions have

been operating under unconstitutional conditions and

practices, the defenses of fund shortage... have been

rejected by the federal courts.”” Gates vy, Collier, 501

F.2d 1291, 1319, 1320 (Sth Cir. 1974), “(A) state is

not at liberty to afford its citizens only those

constitutional rights which fit comfortably within its

budget.” Pugh v, Locke, 18 Cr. L. Rptr. 2370, 2371

(M.D, Ala, 1976),

If there may be a situation in which the economic

condition of the state treasury and the competing

demands for its resources are to be taken into account,

it is not presented in this case. Petitioners are not

asking the Court to take account of its limited

resources in determining the exfent to which it must

provide its prisoners with law books or an alternative

form of assistance in their access to the courts. Instead,

they are asking the Court — for this economic reason

alone — to permit them to do nothing in this regard.

Moreover, they do so with only a cursory conclusion

that “the State’s resources, especially at the present

time, are sharply limited....’’ Brief for Petitioners 13.

They have presented no information about either the

costs involved in their plan for providing law library

facilities in their prisons, the resources available to meet

those costs, or the competing programs which they

consider more valuable." Petitioners have failed to make

a case that the law libraries contemplated by their plan

are beyond their means. Simply by stating that they

*In the Conclusion to their brief, petitioners assert that our

State “has not yet found itself financially able to provide such

extensive legal research facilities” to its judges or district

attorneys. Brief for Petitioners 22. If it is true that the judges do

not have access to the laws and decisions, the prisoners’ need for

(continued)

36

cannot afford to meet their constitutional obligation

they hope to be excused by this Court from doing so.

Constitutional rights would be ephemeral indeed if

they depended on a state’s subjective budgetary

assessments. If financial considerations are ever to play

a role in the determination of the existence of

constitutional rights or the extent of a state’s duty to

provide for them, surely this Court as the guarantor of

those rights must independently review the state’s

budgetary determinations. Such a review in this case

would involve a multitude of factors.

First, the Court would have to assess the costs

involved, Keeping in mind that the District Court

permitted the State to determine which of the variety

of alternatives available to satisfy the need of its

prisoners for help in their access to the courts it would

implement, the Court should also inquire whether any

of the alternatives not chosen would be less expensive.

Although petitioners have not provided any cost

figures,’ it is apparent that the plan that they

(footnote continued from preceding page)

law books is even more acute because the judges are then

dependent upon the litigants before them to instruct them on

the law. But the judges and district attorneys do have libraries

provided them—partly through LEAA grants, Petition for

Certiorari 10-11—and also have access to the more complete

libraries listed in footnote 1.

%In 1974, the Department of Correction prepared an

application to LEAA for federal financial support for the

implementation of its plan for prison law libraries approved by

the District Court. A copy of that application is attached to this

brief as Exhibit A. In it, the Department of Correction

represented that the total cost for initial purchase of the law

library facilities contemplated by the plan—including a librarian,

training, travel, supplies, equipment and books would be

$72,265. Exhibit A at 10. The figures for books alone were

$4,082.42 for each of the seven main libraries and $276.50 for

each of the five core libraries, or a total for books of

$29,959.44. Exhibit A at Attachments D-1 and D-2.

37

submitted to the District Court was an economic

compromise. They chose not to provide their prisoners

with the assistance of lawyers or non-inmate legal

paraprofessionals. Instead, they chose to provide only

law books, and they decided not to provide those at all

of their facilities but only at a select few of them to be

located presumably where they can efficiently service

the prisoners in the rest. Thus, costs were kept to a

minimum, and the lower courts approved the plan with

minor modifications. There are ways in which even this

cost could be reduced. For example, the Connecticut

Department of Corrections has provided so much of the

material in its law libraries as is in the public domain

on microfilm. Connecticut Department of Corrections,

Legal Assistance to Prisoners 5-8 (1975). It has found

that for approximately $1,000, including the microfilm

reader and 39 film cartridges with a total of 150,000

pages, “‘a single institution can be outfitted with a fairly

comprehensive set of legal, statutory and case law, plus

relate? materials.”’ Jd. at 6, 8. A system using microfilm

or microfiche has advantages not only of cost but also

of space-saving and security. Jd. at 6; see also, ABA

Young Lawyers Section, Behind the Bars; A Report to

the Chief Justice of the United States Supreme Court

15 (1975); LeDonne, supra, vol. 1 at 37, vol. 2 at 7-8,

10, It is clear that the cost to the State of meeting this

constitutional obligation is not exorbitant.

Turning to the resources available to the State to

meet these costs, petitioners neglected to mention that

they contemplate using federal LEAA funds to pay

ninety percent of their initial investment in the library

facilities, ninety percent of their expenses for the first

year, and a portion of the substantially reduced

expenses for the following year. See Exhibit A.

38

Pursuant to 42 U.S.C. sections 3750 et seq., LEAA has

provided substantial funding for most of the states to

install law libraries or legal services programs in their

prisons. LEAA, A Compendium of Selected Criminal

Justice Projects U1-201, [V-360 to IV-368 (1975); Le

Donne, supra, vol. 2 at 59, vol. 3 at 5, 6, 10, 18, 29,

39, 42, 65; ABA Resource Center on Correctional Law

and Legal Services, ‘Providing Legal Services to

Prisoners,” 8 Ga. L. Rev. 363, 401-402, 403, n. 126,

407 (1974); see Exhibit B. The Public Library Services

and Construction Act also provides federal funds for

library services in state institutions such as prisons. 20

U.S.C. §351, 351(a)(9), et seq.; see LeDonne, supra,

vol. 1 at 2, 11, vol. 3 at 15, 16, 24. In addition, private

funding sources such as the Ford Foundation’s Council

on Legal Education for Professional Responsibility, Inc.

(CLEPR) have helped finance law school clinics

providing assistance to prisoners. See CLEPR, Survey

and Directory of Clinical Legal Education 58-74 (1976).

Petitioners’ argument that they lack the funds to do

their constitutional duty, if tenable at all, is untenable

in light of the LEAA and cther outside money that has

been made available for this purpose and their own

plans to take advantage of it. Gates v. Collier, 501 F.2d

1291, 1230 (Sth Cir. 1974). Even if they had to rely

exclusively on the State’s own resources, however, and

if the Court were inclined to give any credence to their

contention that it could not afford to prow ‘e for its

prisoners’ constitutional needs, the Court would have to

evaluate the budgetary considerations asserted by the

State. These are matters that the Court should not, in

respondents’ view, have to study but it is hard to see

how the Court could avoid this responsibility if it were

39

to consider this argument.'® The conclusion from this

discussion is that petitioners’ invocation of considera-

10Matters relating to the State’s fiscal policies such as the

following chosen at random from the multitude of possible

questions might become relevant if the Court were to pursue the

argument based on lack of funds:

(a) Revenue raising. (1) Although North Carolina imposes a

retail sales tax of two percent on the sale of any motor vehicle

(by contrast with a general retail sales tax of three percent) it

limits “the maximum tax with respect to any one such aircraft,

railway locomotive, railway car or motor vehicle or boat,

including all accessories attached thereto” to one hundred and ,

twenty dollars, thereby taxing only the first $6,000 of the

purchase price of any such vehicle. N.C. Gen. Stat. §105-164.4

(1975 Supp.). Should the Court consider whether North Carolina

can plead relative poverty as an excuse for not meeting its

constitutional obligations while it exempts from its sales taxes

the value in excess of $6,000 of the expensive cars, airplanes and

boats bought for business or pleasure in the State? (2) North

Carolina is one of few states in the country and one of only two

states in the Southeast which exempts corporations whose annual

taxable income does not exceed $1.67 million from its current

tax system. N.C. Gen. Stat. §§105-130.19, 105-163.25 to

105-163.30 (1972); see Turnier, “A Meaningful Corporate

Estimated Income Tax for North Carolina” (1976) (report

submitted to the General Assembly). Should the Court take into

consideration the fact that the North Carolina General Assembly

failed in its 1976 session to pass Senate Bill 961 which would

have reduced the threshold annual tax limit so as to require

most corporations to declare and pay in quarterly installments an

estimated annual income tax, and thereby yield to the State a

one-time windfall in excess of one hundred million dollars? See

Turnier, supra at 1.

(b) Expenditures. (1) A candidate for the position of state

auditor recently pointed out in a public statement that during

the period from January, 1973 to June, 1975, the Department of

(continued)

40

tions of economy is inadequate as a justification for its

failure to meet its constitutional responsibilities.

(footnote continued from preceding page)

Correction changed a number of direct service positions —

including correctional and probation officers — to administrative

positions — including a photographer, a special assistant to the

secretary, several stenographers and accounting clerks. Statement

of Lillian Woo (January 12, 1976). Should the Court decide

whether these changes represent a commitment to “more

valuable programs,” Brief for Petitioners 13, than the legal

assistance program mandated by constitutional considerations?

(2) The Department of Correction has had twenty million dollars

in funds designed for new construction on hand and unspent

(despite the present overcrowding) since the time of the District

Court order in this case in 1974. Chapel Hill Newspaper, page 11

(June 1, 1976); Durham Morning Herald, page 12A (June 2,

1976). Should this Court take the availability of these funds into

account? (3) Overriding the thoroughly studied and strongly held

position of the governing board of the University of North

Carolina, Minutes of November 16, 1973 meeting of the U.N.C.

Board of Governors, the North Carolina General Assembly in

1974 directed the Board of Governors to develop a second state

medical school at East Carolina University and appropriated

seven and one-half million dollars as an initial outlay towards

that goal. Ch. 1190, § §2,46, N.C. Session Laws of 1973 General

Assembly (1974 Session). The Carnegie Commission on Higher

Education, in agreement with the Board of Governors, recently

found that the medical school is unnecessary. Carnegie Council,

The States and Higher Education (Jossey Bass 1976). Should the

Court become embroiled in the political dispute regarding this

investment?

Respondents repeat that we do not think these matters are

appropriate for federal court consideration. We list them only to

illustrate the kinds of factors that would be implicated if the

Court were to consider the State’s argument that it cannot afford

to provide for its prisoners’ constitutional rights.

4)

V.

THIS COURT IN YOUNGER V. GILMORE

AND THE LOWER COURTS IN THIS CASE

ACCORDED PROPER REGARD TO THE

EXPERTISE AND DISCRETIONARY AU-

THORITY OF CORRECTIONAL OFFI

CIALS.

Petitioners argue that Gilmore and the lower court

decisions in this case failed to accord the “proper

regard that judges shor ! give to the expertise and

discretionary authority of correctional officials.” Brief

for Petitioners 15. They do not suggest, however, what

expertise or discretionary authority they are alluding to.

If it is the expertise and discretion in making decisions

about allocation of available funds the point has just

been answered. If it is expertise and discretion in

choosing among the different methods for meeting this

constitutional duty, the lower courts in this case as in

Gilmore accorded almost total discretion to the prison

authorities in that regard. Supp. App. 12-13. At one

point in their brief, petitioners argue that if required to

provide law libraries in their prisons “the States will be

forced to think twice before opening numerous small

facilities designed, such as in the State of North

Carolina, to keep prisoners as close as possible to family

and community where rehabilitation can most easily be

accomplished.” Brief for Petitioners 13. Respondents

recognize that this system of establishing prison units in

many communities, a carryover from the days when

each county was responsible for housing its own

prisoners, now serves the salutary purpose of permitting

some prisoners to be housed near their home

42

communities. Respondents would not want to jeopard-

ize this regional nature of the North Carolina prison

system and nothing in the order under review does so.

On the contrary, the District Court approved a plan

submitted by the State and tailored to accommodate

the system of small prison units. See Supp. App. 12;

cf., Procunier v. Martinez, supra at 420; Stevenson y.

Reed, supra, 391 F. Supp. at 1383; Hooks vy.

Wainwright, supra, Post-Hearing Memorandum of the

United States 7-8, 31, n. 61. The State’s policy in this

regard is carefully preserved, and respondents make no

showing otherwise.

Petitioners suggest in their brief that they have made

a judgment that prison law libraries are “‘non-essential

services,” Brief for Petitioners 13, and that their

prisoners are “‘untrained individuals with neither an

understanding nor respect for the law.” Brief for

Petitioners 22. The first response to this argument is

that the choice of law libraries as the means by which

it would meet the constitutional needs of its prisoners

was made by petitioners, not by the District Court.

Indeed, the District Court expressed a _ personal

preference for “‘an independent attorneys office as well

as a law library program.” Supp. App. 19, 24.

Petitioners have steadfastly stood by their determina-

tion to provide only law libraries instead, and should

therefore not be heard to complain that the aiiernative

they chose is not a meaningful one. If that is true, their

obligation is to develop a program that will be

meaningful to their inmates. Johnson v. Avery, supra at

490.

The second response is that the Department of

Correction has in fact made a determination that the

law library facilities will be useful, a judgment which

43

has considerable support. In its 1974 LEAA grant

application, the Department advised the federal govern-

ment that its proposed law library project was

“expected to benefit all inmates within the State

Corrections System.... It will also be useful to

Corrections’ personnel in that they for the first time

will have access to legal materials.’’ Exhibit A at 1. It

further represented:

“The Department of Correction intends that the

inmate shall not only have access to the court, he

shall have meaningful and effective access to the

court....(T)he ultimate result of this program

should be a diminution in the number of

groundless petitions and complaints filed in the

state and Federal courts. The inmate himself will

be able to determine to a greater extent whether

or not his rights have been violated, and when he

submits a petition to the courts which has on its

face some merit, the court will be able to appoint

counsel in those cases requiring it.”

Exhibit A at 4. The Department specifically identified

three of the performance objectives of its law library

project as:

“To reduce the number of frivolous civil rights

petitions by fifty percent;....To reduce the

number of rejected habeas corpus petitions;... To

increase the quality of all inmate petitions

submitted.”

Exhibit A at 4, 6.

The law is no longer concealed from the untrained in

the same esoteric manner that such as Benjamin Austin,

writing under the pseudonym “Honestus,” criticized in

the infant years of our nation. See Ellis, The

Jeffersonian Crisis 111-116 (Oxford 1971). Contem-

porary simplification of legal language and the resulting

44

clarification of many concepts previously obfuscated by

complex or technical phraseology has placed within the

reach of laymen a basic comprehension of some legal

subjects. This is especially true for laymen who

concentrate their law study on a single subject such as

criminal law or prisoners’ rights. There has also been a

proliferation of books, classes and training programs

designed to provide non-lawyers with some education in

legal matters. Thus, courses in legal subjects are not

uncommon today in colleges, in university under-

graduate curriculums and in business schools. The

increasing popularity, success and professional accept-

ance of legal paraprofessionals further illustrates the

point.'?

The libraries contemplated by the plan submitted to

the District Court by petitioners, in addition to basic

legal sources, contain reference books to help prisoners

acquire an understanding of the relevant fields of law

and particular subjects of their interest, and to help

them find their way into the basic materials. These

include: Strong, Norih Carolina Index (Lawyers Co-op.

2d ed.); Sokol, Federal Habeas Corpus (Michie 2d ed.

1969); LaFave and Scott, Criminal Law (West 1972);

Palmer, Constitutional Rights of Prisoners (Anderson

1973). Supp. App. 15-16. There are many others which

ythe Department through its librarian might adminis-

tratively choose to augment those research aids. These

See generally, Procunier v. Martinez, 416 U.S. 396, 419-420

(1974); ABA Special Committee on Legal Assistants, News

Careers in Law II 2643 (Conf. Report 1971); Statsky,

Introduction to Paralegalism 1-95 (West 1974).

45

include several criminal law,'* criminal procedure,'’? and

prisoners’ rights’* casebooks. They also include books

which explain criminal and correctional law in a way

that lay prisoners might understand it, such as West

Publishing Company’s “Nutshell” series'’ or books

designed for college undergraduate courses.'® There is

also, of course, instructional material in legal research

12Ror example, Dix and Sharlot, Criminal Law (West 1973);

Inbau, Thompson and Moenssens, Criminal Law (Foundation

1973); Kadish and Paulsen, Criminal Law and Its Processes

(Little, Brown 3rd Ed. 1975); Vorenberg, Criminal Law and

Procedure (West 1975); Weinreb, Criminal Law (Foundation

1975).

'3For example, Goldstein and Orland, Criminal Procedure

(Little, Brown 1974); Inbau, Thompson, Ha 4, Zabel and

Starkman, Criminal Procedure (Foundation 1974); Kadish and

Paulsen, Criminal Law and Its Processes (Little, Brown 3d Ed.

1975); Kamisar, LaFave and Israel, Modern Criminal Procedure

(West 4th Ed. 1974); Miller, Dawson, Dix and Paras, Criminal

Justice Administration (Foundation 2d ed. 1976); Vorenberg,

Criminal Law and Procedure (West 1975): Weinreb, Criminal

Process (Foundation 2d ed. 1974).

'4For example, Krantz, The Law of Corrections and Prisoners’

Rights (West 1973); Miller, Dawson, Dix and Parnas, Sentencing

and the Correctional Process (Foundation 2d Ed. 1976); Orland,

Justice, Punishment, Treatment (Free Press 1973); Singer and

Statsky, Rights of the Imprisoned (Bobbs-Merrill 1974).

'SIsrael and LaFave, Criminal Procedure in a Nutshell (West

2d’ Ed. 1975); Krantz, The Law of Corrections and Prisoners’

Rights in a Nutshell (West 1976); Loewy, Criminal Law in a

Nutshell (West 1975).

'6For example, Kaplan, Criminal Justice (Foundation 1973);

Kerper and Kerper, Legal Rights of the Convicted — (West 1974);

Rubin, The Law of Criminal Correction (Student Edition) —

(West 2d Ed. 1973).

46

techniques.'’ Perhaps most valuable are books in all of

these areas prepared specifically for prisoners. At oral

argument in Gilmore, Mr. Justice White asked counsel

for the appellees whether a handbook to guide an

indigent prisoner on habeas corpus could be prepared.

Younger v, Gilmore, Tr. of Oral Argument at 27.

Counsel replied that it could be done, and it has been:

Prison Law Project and Barristers Club of San

Francisco, A Manual on Habeas Corpus for Jail and

Prison Inmates (1973). Other groups — and particularly

concerned state departments of correction themselves —

have also written books that would be immensely

helpful to prisoners with regard to all aspects of the law

'7For example, Cohen, Legal Research in a Nutshell (West 2d

Ed. 1971); Center for Correctional Training, New York City

Department of Correction, Legal Research Methoduvlogy (English

and Spanish language versions); Lloyd, Finding the Law (Oceana

1974); Pollack, Fundamentals of Legal Research (Foundation 4th

Ed. 1973); Price and Bittner, Effective Legal Research (Little,

Brown 3d Ed. 1969); Statsky, Introduction to Paralegalism

360-540 (West 1974); Statsky, Legal Research, Writing and

Analysis: Some Starting Points (West 1974), West Publishing

Company, How to Find the Law (Wes‘. 6th Ed. 1965).

47

that might be of particular interest to them.'* In our

own State, the Institute of Government at ihe

University of North Carolina is preparing a book on

correctional law for prison and jail officials and

probation and parole officers that should also be

helpful to prisoners. The first chapter has been

published in Clarke, “Prisoner Lawsuits and Prison

Officials’ Liabilities’? (Institute of Government Admin-

istration of Justice Memoranda, November, 1975). In

addition, a group of law students, lawyers and law

professors is at work on a manua! for North Carolina

'8For example, ABA Resource Center on Correctional Law

and Legal Services and Prison Law Reporter, Prisoners’ Legal

Rights: A Bibliography of Cases and Articles (2d Ed. 1974);

Center of Law Enforcement and Correctional Justice, Ohio

Post-Conviction Manual (Ohio Department of Rehabilitation and

Correction 1973); Connecticut Department of Correction,

Landmark Decisions in Correctional Law: A Compendium of

Recent Case Law (1975); Prison Law Collective,—Jailhouse

Lawyer’s Manual: How to Bring a Federal Suit Against Abuses in

Prison (1973); Rudovsky, Rights of Prisoners; The Basic ACLU

Guide to a Prisoner’s Rights (Discuss 1973); Toal, Recent

Developments in Correctional Case Law (South Carolina

Department of Corrections 1975); Toal, The Emerging Rights of

the Confined (South Carolina Department of Corrections 1972).

The Correctional Service of Minnesota has published pamphlets

for inmates on the subjects of habeas corpus, appeals, and

divorce. ABA Project on Minimum Standards for Criminal

Justice, Standards Relating to Post-Conviction Remedies, Com-

mentary at 51 (Approved Draft 1968); Jacob and Sharma, supra

at 589-590; Linde, “Let’s Disbar the Jail House Lawyer,”

Proceedings of the American Correctional Association 124

(1962); see also, Novak v. Beto, 320 F. Supp. 1206, 1209 (S.D.

Tex. 1970), rev'd 453 F.2d 661 (Sth Cir. 1971) (“‘An extensive

legal manual, composed in layman’s language, will soon be

available in the writ rooms and prison libraries to assist inmates

in the preparation of petitions.’’)

48

prisoners that should be published and provided to the

Department of Correction for distribution to all of its

prisons by the time of the decision in this case.

Training programs for inmates are also available. In

the plan under review petitioners provided: “Those

inmates who work in the libraries will be assigned

library duties on a permanent basis. They will be

trained to the best extent possible in researching legal

questions and assisting inmates in their research.”

Petition for Certiorari 18, n.1. North Carolina in its

1974 LEAA application proposed to use a law book

publisher or a local law school to provide the training.

Exhibit A at 5, 9.

Such programs have been successful in other states.

See Johnson vy. Avery, supra at 489, 502. The senior

attorney for the New York State Department of

Correctional Services described his state’s experience in

an affidavit filed in the pending case of Carter v. Lally,

Civil No. 72-642-K (D. Md.):

“After law libraries were placed in the first 7 State

instituions, representatives of West Publishing

Company went to each institution and conducted

education courses to train inmates to use the

libraries. Later, in August and September, 1973,

the Department and West conducted an intensive

six-week training course... for a specially selected

group of about 33 inmates from all the institu-

tions. The inmates had classes in substantive law,

legal research, legal writing and use of a law

library, on Mondays, Wednesdays and Fridays. The

rest of their time during the six-week period was

devoted to studying in their cells and in a large

conference room, using the law library, and

consulting with the training staff. At the end of

the period, the inmates were given legal problems

to resolve. The answers were collected and graded,

49

and certificates were awarded to the inmates, all of

whom successfully passed the course. The inmates

were then returned to their institutions to work in

the law libraries as legal research clerks. Since

1973, with the assistance of West Publishing

Company, the Department has conducted ongoing

training programs for inmates in each of the 15

major institutions. About 200 inmates have

participated, and more than 60% have passed....

West Publishing Company has prepared a manual

which is used to train the inmates... .

“In addition to training inmates to do work, the

Department has also conducted legal training

programs for employees. Although met with some

skepticism and lack of interest at first these

programs are now enthusiastically supported by

employees who have participated in them. The

programs have given employees a greater under-

standing of the legal rights of prisoners. The

employees who participate in training are usually

assigned to supervise the law libraries in their

institutions, and they often work closely with the

legal research clerks in resolving the inmates’ legal

problems.

“It has been my experience that the inmate/staff

training program and institution law libraries have

work very effectively to provide legal assistance to

prisoners. ... Part of the legal research clerk’s job

is to discourage inmates from filing frivolous

claims in court. In addition, the quality of the

petitions and writs which are now being filed are

substantially better than in the past.”

Winters Affidavit 2-4. See also, ABA Resource Center

on Correctional Law and Legal Services, ‘‘Providing

Legal Services to Prisoners,” 8 Ga. L. Rev. 363, 415,

427 (1974); Ziegler and Herman, “The Invisible

Litigant: An Inside View of Pro Se Actions in the

50

Federal Courts,” 47 N.Y.U.L. Rev. 157, 174, n. 56

(1972). The West and other training programs have

been used in other states. ABA Resource Center, supra,

8 Ga. L. Rev. at 427. “Those institutions which have

undertaken these programs have been surprised and

pleased at the results. Prisoners initially participating in

the program have often achieved an extremely high

degree of competence, and have gone on to train other

prisoners, as well as to assist on individual research

problems.” ABA Resource Center, supra, 8 Ga. L. Rev.

at 427: see also, Bluth, “Legal Services for Inmates:

Coopting the Jailhouse Lawyer,” 1 Capital U. L. Rev.

59, 71-72, 79-80 (1972); Wexler, “The Jailhouse

Lawyer as a Paraprofessional: Problems and Prospects,”

7 Crim. L. Bull. 139, 143 (1971). Thus, the use of

prisoners as paralegals is not uncommon. See also,

McDonnell v. Wolff, 342 F. Supp. 616, 620, 631 (D.

Neb. 1972). There has been a useful collateral benefit:

it provides vocational training for the inmates and some

of them have obtained jobs as paralegals upon their

release from prison. ABA Resource Center, supra, 8 Ga.

L. Rev. at 427-428; Wexler, supra, 7 Crim. L. Bull. at

155: Carter v. Lally, Civil No. 72-642-K (D. Md.),

Statsky Affidavit at 4; Winters Affidavit at 4.

Petitioners have also ursed that “the number of

inmates who would benefit from the establishment of

law libraries... would be miniscule.’ Brief for Petition-

ers 17. This unsupported factual assertion is incon-

sistent with the implications in the plan submitted by

petitioners that even with law libraries adequate io

accommodate 350 prisoners per week, there might be a

waiting period for use of the libraries of up to three or

four weeks. Petition for Certiorari 18, n.i. The

experience in other states has been that the law libraries

51

are used by a significant proportion of the inmates. See

Brief of the Commonwealth of Virginia as Amicus

Curiae in Support of the Petitioners at 8; ABA

Resource Center, supra, 8 Ga. L. Rev. at 425; LeDonne,

supra, vol. 2 at 46, 54; Spector, “A Prison Librarian

Looks at Writ-Writing,” 56 Cal. L. Rev. 365, 367, 368

(1968); cf, Burger, “‘Post-Conviction Remedies: Elim-

inating State-Federal Friction,” 61 J. Crim. L., C. and

P.S. 148, 150 (1970). There is no reason to believe that

North Carolina’s inmates would make any less use of

their law books. Their intelligence and educational

levels on the average are the same as those of prisoners

in other states. Note, 1968 Duke L. J. 343, 348, n.21,

361. 10,500 of them have completed the ninth grade or

more; 2,669 have completed high school or more; and

500 have had some college education. North Carolina

Department of Correction, State Correction Statistical

Abstract 37 (March 1976).

Obviously, petitioners advance no contention that

their resistance to Gilmore is motivated by a desire to

control writ writers in order to eliminate problems

arising from their practice. Cf., Johnson v. Avery, supra

at 488. That would be inconsistent with their basic

position that because they permit inmates to give legal

assistance to others they are in compliance at least with

Johnson v, Avery. Moreover, there is no reason to

believe that writ writers will flourish any more if the

prisons have law books than they do now. On thie

contrary, the plan approved by the District Court

contemplates that prisoners will be able to use the law

library only one day every three or four weeks, Petition

for Certiorari 17-18, n.1., a condition not conducive to

the practice of jailhouse law. If controlling this practice

were petitioners’ concern, they could accomplish that

ie

52

result by providing legal services for their prisoners.

They made the choice, however, not to do that, and

they do not argue that the order under review would

adversely affect their administration of the prisons or

the rehabilitation or discipline of their prisoners.

Thus, petitioners’ plea that the Court defer to their

expertise and discretion appears to be merely an

allusion to a slogan without substance in this case. They

have not suggested any respect in which their expertise

was disregarded or their discretion unreasonably dis-

turbed by the District Court’s order. Certainly to avoid

its constitutional responsibility it is not enough for a

state to ask for discretion simply for the sake of having

discretion.

VI.

ALTHOUGH A LEGAL SERVICES PRO-

GRAM WOULD MORE ADEQUATELY PRO-

TECT ITS PRISONERS’ CONSTITUTIONAL

RIGHT TO MEANINGFUL ACCESS TO THE

COURTS, NORTH CAROLINA IS

REQUIRED, AT A MINIMUM, TO PROVIDE

LAW BOOKS FOR ITS PRISONERS.

The District Court, after approving petitioners’ plan

as modified, ordered the parties to submit briefs “on

the issue of establishing an independent attorney office

to assist prisoners in their legal matters.” Supp. App.

19-20. Thereafter, the District Court held that respond-

ents “do not have a constitutional right to have an

independent attorneys office as well as a law library

53

program....”'® Supp. App. 24. The Court of Appeals

agreed both that a legal services program would be

helpful and “that adequate legal research facilities and

19In reaching this conclusion, the District Court decided that

Ross v. Moffitt, 417 U.S. 600 (1974), was not applicable to this

situation but that “some of the reasoning is appropriate.” Supp.

App. 23. In Ross, this Court held that the Constitution does not |

require the states to provide “counsel for discretionary state

appeals and for applications for review in this Court.” 417 U.S.

at 602-603. The District Court correctly concluded that Ross

involved a different factual situation than does this case. In Ross,

the Court emphasized that by the time of his or her second

appeal or petition for ceritorari a defendant has already had the

benefit of a brief prepared by an attorney which affords an

adequate chance for further review. 417 U.S. at 614; see also,

United States v. MacCollom, 96 S. Ct. 2086, 2091-2093 (1976).

That is not true in the case of civil rights actions and is not

necessarily true in the case of post-conviction proceedings.

Post-conviction petitions may raise points based on newly-

discovered facts or newly-decided law, or may be filed by

prisoners who for good reason never did appeal their convictions.

The Court observed in Ross that the duty of the state is “only

to assure the indigent defendant an adequate opportunity to

present his claims fairly ....” 417 U.S. at 616. Because North

Carolina prisoners may never have had the advice of counsel on

issues appropriate for post-conviction review and cannot get such

help in civil rights cases, for the reasons discussed in Gilmore and

in the text they are denied that constitutionally required

adequate opportunity to present their claims to the courts.

Resort to the courts may be the only avenue for a prisoner to

redress an unconstitutional conviction or condition of confine-

ment. Supp. App. 5. “A prisoner, perhaps more than the

everyday citizen, has great need for meaningful access to the

Courts.” Supp. App. 5. For the prisoner, as for a criminal

defendant, the judicial “process is not only the paramount

dispute-settlement technique, but, in fact, the only available

one,” Boddie v. Connecticut, supra at 376-377, and denial of a

(continued)

54

an acceptable legal assistance program are to be thought

of as alternatives and not as supplements to each other

in the discharge of the State’s obligation in this area.”

Petitioner for Certiorari 20. See also, Johnson v. Avery,

supra at 488. All of the federal courts are in accord.

Stevenson v. Reed, 530 F.2d 1207, 1208 (Sth Cir.

1976), affirming and adopting 391 F. Supp. 1375, 1381

(N.D. Miss. 1975); Bryan v. Werner, 516 F.2d 233,

236-237 (3d Cir. 1975); Cruz v. Hauck, 515 F.2d 322,

331-333 (Sth Cir. 1975); Kirby v. Ciccone, 491 F.2d

1310, 1312 (8th Cir. 1974); Noorlander v. Ciccone, 489

F.2d 642, 650-651 (8th Cir. 1973); Novak v. Beto, 453

F.2d 661, 664 (Sth Cir. 1971); United States ex rel.

Russell v. Hendrick, 376 F. Supp. 158, 160-161 (E.D.

Pa. 1974); Johnson v. Anderson, 370 F. Supp. 1373,

1385 (D. Del. 1974); Cross v. Powers, 328 F. Supp.

899, 903-904 (W.D. Wis. 1971).

The position taken by the Commonwealth of Virginia

as amicus curiae is consistent with this doctrine and

therefore consistent with respondents’ position. Virginia

stated the principle as follows:

“While it is conceded that the lack of a law library

or access to such a library might, absent

alternatives, unreasonably restrict access to the

courts, it is submitted that the requirement of

access can be satisfied either by the availability of

(footnote continued from preceding page)

prisoner’s “full access to that process raises grave problems for its

legitimacy.” Jd. at 376.

Ross obviously does not affect the law books issue. The lack

of a right to counsel beyond the first appeal would seem to

increase the need of prisoners for law books. Indeed, this Court

only days after deciding Ross unanimously reaffirmed Gilmore in

Wolff v. McDonnell, supra at 578-579.

55

legal materials, by counsel, or by any other

appropriate device.”

Brief of the Commonwealth of Virginia as Amicus

Curiae in Support of the Petitioners 9. Thus, Virginia

asserts that it is in compliance with Gilmore and with

the decision of the Court of Appeals in this case

because it provides “indigent inmates with a system of

appointed counsel who are available to confer with

inmates regarding any legal matter relating to their

incarceration” and “counsel have been appointed to

represent the inmates at every major institution and

correctional unit in the Virginia Department of

Corrections.” Jd. at 6. The same Court of Appeals

which decided this case has recognized that such a

program could satisfy Gilmore but has ordered that a

hearing be held on whether Virginia does in fact

provide an acceptable legal assistance program. Vette vy.

Virginia Department of Corrections, 529 F.2d 518 (4th

Cir. 1976) (unpublished opinion). There is reason to

believe that on remand the District Court will find that

Virginia’s program is satisfactory. Russell v. Oliver, 392

F. Supp. 470, 473 (W.D. Va. 1975); Collins v. Haga,

373 F. Supp. 923, 925 (W.D. Va. 1974).

Several states now have legal services programs of

varying dimensions, many of them comprehensive, for

their prisoners. They are described in Exhibit B. There

are also sixty-eight clinical law school programs

providing assistance to prisoners in thirty states and the

District of Columbia. CLEPR, Survey and Directory of

Clinical Legal Education 1-24 (1976); see Glen,

Jailhouse Law Students; A Report on Law-Student-In-

Correction Programs (National Council on Crime and

Delinquency 1973). Legal services programs have

advantages over law library programs, and this Court

56

has encouraged the states to experiment with variations

of them. Procunier v. Martinez, supra at 419; Younger

v. Gilmore, supra; Johnson v. Avery, supra at 489-490,

502. “The obvious principal advantage of lawyer-staffed

programs is competence.” ABA Resource Center, supra,

8 Ga. L. Rev. at 407. They are able to conduct a

“diagnostic interview” with prisoners immediately upon

their reception into the prison system, when prompt

action to protect their legal rights might be needed and

when their apprehension about their criminal cases and

civil problems is likely to be at its most disturbing level,

and they are able to continue to provide legal

counseling and representation from that early stage.

Bluth, supra, 1 Capital U. L. Rev. at 69-70; LeDonne,

supra, vol. 2 at 10-11. They have achieved com-

mendable results in the reduction of frivolous petitions

and the improved quality of petitions that are

submitted to the courts. Attorneys or their assistants

explain to prisoners who seek to file non-meritorious

claims the reasons why the likelihood of success on

their petitions is doubtful. Bluth, supra, | Capital U. L.

Rev. at 66-67; Norman, supra, 48 Fla. B.J. at 737;

Wilson, supra, 24 Legal Aid Brief Case at 258. In

addition, they render useful services in civil areas

beyond challenges to prisoners’ convictions or the

conditions of their confinement, such as: detainers;

sentence computations; clemency proceedings; parole

and conditional release hearings; classification and

disciplinary proceedings; divorce, child custody and

support cases; and with governmental benefits (veterans,

social security, welfare) and other financial problems.

ABA Resource Center, supra, 8 Ga. L. Rev. at 383;

Jacob and Sharma, supra, 18 Kan. L. Rev. at 499-505,

57

532-589; Walsh, “Jailhouse Lawyers: The Texas Depart-

ment of Corrections Revokes Their License,” 1 Capital

U. L. Rev. 41, 52-54 (1972); Wexler, supra, 7 Crim. L.

Bull. at 145; Wilson, supra, 24 Legal Aid Brief Case at

255-256; Comment, 1969 Wis. L. Rev. 574; Note, 23

So. Car. L. Rev. 294, 296-301 (1971). They are ofter

able to resolve inmate iegal problems by methods short

of litigation, which is a service to the judicial system

and to the prisons as well as to the prisoner. In the

process they contribute to improving the morale of the

prisoners, resolving problems that thwart the process of

rehabilitation, including civil problems that might

otherwise plague the prisoners even after their release,

and reducing unrest and violence. Hooks v. Wainwright,

supra, Post-Hearing Memorandum of the United States

28, n.57; Connecticut Department of Corrections,

Legal Assistance to Prisoners 4-5 (1975); Jacob and

Sharma, supra, 18 Kan. L. Rev. at 511; LeDonne,

supra, vol. 2 at 11; Norman, supra, 48 Fla. B.J. at

736-737. At a time when our country and our legal

profession are aware of the great need for improved

delivery of legal services in civil as well as criminal cases

to middle-income and poor persons, see 42 U.S.C.

§ 2996, and have begun to meet the need with legal aid

programs, e.g., 42 U.S.C. §§2996 et seq., prepaid legal

insurance programs, e.g., N.C. Gen. Stat. §8423.1

(1975 Supp.), and reduced-cost legal clinics, see

Goldfarb v. Virginia State Bar, 421 U.S. 773 (1975);

Metzger, “Legal Clinics: Getting Into the Routine” 12

Trial 32 (June 1976), it is easy to perceive the special

importance of legal services to prisoners. Some have

compared the need — and the constitutional right — to

medical care. Wedlock, “The Emerging Rights of the

Confined: Access to the Courts and Counsel,” 25 So.

Car. L. Rev. 605, 648 (1973).

58

Gilmore held only, however, that the constitutional

obligation of the states is to provide their prisoners

meaningful help in preparation of their court actions. If

the State can accomplish this by its plan for a law

library program and legal research training of inmate

paralegals, that satisfies the Gilmore standard. “(P)rison

administrators are not required to adopt every proposal

that may be thought to facilitate prisoner access to the

courts.” Procunier v. Martinez, supra at 420. Neverthe-

less, petitioners suggest that their program may not be

meaningful to their prisoners. Brief for Petitioners 22.

If their plan is not adequate, they must do more to

make it meaningful, whether that involves developing

paraprofessional or professional legal services programs

or some other method for meeting the constitutional

standard. See Stevenson v. Reed, 391 F. Supp. 1375,

1381 (N.D. Miss. 1975), aff'd, 530 F.2d 1207 (Sth Cir.

1976).

This is not to say that the federal courts will have to

supervise the North Carolina prison law library program.

Cf., Farrington v. North Carolina, supra. At oral

argument in Gilmore, Chief Justice Burger asked

counsel for the appellees whether the District Court

decision would require the states to provide law

libraries comparable to those in this Court’s own

library. Younger v. Gilmore, Tr. of Oral Argument 22.

The history of’ Gilmore’s enforcement by the federal

courts and the process of decision in this case show

that that reasonable concern has not proved trouble-

some. Gilmore required not that a state “‘duplicate the

legal arsenal that may be privately retained by a

criminal defendant... but only [that it] assure the

criminal defendant an adequate opportunity to present

his claims fairly,” Ross v. Moffitt, supra at 616, that is,

59

some “method of satisfying the legal needs of its

charges.”” Younger v. Gilmore, supra, 319 F. Supp. at

112. Gilmore reached this Court at an intermediate

stage: the three-judge court had ordered California to

adopt new regulations to meet the constitutional

mandate but had not yet decided the scope of

California’s responsibility. 319 F. Supp. at 112. After

this Court affirmed that order, the three-judge court

approved over the objection of the prisoner plaintiffs an

expanded list of law books submitted by California.

Gilmore v. Lynch, 2 Pris. L. Rptr. 21 (N.D. Cal.

1972).7° ‘That is the procedure which other courts have

followed, e.g., Battle v. Anderson, 376 F. Supp. 402,

435 (E.D. Okla. 1974); White v. Sullivan, 368 F. Supp.

292, 296-297 (S.D. Ala. 1973); Hooks v. Wainwright,

352 F. Supp. 163, 168 (M.D. Fla. 1972); Collins vy.

Schoonfield, 344 F. Supp. 257, 280-281 (D. Md. 1972);

see also, Stevenson v. Reed, 391 F. Supp. 1375, 1377

(N.D. Miss. 1975), aff'd, 530 F.2d 1207 (Sth Cir.

1976); Stone v. Boone, Civil Action No. 73-1083-T

(W.D. Mass. 1974) (consent decree), and which the

District Court in this case used as a model. Supp. App.

12-13. The federal courts which have dealt with the

issue in different contexts have similarly acted with

a

The court held: Plaintiffs have not met the burden of

showing that the proposed regulations are so inadequate that

their approval would result in a continued denial to prisoners of

their constitutional right to access to the courts.’ Gilmore v.

Lynch, 2 Pris. L. Rptr. 21 (N.D. Cal., 1972).

The list of books for its law libraries proposed by California

and approved by the court was substantially equivalent to North

Carolina’s, although it did include reporters going back at least to

1950, rather than 1960 as is the case with North Carolina’s plan,

Shepard’s Citations for federal and state cases, and some volumes

of Modern Federal Practice Digest (West 1973).

60

restraint in determining the extent of the help that the

states must provide, recognizing that the constitutional

standard is one of reasonableness and that the “choice

of the manner in which the constitutional minimum is

assured is essentially a state function.” Stevenson y.

Reed, supra 391 F. Supp. at 1381.

North Carolina’s 1974 LEAA grant application

demonstrates a commitment to its prison law library

program that will insure its success as a meaningful help

to its prisoners once this litigation is behind it.

Administratively, the Department of Correction will be

able to adjust and improve its program as it develops

experience under it, so that it will find its program as

beneficial as other states have theirs. In light of the

positive approach that respondents are confident North

Carolina will bring to this program, as displayed in that

grant application, respondents are inclined to take

lightly petitioners’ reservations about the potential for

their plan. Although respondents would like to see

North Carolina do even more and take steps towards a

prison legal services program, they anticipate that prison

law libraries will be of great help to them and their

fellow prisoners and are satisfied with the protection of

their right to access to the courts which petitioners’

plan, as modified and approved, promises to deliver to

them.

61

CONCLUSION

For the foregoing reasons, the decision of the Court

of Appeals should be affirmed.

Respectfully submitted,

BARRY NAKELL

School of Law

University of North Carolina

Chapel Hill, North Carolina 27514

Court-appointed

Attorney for Respondents

EXHIBIT A

1974 LEAA Grant Application Prepared By

The North Carolina Department of Correction.

MMpariment o: Natural we Coomomes bsorutes

uz Of Law and Order

Box 2Tea7

zn. Norta Carolina 276i1

la

SL btn. ‘ vi

i

LEAVE PUANR FOR OTST ETS ON

| wait Recered | Leonizol Nurce: —

L

SPPLICATION 435SiGNED INITIALLY TO

Abs. LIC Adis s

““ecatiOn is Reredy made for a gan: under Section +11

*ne Ormmbns Came Control and Safe Streets Act of 1964

. 90-351). as amended. in the amcunt and for the

“poses set forth wm thus appucation.

LLEAA FUNCTIONAL CATIGORY PROGRAM ARLA

eee ee = —

4. Proyect Dwector (Name ndasess and ieuephone)

A ppucant (Name. acdress, and telepnone)

vepartment ef Correction

7kO West Morgan Street

Paleigh, N. C. 27603 629-2911

James Peeler Smith

240 West Morgan Street

| Raleigh, N. C. 27609 <9-2911

(Name and telephone)

division not P Prisons

331 West Morgan Street

Paleigh, N.C. 829-3225

Authoruing Official (Name, utile, address and telephon)

david L. Jones, Secretary

Department of Social Rehabilitation and

Control ea

Raleigh, N. C. 829-4926

Jf rms 0), UP

; aaa ™ ates

C. A. Hooks, Jr.

83] West Morgan Street

Raleigh, N. C. 27609 829-3206

nature Date

kab __ zh

——

7. Staue Plan and Program 2424 Under “hich applicauonas Macs

Type of Appisxcation

D Onana If Bort. previous Plan Year Program Asta Numoer and Name

© Revwon of Eartier Uniunded Application Conwell Neates

OC Cont:nuatvon of Prewous Suogant N/A | 1973

Proyect Start Dace ( Estumated) Dove (Esumated) 10 Assum ' Costs Date (Esumated)

July 1, 1974 yy. io 75 July sina 13 ”

Name of Proyect (not to exceed 25 characters. nciudine spaces)

Inmate Law Libraries

lc. Feder 5u

S 5,048.00"

*il Other Federal Support be Avadabie tor Any Part ot Thus Provect’

O YES NO

If ves. sdertuly and exviaun wm budge: rarratrve

—— —_—

\. Proyect Summary

To provide all inmates in the custedy of the Division of Prisons access to legal_materials

in accordance with Johnsen v. Avery and other Federal court decisions.

‘ibraries consisting of a broad range of legal materials.

at one unit so that materials can be mace available upon request.

sorted to the libraries to do !egal research.

in other units, containing a few basic legal materials.

The project is expected to benefit al! inmates within the State Corrections

System and provide them the legal materials required under recent Federal court cacisions.

it will also be useful to Correction's personnel in that they for the first time will have

materials.

access to legal materials.

There will be 7

A KXercx machine will be located

Inmates will be trans-

There will be 5 Core libraries, located

These will be used as scurce

2a 3a

os *me _~ . Now be pecrentot «i rataad Economy v: ° ee eb

SUBGRANT APPLICATION | Pege2 Sistine of Low and Geter aguas sade Lt naa

i - P.O. Box 27647

Raleigh. North Caroiina 27011

be a aa

C ‘Department of Natural snd Exonoimw Re-verees

-ysion of Law and Order

| 1 —“——/o - = etme 5 . > ‘

0 Box 27657 % Proveet Narrative Dewrieren RELATIVE PROJECT PRIORITY

‘iergh, North Carolina 276i]

12 Provect S-astatwe Ce aription TIE PEC3LEM

Begin beiow and aud 45 many -onunuai e.

Bevin beiow and acd a5 Many cOontimauaLON pages a 5 - INVINON Pages as Necessary

necesary ° |

~—

16. The judicially-mandated requirement that the Office of Correction develop/implerent

a planned mechanism for providing inmates with access to and assistance with legal problems

1S. Federal courts have become increasingly concerned that persons committed to correctional Is one of the ake + aati ag ee facing this agency, and, consequently, a major pri-

systems have access to the courts. In Jonnson v. Avery, tne United States Supreme Court held ority among applications for LEAA funds.

that where prison systems did not offer an alternative, prison writ writers have a rignt tc

exist and that che orisen department could rot prohibit their assisting other prisoners in

petitioning the courts. Pelying on this decision, a California District Court ordered the

California Department of Correction to provide certain specified legal materials to inmates.

This decision was affirmed by the United States Suoreme Court in a Per Curiam decision

Youncer v. Gilmore. Since these decisions, other Federal courts have placed similar require-

ments on other correcticn systems throughout the country. In Morgan et. al. v. R. L. Turner, ; t

(Civil Action Number 4277) and Robert Smith, et. a!. v- Vernon tre Bounds, Commissioner, F N.C. Department of Natural and Economic Resources - SUBGRANT APPLICATION —

State Decoartment of Correction, et. ai. (Civii Action Nummer 3052) the United States District Division of Law and Order

tourt for the Easterr District of North Carolina, Raleigh Division, approved a proposal for P.O. Box 27687 — ae

17. Project Narrauve Descnption GOAL STATEMENT AND

providing legal materials to inmates which it had ordered the North Carolina Department of Raleigh. North Carolina 27611

MEASURABLE OBJECTIVES

Correction to prepare.

Beem below and add as many conunuanon pages as necessauy

The Department of Correction is clearly responsible for providing this service to inmates.

Other acencies may be aware to some extent of the problem. These agencies, including the

state anc iccal Bar Association, often desire to assist. Fowever, the brunt of providing , Th 1 of thi .

. * = . goa r - j i

legal services falls on the Deoartment of Correction, and it is the Cepartment of Correction 4 po of this project Is to place legal materials within the access of every inmate

: : he . , within the North Carolina Correctional System. . This project will enable eacn inmate to

which must respond to the courts in the event that reauired legal services are not mace lal . 2

: : , oat , € obtain those materials recessary for him to determine whetner there has been an errer in

available. At the sare tire, the providing cf legal services musc be uncer the contro! c! i , i , :

. . : : “~ the proceeding in which he was convicted and whether his Feceral and state rights have

the Department of Correction in order that this Department can insure that such services , .

are offered to al! inmates been violated while confined within the North Carolina Correctional System.

By providing the inmate with proper legal forms and directions for filing his court petition,

the quality of petitions submitted will improve and the number of frivolous and groundless

petitions will diminish. The Department of Correction intends that the inmate shal! not

cnly have access to the court, he shall have meaningful and effective access to the court.

As noted, the ultimate result of this program shoula be a diminution in the number of

Groundless petiticns and complaints filed in the state and Federal courts. The inmate himr-

self will be able to determine to a greater extent whether or not his rignts have been vic-

late¢d, ard when he submits a petition to the courts which has on its face some merit, ce

court will be able to appoint counsel in chose cases requiring it.

The cbjective will be implemented in the following manner: (a) Law materials wil! be or-

dered from the publisher; (b) ‘ Library areas will be prepared within designated unics;

—>(c) Lega! forms will be designed for use by the inmate population; (d) Clerks will be

_> trained In law library procedures; (e) Libraries will be open for inmate use; (f) Weekly

inventories will be taken; (g) Reptocenent_volunes will be orcerga monthly.

—_

° The performance odjectives are as follows: (1) To establish 7 libraries at desianared uit

and institutions; (2) To establish S$ core libraries at other units and institutions;

(3) To reduce the number of frivolous civil rights petitions by fifty percent; (4) To

reduce the number of rejected habeas corpus petitions; (5) To increase the quality of al)

inmate petitions suomitted. f

Sa

‘y ©. Devertment of Naturai and Econemic fesources | SUBGRANT APPLICATION Page § 18. (Continued)

Division of Law and Order '

P.O. Box 27537 system. By the use of a Xerox machine it wil! be necessary onty for the Inmate tc

13) Penect Murauve Descmpion. METHODS & PROCED! RES y ‘

. Raleigh. North Caroiina 27511 identify what he needs and that carticular item can then be sert to him. It would not

_—_—-—- &@ ~~ 2 os

Bemn >tiuw ana add as many continustion Paets a5 Nece wary

The goai of providing legal assistance to inmates in the North Carolina Correctional

System will be acccrolisnhed by placing legal macerials within access of every inmate in

the system. The project will crogress in the following manner: (a) Lega! material to

te used in the libraries will be selected by the Project Cirector;: (b) The Project O!rec-

ter will designate cre sites of the libraries, and the core libraries. He shall do so in

consultation with the Director of Prisons and his delecated agents; (c) The legal mater-

lals will be ordered from the publishers; (4) Unit staff will be instructed in the overali

supervision of the library; fe) Uniform rules and regulations for access to the library

will be drawn up by the Division of Prisons staff and submitted to the 1 Rate

for approval; (f) Inmate assistants will be trained by the Project Director 6 aed

designated person in the fundamentals of the use of the library. They will be instructed

as to their duties; (g) Library space will be prepared in the desianated units and in-

stitutions; (h) Library materials will be distributed to the designated libraries upon

receipt; (I!) Libraries will be open for inmate use.

The Project Oirector will be responsible for selecting the legal materials to be included

in the libraries and approving the designated locations of the libraries. He will also be

responsible for approving the rules and regulations concerning access to the library. He

will secure the training for those inmates designated to assist in the libraries and will

Supervise unit personnel in their supervisory responsibilities. He will monitor the pro-

ject at all times and assist in the preparation of legal forms. He will assume resconsi-

bility for insuring that the leoal materials are distributed to the proper units and that

replacement volures will be ordered. Unit Superintendents or their designated agents wil!

exercise supervisory responsibility for the day to day operations of the libraries. This

will include the responsibility of insuring that the inmates authorized to work In the li-

traries are performing their auties properly, and, if not, removing them from their library

positions. Inmate assistants will operate the libraries on a day to day basis. They will

be trained In shelving materials, and being able to identify material. They will also be

taught how to update reference materials with pocket parts, Icose leafs, enclosures, etc.

They will be responsible fer the security of materials and for insuring that legal mater-

ials ce mot leave the library.

An initial inventery will be made of the contents of al] materials. No inmete except

inmate assistants will be able to remove library materials from the shelf. inmates will

be permitted to enter the library, ard request publications desired. A leg will be kept

of inmates entering the library and of materials given to the inmates. The inmate assis-

tart will personally write down the materials Siven to a library user and wilt check off

the materials when they are returned to the library shelf. At the end of the day, all

velumes will be accounted for. There will be a monthly inventory of the conditions of

all volumes in order to determine when a volume needs to be replaced. Additionally,

Inmate assistants will te required te make at least 2 cursory Inspection of a volume's

concition upon its receipt by the inmates and upon its return from the inmate user: Any :

Inmate abusing litrary materials will be denied privileges. Typewriters ca which inmate

petitions can be prepared will be required. A Xerox machine wit e ul n one

library im order that materials can be made accessible to persons throughout the

hen to send the entire volume anc therefore would serve both tc k2aep the

we Prac snanc! Bw at all times and to minimize the chance of its oe ee Ba ong

partment would like to contract for the training cf the librarian and of the —— i

assistants. This will be accomplished through one of the law mm o ° _ a

lishing companies. At least 2! inmates should be trained. A _score of 70s _ = se

skills test will qualify the inmate as a library assistant. ‘ris —— P ~ es

additional benefit of giving the inmates a skill which would be usesle upon re ae. -

The location of these libraries wil) be within rooms within the ee e +e

library will be housed in a large room in one of the institutions at . eigh. a a.

contain adequate shelf space and lighting so that it will be suitacle ms work.

A smeller roem will be required for the major libraries but with the ys vr ame.

The units having only core libraries will require only a small amount of she er .

a small area in which the inmate can work. The core libraries will not need _ ally

trained inmate assistant. However, the Unit Superintendent me / find it = Ag =

an inmate in this capacity. The major problem foreseeable with the librar gm : e : 2

Insure the security of the volumes. it is discussed above that security can est be main

tained by frequent and thorough inventory and @ check-in/check-out system.

nq will be required for the librarian 27d inmate assistants in the use anc

oe lage groom} nthe Bong This training should include instructions oo a

materials and replacing outdated volumes. it should also include instructions -_ : -

basics of legal research. This will be accomplished by the use of ® ——~¥ wr . ou

side acency. The agency would be one of the law schools or one of the ega io ishing

companies. The physical facilities are now available to house these materials.

Inmate assistants will be selected on the basis of intelligence, conduct, literacy. and

general clerical abilities. The method for training will be cevised by the contracting —

agency and approved by this Department. Testing of retention will be measureca by ee

checks of the inmate assistants and by monitoring the operation of the program where li-

braries having inmate assistants are located. °

6a

NOC Derarment of Naturst anu Leonurne Reources SLGEURANT Ati i ee : : ‘ we 7

niof tat -COREMIL Rovoures J aX. X. Are clC ATU.» tage . 2 4% SPPL! :

“sision of Law and Order ° | + C. Department of Natural aad Ecurumuc Resources : SUBGRANT AP! LICATION

QO. Box 2°63” oem mvision of Las and Order =

- Ralereh, Nerth Carvima loll | 59 Prenet Semare Ufuene. C6046. aN OEEGh ? O. Box orn: : aie

> Ss Raleigh, North Carolina 276) 1 |

| SeOTIN De'ow wns wel 4) Mar CONTINUAL Paces 38 Necewary | Titie

| !

DETAILED BUDGET *

'

' : , , — .

19. The project will te evaluated by testing future suomitted petitions against those FECERAL STAIE MATCHING CONTRIBUTION | CATEGORY

wnich have been Suomitted in tre past. nis Cesartment retains a large number of the DGET CATEGORY SUPPORT BUYIN CASA iN-AIND | TOTAL

petitions that have been sudmitted and therefore anyene trained in legal aoilities will

be acie to jucce the quality of these petitians suomitted previous to the implementation .

of the law libraries as to those suomitted after the law libraries have been instituted. PERSONNEL (Employees) ;

The project will aiso be measured by the numper of inmates having access to legal taterials. | Salanes - List each position with yearly salary rate.

Presently, access tc material is minimal. Success of the program will be measured bv the cofEmpioyee Powtwon Salary FolTime | ;

number of inmates actually utilizing tne facilities made available. The strengths and Tule Rate —- | | ! |

weaknesses of the programs can be measured by comparing the quality and volume of petitions 282 12,816.00

. : : ’ - 6 100 | $ 11,534.00) 1,282.00 | ’ .

originating from each of the separate libraries. The number of frivolous civil rights peti- lorarian $10164-1261 ; “hs |

tions filed in FY 74-75 should be 50% lower than-that which was filed in FY 73-74. The number | a

of successful habeas corpus actions shculd increase. The auality of all petitions should | |

significantly improve and this can be determined by ccnparing past petitions with ones filed ;

after the libraries have been installed. Correction personnel will be interviewed after | | |

the program has been fully implemented in order to ascertain the opinion of field personnel | |

as to the positive or negative resuits of the program. ! a me

: Subtotal 5S lyases 7252.00 {3 s ‘ TZ, 8T6.0S

) Fringe Benefits - lremuze percentages |

applicable for each benetit i '

CA (Social Secunty; ’ - | ?

5. ast 675.00 75.90 | | 750.00

} clement 8.95% 1,932.C0 115.00 1,147.00

inctinsitiiiaiaitiies sth» 12 months i | :

nespitalization 173.09 19.00 | 192.00

» ama Tp ~ wy 7" ~wew-rr

54nto' ai ta TT At Sh - ones ap poe

TOTAL PERSONNEL Alin -3 = Lu hen 3! et Te ae te ee OE Bt ke

CONTRACTL AL SERVICES ‘l'emute: ;

th Indwiduas C onwitants (List Dv Inanidual oF 1s pe |

sth Fee Bass ang Amount of Time Levored: Limuecto . '

Prowen Reasonadie Rate noi Exceeding $155 per dav or

1% 87 per hour : x

. ' |

Training cf librarian anc |

* inmate clerks 4,500.00 500.90 | §,CCO.CC

a § Sededcod 0. o ; eo See

‘) Conusactine of Service Organudons Performing | ' ) |

@ ‘ofessional Services iList cach Dy Type win bee Bases |

1d Amount of Time Devored) Competitive Bidding Pro | |

edure Requued to Establish Reasonabdie Rate

|

|

°

pers _ ” "OS SaaaaenateY tomate, saemibaenieti,< wmapmeineines . Tae

7 TOTAL CONTRACTI AL SERSIVES 575 ve 29.27 sal Net Ge mee. 5,co.¢

,ae . &™

Division of Law and Order

P.O. Box 27997

Raleigh. Nerih Caroiina 27 oii

partinent ol

tae wad COCR fF.

asl Bae’

sy Detaned

fFucet | coriumued:

MATCHING CONTRIBUTION

| ! ' -

BUDGET CATEGORY | FEDERAL STATE | CATEGOR’

SUPPORT | BUY.IN | IN-KIND } TOTAL

| = > tT? =

C. TRAVEL. i Transportanon and subswience of Provect ’ ?

Personne! Oniy. Consultant Travet tobe inviuded in By) | | ’ - *=

| oe-

;

SO weeks x $1° per diem 855.00 95.00 *~ “950.06

SO weexs x 150 mi. = 7500 mi. ! 1,013.00 112.00 1,125.00

x 1S¢ 7

' ~~ “..

$1125.00 | E “Ran

TOTAL TRAVEL| $ 1,868.00 |% 207.00 |> $ Ts2,075.00

os Tre . = Bets a

D. SUPPLIES AND OTHER OPERATING EXPENSFS | oe ‘,

(Suppues. Communications. Reproductions, Rent. etc. “sh

(1) = Dwect Costs (itemize) age

eo

Genera! Supplies 4,500.00 500.00 5,000.00

Library Materials 31,914.00 3,546.00 35,460.00

i vw Posy s

| | : he Ning

Sucrotat ! 530 als 00 5 4,046. vO 13 | $ | Gv, 36-00

j ea are eee

| Indirect Costs (Show how Indvrect ( <t Rate was | py ey >

ieproved and is to be applied in Budget Narrative! f:A0-2 20) ae

| t Tae

i. yo.

| | A “ee

oe be?

| I. tied.

Sumntal. § s ‘ rs 5

TOTAL OPFR@ATIVG A PENS | 2,818.90 5 4,046.00 5 1s “Ta0 "Gest?

' twee

t. EQUIPMENT (itemae) } e a:

an Purchase ’ ! |. = , Sve

tiem Quantuty tnt Pree | | ae a

: eo tat

Typewriter 7 275 i 2,3€3.00 262.0C - | “ t

' j .* vey 4

, | m ee? 2

$2,363.00 !s 262.90 i$ $ js 2,625.C-

12) Lease er Rental | - ee ‘

Item (Quanity t out Pree = eer sor A

Xerox Machine 1 $600/mo. | 6,480.00 | 20.00 ' 7,200.! “

4 J i . es

Suro! $ & 459.00 '$ 729.00 i $ is b $ 7,200.0"

TOTAL hal PMINT) © 6,642,990 '$ SF2,00 1 Vs $9, E25 .0¢

b. CONSTRUCTION | . a,

ih Remodel ry } i '

i i

PsP AT Cate etl ’ $ i$ | 5

Y ans Won an pRomre TOSS 65022.29 Deol OL ee i teense al

© Decarimerr of Natural and Economic Resources

sion of Law and Order

» Box 27687

‘igh, North Carolina 27011

= ee ee ee ee ee

'

| SUBGRANT APPLICATION | P29

Zt. Budwet “sarrative

Beein reiow and add as many conunuation pages (+1. Yh ets.)

as necesary to retate the items Cudteted lo prorect activities.

and Compiete the required justilicauon and explanation of the

project Dudzet

Personne!

A librarian with administrative acilities will te required to maintain the operation of

the system once established and monitor its effectiveness.

The Contractual Services

law clerks, who will staff the main library and the major li-.

braries, will need to be trained in the area of legal research and in maintaining a lecal

library. There are two possible sources from which this training may be obtained. The

first Is through the West Publishing Company, which has developed extensive programs for

use in prisons. The use of West is contingent on our purchasing a sufficient number of

West publications. . The second source of training is through one of the university law

schools located in the Immediate vicinity. A figure of $5,000 would be necessary in the

event that we had to contract with a law school for training. Twenty-one inmate legal

assistants and the librarian would be trained in this program at the outset. It may be

that a second course or a refresher course will be required when the project has been

underway for some time.

The librarian and inmate

Travel

The librarian will be required to visit the libraries throucheut the state in orcer to

monitor the progress and effectiveness. it is anticipated that about one trip per week

will be required which would likely inciuce an overnight stay. Approximately fifty such

trips will be made. Nineteen dollers i. the current per diem paid in North Carolina. It

Is estimated the average trip will be 150 miles. Therefore, fifty trips times 150 miles

ts 7500 miles at 1S¢ a mile equals $!1,1/25.

Supplies

(a) General supplies will incluce paper for the Xerox machine, typing paper, carbon

paper, file cards. It is expectec that the use of the Xerox machine will be great,

therefore, much pacer will be recuired. it Is also assumed that several thousands of

legal petitions will be filed throughout the system. The general sucplies, therefore,

Include both supplies neeced by tne inmates in filing their petitions and supplies needed

In tne operation of the library. .

~

(b) Library materials. See Attachments DI, 02, and 03.

Additional cost - to cover additional volumes and price changes since Decemoer, 1373

Equipment

(a) Seven typewriters will be required for the tysing of inmate petitions. There will

be one typewriter in each of the seven major libraries.

A high cuality Xerox machine capable cf copying raterial printed

figure is based on orvperience within the institution.

(t) The Xerox machine.

In kooks will be required. The crice

Gan 36 *s | rs pee tj ae ward We PS> Mees - | rs

sbigs.tty dec: ahs..9 ; ‘ , =f yy

as the machine pre-

about 439,0C° epi 9 per mente .* a ost c: t

It is estimated that this machine will be used adout half as muc

sently used In the Department.

4°

»€. Deosriment of Naturai aad } enmme Reve sree "#2 . ae “—

Mivision of “tna and nat OOS Soenatas Tew ae | SUBGRANT A¥YLICATIUN | — 7 utment cf Natzral and Econumi Resources At ccement 2

O. Bor 203° { Law and Order CEP TIFICA LIDS OF NON-SUPPLAN TING

talewgn. Nerth Carolina 27511 Pomect No A tina 27611

. 5 ‘or ana o/

Title

; Gays ~@- t FEDERAL REQUEST CONTROL NUMBER

/ « Sommary $65,033.00 (leave Mank if unknown)

FEDERAL | . - Carolina Cepartment of Correcticn At

‘DGET CATEGORY | STATE | MATCHING CONTRIBUTION === | CATEGORY dest Morgan Street PROJECT NAME

a SLPPOKT BLY.IN CASH | IN-KIND oe TOTAL igh, North Carolina Inmate Law Libraries

} -§-

Personnel s 13,414.cC0 |s 1,491.00 $ 5 s 14,9C5.06 ary to provide assurance that sudgrant funds wi net de usec to supplant or replace funds that wouid normaily be

“—— - ~ --——-— 4 ee ss cerificate 1s to be signed by the applicant agency s Cluef Fiscal Officer.

Contractual Serces 4,500.00 | $00.09 | 5,000.00

Travel 1, 06.0 | . >

Tea 26.00 | 207.00 2,075.00 AGENCY OR DEPARTMENT

Supphes and Other te ti EXPENDITURE AND BUDGET DATA

Operating Expenses 36,414.00 - 4,046.00 40, 460.06 on FY 19 72°73 s_ 42,914, 345.00

Squigment | 8,843.00 | 982.00 ‘| 9,825.00. ‘enditures FY 19 73-74 g_54 215,224.00 % Increase_2°:33__

Construction | | se iget (Excluding Sub- FY 19 74775 s_83.962,£98 00 & Increase__2! +87 %

t Request)

— | er ¢_ 54,364, 156.00 os sa

Tora =| S 65 079.00 /$ . . —s .

—— 5,079.00 7,226.00 [| $ $ S$ 72,265.00

Percent of Total | oo 6 | l ' -

30 | 1c * % ¢

— , eel “ + | 100% CERTIFICATION

Federai Dollar Benefit cordance with the provisions of Title | of the Ommbus Came Control and Safe Sure ** Act of 1994. as amended. the arpiseart

=a - ov certifies that tederal funds will not be «ised to suppiant or repiace funds or other resources ‘hat wouid otherwise have been

Local Unit of Government ; 7 ¢ available for Law Enforcement and Crmunai Justice.

(Citvs and/or County's Oniv) Federal DoUar Benefit

| -_ appucant further certifies that expenditures for Law Enforcement and Criminal Justice (excluding federal funds) wii be at

N/A | s | a8 great as the preceding fiscal vear plus the average annual increase caicuiated above.

|

!

’

Toul | 5 3 , . A, Pecks, Jr., Controller

—

ve and title of agency's cluef fiscal officer

Clete hale

ature of chuet fiscal often Date

od Of Cumputation

12a

un

'

% ©) Department ot Naturai and Econonne Resources Attacnment (

| Oeewn otf Law and Order

? © Bev 27687

Aaiewh. North Carolina 27011

Assumpuon of Proyect ( oss

Attacament C

It Is possible that continuaticn funds of a lesser amount for Fiscal Year 75-76 will be

solicited from the Governor's Committee on Law and Order. If LEAA funds ere recuired for

the following year, they will be substantially less than the amount for the original grent.

13a

MAJCR. LISRASY MATERIALS

Nerth Carclina Genera! Siatuces

North Carolina Reoorts (1960 - )

N. C. Court cf Apoeals Fesorts

Advance Sheets for N. C. and tl. C. Court of Appeals Report

Strongs N.C. Incex

North Carolina Rules of Court (West)

U. S. Code Annotated (West)

Title 18

Title 28 2241-2254 (2 copies)

Title 28 - Rules of Appellate Procedure

Title 28 - Rules of Civil Procedure

Title 42 - SS 1891-2010 (2 copies)

Supreme Court Reporter (West) (1960 - )

with Advance Sheets

Federal Reporter 2d (West) (1960 - )"

with Advance Sheets

Federal Supplement (West) (1560 - )

with Advance Sheets

Black's Law Dictionary (West)

Soko! Federal Habeas Corous (Michie)

LaFave and Scott Criminal Law Hortbook (west)

(2 copies)

Cohen Lecal Research

Criminal Law Reporter (S3ureau cf National Affairs)

Palmer Constitutional Rights of Prisoners

(Criminal Justice text series)

Cost

$250.00

202.380

120.12

21.00

236.00

8.00

225.00

14a

Appendix D5

CCRE LIBRARIES

North Carolina General Statutes: 50.00

(Volumes 18, IC, 3C) :

Black's Law Dictionary 15.00

Sokol Feceral Habeas Ccrous 25.00

LaFave & Scott Criminal Law Hornbook 27.00

Criminal Law Reporter 148.00

Palmer, Constitutional Riches of Prisoners 11.50

276.50

x 5

T, 302.50

| Deoartment of Natural and Economic Resources Attacaserc

won of Law and Order Cersti“iczciscn of Filings of an

' Bor 2763" F is igual E=xplovmen: Opportunity

“gh. North Caroiina 27611 ; ?Progras

ith Departmen: of

I, Jim Gate (project director) certify thac the ,

Correczion (agency) has formulated an Equal Employment Opportunity Pro-

gram entitled Equal Employment Opportunity Witnin the Departrent dated May, 1974

of Correction

in accordance with the Amended 1 qua Ezploysent Opportunity Guide-

lines 28 C.F.R. 42.301. etseq. Subpart E, and that it is on file in the office of

Director of Personnei

Vic Donati, Jr. (name) (title)

. 3 o- 5

840 West Morgan Street, Raleigh, N. C. (address}-2 29>” (telephone)

for review and audit by officials of the Division of Law and Order or the Law

Enforcement Assistance Administration as required by relevant law and r¢::lations,

and that a copy of chis Equal Emepiovtent Cpportunity Program is on file in the

office of the Division of Law and Order.

—— Administrative ae Se

Title:

8465 west Morgan Street, ®aleign, N. C.

Address:

229-2911

Teiepnone:

z. (projece director) certify tnac 1 have .read.the

Amended Equal Exployment Cpportunity Guidelines (23 C.F.R. 42.501. etseq. Subpart £)

and that no Equal Exployment Opportunity Program is required to be filed by the

_ (recipienc agency).

Signature:

Ticle:

Ib

EXHIBIT B

Younger v. Gilmore Compliance Record In The States,

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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Respondents Brief — Bounds v. Smith · 430 U.S. 817 | Frix