Respondents Brief — Bounds v. Smith
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Supreme Court, U. 5,
FILED
| | :
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| 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,
This text is long and has been trimmed here. Open the source document for the complete record.
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.