Amicus Curiae Brief — Lewis v. Casey

a 1c

Supreme Court, U.3.

FILE DB

aug ¢ 1999

No. 94-1511

CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1995

SAMUEL LEWIS, et ai.,

Petitioners,

V.

FLETCHER CASEY, JR., et al.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF OF AMICI CURIAE WASHINGTON

LEGAL FOUNDATION, CONSTITUTIONAL

DEFENSE COUNCIL OF THE STATE OF ARIZONA,

AND ALLIED EDUCATIONAL FOUNDATION

IN SUPPORT OF PETITIONERS

Daniel J. Popeo Charles J. Cooper*

Paul D. Kamenar Michael A. Carvin

WASHINGTON LEGAL Michael W. Kirk

FOUNDATION SHAW, PITTMAN, POTTS &

2009 Massachusetts Ave., N.W. TROWBRIDGE

Washington, D.C. 20036 2300 N Street, N.W

(202) 588-0302 Washington, D.C. 20037

(202) 663-8000

*Counsel of Record

Date: August 7, 1995

CASILLAS PRESS INC 1717 K STREET NW WASHINGTON Dx Boome

“BEST AVAILABLE COPY

COURTS, BUT IT IN NO WAY REQUIRES THE

STATES TO AFFIRMATIVELY ASSIST

PRISONERS (OR ANY OTHER CITIZENS FOR

THAT MATTER) IN BRINGING CIVIL

B. The Lower Courts’ Erred In

Requiring Arizona To Document The

Security Risks Inherent In Permitting

Prisoners In "Lockdown" To Have

Physical Access To The Law

Libsary .. eens seen 0 eee 12

CONCLUSION ...¢cn0s80665 55 5 15

TABLE OF AUTHORITIES

Cases:

Bell v. Wolfish, 440 U.S. 520 (1979) ......... 12

Bounds v. Smith, 430 U.S. 817 (1977) ...... passim

Casey v. Lewis, 43 F.3d 126]

(Oth Cir. 1994) . ss eae 9, 11, 12, 13, 14

Casey v. Lewis, 834_F. Supp. 1553 (D. Ariz. 1993),

aff'd, 43 F.3d 1261 (9th Cir. 1994) .. 9, 11, 12, 14

Cochran v. Kansas, 316 U.S. 255 (1942) ...... 4.5

Douglas v. California, 372 U.S. 353 (1963) ..... —

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

lohnson v. Avery, 393 U.S. 747 (1969) 4

Lane v. Brown, 372 U.S. 477 (1963) 4.5

Lone v District Court of Lee County, lowa,

95 US. 192 (1966) 4

Murray v. Giarratano, 492 U.S. 1 (1989) ... 4,7, 10

O’Lone v. Estate of Shabazz,

CR 13, 14

Pennsylvania v. Finley,

rr 5, 7, 8, 10

Procunier v. Martinez,

MP, UPPED fw tc te te es 7, 12, 14

Ross v. Moffitt, 417 U.S. 600 (1974) ...... i

Sandin v. Conner, -- U.S. --,

115 S. Ct. --, 63 U.S.L.W. 4601 (1995) ... 12, 15

Smith v. Bennett, 365 U.S. 708 (1961) ....... 4,5

Thornburgh v. Abbott, 490 U.S. 401 (1990) ... 12, 15

Toussaint v. McCarthy, 801 F.2d 1080 (9th Cir. 1986),

cert. denied, 481 U.S. 1069 (1987) ........ 12

Turner v. Safely,

482 U.S. 78 (1987) ......... 7, 12, 13, 14, 15

Constitution and statutes:

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1995

No. 94-1511

SAMUEL LEWIS, et ai.,

Petitioners,

Ve

FLETCHER CASEY, JR.., ef al.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF AMICI CURIAE OF THE

WASHINGTON LEGAL FOUNDATION,

CONSTITUTIONAL DEFENSE COUNCIL

OF THE STATE OF ARIZONA, AND

ALLIED EDUCATIONAL FOUNDATION

IN SUPPORT OF PETITIONERS

INTERESTS OF AMICI CURIAE

The Washington Lega! Foundation (WLF) ts a nationa!

non-profit public interest law and policy center with more

2

than 100,000 supporters nationwide. WLF participates in

litigation and administrative proceedings affecting the broad

public interest, and has a particular interest in the area of

criminal justice. In that regard, WLF has participated as

amicus curiae in numerous cases before this Court raising

criminal law issues. See, e.g., Arizona v. Evans, 115 S.

Ct. 1185 (1995); Davis v. United States, 114 §. Ct. 2350

(1994).

The Arizona Constitutional Defense Council (CDC) is

an independent body created by the Arizona Legislature for

the "purpose of . . . restoring, maintaining, and advancing

the state’s sovereignty and authority over issues that affect

this state and the well-being of its citizens by taking any

action it deems appropriate.” A.R.S. § 41-401(B) (1994)

The extraordinarily intrusive order imposed below

unquestionably impinges upon Arizona's “sovereignty and

authority” over the management of its prisons, an issue that

plainly “affect{s}] this state and the well-being of its

citizens. . . ." Accordingly, CDC has joined in this bnet

in order to draw the Court's attention to the lower courts

unwarranted departure from this Court's mght to access

jurisprudence, and in particular, their requirement that

Arizona provide legal assistants to certain classes of

prisoners even though the State already maintains at least

19 law libraries at its nine facilities throughout the State

The Allied Educational Foundation (AEF) is a

nonprofit charitable and education foundation based in

Englewood. New Jersey Founded mm 1964. AEF is

dedicated to promoting education in diverse areas of study

including criminal and public policy. AEF has appeared

before this Court along with WLF im a number of cases

raising constitutional issues. including crimunai cases. See

aia iia iia a a ill iat aaa

3

e.g., Arizona v. Evans, supra; Davis v. United States,

supra.’

SUMMARY OF THE ARGUMENT

This Court's cases on the nght of convicted prisoners

to access to the courts draw a fundamental line between

State action that affirmatively inhibits a prisoner's efforts

to prepare and present claims to the courts and State action

that affirmatively assists such inmate efforts The

Constitution bars the former, but does not mandate the

latter. By requiring Anzona to provide certain classes of

inmates with the aid of legal assistants, in addition to the

law libraries the State already maintains for the benefit of

all prisoners, the courts below have obliterated this line

ARGUMENT

I. THE CONSTITUTION PROHIBITS THE STATES

FROM ERECTING BARRIERS TO PRISONERS

ABILITY TO BRING HABEAS CORPUS OR

CIVIL RIGHTS CLAIMS BEFORE THE

COURTS, BUT IT IN NO WAY REOUTRES THE

STATES TO AFFIRMATIVELY ASSIST

PRISONERS (OR ANY OTHER CITIZENS FOR

THAT MATTER) IN’ BRINGING CIV

LAWSLTTS.

The central princupiec that thes Cowrt has counciated anc

vindicated throughout ms access 0 he cowrts junsprudence

s that the States may oct ompede orisomers afin

4

present habeas corpus or civil rights claims in state or

federal court. The first of the Court's cases in this area,

Ex Parte Hull, 312 U.S. 546 (1941), invalidated a

Michigan prison regulation that precluded the filing of

“legal documents, briefs, petitions, motions, habeas corpus

proceedings and appeals,"" unless a prison Official

determined that they were "‘properly drawn.’" Id. at 548-

49 Noting even at that early date that “[t]he

-onsiderations that prompted [the regulation’s] formulation

are not without merit,” the Court nevertheless held that

the state and its officers may not abridge or impair

petitioner's mght to apply to a federal court for a writ of

habeas corpus.” Jd. at 549: see also Cochran v. Kansas,

316 US. 255, 256-57 (1942) (prison rules prohibiting the

ng of appeal papers and habeas corpus petition violate

the Equal Protection Clause of the Fourteenth

. « PTniment

4 - *

The Court's subsequent cases in this area have applied

pmnciple to stnke down filing fees that precluded

cgemt prisoners from presenting habeas corpus petitions,

muth v Bennett, 365 U.S. 708 (1961), requirements that

ndigemt prisoners pay for transcripts of habeas

proceedings. Lane v. Brown, 372 U.S. 477 (1963); Long \

Dustrict Court of Lee County, lowa, 385 U.S. 192 (1966),

umd profubwoms upon inmates assisting other prisoners in

preparation of petitions for post-conviction relief

: djvery 3 S 483 (1969) In each of these

c sStice oMserved m Nes plurality opimion in

"gar sy . &a6 gey the ( owrt 5

ases Dave @ varwous times grounded the

7 mse and mm the Equal Protection

ee

5

cases, the Court prohibited the State from erecting a barrier

that inhibited the prisoner's ability to himself prepare and

file court papers. In none of these cases did the Court

even intimate that the State must affirmatively assist in the

preparation of claims by convicted prisoners.

The Court made this distinction explicit in Ross vy.

Moffitt, 417 U.S. 600 (1974), in rejecting a claim that the

State must provide counsel for prisoners seeking direct, but

discretionary, state appellate review of their criminal

convictions and review in this Court. The Court held that

cases such as Smith and Lane "stand for the proposition

that a State cannot arbitrarily cut off appeal rights for

indigents while leaving open avenues for more affluent

persons." Jd. at 607. The Court explained that its

requirement that the State provide counsel to indigent

defendants for appeals as of right, announced in Douglas v.

California, 372 U.S. 353 (1963), "departed somewhat from

the limited doctrine of the transcript and fee cases," 417

U.S. at 607, but the Court refused to extend this departure

to discretionary appeals. And in Pennsylvania y. Finley,

481 U.S. 551 (1987), the Court confirmed that because

"[p]ostconviction relief is even further reraoved from the

criminal trial than is discretionary review, . . . [and] States

have no obligation to provide this avenue of relief... . the

fundamental fairness mandated by the Due Process Clause

does not require that the state supply a lawyer” to inmates

seeking to raise habeas corpus claims. /d. at 556-57

(citations omitted).

In sum, on the one hand, Hull, Cochran, Smith, Lane.

and Johnson all stand for the proposition that the State may

not prevent or inhibit a prisoner from preparing and filing

claims im the courts, while, on the other hand, Ross and

Finley stand for the proposition that the State need not

6

affirmatively assist the prisoner in formulating and

presenting such claims by providing counsel. While

Bounds y. Smith, 430 U.S. 817 (1977), may well have

stretched the prior law governing access to the courts (as

the persuasive dissents of Justice Stewart and then-Justice

Rehnquist made clear), it certainly did not contradict the

principle that the State need not affirmatively assist in the

preparation of prisoner claims, as was made absolutely

clear in two subsequent decisions by the Court.

In Bounds, the Court held that “law libraries or other

forms of legal assistance are needed to give prisoners a

reasonably adequate opportunity to present claimed

violations of fundamental constitutional rights to the

courts." Jd. at 825. As this language makes clear, the law

library requirement is best understood as removing a state

erected barrier -- the prison walls -- that would otherwise

effectively preclude prisoners from presenting their own

claims in court. Absent their imprisonment, inmates would

be able to utilize public libraries in preparing their

petitions. In this regard, Bounds does no more than place

prisoners in the same position as citizens outside the prison

walls with potential claims: each has the opportunity,

unfettered by State obstruction, to research, draft, and

present to the court any Constitutional (or other) claim that

he might have.

The fact that the Court permitted States, as an

"alternative" to law libraries, to provide legal assistance

through, inter alia, trained inmates, paralegals, or clinical

programs, see id. at 830-31, does not transform Bounds

into a mandate that States must assist prisoners in the

preparation of their claims. The plain purpose of this

portion of the Court's holding was to vindicate this Court’s

traditional policy of providing prison administrators with

a nS

5

the maximum discretion possible consistent with the

Constitution. See id. at 833 ("Prison administrators thus

exercised wide discretion within the bounds of

constitutional requirements in this case."). As the Court

has repeatedly observed, "‘the problems of prisons in

America are complex and intractable, and, more to the

point, they are not readily susceptible of resolution by

decree." Running a prison is an inordinately difficult

undertaking that requires expertise, planning, and the

commitment of resources, all of which are peculiarly within

the province of the legislative and executive branches of

government." Turner v. Safely, 482 U.S. 78, 84-85 (1987)

(quoting Procunier v. Martinez, 416 U.S. 396, 404-05

(1974)).

Recognizing the considerable expense associated with

the establishment of a law library, the Bounds Court simply

noted that States have the option of employing substitute

methods for making the information contained in a law

library available to prisoners. Bounds did not, however,

purport to require States to make trained legal assistants

available to inmates. To the contrary, the Court made it

clear that legal assistants were not necessary when the State

provides a law library, and took pains to emphasize that "a

legal access program need not include any particular

element we have discussed .. . ." 430 U.S. at 832.

Any doubt about the scope of the right to access

recognized in Bounds has been removed by the recognition,

in this Court’s subsequent decisions in Finley and Murray

v. Giarratano, 492 U.S. 1 (1989), that States may leave

inmates "to [their] own resources in collateral

proceedings." Jd. at 20 (Stevens, J., dissenting). As noted

above, Finley applied the Court's ruling in Ross to hold

that the State need not provide counsel to inmates seeking

8

habeas corpus. 481 U.S. at 556-57. Two Terms later, in

rejecting a claim that prisoners under a sentence of death

seeking state post-conviction relief are entitled to counsel,

the Court addressed the argument that Finley was somehow

limited by the requirement of Bounds that States provide

law libraries to enable prisoners to prepare their own

petitions seeking judicial relief. Observing that "it would

be a strange jurisprudence that permitted the extension of

that holding to partially overrule a subsequently decided

case such as Finley," 492 U.S. at 11, the Chief Justice,

speaking for a plurality of four justices, held that Finley

"necessarily imposes limits on Bounds." Id. at 12. °

Even the dissent characterized Finley as holding that it

is "permissible to leave an ordinary prisoner to his own

resources in collateral proceedings," id. at 20 (Stevens, J.,

dissenting), and sought to distinguish capital cases from the

prevailing rule on the basis of the fundamentally different

nature of the death penalty, the peculiar features of

Virginia’s post-conviction review of capital cases, and on

the unique restrictions placed on death row inmates, see id.

at 20-28 (Stevens, J., dissenting).

In short, this Court’s right of access cases have drawn

a distinct line: the States may not constitutionally place

barriers inhibiting the ability of prisoners to prepare and

present petitions to the courts, but States need not

affirmatively assist inmates in the preparation of their

> As Justice O’Connor noted, Justice Kennedy's opinion

concurring in the judgment was not "inconsistent with the

principles expressed" in the plurality opinion. /d. at 13

(O’Connor, J., concurring); see also id. at 14-15 (Kennedy, J.,

concurring in the judgment).

9

claims. Bounds is consistent with this standard because --

and only because -- it imposed a disjunctive requirement:

law libraries or legal assistants. As we now explain, by

converting this into a conjunctive requirement -- law

libraries and legal assistants, the courts below disregarded

both the plain language of Bounds and the broader logic

underlying the Court’s other access cases.

Il. THE LOWER COURTS HAVE MISAPPLIED THIS

COURT’S RIGHT OF ACCESS JURISPRUDENCE

BY REQUIRING ARIZONA TO PROVIDE

TRAINED LEGAL ASSISTANTS TO SPECIFIED

CLASSES OF INMATES NOTWITHSTANDING

THE AVAILABILITY OF LEGAL RESOURCES

FOR ALL ARIZONA PRISONERS.

It is undisputed that Arizona maintains no fewer than 19

law libraries for the benefit of inmates at the nine prison

facilities located throughout the State. See Pet. App. A at

2; 43 F.3d 1261, 1265 (9th Cir. 1994); Pet. App. B at 26-

28; 834 F. Supp. 1553, 1558-59 (D. Ariz. 1993) (listing

libraries). With the exception of prisoners confined to

"lockdown" for security reasons (who may receive legal

materials in their cells by sending a written request to the

law library, see Pet. App. B at 21; 834 F. Supp. at 1556),

neither the district court nor the court of appeals identified

any prisoners who were not given physical access to one of

these libraries. Nevertheless, the courts below held that

Arizona’s failure to provide trained legal assistants both to

"lockdown" prisoners and to illiterate and non-English

speaking inmates, and its failure to permit prisoners in

"lockdown" to have physical access to the library violated

the constitutional right of those prisoners to access to the

courts. See Pet. App. A at 6-9; 43 F.3d at 1267-68; Pet.

App. B at 41-44; 834 F. Supp. at 1566-67.

10

A. Due Process Does Not Demand that States

Provide Trained Legal Assistants To Illiterate

And Non-English Speaking Prisoners.

There is simply no basis in Bounds or in any other

decision of this Court for requiring States that have gone to

considerable expense to make law libraries available to all

prisoners to undertake the additional burden of furnishing

legal assistants to illiterate and non-English speaking

inmates. In Bounds, the Court quite emphatically repeated

that the right being announced was one of access to "law

libraries or alternative sources of legal knowledge." 430

U.S. at 817 (emphasis added); see also id. at 825 ("law

libraries or other forms of legal assistance") (emphasis

added); id. at 827 ("libraries or other forms of legal

assistance") (emphasis added); id. at 828 ("adequate law

libraries or adequate assistance from persons trained in the

law") (emphasis added); id. at 830 ("while adequate law

libraries are one constitutionally acceptable method to

assure meaningful access to the courts, our decision here

_. . does not foreclose alternative means to achieve that

goal").

Thus, Bounds could not be clearer that provision of a

law library, in and of itself, is sufficient to ensure the

prisoners’ right of access. Moreover, this Court’s

decisions in Ross, Finley, and Murray foreclose an

extension of Bounds to require the States to do more than

abstain from interfering with these prisoners’ efforts to

prepare and file their claims. See, e.g., Murray, 492 US.

at 12 (plurality opinion) (Finley "necessarily imposes limits

on Bounds"); id. at 20 (Stevens, J., dissenting) (under

Finley, it is "permissible to leave an ordinary prisoner to

his own resources in collateral proceedings").

The State of Arizona has not in any way impeded these

prisoners’ ability to prepare and present petitions to the

courts. It is true, as the courts below pointed out, that the

law libraries the State makes available to all prisoners are

not likely to be of much use to prisoners who cannot read

English. See Pet. App. A at 7; 43 F.3d at 1267; Pet. App.

B at 43; 834 F. Supp. at 1567. But this impediment to the

presentation of successful petitions is not of the State’s

making. In this regard, illiterate and non-English speaking

prisoners stand in the same shoes as their counterparts

outside the prison walls who are unable to take advantage

of public libraries to prepare their own civil rights claims.

It would turn due process on its head to require the State

to provide a legal assistant to help an illiterate prisoner

prepare a civil rights complaint while denying such aid to

his illiterate brother who has never been convicted of a

crime.‘

* The court of appeals contended, without citation to the

record or any other source, that this argument "overlooks the

fact that the restrictions on a prisoner’s liberty attendant to

imprisonment prevents the prisoner from enlisting the assistance

of his family, friends, and a myriad of social services and legal

aid organizations that would otherwise be available." Pet. App.

A at 9; 43 F.3d at 1268. To the contrary, there is no reason

why an inmate cannot receive assistance from family, friends,

and legal aid organizations (such as the groups that have

represented respondents in this case). To be sure, the logistics

of obtaining aid from these sources may be more difficult for the

prisoner than for his free counterpart, but this additional

inconvenience is of no constitutional moment. As this Court has

repeatedly observed, "‘"[l]awful incarceration brings about the

necessary withdrawal or limitation of many privileges and rights,

a retraction justified by the considerations underlying our penal

(continued...)

12

B. The Lower Courts Erred In Requiring

Arizona To Document The Security Risks

Inherent In Permitting Prisoners In

"Lockdown" To Have Physical Access To The

Law Library.

The courts below also concluded that the access to legal

materials Arizona provides to prisoners in "lockdown"

status was inadequate, holding that, "unless [Arizona] can

demonstrate actual security risks," prison officials "may not

routinely prohibit lockdown inmates from physically using

the law library." Pet. App. A. at 6; 43 F.3d at 1267. In

particular, following circuit precedent, the district court

held that "‘[s]imply providing a prisoner with books in his

cell, if he requests them, gives the prisoner no meaningful

change [sic] to explore the legal remedies that he might

have. Legal research often requires browsing through

various legal materials in search of inspiration ... .""

Pet. App. B at 42; 834 F. Supp. at 1566 (quoting Toussaint

v. McCarthy, 801 F.2d 1080, 1109-10 (9th Cir. 1986),

cert. denied, 481 U.S. 1069 (1987)). This ruling simply

does not square with this Court’s precedents requiring

judicial deference to prison authorities, particularly with

regard to matters touching upon institutional security. See,

e.g., Thornburgh v. Abbott, 490 U.S. 401, 409-11 (1990);

Turner, 482 U.S. at 84-85; Bell v. Wolfish, 441 U.S. 520,

546-47 (1979); Procunier v. Martinez, 416 U.S. 396, 404-

05 (1974).

* (...continued)

system.""" Sandin v. Conner, -- U.S. --, --, 115 8. Ct. --, --,

63 U.S.L.W. 4601, 4605 (1995) (citations omitted).

ae

13

Under Turner, a prison regulation or practice that

impinges upon a constitutionally protected interest may not

be invalidated unless plaintiffs demonstrate that it is not

"reasonably related to legitimate penological interests."

482 U.S. at 89. There can be no question that the burden

on this issue is on the prisoners challenging the regulation

or practice, not on prison officials as the courts below held

in this case. In O’Lone v. Estate of Shabazz, 482 U.S. 342

(1987), for example, the Court reversed a court of appeals

decision strikingly similar ‘> that of the Ninth Circuit in

this case. In that case, w.iich involved an assertion of free

exercise rights, the court of appeals “established a separate

burden on prison officials to prove ‘that no reasonable

method exists by which [prisoners’] religious rights can be

accommodated without creating bona fide security

problems.’" Jd. at 350 (queting decision below). The

Court flatly rejected this assignment of the burden of proof

to prison authorities, holding that "the approach articulated

by the Court of Appeals fails to reflect the respect and

deference that the United States Constitution allows for the

judgment of prison administrators." Jd. The lack of

deference in the case at bar is even more egregious

because, unlike in O’Lone where the challenged regulations

completely precluded any accommodation to the prisoners’

interest in participating in the religious service at issue,

Arizona accommodates the exercise of the right to access

to legal materials of prisoners in "lockdown" by delivering

requested materials to their cells.

The lower courts’ requirement that Arizona admit

prisoners in "lockdown" to the law library unless and until

the State provides "‘documented security reasons’" for

barring physical access, see Pet. App. A at 6; 43 F.3d at

1267 (citation omitted), cannot stand because it frustrates

"the ability of corrections officials ‘to anticipate security

14

problems and to adopt innovative solutions to the

intractable problems of prison administration,’ and [it

fosters] unnecessary intrusion of the judiciary into problems

particularly ill suited to ‘resolution by decree.’" O’Lone,

482 U.S. at 349-50 (quoting Procunier v. Martinez, 416

U.S. at 405). Neither respondents nor the courts below

even attempted to demonstrate that Arizona’s practice of

denying prisoners in "lockdown" physical access to the

library is not "reasonably related to legitimate penological

interests." Turner, 482 U.S. at 89. Nor could they, for

Arizona’s eminently sensible determination that inmates

posing enough of a security risk to justify segregation in

"lockdown" should not be permitted to roam freely through

the law library obviously advances an unquestionably

legitimate penological interest.

Finally, the lower courts insisted that Bounds requires

Arizona to provide legal assistants to “inmates deemed

security risks and denied [physical] access to the library."

Pet. App. A at 7; 43 F.3d at 1267; see also Pet. App. B at

42: 834 F. Supp. at 1566 ("if the state denies physical

access to the law library, the state must provide that

prisoner with legal assistance"). Of course, Bounds said

nothing of the sort. It merely held that States must provide

"adequate law libraries or adequate assistance from persons

trained in the law." 430 U.S. at 828 (emphasis added).

Nothing in the Court’s opinion purported to deprive

corrections officials of the discretion to determine the

logistics of providing access to the law library to those

prisoners found to be security risks. To the contrary,

Arizona’s decision to provide prisoners determined to be

security risks access to the library by bringing requested

legal materials to their cells appropriately accommodates

the asserted constitutional right while at the same time

preserving “due regard for the ‘inordinately difficult

15

undertaking’ that is modern prison administration."

Thornburgh v. Abbott, 490 U.S. at 407 (quoting Turner,

482 U.S. at 85).

CONCLUSION

The courts below have lost sight of the deference

federal courts must maintain for the decisions of the State

officials charged with the responsibility of operating prison

systems. This is not a case where Arizona has ignored the

constitutional right claimed by the inmates. To the

contrary, Arizona has expended considerable resources in

a good faith effort to comply with the mandate of Bounds,

and as a result, the State’s 15,346 inmates enjoy the benefit

of at least 19 law libraries spread among nine prison

facilities. The lower courts’ dissection of Arizona’s legal

access program amounts to nothing more than what this

Court condemned at the close of the last Term as “the

involvement of federal courts in the day-to-day

management of prisons, often squandering judicial

resources with little offsetting benefit to anyone." Sandin,

63 U.S.L.W. at 4604.

For the foregoing reasons, amici respectfully urge the

Court to reverse the judgment of the court of appeals, and

return the authority to administer the Arizona prison system

to the appropriate State officials.

Daniel J. Popeo

Paul D. Kamenar

WASHINGTON LEGAL

FOUNDATION

2009 Massachusetts Ave. NW

Washington, D.C. 20036

(202) 588-0302

Date: August 7, 1995

16

Respectfully submitted,

Charles J. Cooper*

Michael A. Carvin

Michael W. Kirk

SHAW, PITTMAN,

POTTS & TROWBRIDGE

2300 N Street, NW

Washington, D.C. 20037

(202) 663-8000

* Counsel of Record