Amicus Curiae Brief — Lewis v. Casey

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Supreme Court, U.S.

(4) FILED

Aug 4 1999

No. 94-1511

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1995

SAMUEL LEWIS, et al.,

Petitioners,

vs.

FLETCHER CASEY, JR., et al.,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

BRIEF AMICUS CURIAE OF THE

CRIMINAL JUSTICE LEGAL FOUNDATION

IN SUPPORT OF PETITIONERS

KENT S. SCHEIDEGGER

CHARLES L. HOBSON*

Criminal Justice Legal Fdn.

2131 L Street

Sacramento, CA 95816

Telephone: (916) 446-0345

Attorneys for Amicus Curiae

Criminal Justice Legal Foundation

*Attorney of Record

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QUESTION PRESENTED

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

prisoners to legal assistance superior to that enjoyed by average

citizens?

TABLE OF CONTENTS

EEE SES PT eee eee i

ES EEE V

a Sess k bet e cece sere ceecs l

Interest Of GWUCUS CUTIGE .. 0... eee l

Summary of facts and case... .. 0... eee 2

EE cc dds ce cdescccccercecees 3

Tech. wa beaucececesecancecccees 5

I

The Constitution does not require states to treat its prisoners

better than law-abiding citizens ................. 5

ES GD cbc cee sec cece cece 5

CP, cc ccscesscececcssecces 8

C. Libraries, litigation, and the prison system .... 11

Il

The right to libraries found in Bounds v. Smith is

ECC. CkECR Sh bec se ese ece ccc 13

il

The Ninth Circuit’s decision violates Bounds ......... 16

A. Contradicting precedent ................ 16

BD. MiCTOMAMAgeteMm 2... ee 17

C. Extreme accommodation ................ 20

Py GID, ccc cc cee 21

(iii)

iV

Bounds needs to be clarified ...... 2... ++ eee reese

Conclusion

TABLE OF AUTHORITIES

Cases

Bounds v. Smith, 430 U. S. 817, 52 L. Ed. 2d 72,

DO SE. DEEN 6 Seka habe sneedtcas<i Passim

Burns v. Ohio, 360 U. S. 252, 3 L. Ed. 2d 1209,

po RS er es re ee 13

Casey v. Lewis, 43 F. 3d 1261 (CA9 1994) ...... Passim

Coleman v. Thompson, 501 U. S. 722, 119 L. Ed. 2d 1,

Se ee ED eG oh bbc'cs bebe cbs cee 6

Douglas v. California, 372 U. S. 353, 9 L. Ed. 2d 811,

Ses EY 620 5 ob ee vse eee ee ee eres 13

Ex parte Hull, 312 U. S. 546, 85 L. Ed. 1034,

ge eo se eee eee 13

Fay v. Noia, 372 U. S. 391, 9 L. Ed. 2d 837,

es ED bo 6G COG wales obs + obese 6

Gregg v. Georgia, 428 U. S. 153, 49 L. Ed. 2d 859,

ee ge ee Sees 6,7

Griffin v. Illinois, 351 U. S. 12, 100 L. Ed. 891,

eo tia a eel ak ald wk oh dass 0 13

Hewitt v. Helms, 459 U. S. 460, 74 L. Ed. 2d 675,

oo areas re ee 8, 18, 19

Hooks v. Wainwright, 775 F. 2d 1433 (CAI1 1985) .... 23

Hudson v. Palmer, 468 U. S. 517, 82 L. Ed. 2d 393,

a nr. oa cathe eaadice cs +c 21

Illinois v. Gates, 462 U. S. 213, 76 L. Ed. 2d 527,

I Se ee) ees ae 5

Johnson v. Avery, 393 U. S. 483, 21 L. Ed. 2d 718,

7 eB FS Pee eee eee 13, 17

Jones v. North Carolina Prisoners’ Union, 433 U. S. 119,

53 L. Ed. 2d 629, 97 S. Ct. 2532 (1977) .......... 18

vi

Lane v. Hutchison, 794 F. Supp. 872 (E.D. Mo. 1992) .. 11

Lewis v. Jeffers, 497 U. S. 764(1990) ............ 24

Meachum v. Fano, 427 U. S. 215, 49 L. Ed. 2d 451,

tee ff aac? ee ee 18

Metromedia, Inc. v. San Diego, 453 U. S. 490 (1981)... 14

O’Lone v. Estate of Shabazz, 482 U. S. 342,

96 L. Ed. 2d 282, 107 S. Ct. 2400 (1987) ....... 10, 18

Patterson v. New York, 432 U. S. 197, 53 L. Ed. 2d 281,

7 8-3 |, Perr Te re te 6

Pennsylvania v. Finley, 481 U. S. 551, 95 L. Ed. 2d 539,

fee |) , eae: 14, 22, 23

People v. Roberts, 2 Cal. 4th 271, 826 P. 2d 274

EE. i 4% 3-0 & 40 5.6m ee) ee Se OS 6,7

Powell v. Alabama, 287 U. S. 45, 77 L. Ed. 158,

Sa Ge ee wae bs 6-00 00.0 S8nOee ke ey 16, 22

Powers v. Ohio, 499 U. S. 400, 113 L. Ed. 2d 411,

lik @> @.: | | SNe re Tee 12

Procunier v. Martinez, 416 U. S. 396, 40 L. Ed. 2d 224,

) se” ere ee 10, 18, 19, 25

Rhodes v. Chapman, 452 U. S. 337, 69 L. Ed. 2d 59,

a. | | ee oe ee 8, 21

Rose v. Lundy, 455 U. S. 509, 71 L. Ed. 2d 379,

ee ee, ee Saige 15, 23

Rose v. Mitchell, 443 U. S. 545, 61 L. Ed. 2d 739,

Fe. Be "eer > rare ee 12

Ross v. Moffitt, 417 U. S. 600, 41 L. Ed. 2d 341,

7 § & . Bre ro es ae re 14, 23

Ruiz v. Estelle, 503 F. Supp. 1265 (S.D. Tex. 1980). .... 9

Sandin v. Conner, 63 U. S. L. W. 4601

oo Ee aes ee Pee 8, 18, 19, 24

Vii

Smith v. Bennett, 365 U. S. 708, 6 L. Ed. 2d 39,

Sr I Sots tas ng ea 13

Teague v. Lane, 489 U. S. 288, 103 L. Ed. 2d 334,

eR 15

Turner v. Safley, 482 U. S. 78, 96 L. Ed. 2d 64,

ge ee Re 18, 24

Walker v. Goldsmith, 902 F. 2d 16 (CA9 1990)....... 11

Wolff v. McDonnell, 418 U. S. 539, 41 L. Ed. 2d 935,

Pe B, Se, Be ee oe wacncew ues wenceese 8, 15, 16

Wycoff v. Brewer, 572 F. 2d 1260 (CA8 1978) ....... ll

Younger v. Gilmore, 404 U. S. 15, 30 L. Ed. 2d 142,

es I 14

Statute

NR ee cr 2

Treatise

W. LaFave & A. Scott, Substantive Criminal Law

RT die mn EE Mas a ee 6,7

Miscellaneous

C. Cripe, Courts, Corrections, and the Constitution:

A Practitioner’s View, in Courts, Corrections, and the

Constitution 268 (J. Dilulio ed. 1990) .......... 19, 25

Curniden, Hard Times, 81 A.B.A. J. 72 (July 1995) .... 13

J. Dilulio, No Escape (1991) ................02-. 25

J. Dilulio, The Old Regime and the Ruiz Revolution:

The Impact of Judicial Intervention on Texas Prisons, in

Courts, Corrections, and the Constitution 51

le a ge ee 9, 10

Doumar, Prisoners’ Civil Rights Suits: A Pompous Delusion,

11 Geo. Mason L. Rev. 1 (1988) ............. 11, 12

Viil

Engel & Rothman, The Paradox of Prison Reform:

Rehabilitation, Prisoner’s Rights and Violence,

7 Harv. J.L. & Pub. Pol’y 413 (1984).......... 11, 12

The Federalist No. 78 (C. Rossiter ed. 1961)

5 ENP RS ee ee ee ee 25

Feeley & Hanson, The Impact of Judicial Intervention on

Prisons and Jails: Framework for Analysis and a Review of

the Literature, in Courts, Corrections, and the Constitution

12 (J. Dilulio ed. 1990) .............0022 eee 19

V. Fox, Correctional Institutions (1983) ............ 11

Godbold, Pro Bono Representation of Death Sentenced

Inmates, 42 Rec. AB City N.Y. 859 (1987) ........ 22

Hanson, What Should Be Done When Prisoners Want to Take

the State to Court, 70 Judicature 223 (1987) ........ 12

O. Holmes, The Common Law (1881) .............. 7

O. Holmes, The Path of Law, in Collected Legal Papers 167

CD” iin ik cAeilen + CEC be OOOO ew Ss 6 Eee Oe 7

Note, Causation in the Model Penal Code,

78 Colum. L. Rev. 1249 (1978) .......0 2.04046. 7

Rhode, Policing the Professional Monopoly: A Constitutional

and Empirical Analysis of Unauthorized Practice

Prohibitions, 34 Stan. L. Rev. 1 (1981) ........... 21

Rychalk, Society’s Moral Right to Punish: A Further

Explanation of the Denunciation Theory of Punishment,

65 Tulane L. Rev. 299 (1990) .........255- 22 ees 7

J. Wilson, Thinking About Crime (1975) ............ 7

R. Wright, In Defense of Prisons (1994)............. 8

F. Zimring, Perspectives on Deterrence (1971) ........ 6

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1995

SAMUEL LEWIS, et al.,

Petitioners,

vs.

FLETCHER CASEY, JR., et al.,

Respondents.

— ——————————————————————————————————————____________—

BRIEF AMICUS CURIAE OF THE

CRIMINAL JUSTICE LEGAL FOUNDATION

IN SUPPORT OF PETITIONERS

EE —_________

INTEREST OF AMICUS CURIAE

The Criminal Justice Legal Foundation (CJLF)' is a non-

profit California corporation organized to participate in litigation

relating to the criminal justice system as it affects the public

interest. CJLF seeks to bring the constitutional protections of

the accused into balance with the rights of victims and of society

to rapid, efficient, and reliable determination of guilt and swift

execution of punishment.

Running a prison is an extraordinarily difficult task. Prison

administrators oversee a population of anti-social and violent

people. The prisoner’s diet, clothing, shelter, and medical needs

must be attended to. Furthermore, the administrators must keep

the prisoner from harming the outside world, the prison staff, or

his fellow inmates. The unwarranted attention of the federal

courts can make this already difficult job impossible.

1. Both parties have consented to the filing of this brief.

The decision below places needless, heavy burdens on our

prison system. It wastes prison resources, strips administrators

of necessary discretion, encourages wasteful, disruptive prisoner

litigation, and entitles prisoners to greater privileges than the

average citizen. This is contrary to the interests CJLF was

formed to protect.

SUMMARY OF FACTS AND CASE

On January 12, 1990, 22 prisoners of the Arizona Depart-

ment of Corrections (“ADOC”) filed a class action suit under 42

U. S. C. § 1983 in the United States District Court for the

District of Arizona. Casey v. Lewis, 43 F. 3d 1261, 1265 (CA9

1994). One of the many claims was that prison officials

unconstitutionally denied the prisoners access to the courts. /bid.

On November 12, 1992, after a three-month bench trial, the

District Court ruled that the ADOC’s policy for assuring

prisoners’ access to the courts was unconstitutionally inadequate.

It found inadequate: “contents of the library; the access to

libraries; the legal assistance for prisoners who are illiterate or

who do not speak English; library staffing; the indigency

standard for receiving free legal supplies; the photocopy: 1g

policy . . . ; and restrictions on inmates’ telephone calls to their

attorneys.” /bid. After consulting with a Special Master, the

District Court issued a permanent injunction requiring the ADOC

to implement the plan developed by the Master to remedy the

allegedly inadequate access. /d., at 1265-1266.

The plan was very detailed. It covered such items as: the

types of books to be bought by the libraries; what times of the

day the libraries would be open; the minimum hours each library

was open; notification of schedule changes; the qualifications of

librarians; the contents of forms regarding library use; the

conduct in the libraries that can be prohibited; the check-out

system; the libraries’ noise level and how to reduce it; the

number, training, and workload of legal assistants; the maximum

mark-up for legal supplies sold by the prison; the standard of

indigency; and the number of pens, pencils, typing paper, legal

pads, file folders, and regular envelopes to be provided to

indigents. See id., at 1272-1280 (Appendix A).

The Ninth Circuit affirmed the bulk of the District Court’s

order. It found that Bounds v. Smith, 430 U. S. 817 (1977)

mandated the extensive relief proscribed by the District Court.

See Casey, 43 F. 3d, at 1266.”

SUMMARY OF ARGUMENT

The Ninth Circuit established a dangerous precedent when it

required Arizona to provide its prisoners with a greater level of

legal services than what is available to the average citizen. If

upheld, this precedent would cost much more than the expense

of improving the law libraries of Arizona prisons.

Court-ordered luxuries for prisoners eat away at the glue that

holds society together. A valid, functioning criminal justice

system is essential to civilized society. In order for the criminal

justice system to function, we must believe that criminals are

appropriately punished for their crimes. When courts provide

prisoners with benefits not available to the average citizen,

public confidence that criminals get their just deserts diminishes,

threatening the social order.

Special treatment of prisoners has further costs. Running a

prison is at best very difficult. Once courts start mandating more

than basic human needs for prisoners, judicial management of

prisons will increase at the expense of the discretion prison

administrators need to do their job. The experience of the Texas

prison system demonstrates the dangers of such intrusive

micromanagement.

Giving prisoners too much access to courts undermines the

prison system. As the state is required to bear more and more

of the prisoner’s litigation, the right of access becomes a subsidy

to litigation. This has turned litigation from an avenue of

defending basic rights to a leisure activity for prisoners. This

undermines administrative authority, creates considerable costs

2. The Ninth Circuit affirmed all of the District Court's judgment except

for its decision to award costs and expenses of the Special Master

without giving the ADOC the opportunity to object, id., at 1272, a

restriction on photocopying pricing, ibid., and a requirement that the

ADOC provide electric typewriters to indigent prisoners. /d., at 1271.

to the state, and undermines the faith of citizens that criminals

are being properly punished.

The right to libraries found in Bounds v. Smith, 430 U. S.

817 (1977) is very limited. The right to access cases before

Bounds meant only to remove barriers to litigation by prisoners;

they were not intended to make the states actively encourage

prisoner suits.

While Bounds placed a greater affirmative duty on the states

than did previous decisions, this duty was very limited. Its right

of libraries was not for the purpose of general civil litigation, but

only to allow prisoners to file habeas corpus and civil rights

actions. The state’s duty was further limited by the fact that it

merely had to give prisoners the tools to present fundamental

claims to the courts; Bounds was not intended to guarantee

competent prosecution of the prisoner’s claim or to blaze new

trails in the law.

The decision below violated Bounds. By ordering Arizona

to provide both libraries and legal assistance to prisoners, the

Ninth Circuit directly contradicted the holding of Bounds that

either a library or legal assistance satisfied the right to access.

The Ninth Circuit’s micromanagement of Arizona prisons

also contradicted this Court’s precedents. One constant of the

prisoner rights cases is a tradition of deference to the discretion

of administrators to conduct the day-to-day affairs of the prison.

The Ninth Circuit’s exceptionally intrusive order dangerously

contravenes this principle.

The decision below also excessively accommodated the

prisoners’ interests. The provisions for legal assistance it

ordered are more lavish than that available to the average citizen.

This excess stems from a misperception of what Bounds re-

quires. The Ninth Circuit believes Bounds is a right to effective-

ly litigate claims; Bounds is only concerned with giving prisoners

the ability to present basic claims to the courts.

The confusion in the lower courts over what Bounds requires

demonstrates that Bounds must be clarified. This Court should

clarify that Bounds is a very limited right to bring basic claims

to the attention of the courts, that the oversight of Special

Masters should only be invoked under extreme circumstances,

and that federal courts should defer to the judgment of prison

administrators barring a finding of bad faith.

ARGUMENT

I. The Constitution does not require states to treat its

prisoners better than law-abiding citizens.

The present case is about much more than the cost to Arizona

of buying Pacific Reports for its prisoners. The Ninth Circuit

has engaged in an extreme accommodation of prisoner interests

under Bounds v. Smith, 430 U. S. 817 (1977), giving Arizona’s

prisoners considerably greater access to the courts than that

possessed by the average citizen. See post, at 8-21. This sets a

a dangerous precedent for both America’s prisons and society

at large.

Court-ordered prison libraries are one part of a whole mosaic

of judicial interference with prison administration and must be

considered within this larger picture. Although libraries will, of

course, not prevent prisons from punishing, the decision below

improperly chips away at prisoners’ punishment, disrupting the

calculus of just desert. Furthermore, this expensive litigation

subsidy will make the already difficult job of running prisons that

much more onerous.

The danger of the decision below is best appreciated in a

context larger than the contents of prison libraries. Therefore,

Part I A of this brief will discuss society’s keen interest in having

prisons that punish adequately. Part I B will demonstrate that

excessive accommodation of prisoner interests is dangerous to

prisons. The relevance of the Ninth Circuit’s decision to these

points will be shown in Part I C.

A. Societal Needs.

The criminal law is part of the glue that holds society

together. Protecting its citizens from crime is a core feature of

any civilized government. See Jilinois v. Gates, 462 U. S. 213,

237 (1983). If people are not protected from crime they are not

free. Therefore, the states, the main enforcement arm of the

criminal law, Patterson v. New York, 432 U. S. 197, 201 (1977),

must be given great discretion in their fight against crime.

“The rights of the States to develop and enforce their own

judicial procedures, consistent with the Fourteenth Amend-

ment, have long been recognized as essential to the concept

of a healthy federalism. Those rights are today attenuated if

not obliterated in the name of a victory for the ‘struggle for

personal liberty.” But the Constitution comprehends another

struggle of equal importance and upon our shoulders the

burden of maintaining it—the struggle for law and order. |

regret that the Court does not often recognize that each

defeat in that struggle chips away at the base of that very

personal liberty which it seeks to protect.” Fay v. Noia, 372

U. S. 391, 446-447 (1963) (Clark, J., dissenting), overruled

in Coleman v. Thompson, 501 U. S. 722, 749-750 (1991).

The criminal law protects society by punishing transgressors.

See 1 W. LaFave & A. Scott, Substantive Criminal Law

§ 1.2(e), at 14 (1986). Punishment serves two important

purposes—preventing people from committing crime through

. deterrence.or incapacitation, see ibid., and expressing society s

moral indignation at crime.’ See People v. Roberts, 2 Cal. 4th

271, 316, 826 P..2d 274, 298 (1992); Gregg v. Georgia, 428

U. S. 153, 183 (1976) (lead opn.).

For either purpose to work, punishment must actually

punish. While incapacitation may not require punishment,

deterrence must be punitive. If prison is to deter people from

committing crime, it must be perceived to be punitive. See |

LaFave & Scott, supra, § 1.5(a)(3), at 33, n. 2, quoting F.

Zimring, Perspectives on Deterrence 3 (1971).

Changing the conditions inside prison will thus affect the

level of crime. Making prison life easier will lower the cost of

committing crime, while lowering the prison’s standard of living

will make the criminal’s vocation less rewarding. Such changes

inevitably influence the level of crime.

3. Rehabilitation is also a goal of sentencing, of course, 1 LaFave & Scott,

supra, § 1.5(a)(3), at 32-33, but it has proved an elusive one, and it is

made even more difficult by the decline in prison discipline wrought in

the past by excessive judicial interference. See post, at 11-12.

———we

“Criminals may be willing to run greater risks (or they may

have a weaker sense of morality) than the average citizen,

but if the expected cost of crime goes up without a corre-

sponding increase in the expected benefits, then the would-be

criminal—unless he or she is among that small fraction of

criminals who are utterly irrational—engages in less crime,

just as the average citizen will be less likely to take a job as

a day laborer if the earnings from that occupation, relative to

those from other occupations, go down.” J. Wilson,

Thinking About Crime 175-176 (1975).

The punitive aspect of prison serves a second purpose for

society—retribution. “The law is the witness and external

deposit of our moral life.” O. Holmes, The Path of Law, in

Collected Legal Papers 167, 170 (1920). The criminal law

serves our “moral life” by expressing our outrage at crime by

punishing criminals. See Roberts, supra, 2 Cal. 4th, at 316, 826

P. 2d, at 298; Gregg, supra, 428 U. S., at 183; Note, Causation

in the Model Penal Code, 78 Colum. L. Rev. 1249, 1258-1259

(1978). Although criticized by some scholars, retribution “is the

oldest theory of punishment, and the one that still commands

considerable respect from the general public.” 1 LaFave &

Scott, supra, § 1.5(a)(6), at 35.

Frustrating this purpose is particularly dangerous. Retribu-

tion is intended to maintain respect for the law. If criminals are

not punished appropriately, then people may start taking the law

into their own hands. See ibid. “It may certainly be argued,

with some force, that it has never ceased to be one object of

punishment to satisfy the desire for vengeance.” O. Holmes,

The Common Law 40 (1881). If society’s sense of justice is not

satisfied, disorder becomes a real threat.

“To maintain order in society, the legal system must not only

provide for a safe society, it must also provide a society that

is satisfied with the workings of the system. The law-

abiding populace must be assured that those who have done

wrong are punished,-and that those who are innocent are

protected. Otherwise, society will fail in its most basic

duty.” Rychalk, Society’s Moral Right to Punish: A

Further Explanation of the Denunciation Theory of Punish-

ment, 65 Tulane L. Rev. 299, 320-321 (1990).

Each judicial improvement of the prisoner’s lot runs the risk

of alienating society from the criminal justice system. When

society's representatives in the legislature set the punishment for

crimes, a certain harshness of prison life is taken into the

calculus of desert. “Prisons also reflect the cultural sensibilities

of the larger society in which they are located [citation].

Imprisonment occupies an integral role both in the production

and in the reproduction of social norms, values, attitudes, and

beliefs.” R. Wright, In Defense of Prisons 3 (1994).

When an unelected federal court ameliorates prison life ex

post facto, the equation of guilt and punishment is upset. As the

criminal is treated more and more like the average citizen, the

bonds that hold us together further fray. Conditions of prison

life that are “restrictive and even harsh” are constitutional unless

found cruel under contemporary standards. Instead, “they are

part of the penalty criminals pay for their offenses against

society.” Rhodes v. Chapman, 452 U. S. 337, 347 (1981). If

we are to maintain social order, the courts must respect society's

calculus of punishment.

a

B. Institutional Needs.

Increasing the rights of prisoners has further costs. Running

a prison is an exceptionally difficult endeavor. The administra-

tion must supply the prisoners with food, clothing, shelter,

medical care, work, and recreation while keeping their charges

from harming the outside world, the staff, and each other.

Therefore, courts give prison administrators “broad discretionary

authority . . . because the administration of a prison is ‘at best

an extraordinarily difficult undertaking....’” Hewitt v.

Helms, 459 U. S. 460, 467 (1983), quoting Wolffv. McDonnell,

418 U. S. 539, 566 (1974).*

If a federal court intrudes too far into the administration of

a prison, the costs can be very high in both money and lives. A

particularly vivid example of the high cost of judicial intrusive-

ness can be found in the tragedy of the Texas prison system.

4. Hewitt was disapproved, if not “technically . . . overrule[d]” on other

grounds in Sandin v. Conner, 63 U.S. L. W. 4601, 4605, n. 5 (slip

op., at 10, n. 5) June 19, 1995).

For many years Texas had a penal system that it could be

proud of. While authoritarian, Texas’ penal system had a superb

safety record, low costs, and an unmatched prisoner education

system. See J. Dilulio, The Old Regime and the Ruiz Revolu-

tion: The Impact of Judicial Intervention on Texas Prisons, in

Courts, Corrections, and the Constitution 51, 61 (J. Dilulio ed.

1990). In 1974, a federal district court judge in Texas combined

several prisoner civil rights suits into one class action suit, and

through this case took over the Texas penal system. See id., at

59. Ruiz v. Estelle, 503 F. Supp. 1265 (S.D. Tex. 1980).

When the suit was contested, there was controversy over

Texas’ control model of prisons. Some experts credited it with

maintaining “the only safe, clean, cost-effective prison system in

the country. Others denounced [the Texas Department of

Corrections] as a repressive agency that treated its inmates like

slaves.” Dilulio, supra, at 60.

The District Court was in total agreement with the critics.

It issued a 248-page opinion requiring many detailed changes in

the way Texas ran its prisons. Among the many requirements

were:

“an end to the use of building tenders; a requirement that the

agency double its officer force and retrain veteran officers;

a revision in the procedures for handling inmate grievances;

a complete overhaul of the prisoner classification sysiem that

would reduce the number of maximum security designations;

a division of the prison population into management units of

not more than five hundred each; a radical improvement in

health delivery systems that would give inmates easy access

to state-of-the-art medical treatment; and the provision of a

single cell for each inmate.” Jbid.

These mandates, the exceptional contentiousness of the

litigation, and the District Court’s close supervision of Texas

prisons helped turn the Texas penal system into an expensive,

dangerous disaster. At the low point of the litigation, violence

was endemic, discipline was minimal, and staff morale was

plummeting. Gang rape and contract murder had become

common. See id., at 53. More serious violence occurred in the

years 1984-1985 than in the previous decade. /d., at 54.

Furthermore “inmate participation in treatment and educational

10

programs became erratic, the once-immaculate inmate living

quarters ceased to sparkle, and recreational privileges were

curtailed.” /Jbid. All of this was achieved at a cost of over a

billion dollars. /d., at 68.

The old prison system was not perfect. Its use of prisoner

trustees called “building tenders” required an unsustainably high

level of oversight from prison authorities. See id., at 55-57.

This problem played a role in the downfall of the Texas prison

system. See id., at 58-59. But the main reason for this decline

was judicial overreaching. The District Court, along with poor

administrators and “grandstanding state policymakers . . . helped

to put asunder, [the Texas system] by making the task of formal

prison governance inside Texas prisons much harder and much

less personally rewarding.” /d., at 69.

Prisons are very complex institutions where sudden changes

can have unforeseen, disastrous results. One of the main factors

in the problems caused by the Ruiz litigation was the District

Court’s failure to appreciate the unintended consequences of its

attempts to reform. See id., at 70. Such problems demonstrate

the wisdom of this Court’s command to defer to the prison

administrator’s evaluation of penological objectives. See O’Lone

v. Estate of Shabazz, 482 U. S. 342, 349-350 (1987). Courts,

which lack both the knowledge and resources to administer

prisons, are better suited to safeguarding basic principles; the

details of prison life are better left to the legislative and executive

branches. See Procunier v. Martinez, 416 U. S. 396, 404-405

(1974).

Any effort by a federal court to make prison life comparable

to that outside the prison walls is contrary to these principles.

The higher a court raises prisoner standards, the more detailed

will be its commands. Once a court’s order goes beyond basic

human needs, the border between proper and improper is much

more discretionary. A court will therefore have to give much

more detailed commands so that its view of what is proper is

implemented. This explains the extraordinary level of detail of

the orders in some prisoner rights cases, such as Ruiz and the

present case. See ante, at 9; post, at 18. Ruiz demonstrates that

such burdensome detail can make the difficult job of running a

prison intolerable. If left unchecked, the Ninth Circuit's

decision in the present case will provide further proof.

>

11

C. Libraries, Litigation, and the Prison System.

The level of punishment imposed by a prison can be influ-

enced by the access to courts accorded prisoners. This Court has

recognized a prisoner’s right to access to the courts. See Bounds

v. Smith, 430 U. S. 817, 824 (1977). If this right is sufficiently

extended, “meaningful access,” see ibid., becomes a subsidy to

prisoner litigation, as the state is required to bear more and more

of the prisoner’s litigation burdens. This level of access is

incompatible with the punitive needs of prison.

Subsidy to litigation undermines the prison system in many

ways. Some prisoners use litigation to harass prison officials

and extort favors from them. V. Fox, Correctional Institutions

77 (1983). Inmates have “essentially nothing left to lose,

including time, by prosecuting such actions and they may gain

something even if it is nothing but the satisfaction of harassing,

inconveniencing, and annoying those who have them in charge.”

Wycoff v. Brewer, 572 F. 2d 1260, 1267 (CA8 1978). Thus

litigation becomes a leisure activity for many prisoners. See

Fox, supra, at 77. The reality of this conclusion is underscored

by the fact that the overwhelming majority of prisoner-initiated

litigation is spurious. See Doumar, Prisoners’ Civil Rights

Suits: A Pompous Delusion, 11 Geo. Mason L. Rev. 1, 18

(1988); see, e.g., Lane v. Hutchison, 794 F. Supp. 872, 882

(E.D. Mo. 1992) (“the brewing of coffee in a kettle instead of a

coffee pot”); Walker v. Goldsmith, 902 F. 2d 16, 16 (CA9 1990)

(Sixth Amendment right to venire members whose names begin

with W, X, Y, or Z).

Less spurious litigation also undermines prison authorities.

The threat of inmate suits makes prison authorities reluctant to

administer punishment and makes prisoners more difficult to

control.

“(T]he prisoners’ rights movement has clearly affected

prison life. It has politicized prisoners, and it has provoked

a more militant inmate posture.... {| Because prison

administrators are fearful of inmate suits, they are sometimes

reluctant to enforce punishment. Prison guards have borne

the brunt of administrative reluctance to punish. Not

infrequently, guards report disciplinary violations only to

have the violations revoked by the warden.” Engel &

12

Rothman, The Paradox of Prison Reform: Rehabilitation,

Prisoner’s Rights and Violence, 7 Harv. J.L. & Pub. Pol’y.

413, 431 (1984).

The result is predictable:

“As the courts mandate changes in institutional policies, staff

and inmates lose respect for the authority of the prison

personnel. This limits the administrators’ ability to run the

prison effectively. The loss of authority, coupled with fear

of litigation and negative media coverage, has caused a shift

in the control that was historically reserved for prison

administrators and further threatens the lives of inmates and

guards. Daily, guards face the fear of being taken hostage

or being assaulted.” /d., at 433.

Inmate litigation is also expensive. While many suits are

dismissed at a relatively early stage, the unwillingness and

inability of most prisoners to settle early leaves the task of

screening cases to the courts, creating considerable administra-

tive burdens.

“The demands of the prisoners frequently are unrealistically

high and unlikely to succeed at all. They are often brought

because the prisoner faces little or no expense in bringing

them. Providing prisoners with free legal counsel for civil

suits can only serve to increase their willingness to bring

such suits.” Doumar, supra, 11 Geo. Mason L. Rev., at 19.

One study estimated that these suits cost over 100 million dollars

a year—over 10 percent of the total federal judicial budget at the

time. See Hanson, What Should be Done When Prisoners Want

to Take the State to Court, 70 Judicature 223, 225 (1987).

Prisoner suits have grown like wildfire over the last two decades.

Any expansion of this right will open the floodgates wider and

further burden prison administration.

Raising prisoner access to the courts can also erode citizens’

faith in the criminal justice system. Litigation is a very expen-

sive and time-consuming ordeal for the ordinary law-abiding

citizen. Many valid constitutional claims are too expensive for

the average citizen to raise in court. See, e.g., Powers v. Ohio,

499 U. S. 400, 415 (1991); Rose v. Mitchell, 443 U. S. 545, 558

(1979). It thus takes a relatively small improvement in the

nae *

13

prisoners’ ability to litigate to give them greater effective access

to the courts than average citizens. See Part III C post, at 20-21.

Placing the prisoners’ access above the law-abiding citizens’

can only reinforce the public’s impression that the prison system

insufficiently punishes prisoners. See Curniden, Hard Times, 81

A.B.A. J. 72, 73 (July 1995). A further weakening of public

confidence in our institutions is inevitable. Such a corrosion of

society is a high price to pay for the dubious benefits of encour-

aging overwhelmingly frivolous litigation.

II. The right to libraries found in Bounds v. Smith

is very limited.

The right to libraries found in Bounds v. Smith, 430 U. S.

817 (1977) needs careful handling. Excessive expenditures and

judicial intrusion overburden the prisons and alienate society.

See Part I C ante, at 11-13. For this reason, Bounds must be

construed narrowly. Fortunately, such construction is consistent

with this Court’s prisoner rights decisions.

Bounds v. Smith, 430 U. S. 817 (1977) was a limited break

from this Court’s previous treatment of access to the courts.

Prior authority primarily removed state barriers to prisoner

litigation. Thus, prison officials could not prevent prisoners

from filing federal habeas corpus petitions, Ex parte Hull, 312

U. S. 546, 549 (1941), states could not require indigent prison-

ers to pay for trial transcripts, Griffin v. Illinois, 351 U.S. 12,

20 (1956), or pay docket fees for appeals or habeas petitions,

Burns v. Ohio, 360 U. S. 252, 257 (1959); Smith v. Bennett,

365 U. S. 708, 708-709 (1961), and states could not prohibit

inmates from giving legal assistance to each other without the

State providing some alternate form of assistance. Johnson v.

Avery, 393 U. S. 483, 490 (1969).

One decision arguably required states to act positively to

encourage litigation. In Douglas v. California, 372 U. S. 353,

357 (1963), this Court required states to provide indigent

defendants with counsel for any appeal as of right from a

conviction. Douglas dealt with a defense against an action

initiated by the state; the appeal as of right is an inevitable,

logical conclusion to the state-initiated criminal conviction. This

14

relationship between the appeal as of right and the trial limited

Douglas. Discretionary appeals and habeas corpus were

different from Douglas because they were further removed from

the trial. See Ross v. Moffitt, 417 U. S. 600, 615-616 (1974);

Pennsylvania v. Finley, 481 U. S. 551, 557 (1987).

Bounds placed a greater affirmative burden on the courts to

aid inmate litigation than had previous decisions.* This Court

inferred from prior right to access cases that the state had an

affirmative obligation to make sure that inmates had “meaningfui

access to the courts.” Bounds, 430 U. S., at 824. Fulfilling this

obligation required a state to provide its prisoners with a law

library or an adequate substitute to assist inmates’ legal research.

Id., at 828.

Although Bounds went beyond prior cases, its journey was

short. It did not impose a right to general legal assistance.

Bounds was justified by a perceived need to help prisoners seek

“new trials, release from confinement, or vindication of funda-

mental civil rights.” /d., at 827. Thus the right to access was

not concerned with general civil litigation; it only protected

access to file civil rights claims or habeas corpus petitions. See

id., at 827-828. This limit was effectively mandated by prece-

dent, as Bounds drew heavily from Avery, supra, and Wolff v.

McDonnell, 418 U. S. 539 (1974), cases that dealt with access

5. The Bounds Court noted that its decision was “a reaffirmation of the

result reached in Younger v. Gilmore” 430 U. S., at 828. That case is

a two-sentence, per curiam opinion affirming a district court’s decision

to require a prison law library. Younger v. Gilmore, 404 U.S. 15

(1971).

In spite of this earlier decision, Bounds did make new law. It under-

stood that “Gilmore is not a necessary element in the preceding analysis”

in Bounds supporting the right to libraries. 430 U. S., at 828-829. The

“precedential weight“ of Gilmore that Bounds claimed to reinforce its

decision was small. See Metromedia, Inc. v. San Diego, 453 U. S. 490,

500 (1981). Gilmore “made no pretense of containing any reasoning at

all.” Bounds, 430 U.S., at 837 (Rehnquist, J., dissenting). The

opinion did not indicate what right it creates; it simply affirmed a lower

court's decision with a bare citation to Johnson v. Avery, supra. The

extensive reasoning it gave to support its position demonstrates that

Bounds did break new ground.

15

to file habeas petitions and civil rights actions respectively. See

id., at 578-579.

The Bounds Court was motivated by a fear that, without the

ability to do basic legal research, prisoners would not be able to

protect their fundamental constitutional rights. Bounds gave

access to file civil rights and habeas corpus actions “because they

directly protect our most valued rights.” 430 U.S., at 827

(emphasis added). The civil rights Bounds sought to protect

were “funcamental.” Jbid.

It is unlikely that there are any undiscovered fundamental

rights. The rights revolution that started in the 1960’s long ago

unearthed what was truly fundamental. For habeas corpus cases,

fundamental procedures are those “central to an accurate

determination of innocence or guilt.” Teague v. Lane, 489 U. S.

288, 313 (1989) (plurality). It is “unlikely that many such

components of basic due process have yet to emerge.” Jbid.

With decades of floodstage prisoner rights litigation under the

bridge, there is no reason to believe that prisoner rights law is

any different.

It requires relatively little research to bring to a court’s

attention a claim that a fundamental right has been violated.

These are “classic” examples of constitutional violations. See

ibid., quoting Rose v. Lundy, 455 U.S. 509, 544 (1982)

(Stevens, J., dissenting). The classics of consiututional law are

well-known and readily found through elementary research.

Therefore, a very limited library can satisfy Bounds.

An extensive law library is only necessary to engage in

innovative, groundbreaking litigation. Such innovation was not

contemplated by Bounds. Indeed, Teague, by strictly limiting

the retroactivity of new rules, precludes most innovation from

federal habeas corpus. Compare 489 U.S., at 310, with

Bounds, supra, 430 U. S., at 826, n. 14. Bounds does not

license prisoners to engage in legal innovation.

Bounds was further limited by what this Court expected

prisoners to do with their legal research right. The right to

access was not a right to competent prosecution of the habeas

corpus or civil rights action. If meaningful access meant placing

prisoners on or near equal footing with their state opponents,

then Bounds would have included a right to counsel; litigation is

16

too complicated for a nonattorney to pursue successfully. Cf.

Powell v. Alabama, 287 U. S. 45, 69 (1932). While appointed

counsel was sufficient to satisfy Bounds, it was not necessary.

Access to an adequate library was all that was necessary. See

Bounds, 430 U. S., at 830.

Bounds did not guarantee competent prosecution of the

action—it simply gave the prisoner the tools to present basic

claims to a court in a reasonable manner. Thus, “our main

concern here is ‘protecting the ability of an inmate to prepare a

petition or a complaint....’” /d., at 828, n. 17, quoting

Wolff, supra, 418 U. S., at 576. Once the prisoner made a

“meaningful initial presentation to a trial court,” id., at 828

(emphasis added), the trial court would presumably winnow out

the spurious petitions and try to find counsel for the few remain-

ing adequate claims. Bounds meant no more than to give a

prisoner's claim a somewhat better chance of catching the trial

court's eye.

Ill. The Ninth Circuit’s decision violates Bounds.

Whatever may be the proper limits of Bounds v. Smith, 430

U.S. 817 (1977), the decision below exceeded them. Its

contradiction of precedent, micromanagement of prisons, and

lavish expansion of inmate prerequisites provide a textbook

example of how not to decide an inmate rights suit.

4. Contradicting Precedent.

The most egregious error of the lower court was its direct

contradiction of Bounds. The Ninth Circuit held that the ADOC

must provide prisoners with both an adequate law library and

extensive assistance in legal research and drafting. See Casey v.

Lewis, 43 F. 3d 1261, 1270 (1994). Bounds never required

prisons to provide both amenities. “We hold, therefore, that the

fundamental constitutional right of access to the courts requires

prison authorities to assist inmates in the preparation and filing

of meaningful legal papers by providing prisoners with adequate

aw libraries or adequate assistance from persons trained in the

aw.” 430 U. S., at 828 (emphasis added); id., at 830, 832.

17

The Ninth Circuit justified its evasion of the Bounds disjunc-

tive by focusing on Bounds’ declaration that access to the courts

must be “meaningful.” See id., at 822. From this, the Ninth

Circuit inferred that the ADOC must provide legal assistance to

functionally illiterate and non-English speaking prisoners in

order to insure that these prisoners had meaningful access to the

courts. Casey, 43 F. 3d, at 1267. The court below supported

this position by stating that “[t]he reliance upon fellow prisoners

who are not trained in the law simply does not suffice as an

adequate substitute.” /bid.

This facile rationalization ignores the context of the prece-

dent it contradicts. The Bounds decision relied heavily on

Johnson v. Avery, 393 U. S. 483 (1969). See Bounds, supra,

430 U. S., at 823-824. In Avery, this Court held that the state

cannot prevent inmates from helping other prisoners file legal

papers unless the prison provides some adequate substitute for

legal assistance. 393 U.S., at 490. The Avery Court deter-

mined that barring “jail-house lawyers” would prevent the many

poorly educated or illiterate prisoners from having proper access

to the courts. See id., at 487. Implicit in this assertion is the

recognition that “writ-writers” can help get access for otherwise

incapable prisoners.

Bounds’ guarantee of meaningful access must be read in this

context. Avery demonstrated that this Court knew that many

inmates were incapable of doing legal research and writing. Yet

the Bounds Court had great faith in the legal capabilities of the

more sophisticated prisoners. “More importantly, this Court's

experience indicates that pro se petitioners are capable of using

lawbooks to file cases raising claims that are serious and

legitimate... .” Bounds, 430 U.S., at 826-827. Thus the

Bounds Court held that the right to meaningful access was

satisfied through libraries alone; this Court implicitly recognized

that “writ-writers” would give adequate help to the illiterate or

ignorant. The decision below cannot stand in light of this

reality.

B. Micromanagement.

One principle has remained constant through this Court's

prisoner rights jurisprudence—courts must defer to the expertise

and discretion of prison administrators to manage their prisons

18

See, e.g., Sandin v. Conner, 63 U. S. L. W. 4601, 4604 (slip

op., at 9) (June 19, 1995); O’Lone v. Estate of Shabazz, 482

U. S. 342, 353 (1987); Hewitt v. Helms, 459 U.S. 460, 467

(1983); Jones v. North Carolina Prisoners’ Union, 433 U. S.

119, 126 (1977); Meachum v. Fano, 427 U. S. 215, 225 (1976).

The problems of running a prison are extraordinarily difficult,

see Hewitt, supra, 459 U.S., at 467, and cannot be solved

through judicial decree. See Procunier v. Martinez, 416 U.S.

396, 404-405 (1974). As courts are ill-equipped to run prisons,

their administration must be left to the executive and legislative

branches. See Turner v. Safley, 482 U. S. 78, 84-85 (1987).

This is particularly important when federal courts are dealing

with state prisons; federalist principles require even greater

judicial deference. /d., at 85.

The meticulously detailed relief ordered by the Ninth Circuit

ignores these well-established rules. Instead of giving ADOC

officials the necessarily broad discretion, the court below chose

to pick such nits as the maximum mark-up for legal supplies

available for purchase by prisoners, Casey, supra, 43 F. 3d, at

1280 (Appendix A),° the types of supplies that must be available

for sale, ibid., the type and quantity of supplies provided to

indigent prisoners, id., at 1280-1281, the procedure and dead-

lines for processing a prisoner’s request for supplies or services,

id.. at 1281, the manner in which ADOC tnust advise staff that

prisoner legal materials may not be read during photocopying,

id., at 1280, the qualifications for librarians, id., at 1275, the

noise level of libraries, id., at 1276, the contents of forms for

requesting legal assistance, id., at 1274, the processing of these

forms. ibid., the selection number, training, and retention of

legal assistants, id., at 1276-1277, the legal training program for

prisoners, id., at 1277-1278, the times when the library must be

open, id., at 1273, and the manner in which the ADOC may

limit a prisoner's access to the library. /d., at 1272-1273. Even

such a trivial decision as to which publisher's edition of the

6 Appendix A of the Court of Appeals decision consists of the injunction

dered by the District Court. See id., at 1272 The Ninth Circuit

affirmed all of the District Court's order discussed in Part III B of this

brief See ante. at 3, note 2, for what aspects of the District Court's

rder that were reversed by the Ninth Circuit

19

U. S. Code to stock requires approval of the Court or Special

Master. /d., at 1276.

This is a dangerous precedent. Such detailed, intrusive

oversight can be poisonous to a prison system by robbing

administrators of the discretion to run safe and secure prisons.

See Hewitt, supra, 459 U. S., at 467. This is why “the safe and

efficient operation of a prison on a day-to-day basis has tradition-

ally been entrusted to the expertise of prison officials... .”

Id., at 470.

No amount of judicial wisdom can equal the expertise gained

through the actual running of a prison. See C. Cripe, Courts,

Corrections, and the Constitution: A Practitioner’s View, in

Courts, Corrections, and the Constitution 268, 279 (J. Dilulio

ed. 1990). The more detailed a court’s orders are, the more its

ignorance of prison life will be exposed. This can only add one

more “Herculean obstacle” to the administrator’s task. Pro-

cunier, supra, 416 U. S., at 405.

Legalistic detail has an even more dangerous effect. Close,

demanding oversight of a prison by a court saps the authority

needed to run the prison and administration. When the courts

interfere with prison management through judicial decree,

inmates doubt the authority of the staff, and the staff questions

the ultimate authority of the prison administrators. See Feeley

& Hanson, The Impact of Judicial Intervention on Prisons and

Jails: A Framework for Analysis and a Review of the Litera-

ture, in Courts, Corrections, and the Constitution, supra, at 17.

“This in turn leads to a decline in staff morale, an increase in

staff turnover, and an increase in the unruliness of clientele

groups.” Jd., at 17-18. The closer the judicial scrutiny, the

worse this problem will become. Thus federal courts must not

be allowed to be seen as the managers of prisons.

“(T]he involvement of federal courts in the day-to-day

management of prisons” simply squanders “judicial resources

with little offsetting benefit to anyone.” Sandin, supra, 63

U.S. L. W., at 4604. The Ninth Circuit has engaged in

precisely the form of micromanagement most recently con-

demned in Sandin. It is time for this Court to unshackle the

ADOC and give them the discretion they need.

20

C. Extreme Accommodation.

The final mistake of the Ninth Circuit was its extreme

accommodation of prisoner interests. These privileges give

prisoners greater access to a variety of legal resources than law-

abiding citizens. Such lavishness is contrary to the core beliefs

that motivate our criminal justice system. See Part I C ante, at

11-13.

One example of the Ninth Circuit’s excessive generosity is

the library hours it mandates. Except for university libraries,

which are usually not open to the public, it is extremely rare for

a library to be open 60-80 hours a week, let alone be open until

9:00 or 10:00 p.m. See Casey, supra, 43 F. 3d, at 1273,

qB.1.b. The Ninth Circuit has given Arizona prisoners easier

and more convenient library access than law-abiding citizens.

The exceptional level of legal assistance given to prisoners

is another luxury foreign to most private citizens. Prisoners are

entitled to trained law clerks, id., at 1274-1275, and either

attorneys, paralegals, or extensively trained legal assistants. /d..

at 1276-1277. At least some of these assistants must be bilin-

gual. /d., at 1277. The Ninth Circuit attempts to justify its

largesse by noting 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.” /d., at 1268.

This grossly overestimates the availability of resources to the

average citizen. The overwhelming majority of “family and

friends” have no training in the law.’ The present case demon-

strates that prisoners already receive the help of “a myriad of

social services.” The prisoners in the present case have been

represented by the National Prison Project of the ACLU. a well-

known “social service organization. ~

For the most part, law-abiding citizens do not recerve this

level of assistance. Some of the poorest may get some help from

legal aid programs—most will be left to ther own resources

7 Couwnse! for aeucus frequently cncownters Sopcicssty 8 Crem

attempting pro per legal research at the Caisforma Mate Lae rary

21

Because most jurisdictions grant attorneys cartel power over

providing legal services, see Rhode, Policing the Professional

Monopoly: A Constitutional and Empirical Analysis of Unau-

thorized Practice Prohibitions, 34 Stan. L. Rev. 1, 4 & n. 7

(1981), private citizens will not be able to rely on the relatively

inexpensive legal assistants given to the prisoners by the Ninth

Circuit. Those outside prison will have to go it alone, or incur

the often prohibitive expense of private counsel. See id., at 98.

The Ninth Circuit has thus given prisoners a luxury most of the

law-abiding public cannot afford.

| Imprisonment should not create new privileges for the

prisoner. Prison is about the loss of rights and privileges. See

Hudson v. Palmer, 468 U.S. 517, 524 (1984); Rhodes v.

Chapman, 452 U. S. 337, 347 (1981). The Ninth Circuit broke

this covenant with the public by granting prisoners a litigation

subsidy more extensive than anything given to the average

citizen. Our criminal justice system cannot abide such unearned

luxuries. See Part I A ante, at 5-8

D. The Logical Conclusion.

Taking the Ninth Circuit's reasoning to its logical conclusion

would require states to provide full-time counsel! for its prison-

ers. As noted earlier, the Bounds Court knew that many

prisoners were incapabie of doing legal work on their own. yet

it required only that states provide prisoners with libraries and no

other legal assistance. See ante. at 17 The Ninth Circuit's

expansion of “meaningful assistance” w include legal aid mus!

de read im this context

Bounds was mt so concerned about the prisoners prosecuting

ther imgation successfully. « merely wanted © msure tha!

prisoners could presem thew serious clamns to the Destrict Court

See Bounds v Smuth. 490 U S$ 817. 828 & nm 17 (1977) The

Ninth Circun was much more concerned with heiping prisoners

better prosecute ther achons

In noting the advantages of the legal assistance program. the

court Delow stated that such asswtance wouk’ cad © = more

efficsent and skillful handling of prisoner cases. the avoudance o*

éucapimary profiems assocwied wah ere weruers. ax te

medwnon of many prisoner compiamt that wouk’ otherwise

22

burden the courts.” Casey v. Lewis, 43 F. 3d 1261, 1268 (CA9

1994).* Such reasoning leads down the slippery slope of a

general right to counsel. The Ninth Circuit’s comment about

relieving its own burden, id., at 1268, n. 6, is especially

disturbing. The Constitution does not authorize the federal

judiciary to impose a financial burden on a state’s taxpayers for

the mere purpose of easing its own staffing problems.

If courts are serious about making prisoners effective

litigators, as the Ninth Circuit is, then prisoners must be given

a right to appointed counsel. No amount of help from paralegals

or legal assistants will enable a lay prisoner to represent himself

nearly as competently as could an attorney. The attorney's

knowledge, training, and experience provide a near-overwhelm-

ing edge over the frequently ignorant and ill-educated prisoner.

See Powell v. Alabama, 287 U. S. 45, 69 (1932). The actions

protected by Bounds are no less complicated than the criminal

trial in Powell. Habeas corpus is one of the most complex areas

of the law. As one judge noted, “[h]abeas corpus is as unfamil-

iar to a lot of lawyers as atomic physics.” Godbold, Pro Bono

Representation of Death Sentenced Inmates, 42 Rec. AB City

N.Y. 859, 863 (1987). Taken to its logical conclusion, the

Ninth Circuit’s definition of meaningful access would require

states to provide counsel to guide prisoners through this thicket.

This goes far beyond what this Court has been willing to give

prisoners. In Pennsylvania v. Finley, 481 U. S. 551 (1987), this

Court explicitly refused to give prisoners such expansive rights.

“We have never held that prisoners have a constitutional right to

counsel when mounting attacks upon their convictions [citation],

and we decline to so hold today.” /d., at 555. The states are

not required “to duplicate the legal arsenal that may be privately

retained... but only to insure the indigent defendant an

adequate opportunity to present his claims fairly ....” /d., at

8 As the court below noted, Bounds made similar claims in support of

giving prisoners a legal assistance program. See Bounds, supra, 430

U_ S., at 831. But this was merely an “alternative” to the adequate

remedy of law libraries. Jd, at 830. More importantly, the same

passage touting the advantages of assistance programs contemplates

serving the legal needs of prisoners through a nationwide staff of

lawyers. /d., at 831-832

23

556, quoting Ross v. Moffitt, 417 U. S. 600, 616 (1974). The

court below has started down a road that will lead to placing this

type of burden on the states. It is up to this Court to put the

Ninth Circuit back on the right track.

IV. Bounds needs to be clarified.

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

The confusion in the lower courts over whether meaningful

access requires both a library and legal assistance, compare

Hooks v. Wainwright, 775 F. 2d 1433, 1436-1437 (CA11 1985),

with Casey v. Lewis, 43 F. 3d 1261, 1267-1268 (CA9 1994),

demonstrates that Bounds has some tensions that need to be

resolved. Furthermore, the decision below shows a broad

misunderstanding of what Bounds means. See Part III ante, at

16-23. Clarifying Bounds should limit future misinterpretation.

This Court should therefore make clear that Bounds’

guarantee of meaningful access, see 430 U. S., at 828, is very

limited. The term “meaningful” cannot drive the decision.

Meaningful access does not mean a guarantee of the ability to

conduct effective litigation or push the envelope of legal theory.

Such a guarantee would place an intolerable burden on the states,

eventually requiring them to supply prisoners with counsel. See

Part III D ante, at 21-23. This is far beyond what this Court has

been willing to compel states to give prisoners. See Pennsyl-

vania v. Finley, 481 U. S. 551, 556-557 (1987).

Instead, meaningful access means giving the prisoners the

tools to present fundamental civil rights and habeas claims to the

trial court.’ The Bounds Court had great confidence that

prisoners could make adequate use of law libraries. See 430

U. S., at 827. This assessment is informed by the inevitable

presence of “writ writers” in every prison who will help fashion

petitions for those who cannot do so themselves. See Part III A

ante, at 17. States must only give prisoners the tools to sue

9. Odd as it may sound to refer to nonfundamenta! constitutional rights,

such rights do exist in the case law, whether or not they are really in the

Constitution. See Rose v. Lundy, 455 U.S. 509, 543, n. 8 (1982)

(Stevens, J., dissenting).

24

them; they need not show prisoners the best avenues of attack.

Thus Bounds is satisfied by providing prisoners with a library

that will let them bring fundamental claims to the attention of a

court.

This Court should also reiterate the deference owed to the

decisions of prison administrators in fulfilling Bounds. This

Court has noted in other contexts that the decisions of prison

administrators are owed considerable deference. See, ante, at

17. A clear statement that the Ninth Circuit’s micromanagement

of prisons is improper is once again necessary. Cf. Sandin v.

Conner, 63 U. S. L. W. 4601, 4604 (June 19, 1995).

This means that the lower courts should keep their scrutiny

of state prisons to a minimum. What relief courts can order

should be in the form of broad goals, with the details left to the

discretion of prison administrators. Only after an affirmative

showing of an administrator’s lack of good faith should a court

intervene in the details of running the prison.

Bounds provides an example of this deference. Once the

District Court found that North Carolina had to provide a prison

library, it let the state come up with its own plan for implement-

ing the order. See Bounds, supra, 430 U. S., at 818-819. This

plan was affirmed by the District Court with only minor adjust-

ments. See id., at 820, n. 6. The Court of Appeal affirmed with

a similarly light touch. See id., at 820. This Court did not

intrude on North Carolina's exercise of discretion. While it

questioned some of the library choices, see id., at 819-820, n. 4,

it upheld North Carolina's minimally changed plan. See id., at

833.

Federalism places important constraints upon a federal

court's involvement with prison management. See Turner v.

Safley, 482 U. S. 78, 85 (1987). When a federal court attempts

to set the prices of prison legal supplies, see ante, at 18, it

affronts the dignity of both the state of Arizona and the federal!

courts. Perhaps most importantly, the appointment of a Special

Master to peer majestically over the prison administrator's

shoulder, cf. Lewis v. Jeffers, 497 U. S. 764, 780 (1990) should

be clearly designated a drastic measure to be taken only in

extreme circumstances. The judicial takeover of an executive

function, and a state one at that. strikes at the heart of both

25

federalism and the separation of powers. This Court must put an

end to it.

Lacking both the sword and the purse, courts were supposed

to be the least dangerous branch of government. See The

Federalist No. 78, p. 465 (C. Rossiter ed. 1961) (A. Hamilton).

This should be particularly true in prisoner rights cases. The

ecology of a prison is delicate; too much change can be danger-

ously disruptive to the prison’s balance of power. See C. Cripe,

Courts, Corrections, and the Constitution: A Practitioner's

View, in Courts, Corrections, and the Constitution 268, 276-277

(J. Dilulio ed. 1990). As this Court understands, “the problems

of prisons in America are complex and intractable and, more to

the point, they are not readily susceptible to resolution by

decree.” Procunier v. Martinez, 416 U.S. 396, 404-405

(1974).

Prisons were once deteriorating national disgraces. Then a

nationwide group of dedicated reformers fixed the bulk of these

probiems. One might think that it was federal judges that led

this change for reform. But that would be wrong. America’s

prisons were not cleaned up by the federal judiciary, but by a

host of prison administrators between 1940 and 1970.

J. Dilulio, No Escape 150 (1991). These landmark reforms

made vast improvements in the lives of prisoners well before the

prisoner rights revolution of the 1970's:

“One might suppose that judges began to intervene in pena!

administration in the 1970s because, relative to previous

decades, prison and jail conditions were deteriorating. In

fact, however, just the opposite is true: Judges started to act

as wardens at a moment when, throughout most of the

country, prison and jail conditions were no worse than

before—in fact, in most cases they were demonstrably

better.” Ibid

While it is umpossible to turn back the clock and put the

geme of prison lingation back mm the bomie, this Court can limit

future abuses. It is not the prisoner who needs protection from

the prison amymore, now i is the prison that tus Court must

protect from overzealous federal pudges

26

CONCLUSION

The decision of the Ninth Circuit should be reversed.

August, 1995

Respectfully submitted,

CHARLES L. HOBSON

Attorney for Amicus Curiae

Criminal Justice Legal Foundation

Attorney of Record