# Amicus Curiae Brief — Lewis v. Casey

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0589%3A13

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1996
- **Citation:** 518 U.S. 343

## Text

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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 @.: | | 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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0589%3A13. Public record. Not legal advice.