HOW IT GOT
When the U.S.
Supreme Court first declared in 1943 that all inmates have a
constitutional right of access to the courts, no one could say exactly
what this right encompassed or what preserving it would cost.
However, whatever else this right entails, the ability of inmates to do
meaningful legal research is an essential component of
Constitutionally required "inmate access to courts."
After 50 plus years
of litigation and lawmaking, “court access” means very different things
for different kinds of inmates, and new laws and cases change the rules
from day to day. About the only thing agreed on is that this right is not
going away anytime soon.
As long as inmate
access to the courts is recognized as a right, agencies must either
establish programs to support this right or allow the courts to impose
access programs on them.
THE IN-HOUSE OPTION...
Agencies choosing to
develop in-house access programs must constantly adapt procedures and
provide new resources to meet the shifting standards for each type of
inmate in custody. This typically involves establishing and maintaining a
law library of bound volumes and related support equipment such as copiers
and typewriters; or a number of computer access terminals with either
local or network electronic library subscriptions. Both of these require
the additional commitment and costs of personnel needed to escort
inmates to and from the law library and secure them while they are there;
and the additional expense of replacing books and/or equipment damaged by
inmates. Even full compliance does not always insulate these agencies from
inmate grievances, legal challenges and court orders. Responses to these
procedures result in even greater expenditures of time and money.
THE JUDICIAL OPTION...
Agencies without a program for inmate legal research are open to
sanctions including fines and court-imposed law library requirements.
Many court-imposed inmate access programs do not offer clear means to
review, amend or replace programs as changes in the law, inmate
population, or agency resources occur. This can lead to agencies working
under multiple, sometimes contradictory, court orders.
While Congress has recently limited the power of federal courts to
preemptively impose inmate access programs, many agencies are already
struggling under court-imposed programs ordered up to thirty years ago and
Fortunately, there is a way out of this "no-win" situation...