Lewis C. Zimmerman, SR-SIS
Prisoners have long presented a special challenge to law librarians. In his 1970 essay, Werner O. James declared that law librarians must confront the needs of prisoners or “live with their consciences, knowing that they are not adequately providing a needed service and that they are not doing anything about it.” Law Library Service to Prisoners–The Responsibility of Nonprison Libraries, 63 Law Libr. J. 231, 240 (1970).
Since 1971 law libraries have been the center of nearly constant legal disputes over prisoner’s right to conduct legal research. The two United States Supreme court cases Bounds v. Smith and Lewis v. Casey have shaped the landscape of these debates. Understanding these cases and how they define what librarians can do to provide legal information is vital for librarians seeking to answer James’ call to our consciences.
Bounds v. Smith
Bounds v. Smith, 430 U.S. 817 (1977) recognized that prisoners have a right to meaningful access to the courts. Bounds stood for the proposition that a law library, or a reasonable substitute, is necessary to effectuate that constitutional right. Justice Marshall declared:
We hold, therefore that the fundamental 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 law libraries or adequate assistance from persons trained in the law. Id. at 828
The Bounds opinion called for an expansive view of a prisoner’s right to information. The court seemed to envisage a broad right to place prisoners on equal footing with lawyers. A prisoner was to be provided with resources adequate to determining “… whether a colorable claim exists, and if so, what facts are necessary to state a cause of action.” Id. at 825.
In the wake of Bounds, the federal courts rushed to fill in the details of the right to legal information. The lower courts ruled that this right meant libraries must be realistically available to prisoners. In practice this meant a whole range of new requirements, from reasonable hours to trained legal assistants. Kaufman v. Schneiter, 474 F. Supp. 2d 1014 (W.D. Wis. 2007), Gluth v. Kangas, 773 F. Supp. 1309 (D. Ariz. 1988).
Lewis v. Casey
Twenty years later Lewis v. Casey, 518 U.S. 343 (1996) reexamined this expansive right. Justice Scalia, writing for an eight justice majority, chided the Bounds court for suggesting a right to “discover grievances, and to litigate effectively once in court.” Id. at 354. Instead of the broad right to legal information implied by Bounds, the Lewis opinion charted a much more narrow course.
Lewis held that the right to access the courts was limited to the right to “attack their sentences, directly or collaterally, and in order to challenge the conditions of their confinement.” Id. at 355. The Lewis opinion sharply criticized the years of lower court decisions under Bounds and declared that inmates need not be given the ability to transform themselves into “litigating engines.” Id. at 355.
Perhaps more importantly, Lewis limits the remedies available to prisoners denied effective access to the courts. The court clarified that Bounds required actual harm to the prisoner’s rights and that any remedy must be limited to that specific harm. The Lewis opinion definitively rejected the proposition that there was a right to “physical access to excellent libraries.” Id. at 356. Rather, prisoners would only have the right to research specific remedies to their own personal and non-frivolous injuries.
The effect of Lewis on lower court decisions was swift and lasting. Lower courts have continued to reject claims that merely allege inadequate law libraries. Legal complaints asserting a general lack of access are regularly found inadequate. See Johnson v. Little, (D. Nev. 2017); Jackson v, Feliciano, 2017 WL 5712596 (W.D. Mich. 2017). The free standing right to law library services in prisons is dead and buried.
What are law librarians to make of these cases? What role should the law library play in prisons? How should librarians advocate for imprisoned patrons? A clear-eyed understanding of Bounds and Lewis is necessary before librarians can answer these questions. In the light of Lewis, librarians cannot rely on legal demands and must turn to other avenues of persuasion.
There is a larger and more fundamental argument for law libraries in prisons. Libraries provide their patrons with new ways to think about their place in the world. Law libraries are no different. A full law library charts the way society deals with its hardest questions. Law l libraries answer questions important to everyone. What is going to happen in my divorce? What is the best way to organize my new business?
Prisoners have an even greater need for this kind of information. Their lives in prison and their futures out of it are more uncertain and more subject to the law than any other group of people. They naturally have a greater need for full access to legal information. A desire to discover their legal rights and obligations is healthy and should not be frustrated.
Law librarians can confront the grim assessment of Lewis that inmates are disruptive engines of litigation. They should recast the prisoners’ understanding of the law as what it remains for the rest of society: a tool of reconciliation. This is the hard lesson of Lewis for law librarians. We must, for the sake of prisoners, convince the state that prison law libraries can work not only to fulfill the minimum duty of access to the courts but can educate and elevate the prisoner. Access to a full law library will fuel the engine of rehabilitation and make the prisoner better able to rejoin society.