Memorandum of Law: Eliminating Prisoner Legal Services Potentially Unconstitutional

Jun 3rd, 2013
by Jeanette Doran

Memorandum of Law:

Eliminating Prisoner Legal Services

Potentially Unconstitutional

North Carolina Institute for Constitutional Law[1]

May 23, 2013

The North Carolina Senate’s budget proposal, SB 402, raises serious concerns over the defunding of North Carolina Prisoner Legal Services (NCPLS).  As explained by N.C. Dept. of Corrections Division of Prisons, Policy & Procedures .0202 (cited herein as DOC Policy), the North Carolina Department of Corrections (DOC) currently contracts with NCPLS to provide legal services that will ensure prisoners have access to courts. This policy plays an important role in meeting the State’s constitutional obligation to ensure that prisoners have access to the courts. While budget proposals to eliminate funding for NCPLS are part of a broad effort to save taxpayer dollars, lawmakers should proceed cautiously and with a full understanding of the constitutional stakes. Ultimately, efforts to eliminate funding for NCPLS may prove to be pound wise and penny foolish. This paper explains what the constitution requires in terms of legal aid for prisoners, and evaluates the constitutionality or unconstitutionality of efforts to eliminate NCPLS.

A.             Constitutional Rights of Prisoners to Counsel and Legal Assistance

Right to Counsel.  Prisoners have a right to counsel during all adversarial criminal proceedings.  The Sixth Amendment establishes a right to counsel, stating: “In all criminal prosecutions, the accused shall enjoy the right….to have the assistance of counsel for his defense.”  U.S. Const. amend. VI.[2] Although NCPLS does not provide representation to defendants in direct appeals, the Sixth Amendment provides an important backdrop against which other, equally compelling constitutional guarantees, should be considered, particularly the right to access to the courts.

Right of Access to the Courts.  The Constitution requires states to provide a minimum level of legal assistance to prisoners to ensure access to the courts.  The right is based on a combination of: 1) the U.S. Constitution’s First Amendment right “to petition the Government for redress of grievances[;]” 2) the right to the privilege of the writ of habeas corpus of Article I, Sec. 9; and 3) the Due Process Clauses of the Fifth and Fourteenth Amendments.  See Ryland v. Shapiro, 708 F.2d 967, 971 (5th Cir. 1983) (citing NAACP v. Button, 371 U.S. 415 (1963)); see also Barbara Belbot and Craig Hemmens, The Legal Rights of the Convicted 49 (2010).  This right of access to the courts generally requires the state to take affirmative steps 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. The right extends to direct appeals, habeas corpus applications, and civil rights lawsuits. Younger v. Gilmore, 404 U.S. 15 (1971); John W. Palmer, Constitutional Rights of Prisoners, Eighth Edition § 7.10, 147, 160 (2006).

B.             What Assistance Does the State Have to Provide Inmates?

The U.S. Supreme Court has provided guidance on what states are required to do to protect the right of access to the courts for prisoners.  For instance, the Court has required:

·      That records of court proceedings, such a transcripts, be provided free of charge for indigent persons appealing a conviction. Griffin v. Illinois, 351 U.S. 12, 20 (1956). 

·      That docket fees be waived for indigent prisoners for appeals and habeas corpus applications. Burns v. Ohio, 360 U.S. 252, 257 (1959).

·      That states either allow so-called “jailhouse lawyers” (inmates who assist fellow prisoners with preparing and filing legal papers) or provide reasonable alternatives for the prisoners to obtain legal assistance. Johnson v. Avery, 393 U.S. 483 (1969).[3]

·      That “prison authorities [] 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.” Bounds v. Smith, 430 U.S. 817, 828 (1977) (originating in North Carolina).[4] 

Although actual harm must be shown to demonstrate standing in a challenge to the inadequacy of a prison law library system, Lewis v. Casey, 518 U.S. 343 (1996), North Carolina’s prison law library system has already been deemed constitutionally inadequate.  On remand and subsequent appeal in Bounds, the United States Court of Appeals for the Fourth Circuit upheld a ruling of the district court that North Carolina’s prison library system was still constitutionally inadequate after more than 13 years of litigation.  Smith v. Bounds, 813 F.2d 1299 (4th Cir. 1987). The district court directed the state to provide “some form of attorney assistance” and to do so “through attorneys who were to be hired and administered by Prison Legal Services of North Carolina.”  Id at 1301.[5]  Thus, by following the court’s order to rely on NCPLS, the State of North Carolina has avoided micromanagement by federal judges or the federal government.

C.            Analysis: Dramatic Defunding of NCPLS Could Be Unconstitutional


Funding changes that would put at risk a prisoner’s right to counsel for a first, direct appeal as of right would run afoul of the Sixth Amendment. Likewise, funding or policy changes that would altogether eliminate professional legal services for inmates for civil rights or other post-conviction challenges would call into question whether North Carolina is impairing the right to meaningful access to the courts. At the absolute minimum, the State must provide an adequate law library system. But, that minimum cannot be satisfied by merely providing law books and Internet access.[6]  Several practical considerations color the effectiveness of providing a law library alone and weigh against finding it sufficient for constitutional purposes. Consider:

·      Professional legal services must be provided to illiterate and non-English speaking prisoners who, for obvious reasons, could not utilize a law library system. 

·      Untrained prisoners filing legal papers pro se could result in significant administrative burdens and financial costs.

·      Law libraries or computer systems carry additional costs both to establish and maintain.

Moreover, it should serve as a warning that North Carolina’s prison library system, as noted above, has already been deemed constitutionally inadequate.  Eliminating NCPLS puts the state at risk of protracted and expensive litigation that would be avoided by maintaining NCPLS, an organization that reduces frivolous lawsuits by pro se inmates, pursues legitimate claims, and relative to the expenses of pursuing a system without any trained professionals, is a cost effective means of satisfying the 1977 Supreme Court decision in Bounds.

D.            Conclusion

The right of prisoners to counsel in adversarial proceedings, including first appeals as of right, and the right of access to the courts is well established. Eliminating the use of NCPLS in favor of a system of prison law libraries, however, is a policy that runs the risk of being unconstitutional if the libraries are inadequate, and comes with its own costs and practical limitations. While eliminating funding for NCPLS may save money in the short run, the priceless value of liberty and fairness as well as the long-term expenses of litigation may prove that defunding NCPLS is penny wise and pound foolish.

[1] For more information, please contact Jeanette Doran, executive director, at or Tyler Younts, staff attorney, at Both attorneys can be reached at 919-838-5313.

[2] See also Argersinger v. Hamlin, 407 U.S. 25 (1972) (threat of actual imprisonment triggering right to counsel); Gideon v. Wainwright, 372 U.S. 335 (1963) (requiring states to provide counsel to indigent defendants); Johnson v. Zerbst, 304 U.S. 458 (1938) (right to counsel extending to all federal felony trials); Powell v. Alabama, 287 U.S. 45 (1932) (right to counsel in federal felonies applying during pre-trial period).

[3] This protection was extended to civil rights suits in Wolff v. McDonnell,418 U.S. 539 (1974).

[4] The Bounds Court also noted the practical advantages of legal assistance programs over law libraries such as efficiency, avoidance of disciplinary issues with writ writers, mediation and resolution of complaints outside of court, and facilitating rehabilitation by convincing prisoners they have been treated fairly. 430 U.S. at 830-32.

[5] These court orders are arguably still in effect.  See Smith v. Bounds, 610 F. Supp. 597 (1985); Smith v. Bounds, 657 F. Supp. 1327 (1985).    

[6] Under current regulations, jailhouse lawyers are prohibited and law libraries and legal materials are not provided to prisoners. DOC Policy .0203 & .0209.