Pace Law School Professor and an expert on rights of prisoners, Michael B. Mushlin, weighs in on a proposed New York regulation, I.D. No. CMC-14-13-00010-P regarding inmate access to legal reference materials. The notice of the proposed regulation was published on April 3, 2013 and is available here starting on page 5. Public comment will be received until 45 days after publication of the notice.

BY MICHAEL B. MUSHLIN

In a society that operates under the rule of law access to the courts is the most basic right.  Without the accountability that courts provide, rights that exist on paper can easily become only that. This is especially true for incarcerated persons for whom the right of access to the courts is the “foundation of every other right an inmate has.”  Michael B. Mushlin, Rights of Prisoners, §12:1 (4th ed. 2010).  It has long been recognized that an important way to implement the right is to provide access to legal materials contained in law libraries.  Bounds v. Smith, 430 U.S. 817 (1977).  See also, Lewis v. Casey, 518 US. 343 (1996) (inmates who lose claims or defenses that they might win if they had access to legal materials have been deprived of a constitutional right of access to the courts).  The New York State Commission on Corrections has implemented the right of access to the courts by requiring all jails in the state to maintain small collections of essential legal materials governing New York State criminal law and some basic information about the constitutional rights of incarcerated people. The Commission is empowered under New York law to set standards for New York’s many jails holding pretrial detainees and persons serving misdemeanor sentences,

Now, however, the Commission proposes to abandon this simple requirement by amending its rule to eliminate the requirement that these legal materials be on site. Under the proposed amendments people who are held in these local facilities that choose to eliminate these small libraries will be limited to submitting written requests for material from other libraries with no guarantee the material will be delivered until the passage of three days following the request. (Alternatively, and less harshly, jails could establish computer terminals with online access but this would be limited only to New York state case law digests).  To make matters worse in a little noticed addition to the proposal, the Commission seeks to eliminate the obligation that inmates be given access to typewriters on which to prepare legal papers. In its place the Commission would only require that inmates be given access to “black ink pens” with which to write their legal submissions.  It is obvious, however, that typed or printed papers are more accessible to the judiciary than are handwritten document.  See, e.g. United States ex rel. Wolfish v. Levi, 439 F. Supp. 114 (S.D.N.Y. 1977) (noting that typed papers “leap more vividly than handwritten ones to the watery judicial eye.”). These limitations on essential rights of incarcerated persons are imposed to achieve a small savings of a mere $5,000 per year per jail. The price tag for deprivation of constitutional rights has rarely been set so low. One can only hope that the Commission will on reflection abandon this proposal to limit the right of access to the courts.