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Washington Court Access Suit Settled

In the April, 1994, issue of PLN we reported the filing of Scott v. Peterson which challenged numerous aspects of court access for Washington state prisoners. On October 31, 1995, most of the suit was settled and the settlement terms were effective November 30, 1995. The settlement is between five named plaintiffs and DOC officials but affects all prisoners in Washington. It is important to note that this is not a class action suit and no prisoners are foreclosed from suing over court access issues. The agreement in this action can only be enforced for a twenty-four month period. Whether the DOC will abide by its terms after that remains to be seen.

Copies: The most important win in the case was that the cost of legal copies was reduced from 20 to 10 cents per page for "all copies of legal pleadings to be filed and/or served in conjunction with the inmate's case." All legal copies must be made in the prisoner's presence and will not be made for anyone else. If the copies cannot be made at the time of request the prisoner can either return at "a reasonable, specific time for the copying to be accomplished" or waive having the copies made in his presence. In the past Washington prison officials have made copies outside prisoners' presence with the not surprising result that there was no confidentiality of the materials.

Prisoner to Prisoner Assistance: The settlement pretty much reiterates already existing DOC policy in that prisoners can confer with each other in the research and preparation of legal pleadings but cannot represent another prisoner in any legal matter. No payment for legal assistance is permitted and prisoners found to be in violation of this will be subject to disciplinary action. Prisoners authorized access to each other can assist other prisoners in the preparation of legal documents in the law library. Prison wardens can limit the time, place and manner in which prisoners assist each other in legal matters outside the law library and this may be limited to places such as day rooms.

The settlement provides that prisoners who are illiterate, unable to read or write English or otherwise disabled will be referred by the prison law librarian first, to authorized attorneys, then to trained law clerks and finally to prisoners with legal skills who will work with the prisoner without compensation. Prisoner law clerks in Washington receive no form of training regarding legal matters, nor are there any prerequisites (such as literacy or legal knowledge) before a prisoner is hired as a law clerk.

"The law libraries will establish 'Brief Banks' in which any inmate can file a copy of any legal pleading which might be of help to another inmate(s). The briefs may be filed at any of the institutional law libraries. The librarian shall remove the names of the parties and index them accordingly, e.g., habeas corpus petitions, civil rights actions, sanctions memos, extension memos, etc. In cases where an issue has been decided by the court, the inmate may elect to leave the parties' names on the court decision or on the brief(s) pertaining to that decision submitted to the brief bank. Law librarians should maintain a list or index of materials within the brief bank. The list/index will be available for inmate review at the main and satellite libraries and to segregated inmates."

Legal Mail: The settlement provides that prisoners can now mail their legal mail from either their living unit or the prison law library. All units will have mailboxes allowing the mailing of 8x11 envelopes. The procedure is that the prisoner gives the legal mail to the staff person who inspects it to ensure it is legal mail and has no contraband; the prisoner seals the envelope and the staff person signs over the sealed flap and then logs the mail out in the prisoner's presence.

Law Libraries: This is the weakest aspect of the settlement. It merely states: "Institutions within the Division of Prisons will make reasonable adjustments to provide constitutionally sufficient time and space for inmates making use of the law library." This is so vague as to be meaningless.

Video Tape Viewing: Several years ago Washington state courts began experimenting with videotaping criminal trials instead of transcribing them by traditional means. The result is that in many cases there is no written transcript, instead there is a video tape of the proceedings which must be viewed by prisoners preparing pro se supplemental briefs on appeal or collateral review. The settlement provides that the prison warden or his designee will retain and store any incoming legal videotapes and provide prisoners with a video player to view the tapes. Prisoners will request to view the tapes via their counselor. The VCR, tapes and headphones will then be logged out to the prisoner so they can view the tape in their cell or other assigned area.

Attorney Calls: Prison phones in Washington are recorded and monitored. To make what is purported to be an unrecorded call prisoners must submit a form requesting to make an attorney call. The settlement requires that these forms will be available in every living unit. The attorney call forms in the Intensive Management Units (IMU) are to be changed to say: "Absent special arrangements, all calls limited to 10 minutes, 3 calls per week." And the statement that it is the prisoner's responsibility to conduct their legal calls during scheduled "out of cell activity time" will be deleted.

Control Unit Legal Access: Little was done to provide legal access for prisoners in IMU. The settlement only states that IMU prisoners will have access to the brief bank and the IMU handbook will be rewritten to conform with DOP Policy 590.500 which governs court access.

Transfers: The Washington DOC, like most other prison systems, routinely retaliates against prisoners who exercise their right of court access by transferring them to different institutions, which usually serves to moot any claims for injunctive relief. The settlement provides: "1) In cases concerning an inmate's proposed or planned transfer, consideration should be given to the effect that transfer would have on that inmate's pending legal actions. 2) If an inmate informs the administration of a court imposed deadline or can demonstrate prejudice to his/her case, the administration should provide priority handling of that inmate's personal legal documents/papers during the transfer."

The agreement went into effect on November 30, 1995, and has a 24 month enforcement period. Disputes over the DOC's non compliance with the settlement can be resolved through mediation or by asking the federal court to enforce it. The settlement did not address the issue of "whether an inmate can prepare, and possess while preparing, the personal legal documents/papers of another inmate(s)." On Jan. 26, 1995, Judge Bryant granted the prisoners' summary judgement motion on this issue. We will report details in a future PLN .

Michael Gendler, the Seattle attorney who litigated the case on behalf of the prisoner plaintiffs, received $45,000 in attorney fees. Throughout the litigation Mr. Gendler consulted with numerous jailhouse lawyers in the Washington DOC (including the editors of PLN ) about the practical effects of this settlement. While not the best settlement, given the state of the case it was probably the best that could be done on the facts of this case. In my opinion, the portion on photocopying alone was a significant advance over current practice. See: Scott v. Peterson , Case No. C92-5232B, US District Court, Tacoma, WA. Readers will note this is an unpublished settlement that applies only to Washington state prisoners.

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Related legal case

Scott v. Peterson