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Lawsuits Filed Over South Dakota Replacing Prison Law Libraries with Tablets

by Derek Gilna

Two federal lawsuits were filed by South Dakota prisoners in May and June 2018 against the state Department of Corrections (DOC) over the introduction of tablet computers to replace prison law libraries and paralegals and attorneys who assist prisoners. Billed as a cost-saving measure, the tablets are prone to malfunctions, one lawsuit complained, while the other alleged the use of the tablets resulted in a violation of the Americans with Disabilities Act (ADA).

In September 2017 the DOC closed its prison law libraries and canceled its legal assistance contracts when the state’s 3,000 prisoners each received a free tablet computer – one that provides access to legal research services through Lexis/Nexis. The tablets also allow longer phone calls and text messaging with people on the outside, and permit prisoners to purchase subscriptions to movies and music.

One of the lawsuits, filed by prisoner Rex Gard, argued that the Lexis/Nexis access has been, “despite frequent assurances that repairs were underway, only intermittently active since 2017, leaving many inmates with no access to the case law and statutes theoretically available on the tablets.” See: Gard v. Fluke, U.S.D.C. (D. SD), Case No. 5:18-cv-05040-JLV.

The other complaint, brought by prisoner Winston Brakeall, alleged that closing the law libraries had deprived him of important legal advice, and that “but for the denial of access to legally-trained individuals and an adequately sourced legal library, [he] would have been advised or discovered that the same factual allegations regarding his bed and cell conditions would support a viable failure-to-accommodate claim under Title II of the ADA.” See: Brakeall v. Kaemingk, U.S.D.C. (D. SD), Case No. 4:18-cv-04056-LLP.

The pair of lawsuits, which both remain pending, followed numerous complaints from prisoners who claimed system glitches involving the tablets had prevented them from “adequate, effective, and meaningful” access to the courts.

South Dakota DOC Secretary Denny Kaemingk said the tablets would save $135,400 a year that had been spent on legal aid services, along with another $140,000 in annual savings from closing the prison law libraries. Other than Rhode Island, South Dakota had been the only state to offer such legal aid services, Kaemingk added – services initiated under a 1999 federal consent order, after the DOC had blocked prisoners’ access to legal materials.

“This has been a very expensive thing for taxpayers,” Kaemingk said.

The state’s cost for the new tablet system, introduced by Global Tel*Link (GTL) and Lexis/Nexis, was capped at $54,720 for the first year. But prison officials are also developing a new contract to pay attorneys by the hour to continue providing legal advice to prisoners – which Kaemingk expected to be “very minimal.”

Lexis/Nexis and GTL collect fees from prisoners and their families for some of the tablet services. Designed to give prisoners access to legal resources needed to file appeals, along with other civil documents – including divorce and child custody petitions – the system also provides fee-based access to music, e-books and games. All of the services operate on a “closed system” that does not provide prisoners with access to the Internet.

According to Gard’s lawsuit, technicians from Lexis/Nexis who visited his prison said not much could be done to eliminate glitches, and service cannot be improved without installing new antennas and other network equipment. Another problem, they said, was that the software is designed to work best on desktop computers, not tablets.
Further, there is skepticism that the elimination of most legal assistance from paralegals and attorneys will provide prisoners the help they need.

“What’s someone who can’t read or write ... supposed to do with a tablet?” wondered Northwestern University Law School clinical assistant professor David Shapiro.
“A book isn’t going to make you a lawyer,” said another lawyer who assists prisoners, Delmar “Sonny” Walter.

Along with a paralegal, Walter worked with state prisoners under the DOC’s previous contract to explain court procedures and offer advice on case law citations and filing civil rights claims, as well as handling divorces and other aspects of family law. The DOC’s new system is supposed to make his work largely unnecessary. But as prisoners use the tablets to find more case law, more legal questions are raised; as a result Walter has seen their inquiries balloon – from 1,500 to 2,500 per quarter.

“These people need legal assistance,” he said, bluntly.

Sioux Falls attorney Jason Adams, whose clients include state prisoners challenging their convictions, agreed that “giving you access to [Lexis/Nexis] doesn’t teach you how to do legal research.” He explained, “For some of the lower functioning inmates or less well-educated inmates, it’s a lot like giving a book to someone who can’t read.”
Shapiro, the law professor, called the new approach “pennywise, pound-foolish,” adding, “At the end of the day, America has more people locked up than any other country on earth. A reduction in incarceration would lead to genuine savings.”

That is, as opposed to modest savings through eliminating prison law libraries and legal assistance, which may prove even more costly over the long term. 




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