8 - Legal Services

Abstract

This chapter discusses the nature of legal services in prison and the access to the courts as a constitutional right. The Supreme Court has repeatedly affirmed that one of the fundamental rights within the due process clause of the Fourteenth Amendment is the right of access to the courts. Restriction on access to the courts was seen in the fact that prison officials seldom provided prisoners with any services related to legal needs. Restrictions on the legal practice of jailhouse lawyers—in light of the unique position of an incarcerated individual—place an impossible burden on the prisoner seeking legal relief. These restrictions, coupled with the unavailability of legal assistance in the outside world, had resulted in the complete loss of a basic constitutional right. Restrictions that forbid the receipt of legal assistance by anyone but illiterate prisoners have been invalidated as contrary to the Supreme Court ruling. Where there is no reasonable alternative, all prisoners in the institution must be permitted to seek legal counsel from the jailhouse lawyer. The chapter also presents guidelines as who may act as the jailhouse lawyer, type of legal assistance a prisoner may receive from the jailhouse lawyer, reasonable alternative to the jailhouse lawyer, access to legal materials, the legal materials that must be supplied by prison officials, the prisoner's right to counsel, and the retaliation for exercising constitutional rights. The alternative, to provide a judicially acceptable legal service program presents equally difficult problems. The program must provide professional assistance sufficient to meet the needs of the prisoner population without undue delay. It must provide assistance to any prisoner wishing to file habeas corpus, civil rights, or prose petitions. Only by providing such complete legal services can the prison administration protect itself against court action.