No. 94-1511 In the Supreme Court of the United States OCTOBER TERM, 1995 SAMUEL LEWIS, DIRECTOR, ARIZONA DEPARTMENT OF CORRECTIONS, ET AL., PETITIONERS v. FLETCHER CASEY, JR., ET AL. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT BRIEF FOR THE UNITED STATES AS AMICUS CURIAE DREW S. DAYS, III Solicitor General DEVAL L. PATRICK Assistant Attorney General PAUL BENDER Deputy Solicitor General ALAN JENKINS Assistant to the Solicitor General STEVEN H. ROSENBAUM LOUISE A. LERNER REBECCA K. TROTH Attorneys Department of Justice Washington, D.C. 20530 (202)514-2217 ---------------------------------------- Page Break ---------------------------------------- QUESTION PRESENTED Whether the courts below applied the proper legal standards in deciding that the Arizona Department of Corrections violated state prisoners' right of access to the courts. (I) ---------------------------------------- Page Break ---------------------------------------- TABLE OF CONTENTS Page Interest of the United States . . . . 1 Statement . . . . 2 Summary of argument . . . . 8 Argument: I. Petitioners' system fails to afford ADOC inmates constitutionally adequate access to the courts . . . . 10 A. Court access by lockdown inmates . . . . 14 B. Court access by illiterate and non-English speaking inmates . . . . 17 C. Cognizable injury . . . . 21 II. The Federal Bureau of Prisons' access proce- dures illustrate one method of providing con- stitutionally adequate court access to diverse inmate populations . . . . 24 III. This Court should be guided by traditional equitable principles in determining whether the remedy adopted in this case was an abuse of discretion . . . . 28 Conclusion . . . . 31 TABLE OF AUTHORITIES Cases: Battle v. Anderson, 614 F.2d 251(10th Cir. 1980) . . . . 18-19 Bounds v. Smith, 430 U. S. 817 (1977) . . . . passim Burns V. Ohio , 360 U.S. 252 (1959) . . . . 10, 11 Campbell v. Miller, 787 F.2d 217(7th Cir.), cert. denied, 479 U.S. 1019 (1986) . . . . 17 Cepulonis v. Fair, 732 F.2d l (lst Cir. 1984) . . . . 17 Chandler v. Baird, 926 F.2d 1057(llth Cir. 1991) . . . . 23 Corgain v. Miller, 708 F.2d 1241(7th Cir. 1983) . . . . 14, 16 (III) ---------------------------------------- Page Break ---------------------------------------- IV Cases-Continued: Page Crawford-El v. Britton, 951 F.2d 1314 (D.C. Cir. 1991), cert. denied, 113 S. Ct. 62 (1992) . . . . 23 Cruz v. Hauck, -627 F.2d 710 (5th Cir. 1980) . . . . 18 DeMallory v. Cullen, 855 F.2d 442 (7th Cir. 1988) . . . . 14, 15, 17, 22, 23 Gagnon v. Scarpelli, 411 U.S. 778 (1973) . . . . 11, 12 Gideon v. Wainwright, 372 U.S. 335 (1963) . . . . 18 Gluth v. Kangas, 773 F. Supp. 1309 (D. Ariz. 1988), aff `d, 951 F.2d 1504 (9th Cir. 1991) . . . . 2 Goldberg v. Kelly, 397 U.S. 254 (1970) . . . . 11 Griffin v. Illinois, 351 U.S. 12 (1956) . . . . 11 Haines v. Kerner, 404 U.S. 519 (1972) . . . . 18 Helling v. McKinney, 113 S. Ct. 2475 (1993) . . . . 17 Hewitt v. Helms, 459 U.S. 460 (1983) . . . . 13 Holt v. Pitts, 702 F.2d 639 (6th Cir. 1983) . . . . 16 Hudson v. McMillian: 929 F.2d 1014 (5th Cir, 1990), rev'd, 503 U.S. 1 (1992) . . . . 17 503 U.S. 1 (1992) . . . . 1, 17 Hutto v. Finney, 437 U.S. 678 (1978) . . . . 30 INS v. Lopez-Mendoza, 468 U.S. 1032 (1984) . . . . 28 Johnson v. Avery, 393 U.S. 483 (1969) . . . . 10, 22 Jones v. North Carolina Prisoners' Labor Union, Inc., 433 U.S. 119 (1977) . . . . 13 Knop v. Johnson, 977 F.2d 996 (6th Cir. 1992), cert. denied, 113 S, Ct. 1415 (1993) . . . . 18, 26 Lassiter v. Department of Social Services, 452 U.S. 18 (1981) . . . . 11 Long v. District Court of Iowa, 385 U.S. 192 (1966) . . . . 11 Mathews v. Eldridge, 424 U.S. 319 (1976) . . . . 11, 12 McKinney v. Anderson, 924 F.2d 1500 (9th Cir.), vacated sub nom. Helling v. McKinney, 502 U.S. 903 (1991) . . . . 18 ---------------------------------------- Page Break ---------------------------------------- V Cases-Continued Page Metropolitan Casualty Ins. Co. v. Brownell, 294 U.S. 580 (1935) . . . . 22 Milliken v. Bradley 418 U.S. 717 (1974) . . . . 29 433 U.S. 267 (1977) . . . . 29, 30 Missouri v. Jenkins, 115 S. Ct. 2038 (1995) . . . . 29 Morrissey v. Brewer, 408 U.S. 471 (1972) . . . . 11 Morrow v. Harwell, 768 F.2d 619 (5th Cir. 1985) . . . . 14, 17 Murray v. Giarratano, 492 U.S. 1 (1989) . . . . 13, 24 Neitzke v. Williams, 490 U.S. 319 (1989) . . . . 18 Nordgren v. Milliken, 762 F.2d 851 (lOth Cir.), cert. denied, 474 U.S. 1032 (1985) . . . . 16 O'Lone V. Estate of Shabazz, 482 U.S. 342 (1987) . . . . 2 Pennsylvania v. Finley, 481 U.S. 551 (1987) . . . . 11 Peterkin v. Jeffes, 855 F.2d 1021 (3d Cir. 1988) . . . . 23 Procunier v. Martinez, 416 U.S. 396 (1974) . . . . 11, 24, 29 Reno v. Flores, 113 S. Ct. 1439 (1993) . . . . 28 Ross V. Moffitt, 417 U.S. 600 (1974) . . . . 12 Sandin v. Conner, 115 S. Ct. 2293 (1995) . . . . 13 Sands v. Lewis, 886 F.2d 1166 (9th Cir. 1989) . . . . 23 Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206 (1953) . . . . 28 Smith v. Bennett, 365 U.S. 708 (1961) . . . . 10 Smith v. Bounds, 538 F.2d 541 (4th Cir. 1975), aff 'd, 430 U.S. 817 (1977) . . . . 15-16 Swarm v. Charlotte-Mecklenberg Bd. of Educ., 402 U.S. 1 (1971) . . . . 29, 30 Toussaint v. McCarthy, 801 F.2d 1080 (9th Cir. 1986), cert. denied, 481 U.S. 1069 (1987) . . . . 15 Turner v. Safley, 482 U.S. 78 (1987) . . . . 1-2, 11, 15, 24, 29 United States v. Paradise, 480 U.S. 149 (1987) . . . 30 ---------------------------------------- Page Break ---------------------------------------- VI Cases-Continued: Page United States ex rel. Para-Professional Law Clinic v. Kane, 656 F. Supp. 1099 (E.D. Pa.), aff `d, 835 F.2d 285 (3d Cir, 1987), cert. denied, 485 U.S. 493 (1988) . . . . 14 Valentine v. Beyer, 850 F.2d 951 (3d Cir. 1888) . . . . 18 Vitek v. Jones, 445 U.S. 480 (1980) . . . . 11 Williams v. Leeke, 584 F.2d 1336 (4th Cir. 1978), cert. denied, 442 U.S. 911 (1979) . . . . 16 Wolff v. McDonnell, 418 U.S. 539 (1974) . . . . 10, 12 Wygant v. Jackson Bd. of Educ., 476 U.S. 267 (1986) . . . . 22 Constitution, statutes and regulations: U.S. Const. Amend. VIII . . . . 17 Civil Rights of Institutionalized Persons Act, 42 U.S.C. 1997 et -seq . . . . 1 18 U.S.C. 3006A(g) . . . . 18 18 U.S.C. 3624(f) (Supp. V 1993) . . . . 27 28 U.S.C. 1915(d) . . . . 18 42 U.S.C. 1983 . . . . 2 28 C.F.R.: Sections 543.10-643.16 . . . . 25 Section 534.11(a) . . . . 26 Section 534.11(f) . . . . 26 Section 534.11(j) . . . . 25, 26 Section 543.15 . . . . 20 Section 543.15(a) . . . . 26 Miscellaneous: 2 M. Mushlin & D. Kramer, Rights of Prisoners (2d ed. 1993) . . . . 14, 22 ---------------------------------------- Page Break ---------------------------------------- In the Supreme Court of the United States OCTOBER TERM, 1995 No. 94-1511 SAMUEL LEWIS, DIRECTOR, ARIZONA DEPARTMENT OF CORRECTIONS, ET AL., PETITIONERS v. FLETCHER CASEY, JR., ET AL. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT BRIEF FOR THE UNITED STATES AS AMICUS CURIAE INTEREST OF THE UNITED STATES This case involves the constitutional right of prisoners to meaningful access to the courts. The Attorney Gen- eral is responsible for protecting the constitutional rights of prisoners under the Civil Rights of Institutionalized Persons Act, 42 U.S.C. 1997 et seq. In addition, the United States Bureau of Prisons operates 81 prisons that may be affected by the Court's decision in this case. The United States has an interest in ensuring that the law regarding access to the courts protects the rights of inmates while taking into account the legitimate concerns of prison authorities and governmental entities. The United States filed amicus curiae briefs in Hudson v. McMillian, 503 U.S. 1 (1992), Turner v. Safley, 482 U.S. (1) ---------------------------------------- Page Break ---------------------------------------- 2 78 (1987), and O'Lone v. Estate of Shabazz, 482 U.S. 342 (1987), each of which concerned the rights of prison in- mates and the constitutional obligations of prison officials. STATEMENT 1. Inmates incarcerated in the Arizona state prison system filed this class action in 1990 against the Arizona Department of Corrections (ADOC) under 42 U. S. C. 1983. The inmates alleged that the ADOC's state-wide policies and practices violated the inmates' constitutional right of access to the courts. After a three-month bench trial, the district court held that the ADOC had violated the inmates' constitutional right of court access under Bounds v. Smith, 430 U.S. 817 (1977), and subsequent cases. 1. The constitutional deficiencies identified by the district court fell primarily within two categories: access to court by inmates in segregation, and access by illiter- ate and non-English speaking inmates. a. The district court first found that inmates who are segregated from the general prison population for security or disciplinary reasons (known as "lockdown ___________________(footnotes) 1 In prior litigation, the same district court had held that the ADOC's provisions for access to the courts in its Florence Central Unit Facility were constitutionally inadequate. See Gluth v. Kangas, 773F. Supp. 1309(D. Ariz. 1988), aff'd, 951 F.2d 1504 (9th Cir. 1991). In that litigation, the court found that ADOC officials had demonstrated "a callous unwillingness to face the issues," and had engaged in various "diversion tactics," with the result that ''[t]he Court was forced to take extraordinary measures to compel the [ADOC] to focus on the merits." 773 F. Supp. at 1312, 1315. At the remedy stage of the litigation, ADOC officiaIs refused to offer a proposed-remedy, despite the court's express request that they do so. Id. at 1315. The district court's find- ing of liability, and the remedy that it imposed, were affirmed on appeal. ---------------------------------------- Page Break ---------------------------------------- 3 inmates") "experience severe interference with their access to the courts." Pet. App. 22a. Most lockdown inmates in Arizona are denied direct physical access to law libraries and must rely on a system of written requests or "kites" in order to obtain legal materials. Pet. App. 21a. The district court found that the ADOC's kite system is ineffectual. Under the kite system, some lockdown inmates are denied all access to legal materials. Id. at 22a. Those inmates who are per- mitted to use the system experience long delays-rang- ing from several days to several weeks-in receiving li- brary materials or assistance. In addition, certain ADOC facilities impose severe restrictions on the number of books that inmates may borrow at one time, and on the amount of time that legal materials maybe retained, with the result that some prisoners are able to borrow only one or two books at a time, and may keep them for no more than 24 hours. Id. at 24a. Moreover, some institutions provide access to materials through the kite system only if a lockdown inmate can provide exact citations for the materials requested. Id. at 22a. The district court further found that there is an insuf- ficient number of prisoner "legal assistants" 2. assigned to aid lockdown inmates, that these assistants receive no training from ADOC, and that they are not sufficiently skilled to provide meaningful assistance to lockdown ___________________(footnotes) 2 In the Arizona system, inmate "law clerks" and inmate library staff assist prisoners by providing them with requested materials from the law library stacks; inmate "legal assistants" aid other inmates in drafting pleadings. Pet. App. 28a. Inmate law clerks and legal assis- tants possess no particular qualifications, and neither receive training in legal research or the drafting of pleadings. Id. at 30a. The distinc- tion between the two groups is one of function rather than skills or qualifications. ---------------------------------------- Page Break ---------------------------------------- 4 inmates. Pet. App. 24a, 30a, 44a. In addition, only lock- down inmates with pending litigation or ADOC. charges are allowed access to legal assistants (id. at 22a), nor can prisoners obtain legal assistance or legal materials until they have been in lockdown for two weeks (ibid.). Observing that "[e]ven lockdown prisoners who are in- telligent, literate and legally trained are unable to do le- gal research under [al paging system that allows only one or two books at a time every couple of days" (Pet. App. 24a), the district court concluded that the kite system fails to provide meaningful access to legal materials. Al- though petitioners asserted that the kite system was required by staffing, logistical and security concerns, the court found that, "despite these same concerns," lock- down inmates at some ADOC facilities are allowed physi- cal access to the law library, including direct access to the shelves. Id. at 21a-22a. Concluding that petitioners had provided lockdown inmates neither access to an ade- quate law library nor assistance by persons minimally trained in the law, as required by Bounds, the district court held that petitioners' system violated lockdown inmates' constitutional right of access to the courts. Id. at 42a. b. The district -court next addressed the question of access to the courts by illiterate and non-English speak- ing inmates. The court found that such inmates make up a substantial proportion of the ADOC population, 3. and ___________________(footnotes) 3 The court cited studies indicating that 14.5% of the ADOC inmate population is non-English speaking, that 17.2% have reading skills below the sixth grade-Level, and that 35% have a reading level of seventh grade or below. Pet. App. 25a. The court indicated that trial testimony generally supported the findings of those studies (ibid.), but did not make a specific finding as to the number or proportion of func- ---------------------------------------- Page Break ---------------------------------------- 5 that their lack of English reading skills prevents them from doing legal research on their own. Pet. App. 25a. The ADOC has a large, monolingual Spanish-speaking population. Bilingual inmates in its facilities frequently lack the language skills necessary to aid non-English speakers. Moreover, many ADOC facilities have no Spanish-speaking legal assistants, law clerks, or library staff. Id. at 29a; Tr. 105-106, 128. The evidence showed, in addition, that there is an inadequate number of inmate assistants available to serve prisoners' legal access needs (Tr. 111-112, 124, 258-259), and that assistants who are available often lack sufficient training and skills to aid other inmates (see, e.g., Tr. 105, 111, 129). Some inmates, acting without assistance, had had their cases dismissed with prejudice because of their inadequate English lit- eracy skills, while others had been unable to file legal actions for that reason. Pet. App. 25a. Observing that "even the best law library is of no use to prisoners who are functionally illiterate in English" (id. at 43a), the court concluded that the ADOC's system, in which illiterate and non-English speaking inmates "must rely on an inadequate number of inmate clerks with no formalized training or supervision by attorneys * * * fails to comply with the requirements of Bounds" (id. at 44a). 4. ___________________(footnotes) tionally illiterate and non-English speaking inmates in the ADOC system. 4 The district court also determined that the system Of law libraries maintained by petitioners failed to provide meaningful court access to general population inmates, and made additional findings regard- ing the ADOC's provision of legal supplies to indigent inmates, the availability and confidentiality of photocopies, and interference with attorney/client phone calls. This brief does not directly address those findings. ---------------------------------------- Page Break ---------------------------------------- 6 c. Concluding that "[petitioners'] system fails to com- ply with constitutional standards," the district court de- termined that injunctive relief was appropriate. Pet. App. 48a. The court appointed a special master "to work with the parties and develop the proper injunctive relief." Id. at 48a-49a. 5. The district court subsequently adopted the remedial plan proposed by the special master. The plan requires petitioners, inter alia, to create an effective testing and training program for inmate legal assistants; to maintain "a sufficient number of at least minimally trained pris- oner Legal Assistants" (Pet. App. 70a); to take "[p]arti- cular steps * * * to Locate and train bilingual prisoners to be Legal Assistants" (ibid.); to recruit qualified law librarians and to train inmate law clerks to run and staff prison law Libraries; to recruit bilingual staff and inmate volunteers; to maintain and periodically update complete law- collections, including self-help materials and regional reporters; to provide an instructional videotape on legal research to all inmates; to expand library hours; and to allow lockdown inmates access to library facilities, absent demonstrated security concerns. Id. at 65a-72a. 2. The court of appeals affirmed in pertinent part. The court first observed that, under Bounds v. Smith, States must "assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from per- sons trained in the law," 430 U.S. at 828, and that Bounds directed district courts to evaluate "as a whole" the system of court access provided by prisons (Pet. ___________________(footnotes) 5 The court appointed the special master who had developed the remedy in the Gluth litigation. See note 1, .supra. The remedial decree adopted in this case closely parallels the relief in Gluth. See Pet. App. 49a. ---------------------------------------- Page Break ---------------------------------------- 7 App. 5a (quoting Bounds, 430 U.S. at 832)). Applying that standard, the court of appeals concluded that the district court had properly found that petitioners' system of access was constitutionally deficient. With respect to lockdown inmates, the court of appeals held that, while "prisons may deny inmates physical access to the law library if such access would threaten institutional security" (Pet. App. 6a), petitioners had failed to provide these inmates with adequate library access or assistance from persons trained in the law, as required by Bounds (id. at 7a). With respect to illiterate and non-English speaking in- mates, the court of appeals agreed with the district court that, in the circumstances of this case, the provision of a small number of untrained inmate legal assistants or law clerks 6. did not satisfy Bounds' requirement of "mean- ingful" access. Pet. App. 8a. In doing so, the court re- jected petitioners' argument that, by providing a com- plete law library, it had removed the barriers to litigation erected by imprisonment. Id. at 7a-9a. In the court of appeals' view, [t]his argument is without merit because [the State] overlooks the fact that the restrictions on a prisoner's liberty attendant to imprisonment prevents [sic] the prisoner from enlisting the assistance of his family, ___________________(footnotes) 6 Petitioners maintained a court-ordered training program in their Florence Central Unit Facility as a result of the Gluth litigation, see note 1, supra. and a limited training program at the Complex law li- brary in Tucson. Pet. App. 30a-31a. After the filing of this action, peti- tioners promulgated, then rescinded, a plan to provide training in legal research to law clerks and legal assistants system-wide. Id. at 31a. ---------------------------------------- Page Break ---------------------------------------- 8 friends, and a myriad of social services and legal aid organizations that would otherwise be available. Id. at 9a. The court of appeals rejected petitioners' contention that the district court's remedial order constituted an abuse of discretion, Pet. App. 14a. While noting that a remedy "must do no more and no less than correct a par- ticular constitutional violation," the court observed that "a federal court may order relief that the Constitution would not of its own force initially require if such re- lief is necessary to remedy * * * [that] violation." Id. at 13a. In approving the remedy's requirement of law libraries and trained inmate assistants, the court held that, "even though states may choose which of the two components to provide, this is not to say that a court may never order a mixture of [the two]." Id. at 14a (internal quotation marks omitted). The court of appeals also upheld the other major aspects of the injunction, 7. including the requirement that ADOC libraries be staffed by individuals with some basic knowledge of legal research" (Pet. App. 16a) and maintain current, complete sets of certain necessary materials (id. at 15a). SUMMARY OF ARGUMENT I. The right of access to the courts requires correc- tions officials to afford inmates a meaningful opportunity to present constitutional claims in a judicial forum. That principle requires officials to consider the general char- acter and circumstances of various inmate populations. While most inmates in a prison system may be afforded ___________________(footnotes) 7 The court of appeals vacated and remanded parts of the district court's order that related to the special master's fees, the prison's indigency standard, and photocopying costs, Pet. App. 16a-18a. ---------------------------------------- Page Break ---------------------------------------- 9 meaningful court access through the provision of ade- quate law libraries, some substantial number of inmates may be incapable-due to restrictions on physical access or inadequate language skills-to utilize library facilities without additional assistance. The Constitution does not require any particular system as a means of dealing with this situation; however, the system utilized by prison officials must, when evaluated as a whole, provide mean- ingful access to all substantial components of an institu- tion's inmate population. When determining whether the constitutional obligations have been satisfied, a court must afford prison officials deference to take into account their serious security, administrative, and fiscal concerns. In this case, the proportion of inmates in the ADOC system who cannot effectively use that system's law libraries is substantial, and the assistance that is currently available to substantial groups within the population fails to allow them to pursue legal claims. The courts below therefore correctly concluded that peti- tioners' system of judicial access was constitutionally deficient. II. The Federal Bureau of Prisons (BOP) maintains a flexible system designed to provide all substantial groups within each BOP institution's inmate population a mean- ingful opportunity to present their claims in a judicial forum. BOP provides access to inmates through a system of satellite libraries, interlibrary services, and other assistance. Functionally illiterate and non-English speaking inmates have access `to literate inmates who can assist them, as well as access to referrals to outside re- sources, language skills training, and, where possible, staff assistance. In some facilities, outside legal aid programs are used to supplement institutional materials and services. BOP's system of judicial access represents ---------------------------------------- Page Break ----------------------------------------) 10 one constitutional method of serving the legal access needs of a diverse inmate population while addressing important security, administrative, and fiscal concerns. III. We leave to the parties the fact-specific question whether the district court abused its discretion in order- ing the particular remedy at issue here. We note. how- ever, that, in formulating relief in the prison context, courts must consider, on an institution-wide basis, the necessity of eliminating constitutional violations and af- fording remedies to the victims of unconstitutional con- duct in the context of the State's important interest in managing the affairs of its correctional institutions. Absent a history of recalcitrance or undue delay, state officials should be offered the opportunity in the first instance to craft a remedial scheme that meets constitu- tional standards. ARGUMENT I. PETITIONERS' SYSTEM FAILS TO AFFORD ADOC INMATES CONSTITUTIONALLY ADE- QUATE ACCESS TO THE COURTS The constitutional right of access requires that prison- ers be afforded "a reasonably adequate opportunity to present claimed violations of fundamental constitutional rights to the courts." Bounds v. Smith., 430 U.S. 817, 825 (1977). Providing- that opportunity requires, not only that prison officials eliminate undue barriers to inmate access, but also that they "shoulder affirmative obli- gations to assure all prisoners meaningful access to the courts." Id. at 824. The Court has accordingly in- validated prison regulations prohibiting inmates from assisting each other in preparing habeas corpus petitions, Johnson v. Avery, 393 U.S. 483 (1969); see also Wolf v. McDonnell, 418 U.S. 539 (1974) (extending rule of Avery ---------------------------------------- Page Break ---------------------------------------- 11 to inmate civil rights actions). It has also prohibited the imposition of filing fees on indigent inmates, see, e.g., Smith v. Bennett, 365 U.S. 708 (1961); Burns v. Ohio, 360 U.S. 252 (1959), and required States to provide trial tran- scripts, see Long v. District Court of Iowa, 385 U.S. 192 (1966) (per curiam); Griffin v. Illinois, 351 U.S. 12 (1956), and notarial services and writing materials, see Bounds v. Smith, 430 U.S. at 824-825, to inmates who are unable to purchase them. The approach employed in the Court's access cases has been informed and shaped by principles of due process. 8. Because "due process is flexible and calls for such proce- dural protections as the particular situation demands ," Morrissey v. Brewer, 408 U.S. 471, 481 (1972); see also Mathews v. Eldridge, 424 U.S. 319, 334 (1976), govern- ment must take into account a population's circumstances and abilities. Goldberg v. Kelly, 397 U.S. 254, 268-269 (1970) (due process requires that procedures be tailored to "the capacities and circumstances of those who are to be heard"); see also Gagnon v. Scarpelli, 411 U.S. 778, 790-791 (1973); Lassiter v. Department of Social Semites, 452 US. 18, 31 (1981). In the prison context, that approach requires consideration of the general limita- tions and disabilities of each substantial component of an institution's inmate population, see, e.g., Vitek v. Jones, 445 U.S. 480, 497 (1980) (Powell, J., concurring in part) (inmates facing involuntary transfer to mental hospital ___________________(footnotes) 8 The Court has described the right of access to the courts as a due process requirement, see Procunier v. Martinez, 416 US. 396, 419 (1974); Wolf V. McDonnell, 418 U.S. at 579, as an element of equal protection of the laws, see Pennsylvania v. Finley, 481 U.S. 551, 557 (1987), and as a manifestation of the right to petition the government for the redress of grievances, see Turner v. Safley, 482 U.S. 78, 84 (1987). ---------------------------------------- Page Break ---------------------------------------- 12 must be provided "a qualified and independent adviser"); Wolff v. McDonnell, 418 U.S. at 570 (illiterate inmates facing disciplinary proceedings must be allowed assis- tance from fellow inmates or staff); see also Gagnon v. Scarpelli, 411 U.S. at 786-787, as well as the relevant security, administrative, and fiscal concerns of the State, see Mathews v. Eldridge, 424 U.S. at 335 (due process in- volves a balancing of the private interest in a procedural protection against the governmental interest). The Bounds holding addressed the situation of "in- mates able to present their own cases." 430 U.S. at 824. It did not address the kind of assistance necessary to provide court access to inmates who are unable to utilize law libraries and who are therefore unable to research their cases without some other form of assistance. Ibid. 9. In determining the type of assistance required for popu- lations with such special needs, we believe that the Court should be guided by the approach that characterizes the due process inquiry and by Bounds' admonition that "'meaningful access' to the courts is the touchstone." Id. at 823 (quoting Ross v. Moffitt, 417 U.S. 600, 616 (1974)). The proper approach to determining whether constitu- tional obligations have been satisfied should, in our view, incorporate at least two basic principles. First, in imple- menting the right recognized in Bounds, prison authori- ties must be afforded a considerable degree of flexibility in structuring a system that accommodates each insti- ___________________(footnotes) 9 Petitioners therefore in attaching dispositive significance to Bounds' use of the disjunctive in requiring "adequate law libraries or adequate assistance from persons trained in the law." 430 U.S. at 828 (emphasis added). See Pet. Br. 34. Nothing in Bounds remote- ly suggests that a population of inmates unable to use a library nevertheless is not entitled to assistance beyond provision of a library they cannot use. ---------------------------------------- Page Break ---------------------------------------- 13 tution's serious security, administrative, and fiscal concerns. The Court has frequently emphasized the importance of "afford[ing] appropriate deference and flexibility to state officials trying to manage a volatile environment." Sandin V. Conner, 115 S. Ct. 2293, 2299 (1995) (citing Hewitt v. Helms, 459 U.S. 460, 470-471 (1983); Jones v. North Carolina Prisoners' Labor Union, Inc., 433 U.S. 119, 125 (1977)). The concerns facing prison authorities weigh heavily against the imposition of a rigid requirement that a particular system of assis- tance be adopted. With meaningful court access as the touchstone, prison authorities therefore have "wide discretion" in determining the way in which they will satisfy the access right. See Murray v. Giarratano, 492 U.S. 1, 14 (1989) (Kennedy, J., concurring in the judgment) (quoting Bounds v. Smith, 430 U.S. at 833). As the Bounds Court repeatedly noted, see 430 U.S. at 828,830-831, 832, the Constitution does not require that a prison system provide any particular type of assistance, so long as meaningful access is afforded. Consequently, prison authorities may constitutionally choose to provide court access through a variety of means. Second, the right of access to the courts does not require that institutions maintain a system that guaran- tees that each inmate will receive assistance specifically designed for his or her particular needs. Rather, the Constitution requires that prison authorities consider the general circumstances and abilities of each institution's inmate population. Where prison officials have estab- lished a system that is reasonably calculated to provide court access to all substantial components of an insti- tution's inmate population, minor deficiencies or isolated lapses in the operation of that system will not typically ---------------------------------------- Page Break ---------------------------------------- 14 rise to the level of a constitutional violation. 10. If prison officials do not offer a structure reasonably calculated to afford a substantial group of inmates a meaningful op- portunity to challenge alleged deprivations of constitu- tional rights, however, additional protections must be instituted. A. Court Access By Lockdown Inmates The majority of the ADOC's lockdown inmates are required to use an ineffective "kite" system, under which they have no sufficient opportunist y to review legal materials or prepare adequate pleadings. Pet. App. 21a- 24a. While kite or paging systems are not necessarily invalid, the lower courts have repeatedly found that, standing alone, they have not proved adequate in prac- tice to provide meaningful court access. See, e.g., De- Mallory v. Cullen, 855 F.2d 442, 447 (7th Cir. 1988) (exact-cite paging system, without more, is unconsti- tutional); Morrow v. Harwell, 768 F.2d 619, 623 (5th Cir. 1985) (same); Corgain v. Miller, 708 F.2d 1241, 1248, 1250 (7th Cir. 1983) (same); United States ex rel. Para - Professional Law Clinic v. Kane, 656 F. Supp. 1099, 1104 (E.D. Pa.) (same), aff'd, 835 F.2d 285 (3d Cir. 1987) (Table), cert. denied, 485 U.S. 993 (1988); see also 2 M. Mushlin & D. Kramer, Rights of Prisoners $11.04, at 27 (2d ed. 1993) ("use of book paging systems as an exclusive mechanism of gaining access to courts has been for- ___________________(footnotes) 10 As discussed below, see pp. 21-23, infra, the standard of proof in cases in which an individual inmate alleges that prison authorities have denied him or her judicial access on an isolated or episodic basis (e.g., a prison guard's refusal to transmit a complaint) should differ from the standard applicable in cases such as this one, in which in- mates allege a systemic denial of access to the courts, Where an individualized violation is identified, the appropriate remedy will be based on the scope and nature of the violation. ---------------------------------------- Page Break ---------------------------------------- 15 bidden"). The district court's findings in this case estab- lish that petitioners' kite system similarly does not pro- vide adequate legal access for lockdown inmates. The court found, inter alia, that petitioners' system com- pletely denies some inmates access to legal materials (Pet. App. 22a), imposes insuperable time, quantity, and specificity restrictions on others (id. at 22a, 24a), and is plagued by delays of up to several weeks in providing materials (id. at 24a). Petitioners do not dispute the district court's factual findings, but instead contend (Pet. Br. 36) that the restrictions placed by ADOC on lockdown inmates' library access "bear a rational relationship to legiti- mate State penological interests," and are therefore valid under Turner v. Safley, 482 U.S. 78 (1987). That contention is incorrect. Bounds does not hold that inmates must be provided direct access to law libraries irrespective of security, ad- ministrative, or fiscal concerns; prison authorities should and do have broad discretion in determining the method by which legal access will be provided, based on the con- ditions existing in a particular institution or facility. See 430 U.S. at 825,830-83% see also Toussaint v. .McCarthy, 801 F.2d 1080, 1109 (9th Cir. 1986) (prison officials "may preclude physical access [by segregated inmates] if such access would interfere with institutional security"), cert. denied, 481 U.S. 1069(1987). Accordingly, prisons may satisfy their constitutional obligations under Bounds by utilizing "satellite" libraries, see, e.g., DeMallory v. Cullen, 855 F.2d at 446448 (approving creation by pris- on officials of satellite library for use by segregated inmates); Smith v. Bounds, 538 F.2d 541, 543 & n.1 (4th Cir. 1975) (approving library plan providing for "smaller core libraries" for prisoners in non-punitive segregation), ---------------------------------------- Page Break ---------------------------------------- 16 aff`d, 430 U.S. 817 (1977), or by supplementing or re- placing incomplete library access with "adequate assis- tance from persons trained in the law." 430 U.S. at 828. 11. Such assistance, moreover, may be provided in a variety of ways. Id. at 830-832. Where prison authorities deny inmates library access for extended periods such as those in this case, however, they must provide some meaning- ful and effective substitute.. The courts below did not deviate from those principles. See, e.g., Pet. App. 41a-42a (district court opinion) ("The prison may preclude physical [library] access to seg- regated inmates if such access would interfere with institutional security."); id. at 6a (court of appeals opin- ion) ("[T]he Constitution does not guarantee a prisoner unlimited access to a library and * * * [p]rison officials of necessity must regulate the time, manner, and place in which library facilities are used.") (internal quotation marks omitted). Rather, those courts correctly con- cluded that petitioners have provided to lockdown in- mates neither adequate library access nor an adequate substitute. Id. at 42a-43a. Petitioners have not chosen to employ a satellite library system, and their kite sys- tem has proved inadequate. The district court expressly found that existing inmate assistants are not sufficiently ___________________(footnotes) 11 See, e.g., Williams V. Leeke, 584 F.2d 1336, 1339 (4th Cir. 1978) (approving use of a paging system, where the State supplemented that system with state-funded legal counsel or trained legal assistants), cert. denied, 442 U.S. 911 (1979); Corgain v. Miller, 708 F.2d at 124'7- 1250 (where State provided legaI assistance, access to legal materials could be restricted); Holt v. Pitts, 702 F.2d 639, 640-641 (6th Cir. 1983) (State may deny physical access to law library to ensure prison security when inmate has access to persons trained in the law); Nordgren v. Milliken, 762 F.2d 851, 853-855 (lOth Cir.) (State provided adequate access to the courts by providing legal assistance to inmates in drafting pleadings), cert. denied, 474 U.S. 1032 (1985). ---------------------------------------- Page Break ---------------------------------------- 17 skilled to provide meaningful aid to lockdown inmates (id. at 24a), and that assistants are only made available to lockdown inmates with pending cases (id. at 22a). Be- cause petitioners' system, when evaluated as a whole, does not compensate for the inadequacy of library access afforded to lockdown inmates, it does not satisfy the State's constitutional obligations. B. Court Access By Illiterate And Non-English Speak- ing Inmates As a general matter, prison administrators may satisfy literate, English speaking inmates' right of access to the judicial system by providing an adequate law library. See Bounds v. Smith, 430 U.S. at 830-832. See also DeMallory v. Cullen, 855 F.2d at 446; Campbell v. Miller, 787 F.2d 217, 229-230 (7th Cir.), cert. denied, 479 U.S. 1019 (1986); Morrow v. Harwell, 768 F.2d at 623; Cepulonis v. Fair, 732 F.2d 1, 6 (lst Cir. 1984). As the Court recognized in Bounds, 430 U.S. at 826-827, inmates who are literate in English and have access to an adequate law library are generally capable of raising "serious and legitimate" claims in the courts. An English-literate inmate who claims to have been beaten or arbitrarily punished by correctional personnel, for ex- ample, can, with access to "self-help" legal guides and other appropriate materials, file a pleading that states a colorable constitutional claim. 12. Once an inmate has suc- ___________________(footnotes) 12 For example, the inmate petitioner in Hudson V. McMillian, 503 U.S. 1 (1992) (use of physical force against prisoner may constitute cruel and unusual punishment even where prisoner does not suffer serious injury), proceeded pro se prior to the appointment of counsel by this Court, See Hudson v. McMillian, 929 F.2d 1014 (5th Cir. 1990). The inmate respondent in Helling v. McKinney, 113 S. Ct. 2475 (1993) (prisoner stated cause of action under Eighth Amendment for expo- sure to secondary tobacco smoke), also filed his complaint pro se. See ---------------------------------------- Page Break ---------------------------------------- 18 cessfully initiated litigation, the "less stringent stan- dards" generally applied to pro se pleadings, see Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam), and courts' discretionary authority to appoint counsel pur- suant to 28 U.S.C. 1915(d) (civil rights actions) and 18 U.S.C. 3006A(g) (federal habeas corpus actions), help to ensure meaningful access to a judicial forum for the con- sideration of the inmate's claims. See also Neitzke v. Williams, 490 U.S. 319, 327-328 (1989) (dismissal of in forma pauperis complaints for frivolousness under Sec- tion 1915(d) proper only where claim "lacks even an arguable basis in law," or where factual contentions "are clearly baseless"). On the other hand, an inmate who can neither read nor draft basic English language documents is not afforded meaningful access to the judicial process merely because a law library exists at the institution in which the inmate is incarcerated. The courts of appeals have recognized that prison officials do not discharge their constitutional obligations solely by providing books to prisoners who are not able to read them, See, e.g., Knop v. Johnson, 977 F.2d 996, 1006 (6th Cir. 1992) (for illiterate and semi- literate prisoners, "there can be no meaningful access to the judicial system unless some literate person is avail- able"), cert. denied, 113 S. Ct. 1415 (1993); Cruz v. Hauck, 627 F.2d 710, 721 (5th Cir. 1980) (same): Valentine v. Beyer, 850 F.2d 951, 956 (3d Cir. 1988) (same). See also Battle v. Anderson, 614 F.2d 251, 255- ___________________(footnotes) McKinney v. Anderson, 924 F.2d 1500, 1502 (9th Cir.), vacated sub nom. Helling V. McKinney, 502 U.S. 903 (1991). See also Gideon v. Wainwright, 372 U.S. 335, 337& n.1 (1903) (noting, in a case recogniz- ing indigent defendants' right to appointed counsel in criminal trials, that petitioner's habeas corpus petition was "signed and apparently prepared by petitioner himself "). ---------------------------------------- Page Break ---------------------------------------- 19 256 (lOth Cir. 1980) (remanding for further proceedings to determine the level of assistance actually provided to illiterate inmates by inmate writ writers). As discussed above, the right of access of a literate, English-speaking inmate is generally satisfied by providing the inmate with an adequate law library. In our view, in order to satisfy illiterate or non-English speaking inmates' constitutional right of access, such inmates must be afforded an equivalent level of access. Because books alone do not assist illiterate or non-English speaking inmates, additional modes of language and writing assistance must be available to provide those inmates meaningful access to the courts. 13. Illiterate inmates' right of access to the courts may be met through the assistance of fellow inmates who are literate. Similarly, where adequate numbers of literate, bilingual inmates exist within an institution, their aid to non-English speaking inmates in preparing legal docu- ments can alone be constitutionally sufficient. In some circumstances, however, inmate assistance alone may not be adequate to provide a substantial population of illiter- ate or non-English speaking inmates with access to the courts that is equivalent to that of literate, English ___________________(footnotes) 13 Contrary to petitioners' contention (Pet. Br. 7, 34), the require- ment that a population of illiterate and non-English speaking inmates be afforded competently assistance in preparing legal materials does not constitute "optimal access." We do not understand the court of appeals to have held that prison officials may afford constitutionally adequate judicial access to illiterate and non-English speaking inmates only by providing bilingual legal assistants who are trained in the law. The court's central holding, rather, is that the Constitution requires a system that affords substantial groups of illiterate or non-English speaking inmates the same opportunity to prepare and file legal papers as is available to inmates who are sufficiently literate in English to enable them to use petitioners' law libraries, ---------------------------------------- Page Break ---------------------------------------- 20 speaking inmates who have access to a prison law library. This will be true, for example, where (as the district court found in this case) there are insufficient numbers of other prisoners who are literate, available to help, and able to communicate effectively with those who need assistance. In such circumstances, the Constitution does not re- quire that a prison system provide any particular mode of assistance. For example, in addition to inmate-to- inmate assistance, institutions may adequately address the access needs of illiterate and non-English speaking inmates by making interpreters and readers available in order to translate legal materials into an understand- able form and to facilitate the drafting of pleadings. Alternatively, institutions may choose to facilitate contacts by prisoners with legal resources outside the prison, or to arrange with outside organizations to provide legal or paralegal representation (and, where appropriate, translation services) to particular inmate populations. The common practice of supplementing prison law libraries with some form of professional legal counseling or representation 14. is another method of providing constitutionally adequate access to the courts. Bounds v. Smith, 430 U.S. at 830-831. In this case, the trial court found that ADOC officials do not provide any system of assistance that promises to afford meaningful access to inmates who are unable to use a law library on their own because they do not speak ___________________(footnotes) 14 The Bounds Court noted that, at the time of the decision in that case, "[n]early half the States and the District of Columbia provide[d] some degree of professional or quasi-professional legal assistance to prisoners." 430 U.S. at 830-831. See also current Federal Bureau of Prisons regulations, 28 C.F.R. 543.15, providing for the maintenance of legal aid programs funded approved by the Bureau. ---------------------------------------- Page Break ---------------------------------------- 21 English or because they lack the ability to read and write. Pet. App. 25a, 44a. Although petitioners state (Pet. Br. 8) that non-English speaking inmates "may obtain assistance from bilingual law clerks, legal assis- tants, staff members or inmate translators: the district court expressly found that the bilingual inmates on whom non-English speaking inmates rely are frequently unable to provide adequate assistance, and that many ADOC facilities have no bilingual legal assistants or law clerks. Pet. App. 29a. The district court further found that the legal assistants and law clerks designated by the ADOC to aid non-English literate prisoners were inadequate in number, and lacked the basic skills necessary, to provide meaningful assistance to those inmates. There is no indication that the district court's factual findings as to the assistance actually available to illiterate and non-English speaking inmates were clearly errone- ous. The court of appeals therefore correctly affirmed the district court's finding that petitioners failed to provide constitutionally adequate court access to those inmates. C. Cognizable Injury Petitioners argue (Pet. Br. 30-31) that the lower courts improperly imposed liability in this case without proof that ADOC policies or practices actually denied inmates access to the courts. That argument is incorrect. At issue in this case is prisoners' right to "a reasonably adequate opportunity" to present constitutional claims to the courts. Bounds v. Smith, 430 U.S. at 825. That opportunity is denied, and the right infringed, when prison officials fail to provide an effective system of ---------------------------------------- Page Break ---------------------------------------- 22 judicial access. 15. " 'In our adversary Legal system, few things can be as prejudicial as the denial of basic legal resources.' When an inmate complains that the basic elements needed to use that system are lacking, `the complaint carries an inherent allegation of prejudice.'" 2 M. Mushlin & D. Kramer, .supra, 511.01, at 11 (quoting DeMallory v. Cullen, 855 F.2d at 449) (footnote omitted). Petitioners' contention (Pet. Br. 32) that inmates' rights are violated only when their individual claims are extinguished or dismissed due to lack of assistance is con- trary to this Court's access cases. In Johnson V. Avery. 393 U.S. 483 (1969), for example, the Court invalidated a prison regulation prohibiting inmates from assisting each other in legal matters. The Avery Court did not require a showing that uneducated inmates had missed a filing deadline or had had claims dismissed, but instead relied on the district court's finding that, "if [illiterate] prison- ers cannot have the assistance of a `jail-house lawyer,' their possibly valid constitutional claims will never be heard in any court." Id. at 487. Where an inmate alleges an isolated or episodic denial of judicial access, that inmate should be required to dem- onstrate actual prejudice-i.e., that the challenged denial ___________________(footnotes) 15 The court of appeals stated that "it is the State's burden to provide meaningful access and to demonstrate that its chosen method is adequate." Pet. App. 5a (correct in original). If, by that language, the court meant to place on the defendants the burden of demonstrating the absence of a constitutional violation, it was mistaken. See, e.g., Metropolitan Casualty Ins. Co. v. Brownell, 294 U.S. 580, 584 (1935) ("the burden of establishing the unconstitutionality of a statute rests on him who assails it"); Wygant v. Jackson Bd. of Educ., 476 U.S. 267.277-278 (1986) (plurality) (same). The questions presented by the petition. however, do not turn on disputed factual findings. We do not believe, therefore, that the burden of proof employed below is pertinent to this Court's decision. ---------------------------------------- Page Break ---------------------------------------- 23 actually had, or is about to have, an adverse effect on the inmate's existing or putative constitutional claim. Here, as in Avery, however, the district court identified a systemic failure by prison officials to provide meaningful access to substantial components of the inmate popula- tion. The court's finding that respondents sought to, but could not, utilize petitioners' system to research, pre- pare, or file meaningful legal papers (e.g., Pet. App. 24a, 25a, 28a) suffices to establish a violation of respondents' access rights. 16. ___________________(footnotes) 16 The district court expressly found that, "[a]s a result of the in- ability to receive adequate legal assistance, prisoners who are slow readers have had their cases dismissed with prejudice," and that "[o]ther prisoners have been unable to file legal actions." Pet. App. 25a. As to illiterate inmates, the district court's ruling satisfies even peti- tioners' overly stringent prejudice requirement. There has been disagreement among the courts of appeals as to whether inmates must demonstrate "actual prejudice" in cases, like the present one, of systemic failure to provide meaningful access. Compare DeMallory v. Cullen, 855 F.2d at 448 (showing of actual prejudice required "only where minor or indirect limitations on access to courts are alleged"); Peterkin v. Jeffes, 855 F.2d 1021, 1041 (3d Cir. 1988) (actual prejudice standard applies only to "ancillary features" of court access systems, not to cases "directly involving prisoners' access to legal knowledge"); and Chandler v. Baird, 926 F.2d 1057, 1063 (llth Cir. 1991) (dicta indicating that a showing of prejudice should not be required in class actions where the challenge "is systemic" or "go[es] to the heart of any meaningful access to libraries, counsel, or courts") with Crawford-El v. Britton., 951 F.2d 1314, 1322 (D.C. Cir. 1991) (depriva- tion must be linked to an "adverse litigation effect"), cert. denied, 113 S. Ct. 62 (1992). The substantial majority of circuits addressing the question have held that, although a showing of prejudice is required where an inmate alleges episodic or minor denials of court access, such a showing is not required in cases of systemic failure. See Pet. App. 41a (citing Sands v. Lewis, 886 F.2d 1166, 1171 (9th Cir. 1989)). The court of appeals in this case declined to address the question of ---------------------------------------- Page Break ---------------------------------------- 24 II. THE FEDERAL BUREAU OF PRISONS' ACCESS PROCEDURES ILLUSTRATE ONE METHOD OF PROVIDING CONSTITUTIONALLY ADEQUATE COURT ACCESS TO DIVERSE INMATE POPULA- TIONS In the two decades since the Bounds decision, the Fed- real Bureau of Prisons (BOP) has developed a system of policies, materials, and services designed to facilitate judicial access by federal inmates. Through the available- it of library access, inmate assistance, and self-help ma- trials, BOP provides meaningful access to all categories of BOP inmates, while accommodating each institution's security, administrative, and fiscal concerns. BOP's ap- proach to the access right is not the only method of satisfying the access obligation, nor are any particular BOP access policies constitutionally required; the "intri- cacies and range of options are of sufficient complexity that state legislatures and prison administrators must be given `wide discretion' to select appropriate solutions." Murray v. Giarratano, 492 U.S. at 14 (Kennedy, J., concurring in the judgment) (quoting Bounds v. Smith, 430 U.S. at 833). However, BOP's legal access system provides one effective method of accommodating in- mates' interests as well as legitimate correctional con- cerns. See Turner v. Safley, 482 U.S. at 93 (considering, inter alia, BOP practices and policies in determining whether feasible alternatives to state prison's inmate cor- respondence restrictions existed); Procunier v. Martinez, 416 U.S. 396, 414 n.14 (1974) ("While not necessarily con- trolling, the policies followed at other well-run institu- tions would be relevant to a determination of the need for a particular type of restriction."). ___________________(footnotes) "actual injury," concluding that that issue was "not now before [it]." Pet. App. 6a n.3. ---------------------------------------- Page Break ---------------------------------------- 25 BOP maintains a system of approximately 250 "main," "satellite camp," and "basic" law libraries to ensure that inmates in its 81 institutions are afforded meaningful access to the courts. See generally 28 C.F.R. 543.10- 543.16 ("Inmate Legal Activities"). Each BOP institution is required to maintain a main law library that contains, among other things, federal reporters, federal statutes and rules of procedure, federal regulations, BOP pro- gram statements, treatises, self-help manuals, forms, Shepard's Citations, and Spanish/English dictionaries. Satellite camp and basic law libraries contain the most commonly used materials from the larger main library collections, and may request other materials from the larger collections when necessary. Under BOP regulations, "[w]ith consideration of the needs of other inmates and the availability of staff and other resources, the Warden shall provide an inmate con- fined in disciplinary segregation or administrative deten- tion a means of access to legal materials, along with an opportunity to prepare legal documents." 28 C.F.R. 543.11(j), BOP inmates who are denied physical access to the main law library due to security or other concerns may utilize the basic or satellite camp libraries to per- form preliminary research, and then may request addi- tional materials from the main law library. Requests for additional materials are ordinarily made through an "Inmate Request to Staff Member" form, and are gener- ally filled by the institution's Education Department staff within a few working days of the request-although the volume of inmate demands in light of staffing resources may lengthen the time in particular cases. While some facilities provide inmates with the requested volumes, others provide photocopies of the materials to the inmate. Inmates may keep a reasonable quantity of personal legal ---------------------------------------- Page Break ---------------------------------------- 26 material in their living quarters, although the warden may limit the amount kept, based on safety or house- keeping concerns. See 28 C.F.R. 543.11(a) and(j). The Central Office Librarian, the Supervisor of Edu- cation, and their respective staffs are responsible for the system-wide coordination of library services. Institu- tions ordinarily have inmate law clerks on duty to pro- vide assistance with materials and to answer general questions. Absent special security concerns, inmates can and do assist each other in performing legal research and pre- paring legal documents. 28 C.F.R. 543.11(f). 17. Inmate law clerks provide assistance to other inmates in utilizing library materials and, in some institutions, aid in the preparation of legal documents. 18. In addition, BOP staff ___________________(footnotes) 17 In eight institutions BOP has established formal legal aid pro- grams, which are operated in conjunction with legal organizations and law schools. Those programs provide inmates. with an array of legal services, including the preparation of habeas corpus petitions and civil rights claims. See 28 C.F.R. 543.15(a) (providing that such programs "[are] expected to provide a broad range of legal assistance to inmates." and that "[s]taff shall allow these programs generally to operate with the same independence as privately retained attorneys"). Where such programs are in effect, BOP regulations permit wardens to impose restrictions on inmate-to-inmate assistance 18 As a result of the decision in Knop v. Johnson, supra (requiring the Michigan Department of Corrections to provide trained inmate assistants to illiterate and non-English speaking inmates), BOP has established a pilot program within the Sixth Circuit, under which inmate law clerks are trained and specifically assigned to assist inmates who are illiterate, have limited mental capacities, or do not speak English, in researching and preparing legal documents. BOP selects inmate law clerks for that program based on the applicant's education, prior legal research experience, language and writing skills, and projected release date. Inmates applying for law clerk positions are required to study a self-help manual and pass a written training ---------------------------------------- Page Break ---------------------------------------- 27 members frequently refer inmates to outside legal organizations, provide inmates with form pleadings fur- nished by local courts, answer questions about BOP policy, and facilitate attorney-client visitation. Illiterate and non-English speaking inmates have their court access needs met through a combination of these methods at different BOP facilities. 19. Assistance from fellow inmates and referral to resources that may be available in the community are the primary means employed. In addition, BOP institutions evaluate an inmate's English language skills when the inmate enters the facility. They also provide general education pro- grams to poorly educated inmates, 'in order to improve those inmates' literacy and other skills. BOP provides mandatory instruction in literacy skills and English as a second language for illiterate and non-English speaking inmates. 18 U. S. C. 3624(f) (Supp. V 1993). 20. ___________________(footnotes) examination. Inmates in need of assistance may request the aid of an inmate law clerk through an "Inmate Request to Staff Member" form, and a specific time is designated by prison authorities for the inmate to meet with the law clerk. This approach is one constitutionally per- missible method to meet the access needs of these prisoners; we believe that the methods employed in other BOP facilities also satisfy the requirements of the Constitution. 19 Approximately 9.5% of the BOP inmate populations non-English speaking. Bilingual BOP staff and inmates provide assistance to non- English speaking prisoners in day-to-day matters. BOP institutional rules are routinely translated into Spanish by the Central Office, and translations of rules into other languages are obtained as necessary, based on the characteristics of each facility's population. 20 There are currently three class actions pending against the Immigration and Naturalization Service (INS) in which detained aliens allege that they have been denied access to the courts. See Kattola v. Reno, No. CV 94-4859KN (C.D. Cal.); CARECEN v. Reno, No. CV 93-4162KN (C.D. Cal); Imasuen v. Moyer, No. 91 C 5425 (N.D. Ill.). Those cases raise issues that may be substantially different from ---------------------------------------- Page Break ---------------------------------------- 28 III. THIS COURT SHOULD BE GUIDED BY TRADI- TIONAL EQUITABLE PRINCIPLES IN DETER- MINING WHETHER THE REMEDY ADOPTED IN THIS CASE WAS AN ABUSE OF DIS- CRETION We leave to the parties the fact-specific question whether the district court abused its discretion in order- ing the particular relief contained in its injunction in this case. We note, however, several general considerations ___________________(footnotes) those involved in this case. The constitutional principles applicable here do not necessarily apply to aliens detained under the authority of the federal immigration laws. See, e.g., Reno v. Flores, 113 S. Ct. 1439, 1449 (1993) ("[I]n the exercise of its broad power over immigra- tion and naturalization, Congress regularly makes rules that would be unacceptable if applied to citizens.") (internal quotation marks omitted); Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 212 (1953) ('Whatever the procedure authorized by Congress is, it is due process as far as [excludable aliens are] concerned."> INS v. Lopez -Mendoza, 468 U.S. 1032, 1038-1039 (1984) (various protections that are applicable in criminal proceedings do not apply in deportation proceedings because such proceedings are purely civil). INS detainees are also often in a significantly different position with regard to court access from the position of inmates imprisoned as the result of criminal convictions. The legal issues concerning their immigration status are decided in an administrative, not a judicial, forum, and they routinely appear before an immigration judge within a matter of weeks after their detention, at which time an interpreter is provided. The aver- age length of detention of an INS detainee is only about 27 days and, unlike most convicted inmates, many detainees are eligible for release on bond during immigration proceedings. In addition, many INS detainees are dispersed in local jails for short-term detention. Because of the relatively brief duration of most INS detentions, training detainees to serve as legal assistants is not a viable option. INS detains over 80,000 individuals over the course of each year; at any one time, 7,000 to 7,500 are in INS custody. INS detainees speak more than 100 different native languages and dialects, and a great many are not English-literate. ---------------------------------------- Page Break ---------------------------------------- 29 that, in our view, should guide this Court in evaluating the district court's remedial order. "Running a prison is an inordinately difficult under- taking that requires expertise, planning, and the commit- ment of resources, all of which are peculiarly within the province of the legislative and executive branches of government." Turner v. Safley, 482 U.S. at 84-85. Where state prison systems are involved, moreover, "fed- eral courts have * * * additional reason to accord deference to the appropriate prison authorities." Id. at 85; see also Procunier v. Martinez, 416 U.S. at 405. "Once a right and a violation have been shown," how- ever, "the scope of a district court's equitable powers to remedy past wrongs is broad, for breadth and flexi- bility are inherent in equitable remedies." Swarm v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 15 (1971). Although the remedy imposed must "be related to the condition alleged to offend the Constitution," Missouri v. Jenkins, 115 S. Ct. 2038, 2049 (1995) (internal quotation marks omitted), courts may, under certain circumstances, impose remedial obligations that exceed minimum constitutional requirements. Because a central goal of equitable relief is to restore the victims of unconstitutional conduct "to the position they would have occupied in the absence of such con- duct," Milliken v. Bradley, 418 U.S. 717, 746 (1974) (Milliken Z); see also Milliken v. Bradley, 433 U.S. 267, 281 (1977) (Milliken II), a remedial decree may impose affirmative obligations designed to achieve that goal, id. at 281-282. In addition, the district courts have both the power and the duty to consider recalcitrance and delay on the part of a party in fashioning a complete and effective remedy. A district court's experience with a problem and knowledge of local conditions warrant ---------------------------------------- Page Break ---------------------------------------- 30 substantial deference, Hutto v. Finney, 437 US. 678, 688 (1978), and may justify a prophylactic response to a recurring or intractable concern, see id. at 687 ("taking the long and unhappy history of the litigation into account, the [district] court was justified in entering a comprehensive order to insure against the risk of inadequate compliance"); see also United States v. Paradise, 480 U.S. 149, 176 (1987) (plurality opinion). Finally, state authorities "have primary responsibility for curing constitutional violations." Hutto v. Finney, 437 U.S. at 687 n.9. Accordingly, once a violation is iden- tified, local officials should be given an opportunity to propose and implement an effective remedy. Milliken II, 433 U.S. at 281. If, however, "[those] authorities fail in their affirmative obligations * * *, judicial authority may be invoked." Swarm v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. at 15. Where the constitutional viola- tion at issue may be remedied in a variety of ways, the district court, upon the State's default, is entitled to select and implement a specific remedial scheme. ---------------------------------------- Page Break ---------------------------------------- 31 CONCLUSION With respect to the issues discussed herein, the judg- ment of the court of appeals should be affirmed. Respectfully submitted. DREW S. DAYS, III Solicitor General DEVAL L. PATRICK Assistant Attorney General PAUL BENDER Deputy Solicitor General ALAN JENKINS Assistant to the Solicitor General STEVEN H. ROSENBAUM LOUISE A. LERNER REBECCA K. TROTH Attorneys SEPTEMBER 1995