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Restricted prison visits a bad idea

Carter C. White
White

By CARTER C. WHITE

Thirty years ago, a federal court in California rejected an attempt by the California Department of Corrections (CDC) to ban law students and paralegals from conducting attorney-client interviews with inmates. The CDC appealed it all the way to the U.S. Supreme Court - and lost. In Procunier v. Martinez, 416 U.S. 396 (1974), the court held that the ban was an unjustifiable restriction on prisoners' right of access to the courts.

Last summer, the CDC attempted to resurrect this ban by attaching similar restrictions to proposed regulations. Because of the department's 11th-hour move to alter an existing proposal, only 15 days of written comments were allowed, and no public hearing was held, on the proposed rule changes.

At this writing, the ban has not been implemented. It shouldn't be. It's a bad idea that would unduly restrict prisoners' access to the few legal services programs currently available to them and would place unnecessary restrictions on certified law students.

Today, legal visits with inmates in California state prisons can be conducted by attorneys, investigators, certified law students sponsored by attorneys, certified paralegals and full-time employees of attorneys or investigators. Each acts as a representative of the attorney and is sent into the prison by the attorney or licensed private investigator working under the direction of an attorney. This relationship is demonstrated by an attorney's letter to the warden authorizing the representative to act for the attorney. The CDC conducts criminal background checks on all attorneys and attorney representatives before they will be admitted into prison. This has worked well. The two clinics at U.C. Davis which routinely represent prisoners have a combined track record of law students visiting hundreds of inmate clients over more than 25 years without incident.

The recent proposals eliminate several categories of "other persons" currently allowed confidential attorney visits with inmates. Visits would be limited to attorneys, licensed private investigators and legal paraprofessionals certified by a state bar association or having a diploma or degree from a paralegal training course. Under the proposal, law students will be allowed to visit a client only if accompanied by their supervising attorney.

What possible justification could the department have for attempting to reinstate restrictions ruled unconstitutional three decades ago? So far, CDC has not explained its radical new position. State agencies normally submit detailed "statements of reasons" to justify regulatory changes. CDC avoided this legal requirement by tacking the new restrictions on prisoner attorney visits on to modifications it already was in the process of making to rules primarily affecting inmate family visits.

One justification offered by the CDC - that it is only conforming with State Bar rules in not allowing certified law students to have client meetings without a supervising attorney present - is simply not accurate. The bar allows many second- and third-year law students limited permission to do supervised legal work. Although State Bar rules require the direct and immediate supervision and physical presence of the supervising attorney for depositions and court appearances, the rules specifically require only "general supervision" for giving legal advice to clients. U.S. Court of Appeals for the Ninth Circuit and federal district court student practice rules have similar language.

In practice, one-on-one visits with clients by certified law students serve a vital role in the pursuit of justice on be-half of an underserved client community, and at the same time provide for the practical training of law students. Before visiting a prisoner, a law student meets with his or her supervising attorney to discuss the purpose and parameters of the visit. Following the visit, the student reports back to the attorney to provide an update of the matters discussed during the visit. The department has not cited any abuses of the current rules, and current requirements would allow for punishment by barring any student who would abuse visiting privileges.

The practical impact of the department's proposal would be a dramatic reduction of services by the few legal clinics in the state which represent CDC inmates. Fewer client visits would be possible given the constraints on the supervising attorney's time. Inmates would receive less quality service and the representation, which is much appreciated by the courts, will suffer. Unless CDC comes up with a rational justification for this draconian measure, it should be rejected.

  • Carter C. White is supervising attorney of the King Hall Civil Rights Clinic at the U.C. Davis School of Law. The clinic represents indigent plaintiffs in civil rights cases by appointment of the U.S. District Court for the Eastern District of California and the U.S. Court of Appeals for the Ninth Circuit.
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