Restricted prison visits a bad idea
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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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