453 F.2d 661 (5th Cir. 1971), 31116, Novak v. Beto

Docket Nº:31116.
Citation:453 F.2d 661
Party Name:Ronald NOVAK, individually and on behalf of all others similarly situated, and Fred Cruz, Petitioners-Appellants, v. Dr. George J. BETO, Director of the Texas Department of Corrections, Respondent-Appellee.
Case Date:December 09, 1971
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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453 F.2d 661 (5th Cir. 1971)

Ronald NOVAK, individually and on behalf of all others similarly situated, and Fred Cruz, Petitioners-Appellants,


Dr. George J. BETO, Director of the Texas Department of Corrections, Respondent-Appellee.

No. 31116.

United States Court of Appeals, Fifth Circuit.

December 9, 1971

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William Bennett Turner, San Francisco, Cal., Frances T. Freeman Jalet, Houston, Tex., for petitioners-appellants.

Mario G. Obledo, Gen. Counsel, San Francisco, Cal., for Mexican American Legal Def., amicus curiae.

Harrell Moore, Larry J. Craddock, Asst. Attys. Gen., Austin, Tex., for respondent-appellee.

Before TUTTLE, THORNBERRY and INGRAHAM, Circuit Judges.

THORNBERRY, Circuit Judge:

Appellants are inmates in custody of the Texas Department of Corrections. In this class action brought under 42 U.S.C.A. § 1983 they challenge the constitutionality of various aspects of the treatment accorded them by the Texas prison system. Specifically at issue is whether the Texas Department of Corrections (TDC) regulation banning all inmate assistance in the preparation of writs of habeas corpus and other legal work is, under the teaching of Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718 (1968), unconstitutional even though what appellee contends to be reasonable alternatives are in existence; whether the loss of statutory good time by those who have violated this regulation is justified; and whether, in light of the special circumstances peculiar to Death Row inmates, the regulation, at least as applied to them, is unconstitutional. In addition, appellants attack the conditions of solitary confinement as administered in Texas as constituting "cruel and unusual punishment" in violation

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of the Eighth and Fourteenth Amendments.

The district court, 320 F.Supp. 1206, found against appellants on all of these issues. We conclude, however, that in light of Johnson v. Avery, supra, and Beard v. Alabama Bd. of Corrections, 5th Cir. 1969, 413 F.2d 455, the legal assistance regulation in question cannot stand. We affirm the district court's holding that solitary confinement as administered in Texas is not unconstitutional.

Inmate Assistance

In Johnson v. Avery the Supreme Court held that Tennessee could not constitutionally ban fellow-prisoner assistance in the preparation of habeas corpus petitions so long as the state provided prisoners with no alternative assistance, since such a regulation effectively denied indigent, illiterate prisoners any access to the courts. As the Court stated:

There can be no doubt that Tennessee could not constitutionally adopt and enforce a rule forbidding illiterate or poorly educated prisoners to file habeas corpus petitions. Here Tennessee has adopted a rule which, in the absence of any other source of assistance for such prisoners, effectively does just that.

The Court went on to notice that many states had alternative programs to supply legal assistance to prison inmates although it did not express its judgment concerning these plans. The Court did note their existence and indicated that "techniques are available to provide alternatives if the State elects to prohibit mutual assistance among inmates." Johnson v. Avery, 393 U.S. at 490, 89 S.Ct. at 751.

It is undisputed that Texas prison officials prohibit any form of legal assistance by one inmate to another. Appellees argue, however, that they have provided appellants with reasonable alternatives to inmate assistance and thus are in compliance with Johnson v. Avery. In examining these alternatives, the trial court noted:

The department provides at each of its units a "writ room," available each week during specified hours and in which an inmate must perform all his legal work. A small "library" is available there, and respondents have recently directed that prisoners be allowed to utilize the law books of fellow inmates as well as those maintained by the State. An extensive legal manual, composed in layman's language, will soon be available in the writ room and prison libraries to assist inmates in the preparation of petitions. In addition, prisoners may freely correspond with legal service organizations.


* * *

In September, 1969, the prison system employed an attorney, Mr. Harry Walsh, whose sole responsibility is the provision of legal assistance to inmates. Mr. Walsh testified that another full time attorney is now on the prison staff; that three senior law students were employed at the prison during the summer of 1970; and that law students may soon be available for inmate assistance throughout the year.

Clearly, the TDC has been making progress toward complying with the dictates of Johnson v. Avery and Beard v. Alabama Bd. of Corrections, supra, in which this Court said:

A regulation prohibiting the granting of assistance altogether might well be sustained if the state were to make available a sufficient number of qualified attorneys or other persons capable and willing to render voluntary assistance in the preparation of petitions for habeas corpus relief. Beard, 413 F.2d at 457.

Nevertheless, after studying the record carefully, we are unable to conclude, as the district court did, that the State carried the burden of proving that it provided at the time of trial a reasonable alternative to inmate legal assistance. The State has failed to convince us that its effort was sufficient.

Many questions were left unanswered by the State that would have been relevant

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to our inquiry into the adequacy of the State's alternatives to inmate assistance. For instance, we would have been interested to know how many of the approximately 12,000 prisoners in the TDC expressed a need for legal assistance in seeking post conviction relief. There is vague testimony that only a small number of the total prison population actually are interested in seeking post conviction relief, but that testimony was insufficient to present any clear picture of the magnitude of the problem. Additionally, we would have been interested to know how much time is required to handle each prisoner's file. It might be, for example, that many of the complaints concern rather routine matters that could be handled adequately in an hour's time. If this were the case, the fact that a single attorney handled 1300 files his first year might be less striking. Moreover, the hiring of a second attorney and three summertime law students should have relieved the situation considerably, but we were given very little specific information as to what degree, if any, the situation was relieved. Finally, we were told nothing specific about what amount of outside legal assistance in the form of legal aid and public defender programs might be available to prisoners. Johnson v. Avery appears to invite states to utilize such outside help in providing alternatives to inmate legal assistance.

What we have concluded, in short, is that although we cannot be certain from this record that the TDC has not provided a reasonable alternative to inmate legal assistance, neither can we be certain that the TDC has provided the requisite alternative. And since we think Johnson v. Avery places the burden of justifying its regulation against inmate legal assistance on the State, we must conclude that the State so far has failed in carrying that burden.

Having found that the State has failed to prove that it has provided a reasonable alternative to inmate assistance, we feel we should offer some guidance for future State action. We would require the State to carry the burden of justifying its regulation against inmate assistance by producing evidence that establishes in specific terms what the need is for legal assistance on habeas corpus matters in the TDC, and by demonstrating that it is reasonably satisfying that need. In defining the need for assistance and in responding to the need, TDC should give special consideration to the high illiteracy rate of the inmates, to the fact that a substantial number are Mexican-Americans who speak little English, and to the great geographical dispersion of the Texas correctional facilities. We would permit the state to draw upon any source of assistance available, whether it be voluntary or remunerated, and whether it be licensed or unlicensed to practice law, as long as that service could be systematically relied upon. We think the record in this case demonstrates that TDC has been making a substantial effort since Johnson v. Avery to provide a reasonable alternative to inmate legal assistance. The TDC could not, of course, develop a complete legal assistance program overnight. As soon, however, as the TDC has developed an alternative to inmate assistance that it feels would be acceptable to this Court, it will of course be free to return to court to seek approval of that alternative.

Because we are not convinced that Johnson v. Avery has been complied with in this case, we hold that the loss of good time suffered as a result of violating the regulation against inmate assistance must be restored to appellants.

Appellants also set forth the peculiar difficulties of Death Row prisoners in obtaining legal assistance. Some of the services performed by the "writ writers" included assisting Death Row prisoners obtain stays of execution. Because what we have decided regarding prisoners in general is applicable to those on Death Row, it is not necessary to examine their arguments separately.

Solitary Confinement

In view of recent tragic incidents in this Nation's prisons and of

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the frequent assertions of the inadequacy of our penal systems, the burden of judging weighs upon us more than usual as we turn to appellants' contention that solitary confinement as...

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