Harrell, In re

• Citation: 87 Cal.Rptr. 504,2 Cal.3d 675
• Decision Date: 18 June 1970
• Docket Number: 13855 and 13888,Cr. 13222,13383
• Court: United States State Supreme Court (California)
• Parties: , 470 P.2d 640 In re Hulen T. HARRELL on Habeas Corpus. In re Mervin Carlos McKINNEY on Habeas Corpus. In re Howard Neu INGRAM, Jr., on Habeas Corpus.

Page 504

87 Cal.Rptr. 504

2 Cal.3d 675, 470 P.2d 640

In re Hulen T. HARRELL on Habeas Corpus In re Mervin Carlos McKINNEY on Habeas Corpus In re Howard Neu INGRAM, Jr., on Habeas Corpus.

Cr. 13222, 13383, 13855 and 13888.

Supreme Court of California In Bank.

June 18, 1970.

As Modified on Denial of Rehearing July 15, 1970.

Hulen T. Harrell, in pro. per., and James T. Fousekis, San Francisco, under appointment by the Supreme Court, for petitioner Harrell.

Mervin Carlos McKinney, in pro. per.

Howard Neu Ingram, Jr., in pro. per., Paul N. Halvonik and Charles C. Marson, San Francisco, for petitioner Ingram.

Charles C. Marson and Paul N. Halvonik, San Francisco, as amici curiae on behalf of petitioner Harrell.

Thomas C. Lynch, Atty. Gen., Doris H. Maier and Albert W. Harris, Jr., Asst. Attys. Gen., Nelson P. Kempsky and George R. Nock, Deputy Attys. Gen., for respondent.

SULLIVAN, Associate Justice.

Hulen T. Harrell, Melvin Carlos McKinney and Howard Neu Ingram, Jr., are prison inmates in the lawful custody of the Department of Corrections--Harrell and Ingram at San Quentin Prison and McKinney at Folsom Prison. By separate petitions for a writ of habeas corpus, prepared in propriis personis, they complain of limitations placed by prison regulations and authorities upon their rights to give and receive mutual legal assistance, to have personal access to the courts, and to receive and have books and other printed materials. 'The writ of habeas corpus may be sought by one lawfully in custody for the purpose of vindicating rights to which he is entitled even in confinement. (In re Riddle (1962) 57 Cal.2d 848, 851, 22 Cal.Rptr. 472, 372 P.2d 304, and cases cited.)' (In re Allison (1967) 66 Cal.2d 282, 285, 57 Cal.Rptr. 593, 594, 425 P.2d 193, 194.) We issued individual orders to show cause and appointed separate counsel for each petitioner. Petitioner McKinney has discharged his appointed counsel and appears in propria persona. Since all three cases present common issues, we consider them together. ¹

Mutual Legal Assistance

Petitioners Harrell and McKinney complain of present limitations placed by prison regulations and authorities upon their efforts to provide legal assistance to other inmates. They claim that such present limitations are contrary to the principles enunciated by the United States Supreme Court in Johnson v. Avery (1969) 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718. Moreover, they contend that since discipline has been imposed upon them for the exercise of rights guaranteed by the Johnson decision, their records should be expunged of evidence of those disciplinary actions and the authorities should be ordered to ignore the same for future purposes of institutional classification and parole consideration.

We first consider the contentions made concerning certain present limitations upon mutual prisoner assistance. Out starting point for this purpose is the decision of the United States Supreme Court in Johnson v. Avery, Supra, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718.

In Johnson a Tennessee prisoner who had been disciplined for violation of a prison regulation prohibiting the rendering of legal assistance to other inmates sought relief by way of habeas corpus. The high court held that under the circumstances the effect of the regulation was to forbid illiterate or poorly educated prisoners to file habeas corpus petitions. It was pointed out that Tennessee did not provide any alternative means whereby such prisoners could gain access to the courts ² and that therefore the expedient of mutual prisoner assistance was constitutionally necessary and could not be forbidden. It was emphasized, however, that although mutual prisoner assistance must be allowed in the absence of suitable alternatives, there could be reasonable regulation of the practice in light of institutional circumstances. 'Even in the absence of such (alternative means of allowing illiterate and uneducated prisoners access to the courts), the State may impose reasonable restrictions and restraints upon the acknowledged propensity of prisoners to abuse both the giving and the seeking of assistance in the preparation of applications for relief: for example, by limitations on the time and location of such activities and the imposition of punishment for the giving or receipt of consideration in connection with such activities. Cf. Hatfield v. Bailleaux, 290 F.2d 632 (C.A. 9th Cir. 1961) (sustaining as reasonable regulations on the time and location of prisoner work on their own petitions.) But unless and until the State provides some reasonable alternative to assist inmates in the preparation of petitions for post-conviction relief, it may not validly enforce a regulation such as that here in issue, barring inmates from furnishing such assistance to other prisoners.' (Fn. omitted.) (393 U.S. at p. 490, 89 S.Ct. at p. 751.)

At the date of the Johnson decision (February 24, 1969) the Rules of the Director of Corrections (hereafter Director's Rules) specifically forbade mutual legal assistance among prisoners. Director's Rule D 2602 then provided in relevant part: 'No inmate shall assist or receive assistance from another in the preparation of legal documents. Any brief or petition not pertaining to his own case found in the possession of an inmate shall be confiscated.' The imposition of discipline for violation of this rule was also provided for in the Director's Rules.

However, on March 19, 1969, less than a month after the Johnson decision was rendered, the Director's Rules were altered in an effort to conform to the constitutional requirements there enunciated. Inserted at the beginning of that portion of the rules which deal with legal documents was a statement of policy providing as follows: 'It is the policy of the Department to allow inmates every legal access to the courts. The Department, however, is neither equipped nor authorized to assist inmates in their legal efforts except to provide staff assistance to inmates, who are illiterate or otherwise physically incapable, in the preparation of forms adopted under rules of the United States Courts and by the Judicial Council of California for petitions for Habeas Corpus or Modification of Custody. There will be a suitable place in each institution where inmates, with the permission of the designated employee, may have access to study such institution law books as are available to them. Law books are defined to include constitutions, codes, court reports, texts, and dictionaries.'

At the same time Director's Rule D 2602 was wholly revised. It now provides: 'One inmate may assist another inmate in the preparation of legal documents, but may not receive remuneration therefor. Remuneration is not limited to present benefits, but includes future as well as past benefits. A room or rooms may be designated by the Warden or Superintendent for this purpose. All briefs, petitions and other legal papers must be and remain in the possession of the inmate to whom they pertain.' (Italics added.)

A major question before us in this case is whether these amendments to the Director's Rules, and particularly the revised version of Rule D 2602, contain limitations upon the right of mutual assistance which are inconsistent with the principles enunciated in Johnson v. Avery. ³

It is clear at the outset that the March 19, 1969, amendments to the Director's Rules reflect a sincere effort to provide for the legal assistance of less literate inmates in a way which both complies with the Johnson decision and is consistent with the realities of prison life. Thus, the statement of policy which now precedes the body of rules dealing with inmate legal work indicates that staff assistance will be provided to illiterate inmates and others who are 'physically incapable' of preparing their own petitions. ⁴ More significantly from the standpoint of Johnson, the amended version of Rule D 2602 expressly provides for the assistance of such inmates by other inmates and contemplates that space will be made available to facilitate consultation. The rule's prohibition against remuneration, of course, is expressly sanctioned by Johnson. (393 U.S. at p. 490, 89 S.Ct. 747.)

A difficult problem is presented, however, by the fact that Rule D 2602 continues to prohibit the possession of legal papers belonging to another inmate. Petitioners, on the one hand, argue that this prohibition violates the principles of Johnson because it has the effect of preventing any meaningful legal assistance of one prisoner by another. Such assistance can be provided, it is urged, only if the advising inmate can have more or less extended access to the papers pertaining to the case in order to permit the legal research and drafting necessary to the preparation of a petition.

The Director, on the other hand, points out that the possession of one inmate's papers by another inmate can lead to undesirable consequences in the atmosphere of a custodial institution. Apparently experience has shown that a prisoner possessing the legal papers of another may through inadvertence or design allow such papers to become damaged or lost--and that such a situation can lead to ill feelings which may result in violence. Moreover, it appears that some inmates engage in the practice of withholding the legal papers of another inmate in order to enforce some kind of remuneration for legal services. In any event, it is clear that the possession of one inmate's legal papers by another gives the later a leverage to achieve that kind of dominance over the former which some 'writ-writers' have been known to enjoy. (See Hatfield v. Bailleaux (9th Cir. 1961) 290 F.2d 632.) In view of these considerations the Director maintains that the proscription against possessing legal papers of other inmates is a reasonable restriction 'upon the acknowledged propensity of prisoners to abuse both the giving and seeking of assistance in the preparation of ...