The Newsletter of North Carolina Prisoner Legal Services, Inc. \Glume 1, Issue 4, December 2000

NCPLS ACCESSThe Imposition of Disciplinary Administrative Fees

During June and July of 2000,inmates in custody of the NorthCarolina Department of Correction(DOC) received notice of severalchanges in DOC's Inmate Dis-ciplinary Policy and Proccdurcscheduled to take effect August 1,2000. These changes revise theclassification of offenses, the defi-nitions of certain offenses, estab-lish punishment modifications, andcreate new offenses. However,inmate correspondence to NCPLShas focused on DOC's intentionto begin assessing a $10.00 admin-istrative fee on all inmates whosedisciplinary hearings result in aguilty disposition. NCPLS hasbeen informed that the impositionof such administrative fees wasimplemented on August 28, 2000,and that no inmate should havebeen charged prior to that date.

In their letters, our clients havepointed out that they are often onextremely limited incomes, givenlow incentive wages; that theyare now required to use theirtnlst funds for co-payments formedical treatment; and that theyhave experienced ever-increasingrestrictions on personal property.In addition, many inmates expressconcern about the potential misuseof the new disciplinary procedures.

All of these are legiti-mate concerns. In thisarticle, NCPLS analyzesthe proposed regulationunder both federal andstate law, as well as thelikelihood of success-fully challenging themore troublesomeaspects of the regulation.As will be explainedmore fully, it appearsthat the proposed regula-tion will be consistent with all rel-evant legal requirements and withinthe discretion accorded correctionalofficials by the courts. It does notappear that there will be a soundlegal basis for challenging the regu-lation as it is drafted. (Whetherthere may be grounds for legalaction based upon the way the reg-ulation is applied will depend uponthe facts of a particular case.)

The Authority of the DOC toImpose This Regulation

Under the North Carolina Consti-tution, penal institutions may beoperated by the State "under suchorganization and in such manneras the General Assembly may pre-scribe." N.C. Const. Art. XI § 3.The operation of the state prisonsystem is governed by Chapter148 of the North Carolina GeneralStatutes. Section 148-4 of the Gen-eral Statutes provides that "[t]he

Secretary of Correction shall havecontrol of all prisoners serving sen-tences in the State prison systemand such prisoners shall be subjectto all the niles and regulationslegally adopted for the governmentthereof." Similarly, the Secretaryof Correction is given the authorityto adopt niles for governing of thestate prison system. N.C. Gen.Stat. § 148-11. The Department

Continued on page 3

Inside this Issue:

Imposition ofAdminstrati"..e Fees 1

Notice:NLPA 5

NCPLS Attorney Rich Giroux 6

. Access to.Courts: History o/NCPLS ....and its Relationship with the DOC 8

Update in Hamilton, et al. v. Beck, et al., Wake County No.96 CVS 6321

Page 2

Access is a publication of North CarolinaPrisoner Legal Services, Inc. Establishedin 1978, NCPLS is a non-profit, publicservice organization. The program is gov-erned by a Board of Directors who aredesignated by various organizations andinstitutions, including the North CarolinaBar Association, the North Carolina Asso-ciation of Black Lawyers, the North Caro-lina Association of Women Attorneys, andlaw school deans at UNC, Duke, NCCD,Wake Forest and Campbell.

NCPLS serves a population of morethan 32,500 prisoners and 10,000 pre-trialdetainees, providing information andadvice concerning legal rights and respon-sibilities, dis~ouraging frivolous litigation,working toward administrative resolutionsof legitimate problems, and providing rep-resentation in all State and federal courtsto ensure humane conditions of confine-ment and to challenge illegal convictionsand sentences.

Board of DirectorsPresident, Gary Presnell

Senator Frank W. Ballance, Jr.

Jim BlackburnJames A. Crouch, Esq.Professor Adrienne Fox

Professor Grady Jessup

Paul M. Green, Esq.Melinda Lawrence, Esq.

Barry Nakell, Esq.Susan Olive, Esq.

Professor Michelle RobertsonLou Ann Vincent, C.P.A.

Professor Ronald F. WrightFred Williams, Esq.

Executive DirectorMichael S. Hamden, Estj.

EditorBilly J. Sanders, CLAS

Articles, ideas and suggestions are wel-come: bsanders@ncpls.org

NCPLS ACCESS

On 3 July 2000, NCPLS clientswon a victory in Superior Com1when Judge Howard Manningfound that DOC's practice of alter-ing sentences is illegal. Plaintiffshad alleged that, in cases in whicha concurrent sentence has beengranted for a crime for which aconsecutive sentence is requiredby statute, DOC disregarded thejudgment for a concurrent sentenceand entered the sentence on theirrecords as consecutive. In casesin which CYO status was grantedto an inmate not eligible for it, theDOC refused to afford the inmatethe benefits of CYO status, accord-ing to the complaint. (There are10 categories of crimes in whichconsecutive sentences are requiredby law: 1st and 2nd degree burglaryunder the Fair Sentencing Act;armed robbery under the Fair Sen-tencing Act; habitual felon; violenthabitual felon; habitual impaireddriving; repeated felony with adeadly weapon; trafficking con-trolled substances; 1st and 2nddegree sexual exploitation of aminor; promoting and pm1icipatingin prostitution of a minor; and pos-session of drugs in jailor prison.)Judge Manning found plaintiffs'allegations to be true.

Plaintiffs sought a declaration fromthe com1 that this policy andpractice is unlawful, an injunctionagainst its continuation, and spe-cific performance of the sentenceor status imposed by the com1.Judge Manning declared the policyand practice illegal and grantedan injunction against its continu-

Vdume 1, Issue 4, December 2000

ation. The court ordered DOCto enter such sentences in accor-dance with the Judgment and Com-mitment Order. DOC was furtherinstructed to notify promptly thesentencing judge, the district attor-ney, and counsel for the defendantof the illegality of the judgment.The parties can then take appropri-ate action to resolve the matter.

However, the cOUl1 granted norelief to people whose sentenceshave already been changed. Evenso, DOC notified about three thou-sand inmates who may have beenaffected by the illegal practice,and more than 600 have alreadyrequested legal assistance fromNCPLS. In addition, the DOC willsend notice to any inmate who isaffected by the policy in the futureand who has his or her sentencemodified by the DOC.

In the meantime, an appeal hasbeen filed and DOC has asked theappellate court to delay enforcingthe lower court's order until theappeal has been decided.

NCPLS will keep inmates andother concerned individwualsupdated in future additions ofACCESS.

Update in Hamilton, et al. v. Beck, et al., Wake County No.96 CVS 6321

Page 2

Access is a publication of North CarolinaPrisoner Legal Services, Inc. Establishedin 1978, NCPLS is a non-profit, publicservice organization. The program is gov-erned by a Board of Directors who aredesignated by various organizations andinstitutions, including the North CarolinaBar Association, the North Carolina Asso-ciation of Black Lawyers, the North Caro-lina Association of Women Attorneys, andlaw school deans at UNC, Duke, NCCU,Wake Forest and Campbell.

NCPLS serves a population of morethan 32,500 prisoners and 10,000 pre-trialdetainees, providing information andadvice concerning legal rights and respon-sibilities, dis~ouraging frivolous litigation,working toward administrative resolutionsof legitimate problems, and providing rep-resentation in all State and federal courtsto ensure humane conditions of confine-ment and to challenge illegal convictionsand sentences.

Board of DirectorsPresident, Gary Presnell

Senator Frank W. Ballance, Jr.

Jim BlackburnJames A. Crouch, Esq.Professor Adrienne Fox

Professor Grady Jessup

Paul M. Green, Esq.Melinda Lawrence, Esq.

Barry Nakell, Esq.Susan Olive, Esq.

Professor Michelle RobertsonLou Ann Vincent, C.PA.

Professor Ronald F. WrightFred Williams, Esq.

Executive DirectorMichael S. Hamden, ESlj.

EditorBilly J. Sanders, CLAS

Articles, ideas and suggestions are wel-come: bsanders@ncpls.org

NCPLS ACCESS

On 3 July 2000, NCPLS clientswon a victory in Superior COUliwhen Judge Howard Manningfound that DOC's practice of alter-ing sentences is illegal. Plaintiffshad alleged that, in cases in whicha concurrent sentence has beengranted for a crime for which aconsecutive sentence is requiredby statute, DOC disregarded thejudgment for a concurrent sentenceand entered the sentence on theirrecords as consecutive. In casesin which CYO status was grantedto an inmate not eligible for it, theDOC refused to afford the inmatethe benefits of CYO status, accord-ing to the complaint. (There are10 categories of crimes in whichconsecutive sentences are requiredby law: 1st and 2nd degree burglaryunder the Fair Sentencing Act;armed robbery under the Fair Sen-tencing Act; habitual felon; violenthabitual felon; habitual impaireddriving; repeated felony with adeadly weapon; trafficking con-trolled substances; 1st and 2nddegree sexual exploitation of aminor; promoting and pmiicipatingin prostitution of a minor; and pos-session of dmgs in jailor prison.)Judge Manning found plaintiffs'allegations to be tme.

Plaintiffs sought a declaration fromthe court that this policy andpractice is unlawful, an injunctionagainst its continuation, and spe-cific performance of the sentenceor status imposed by the court.Judge Manning declared the policyand practice illegal and grantedan injunction against its continu-

Vdume 1, Issue 4, December 2000

ation. The cOUli ordered DOCto enter such sentences in accor-dance with the Judgment and Com-mitment Order. DOC was furtherinstmcted to notify promptly thesentencing judge, the district attor-ney, and counsel for the defendantof the illegality of the judgment.The parties can then take appropri-ate action to resolve the matter.

However, the court granted norelief to people whose sentenceshave already been changed. Evenso, DOC notified about three thou-sand inmates who may have beenaffected by the illegal practice,and more than 600 have alreadyrequested legal assistance fromNCPLS. In addition, the DOC willsend notice to any inmate who isaffected by the policy in the futureand who has his or her sentencemodified by the DOC.

In the meantime, an appeal hasbeen filed and DOC has asked theappellate court to delay enforcingthe lower court's order until theappeal has been decided.

NCPLS will keep inmates andother concerned individwualsupdated in future additions ofACCESS.

Page 3 NCPLS ACCESS \b lume I, Issue 4, December 2000

The Imposition of Administrative Fees continued from page 1

of Correction is exempt fromthe rule-making provisions of theState Administrative ProceduresAct "with respect to mattersrelating solely to persons in itscustody or under its supervision,including prisoners, probationers,and parolees." N.C. Gen. Stat. §150B-l(d)(6).

It is clear that the Secretary ofCorrection is vested with broadpowers t6 enact prison regula-tions. Any challenge to such aregulation must therefore be basedon a theory that the regulation vio-lates some provision of law, suchas the Due Process Clause of theU.S. Constitution.

Due Process

The Due Process Clausc of theFourteenth Amendment providesthat a state may not deprive anyperson of "life, liberty, or prop-erty, without due process of law."U.S. Const. Amend. XIV § I. Inorder to trigger either aspect ofthe Clause's protection, a personmust show that he has a protected"life, liberty, or property" interestat stake. Board ofRegents v.Roth, 408 U.S. 564, 577 (1972).Dobrovolny v. Moore, 126 F.3d1111 , III 3 (8th Cir.1997) cert.denied, 523 U.S. 1005, (1998);Beverati v. Smith, 120 F.3d 500,502 (4th Cir. 1997). Typically, theexistence of a protected interest isdetermined by whether a personhas a legitimate claim of entitle-ment to a thing, rather than simplyan abstract need or desire for it.

See Greenholtz v. Inmates oftheNeb. Penal and Con: Complex, 442U.S. 1,7 (1979)(quoting Board ofRegents v. Roth, 408 U.S. at 57 ).For example, a number of courtshave recognized that inmates havea protected property interest in theirprison trust fund accounts. Hamp-ton v. Hobbs, 106 F.3d 1281, 1287(6th Cir. 1997); Campbell v. Miller,787 F.2d 217, 222 (7th Cir.), cert.denied, 479 U.S. 1019 (1986); Gil-lihan v. Schillinger, 872 F.2d 935,939 (10th Cir. 1989); Jensen v.Klecker, 648 F.2d 1179, 1183 (8thCir. 1989). Once a person is deter-mined to have such a protectedinterest, the question then becomeswhat procedural steps must betaken by the State before the personcan be deprived of that interest.

According to the United StatesSupreme Court, "[d]ue process isflexible and calls for such proce-dural protections as the particularsituation demands." Greenholtz,442 U.S. at 12 (quoting Morrisey v.Brewer, 408 U.S. 471, 481 (1972)).Not all prison disciplinary proceed-ings are entitled to the full rangeof due process protections. How-ever, when an inmate faces a dis-ciplinary charge that involves thepotential loss of good time or gaintime, due process must be pro-vided. The minimal proceduralprotections include advance noticeof the charges; an opporhmity forthe inmate to be heard on thecharges; a written copy of dis-ciplinary findings; and a limitedright to call witnesses and presentdocumentary evidence where this"would not bc unduly hazardous to

institutional safety or correctionalgoals." WoljJv. McDonnnell, 418U.S. 539, 557-59 (1974). But,while a prison disciplinary actionmay not be wholly arbitrary, only"some evidence" is needed tosupport a disciplinary decision.Superintendent, MassachusettsCorrectional Institution at Walpolev. Hill, 472 U.S. 445, 454 (1985).Thus, reviewing courts do not re-weigh evidence, or make their ownassessments concerning the credi-bility of witnesses.

The DOC has established policiesrelating to disciplinary charges.These policies allow for 24 hoursadvance notice of the charges; theright of the inmate to make averbal and/or written statement tothe investigating officer; to requestthat witness statements be obtainedby the investigating officer, orthat specific witnesses or evidencebe presented at the disciplinaryhearing; to request the assistanceof a staffrepresenta-tive at thehearing; tobe read thesubstanceof theevidenceagainsthim and tohave theopportunity to explain or refute theevidence at the hearing; and theright to appeal any adverse decisionof the disciplinary hearing officer.Department of Correction - Divi-sion of Prisons Policy and Proce-

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Page 4 NCPLS ACCESS \b lume 1, Issue 4, December 2000

The Imposition of Administrative Fees Continued from page 3

dure Manual, 5 N.C.A.C. 2B.0204.These rights comply with the mini-mal requirements set forth by theSupreme Court in Wolff. Whileresearch has not revealed any casein which a court has considered theloss of property in the disciplinarycontext, it is unlikely that the courtswill require any procedural protec-tions greater than those involvingliberty interests.

Eighth Amendment

The Eighth Amendment prohibitsthe imposition of both "cruel andunusual punishments" and "exces-sive fines." U.S. Const. Amend.VIII. Unfortunately, neither provi-sion provides a promising basis forchallenging this regulation.

The Cruel and Unusual Punish-ments Clause bars the use ofsuch measures as torture andcorporal punishment, as well asexcessive sentences and inhumaneconditions of confinement. SeeEstelle v. Gamble, 429 U.S. 97, 102(l976)(the primary concern of thedrafters of the Eighth Amendmentwas to prohibit tortures and otherbarbarous methods of punishment);Johnson v. Quinones, 145 F.3d 164,167 (4th Cir. 1998)(quoting Wil-liams v. Benjamin, 77 F.3d 756, 761(4th Cir. 1996)). The imposition

of a monetary penalty does notinflict physical pain on an inmate,nor does it easily fit within judicialpronouncements that define "crueland unusual punishments."

The Excessive Fines Clause limitsthe government's power to extractpayment as a punishment for anoffense. Austin v. United States,509 U.S. 602, 609-610 (1993).While other states apparently doimpose monetary sanctions onprisoners which are called "fines,"the fees listed here are referred toas an "administrative fee." Nev-ertheless, this type of "fee" doescontain several characteristics ofa fine. In other contexts, theSupreme Court has noted that aforfeiture of property can be con-sidered a "fine" if it constihltespunishment for an offense. UnitedStates v. Bajakajian, 524 U.S. 321,328 (1998). Here there is littledoubt that one of the purposesbehind the imposition of such afee is to deter inmates from break-ing prison rules. Deterrence "hastraditionally been viewed as a goalof punishment." Bajakajian, 524U.S. 321,328.

Whether a $10.00 fee is "exces-sive" is governed by principles ofproportionality. Bajakajian, 524U.S. at 334. In the context ofpunitive forfeitures of property,the Supreme Court has noted that"[t]he amount of the forfeihlremust bear some relationship to thegravity of the offense that it isdesigned to punish." Id. Enforc-ing prison order and discipline areamong the highest of institutionalgoals. For this reason, courts may

be unwilling to view as excessive a$10 fee assessed after a determina-tion that prison disciplinary ruleshad been violated.

Other Possible Bases for a Con-stitutional Challenge

When a prison regulation impingesupon an inmate's constitutionalrights, such as the right of freespeech or to freely practice one'sreligion, for example, the SupremeCourt has established a test todetermine whether the regulation ispermissible. See 'RImer v. Safley,482 U.S. 78 (1987)(establishingthe "reasonableness test"); see alsoQ'Lone v. Estate ofShabazz, 482U.S. 342 (1987)(applying 'Rlrnerstandard to free exercise of religionclaim). The Turner Court lookedat: (1) whether there is a "valid,rational connection" between theregulation and a legitimate govern-mental interest which has been putforward to justifY it; (2) whetherthere are alternative means thatremain open for the inmate to exer-cise the constitutional right; (3)the extent to which accommodationof the right will have an impacton prison staff, other inmates, andthe allocation of prison resourcesgenerally; and (4) whether theregulation represents an "exag-gerated response" to prison con-cerns. 482 U.S. at 89-91. The'Ro'ner Court, while recognizingthat prison inmates are not com-pletely deprived of protectionunder the Constihltion, also notedthat comis should give deference tothe decisions of prison admin-

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Page 4 NCPLS ACCESS \t lume 1, Issue 4, December 2000

The Imposition of Administrative Fees COlltinuedfrom page 3

dure Manual, 5 N.C.A.C. 2B.0204.These rights comply with the mini-mal requirements set forth by theSupreme Court in Wolff. Whileresearch has not revealed any casein which a court has considered theloss of property in the disciplinarycontext, it is unlikely that the courtswill require any procedural protec-tions greater than those involvingliberty interests.

Eighth Amendment

The Eighth Amendment prohibitsthe imposition of both "cruel andunusual punishments" and "exces-sive fines." U.S. Const. Amend.VIII. Unfortunately, neither provi-sion provides a promising basis forchallenging this regulation.

The Cruel and Unusual Punish-ments Clause bars the use ofsuch measures as torture andcorporal punishment, as well asexcessive sentences and inhumaneconditions of confinement. SeeEstelle v. Gamble, 429 U.S. 97, 102(1976)(the primary concern of thedrafters of the Eighth Amendmentwas to prohibit tortures and otherbarbarous methods of punishment);Johnson v. Quinones, 145 F.3d 164,167 (4th Cir. 1998)(quoting Wil-liams v. Benjamin, 77 F.3d 756, 761(4th Cir. 1996)). The imposition

of a monetary penalty does notinflict physical pain on an inmate,nor does it easily fit within judicialpronouncements that define "crueland unusual punishments."

The Excessive Fines Clause limitsthe government's power to extractpayment as a punishment for anoffense. Austin v. United States,509 U.S. 602, 609-610 (1993).While other states apparently doimpose monetary sanctions onprisoners which are called "fines,"the fees listed here are referred toas an "administrative fee." Nev-ertheless, this type of "fee" doescontain several characteristics ofa fine. In other contexts, theSupreme Court has noted that aforfeiture of property can be con-sidered a "fine" if it constihltespunishment for an offense. UnitedStates v. Bajakajian, 524 U.S. 321,328 (1998). Here there is littledoubt that one of the purposesbehind the imposition of such afee is to deter inmates from break-ing prison rules. Deterrence "hastraditionally been viewed as a goalof punishment." Bajakajian, 524U.S. 321, 328.

Whether a $10.00 fee is "exces-sive" is governed by principles ofproportionality. Bajakajian, 524U.S. at 334. In the context ofpunitive forfeihlres of property,the Supreme Court has noted that"[t]he amount of the forfeituremust bear some relationship to thegravity of the offense that it isdesigned to punish." Id. Enforc-ing prison order and discipline areamong the highest of instihltionalgoals. For this reason, courts may

be unwilling to view as excessive a$10 fee assessed after a determina-tion that prison disciplinary ruleshad been violated.

Other Possible Bases for a Con-stitutional Challenge

When a prison regulation impingesupon an inmate's constitutionalrights, such as the right of freespeech or to freely practice one'sreligion, for example, the SupremeCourt has established a test todetermine whether the regulation ispermissible. See Turner v. Safley,482 U.S. 78 (1987)(establishingthe "reasonableness test"); see also0)Lone v. Estate ofShabazz, 482U.S. 342 (1987)(applying Turnerstandard to free exercise of religionclaim). The Turner Court lookedat: (1) whether there is a "valid,rational connection" between theregulation and a legitimate govern-mental interest which has been putforward to justifY it; (2) whetherthere are alternative means thatremain open for the inmate to exer-cise the constitutional right; (3)the extent to which accommodationof the right will have an impacton prison staff, other inmates, andthe allocation of prison resourcesgenerally; and (4) whether theregulation represents an "exag-gerated response" to prison con-cerns. 482 U.S. at 89-91. TheTurner Court, while recognizingthat prison inmates are not com-pletely deprived of protectionunder the Constihltion, also notedthat courts should give deference tothe decisions of prison admin-

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Page 5 NCPLS ACCESS Vdume 1, Issue 4, December 2000

The Imposition of Administrative FeesContinued from page 4

Notice

istrators in matters governinginstitutional operations. Id. at84-85. Fewprison regula-tions have beenfound invalidunder the Tw'nertest.

False Disciplin-:-ary Charges

Many inmates have expressed aconcern that the existence of thisnew fee will give prison officialsan additional incentive to fabricatecharges as a means of harassinginmates. Of course, the possi-bility of false disciplinary chargeshas always been a part of prisonlife, even when the permissiblepunishments only included theloss of good-time credits, segrega-tion, extra-duty, loss of privileges,etc. Since any fees assessed asa result of a disciplinary convic-tion would be applied to offsetadministrative costs, there wouldseem to be no personal, financialincentive for an officer to trumpup false charges. Of course, thepunishment for a disciplinary con-viction would for the first timecarry a financial burden. But anofficer who is inclined to misusethe disciplinary system to harassan inmate would probably do sounder any circumstances. It is dif-ficult to see how this new feewould increase abusive practices.

Conclusion

The imposition of this adminis-trative fee, coming onthe heels of the medicalco-payment and otherrecent policy changes,is of understandableconcern to inmates andtheir families. Never-theless, from the infor-

mation presently available, itappears that the regulation fallswithin the legal discretion courtsallow prison administrators.NCPLS will continue to monitorthis situation. In the meantime,inmates should realize that they dohave certain procedural rights indisciplinary matters. Where theybelieve that they are being improp-erly charged with an infraction,they should respectfully insist onthose rights, including the right toappeal any adverse ruling.

.,Our"Qffice bas receivednumerous complaints andinquiries about an Ohio;.based operation known asthe National LegalProfes*sional Association (NLPA).

Please be aware that our. office is not associatediJi""

any manner with NLPA.For yoiirinformatio·n, The~North Carolina State Baris presently investigating

. NLPA (State Bar File No.t OOAP0053).

Therefore, if you have hadproblems with NLPA,Youshould contact the StateBar at the below address:

The North Carolina State BarP~O. Box 25908Ralelgh,"NC"27611

Page 6

Rich Giroux:For more than 20 years at NCPLS,Richard E. Girouxh as been areliable and a remarkably effec-tive advocate for North Carolina'pnsoners.

Rich graduated from law school atthe University of North Carolinain 1976. After passing the bar,he began an 18m onth stintas a Vista Volunteer with theNOIih Carolina Commission onIndian/ Affairs. In addition toserving the Commission as In-house counsel, Richprovided communitylegal education andassisted his clients inresolving a variety ofproblems.

In 1979, Richaccepted a positionas staff attorney withNorth Carolina Pris-oner Legal Services,Inc. As a staff attor-ney, Rich advised prisoners oftheirlegal rights, interviewed applicantsfor legal services, and engaged inthe negotiation, trial, and appeal oflegal issues that affected the rightsof indigent prisoners.

The early 1980's brought sweepingchanges to the political landscapein this country and serious chal-lenges to the notion of equaljustice under law that had providedthe philosophical underpinning offederal support for the LegalServices Corporation. A s a result,and because prisoners

Page 7 NCPLS ACCESS Vdume 1, Issue 4, December 2000

Rich Giroux: Twenty Years of Service to Inmates Continued from page 6

the United States Supreme Courtissued its opinion. A ccording tothe Court, prison officials could notshield themselves from liability fordeliberate indifference to the seriousmedical needs of a prisoner throughthe device ofa contract. In reversingthe lower courts, the Supreme COUliestablished the principle that prisonofficials throughout the countryare responsible for meeting thebasic health needs of prisoners,irrespectiv'e of the methodologythey employ to meet those needs.West v. Atkins, 487U .S. 42, 108S.Ct. 2250, 101 L.Ed.2d 40 (1988).As a result, hundreds of thousands ofprisoners have benefitted. That casealso has had profound implicationswith respect to the privatization ofprisons, an initiative that has gainedmomentum in recent years.

In the aftetmath of that remarkablevictory, Rich somehow managed tore-direct accolades and attention toothers, prefen-ing instead quietly tocontinue his work f or his client inthe district court on remand.

The year following the Westd eci-sion, practically the same issue wasresurrected when prison officialsargued that the negligence of acontract doctor was not attributableto the State for purposes of a tortclaim brought in the NOlih CarolinaIndustrial Commission. The mostsignificant difference in this casewas that State law, and not federallaw, controlled. (Thus, Westw asnot binding precedent on NorthCarolina courts.)

It was again Rich who championed

the prisoner's cause, but this timehe won in the trial court and hadthe advantage of defending a favor-able decision from the IndustrialCommission to the NOlih CarolinaCourt of Appeals, Medley v . NorthCarolina Department ofCorrection,393S .E.2d 288 (N.C.App. 1990),and from the Court ofAppeals to theNorth Carolina Supreme Court.

In the State Supreme Court, Richargued that prison offic ials shouldnot be permitted to elude theirresponsibility to provide for themedical needs of prisoners througha contractual device, but shouldinstead be held responsible fornegligent medical practices ofwhichthey were (or should have been)aware. That argument prevailedwhen the Court announced itsdecision. Medley v. North CarolinaDepartment ofCorrection, 330 N.C.837,412 S.E.2d 654 (1992).

After more than seven years oflitigation, Rich succeeded in firmlyestablishing the principle that theprovision of medical care forprisoners is a non-delegable duty,for which responsibility lies inthe state. It would be hard toexaggerate the favorable impactthat principle has had on the livesof North Carolina inmates andprisoners across the nation.Westa nd Medleya re only two ofliterally hundreds of cases Richhas handled during his tenure atNCPLS.

His commitment to his clients andthe broader principles of socialjustice is an inspiration to allof Rich's colleagues. It is a

privilege to work with Rich, and thepeople incarcerated in this State arefOitunate to have so knowledgeableand dedicated an advocate.

NCPLS Staff Member appointedto Sentencing and Policy Advi-sory Commission.

North Carolina Prisoner Legal Ser-vices paralegal Billy Sanders hasbeen named to serve on the NorthCarolina Sentencing & PolicyAdvisory Commission. Sanderswas appointed to the Sentencing &Policy Advisory Commission on 4December 2000 by the HonorableW. Erwin Spainhour, who chairsthe Commission.

The Commission has the duty tomonitor and review the criminaljustice and corrections systems andthe juvenile justice system in NorthCarolina and make appropriaterecommedations to the GeneralAssembly regarding their findings.

The commisioon is comprised ofmembers representing variousintetests in the criminal justticesystem.

Page 8 NCPLS ACCESS Vdume 1, Issue 4, December 2000

Access to Courts: NCPLS and its Relationship with the DOCIn a 1977 case, the United StatesSupreme Court ruled that the statesmay not interfere with prisoners'attempts to take certain legal mat-ters into court. Smith v. Bounds,430 U.S. 817 (1977). The Courtfound that incarceration makes itdifficult for inmates to raise legit-imate legal concerns. For thatreason, the Court held that stateshave an affirmative duty to helpinmates by providingthem access either tolaw libraries and personstrained in the law, orto lawyers. Smith v.Bounds,Id. After thedecision, North Carolinaplanned to meet the con-stitutional standard byopening a number of prison lawlibraries and training inmate-volun-teers.

In 1978, Professor Barry Nakell,counsel for the plaintiff class in theBounds case, worked with others toestablish North Carolina PrisonerLegal Services. With a grant fromthe Law Enforcement AssistanceAdministration (LEAA), NCPLSwas chartered as a North Carolinanon-profit corporation in Januaryof that year. The program wascreated to provide legal assistanceto inmates in North Carolina jailsand prisons. NCPLS initially rep-resented inmates in cases challeng-ing conditions of confinement andassisted prisoners in bringing col-lateral attacks on unfair convictionsand illegal sentences.

In 1981, NCPLS became affiliatedwith Legal Services of North Caro-

lina, a grantee of the Legal Ser-vices Corporation. LEAA fundingwas discontinued, and LSC regu-lations prohibited the representa-tion of prisoners in post-convictioncases. For that reason, NCPLShad to shift its focus to providingassistance to prisoners in civil mat-ters. The program set specificpriorities to reduce the physicalabuse of prisoners, to improve the

conditions ofconfinementfor North Car-olina inmates,to ensure pris-oners' xcessto appropriatehealth care,

and to establish a fair procedurefor administrative decision-makingand grievance resolution. In accor-dance with these priorities, NCPLSrepresented prisoners in actionsinvolving assaults by prison offi-cers, failures to protect inmatesfrom violence, the inadequacy ofmedical treatment, injuries sufferedon prison jobs, inhumane livingconditions, and numerous othermatters.

In 1986, the Bounds plaintiffs chal-lenged DOC's law libraries asconstitutionally inadequate. TheUnited States District Court forthe Eastern District of NorthCarolina ruled that the State ofNorth Carolina had not satisfiedits Bounds obligation to provideinmates meaningful access to thecourts. Smith v. Bounds, 657F.Supp. 1322 (E.D.N.C. 1986),afJ'd, 813 F.2d 1299 (4th Cir.1987), afJ'd on reh 'g, 841 F.2d 77

(4th Cir. 1988), afJ'd, 488 U.S. 869(1988). The Court required theState to enter into a contract withNCPLS to provide the services ofattorneys who were independent,knowledgeable and experienced inprisoner rights law. Id. TheCourt's Order was implementedin 1989 through a contractualagreement between the North Caro-lina Department of Correction andLegal Services of North Carolina,to "provide professional [legal]advice and assistance to North Car-olina inmates ..." in post-convic-tion proceedings, detainers, claimsrelating to conditions of confine-ment, and cases brought under 42U.S.C. §1983.

Both the Bounds plaintiffs andNCPLS asked the Court to adoptmeasures to ensure that NCPLScould not be controlled by DOC.The parties negotiated, and theCourt adopted the following pro-visions to guarantee the indepen-dence ofNCPLS:

1. Independence: NC Rule ofProfessional Conduct 5.6 prohibitsa lawyer from accepting "compen-sation for representing a client fromone other than the client unless... (B) There is no interferencewith the lawyer's independence ofprofessional judgment or with theclient-lawyer relationship...."Accord, North Carolina RevisedRules of Professional Conduct,Rule 1.7(b). Under these and otherRules of Professional Conduct, it

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Page 9 NCPLS ACCESS \6lume 1, Issue 4, December 2000

Access to Courts: NCPLS and its Relationship with the DOC

is unethical for an attorney to putanyone's interests over that of hisclient, even when the attorney isbeing paid by someone other thanhis client.

Consequently, NCPLS advocatesare independent contractors and notDOC employees. Bounds Contract,~9. Like all lawyers, NCPLS attor-neys must exercise independentprofessional judgement on behalfof their clients.

2. Confidentiality: In gen-eral terms, the Rules of Profes-sional Conduct state that: "a lawyershall not knowingly:"

(1) reveal confiden-tial information of aclient;

(2) use confidentialinformation of aclient to the dis-advantage of theclient; or

(3) use confidentialinformation of aclient for the advan-tage of the lawyeror a third person,unless the clientconsents after con-sultation.

North Carolina Revised Rules ofProfessional Conduct, Rule 1.6(c).This ethical requirement was incor-porated into the Contract throughthe following provision:

Any inmate requestfor representation or

assistance and anycommunicationbetween [NCPLS]and an inmateregarding represen-tation or assistancemade pursuant tothis contract shall betreated as confiden-tial and privilegedeven if [NCPLS]declines to representthe inmate under theterms of this con-tract.

Bounds Contract, ~l.C.

3. Scope of Services: TheContract provided funding for legalservices related to habeas corpusactions and other postconvictionproceedings, detainers, and claimsrelating to conditions of con-finement, including cases broughtunder 42 U.S.C. §1983 and casesfiled in the North Carolina Indus-trial Commission.

4. Case Selection: It hasalways been lmderstood betweenthe parties that decisions aboutwhat kind of services NCPLS mayoffer a client, including whether toaccept a case for litigation, willbe made by NCPLS, alone. Morerecent Contracts have memorial-ized that understanding with thefollowing clause:

Upon receiving aninmate request forassistance, Contrac-tor will review theinmate's claim andmake an initial

Continuedfrom page 8determination as towhether the claim,in the professionaljudgment of Con-tractor, is meritori-ous. "Meritorious"shall be defined tomean: a claim thatis either legallyrecognized or onefor which a goodfaith argument couldbe made forrecognition andwhich could gener-ate either monetaryor injunctive reliefor both, but hasmore than de mini-mis value.

Bounds Contract, ~3.B.

During the eleven-year history ofour contractual relationship withDOC, these provisions have proveneffective in maintaining the inde-pendence ofNCPLS.

Of course, NCPLS has responsibili-ties to DOC that are also defined byContract. For example, NCPLS

shall make reason-able efforts to avoidlitigation, consistentwith the best inter-ests ofthe client(s),including but notlimited to exhaus-tion of any adminis-trative remedies andconsultation with

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Page 10 NCPLS ACCESS \blume 1, Issue 4, December 2000

Access to Courts: NCPLS and its Relationship with the DOC

the Attorney Gener-aI's Office concern-ing settlement, priorto filing suit.

Bounds Contract, ,-rl.D. (emphasisadded). NCPLS representativesmust "abide by ... all security rulesand regulations of the Department."Bounds Contract, ,-rS. And NCPLSmust maintain records and receiptsof all expe!1ditures to provide assur-ance to DOC that funds are beingused to fulfill contractualobligations. BoundsContract, ,-r8.

These provisions haveprovided DOC and theCourt assurances that theprogram is operated in aprofessional and respon-sible way.

In 1998, the Court granted theState's motion to dissolve theinjunction that required DOC tocontract with NCPLS. Thereafter,DOC voluntarily agreed, for thefirst time, to continue the contracton essentially the same terms.

Over the years, NCPLS has dealtwith a number of changes. Forexample, in January 1996, NCPLSended its IS-year relationship withLegal Services of North Carolinaand relinquished all Legal Servicesfunding in anticipation of federallegislation prohibiting the expendi-ture of any federal or private fundsreceived by a grantee agency forthe representation of prisoners. InApril 1996, Congress enacted thislegislation in the omnibus spendingbill. IfNCPLS had remained

within Legal Services, we could nothave represented prisoners, whichis the sole reason for the organiza-tion's existence.

Today, NCPLS provides a range ofservices, including legal assistancein both civil and post-convictionmatters. The program has a staff of32, which includes 15 lawyers and10 paralegals. NCPLS is governedby a 14-member Board of Direc-tors. The dean of the law schools at

UNC, Wake Forest,Duke and Camp-bell,eachdesignates a direc-tor to the Board.Other Board mem-bers are designatedby the North Car-olina Bar Associ-ation, the NorthCarolina Civil Lib-

erties Union, the Southern Prison-ers Defense Committee, the NorthCarolina Association of BlackAttorneys, and the North CarolinaAssociation of Women Attorneys.The remaining members are electedby the Board to include a memberof the General Assembly, a formerjudge, two former inmates, andothers.

About 98% of the program's fund-ing is now derived from theContract with the North CarolinaDepmiment of Conoection. NCPLSreceives additional funding from avariety of sources, including grantsfrom the North Carolina Bar'sIOLTA (Interest on Lawyers' TrustAccounts) program, grants fromprivate foundations, attorney feeawards in cases won by NCPLS

Continued from page 9

attorneys, and donations fromprivate individuals and organiza-tions.

Most of our clients are impover-ished prisoners who often haveno other hope of getting legalrepresentation than through ouroffice. There are more than32,000 prisoners in DOC, andanother 8,000 to 10,000 at anygiven time in the State's jails.Obviously, with the great demandfor our services, and given thepoverty of our clients and ourlimited resources, we are happyto have funding from any sourcethat will provide it. But our Con-tract with DOC and the Rules ofProfessional Conduct require thatNCPLS attorneys exercise inde-pendent professional judgementon behalf of our clients. It wouldbe unprofessional and unethicalto compromise our clients' inter-ests to maintain State funding,even if that meant the loss of allour revenue. That is the kind ofcompromise NCPLS will nevermake.

The existing Bounds Contracttechnically expired on 30 Sep-tember 2000. However, a provi-sion of the Contract requires acontinuation of the existing termsuntil an agreement to renew theContract is reached or one of theparties gives written notice of itsintention to terminate the rela-tionship in 120 days. Negotia-tions for a renewal of the BoundsContract are currently underway.