AT FIRST GLANCE, Governor Gary Locke's plan to eliminate the state's prison law libraries has the look of a classic budgetary red herring: a proposal so fundamentally unthinkable it is tossed out to divert attention from other aspects of the budget. When examined more closely, however, it appears to be state government's latest shell game.
The proposal outrages members of the legal community because the libraries provide fundamental access to the court system that is the right of everyone—even prisoners. For people who feel they have been wrongfully imprisoned, the only way to seek release is from the courts. As Joan Fairbanks of the Access to Justice Board explains: "You're in prison, and you don't have any money. And there's very few advocates out there who are going to do pro bono work for people in prison, and there's very limited legal services. If you don't have access to at least a law library, then you have officially been completely cut off."
"The budget should have nothing to do with it," she says.
Not only would wrongful imprisonment cases be affected, but the libraries also give prisoners the means to argue whether they are being unfairly treated inside prison. Judge James Murphy of Spokane, president of the state's Superior Judges Association, adds that prisoners' lives, and their involvement in the court system, don't begin and end with their convictions and incarcerations. "You get a lot of different kinds of cases that involve people who are in institutions. We have child dependency cases, termination cases, paternity suits, injury cases that may have preceded their incarceration." In all of these kinds of cases, prisoners frequently rely on the use of law libraries to represent themselves.
Locke's plan, embedded within the Department of Corrections' budget now before the Legislature, would cut some $1.2 million over two years from the prison system, eliminating funds for the law libraries and librarians. The DOC made the cut in response to Locke's request that all state agencies cut their budgets by 4 percent for the coming biennium.
The governor's office steadfastly denies that the proposal is anything but a straightforward cut. "This is a serious proposal," said Dick Van Wagenen, a spokesman for Locke. "It's not intended to serve in place of any other. If there were easier reductions to be made in that agency or in the state budget as a whole, I think we would have tried to make them."
Opponents have raised questions about the constitutionality of eliminating prison's law libraries; nevertheless, the US Supreme Court has ruled clearly on the subject. Justice Antonin Scalia authored a 1996 ruling, Lewis v. Casey, that dismissed states' obligations to maintain the libraries, saying prisons were required only to supply the requisite court forms to prisoners. Arizona and Idaho have already followed the court's lead and dismantled their prison law libraries.
And budget documents from Washington's DOC make it clear that, for budget cutters, law library elimination is red meat, rather than a red herring. Of all the potential sacrifices presented to Locke, it is the only one that the agency's officials don't argue presents a serious hardship.
SOME PEOPLE ARGUE the proposal will actually end up costing the state more money. Paul Wright, editor of Prison Legal News and himself an inmate at McNeil Island, says law libraries in prisons save the government money. Wright explains that most prisoners' lawsuits are decided through summary judgment. There is no trial; the judge simply reads the legal papers prepared by the prisoner and the response from the state, and decides the merits of the case alone. Now prisoners will be unable to prepare the legal paperwork inside prison, so the judge will have to hold a trial. "What this does is radically increase the expenses, for the state, of defending prisoner lawsuits because [the states] win 99 percent of the cases on summary judgment," observes Wright.
Judge Murphy also believes the elimination of the libraries will be expensive. "If it's a case that can be handled by summary judgment and a person has an opportunity to research the issue, state their opinion in their own brief, and argue it perhaps over a phone conference, we can dispose of the matter in a timely and efficient manner, if it's a well-taken motion. If they don't have that access [to law libraries], it's probably going to cost a lot more.
"[Judges] wouldn't have much choice, really, than to just set the matter for trial and let the person come in and defend themselves at trial. You're going to have to transport [the prisoners] and have security during the entire trial and [probably] make available the local library for a person to research, anyway," Murphy concludes.
Did somebody say this would save the taxpayers money? With savings like this, Governor Locke might want to look for some bona fide red herrings.