Prisoners can share legal advice while lawsuit proceeds
By The Associated Press
10.16.02
DES MOINES, Iowa — Four prisoners will be allowed to get legal advice from each other and fellow inmates at the Iowa State Penitentiary under an injunction upheld last week by a federal appeals court.
The St. Louis-based 8th U.S. Circuit Court of Appeals agreed with a lower court decision to allow the inmates to communicate with each other and other inmates at the Fort Madison prison while the case awaits trial in federal court. A trial date has not been set.
The four inmates are challenging the prison's decision to ban the exchange of legal advice between inmates and to eliminate a "red star" system they use to communicate with one another.
Under the system, the contents of letters are scanned by and envelopes sealed in front of corrections officers to make sure they don't contain escape plans or contraband items, said Bruce Nestor, a Minneapolis-based attorney who is representing the four inmates.
Before it was abolished in July 2001, the envelopes — marked with a crimson star — allowed inmates with a knowledge of law to receive information and dispense legal advice.
"There is a lack of access to qualified legal help in prison," said Nestor.
He said prisoners fill the void by learning about the law while they serve their sentences.
"Some of them are very skilled," Nestor said.
However, prison officials contend that inmates do not need to communicate with one another for legal advice because they have access to qualified legal help through a licensed lawyer provided by the prison.
The Iowa Attorney General's Office is representing the prison in the lawsuit.
Assistant Attorney General William Hill argued that the inmates have no constitutional right to get legal advice from other inmates and that there is no legal requirement for them to have a communications system.
"There is no First Amendment right to jailhouse lawyer communication," Hill wrote in his brief.
The appeals court found, however, that the defendants in Archie Bear v. Walter Kautzky "failed to show an absolute ban on inmate legal correspondence served a legitimate penological purpose and made no showing that these inmates or their jailhouse lawyers had abused the system."
In a Montana case, a unanimous Supreme Court found in April 2001 that prisoners have no special right under the First Amendment to give legal assistance to other prisoners.
"Augmenting First Amendment protection for inmate legal advice would undermine prison officials' ability to address the complex and intractable problems of prison administration," wrote Justice Clarence Thomas for the Court in Shaw v. Murphy.
The lead plaintiff in the Iowa case, Archie Robert Bear, 33, of Tama, was convicted of second-degree murder in the 1999 stabbing death of 23-year-old Max Purk, of Grundy Center. He was sentenced to 50 years in prison.
The other plaintiffs include Romeo Hardin, of Rock Island, Ill., who, at age 16, was sentenced to life in prison for shooting Augustus Nance to death in Davenport in 1996; William Stringer, 38, who is serving life for first-degree murder; and 42-year-old Michael McBride.