Lynch v. Gilmore, Jr. Brief Amicus Curiae

    Jtt tl|£ igorprone QJnurt
OF THE

O ctober T e r m , 1970

No. 582
T h o m a s  C. L y n c h , et al., Appellants

vs.
R obert O. G il m o r e , J r ., et al., Appellees

On Appeal from the United States District Court 
for the Northern District of California

BRIEF FOR
NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC., 

AND NATIONAL OFFICE FOR THE RIGHTS OF THE INDIGENT 
AS AMICI CURIAE

J a c k  G reenberg  
J am es  M. N ab  hit, III  
C h arles  St e p h e n  R alston  
S t a n l e y  A . B ass

10 Columbus Circle
New York, New York 10019

A n t h o n y  G. A m sterd am
Stanford University 
Stanford, California 94305

W il l ia m  B e n n e t t  T u rn er  
O scar W il l ia m s  
A lice  D a n ie l

12 Geary Street
San Francisco, California 94108

Attorneys for Amici Curiae.

P E R N A U - W A L S H  P R I N T I N G  C O . , B A N  F R A N C I S C O ,  C A L I F O R N I A



Table of Contents

Statement of interest of the amici ............................................. 1
Opinions below ..............................................................    3
Jurisdiction ..................................................    4
Question presented ......................................................................  4
Summary of argument ................................................................  4
Argument ......................................................................................  7

I. Introduction ...................................................................... 7
A. The post-conviction plight of California prisoners 7
B. The decision of the court below ...............................  13

II. By depriving indigent prisoners of necessary legal 
resources to challenge their convictions or sentences, 
California, effectively denies them access to the courts 16
1. Significance of California post-conviction proceed­

ings ................................................................    20
2. Necessary assistance required to obtain a fair hear­

ing on post-conviction claims ...............................  21
3. The legal resources provided by the state . . . . . . . .  25

III. California’s denial of necessary legal assistance to 
indigent prisoners deprives them of equal protection of
the laws ....................................................    28

IV. The eleventh amendment does not bar the relief 
ordered by the district court ........................................  32

Conclusion ...............        34

Page



Table of Authorities Cited

Cases Pages
Anders v. California, 386 U.S. 738 (1967) .............................  30

In re Banks, 4 Cal.3d 337, .....  P .2 d .....  (1971) .................. 10
Boddie v. Connecticut, 401 U.S........ , 91 S.Ct. 780 (1971)

................................................................................... 5,16,17,18,21
Burns v. Ohio, 360 U.S. 252 (1959) ......................................... 29,31

In re Chessman (1955) 44 Cal.2d 1, 278 P.2d 24 .................. 14
Cruz v. Beto, 391 F.2d 235 (5th Cir. 1968) ...........................  8

Douglas v. California, 372 U.S. 353 (1963).. .5, 7, 8,18,20, 29, 33 
Draper v. Washington, 372 U.S. 487 (1963) .........................  30

Bntsminger v. Iowa, 386 U.S. 748 (1967) ...............................  30

Gardner v. California, 393 U.S. 367 (1969) ..........................6,21,30
Goldberg v. Kelly, 397 U.S. 254 (1970) ................................... 33
Goodwin v. Cardwell, 432 F.2d 521 (6th cer, 1971) .............. 8
In re Greenfield, 11 Ca!.App.3d 563, 89 Cal.Rptr. 847 (1970)

.................................................................................................10, 24
Griffin v. Illinois, 351 U.S. 12 (1956) ..................17,18,29,33,34

In re Harrell, 2 Cal.3d 675, 470 P.2d 640 (1970) .................. 14,19
Ex parte Hull, 312 U.S. 546 (1941) .........................................  16

Johnson v. Avery, 393 U.S. 483 (1969) ...................................
........................... ......................... 5,10,16,17,18,19, 24,25, 26, 31

Kaufman v. United States, 394 U.S. 217 (1969) ................... 16,20

Lane v. Brown, 372 U.S. 477 (1963) , ..................................... 29
Long v. District Court, 385 U.S. 192 (1966) .........................  30

Marino v. Ragen, 332 U.S. 561 (1947) ...................................  22
Meltzer v. G. Buck LeCraw & Co., 39 U.S.L.W. 3483 (May 3,

1971) ........................................................................................ 17
Mempa v. Rhay, 389 U.S. 128 (1967) .....................................  21
Mooney v. Holohan, 294 U.S. 703 (1935) ...............................  16

Nelson v. Peyton, 415 F.2d 1154 (4th Cir. 1969) . . . . 8



T able of A uthorities Cited iii

Pages
People v. Lyons, 46 IUL2d 172, 263 KE.2d 95 (1970) .......... 27
Peters v. Rutledge, 397 F.2d 731 (5th Cir. 1968) ..................13, 28
Pointer v. Texas, 380 U.S. 400 (1965) ..................................  24

Reynolds v. Sims, 377 U.S. 533 (1964) ..................................  33
Rinaldi v. Yeager, 384 U.S. 305 (1966) ........................... 30,31,32
Roberts v. LaVallee, 389 U.S. 40 (1967) ...............................  30
Robinson v. California, 370 U.S. 660 (1962) .........................  24
Rodriguez v. United States, 395 U.S. 327 (1969) .................. 20

In re Schoengarth, 66 Cal.2d 295 .............................................  14
In re Shipman, 62 Cal. 226, 42 Cal.Rptr. 1 (1965) ................ 21
In re Smith, 3 CaL3d 192, 474 P.2d 969 (1970) ................  10
Smith v. Bennett, 365 U.S. 708 (1961) ..................................  29
Still v. Fitzharris, 413 F.2d 977 (9th Cir. 1969) ...................  8
In re Swain (1949) 34 Cal.2d 300, 209 P.2d 793 .................. 14
Swann v. Charlotte-Meeklenburg Board of Education, .....

U.S........, 91 S.Ct. 1267 (1971) ............................................. 15,33
Swenson v. Bosler, 386 U.S. 258 (1967) ................................  8

Turner v. Fouehe, 396 U.S. 346 (1970) ................................  33

United States v. Simpson, 436 F.2d 163 (D.C. Cir. 1970) . . .  27
United States ex rel. Smith v. MeMann, 417 F.2d 648 (2d

Cir. 1969)' ................................................................................ 8,20
United States ex rel. Wissenfeld v. Wilkins, 281 F.2d 707 

(2d Cir. 1960) .......................................................................  23

In re Williams, 1 Cal.3d 168, 460 P.2d 984 (1969) ........ .. 9, 23
Williams v. Oklahoma City, 395 U.S. 458 (1969) ................ 30
Wilson v. Wade, 396 U.S. 282 (1970) ................................  20

Statutes, Rules and Regulations
28 U.S.C. Section 1253 ..............................................................  4
28 U.S.C. Section 2281 .................................................... .. 4
28 U.S.C. Section 2284 ..............................................................  4
Fed. R. Civ. P. 54(e) ................................................................. 32
Ark. R. Grim. Pro. ID (Supp. 1969) .....................................  11
Cal. Govt. Code Section 27706(a) (West Supp. 1971) . . . .  8



IV T able of A uthorities Cited

Pages
Cal. P. C. Section 1265 .................................    21
Cal. P. C. Section 1475 ...........................................   22
Cal. P. C. Section 1508 .................................   22
Ind. Rule P. C. 1(1) (1) (Burns Spec. Supp. 1970) (1961) 11
Me. Rev. Stat. Ann. tit. 14, §5506 (1964) .......................... 11
Mo.Sup.Ct. R. 27.26 (h) (i) ........................................................  11
Mont. Rev. Code, Section 95-1004 (1969 Rpl. Vol.) .............. 11
N.C. Gen. Stat., Section 15-219 (Supp. 1969) ....................... 11
Ohio Rev. Code, Section 2953.24 (Page’s Supp. 1970) ..........  11
Ore. Rev. Stat., Section 138.590 (1969-70) ...........   11
S.D. Sess. Laws, ch. 121, Section 3 (1966) ...........................  11
Wyo. Stat. Ann., Section 7-408.4 (Supp. 1969)   ................ 11

Other Authorities
Annual Report of the Director of the Administrative Office 

of the United States Courts, 1969, Table C3 .....................  12
1970 Annual Report to the Governor and the Legislature, 

Judicial Council of California .............................................22, 24
Burger, Remarks on the State of the Federal Judiciary, 56 

A.B.A. J. 929 (1970) ............................................................. 12

California Criminal Law Practice, California Continuing 
Education of the Bar, 371-73 (1969) .................................  22

5 Crim. L. Rptr. 2277-78 (1969) ............................................. 26
Crime and Delinquency in California 1969, California De­

partment of Justice, Bureau of Criminal Statistics.......... 10
Criminal Appeals in California 1964-68, California Depart­

ment of Justice, Bureau of Criminal Statistics .............. 8
Note, Federal Habeas Corpus, 83 Harv. L. Rev. 1038 

(1970) ............................... ...................................................... 21,26
Jacob'and Sharma, Justice After Trial: Prisoners’ Need for 

Legal Services in the Criminal-Correctional Process, 18 
Kan. L. Rev. 498 (1970) .........................................22,25,26,27



Table of A uthorities Cited v

Krause, A  Lawyer Looks at Writ Writing, 56 Cal. L. Rev.
371 (1968) ...............................................................................24,27

Lay, Problems of Federal Habeas Corpus Involving State 
Prisoners, 45 F.R.D. 45 (1968) ............................................  27

Michelman, On Protecting the Poor Through the Fourteenth 
Amendment, 83 Harv. L. Rev. 7 (1969) .........................  31

Oliver, Postconviction Applications Viewed by a Federal 
Judge—Revisited, 45 F.R.D. 199 (1968) ......................... 27,28

Prison Writ Writing: Three Essays, 56 Cal. L. Rev. 342 
(1968) ......................................................................................  20

The Recorder, June 11, 1971, at 1, col. 7 .............................  26
Representation of Indigent Criminal Defendants in Appel­

late Courts, 1970 Annual Report to the Governor and the 
Legislature, Judicial Council of California .........................  9,12

Pages

Note, State Post-Conviction Remedies and Federal Habeas 
Corpus, 12 William & Mary L. Rev. 149 (1970) ................

Witkin, Cal. Grim. Proc. 764-65 (1963) .................................
22
22



Jn  %  jg’ujrrattr ©nttrt
OF TH E

O ctober T e r m , 1970

No. 582

T h o m a s  C. L y n c h , et al.,
Appellants,

vs.
R obert 0 .  Gil m o r e , J r ., et al.,

Appellees.

On Appeal from the United States District Court 
for the Northern District of California

BRIEF FOR
NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC., 

AND NATIONAL OFFICE FOR THE RIGHTS OF THE INDIGENT 
AS AMICI CURIAE

STATEMENT OF INTEREST OF THE AMICI

The NAACP Legal Defease and Educational Fund, 
Inc. (the “ Legal Defense Fund” ) is a non-profit cor­
poration formed in 1939 under the laws of the State 
of New York. It was founded to assist black people 
who suffer injustice by reason of race or color to 
secure their basic rights through the legal process. 
The Legal Defense Fund is independent of other



organizations and is supported by contributions from 
the public.

The central purpose of the Legal Defense Fund is 
the legal eradication of practices in our society that 
bear with discriminatory harshness upon black people 
and upon the poor, deprived and friendless, who too 
often are black people. To further this purpose, in 
1967 the Legal Defense Fund established a separate 
corporation, the National Office for the Rights of the 
Indigent (“ NORI” ), having among its objectives the 
provision of legal representation to the poor in indi­
vidual cases and the advocacy before appellate courts 
of changes in legal doctrine unjustly affecting the 
poor.

The Legal Defense Fund receives a very large 
volume of pleas for assistance from prisoners incar­
cerated in penal institutions and jails throughout the 
nation. Prisoners call upon the Legal Defense Fund 
to help in challenging constitutional error in their 
convictions and sentences, in coping with their civil 
problems (many of them relating to their indigency) 
and in bringing suits to achieve reform of outmoded 
and inhumane prison practices. The Legal Defense 
Fund and NORI cannot begin to provide representa­
tion or even counselling for the huge numbers of 
prisoners seeking their assistance.

The San Francisco office of the Legal Defense Fund 
receives a great number of requests for help from 
prisoners incarcerated in the State of California. 
Again, the prisoners request assistance and informa­
tion not only with regard to the validity of their con­



3

victions and sentences, but also concerning their per­
sonal civil problems and their difficulties vis-a-vis the 
prison administration. 'They frequently ask us to 
reproduce and send them court decisions not other­
wise available to them. While the Legal Defense 
Lund attempts to respond to as many of these pleas 
for assistance as possible, our limited staff and re­
sources simply do not permit us to help in very many 
cases, regardless of whether the cases are meritorious. 
Accordingly, the Legal Defense Fund has a direct, 
interest in having the states recognize their obligation 
to provide necessary legal resources for the persons 
whom they choose to imprison.

The Legal Defense Fund believes that the decision 
of the court below is sound as a matter of law and 
policy in recognizing that the state’s denial of neces­
sary legal resources to prisoners cannot be squared 
with the fundamental right of access to the courts, 
where such access is the only means of redressing a 
deprivation of liberty without due process. For this 
reason, we respectfully present our views on the issue 
before the Court. The parties have consented to the 
filing of a brief by amici, and copies of their letters 
of consent are being submitted to the Clerk with this 
brief.

OPINIONS BELOW

The opinion of the three-judge District Court, filed 
May 28, 1970, is reported at 319 F.Supp. 105 and is 
printed in the Appendix at pp. 92-106. The opinion



4

of the Court of Appeals for the Ninth Circuit on the 
jurisdictional question is reported at 400 F.2d 228 
and is printed in the Appendix at pp. 28-32. The 
order of this Court denying certiorari to review the 
decision of the Court of Appeals is reported at 393 
U.S. 1092 (1969).

JURISDICTION

This is an appeal from an order of a three-judge 
District Court convened pursuant to- 28 U.S.C. Sec­
tions 2281 and 2284. On the assumption that the 
court below had jurisdiction to act as a statutory 
three-judge court, the jurisdiction o f this Court on 
direct appeal is conferred by 28 U.S.C. Section 1253.1

QUESTION PRESENTED

Whether, by depriving indigent prisoners of legal 
resources necessary to present post-conviction chal­
lenges to errors in their convictions or sentences, 
California effectively denies them access to the courts 
in violation of the due process and equal protection 
clauses of the Fourteenth Amendment.

SUMMARY OF ARGUMENT

Convicted felons in California prisons whose con­
victions may be tainted by fundamental error face

iBoth parties to this appeal have previously filed briefs support­
ing- the jurisdiction of this Court. Amici do not intend to brief 
this question.



0

special difficulties in obtaining judicial review of their 
claims. California has not implemented Douglas v. 
•California, 372 U.S. 353 (1963), by requiring that 
convicted defendants be notified either o f their right 
to appeal or of their right to assigned counsel. As a 
consequence, many defendants fail to appeal through 
ignorance of their rights, and must rely on post­
conviction proceedings as the only means of challeng­
ing the legality of their convictions. Despite the 
crucial nature of these proceedings and the urgency 
of the prisoners’ need, California has not adopted 
any of the techniques suggested by this Court in 
Johnson v. Avery, 393 II.S. 483 (1969), for providing 
essential legal assistance to prisoners seeking access 
to the courts.

Due process of law requires that prisoners be 
afforded effective access to the courts to challenge 
convictions obtained in violation of their constitu- 
tional rights. Depriving them of the legal assistance 
necessary for preparing and presenting these claims 
effectively denies prisoners access to the only forums 
empowered to settle their disputes. Boddie v. Con­
necticut, 401 U.S........ , 91 S. Ct. 789 (1971). State
officials may not obstruct access to the courts and, 
absent a countervailing state interest of overriding 
significance, due process requires that prisoners be 
given a meaningful opportunity to be heard. In short, 
post-conviction proceedings must be more than a 
formality; and the State must insure that those who 
cannot help themselves have reasonably adequate as­
sistance in preparing and filing post-conviction plead­
ings. Johnson v. Avery, 393 U.S. 483 (1969).



6

The court below carefully considered what is 
required to obtain a hearing on a post-conviction 
petition and found that California prisoners were 
effectively barred from the courts by the denial of 
legal resources essential to the presentation of their 
claims. It held that the State’s asserted interest in 
standardization and economy was not sufficient to 
justify depriving state prisoners of a meaningful 
opportunity to be heard. However, the court did not 
order the State to provide “ expensive law libraries” 
or appointed counsel for prisoners. It simply required 
the state officials to submit a plan for providing indi­
gent prisoners with the legal assistance necessary to 
present arguably meritorious claims in a manner that 
avoids summary dismissal.

California imprisons only a small proportion of 
persons convicted of felonies. 'Since those who are 
not incarcerated are free to seek gainful employment 
and hire an attorney, or to make use of the other 
legal resources available in free society; and since 
some imprisoned felons have sufficient monetary re­
sources to retain an attorney to counsel them, do their 
research and draft their petitions, the court below 
correctly held that California denies equal protection 
to indigent prisoners. This Court has consistently 
made plain that indigent prisoners cannot be deprived 
of meaningful and effective access to the courts by 
economic barriers, and this is true in post-conviction 
proceedings as well as on direct appeal. See, e.g., 
Gardner v. California, 393 H.S. 367 (1969).

Having found that indigent prisoners in California 
were being deprived of due process and equal protec­



7

tion of the laws by the State’s refusal to provide legal 
resources essential for effective access to the courts, 
the court below properly directed the state officials 
to submit a plan that would assure such access. The 
State can comply with the district court’s order by 
utilizing one or more of the easily available, relatively 
inexpensive techniques for providing prisoners with 
necessary assistance. Use of such techniques would not 
only assure prisoners effective access to the courts, 
but would lighten the burden on state and federal 
courts in processing their applications.

The Eleventh Amendment, does not bar the relief 
ordered by the district court, because this Court has 
repeatedly made plain that, in enforcing the Four­
teenth Amendment, the federal courts may grant in­
junctive relief having the effect of requiring states 
to expend public funds in order to bring public pro­
grams into compliance with constitutional guarantees.

ARGUMENT

I. INTRODUCTION

A. The Post-Conviction Plight of California Prisoners

Those confined to California state prisons face 
special difficulties with regard to their ability to 
obtain judicial relief from illegality in such confine­
ment. Despite this Court’s decision in Douglas v. 
California, 372 U.S. 353 (1963), California does not 
have any requirement, whether by statute, rule of 
court or judicial decision, that convicted criminal 
defendants be notified either of their right to appeal



8

or of their right to assigned counsel on appeal.2 In 
these circumstances,, it is not surprising that the pro­
portion of criminal defendants who appeal from their 
convictions is very small. For the years 1964 through 
1968, only 5% of defendants convicted of felonies in 
California appealed their convictions. California De­
partment of Justice, Bureau of Criminal Statistics, 
Criminal Appeals in California, 1964-1968, p. 12. The 
range is from1 less than 1% of those who entered 
pleas of guilty to more than one-third of those con­
victed by juries. Id. Given the fact that so few de­
fendants appeal and the fact that the State does not 
require notification of the right to appeal with as­
signed counsel, it must be assumed, that, at least some 
of those who do not appeal fail to do so because of 
ignorance of their rights.3 It is not clear whether 
California law provides a remedy for a defendant 
who thus loses his right to appeal. See Still v. Fits- 
Jiarris, 413 F.2d 977 (9th Cir. 1969).

Moreover, even where a defendant does succeed in 
filing notice of appeal, the State fails in many eases

zCf. United States ex rel. Smith v. McMann, 417 F.2d 648 (2d 
Cir. 1969), where the Second Circuit en banc held that such, a fail­
ure to provide procedures implementing Douglas violates defend­
ants’ constitutional rights.

Cal. Govt. Code Section 27706(a) (West Supp. 1971) defines 
the duty of the Public Defender in representing an indigent de­
fendant. He is not required to prosecute an appeal to a higher 
court unless “ in his opinion, the appeal will or might reasonably 
be expected to result in the reversal or modification of conviction.” 
If he decides not to appeal, he has no obligation to file a notice of 
appeal, or to advise the defendant of Ms right to appeal or to 
obtain other counsel.

3Cf. Swenson v. Bosler, 386 XJ.S. 258, 260 (1967) ; Goodwin v. 
•Cardwell, 432 F.2d 521 (6th Cir. 1971); Nelson v. Peyton, 415 
F.2d 1154 (4th Cir. 1969); Cruz v. Beta, 391 F.2d 235 (5th Cir. 
1968).



9

to provide for adequate representation by court- 
appointed counsel. The rate of compensation is ex­
tremely low and it is frequently impossible to obtain 
experienced counsel. A report of the California 
Judicial Council states that

“ Most of the volunteers are recent admittees of 
the bar with little or no experience in the field 
of criminal law. As a result, the quality of repre­
sentation is uneven and sometimes inadequate. In 
testimony before a legislative committee it was 
estimated that 30 to 40 percent of the appeals 
filed for indigents in criminal cases fell ‘ below 
an acceptable level of quality.’ ” See Judicial 
Council of California, 1970 Annual Report to the 
Governor and the Legislature, p. 16.

The inevitable consequence of the failure of the 
State to provide adequate machinery for resolving 
on direct appeal defendants’ claims of error in 
criminal convictions or sentences is that many such 
claims, including federal constitutional claims, must, 
be presented in post-conviction collateral proceedings 
such as coram nobis and habeas corpus. Of course, 
even where defendants were adequately represented 
on direct appeal, claims of error dehors the record 
necessarily must be raised in collateral proceedings. 
In short, there is a heavy burden on post-conviction 
proceedings in California. Convicted felons are fre­
quently forced to resort to collateral proceedings in 
order to correct fundamental errors in their convic­
tions or sentences.4

4See, e.g., In re Williams, 1 Cal.Sd 168, 460 P.2d 984 (1969), 
where the indigent defendant who had been represented by the 
Public Defender and failed to file timely notice of appeal filed



10

The State of California imprisons only a small 
proportion of persons convicted of felonies.5 The large 
number of convicted felons who are not in prison but 
who are placed on probation or who have been re­
leased on parole are free to seek gainful employment 
and to earn sufficient income to engage an attorney 
to represent them. They are also free to consult public 
law libraries at their leisure and to make use of what­
ever legal resources are available in the “ free world,” 
including legal services offices funded by the federal 
Office of Economic Opportunity. But the convicted 
felons whom California chooses to imprison are left 
virtually without any legal resources for preparing 
and conducting post-conviction collateral proceedings.

California has not adopted any of the techniques 
suggested by this Court in Johnson v. Avery, 393 U.S. 
483 (1969), for providing legal assistance to prisoners
three post-conviction proceedings before he— and the California 
Supreme Court—realized he had pleaded guilty to a crime he did 
not commit. When the indigent defendants in In re Smith, 3 Cal. 
3d 192, 474 P.2d 969 (1970), and In re Greenfield, 11 Cal.App.3d 
536, 89 Cal.Rptr. 847 (1970), finally succeeded in having their 
convictions overturned via in propria persona applications, the 
courts deplored the inadequacy of their court-appointed counsel on 
direct appeal. In Greenfield, the court said, “ A  half hour of rudi­
mentary research . . . would have revealed a defense crucial to 
petitioner’s case.” 11 Cal.App.Sd 544. See also In re Banks, 4 Cal. 
3d 337,.......P. 2 d ......... (1971).

5For example, in 1969, there were 50,568 persons charged with 
felonies who were convicted in California courts. Of this number, 
19,470 (38.5%) were given probation, 13,718 (27.1%) were given 
probation and a jail term and 7,020 (13.9%) were sentenced to 
short terms in county jails. Only 4,940 (9.8%) were sentenced to 
prison. California Department of Justice, Bureau of Criminal Sta­
tistics, Crime and Delinquency in California- 1,969, pp. 33, 108.

Moreover, of the 34,851 persons1 who on December 31, 1969, were 
under the jurisdiction of the California Department of Correc­
tions, 11,833 (33.9%) were at large on parole. Only 23,018 were 
imprisoned in penal institutions under the jurisdiction of the De­
partment. Id. at p. 37.



11

ill the preparation of their post-conviction pleadings: 
unlike many states, California makes no provision for 
representation by a public defender or legal aid 
society in any proceedings after direct appeal6; the 
State has not adopted a program for utilizing law 
students in interviewing and advising prison inmates; 
the State has not undertaken any program whereby 
members of any bar association visit prisons to con­
sult with prisoners concerning their cases; and the 
State has not trained able and literate prisoners to 
render assistance to others. 393 U.S. at 489.7

The Department of Corrections does provide a few 
law books in each of its twelve institutions but, as the 
court below found, these “ libraries” are grossly inade­
quate even for the limited purpose of researching 
claims to be presented in post-conviction criminal 
proceedings. Indeed, this lawsuit was precipitated by 
the promulgation of a new regulation (App. 41) pur­
porting to “ standardize” the list of law books per­
mitted in California prisons, but providing for the 
confiscation of law books or materials not on the 
prescribed list—a veritable book burning that would

«A number of states have adopted working systems for appointed 
counsel in proceedings subsequent to appeal. See, e.g., Ark. R. 
Grim. Pro. ID (Supp. 1969); Ind. Rule P.C. 1(1) (1) (Burns 
Spec. Supp. 1970); Me. Rev. Stat. Ann. tit. 14, § 5506 (1964); 
Mo. Sup. Ct. R. 27.26; Mont. Rev. Code § 95-1004 (i960 Rpl. Y o l.) ; 
N.C. Gen. Stat. § 15-219 (Supp, 1969); Ohio Rev. Code §2953.24 
(Page’s Supp. 1970); Ore. Rev. Stat. § 138.590 (1969-70); S.D. 
Sess. Laws eh. 121, § 3 (1966) ; Wyo. Stat. Ann. § 7-408,4 (Supp. 
1969).

7Indeed, California prohibited prisoners from helping each other 
with any legal work until after this Court’s decision in Johnson v. 
Avery.



12

deprive California prisoners of a portion of the few 
legal materials they already have.

The action of the State of California and its De­
partment of Corrections in incarcerating criminal 
defendants and then depriving them of the legal 
wherewithal for preparing and presenting constitu­
tional claims to the courts takes its toll in swamping 
the courts, including the federal courts, with a con­
tinuing flood of in propria persona pleadings raising- 
in piecemeal fashion the various claims that prisoners 
on their own can think of. As Chief Justice Burger 
has noted, prisoner reliance on federal courts to re­
view state convictions and sentences produces not 
only a drain on the limited resources of the federal 
courts but also a strain on the relations between the 
parallel court systems. Remarks on the State of the 
Federal Judiciary, 56 A.B.A.J. 929 (1970). In fiscal 
year 1968-1969 alone, California prisoners filed 1,029 
cases in the federal courts in California. Annual Re­
port of the Director of the Administrative Office of 
the United States Courts, 1969, Table C3, p. 213. In 
the same fiscal year, they also filed 6,200 post-convic­
tion petitions in the state courts of California. 
Judicial Council of California, 1971 Annual Report 
to the Governor and the Legislature, 31. There is no 
way of knowing how many of the pleadings were 
frivolous or repetitious, or of knowing how much 
valuable time of judges and clerks was taken up in 
processing these applications. What is known is that 
a substantial amount of judicial time of both state 
and federal courts has been consumed in deciphering 
prisoner applications from California. It is not sur­



13

prising that many applications get short shrift and 
it is likely that many meritorious petitions are over­
looked in the flood of frivolous ones. Cf. Peters v. Rut­
ledge, 397 F.2d 731, 738 (5th Cir. 1968).

B. The Decision of the Court Below

The three-judge federal district court found that 
indigent prisoners in California were effectively 
denied access to the courts for the purpose of pursu­
ing existing post-conviction remedies. The court care­
fully considered the State’s argument that law 
“ libraries”  must be stringently limited in the interest 
of standardization and economy, and held that the 
paramount federal right of access to the courts must 
prevail. The court rejected the notion that an ade­
quate opportunity for a prisoner to challenge his 
conviction or sentence in available state and federal 
forums is a “ privilege” rather than a right and found 
unrealistic the State’s argument that in post-eonvic- 
tion proceedings a prisoner requires no legal expertise 
and need only state the facts of his case in order to 
gain a judicial hearing. The court said that much 
more than recitation of simple “ facts” is required to 
obtain relief by habeas corpus:

“ A1 prisoner should know the rules concerning 
venue, jurisdiction, exhaustion of remedies, and 
proper parties respondent. He should know 
which facts are legally significant, and merit 
presentation to the Court, and which are irrele­
vant or confusing. . . . ‘ Access to the courts,’ 
then, is a larger concept than that put forward 
by the State. It encompasses all the means a 
defendant or petitioner might, require to get fair



14

hearing from the judiciary on all charges brought 
against him or grievances alleged by him.” 319 
F.Supp. at 110 (App. 100).

It must be remembered that two of the three mem­
bers of the court below are district judges who are 
confronted with California prisoner applications 
every day, and are intimately familiar with what it 
takes to get a judicial hearing in California.8

The court below held that by denying indigent 
prisoners the necessary legal resources to prepare an 
application for post-conviction relief, California effec­
tively denied them access to the courts and equal 
protection of the laws. Contrary to the Attorney 
GreneraTs assertion in this Court, however, the 
district court did not order the state officials “ to 
furnish prison inmates with extensive law libraries” 
or to provide prisoners with “ professional or quasi­
professional legal assistance.” The court below spe­
cifically refrained from undertaking “ the task of 
devising another system whereby indigent prisoners 
are given adequate means of obtaining the legal 
expertise necessary to obtain judicial consideration

8The California Supreme Court also disagrees with the At­
torney General’s argument that a prisoner need only state “ facts” 
in order to obtain judicial relief. Thus,

“ This court has itself recognized that some kind of access to 
legal materials is necessary to the preparation of any effective 
application for relief. ‘ [A]lthough [an application] should 
ordinarily be predicated on a. full and honest statement of 
the facts which the inmate believes give rise to a remedy 
(In re Chessman (1955) 44 Cal.2d 1, 10 (278 P.2d 24); In re 
Swam (1949) 34 Cal.2d 300, 302, 304 (209 P.2d 793)), the 
relevance of certain facts may not be apparent to him until 
he has done some legal research on the point.’ (In re Schoen- 
garth, supra. 66 Cal.2d 295, 305).” In re Harrell, 2 Cal.3d 
675, 695, 470 P.2d 640, 653 (1970).



15

of alleged grievances cognizable by the courts” (App. 
104). The court noted that “ the alternatives open to 
the state are legion,” and listed a few of the means 
by which other states or prison systems have provided 
for the legal needs of their charges (App. 101). In­
stead of enjoining the California officials to provide 
a library, or appointed counsel, or some other spe­
cific means of ensuring that prisoners are not left 
legally destitute, the court below simply ordered the 
officials to file new regulations providing either for 
expanded law libraries or for “ some new method of 
satisfying the legal needs” of California prisoners 
(App. 104-05).° Thus, the shape of the legal assistance 
program is to be decided by the State.9 10 Rather than 
submitting a plan or new regulations to the court 
below, however, the state officials have appealed to 
this Court, contending in effect that they are not 
constitutionally required to provide any legal re­
sources at all to indigent California prisoners.

9The court also enjoined the officials from destroying or re­
moving law books and materials already available in California 
prisons (App. 105-06).

10As this Court has recently said with respect to the equity 
powers of federal courts where constitutional violations have been 
demonstrated,

“ Once a right and a violation have been shown, the scope of 
a district court’s equitable powers to remedy past wrongs is 
broad, for breadth and flexibility are inherent in equitable 
remedies. # *
“ As with any equity case, the nature of the violation deter­
mines the scope of the remedy.”  Swann v. Charlotte-Mecklen­
burg Board of Education,....... U.S..........., 91 S. Ct. 1267, 1276
(1971).

Here, the court below exercised its broad equity powers in the most 
restrained manner possible, by directing the state officials to de­
velop their own appropriate methods rather than by mandating 
specific conduct or programs by the officials.



16

II. BY DEPRIVING- INDIGENT PRISONERS OF NECESSARY 
LEGAL RESOURCES TO CHALLENGE THEIR CONVICTIONS 
OR SENTENCES CALIFORNIA EFFECTIVELY DENIES THEM 
ACCESS TO THE COURTS.

The constitutional prohibition against depriving a 
man of liberty without due process of law has, as a 
necessary corollary, the requirement that prisoners be 
afforded access to the courts to- permit setting aside 
convictions obtained in violation of their federal con­
stitutional rights. See, e.g., Kaufman v. United States, 
394 U.S. 217, 226 (1969) ; Johnson v. Avery, 393 U.S. 
483 (1969) ; Mooney v. Holohan, 294 U.S. 703, 713 
(1935).

It has long been clear that the paramount interest 
in assuring prisoners access to the courts to present 
their federal claims invalidates prison regulations 
which effectively impair that right. Ex parte Hull, 
312 U.S. 546 (1941) . Not only may state officials not 
obstruct access to the courts, but “ due process re­
quires, at a minimum, that absent a countervailing 
state interest of overriding significance, persons forced 
to settle their claims of right and duty through the 
judicial process must be given a meaningful oppor­
tunity to be heard.” Boddie v. Connecticut, 401 U.S.
..... , ......, 91 S.Ct. 780, 785 (1971). The Court in
Boddie, relying on precedents established in the 
criminal defense context, held that due process of 
law prohibits a state from denying access to its courts 
to indigents seeking judicial dissolution of their mar­
riage solely because of their inability to pay court 
fees and costs. The Court reasoned that where the 
“ judicial proceeding becomes the only effective means



17

of resolving* the dispute at hand . . . denial of a 
defendant’s full access to that process raises grave 
problems for its legitimacy.”11

In Johnson v. Avery, 393 II.S. 483 (1969), the 
Court recognized that full access to the courts for 
many prisoners is meaningless unless some form of 
legal assistance is provided. The Court emphasized 
that “ for the indigent as well as for the affluent 
prisoner, post-conviction proceedings must be more 
than a formality.” 393 U.S. at 486. The Court held 
that unless “ the state provides some reasonable 
alternative to assist inmates in the preparation of 
petitions for post-conviction relief” it may not bar 
inmates from furnishing assistance to other inmates. 
Mr. Justice White, dissenting, would not have struck 
down the anti-prisoner assistance regulation but 
would have ruled in a proper case that “ the state 
must provide access to the courts by insuring that 
those who cannot help themselves have reasonably ade­

“ Tlie Court in Boddie found insufficient the state’s asserted in­
terest in its fee and cost requirements as a mechanism of resource 
allocation or cost recoupment, relying on Griffin v. Illinois, 351 
U.S. 12 (1956). The state interest did not constitute a “ sufficient 
countervailing justification” for denying the indigents an op­
portunity to be heard.

Mr. Justice Black, dissenting, distinguished civil lawsuits from 
criminal prosecutions, stating that “ because of this great govern­
mental power the United States Constitution has provided special 
protections for people charged with crime.”  But as to cases fol­
lowing Boddie, Mr. Justice Black has noted that “ once the right 
to unhampered access to the judicial process has been established, 
that right is diluted unless the indigent litigant has an opportu­
nity to assert and obtain review of the errors committed at trial. 
. . . [Tjhere cannot be meaningful access to the judicial process 
until every serious litigant is represented by competent counsel.” 
Meltzer v. G. Buck LeCraw cfe Co., 39 U.S.L.W. 3483, 3484 (Mav 
3, 1971).



18

quate assistance in preparing their post-conviction 
papers.” 393 U.S. at 502. This is precisely what the 
court below has required the California officials to 
do in the instant case. Indeed, Mr. Justice White’s 
opinion in Johnson states what is basically at stake 
in the instant case:

“ The illiterate or poorly educated and inexperi­
enced indigent cannot adequately help himself 
and . . . unless he secures aid from some other 
source he is effectively denied the opportunity to 
present! to the courts what may be valid claims 
for post-conviction relief.” 393 U.S. at 498.

This Court’s decisions in Boddie and Johnson, and 
the earlier decisions in Griffin v. Illinois, 351 U.S. 12 
(1956), and Douglas v. California, 372 U.S. 353 
(1963), teach that the states cannot deny to indigents 
the necessary means for obtaining a fair hearing of 
their possibly valid constitutional claims. The Court’s 
decisions have recognized practical reality not merely 
by striking down absolute barriers to the courts but 
by declaring that effective access to the judicial 
process is required where fundamental interests like 
liberty are at stake. For example, in Douglas, as here, 
the prisoner was not totally barred from tiling his 
appeal; and in Johnson, as here, he was not totally 
barred from filing his writ. But in both cases, as here, 
the state practice prevented effective use of the judi­
cial process. I f  a prisoner with a meritorious claim 
is unable to present it to the court in a way that 
avoids summary dismissal, he is denied access to the 
courts. Jailhouse lawyers were permitted by Johnson



19

because of t-lie function they serve—as tools enabling 
prisoners to bring their claims before the courts. Mr. 
Justice White noted in Johnson that “ unless the help 
the indigent gets from other inmates is reasonably 
adequate for the task, he will be as surely and effec­
tively barred from the courts as if  he were accorded 
no help at all.” 393 U.S. at 499. As foreseen by Mr. 
Justice White, the district court in the present case 
foimd that other tools are needed as well.12 Just as 
the paramount interest in making the courts fully 
available for the resolution of constitutional claims 
compelled the result ha Johnson, it requires affirm­
ance of the decision in the present case. Post-convic­
tion remedies theoretically available to all in Cali­
fornia are not in fact available if  the State denies 
indigents the legal wherewithal to use them. Because 
the State denies the prisoner both his livelihood (e.g., 
to hire a lawyer) and his liberty (e.g., to use a public 
law library or consult an OEO legal services attor­
ney), the State has erected very effective barriers to 
the judicial process—-unless the State furnishes 
alternative sources of legal help.

In determining whether California denies im­
prisoned indigents effective access to the courts, con­
sideration should be given to (1) the special signifi­
cance of post-conviction proceedings for California

12The California Supreme Court has also recognized that John­
son v. Avery “ heralds the advent of new principles governing the 
question of prisoner access to legal materials. . . . [W ]e are cog­
nizant that the principles of Johnson may, in a proper case, re­
quire a judicial assessment of the adequacy of prison libraries to 
permit legal research of a minimum degree of effectiveness.” In 
re Harrell, 2 Cal.3d 675, 695, 470 P.2d 640, 653 (1970).



20

prisoners, (2) the legal resources required for 
prisoners to make effective use of such proceedings, 
and (3) the legal resources actually provided by the 
State.

1. Significance of California Post-Conviction Proceedings

As this Court noted with regard to federal col­
lateral proceedings in Kaufman v. United States, 394 
U.S. 217, 226 (1969), “ adequate protection of consti­
tutional rights relating to the criminal trial process 
requires the continuing availability of a mechanism 
for relief.”  The need for post-conviction mechanisms 
for relief in California is especially strong because, 
as noted above,13 the State has not provided proce­
dures to implement the decision in Douglas v. Cali­
fornia, 372 U.S. 353 (1963). Consequently, many con­
victed felons lose through inadvertence their right to 
appeal. They are, indeed, in precisely the same posi­
tion as the would-be appellant in California before 
this Court’s decision in Douglas—-they are left to 
shift for themselves in identifying errors in their 
trial and making their initial presentation to the 
court.14 See Prison Writ Writing: Three Essays, 56 
Cal.L.Rev. 342, 363, 373 (1968); Cf. Rodriguez v. 
United States, 395 U.S. 327, 330 (1969). Without

13See pp. 7-8, supra.
14C/. United States ex rel. Smith v. McMann, 417 F.2d 648, 658 

(2d Cir. 1969), where Judge Friendly observed that “ a state’s 
duty may sometimes be so compelling that continued inaction can 
fairly be regarded as violating the Fourteenth Amendment.” In 
Wilson v. Wade, 396 U.S. 282, 286 (1970), this Court left open 
the question whether there are any circumstances in which the 
Constitution requires the State to provide an indigent with a free 
transcript to aid him to prepare a petition for collateral relief.



21

some form of legal assistance, they will find them­
selves excluded “ from the only forum effectively em­
powered to settle their disputes.”  Boddie v. Connecti­
cut, 401 U.S....... , ..... , 91 S.Ct. 780, 785 (1971).

2. Necessary Assistance Required to Obtain A  Fair Hearing on 
Post-Conviction Claims

The California Supreme Court has recognized that 
in a post-conviction proceeding, “ the questions that 
may be raised . . . are as crucial as those that may 
be raised on direct appeal.” In re Shipman, 62 Cal.2d 
226, 231, 42 Cal.Rptr. 1, 4 (1965) ; cf. Gardner v. Cali­
fornia, 393 U.S. 367, 370 (1969). Nevertheless, coun­
sel is not appointed in such proceedings unless the 
petitioner makes “ adequate factual allegations stating 
a prima facie case”  for relief.15 62 Cal.2d at 232, 42 
Cal.Rptr. at 5. Given the substantiality and the possi­
ble complexity as well as the variety of the issues 
that may be presented collaterally, it is very unlikely 
that the average prisoner is capable on his own of 
stating a prima facie case. The threshold problem for 
the prisoner is to ascertain whether state coram nobis 
or state habeas corpus procedures should be invoked.18

^  Amici believe that the decision below can be affirmed without 
reaching, or even approaching, the question whether prisoners have 
a constitutional right to counsel in some or all posit-conviction pro­
ceedings. But see Mempa v. RJiay, 389 U.S. 128, 134 (1967), where 
the Court, analyzed prior right-to-counsel decisions that “ clearly 
stand for the proposition that appointment of counsel for an in­
digent is required at every stage of a criminal proceeding where 
substantial rights of a criminal accused may be affected.” See also 
Note, Federal Habeas Corpus, 83 Harv. L. Rev. 1038, 1202-05 
(1970).

i«a  petition for a writ of error coram nobis (Cal. Penal Code, 
Section 1265), is properly filed in the court of conviction. The 
conditions for its issuance are (1) an error of fact existing at the



22

Where habeas corpus is appropriate, the petitioner 
has his choice of three state forums, the Superior 
Court, the Court of Appeal or the Supreme Court. 
California Penal Code, Sections 1475, 1508; W ithin, 
Gal. Grim. Proc. 764-65 (1963). All three courts have 
original habeas jurisdiction and it is not necessary 
to file first in a lower court. Id. In fiscal year 1968-69, 
about 6,200 post-conviction applications were filed, of 
which 3,814 were filed in Superior Court, 1,051 in the 
Court of Appeal and 1,345 in the Supreme Court. 
Judicial Council of California, 1970 Annual Report 
to the Governor and the Legislature, 36. Of the ap­
proximately 6,200 applications, about 5,300 were
time of judgment; (2) the fact does not appear of record or go 
to the merits of the issues tried; (3) it was not presented at trial 
for excusable reasons; and (4) knowledge of the fact would have 
prevented rendition of the judgment. See iCalifornia Criminal Law 
Practice, California Continuing Education of the Bar, 371-73 
(1969). Habeas corpus, on the other hand, is applied for in the 
court having jurisdiction over the prison, and serves its tradi­
tional purpose of inquiring into the lawfulness of the conviction. 
As a practical matter, untutored prisoners experience difficulty in 
determining whether eorarn nobis or habeas corpus is the appropri­
ate vehicle for raising the “ factual issue” which they claim in­
validates their conviction, and since mislabelling results in filing 
in the wrong court, an erroneously labelled claim is likely to be 
dismissed without explanation, regardless of its substantive merit.

For an extreme example of the difficulties! encountered by pris­
oners in states which have not enacted modem post-conviction 
procedures, see Marino v. Bagen, 332 U.S. 561 (1947). Only a 
handful of states have done so. See generally, Note, State Post- 
Conviction Remedies and Federal Habeas Corpus, 12 William & 
Mary L.Rev. 149 (1970).

The Emory Law School Legal Assistance For Inmates Program 
found that some inmates did not even know in what court they 
had been convicted, and that many did not know the exact nature 
of the crime for which they were convicted, or the nature of the 
sentence imposed. See Jacob and Sharma, Justice After Trial: 
Prisoners’ Need For Legal Services In the Criminal-Correctional 
Process, 18 Kan. L. Rev. 493, 621 n. 723 (1970). This is con­
sistent with the experience of amici in attempting to assist Cali­
fornia prison inmates.



23

denied without either a hearing or a written opinion. 
Id. at 31. Thus, the typical petitioner received only 
a postcard stating that his petition wras summarily 
denied, with no clue as to the ground for denial. Id. 
at 34, 37. The typical state petitioner in California 
has no way of knowing whether he has been denied 
because of some techical defect in his application 
(e.g., incorrect venue), a failure to state some ma­
terial fact, general incomprehensibility of the peti­
tion, or reliance on a legal theory rejected by eases 
or statutes he has never heard of.

The Attorney General asserts here, as he did below, 
that the petitioner need only state the “ facts” of his 
ease in order to obtain a judicial hearing. The court, 
below, however, composed of judges who know what 
it takes to gain a post-conviction hearing in a busy 
trial court, exposed the utter unreality of the Attor­
ney General’s position (App. 100). Even assuming 
that the untutored prisoner can clear all the technical 
and jurisdictional hurdles, he must know which facts 
to present to the court. Even an educated layman is 
unlikely to be able to differentiate the legally relevant 
facts in his case. Left, to his owm resources, the 
prisoner is likely to omit essential facts, or to bury 
them in a mass of irrelevant detail.17 This is particu-

17Cf. United States ex rel. Wissenfeld v. Wilkins, 281 F.2d 707, 
715 (2d Cir. 1960), where the issue was the need for counsel at a 
post-eonvietion hearing. The court said: “ . . . rarely will a. prisoner 
have sufficient ability or training to recognize the facts which are 
important to his1 case or present his side of the dispute in an or­
derly manner.”

In In re Williams, 1 Cal.3d 168, 460 P.2d 984 (1969), the pris­
oner’s third petition for habeas corpus was granted. His two un­
successful petitions had been based on erroneous legal theories, and



24

laxly true when the essential “ fact” is not part of the 
criminal transaction itself, but rather concerns the 
constitutionality of the criminal statute, e.g., Robin­
son v. California, 370 U.'S. 660 (1962), or the omis­
sion of a procedural protection essential to the in­
tegrity and reliability of the fact-finding process, e.g., 
Pointer v. Texas, 380 U.S. 400 (1965). In short, “ it 
is necessary to understand what one’s rights are be­
fore it is possible to set out in a petition the facts 
which support them. . . .” Johnson v. Avery, 393 U.S. 
483, 501 (1969) (dissenting opinion of White, J.).

The Attorney General also suggests that the habeas 
corpus forms provided by federal and state courts 
are sufficient to enable the unassisted indigent 
prisoner to present an adequate claim for relief. The 
inadequacy of the forms for this purpose is discussed 
in the Annual Report of the Judicial Council of Cali­
fornia (1971) at pages 46-47. The Report points out 
that the California form fails to give any guidance 
as to what possible grounds and what facts are re­
quired for relief, and notes that neither the relevant 
facts nor the theories are self-evident, in any case. 
Moreover, reliance on forms as. the exclusive means 
of providing access to the courts assumes that
the existence of a valid claim for relief was not uncovered until 
he was able to cite the governing case. In In re Greenfield, 11 Cal. 
App.3d 536, 89 Cal.Rptr. 847 (1970), a case in which the peti­
tioner’s right to relief turned on the same point of law, the court 
observed that, “ No profession depends upon its boobs so deeply and 
vitally as the law. Only the smallest lawyer ist too big to use law 
books.” The need for including legal citations in prisoners’ peti- 
titions is particularly acute because the judges of the rural Su­
perior Courts in which most petitions are filed do not have the 
assistance of law clerks. See Krause, A Lawyer Looks at Writ 
Writing, 56 Cal. L. Rev. 371, 372 (1968).



25

prisoners will understand printed documents and in­
structions well enough to fill them out correctly. The 
invalidity of such an assumption is noted by the 
Report, and the general illiteracy, lack of education 
and intelligence in prisons have been noticed by this 
Court, Johnson v. Avery, 393 U.S. 483, 487 (1969), 
and documented by commentators. See Jacob and 
Sharma, Justice After Trial: Prisoners’ Need for  
Legal Services in the Criminal-Correctional Process, 
18 KamL.Rev. 493, 508 (1970). In short, the un­
tutored and indigent prisoner, even the literate and 
intelligent one, without access to an adequate library 
or preliminary legal counselling, is not likely to be 
able to present a petition clearly setting forth a 
meritorious claim.

3. The Legal Resources Provided by the State

As noted above,18 California does not authorize its 
public defenders to assist in the preparation of post­
conviction proceedings. Nor does the State provide 
for court-appointed attorneys, bar associations or law 
students to furnish any pre-hearing assistance. Cali­
fornia does permit jailhouse lawyers to help other 
prisoners. And the State does provide the few law 
books listed in the regulation (App. 41) invalidated 
by the court below. Rut that is all.

The Attorney General, instead of filing new regula­
tions providing at least for an augmented library or 
“ some new method” of meeting the legal needs of 
California prisoners (App. 104-05), has appealed to

18See pp. 10-11, supra.



26

this Court, taking the position that the State is not 
obligated to provide any legal assistance at all to 
indigent prisoners. As stated above, we believe this 
Court’s decisions on effective access to the courts 
render the Attorney Greneral’s position completely 
untenable.

There are easily available, relatively inexpensive 
techniques for providing prisoners with the necessary 
legal advice and assistance for presenting valid 
claims. As this Court noted in Johnson v. Avery, 393 
U.S. 483 (1969), some states make public defenders 
available to consult with prisoners regarding their 
habeas petitions. Others have created new post-con­
viction procedures which permit or require the 
appointment of private counsel.19 Still others have 
developed programs to assist prisoners without the 
expenditure of public funds, by cooperative action 
with law schools or privately funded projects.20 See 
generally, on the variety of prisoner legal aid pro­
grams, Jacob and Sharma, Justice A fter Trial: 
Prisoners’ Need for Legal Services in the <Criminal- 
Correctional Process, 18 KanJLRev. 493, 593-613 
(1970).

Courts and commentators have often discussed the 
economy that can result from improved state post-

19See generally Note, State Post-Conviction Remedies and Fed­
eral Habeas Corpus, 12 William & Mary L.Rev. 149 (1970).

20At least one state—New York—has obtained federal funds for 
this purpose through a grant from the Law Enforcement Assist­
ance Administration. See 5 Crim. L. Rptr. 2277-78 (1969). In 
1971 alone, California received $32,999,000 of federal funds under 
the Omnibus Crime Control Act. The Recorder, June 11, 1971, 
at 1, col. 7. But such funds are apparently being devoted to other 
purposes.



27

conviction procedures. By reducing frivolous and 
repetitious petitions and eliminating the need for 
piecemeal litigation, assistance programs could effect 
a substantial saving in judicial time, and reduce the 
burden on the state agency charged with the duty of 
responding. See, e.g., United States v. Simpson, 436 
F.2d 163 (D.C. Cir. 1970); Lay, Problems of Federal 
Habeas Corpus Involving State Prisoners, 45 F.R.D. 
45, 49-51 (1968).21

The benefits of such programs are not merely spec­
ulative. Thus, the volume of state prisoner habeas 
petitions filed in the federal district court for Western 
Missouri decreased following a great improvement in 
the state’s processing of post-conviction applications. 
See Oliver, Postconviction Applications Viewed' by 
a Federal Judge—Revisited> 45 F.R.D. 199, 204
(1968).22

When prisoners are forced to prepare their post­
conviction petitions without any form of expert as­

21As one commentator has observed, it is unfair to blame pris­
oner litigants for the great volume of totally unmeritorious peti­
tions filed while simultaneously denying them the assistance they 
need to determine whether their petitions have merit or not. 
Krause, A Lawyer Looks at Writ Writing, 56 Cal. L.Rev. 371, 372 
(1968).

22The outstanding features of the revised Missouri procedure 
are: (1) it provides for mandatory appointment of counsel if the 
petitioner’s motion presents any question of law or issue of fact 
(regardless of whether a hearing is required); (2) counsel is re- 
quired to seek out any unalleged grounds for attack and amend 
the complaint to include them; and (3) the trial court is required 
to make findings of fact and conclusions of law on all issues pre­
sented, whether or not a hearing is held. 45 F.R.D. at 211-13; Mo. 
Sup.Ct.R. 27.26(h) (i). In Illinois, post-conviction procedures re­
quire the public defender to consult with the prisoner, ascertain 
his claims, examine the record and amend his petition adequately 
to present any constitutional claims. See People v. Lyons, 46 111.2d 
172, 263 N.E.2d 95 (1970).



sistance, the flood of meritless eases makes it likely 
that meritorious cases will be overlooked. See Peters 
v. Rutledge, 397 F.2d 731, 738 (5th Cir. 1968). Yet, 
where prisoners receive proper assistance that dis­
courages frivolous claims and effectively presents 
meritorious ones, observers have been surprised by 
the number of valid claims which emerge. See Oliver, 
Postconviction Applications Viewed by a Federal 
Judge-—Revisited, 45 F.R.D. 199, 217 (1968); Jacob 
and Sharma, Justice After Trial: Prisoners’ Need for  
Legal Services in the GriminaLCorrectional Process, 
18 Kan.L.Rev. 493, 504 (1970).

In short, there are many techniques for providing 
the necessary legal resources to make effective use of 
existing post-conviction remedies. The Court need not 
choose among them. The district court has required 
the State officials themselves to develop appropriate 
legal assistance methods, and they should be free to 
experiment with whatever alternatives or combina­
tions thereof are best suited to the California situa­
tion. But clearly, we submit, the district court was 
correct in finding that due process of law requires 
some form of state-provided assistance to California 
prisoners.

III. CALIFORNIA’S DENIAL OF NECESSARY LEGAL ASSIST­
ANCE TO INDIGENT PRISONERS DEPRIVES THEM OF 
EQUAL PROTECTION OF THE LAWS.

The district court foimd not only that California 
denied indigent prisoners due process of law by 
depriving them of effective access to the courts, but



29

also that they were denied equal protection when com­
pared with those convicts who are able to afford 
retained counsel.

This Court has consistently made plain that access 
to the courts by indigent prisoners for both appeals 
and post-conviction proceedings cannot be effectively 
denied by economic and other barriers. See Griffin v. 
Illinois, 351 U.S. 12 (1956) (right to free transcript 
for appeal) ;2'8 Douglas v. California, 372 U.S. 353 
(1963) (right to assigned counsel on appeal) r 1 Lane 
v. Brown, 372 U.S. 477 (1963) (indigent may not be 
barred from appealing denial of state coram nobis by 
requirement that public defender order transcript) ; 
Burns v. Ohio, 360 U.S. 252 (1959) (right to seek 
leave to appeal without paying filing fee) ;2B Smith v. 
Bennett, 365 U.S. 708 (1961) (right to bring State * 24 25

23“ There can be no equal justice where the kind of trial a man 
gets depends on the amount of money he has. Destitute defendants 
must be afforded as adequate appellate review as defendants who 
have money enough to buy transcripts.” 351 U.S. at 19 (Black, 
J.). “ The State is not free to produce such a squalid discrimina­
tion. I f  it has a general policy of allowing criminal appeals, it 
cannot make lack of means an effective bar to the exercise of this 
opportunity. The State cannot keep the word of promise to the 
ear of those illegally convicted and break it to their hope.” Id. at
24 (Frankfurter, J., concurring).

24“ There is lacking that equality demanded by the Fourteenth 
Amendment where the rich man, who appeals as of right, enjoys 
the benefit of counsel’s examination into the record, research of 
the law, and marshalling of arguments on his behalf, while the 
indigent, already burdened by a preliminary determination that 
his case is without merit, is forced to shift for himself. The in­
digent, where the record is unclear or the errors are hidden, has 
only the right to a meaningless ritual, while the rich man has a 
meaningful appeal.”  372 U.S. at 357-58 (Douglas, J.).

25“ [0]nce the State chooses to establish appellate review in 
criminal cases, it may not foreclose indigents from, access to any 
phase of that procedure because of their poverty.” 360 U.S. at 257 
(Warren, C. J.).



30

habeas corpus proceedings without paying fees) f 6 
Long v. District Court, 385 U.S. 192 (1966) (right to 
free transcript on appeal from State habeas corpus); 
Draper v. Washington, 372 U.S. 187 (1963) (evalu­
ation of merits by trial judge cannot bar the full 
appellate review available to non-indigents) ; Roberts 
v. LaVallee, 389 U.S. 40 (1967) (right to free tran­
script of preliminary hearing) ;26 27 Rinaldi v. Yeager, 
384 U.S. 305 (1966) (state may not withhold
prisoner’s earnings to recoup cost of transcript fur­
nished on appeal) ; Anders v. California, 386 U.S. 738 
(1967) (right to assistance of appointed counsel act­
ing as advocate) ;28 Entsminger v. Iowa, 386 U.S. 748 
(1967) (right to full record on appeal assuring com­
plete and effective appellate review) ; Gardner v. Cali­
fornia, 393 U.S. 367 (1969) (right to transcript of 
state habeas hearing); Williams v. Oklahoma City, 
395 U.S. 458 (1969) (right to free transcript for 
appeal from conviction of petty offense).

Of course, this does not mean that the state must 
equalize litigation resources to place all potential 
claimants on the same footing. But unless the indi­

26“ [T]o interpose any financial consideration between an in­
digent prisoner of the State and his exercise of a state right to 
sue for his liberty is to deny that prisoner the equal protection of 
the laws.” 365 U.S. at 709 (Clark, J.).

27“ Our decisions for more than a decade now have made clear 
that differences in access to the instruments needed to vindicate 
legal rights, when based upon the financial situation of the defend­
ant, are repugnant to the Constitution.” 389 U.S. at 42 (per 
curiam).

28The procedure directed by the Court “ will assure penniless 
defendants the same rights and opportunities on appeal— as nearly 
as is practicable—as are enjoyed by those who are in a similar 
situation but who are able to afford the retention of private coun­
sel.” 386 U.S. at 745 (Clark, J.).



31

gent prisoner has legal assistance “ reasonably ade­
quate for the task” of presenting a valid post-convic­
tion claim, he will be “ surely and effectively barred 
from the courts,” Johnson v. Avery, 393 II.S. 483, 499
(1969) (dissenting opinion of White, J.), and the 
remedy fully available to a prisoner with some money 
will be denied to the indigent.29 30 Such denial of legal 
assistance minimally necessary to present a valid 
claim violates the equal protection clause.80

The Attorney General contends that the concept of 
the “ affluent” convict is illusory, and thereby dis­
misses the district court's equal protection holding. 
But clearly there are some prisoners who can pay a 
retained attorney to counsel them, do their research 
and draft their petition. As long as there are any 
in this status, we submit, the State cannot—by im­
prisoning the others and assuring their continued 
impoverishment—make legal cripples of the indigent 
prisoners.

Furthermore, California prisoners are disadvan­
taged not only vis-a-vis their more fortunate fellows 
but also when compared to the many convicted felons 
given probation or on parole, who are free to earn 
enough money to pay a lawyer or consult an OEO 
legal services attorney or, if  they choose, do their own 
research at available public libraries. Therefore, this 
case is much like the Court’s decision in Rinaldi v.

2®Of course, there is no rational basis for assuming that in­
digents’ claims will be less meritorious than those of other pris­
oners. Cf. Burns v. Ohio, 360 U.S. 252, 257 (1959).

30See generally, Michelman, On Protecting the Poor Through 
the Fourteenth Amendment, 83 Harv. L. Rev. 7, 25-26 (1969).



Yeager, 384 U.S. 305 (1966). In Rinaldi, the Court 
invalidated a Hew Jersey practice of withholding 
prisoners’ earnings to reimburse the state for tran­
scripts previously provided. The Court pointed out 
that others convicted of the same crimes—but placed 
on probation, given a suspended sentence or a fine— 
were not subject to the same treatment. The Court 
held that the New Jersey procedure thus denied 
prisoners equal protection of the laws.

IV. THE ELEVENTH AMENDMENT DOES NOT BAR THE 
RELIEF ORDERED BY THE DISTRICT COURT.

The Attorney General asserts that the injunction 
of the court below is inconsistent with the Eleventh 
Amendment because it is, in effect, a “ raid on the 
state treasury.”  This argument is a red herring.31 
The district court’s injunction does not require the 
spending of a single dollar of state money. What it 
requires is that the defendant officials submit revised 
regulations providing for some plan of adequate legal 
assistance to prisoners. The Attorney General has not 
submitted any plan, but has instead appealed to this 
Court.

31The Attorney General also urges that, the relief granted goes 
beyond the stipulation of the parties. This point hardly seems 
worthy of presenting to this Court. Rule 54(e) of the Federal 
Rules of Civil Procedure states that the judgment “ shall grant the 
relief to which the party in whose favor it is rendered is entitled,” 
even if not demanded in the pleadings. The court should be free 
to fashion an appropriate remedy that is not expressly excluded by 
or plainly inconsistent with the stipulation. The state officials will 
have ample opportunity to be heard on the question of relief when 
new regulations are filed in the district court.



33

W e assume that regulations complying with the 
district court’s order would likely result in the ex­
penditure of additional state funds, although this is 
not necessarily so.32 However, the same is true in 
practically any case enforcing Fourteenth Amend­
ment obligations. A  recent example is the decision in 
Swann v. Charlotte-Meckleriburg Board of Educa­
tion, 401 U.S........ , 91 S.Ct. 1267 (1971), where the
Court approved a district court order requiring a 
substantial increase in the amount of busing required 
to meet constitutional standards of school integration. 
The Court noted that the school system would have 
to employ 138 more buses than it had previously 
operated. Id. at 1283, n.12. There are numerous other 
cases, involving a range of Fourteenth Amendment 
issues, where the Court has indirectly required the 
states to expend public funds in order to bring public 
programs into compliance with constitutional guar­
antees. See, e.g., Goldberg v. Kelly, 397 U.S. 254
(1970) (hearings for welfare recipients) ; Turner v. 
Fouche, 396 U.S. 346 (1970) (reconstitution of jury 
lists) ; Reynolds v. Sims, 377 U.S. 533 (1964) (re- 
apportionment of legislative districts).

The Attorney General acknowledges that this Court 
has effectively ordered the disbursement of state 
funds in a number of cases (brief for appellants, p. 
35). Most closely in point are the decisions in Griffin 
v. Illinois, 351 U.S. 12 (1956), and Douglas v. Cali­
fornia, 372 U.S. 353 (1963), where the Court in

32See page 26, supra, describing alternatives for providing 
minimal preliminary legal assistance to prisoners from private or 
federal sources not requiring the expenditure of state funds.



34

effect required the states to spend money in order to 
comply with constitutional guarantees in the criminal 
process. The Attorney General purports to distinguish 
these cases, however, on the ground that “ this was 
done on direct review of criminal convictions in state 
courts.” This distinction is untenable. We cannot be­
lieve that the results in Griffin and Douglas or any 
other case where this Court has granted relief result­
ing in the expenditure of state funds would be any 
different if  the case had been brought (like the 
present case) as an affirmative civil suit to invalidate 
a state statute or regulation on constitutional grounds. 
The Eleventh Amendment does not stand in the way 
of enforcing the Fourteenth.

CONCLUSION

For the reasons stated, the decision below should 
be in all respects affirmed.

Dated, June 17, 1971.
Respectfully submitted,

J a c k  G reenberg  
J a m e s  M . N a b r it , I II  
C h a r le s  St e p h e n  R alston  
S t a n l e y  A . B ass 
A n t h o n y  G . A m sterd am  
W il l ia m  B e n n e t t  T u rn er  
O scar  W il l ia m s  
A lice  D a n ie l

Attorneys for Amici Curiae,