South Dakota Prisoners: “Siri, What’s the Appellate Standard of Review for…”

Jesus I’m barely standing up today. This week has been hell on wheels for me as I start moving a few cases closer to the mythical beast that is a civil trial, intake a few new clients, and wade through literal mountains of case citations to figure out just where we stand on a few things. Kids, if you ever say you want to be a lawyer because of some desire to be the center of attention in a courtroom or some perverse, almost obsessive, love of Sam Watterson (Oh Sammy, you can move to dismiss my affections, but you can’t object in my dreams), remember that those moments are few and far between for the civil attorney. The vast majority of cases settle long before trial, and they settle because of the huge amounts of research you put into a case as it progresses until you can make something that resembles a cogent argument.

I mean, guys, legal research is fucking complicated, even with the advent of computer searches like WestLaw, Lexis, FastCase, and, uh…those other ones. That, of course, is assuming you have access to all of those things,  because some lawyers and law offices don’t. They hate efficiency and ease of practice and prefer to sentence associates to wander the stacks of the local law library in search of some tattered copy of a state reporter to look up one case from 1890 that somehow barely touches on the issue at hand, then track the entire line of cases down with cross-references and reviews the whole damn time.

In other words, this shit, doing legal research and knowing what you’re looking for, is hard.

So that’s why South Dakota has decided inmates can just sort of…wing it.

Alright, first things first,  I want to give some mad props to South Dakota for, in the past, making a part-time lawyer and paralegal available to inmates to help them with their legal needs. This shit wasn’t out of the goodness of their own hearts, though, as prisoners have a constitutional and fundamental right to access to the courts, and that right requires they be given access to persons or materials necessary to prepare and file legal documents. However, in providing prisoners with a trained paralegal and lawyer, South Dakota went above and beyond mere access to a law library and a help line, the stance that a lot of states take in fulfilling the obligation.

I mean, until recently when South Dakota decided that prisoners can use a fucking iPad to perform all of the necessary legal work.

That’s right, according to South Dakota, a prisoner with access to WestLaw on an iPad can be just as effective as an attorney and paralegal in researching, discussing, and determining the meaning of legal precedent that can help an incarcerated person plead their case to the courts. Because it’s easy to plug in a case on WestLaw and have it immediately return an on-point case. I mean, it’s not like law schools have WestLaw and LexisNexis representatives come in every fucking year just to train 1L’s how to do things like use the search bar, determine whether the law is good, research and read negative treatment, etc. Nope. That shit definitely doesn’t happen. WestLaw will fucking save us.

As one law professor put it in that article:

“What’s someone who can’t read or write … supposed to do with a tablet?”

Now, I know. Some of you are saying “Boozy, they’re fucking prisoners. Who really gives a shit? Besides, nobody’s saying they can’t have lawyers, people are just saying they are entitled to get assistance from lawyers when doing their legal research to find out if the commissary can  really prevent them from having tampons. You know, like in that Netflix show with the lesbian prisoners.”

[I want to go on record as saying it’s pretty clear from the context of the show that Piper Chapman is at the very least bisexual. Not that I care. I got a thing for Red. Oh my sweet, sweet Babushka, cook me a nice dinner and let’s drink vodka till the sun rises over the yard.]

Some jurisdictions treat prisoners as being “civilly dead” during the period of their incarceration. That means they can’t sue (except for wrongs done to them by prison administrators), and they can’t be sued until after they’re released from prison. In other states, there are panels or procedures in place that appoint someone to care for the prisoner’s legal interests. In others, like Texas, though, a prisoner can definitely fucking be sued during the period of their incarceration, and in that case the prisoner is likely left to their own devices in handling the lawsuit.

So yeah, when you have a person in prison who may be forced to defend themselves in a civil action, and you’re essentially telling them “here’s a law book, figure it out for yourself,” there’s a problem there. And make no mistake, handing prisoners a tablet with access to WestLaw is exactly like dumping an entire law library in their cell and telling them to learn as they go. That may work in a lot of areas, the whole “learn by doing, failing, and doing over” thing, but in the area of law that shit doesn’t fly because failing has some lifelong consequences.

The point is inmates don’t get a lot of fucking money while they’re, you know, in jail, that can be used to hire an outside attorney to assist in matters. And there are issues in restricting a prisoners rights, because that same prisoner may be sued several times over while in jail and without the resources to hire an attorney, and in civil matters there’s absolutely no right to court-appointed counsel. Period.

But given South Dakota’s history, maybe it’s a bit of the “fuck prisoners” type of thing going on there. Back in 1999 South Dakota decided that, meaningful access to the courts be damned, prisoners were in no way entitled to access to a law library to research and prepare their cases. In the wake of getting a fucking smack down for saying “LOL, default in hell convict!” South Dakota voluntarily provided the paralegal and part-time lawyer. This was, assumably, a way of showing people what good and caring people the prison administrators and the state actually were, not only restoring access to the law library for prisoners (you know, something that is a fundamental aspect of access to the courts), but giving them a way to actually run things past a guy licensed and trained to provide legal assistance, perform legal research, and generally make sure cases weren’t going to go to hell.

But with the tablets and the access to LexisNexis, in the eyes of the government of South Dakota the legal acumen and training became superfluous. Despite, you know, the mere fucking existence of the goddamn tablets increasing the number of questions the lawyer was getting on a daily basis on whether a case would be good or bad to use. Because, much like the public school system, when access to information raises questions that may need to be explained in depth, the best course of action is naturally to remove the means of getting those questions competently answered.

Of course, we all know this is a cost-saving thing, right? I mean, because according to this story from May, South Dakota got the tablets totally fucking free of charge. Toss free tablets in with a $54,000 a year LexisNexis subscription (question, are they getting Lexis Advanced? Those inmates…always getting the best), and the state will save about $60,000 per year in salary and benefits for a paralegal and part-time lawyer, not to mention the savings inherent in getting rid of that pesky paper law library and the maintenance added in with it.

So what are some natural outcomes?

Prisoners are going to “go it alone” in many instances, citing irrelevant case law that muddies their claims or defenses. They’ll miss deadlines or procedural requirements so fucking arcance you can only find them by putting on a black robe and performing a summoning circle. The quality and nature of meritorious claims and defenses brought by prisoners will drop, people will miss pertinent case law, and people will be hurt as a result of a budgetary move to save $60,000 while still being “tough on crime” by really sticking it to those convicted criminals! And overall, nobody will say boo about sticking the means to perform complicated legal research and analysis entirely in the hands of a layman who lacks not only the resources to use those means adequately, but the ability to obtain the resources to hire a lawyer that can.

In essence, giving a prisoner access to an entire fucking world of legal information with no guide is like handing a 3 year old a lawnmower. You hope they’ll mow the goddamn grass, but there’s a good chance they may also run over the fucking cat.

But, you know, let’s remember the words of South Dakota Department of Corrections Secretary Kaemingk when this very issue was brought up to him:

There is no consent decree that says we have to furnish [a lawyer and paralegal to help].

And you know what? He’s right.

…But some things shouldn’t require a fucking court order to make you see they’re wrong.

-BB

Author: BoozyBarrister

From a riverboat to a law office, the BoozyBarrister is a civil litigator with a bad attitude.