Holland & Knight pro bono team grapples with  Florida's cutoff of PCs and typewriters for  71,000 prisoners

 Julie Kay
 Miami Daily Business Review
 August 23, 2001

 Holland & Knight's pro bono team has taken on  the cause of 71,000 Florida prisoners who are  no longer allowed to use typewriters or  computers to write their appeals or pleadings.  Some of the prisoners claim they lost years of  research when the Florida Department of  Corrections abruptly removed the typewriters and computers recently.

 The team, led by Tampa-based lawyer Robin  Rosenberg, is representing an inmate who filed  a petition to the Florida Supreme Court in May  regarding the DOC's action. Rosenberg  anticipated filing this week a class action  lawsuit on behalf of all prisoners in Florida's  134 state prison facilities, claiming the move  by the DOC violates the Florida Constitution.

 "I believe that the Department of Corrections  is undergoing a systematic effort to do  whatever it can to reduce the number of  lawsuits and pleadings from prisoners,"  Rosenberg says. "Prisoners have legitimate  legal concerns. Taking away their computers is  not going to stop them from pursuing them. It  will just make it much more inconvenient for  the court and prisoners if they write longhand."

 On its face, removing typewriters and computers from Florida state prisons might not seem like  the kind of decision likely to spark outrage.

 But the American Civil Liberties Union and  prisoners' rights groups around the country say  the move, ordered on May 10 by Richard Nimer,  director of program services for the DOC, will have a devastating impact on prisoners' access  to the courts, reducing the number of appeals  and motions they file. They say the decision is  part of an erosion of prisoners' rights  nationally. The trend, they say, is  particularly pronounced in Florida, where legal  books and even forms to file pleadings  reportedly have been removed from law  libraries.

 A group of prisoners in the Avon Park  Correctional Facility in Polk County, Fla.,  filed a petition in May with the Florida  Supreme Court seeking a temporary restraining  order to prevent the destruction of any of  their legal work on computers or on diskettes  as a result of the new order. They essentially  seek to overturn the DOC order.

 The attorneys in the pro bono department of  Tampa-based Holland & Knight felt so strongly  about the situation that, when contacted by  prisoners' rights groups, they accepted the  case as one of the few they would take on this  year. Rosenberg, the community services liaison  for Holland & Knight, was assigned to the case  and is representing the Avon Park prisoners.

 Rosenberg, 35, has served on the community  services team for 15 months. She previously  succeeded in winning the release of an  immigrant indefinitely detained by the  Immigration and Naturalization Service. She  also is representing 45,000 children in foster  care who she says have been denied access to  mental health care; she says she's in the  process of settling the case with the state.  The Tampa native has worked at Holland for four  years, previously specializing in maritime law.  But she calls doing pro bono work while earning  a regular lawyer's salary "the perfect job."

 PEN AND PAPER FILINGS

 Rosenberg describes the prisoners' situation as  "particularly egregious." In May, the DOC  ordered all law libraries in its prisons to  stop allowing inmates to use typewriters or  computers for legal purposes. The DOC did not  actually remove the typewriters or computers.  According to DOC spokeswoman Jo Ellyn Rackleff,  the computers can still be used by designated  law librarians, typically nonprisoners.

 But, under the order, indigent inmates have to  prepare legal documents with paper and pen,  which prison officials are supposed to give  them.

 Even more devastating than denial of access to  typewriters and computers is that the order  took effect immediately. Some prisoners,  Rosenberg contends, had 10 years worth of files  and pleadings stored on diskettes and hard  drives and now have no access to them, thus  losing countless hours of work.

 "The result of the action was immediate loss of  access to legal work product and effective  denial of access to the courts by means of  destruction of files, research and work in  progress on open and pending cases in state and  federal court," according to the prisoners'  petition to the courts. "No consideration was  given to individual petitioners with pleadings,  petitions and court ordered responses in the  process of being drafted; court imposed time  deadlines or limitations periods  notwithstanding."

 Rackleff, however, says all information on hard  drives was backed up to diskettes and will be  printed out and made available to the  prisoners. But she could not say when that  would occur.

 Rackleff says the order was intended to save  the DOC $50,000 a year in maintenance for the  typewriters and computers; general law library  funding for the prison system has declined from  $1.15 million in 1995 to about $150,000 in  2001, according to Allen Overstreet, manager of  library services for the DOC."

 The department's order is fully in compliance  with the law, Rackleff says. The agency waited  to issue the order until Judge Ralph W. Nimmons  of the U.S. District Court in Jacksonville  issued a final order in a prisoners' rights  case that required the continued operation of  law libraries in Florida state prisons but did  not require prisons to provide inmates with  computers or typing services. That order was  issued December 2000.

 SECURITY PROBLEMS?

 According to a letter posted on the DOC Web  site by DOC Secretary Michael Moore, the  computers were creating security problems.  Inmates, Moore claims, have used the computers  to create "gambling paraphernalia." Some  inmates in Florida and other states, he  claimed, have used the computers to forge DOC  memos, court orders and fictitious Internal  Revenue Service returns and income statements  to obtain illegal tax refunds.

 Overstreet says that not all inmates had access  to the computers and typewriters. Forty-eight  percent of prisons lacked them, as did work  camps and work release programs.

 In addition, says Rackleff, inmates who could  type were bartering the service, creating a  black market typing service, which is against  prison rules. "It was turning into a real  problem," she says.

 But Rosenberg scoffs at DOC officials' security  arguments. "They told the inmates who filed  grievances it was simply a cost issue, but now  they are saying it's a security issue," she says. "They keep changing their story."

 As to the black market allegations, Rosenberg  says inmates with poor handwriting or who can't  write at all are now paying inmates who can  handwrite their pleadings. "They've just  replaced one black market with another," she  says. The real purpose behind the agency's  move, Rosenberg says, was to block prisoners'  access to the courts and reduce the number of  pleadings and appeals they file. "Folks in  prison have the same kind of problems you and I  do -- they have family law issues, they're  trying to see their kids, immigration issues,  they get served with divorce papers and must  respond, they have consumer complaints," she  says. "Many are indigent and can't afford a  lawyer, and the state only provides legal  defense for criminal cases, so they have to do  their own appeals and filings."

 As proof of the state's true motive, she  alleges that some of the prisons have also  removed paper forms for pleadings -- including  petitions and financial affidavits for divorce  and immigration appeals -- as well as law books  dealing with criminal appeals and civil rights.

 James Green, a West Palm Beach civil rights  lawyer and the former Florida director of the  ACLU, says he personally experienced DOC's  effort to stymie legal research by prisoners.  He says he tried to donate $50,000 worth of law  books that he no longer needed to the Broward  Correctional Institution last month. The law  librarian was thrilled to get them, he says.  But the librarian soon called him back and said  he had to check with DOC headquarters in  Tallahassee. When he did, officials there  refused the books, he says, but wouldn't say  why. Rackleff says she is unaware of the  incident; warden John A. Anderson of the  Broward Correctional Institution declined to  comment.

 "There's a special hostility toward inmates  trying to protect their legal rights in the  last few years," Green says. "Prison officials  have just been mean." Rosenberg argues that  prison officials have other and better ways  than forbidding use of typewriters and  computers to discourage frivolous lawsuits.  They have the option of taking away time lopped  off sentences for good behavior.

 JUDICIAL ASSISTANTS WILL SUFFER

 Besides prisoners, the people who will suffer  most from the change, say prisoners' rights  lawyers, are judicial assistants, who will have  to read reams of handwritten, barely legible  pleadings and, in some cases, arduously retype  them. Rosenberg says she has already heard  complaints about the DOC action from Florida  Supreme Court clerks.

 The ultimate result, say prison rights  advocates, will be that the handwritten appeals  -- typically filed by prisoners defending  themselves -- will likely get less  consideration than typed ones, those from  prisoners who can afford to hire lawyers to  file court papers.

 "There's supposed to be equal consideration for  typed and handwritten pleadings, but that just  doesn't happen," says John Boston, project  director for the Prisoners' Rights Project,  part of the New York City Legal Aid Society.  All prisoners in New York City and New York  state have access to typewriters to type  their pleadings, he says.

 Joseph P. Farina, chief judge of the Miami-Dade  Circuit bench, wrote to Moore expressing his  concerns, as did state Rep. Alex Trovillion,  R-Winter Park, Fla. The two men received  letters from inmates after the typewriters and  computers were removed; one inmate, Eric D.  Bank, wrote to every chief circuit judge in
 Florida to complain.

 "My concern has to do with the legibility of  the handwritten pleadings," Farina says. "When  they are typed, our responses to them are more  timely, compared to when we have to decipher  their handwriting. Often times, the judicial  assistant has to retype the whole thing. This  causes delay factors. It's only common sense."

 The petition to the Florida Supreme Court was filed on May 18 by 45 prisoners. They claimed  the DOC's measure violates the Florida  Constitution as it "frustrates petitioner's  access to courts." They requested a writ of  mandamus compelling the corrections department  to provide access to computer files and  continued use of law library work stations for  legal work.

 The case was transferred on May 25 to Leon  Circuit Court, where the Florida DOC  headquarters is located. Intake Judge John E.  Crusoe dismissed all plaintiffs except one  prisoner, Gregory Henderson, to avoid  repetition. On Aug. 3, Judge Nikki Ann Clark  dismissed Henderson's case, saying all other  administrative remedies had not been exhausted,  namely, that Henderson had not filed a  grievance to the DOC.

 Referring to her appeal of that dismissal and  the class action motion, Rosenberg argues that  grievances to the DOC by other prisoners have  been denied and that there was no point in  Henderson filing one now.

 "This will cause a slight delay in the case,  but it is still a strong case and we are  proceeding," she says.

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