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