The opinion of the court was delivered by: KAUFMAN
The facts in these cases are not in dispute. The following relevant and material facts speak for themselves:
1. As of August 1976, the average daily population of the Maryland Division of Correction was approximately 7100 prisoners. The total number of prisoners who, it was expected, will be confined in the Division of Correction for the period August 1976-August 1977 was in August 1976 estimated at approximately 13,500. (See Stipulation of Counsel dated May 22, 1975, para. 1, hereinafter cited as "Stipulation I"; Plaintiffs' Proposed Findings of Fact, para. 2, hereinafter cited as "Plaintiffs' Facts"; Defendants' Proposed Findings of Fact, para. 3, hereinafter cited as "Defendants' Facts".) Inmates were housed throughout the several confinement institutions within the Division of Correction of the State of Maryland. See chart reproduced infra as Appendix A to this opinion and stipulated to by the parties; Stipulation I, Exh. 1.
2. During the fiscal year, July 1, 1972, through June 30, 1973, of the 4508 prisoners received by the Division of Correction, 3037 (67%) were convicted in Baltimore City. During the previous fiscal year, 2477 of 3867 prisoners received by the Division were convicted in Baltimore City (64%). During the most recent fiscal year (1975), 2502 of 4287 prisoners received were convicted in Baltimore City (58%). (Stipulation I, Exh. 2, para. 2; Plaintiffs' Facts, para. 3.)
3. At any given time, about one-third (33-1/3%) of the prisoners in the Maryland prison population have one or more detainers outstanding against them. (Stipulation I, Exh. 2, para. 3.)
5. The vast majority of Maryland's prison inmates are without any legal training or education and cannot render adequate legal assistance to themselves or other prisoners. There are some inmates who attempt to give legal assistance to other prisoners.1A (Stipulation I, Exh. 2, para. 5.)
6. The median level of education for inmates confined in the Division of Correction is the sixth grade. Thirty-five percent (35%) of Maryland prisoners are functionally illiterate with a fifth grade reading level or below. Plaintiff Carter reached the eleventh grade, and plaintiff Morgan has completed two years of college. (Stipulation I, Exh. 2, para. 6.)
7. There are no law libraries in any of the institutions in the Division of Correction or at Patuxent Institution. No steps have been taken by either agency to obtain funding for law libraries. In some institutions and at Patuxent, there are some miscellaneous legal research materials. (Stipulation I, Exh. 2, para. 8.)
8. There are no lawyers, law students or paralegals employed by the Division of Correction or Patuxent Institution to provide legal advice and assistance to inmates in the preparation and litigation of their cases in the state and federal courts. (Stipulation I, Exh. 2, para. 9.)
9. There are no programs in the Division of Correction or Patuxent Institution to train inmates to provide legal assistance to other inmates. (Stipulation I, Exh. 2, para. 10.)
10. There are no services provided by the Division of Correction or Patuxent Institution for inmates who wish to do legal work (for example, there is no physical space set aside for them to work or to keep their legal materials; there are no typewriters, pens, pencils, envelopes or stamps provided for legal work; and there is no writing paper or copying service provided for legal work). (Stipulation I, Exh. 2, para. 11.)
11. Patuxent Institution does not provide inmates in committed or diagnostic status with legal services of any kind concerning their rights during evaluation or preparation for defective delinquency commitment or redetermination proceedings. (Stipulation I, Exh. 2, para. 12.)
12. In the Division of Correction and at Patuxent Institution, there is a "publisher's only" policy in effect. Under this policy, a prisoner may only receive books and other reading materials, including law books and legal research materials, from a publisher or book store. (Stipulation I, Exh. 2, para. 13.)
13. Division of Correction Regulation No. 250-1 (March 29, 1974), which sets forth policy and procedure applicable to all confinement institutions within the Division of Correction of the State of Maryland with regard to incoming and outgoing inmate mail, provided as follows at the time of its promulgation:
a. An inmate may write sealed letters to a court, judge, clerk of court, attorney-at-law, elected or appointed government official, such as members of Congress or the Maryland General Assembly, Governor, Attorney General, Department of Public Safety and Correctional Services or the Inmate Grievance Commission. All other outgoing correspondence must bear the name of the inmate and the return address of the institution on the envelope. This mail will be placed unsealed in the mail drop and will be subject to inspection. Proper postage must be affixed to the envelope, except in the case of an indigent inmate's legal mail.
c. All incoming mail will be opened for inspection before delivery to the inmate. Mail from any of those mentioned in par 4a above to whom sealed letters may be sent will be inspected for contraband only and forwarded promptly to the inmate. Mail from all other sources shall be subject to additional review to determine appropriateness. Such mail may be returned to the sender if, in the opinion of the institution, such mail falls into one of the following categories:
(1) Inflammatory or advocates escape, violence, disorder, or assault.
(2) Directly or indirectly threatens the security, safety or order of the institution or its personnel.
(3) Contains coded or otherwise undecipherable language that prevents the adequate review of the material.
d. Packages may be received only when prior written approval has been given; any package received without such approval shall be refused and returned to the sender.
e. An indigent inmate will be provided with sufficient first-class postage for seven (7) letters per week.
f. The inmate shall be given written notice of mail that has been withheld under par 4c above. The inmate may appeal such action by letter to the Commissioner.
g. There shall be no restrictions placed on the inmate's correspondence for disciplinary purposes unless the inmate specifically abuses this privilege.
h. No inmate will be permitted to correspond with an inmate in another institution within the Division of Correction without the express permission of the Managing Officers of the institutions involved. Any such letter approved will be subject to the usual mail inspection outlined in par 4a above.
That regulation has subsequently been changed to include the following provisions:
If, after a reading by the authorized institution official, of any mail, publication, newspaper, periodical, literature or other written material of any kind, the official proposes that such material, or any portion thereof, be taken or kept from an inmate because of its contents, the inmate shall be entitled to the following procedures:
1. The inmate shall be furnished a written statement that certain named or described materials are sought to be taken or withheld from the inmate and setting forth the (reasons) for the proposed action. If the materials sought to be taken or withheld from the inmate were mailed or delivered to the inmate from a person outside the institution, any such person shall also be furnished with the written statement described above. The written statement shall be served on the inmate and any other such person no more than forty-eight (48) hours after the proposed decision to take or withhold the materials from the inmate.
2. When materials are withheld, the determination shall be made by the Warden and the Assistant Warden for Custody and Treatment or their designees.
3. The inmate will be given a reasonable time to respond to the decision to withhold the materials, in writing, to the Warden and his Committee.
4. In its review of the materials, the Warden and his Committee shall consider, and adopt where appropriate any existing (alternatives) short of taking or withholding written materials from the inmate.
6. The inmate and any such person shall be informed that if they object to the decision of the Warden and his Committee, either of them may appeal the decision to the Commissioner of Corrections, provided that such an appeal is made in writing, stating the reasons for the appeal, no more than five (5) days after service of the decision on them.
7. If the final decision of the Warden and his Committee, and the Commissioner of Corrections in cases where an appeal is taken, is that materials which have been mailed or delivered to an inmate from a person outside the institution will be withheld from the inmate such materials shall be promptly returned to the sender.
See Hopkins v. Collins, 411 F. Supp. 831, 834-35 (D. Md. 1976). In Hopkins, this Court entered the following Order:
1. It is unconstitutional for the defendants to use as standards concerning the withholding of mail addressed to inmates of institutions operated by the State of Maryland Division of Correction any of the following:
a. that which is "inflammatory";
b. that which "directly or indirectly threatens the security, safety or order of the institution or its personnel".
2. It is unconstitutional for the defendants to restrict the reading materials which a prisoner may receive or read unless they show that any such restriction furthers a substantial governmental interest such as security, order or rehabilitation, and is no greater than is necessary or essential to the protection of that interest.
4. It is unconstitutional for the defendants to restrict receipt or reading of any mail, publication, newspaper, periodical, literature, or other written material of any kind unless the prisoner and the person (the "correspondent") who mailed or delivered the same to the prisoner are afforded at least the following additional elements of procedural due process:
a. The prisoner and the correspondent shall be furnished a written statement that, if either or both so request, the person or persons so requesting are entitled to appear at a hearing before the Warden and his committee, or their designees, to contest the proposed decision.
b. If a hearing is requested by either the prisoner or the correspondent, such a hearing shall be held with reasonable promptness.
c. At the hearing, the prisoner if he appears thereat, and the correspondent if he appears thereat, shall have the right (1) to be informed of the facts which have been advanced in support of the proposed decision to restrict the reading materials; (2) to have a reasonable opportunity to contest or deny those facts; (3) to present any factual corrections and reasons why the reading materials should not be restricted; and (4) to call witnesses, introduce documentary evidence and confront and cross-examine adverse witnesses for the purpose of presenting relevant and material evidence unless to do so would create risk of reprisal or undermine authority or endanger the security, order, discipline or safety of the institution. If the committee decides not to permit the prisoner or the correspondent the opportunity to call a particular witness, present documentary evidence or confront and cross-examine an adverse witness, the committee must state in writing its reason for its decision. The committee may record its reason in camera if it specifies the reasons for so doing and makes its reasons for such restriction and for such in camera recording available for court review.
a. The Division of Correction has no prohibition concerning inmates reading or possessing law books or legal materials. Such use or possession may, however, be subject to institutional rules or directives because of space, fire, safety or security restrictions.
b. The Division policy will be that an inmate may assist another inmate in preparing a letter or petition to a court. No person or institution will interfere or in any way hamper an inmate's access to the judicial process.
c. An inmate who has a legal problem should be referred to one or more of the following individuals or agencies:
(1) The inmate's Classification Counselor. He will provide guidance in obtaining legal assistance.
(2) The inmate's attorney.
(3) The Legal Aid Bureau, Inc. may be contacted by mail. Legal Aid representatives are in the institutions on a regular basis.
(4) The Prisoners Assistance Project of the Legal Aid Bureau, Inc., 341 N. Calvert Street, Baltimore, Maryland 21202 may be contacted by mail.
(5) The court in any city, county, or state may be contacted by mail.
(6) The State Public Defender's Office, 800 Equitable Building, Baltimore, Maryland 21202 may be contacted by mail. This Office may provide assistance concerning direct appeals of criminal convictions, petitions for post-conviction relief and petitions for habeas corpus relief in the State courts.
(7) Any other lawyer who is authorized to practice, or his designated representative.
d. Inmates may be advised that:
(1) Counsel is appointed by the courts to represent indigent defendants in direct appeals from criminal convictions to both the Court of Special Appeals and the Court of Appeals of Maryland.
(2) Counsel is also appointed by the courts to represent indigent inmates in proceedings under the Uniform Post-Conviction Procedure Act (Article 27, Section 645(a), ACM).
(3) In the event an inmate corresponds with the U.S. District Court (Maryland) and requests legal assistance, and/or files any type of legal proceedings, the U.S. District Court will appoint counsel to represent the inmate when the court considers such representation necessary.
e. In addition to the legal assistance available, the Inmate Manual (DCM 210-1) also indicates that an inmate has uncensored and unlimited mailing privileges to the Governor, Attorney General, Inmate Grievance Commission, the Commissioner, Court of Law, or designated lawyers.
f. Inmate legal proceedings are normally filed as indigent cases, and the State of Maryland provides funds for the legal services. Funds may also be provided the Legal Aid Bureau, Inc. by the local, state, or federal government, and other sources to insure that an indigent receives legal services when necessary.
15. Patuxent Institution issued and promulgated Rules and Regulations appearing as Chapter 7, Section A, "Patients' Handbook", which provides, in substance, that the patients at the institution may write sealed letters to any court, judge, clerk of court, attorney at law, any elected or appointed officials, Governor, Attorney General, Department of Public Safety and Correctional Services and the Inmate Grievance Commission. In addition to the policies stated in the "Patients' Handbook", Patuxent Institution does not object to a patient assisting another in the preparation of a letter, petition, or any type of complaint addressed to any court, judge or attorney in the state or country. It is the policy of the institution not to interfere with or in any way hamper an individual's access to the judicial process. Patients are not prohibited from reading, receiving or possessing law books or legal materials, subject, of course, to institutional concerns pertaining to space, fire, safety and security. Furthermore, if a patient is faced with a legal problem, he is advised to communicate with his unit treatment team and social worker who, in turn, will communicate with the desired court, judge or attorney. (Affidavit of Forrest Calhoun, Jr., Superintendent of Patuxent Institution. 5/15/75, filed as Defendants' Exh. 5 of 5/22/75.)
16. The Office of the Public Defender of the State of Maryland (MPD) was, as of May 22, 1975, comprised of 108 staff attorneys assigned throughout the twelve districts into which the District Court system of the State of Maryland is divided. It was anticipated as of May 22, 1975 that on July 1, 1975 the number of said staff attorneys would increase to 123. The MPD also includes 916 panel attorneys (local members of the bar under contract with the MPD to handle such cases); 61 investigators; and 30 law students hired on an hourly basis. (O'Ferrall Tr. 7-9.) The Collateral Proceedings Division of the MPD consisted on May 22, 1975 of six lawyers and a supportive staff (Transcript of Testimony of Alfred J. O'Ferrall, III, 5/22/75, at 10) (hereinafter cited as "O'Ferrall Tr."). The Inmate Services Division of the MPD (ISD) consists of its director, Melvin C. Paul, and a staff attorney, both of whom are Assistant Public Defenders; additional attorneys; four legal assistants; and a secretary. The project director is responsible for the overall management of the project. The staff attorney gives legal advice to inmates either directly or through the paralegal investigators whom he also supervises in the drafting of writs and petitions. The paralegal investigators are responsible for interviewing inmates at the institutions. (O'Ferrall Tr. at 11; Stipulation I, Exh. 6, para. (d); Affidavit of Melvin C. Paul dated 3/31/76.) Additionally, in the event an "unreasonable back-log of cases" presents itself, the ISD has available to it the staff of the MPD as a resource for legal assistants. (Affidavit of Paul dated 3/31/76.) The ISD operates under a three-year LEAA grant which will continue through 1977. Thereafter, it is anticipated that the State of Maryland will finance the ISD. (Transcript of Testimony of Melvin C. Paul, 2/17/76, at 29-30, hereinafter cited as "Paul Tr.").
17. The Baltimore Legal Aid Bureau Prisoner Assistance Project (hereafter "PAP") is a federally-funded program which provides legal and quasi-legal services for indigent Maryland state prisoners. PAP began in 1970 as a volunteer program for law students working under the supervision of a Legal Aid Bureau attorney. PAP was subsequently able to obtain funding from the Baltimore Model City Agency which since then has become a part of the Baltimore Urban Services Agency. That funding was terminated by that Agency approximately a year ago. PAP is now funded through the general Legal Aid Bureau budget.
As of August 11, 1976, PAP has the following staff: 1 director (attorney); 2 staff attorneys; 2 paralegals; 2 law students; and 1 secretary/office manager. (Stipulation II, para. 1(A); Plaintiffs' Facts para. 10(a).) The director is responsible for the overall supervision and administration of PAP and is primarily involved in his practice with federal civil rights litigation. The staff attorney carries his own caseload of clients as well as having the principal responsibility for supervising the work of the legal assistants and law students. One of the legal assistants is responsible for client intake, client records and the entire caseload of clients with domestic legal problems (such as divorce, custody, adoption, etc.). The other legal assistant and the law students maintain their own caseloads of clients and engage in interviewing, doing legal research, writing letters, making telephone calls, and working to resolve the legal and quasi-legal problems of the clients. (Stipulation I, Exh. 7, para. 3.)
A Division has been established within the Public Defender's Office to provide inmate services. This Division of Inmate Services, along with all other aspects of the Office of the Public Defender, is NOT part of the court system, the Division of Correction, Patuxent Institution, any State's Attorney's Office, Attorney General's Office or any other agency of the State of Maryland which prosecutes criminal actions or is involved with the imprisonment of inmates. The Public Defender Inmate Services was created to help you with your legal problems IN ANY MATTER DEALING WITH YOUR CRIMINAL CHARGE.
The Public Defender CANNOT represent parties at any:
3. The Inmate Grievance Commission.
4. Any domestic or civil court matters.
If you have problems involving those areas, you should contact:
Prisoners Assistance Project
Baltimore, Maryland 21202
The Office of the Public Defender was created by the Legislature of the State of Maryland to provide legal representation to persons charged with a crime who cannot afford an attorney.
The Public Defender WILL PROVIDE assistance and representation to inmates who have the following legal problems:
2. Representation at parole revocation hearings if counsel is requested.
3. Application for post-conviction relief.
4. Habeas corpus proceedings.
5. Other criminally related matters.
If you have any problems regarding the above, please contact the following:
Office of the Public Defender
Baltimore, Maryland 21202
Telephone -- 383-3050 or 383-3051
(Defendants' Exh. 3, hearing of 2/17/76.)
19. Maryland prisoners may be confronted with legal problems while they are confined in the Division of Correction and at Patuxent Institution, and they may have meritorious and valid legal claims and defenses to be made. Those legal problems, claims and defenses may arise from any of the following:
(a) challenges to the legality or constitutionality of convictions and sentences;
(b) defective delinquency commitment and redetermination proceedings;
(c) outstanding detainers;
(d) prison conditions and prison officials' administrative decisions or conduct;
(e) parole revocations and parole releases;
(f) personal, domestic and other civil matters. (Stipulation I, para. 7.)
20. Legal assistance in connection with each of the above categories of cases is made available to inmates confined within the Division of Correction and ...