The Newsletter of North Carolina Prisoner Legal Services, Inc.

NCPLS

\Glume 1, Issue 4, December 2000

ACCESS

The Imposition of Disciplinary Administrative Fees
During June and July of 2000,
inmates in custody of the North
Carolina Department of Correction
(DOC) received notice of several
changes in DOC's Inmate Disciplinary Policy and Proccdurc
scheduled to take effect August 1,
2000. These changes revise the
classification of offenses, the definitions of certain offenses, establish punishment modifications, and
create new offenses. However,
inmate correspondence to NCPLS
has focused on DOC's intention
to begin assessing a $10.00 administrative fee on all inmates whose
disciplinary hearings result in a
guilty disposition. NCPLS has
been informed that the imposition
of such administrative fees was
implemented on August 28, 2000,
and that no inmate should have
been charged prior to that date.
In their letters, our clients have
pointed out that they are often on
extremely limited incomes, given
low incentive wages; that they
are now required to use their
tnlst funds for co-payments for
medical treatment; and that they
have experienced ever-increasing
restrictions on personal property.
In addition, many inmates express
concern about the potential misuse
of the new disciplinary procedures.

All of these are legitimate concerns. In this
article, NCPLS analyzes
the proposed regulation
under both federal and
state law, as well as the
likelihood of successfully challenging the
more troublesome
aspects of the regulation.
As will be explained
more fully, it appears
that the proposed regulation will be consistent with all relevant legal requirements and within
the discretion accorded correctional
officials by the courts. It does not
appear that there will be a sound
legal basis for challenging the regulation as it is drafted. (Whether
there may be grounds for legal
action based upon the way the regulation is applied will depend upon
the facts of a particular case.)

Secretary of Correction shall have
control of all prisoners serving sentences in the State prison system
and such prisoners shall be subject
to all the niles and regulations
legally adopted for the government
thereof." Similarly, the Secretary
of Correction is given the authority
to adopt niles for governing of the
state prison system. N.C. Gen.
Stat. § 148-11. The Department
Continued on page 3

The Authority of the DOC to
Impose This Regulation
Under the North Carolina Constitution, penal institutions may be
operated by the State "under such
organization and in such manner
as the General Assembly may prescribe." N.C. Const. Art. XI § 3.
The operation of the state prison
system is governed by Chapter
148 of the North Carolina General
Statutes. Section 148-4 of the General Statutes provides that "[t]he

Inside this Issue:
Imposition ofAdminstrati"..e Fees

1

Notice:NLPA

5

NCPLS Attorney Rich Giroux

6

. Access to. Courts: History o/NCPLS ...
.and its Relationship with the DOC 8

NCPLS ACCESS

Page 2

Access is a publication of North Carolina
Prisoner Legal Services, Inc. Established
in 1978, NCPLS is a non-profit, public
service organization. The program is governed by a Board of Directors who are
designated by various organizations and
institutions, including the North Carolina
Bar Association, the North Carolina Association of Black Lawyers, the North Carolina Association of Women Attorneys, and
law school deans at UNC, Duke, NCCD,
Wake Forest and Campbell.
NCPLS serves a population of more
than 32,500 prisoners and 10,000 pre-trial
detainees, providing information and
advice concerning legal rights and responsibilities, dis~ouraging frivolous litigation,
working toward administrative resolutions
of legitimate problems, and providing representation in all State and federal courts
to ensure humane conditions of confinement and to challenge illegal convictions
and sentences.

Board of Directors
President, Gary Presnell
Senator Frank W. Ballance, Jr.
Jim Blackburn
James A. Crouch, Esq.
Professor Adrienne Fox
Professor Grady Jessup
Paul M. Green, Esq.
Melinda Lawrence, Esq.
Barry Nakell, Esq.
Susan Olive, Esq.
Professor Michelle Robertson
Lou Ann Vincent, C.P.A.
Professor Ronald F. Wright
Fred Williams, Esq.

Executive Director
Michael S. Hamden, Estj.
Editor
Billy J. Sanders, CLAS
Articles, ideas and suggestions are welcome: bsanders@ncpls.org

Vdume 1, Issue 4, December 2000

Update in Hamilton, et al. v. Beck, et al., Wake County No.
96 CVS 6321
On 3 July 2000, NCPLS clients
won a victory in Superior Com1
when Judge Howard Manning
found that DOC's practice of altering sentences is illegal. Plaintiffs
had alleged that, in cases in which
a concurrent sentence has been
granted for a crime for which a
consecutive sentence is required
by statute, DOC disregarded the
judgment for a concurrent sentence
and entered the sentence on their
records as consecutive. In cases
in which CYO status was granted
to an inmate not eligible for it, the
DOC refused to afford the inmate
the benefits of CYO status, according to the complaint. (There are
10 categories of crimes in which
consecutive sentences are required
by law: 1st and 2nd degree burglary
under the Fair Sentencing Act;
armed robbery under the Fair Sentencing Act; habitual felon; violent
habitual felon; habitual impaired
driving; repeated felony with a
deadly weapon; trafficking controlled substances; 1st and 2nd
degree sexual exploitation of a
minor; promoting and pm1icipating
in prostitution of a minor; and possession of drugs in jailor prison.)
Judge Manning found plaintiffs'
allegations to be true.
Plaintiffs sought a declaration from
the com1 that this policy and
practice is unlawful, an injunction
against its continuation, and specific performance of the sentence
or status imposed by the com1.
Judge Manning declared the policy
and practice illegal and granted
an injunction against its continu-

ation. The court ordered DOC
to enter such sentences in accordance with the Judgment and Commitment Order. DOC was further
instructed to notify promptly the
sentencing judge, the district attorney, and counsel for the defendant
of the illegality of the judgment.
The parties can then take appropriate action to resolve the matter.
However, the cOUl1 granted no
relief to people whose sentences
have already been changed. Even
so, DOC notified about three thousand inmates who may have been
affected by the illegal practice,
and more than 600 have already
requested legal assistance from
NCPLS. In addition, the DOC will
send notice to any inmate who is
affected by the policy in the future
and who has his or her sentence
modified by the DOC.
In the meantime, an appeal has
been filed and DOC has asked the
appellate court to delay enforcing
the lower court's order until the
appeal has been decided.

NCPLS will keep inmates and
other concerned individwuals
updated in future additions of
ACCESS.

NCPLS ACCESS

Page 2

Access is a publication of North Carolina
Prisoner Legal Services, Inc. Established
in 1978, NCPLS is a non-profit, public
service organization. The program is governed by a Board of Directors who are
designated by various organizations and
institutions, including the North Carolina
Bar Association, the North Carolina Association of Black Lawyers, the North Carolina Association of Women Attorneys, and
law school deans at UNC, Duke, NCCU,
Wake Forest and Campbell.
NCPLS serves a population of more
than 32,500 prisoners and 10,000 pre-trial
detainees, providing information and
advice concerning legal rights and responsibilities, dis~ouraging frivolous litigation,
working toward administrative resolutions
of legitimate problems, and providing representation in all State and federal courts
to ensure humane conditions of confinement and to challenge illegal convictions
and sentences.

Board of Directors
President, Gary Presnell
Senator Frank W. Ballance, Jr.
Jim Blackburn
James A. Crouch, Esq.
Professor Adrienne Fox
Professor Grady Jessup
Paul M. Green, Esq.
Melinda Lawrence, Esq.
Barry Nakell, Esq.
Susan Olive, Esq.
Professor Michelle Robertson
Lou Ann Vincent, C.PA.
Professor Ronald F. Wright
Fred Williams, Esq.

Executive Director
Michael S. Hamden, ESlj.
Editor
Billy J. Sanders, CLAS
Articles, ideas and suggestions are welcome: bsanders@ncpls.org

Vdume 1, Issue 4, December 2000

Update in Hamilton, et al. v. Beck, et al., Wake County No.
96 CVS 6321
On 3 July 2000, NCPLS clients
won a victory in Superior COUli
when Judge Howard Manning
found that DOC's practice of altering sentences is illegal. Plaintiffs
had alleged that, in cases in which
a concurrent sentence has been
granted for a crime for which a
consecutive sentence is required
by statute, DOC disregarded the
judgment for a concurrent sentence
and entered the sentence on their
records as consecutive. In cases
in which CYO status was granted
to an inmate not eligible for it, the
DOC refused to afford the inmate
the benefits of CYO status, according to the complaint. (There are
10 categories of crimes in which
consecutive sentences are required
by law: 1st and 2nd degree burglary
under the Fair Sentencing Act;
armed robbery under the Fair Sentencing Act; habitual felon; violent
habitual felon; habitual impaired
driving; repeated felony with a
deadly weapon; trafficking controlled substances; 1st and 2nd
degree sexual exploitation of a
minor; promoting and pmiicipating
in prostitution of a minor; and possession of dmgs in jailor prison.)
Judge Manning found plaintiffs'
allegations to be tme.
Plaintiffs sought a declaration from
the court that this policy and
practice is unlawful, an injunction
against its continuation, and specific performance of the sentence
or status imposed by the court.
Judge Manning declared the policy
and practice illegal and granted
an injunction against its continu-

ation. The cOUli ordered DOC
to enter such sentences in accordance with the Judgment and Commitment Order. DOC was further
instmcted to notify promptly the
sentencing judge, the district attorney, and counsel for the defendant
of the illegality of the judgment.
The parties can then take appropriate action to resolve the matter.
However, the court granted no
relief to people whose sentences
have already been changed. Even
so, DOC notified about three thousand inmates who may have been
affected by the illegal practice,
and more than 600 have already
requested legal assistance from
NCPLS. In addition, the DOC will
send notice to any inmate who is
affected by the policy in the future
and who has his or her sentence
modified by the DOC.
In the meantime, an appeal has
been filed and DOC has asked the
appellate court to delay enforcing
the lower court's order until the
appeal has been decided.

NCPLS will keep inmates and
other concerned individwuals
updated in future additions of
ACCESS.

Page 3

NCPLS ACCESS

The Imposition of Administrative Fees
of Correction is exempt from
the rule-making provisions of the
State Administrative Procedures
Act "with respect to matters
relating solely to persons in its
custody or under its supervision,
including prisoners, probationers,
and parolees." N.C. Gen. Stat. §
150B-l(d)(6).
It is clear that the Secretary of
Correction is vested with broad
powers t6 enact prison regulations. Any challenge to such a
regulation must therefore be based
on a theory that the regulation violates some provision of law, such
as the Due Process Clause of the
U.S. Constitution.

See Greenholtz v. Inmates ofthe
Neb. Penal and Con: Complex, 442
U.S. 1,7 (1979)(quoting Board of
Regents v. Roth, 408 U.S. at 57 ).
For example, a number of courts
have recognized that inmates have
a protected property interest in their
prison trust fund accounts. Hampton v. Hobbs, 106 F.3d 1281, 1287
(6 th Cir. 1997); Campbell v. Miller,
787 F.2d 217, 222 (7th Cir.), cert.
denied, 479 U.S. 1019 (1986); Gillihan v. Schillinger, 872 F.2d 935,
939 (10th Cir. 1989); Jensen v.
Klecker, 648 F.2d 1179, 1183 (8th
Cir. 1989). Once a person is determined to have such a protected
interest, the question then becomes
what procedural steps must be
taken by the State before the person
can be deprived of that interest.

Due Process
The Due Process Clausc of the
Fourteenth Amendment provides
that a state may not deprive any
person of "life, liberty, or property, without due process of law."
U.S. Const. Amend. XIV § I. In
order to trigger either aspect of
the Clause's protection, a person
must show that he has a protected
"life, liberty, or property" interest
at stake. Board ofRegents v.
Roth, 408 U.S. 564, 577 (1972).
Dobrovolny v. Moore, 126 F.3d
1111 , III 3 (8th Cir.1997) cert.
denied, 523 U.S. 1005, (1998);
Beverati v. Smith, 120 F.3d 500,
502 (4 th Cir. 1997). Typically, the
existence of a protected interest is
determined by whether a person
has a legitimate claim of entitlement to a thing, rather than simply
an abstract need or desire for it.

According to the United States
Supreme Court, "[d]ue process is
flexible and calls for such procedural protections as the particular
situation demands." Greenholtz,
442 U.S. at 12 (quoting Morrisey v.
Brewer, 408 U.S. 471, 481 (1972)).
Not all prison disciplinary proceedings are entitled to the full range
of due process protections. However, when an inmate faces a disciplinary charge that involves the
potential loss of good time or gain
time, due process must be provided. The minimal procedural
protections include advance notice
of the charges; an opporhmity for
the inmate to be heard on the
charges; a written copy of disciplinary findings; and a limited
right to call witnesses and present
documentary evidence where this
"would not bc unduly hazardous to

\b lume I, Issue 4, December 2000
continued from page 1

institutional safety or correctional
goals." WoljJv. McDonnnell, 418
U.S. 539, 557-59 (1974). But,
while a prison disciplinary action
may not be wholly arbitrary, only
"some evidence" is needed to
support a disciplinary decision.
Superintendent, Massachusetts
Correctional Institution at Walpole
v. Hill, 472 U.S. 445, 454 (1985).
Thus, reviewing courts do not reweigh evidence, or make their own
assessments concerning the credibility of witnesses.
The DOC has established policies
relating to disciplinary charges.
These policies allow for 24 hours
advance notice of the charges; the
right of the inmate to make a
verbal and/or written statement to
the investigating officer; to request
that witness statements be obtained
by the investigating officer, or
that specific witnesses or evidence
be presented at the disciplinary
hearing; to request the assistance
of a staff
representative at the
hearing; to
be read the
substance
of the
evidence
against
him and to
have the
opportunity to explain or refute the
evidence at the hearing; and the
right to appeal any adverse decision
of the disciplinary hearing officer.
Department of Correction - Division of Prisons Policy and ProceContinllued on page 4

Page 4

NCPLS ACCESS

The Imposition of Administrative Fees
dure Manual, 5 N.C.A.C. 2B.0204.
These rights comply with the minimal requirements set forth by the
Supreme Court in Wolff. While
research has not revealed any case
in which a court has considered the
loss of property in the disciplinary
context, it is unlikely that the courts
will require any procedural protections greater than those involving
liberty interests.

Eighth Amendment
The Eighth Amendment prohibits
the imposition of both "cruel and
unusual punishments" and "excessive fines." U.S. Const. Amend.
VIII. Unfortunately, neither provision provides a promising basis for
challenging this regulation.
The Cruel and Unusual Punishments Clause bars the use of
such measures as torture and
corporal punishment, as well as
excessive sentences and inhumane
conditions of confinement. See
Estelle v. Gamble, 429 U.S. 97, 102
(l976)(the primary concern of the
drafters of the Eighth Amendment
was to prohibit tortures and other
barbarous methods of punishment);
Johnson v. Quinones, 145 F.3d 164,
167 (4 th Cir. 1998)(quoting Williams v. Benjamin, 77 F.3d 756, 761
(4th Cir. 1996)). The imposition

of a monetary penalty does not
inflict physical pain on an inmate,
nor does it easily fit within judicial
pronouncements that define "cruel
and unusual punishments."
The Excessive Fines Clause limits
the government's power to extract
payment as a punishment for an
offense. Austin v. United States,
509 U.S. 602, 609-610 (1993).
While other states apparently do
impose monetary sanctions on
prisoners which are called "fines,"
the fees listed here are referred to
as an "administrative fee." Nevertheless, this type of "fee" does
contain several characteristics of
a fine. In other contexts, the
Supreme Court has noted that a
forfeiture of property can be considered a "fine" if it constihltes
punishment for an offense. United
States v. Bajakajian, 524 U.S. 321,
328 (1998). Here there is little
doubt that one of the purposes
behind the imposition of such a
fee is to deter inmates from breaking prison rules. Deterrence "has
traditionally been viewed as a goal
of punishment." Bajakajian, 524
U.S. 321,328.
Whether a $10.00 fee is "excessive" is governed by principles of
proportionality. Bajakajian, 524
U.S. at 334. In the context of
punitive forfeitures of property,
the Supreme Court has noted that
"[t]he amount of the forfeihlre
must bear some relationship to the
gravity of the offense that it is
designed to punish." Id. Enforcing prison order and discipline are
among the highest of institutional
goals. For this reason, courts may

\b lume 1, Issue 4, December 2000
Continued from page 3

be unwilling to view as excessive a
$10 fee assessed after a determination that prison disciplinary rules
had been violated.

Other Possible Bases for a Constitutional Challenge
When a prison regulation impinges
upon an inmate's constitutional
rights, such as the right of free
speech or to freely practice one's
religion, for example, the Supreme
Court has established a test to
determine whether the regulation is
permissible. See 'RImer v. Safley,
482 U.S. 78 (1987)(establishing
the "reasonableness test"); see also
Q'Lone v. Estate ofShabazz, 482
U.S. 342 (1987)(applying 'Rlrner
standard to free exercise of religion
claim). The Turner Court looked
at: (1) whether there is a "valid,
rational connection" between the
regulation and a legitimate governmental interest which has been put
forward to justifY it; (2) whether
there are alternative means that
remain open for the inmate to exercise the constitutional right; (3)
the extent to which accommodation
of the right will have an impact
on prison staff, other inmates, and
the allocation of prison resources
generally; and (4) whether the
regulation represents an "exaggerated response" to prison concerns. 482 U.S. at 89-91. The
'Ro'ner Court, while recognizing
that prison inmates are not completely deprived of protection
under the Constihltion, also noted
that comis should give deference to
the decisions of prison adminContinued on page 5

Page 4

NCPLS ACCESS

The Imposition of Administrative Fees
dure Manual, 5 N.C.A.C. 2B.0204.
These rights comply with the minimal requirements set forth by the
Supreme Court in Wolff. While
research has not revealed any case
in which a court has considered the
loss of property in the disciplinary
context, it is unlikely that the courts
will require any procedural protections greater than those involving
liberty interests.

Eighth Amendment
The Eighth Amendment prohibits
the imposition of both "cruel and
unusual punishments" and "excessive fines." U.S. Const. Amend.
VIII. Unfortunately, neither provision provides a promising basis for
challenging this regulation.
The Cruel and Unusual Punishments Clause bars the use of
such measures as torture and
corporal punishment, as well as
excessive sentences and inhumane
conditions of confinement. See
Estelle v. Gamble, 429 U.S. 97, 102
(1976)(the primary concern of the
drafters of the Eighth Amendment
was to prohibit tortures and other
barbarous methods of punishment);
Johnson v. Quinones, 145 F.3d 164,
167 (4 th Cir. 1998)(quoting Williams v. Benjamin, 77 F.3d 756, 761
(4th Cir. 1996)). The imposition

of a monetary penalty does not
inflict physical pain on an inmate,
nor does it easily fit within judicial
pronouncements that define "cruel
and unusual punishments."

\t lume 1, Issue 4, December 2000
COlltinuedfrom page 3

be unwilling to view as excessive a
$10 fee assessed after a determination that prison disciplinary rules
had been violated.

Other Possible Bases for a ConThe Excessive Fines Clause limits stitutional Challenge
the government's power to extract
payment as a punishment for an
When a prison regulation impinges
upon an inmate's constitutional
offense. Austin v. United States,
509 U.S. 602, 609-610 (1993).
rights, such as the right of free
While other states apparently do
speech or to freely practice one's
impose monetary sanctions on
religion, for example, the Supreme
prisoners which are called "fines," Court has established a test to
the fees listed here are referred to
determine whether the regulation is
as an "administrative fee." Nevpermissible. See Turner v. Safley,
ertheless, this type of "fee" does
482 U.S. 78 (1987)(establishing
contain several characteristics of
the "reasonableness test"); see also
a fine. In other contexts, the
0)Lone v. Estate ofShabazz, 482
Supreme Court has noted that a
U.S. 342 (1987)(applying Turner
forfeiture of property can be constandard to free exercise of religion
sidered a "fine" if it constihltes
claim). The Turner Court looked
punishment for an offense. United at: (1) whether there is a "valid,
States v. Bajakajian, 524 U.S. 321, rational connection" between the
328 (1998). Here there is little
regulation and a legitimate governdoubt that one of the purposes
mental interest which has been put
behind the imposition of such a
forward to justifY it; (2) whether
fee is to deter inmates from break- there are alternative means that
ing prison rules. Deterrence "has
remain open for the inmate to exertraditionally been viewed as a goal cise the constitutional right; (3)
of punishment." Bajakajian, 524
the extent to which accommodation
U.S. 321, 328.
of the right will have an impact
on prison staff, other inmates, and
Whether a $10.00 fee is "excesthe allocation of prison resources
sive" is governed by principles of generally; and (4) whether the
proportionality. Bajakajian, 524
regulation represents an "exagU.S. at 334. In the context of
gerated response" to prison conpunitive forfeihlres of property,
cerns. 482 U.S. at 89-91. The
the Supreme Court has noted that
Turner Court, while recognizing
"[t]he amount of the forfeiture
that prison inmates are not commust bear some relationship to the pletely deprived of protection
gravity of the offense that it is
under the Constihltion, also noted
designed to punish." Id. Enforcthat courts should give deference to
ing prison order and discipline are the decisions of prison adminamong the highest of instihltional
Continued on page 5
goals. For this reason, courts may

Page 5

NCPLS ACCESS

Vdume 1, Issue 4, December 2000

Notice

The Imposition of Administrative Fees
Continued from page 4

istrators in matters governing
institutional operations. Id. at
84-85. Few
prison regulations have been
found invalid
under the Tw'ner
test.
False Disciplin-:ary Charges
Many inmates have expressed a
concern that the existence of this
new fee will give prison officials
an additional incentive to fabricate
charges as a means of harassing
inmates. Of course, the possibility of false disciplinary charges
has always been a part of prison
life, even when the permissible
punishments only included the
loss of good-time credits, segregation, extra-duty, loss of privileges,
etc. Since any fees assessed as
a result of a disciplinary conviction would be applied to offset
administrative costs, there would
seem to be no personal, financial
incentive for an officer to trump
up false charges. Of course, the
punishment for a disciplinary conviction would for the first time
carry a financial burden. But an
officer who is inclined to misuse
the disciplinary system to harass
an inmate would probably do so
under any circumstances. It is difficult to see how this new fee
would increase abusive practices.

Conclusion
The imposition of this administrative fee, coming on
the heels of the medical
co-payment and other
recent policy changes,
is of understandable
concern to inmates and
their families. Nevertheless, from the information presently available, it
appears that the regulation falls
within the legal discretion courts
allow prison administrators.
NCPLS will continue to monitor
this situation. In the meantime,
inmates should realize that they do
have certain procedural rights in
disciplinary matters. Where they
believe that they are being improperly charged with an infraction,
they should respectfully insist on
those rights, including the right to
appeal any adverse ruling.

.,Our" Qffice bas received
numerous complaints and
inquiries about an Ohio;.
based operation known as
the National LegalProfes*
sional Association (NLPA).
Please be aware that our
. office is not associatediJi""
any manner with NLPA.
yoiirinformatio·n, The~
North Carolina State Bar
is presently investigating
. NLPA (State Bar File No.

For

t

OOAP0053).

Therefore, if you have had
problems with NLPA,You
should contact the State
Bar at the below address:

The North Carolina State Bar
P~O. Box

25908
Ralelgh,"NC"27611

Page 6

NCPLS ACCESS

Volume 1. Issue 4. December 2000

Rich Giroux:
For more than 20 years at NCPLS,
Richard E. Girouxh as been a
reliable and a remarkably effective advocate for North Carolina'
pnsoners.
Rich graduated from law school at
the University of North Carolina
in 1976. After passing the bar,
he began an 18m onth stint
as a Vista Volunteer with the
NOIih Carolina Commission on
Indian/ Affairs.
In addition to
serving the Commission as Inhouse counsel, Rich
provided community
legal education and
assisted his clients in
resolving a variety of
problems.
In
1979,
Rich
accepted a position
as staff attorney with
North Carolina Prisoner Legal Services,
Undeterred, Rich
Inc. As a staff attorney, Rich advised prisoners oftheir sought review of the decision in
legal rights, interviewed applicants the United States COUli of Appeals
for legal services, and engaged in for the Fourth Circuit. A threethe negotiation, trial, and appeal of judge panel viewed the lower
legal issues that affected the rights court's decision as unjust, but was
constrained to affirmb ased upon
of indigent prisoners.
binding Fourth Circuit precedent.
The early 1980's brought sweeping W~t v. Atkins, 799 F.2d 923 (4th
changes to the political landscape Cir. 1986). Rich asked for further
in this country and serious chal- review of the decision, this time
lenges to the notion of equal by the couli sitting en banco After
justice under law that had provided briefing and argument, the fourteen
the philosophical underpinning of judge court re-affirmed the decision
federal support for the Legal of the district court, holding that
Services Corporation. A s a result, prison officials could insulate themand because prisoners <ire a politi- selves from liability for inhumane
cally powerless and an unpopular medical treatment by contracting
group, NCPLS was particularly with health care providers. W~t
hard hit by a substantial reduction v. Atkins, 815 F.2d 993 (4th Cir.

To argue a case before the United
States Supreme Court is the dream
of many lawyers, and a pentacle
of any legal career. But despite
Rich's considerable experience and
skills, his knowledge of the case,
his success in securing review by
the Court, and his own personal
investment, Rich concluded that
his client's interests would best
be served if the case were argued
by an attorney with experience in
the Supreme Court. Consequently,
Adam Stein, an accomplished and
renowned appellate lawyer, was
retained for that purpose.
In preparing the case for argument
in the Supreme Court, Rich assisted
in drafting and revising the brief,
and he provided tireless support to
Mr. Stein concerning the factual
background of the case, information about relevant Supreme Court
precedent, and advice regarding
strategy. Rich also participated
in a moot court argument to help
Mr. Stein prepare. In all of these
activities, Rich was characteristically cooperative and supportive,
never losing sight of his client's
interests and objectives.
After briefing and oral argument,
continued on page 7

Page 7

NCPLS ACCESS

Vdume 1, Issue 4, December 2000

Rich Giroux: Twenty Years of Service to Inmates
the United States Supreme Court
issued its opinion. A ccording to
the Court, prison officials could not
shield themselves from liability for
deliberate indifference to the serious
medical needs of a prisoner through
the device ofa contract. In reversing
the lower courts, the Supreme COUli
established the principle that prison
officials throughout the country
are responsible for meeting the
basic health needs of prisoners,
irrespectiv'e of the methodology
they employ to meet those needs.
West v. Atkins, 487U .S. 42, 108
S.Ct. 2250, 101 L.Ed.2d 40 (1988).
As a result, hundreds of thousands of
prisoners have benefitted. That case
also has had profound implications
with respect to the privatization of
prisons, an initiative that has gained
momentum in recent years.
In the aftetmath of that remarkable
victory, Rich somehow managed to
re-direct accolades and attention to
others, prefen-ing instead quietly to
continue his work f or his client in
the district court on remand.
The year following the Westd ecision, practically the same issue was
resurrected when prison officials
argued that the negligence of a
contract doctor was not attributable
to the State for purposes of a tort
claim brought in the NOlih Carolina
Industrial Commission. The most
significant difference in this case
was that State law, and not federal
law, controlled. (Thus, Westw as
not binding precedent on North
Carolina courts.)
It was again Rich who championed

the prisoner's cause, but this time
he won in the trial court and had
the advantage of defending a favorable decision from the Industrial
Commission to the NOlih Carolina
Court of Appeals, Medley v . North
Carolina Department ofCorrection,
393S .E.2d 288 (N.C.App. 1990),
and from the Court ofAppeals to the
North Carolina Supreme Court.
In the State Supreme Court, Rich
argued that prison offic ials should
not be permitted to elude their
responsibility to provide for the
medical needs of prisoners through
a contractual device, but should
instead be held responsible for
negligent medical practices ofwhich
they were (or should have been)
aware. That argument prevailed
when the Court announced its
decision. Medley v. North Carolina
Department ofCorrection, 330 N.C.
837,412 S.E.2d 654 (1992).

Continued from page 6

privilege to work with Rich, and the
people incarcerated in this State are
fOitunate to have so knowledgeable
and dedicated an advocate.

NCPLS Staff Member appointed
to Sentencing and Policy Advisory Commission.
North Carolina Prisoner Legal Services paralegal Billy Sanders has
been named to serve on the North
Carolina Sentencing & Policy
Advisory Commission. Sanders
was appointed to the Sentencing &
Policy Advisory Commission on 4
December 2000 by the Honorable
W. Erwin Spainhour, who chairs
the Commission.

After more than seven years of
litigation, Rich succeeded in firmly
establishing the principle that the
provision of medical care for
prisoners is a non-delegable duty,
for which responsibility lies in The Commission has the duty to
the state. It would be hard to monitor and review the criminal
exaggerate the favorable impact justice and corrections systems and
that principle has had on the lives the juvenile justice system in North
of North Carolina inmates and Carolina and make appropriate
recommedations to the General
prisoners across the nation.
Westa nd Medleya re only two of Assembly regarding their findings.
literally hundreds of cases Rich
has handled during his tenure at The commisioon is comprised of
members representing various
NCPLS.
intetests in the criminal justtice
His commitment to his clients and system.
the broader principles of social
justice is an inspiration to all
of Rich's colleagues.
It is a

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Vdume 1, Issue 4, December 2000

Access to Courts: NCPLS and its Relationship with the DOC
In a 1977 case, the United States
Supreme Court ruled that the states
may not interfere with prisoners'
attempts to take certain legal matters into court. Smith v. Bounds,
430 U.S. 817 (1977). The Court
found that incarceration makes it
difficult for inmates to raise legitimate legal concerns. For that
reason, the Court held that states
have an affirmative duty to help
inmates by providing
them access either to
law libraries and persons
trained in the law, or
to lawyers. Smith v.
Bounds,Id. After the
decision, North Carolina
planned to meet the constitutional standard by
opening a number of prison law
libraries and training inmate-volunteers.
In 1978, Professor Barry Nakell,
counsel for the plaintiff class in the
Bounds case, worked with others to
establish North Carolina Prisoner
Legal Services. With a grant from
the Law Enforcement Assistance
Administration (LEAA), NCPLS
was chartered as a North Carolina
non-profit corporation in January
of that year. The program was
created to provide legal assistance
to inmates in North Carolina jails
and prisons. NCPLS initially represented inmates in cases challenging conditions of confinement and
assisted prisoners in bringing collateral attacks on unfair convictions
and illegal sentences.
In 1981, NCPLS became affiliated
with Legal Services of North Caro-

lina, a grantee of the Legal Services Corporation. LEAA funding
was discontinued, and LSC regulations prohibited the representation of prisoners in post-conviction
cases. For that reason, NCPLS
had to shift its focus to providing
assistance to prisoners in civil matters. The program set specific
priorities to reduce the physical
abuse of prisoners, to improve the
conditions of
confin ement
for North Carolina inmates,
to ensure prisoners' xcess
to appropriate
health care,
and to establish a fair procedure
for administrative decision-making
and grievance resolution. In accordance with these priorities, NCPLS
represented prisoners in actions
involving assaults by prison officers, failures to protect inmates
from violence, the inadequacy of
medical treatment, injuries suffered
on prison jobs, inhumane living
conditions, and numerous other
matters.

In 1986, the Bounds plaintiffs challenged DOC's law libraries as
constitutionally inadequate. The
United States District Court for
the Eastern District of North
Carolina ruled that the State of
North Carolina had not satisfied
its Bounds obligation to provide
inmates meaningful access to the
courts. Smith v. Bounds, 657
F.Supp. 1322 (E.D.N.C. 1986),
afJ'd, 813 F.2d 1299 (4th Cir.
1987), afJ'd on reh 'g, 841 F.2d 77

(4th Cir. 1988), afJ'd, 488 U.S. 869
(1988). The Court required the
State to enter into a contract with
NCPLS to provide the services of
attorneys who were independent,
knowledgeable and experienced in
prisoner rights law. Id. The
Court's Order was implemented
in 1989 through a contractual
agreement between the North Carolina Department of Correction and
Legal Services of North Carolina,
to "provide professional [legal]
advice and assistance to North Carolina inmates ..." in post-conviction proceedings, detainers, claims
relating to conditions of confinement, and cases brought under 42
U.S.C. §1983.
Both the Bounds plaintiffs and
NCPLS asked the Court to adopt
measures to ensure that NCPLS
could not be controlled by DOC.
The parties negotiated, and the
Court adopted the following provisions to guarantee the independence ofNCPLS:

1. Independence: NC Rule of
Professional Conduct 5.6 prohibits
a lawyer from accepting "compensation for representing a client from
one other than the client unless.
.. (B) There is no interference
with the lawyer's independence of
professional judgment or with the
client-lawyer relationship...."
Accord, North Carolina Revised
Rules of Professional Conduct,
Rule 1.7(b). Under these and other
Rules of Professional Conduct, it
Continued on page 9

NCPLS ACCESS

Page 9

\6lume 1, Issue 4, December 2000

Access to Courts: NCPLS and its Relationship with the DOC
Continued from page 8

is unethical for an attorney to put
anyone's interests over that of his
client, even when the attorney is
being paid by someone other than
his client.
Consequently, NCPLS advocates
are independent contractors and not
DOC employees. Bounds Contract,
~9. Like all lawyers, NCPLS attorneys must exercise independent
professional judgement on behalf
of their clients.
2. Confidentiality: In general terms, the Rules of Professional Conduct state that: "a lawyer
shall not knowingly:"
(1) reveal confidential information of a
client;
(2) use confidential
information of a
client to the disadvantage of the
client; or
(3) use confidential
information of a
client for the advantage of the lawyer
or a third person,
unless the client
consents after consultation.
North Carolina Revised Rules of
Professional Conduct, Rule 1.6(c).
This ethical requirement was incorporated into the Contract through
the following provision:
Any inmate request
for representation or

assistance and any
communication
between [NCPLS]
and an inmate
regarding representation or assistance
made pursuant to
this contract shall be
treated as confidential and privileged
even if [NCPLS]
declines to represent
the inmate under the
terms of this contract.
Bounds Contract, ~l.C.
3. Scope of Services: The
Contract provided funding for legal
services related to habeas corpus
actions and other postconviction
proceedings, detainers, and claims
relating to conditions of confinement, including cases brought
under 42 U.S.C. §1983 and cases
filed in the North Carolina Industrial Commission.
4. Case Selection: It has
always been lmderstood between
the parties that decisions about
what kind of services NCPLS may
offer a client, including whether to
accept a case for litigation, will
be made by NCPLS, alone. More
recent Contracts have memorialized that understanding with the
following clause:
Upon receiving an
inmate request for
assistance, Contractor will review the
inmate's claim and
make an initial

determination as to
whether the claim,
in the professional
judgment of Contractor, is meritorious. "Meritorious"
shall be defined to
mean: a claim that
is either legally
recognized or one
for which a good
faith argument could
be made for
recognition and
which could generate either monetary
or injunctive relief
or both, but has
more than de minimis value.
Bounds Contract, ~3.B.
During the eleven-year history of
our contractual relationship with
DOC, these provisions have proven
effective in maintaining the independence ofNCPLS.
Of course, NCPLS has responsibilities to DOC that are also defined by
Contract. For example, NCPLS
shall make reasonable efforts to avoid
litigation, consistent
with the best interests ofthe client(s),
including but not
limited to exhaustion of any administrative remedies and
consultation with
continued on page 10

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NCPLS ACCESS

\blume 1, Issue 4, December 2000

Access to Courts: NCPLS and its Relationship with the DOC
Continued from page 9

the Attorney GeneraI's Office concerning settlement, prior
to filing suit.

within Legal Services, we could not
have represented prisoners, which
is the sole reason for the organization's existence.

Bounds Contract, ,-rl.D. (emphasis
added). NCPLS representatives
must "abide by ... all security rules
and regulations of the Department."
Bounds Contract, ,-rS. And NCPLS
must maintain records and receipts
of all expe!1ditures to provide assurance to DOC that funds are being
used to fulfill contractual
obligations. Bounds
Contract, ,-r8.

Today, NCPLS provides a range of
services, including legal assistance
in both civil and post-conviction
matters. The program has a staff of
32, which includes 15 lawyers and
10 paralegals. NCPLS is governed
by a 14-member Board of Directors. The dean of the law schools at
UNC, Wake Forest,
Duke and Campbell,each
designates a director to the Board.
Other Board members are designated
by the North Carolina Bar Association, the North
Carolina Civil Liberties Union, the Southern Prisoners Defense Committee, the North
Carolina Association of Black
Attorneys, and the North Carolina
Association of Women Attorneys.
The remaining members are elected
by the Board to include a member
of the General Assembly, a former
judge, two former inmates, and
others.

These provisions have
provided DOC and the
Court assurances that the
program is operated in a
professional and responsible way.
In 1998, the Court granted the
State's motion to dissolve the
injunction that required DOC to
contract with NCPLS. Thereafter,
DOC voluntarily agreed, for the
first time, to continue the contract
on essentially the same terms.
Over the years, NCPLS has dealt
with a number of changes. For
example, in January 1996, NCPLS
ended its IS-year relationship with
Legal Services of North Carolina
and relinquished all Legal Services
funding in anticipation of federal
legislation prohibiting the expenditure of any federal or private funds
received by a grantee agency for
the representation of prisoners. In
April 1996, Congress enacted this
legislation in the omnibus spending
bill. IfNCPLS had remained

About 98% of the program's funding is now derived from the
Contract with the North Carolina
Depmiment of Conoection. NCPLS
receives additional funding from a
variety of sources, including grants
from the North Carolina Bar's
IOLTA (Interest on Lawyers' Trust
Accounts) program, grants from
private foundations, attorney fee
awards in cases won by NCPLS

attorneys, and donations from
private individuals and organizations.
Most of our clients are impoverished prisoners who often have
no other hope of getting legal
representation than through our
office. There are more than
32,000 prisoners in DOC, and
another 8,000 to 10,000 at any
given time in the State's jails.
Obviously, with the great demand
for our services, and given the
poverty of our clients and our
limited resources, we are happy
to have funding from any source
that will provide it. But our Contract with DOC and the Rules of
Professional Conduct require that
NCPLS attorneys exercise independent professional judgement
on behalf of our clients. It would
be unprofessional and unethical
to compromise our clients' interests to maintain State funding,
even if that meant the loss of all
our revenue. That is the kind of
compromise NCPLS will never
make.
The existing Bounds Contract
technically expired on 30 September 2000. However, a provision of the Contract requires a
continuation of the existing terms
until an agreement to renew the
Contract is reached or one of the
parties gives written notice of its
intention to terminate the relationship in 120 days. Negotiations for a renewal of the Bounds
Contract are currently underway.