Ineffective Assistance of Counsel

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After Reaching the Courthouse Door: Why Lack of Affirmative Assistance Post-Pleading Violates Prisoners’ Access to Courts Right

By Yasmine Ardehali

“Meaningful” access to the courts is a fundamental right under the Constitution’s Due Process Clause.  But for incarcerated persons, this access is severely limited.  The Supreme Court has thus required states to provide prisoners with legal assistance for presenting complaints of civil rights violations and challenges to confinement.  Because incarcerated individuals often represent themselves pro se, states often have fulfilled this constitutional duty by providing proper law libraries or legal assistance programs.  However, the Supreme Court’s decision in Lewis v. Casey severely curtailed prisoners’ right of access, disclaiming the notion that states must enable prisoners to “litigate effectively once in court.”  The decision has created a circuit split about the extent of a state’s obligations to incarcerated persons after a complaint has survived the pleading stage.  While some circuits have found the right of access to include “affirmative assistance” after the pleading stage, others have required that the state merely not engage in “active interference” with the plaintiff’s case without mandating that the state facilitate access.  This Note argues that lack of affirmative assistance directly violates prisoners’ due process right to access the courts.  Successful claims often depend on complying with legal technicalities that an incarcerated individual would not know about without affirmative assistance.  Therefore, lack of affirmative assistance after the pleading stage causes meritorious lawsuits to fail.  To rectify the disparity, this Note proposes reconciling Lewis’ existing framework with the need to provide post-pleading stage assistance by introducing the “legal information vs. legal advice” distinction: states must be required to furnish access to legal information after the pleading stage but are not required to provide legal advice.  This dichotomy has already become commonplace in thirty-eight states that assist non-incarcerated pro se parties in civil actions, and should similarly apply to the prisoner litigation context.

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