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What making PACER free could mean for people in prison

What you’ll read today

  • Spotlight: What making PACER free could mean for people in prison

  • The Appeal Podcast: How police unions are fighting California’s new transparency law

  • Over 200 people went on hunger strike after months on lockdown at California prison

  • 11-year old arrested after refusing to recite the Pledge of Allegiance

  • Solitary confinement: ‘I equate it to the whipping post in slavery’

  • A Colorado county’s sheriff supports cooperation with ICE that proposed legislation would restrict

  • After raid leaves two dead, Houston police chief says he’s ‘99.9% sure’ department will end use of no-knock raids

In the Spotlight

What making PACER free could mean for people in prison

In the 1990s, the federal judiciary created an electronic docket system. That system, PACER (Public Access to Court Electronic Records), offers access to court filings and related case information. Despite its importance, the system is antiquated and clunky. And at 10 cents a page, with few exceptions, it can be prohibitively expensive. In 2016, three legal nonprofits, the National Veterans Legal Services Program, the National Consumer Law Center, and Alliance for Justice, filed a class-action lawsuit against the federal government, arguing that the judiciary violates federal law by charging excessive fees for PACER access. [Matt Ford / New Republic]

The law at issue is the E-Government Act of 2002. The statute authorizes the judiciary to impose fees “only to the extent necessary” to provide “access to information available through automatic data processing equipment.” A federal district judgeaccepted the challenger’s basic theory,” as the New York Times’s Adam Liptak reported. The case is now on appeal before the U.S. Court of Appeals for the Federal Circuit. [Adam Liptak / New York Times] (A bill introduced in Congress last week would go even further than the lawsuit to eliminate fees and modernize PACER.)

The plaintiffs point to the enormous gap between the $3 million it costs to operate PACER each year and the more than $146 million in fees it brought in in 2016. The excess fees, the plaintiffs point out, are used “to cover the costs of unrelated projects—ranging from audio systems to flat screens for jurors—at the expense of public access.” An array of organizations and individuals have filed amicus briefs in the case. Among them is former Senator Joe Lieberman, the sponsor of the 2002 law, whose brief argues that excessive PACER user fees “create a system in which rich and poor do not have equal access to important government documents.”  [Matt Ford / New Republic]

Media organizations have also filed a supporting brief. The New York Times’s editorial board recently noted that its newsroom “has in recent years paid tens of thousands of dollars in fees for access to federal court documents. Such costs can be a burden on smaller newsrooms, many of which have struggled financially in recent years.” The Supreme Court, “often a late adopter of new technologies,” has made nearly all its new court filings available at no cost online. One of the lawyers for the plaintiffs in the lawsuit also told Liptak that the high court’s system “demonstrates that there isn’t any practical obstacle to making filings available for free.” And a local paper’s editorial board said, “For all the U.S. Supreme Court’s seeming formality and bureaucracy, accessing its rulings, opinions and related documents is easier than using an ATM, and it’s free.”

The amicus brief that has attracted the most attention in legal circles is that filed by seven former federal judges, including Richard Posner and Shira Scheindlin. The former judges “urge no particular legal outcome,” and “instead emphasize policy concerns the Court should keep in mind when deciding the case.” Their interests, they say, are “their ongoing commitment to fairness for all litigants, preserving the public’s positive perception of the judiciary, and the systemic well-functioning of the justice system.” [Amicus Brief / National Veterans Legal Services Program, et al. v. United States]

Most people would not think of former federal judges as ordinary litigants, but “they have experienced both sides of the system.” As judges, their access to PACER was free and unlimited. Since leaving the judiciary, “amici must carefully consider whether each click is worth the cost.” Their conclusion? PACER should be free. “The economics of electronic information,” the brief says, “make that easy.” [Amicus Brief / National Veterans Legal Services Program, et al. v. United States]

“The tragedy of PACER’s paywall,” they argue, is threefold: a blow to the legitimacy of the courts, diminished ability for those within or without the judiciary to accurately identify and address systemic issues, and the disadvantaging of pro se litigants, who are their own counsel. The brief looks at the plight of incarcerated litigants in some detail, noting that “access to the courts implies meaningful access to court records.” The Supreme Court has required that people in prison have some access to a law library and “the most comprehensive ‘law library’ of raw source material is PACER.” The former judges add that “unless the records in PACER are easily searchable, they might as well not exist for a pro se prisoner.” [Amicus Brief / National Veterans Legal Services Program, et al. v. United States]

Easier access to PACER alone cannot smooth out all of the many barriers that confront pro se litigants. In 2006, Thomas C. O’Bryant, a self-described jailhouse lawyer sentenced to life in prison in Florida, wrote an article for the Harvard Civil Rights-Civil Liberties Law Review about the challenges of research and litigation while incarcerated. “Comprehending the reality of pro se prisoner litigation requires looking beyond the case law and examining the average pro se prisoner, the challenges he faces, and the regulations imposed upon him and implemented by prison officials in response to governing laws.” [Thomas O’Bryant / Harvard Civil Rights-Civil Liberties Law Review]

O’Bryant’s assessment was bleak. The system, he wrote, “seems to prevent indigent prisoners from obtaining meaningful review of constitutional violations: undereducated prisoners, prisoners with mental disorders, unreliable memories of trial court proceedings, under-trained and under-educated law clerks, ‘psych inmates’ working as law clerks, law libraries with meager resources, restricted access to these law libraries, law clerks, and jailhouse lawyers—the list goes on.” [Thomas O’Bryant / Harvard Civil Rights-Civil Liberties Law Review]

In 2018, the Crime Report interviewed O’Bryant, still incarcerated in Florida. The situation, he said, has gotten worse. A major culprit is the replacement, in many prisons, of print materials and legal assistance with computer kiosks with legal database subscriptions. These digital resources are often more limited than their print counterparts. Furthermore, many people in prison lack the skills to navigate the electronic resources, particularly in the limited time that they are allowed in law libraries. [Adam Wisnieski / Crime Report]

After announcing his retirement from the Seventh Circuit Court of Appeals in 2017, Judge Richard Posner did an “exit interview” with Liptak of the Times. He told Liptak that “about six months ago, I awoke from a slumber of 35 years” and came to recognize the mistreatment of pro se litigants by the judiciary. [Adam Liptak / New York Times] Freeing PACER can only be a good thing for people in prison. The hope is that powerful former federal judges will continue their advocacy, on PACER costs and the many other barriers, until the promise of access to the courts for pro se litigants is fulfilled.

Stories From The Appeal


California Highway Patrol officers blocked an entrance to Interstate 5 as Black Lives Matter
protesters marched nearby on March 30, 2018. [Justin Sullivan/Getty Images]

The Appeal Podcast: How Police Unions Are Fighting California’s New Transparency Law. Appeal contributor Darwin BondGraham joins Adam to discuss tensions over recently passed legislation that would make the state’s police records more readily available to media, civil rights groups, defense attorneys, and the public. [Adam H. Johnson]

Over 200 People Went on Hunger Strike After Months on Lockdown at California Prison. Corcoran state prison has a history of abuse that includes forcing prisoners into ‘gladiator fights.’ [Raven Rakia]

Stories From Around the Country

11-year old arrested after refusing to recite the Pledge of Allegiance: When a sixth-grader in Lakeland, Florida, refused to stand for the pledge on Feb. 4, arguing that the flag and national anthem are racist, the substitute teacher, instead of honoring his First Amendment right to refuse, asked him why he didn’t leave the U.S. and live somewhere else. She then called the school office which led to an administrator and a school resource officer arriving at the classroom. Rather than correcting the substitute teacher and explaining that students have the right not to recite the pledge, the school resource officer placed the boy, who is Black, under arrest. He was charged with disruption of a school facility and resisting an officer without violence. The local police department claims the 11-year-old created a disturbance and made threats. He was sent to a juvenile detention center and suspended for three days. The Supreme Court ruled in West Virginia State Board of Education v. Barnette in 1943 that the First Amendment bars schools from requiring that students salute the flag or recite the pledge. [Kristine Phillips / Washington Post]

‘I equate it to the whipping post in slavery’: Tyrell Muhammad served 25 years in prison in New York State. Nearly seven of those years were spent in solitary confinement. Muhammad is part of the coalition pushing for the HALT Solitary Confinement Act, far-reaching state legislation that would end solitary confinement past 15 days and introduce rehabilitative alternatives. In an interview with AM New York, Muhammad described the experience of being placed in solitary. “I equate it to the whipping post in slavery. Because everybody in the facility knows that you’re being punished. So now you’re ridiculed. Everybody sees you going to solitary.  And once you get there, you don’t see nobody, you don’t hear from nobody. So now you’re paraded and ridiculed in front of the men and then you’re vanished.” Muhammad was originally sent to solitary for 60 days for missing the “count” in the prison. That 60 days turned into six and a half years. “Because when you get there, you get more infractions. If you don’t eat all your food, you get an infraction. … If you’re talking too loud on the gate, you get an infraction. If I put down for recreation and decide at the last minute I don’t want to go, I get an infraction.” [Mark Chiusano / AM New York]

A Colorado county’s sheriff supports cooperation with ICE that proposed legislation would restrict: The sheriff of Teller County, Colorado, has signed a new contract with ICE that will enable some of his deputies to research the status of people arrested in the county and detain them over immigration violations. Teller is the only county in Colorado with such an arrangement, called a 287(g) contract. The county was already the only one in the state to honor ICE’s warrantless detention requests. The ACLU of Colorado insists that both forms of cooperation violate state law, and the state’s Court of Appeals will hear the ACLU’s lawsuit against ICE detainers after a state judge blocked them in a neighboring county. Proposed legislation (House Bill 1124) would restrict cooperation between local law enforcement and ICE. Representative Adrienne Benavidez told the Appeal: Political Report that her bill targets the anomalous powers that have “been carved out by ICE that there is no good reason for.” [Daniel Nichanian / The Appeal: Political Report]

After raid leaves two dead, Houston police chief says he’s ‘99.9% sure’ department will end use of no-knock raids: Three weeks after a drug raid in Houston’s Pecan Park neighborhood left two people dead and five officers injured, the city’s police chief said yesterday that the department will most likely stop using controversial no-knock warrants. Chief Art Acevedo made the announcement at a town hall event organized by the Greater Houston Coalition for Justice. Although he said the practice would “go away like leaded gasoline,” Acevedo qualified his promise by saying no-knock raids would take place only if his office granted a special exemption: “I’m 99.9 percent sure we won’t be using them. If for some reason there would be a specific case, that would come from my office.” Acevedo also expressed confidence that criminal charges would be brought against at least one of the officers involved in the deadly raid. There were also questions during the town hall about the department’s possible surveillance of law enforcement critics. [St. John Barned-Smith and Keri Blakinger / Houston Chronicle]

Thanks for reading. We’ll see you tomorrow.

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