AALS Conference on Clinical Legal Education
Albuquerque, New Mexico
Sunday, May 7, 2000
The Setting:
For over thirty-five years, the Frank J. Remington Center at the University of Wisconsin has hosted a clinical program devoted to providing legal assistance to prison inmates. We receive about half our funding from the Wisconsin Department of Corrections and other contracting agencies, and the other half from the law school. Our contract with the DOC precludes us from representing inmates in conditions of confinement suits against the DOC or DOC personnel. However, we provide a wide range of other services, including representation in postconviction challenges, family law issues, and debt and detainer resolution. We have remained roughly the same size (40-50 students and 10 FTE supervising attorneys) since about 1980. In that time, the population in the Wisconsin prison system has grown from about 4500 adult inmates to just over 20,000 (about 5,000 of whom are now housed in private, out-of-state facilities). These numbers promise to grow even more rapidly in the future, as Wisconsin implements its new "truth in sentencing" law that eliminates parole for inmates committing crimes after January 1, 2000. We are the only organization that provides legal assistance in the Wisconsin prisons.
The Problem(s):
What type and level of legal services can we even hope to provide to this rapidly expanding client base?
How can we structure our clinical program to meet our service obligations (contractual and moral) without sacrificing our students' educational experiences?
Some Solutions:
1. Changes in the intake system for identifying legal problems.
In the mid-1970's students used to be able to sit down with each inmate as he or she was newly admitted into the DOC, do a "diagnostic" interview to determine if the inmate had any legal problems, and then represent that inmate with any legal problems that were identified in the diagnostic interview.
As the prison population grew, we moved to a mail-request/waiting list system, with each supervising attorney responsible for administering the requests from one or two institutions. However, we found that inmates were waiting so long to see us that many of their legal problems did not receive prompt attention, and for many of them, justice delayed was justice denied. We also found inequities in our delivery system between institutions based on supervising attorney preference for handling certain types of cases.
For the past two years, we have used a "screening interview" system, using clinic students and project assistants to interview inmates at the institutions and then refer them into different projects defined by substantive areas of law (Family Law, Claims of Innocence, General Legal Assistance, Restorative Justice). The screeners are able to do an on-the-spot evaluation of whether the inmate's problem has substantive merit, provide information to inmates we cannot represent, and identify "emergency" cases.
2. Specialization
We found that a lot of our students' time was being spent on a few "big cases," which were usually family law cases involving disputes about visitation, and big postconviction challenges. We have chosen to create separate projects for these big cases (a Family Law Project and a Claims of Innocence Project), allowing the students in the general legal assistance project to see and serve more inmates and screen cases for the other projects.
The downside of this approach is that, while we are able to see more inmates more quickly, and resolve smaller legal issues more efficiently, the specialized projects are only able to handle a limited number of cases, and experience backlogs in screening the cases they will take. It also creates an "all-or-nothing" approach for the clients with family law or actual innocence issues. Rather than having a law student devoted to investigating, researching and explaining their case to them (even if no litigation is filed), inmates with certain types of legal problems are quickly referred into a project, and eventually they are given either full representation or no representation at all, based on a paper review of their cases.
3. Support of Pro Se Litigation
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The Family Law Project is currently experimenting with using students as part of a support system for pro se litigants. This spring, the project seminar was devoted entirely to the issue of delivery of legal services (see attached syllabus). Students were asked to pursue some type of project relating to assisting inmates in pro se litigation. We also funneled "emergency" requests from inmates being referred into the project for next fall to current spring semester students, and asked them to set up phone calls with those inmates for the purpose of providing information and advice only. The outcome of that seminar was a collective vision of a four-tiered approach to assisting inmates we can't represent directly: (1) comprehensive pro se forms and instructions on family law issues (divorce, paternity re-opening, child support modification, etc); (2) pamphlets giving general information and referencing form/instruction packets to be used for different situations; (3) on-site assistance in using the forms and instructions from intermediaries such as social workers, law librarians or inmate paralegals; and (4) regular law student contact with intermediaries to identify problems with the forms, and inmates who need telephone follow-up for legal advice on a specific matter. Students will still provide direct representation in complex cases that require an attorney, but their caseload will be reduced to recognize their other activities. Whether this system will work is still an open question that we will need to explore.
1. Discrete Task Representation
Currently, we have no organized system of discrete task representation, but it occurs on an ad hoc basis as part of the screening process itself. Students will sometimes review documents that inmates need to sign or want to file, contact parties on an inmate's behalf to negotiate a particular matter, or draft documents for the inmate to file pro se. The ethics of discrete task representation are currently being debated in professional responsibilities circles, raising questions about whether it is consistent with the role of an attorney to "ghost write" documents or give legal advice without thorough investigation. Engaging clinical students in discrete task representation raises further questions about the role of discrete task representation in the context of client-centered lawyering.
2. Training and Working with Inmate Paralegals
The work of the Family Law Project has revived the issue of a law school clinic's role in training and supervising the work of inmate paralegals. In the late 1970's the Remington Center initiated an inmate paralegal training program for lifers in the Wisconsin prison system. (For a description of this program, see Ben Kempinen, Prisoner Access to Justice and Paralegals: the Fox Lake Paralegal Program, 14 CRIMINAL AND CIVIL CONFINEMENT 67 (1988).) Inmates who enrolled in the program got a full two-year technical college degree in paralegal studies, supplemented by education from lawyers and law school professors in the particular problems arising in prison litigation. Supervising attorneys from our clinical program then supervised the work of two inmate paralegals, who essentially screened cases for our program. We are currently exploring the possibility of reviving this paralegal training for inmates, or educating and certifying inmates to provide assistance for pro se inmates using our forms. We envision that law students will be involved in some of the training for the paralegals, as well as in working with the inmate paralegals to identify problems with pro se forms and instructions.
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