William H. Rehnquist: We'll hear argument next in Number 94-1511, Samuel A. Lewis v. Fletcher Casey. General Woods.
Grant Woods: Mr. Chief Justice, and may it please the Court: This is an inmate access to the court case. The State of Arizona meets and exceeds the requirements of Bounds v. Smith by providing at the time of trial 26 law libraries at nine separate prison complexes across the State. As the prison population has grown from more than 15,000 to 22,000 prisoners, we have added seven more libraries, for a total of 33. In addition to providing adequate legal resources to the inmates through these law libraries, Arizona goes above and beyond the requirements of Bounds by facilitating the use of legal clerks and legal assistants to obtain books and to help in the preparation of lawsuits. Also, we encourage inmates to take our classes to teach them to read English, and we find interpreters for non-English-speaking inmates. We facilitate also assistance from family, from friends, outside lawyers and paralegals and other prisoner rights groups. Although deference to State officials in the area of prison administration is required by this Court, the district court in this case has imposed an order which micromanages virtually every aspect of prison life in this area. Additionally, the district court has entered its order despite a record that has not established an injury warranting systemic relief. The result is that the order is overbroad, overreaching, and far beyond the requirements of Bounds.
Sandra Day O'Connor: Mr. Woods, what are the findings of the district court that would support a system-wide violation of Bounds? Was there any express finding that there was a system-wide violation of the requirements this Court set forth in Bounds?
Grant Woods: We believe there is not, Justice O'Connor. The record in this case is difficult, and it's difficult for a variety of reasons, but one reason is because it's difficult to separate pure findings of fact from the judge's order, from how he has extrapolated that based upon, we believe, his misinterpretation of what Bounds requires. If the Court--
Sandra Day O'Connor: Well, you take the position that Bounds was an either-or situation, that the State can provide a library or assistance?
Grant Woods: --Yes.
David H. Souter: Well, Bounds said that in so many words, didn't it?
Grant Woods: Yes. Mr. Chief Justice, I think it's important for the Court to look at the reasoning behind Bounds, and how it's been--
Sandra Day O'Connor: Well, if you do that, I certainly think there is some indication that a prisoner who cannot read or who does not speak English might not have meaningful access to a library even if it were there, and you want us to take the position that there's no requirement to provide any assistance at all.
Grant Woods: --Yes, Justice O'Connor. We believe that's the proper reading of Bounds, although we--
David H. Souter: You take the position that, if a prisoner is illiterate or is illiterate in English, that that... that the requirements therefore are still satisfied so long as there is, in fact, a library in existence to which the prisoner could resort if he were able to read it, or a legal helper to whom he could turn if he were able to communicate?
Grant Woods: --That's correct. We believe Arizona goes far beyond the requirement of Bounds, but we believe that the proper interpretation of Bounds is that a law library, in and of itself, is enough.
David H. Souter: Well-- --So there is no obligation to an illiterate prisoner.
Grant Woods: The obligation is really not an affirmative duty. I think what we're asking the Court to do is apply... as the courts generally have over the past 18 years, apply the strict interpretation of bounds and the language of Bounds.
David H. Souter: Well-- --But that turns... I'm sorry, I keep interrupting Justice-- --Go ahead... no, go ahead. This will be my last question. That, it seems to me turns the requirements even in the strict either-or sense into pure formalities. We're placing books in front of someone who cannot read them, and we're placing legal helpers in front of someone who cannot communicate with them. That seems utterly senseless.
Grant Woods: Justice Souter--
David H. Souter: Why isn't it senseless?
Grant Woods: --This is wy we believe it's not. This is... again, you have to look at the reasoning behind Bounds, and we believe the reason the Court ruled the way it did in Bounds is, the Court was saying that what we have to do is put prisoners on similar footing as they would be for access to the courts to people who are not incarcerated. The State has taken a step in their lives that has put a barrier to the courts, and therefore we have to... we have an affirmative duty to provide something there, in this case a law library.
Sandra Day O'Connor: Well, suppose we don't agree with you on the meaning of Bounds, because there certainly is language in it that speaks in terms of meaningful access, do you have a fallback position?
Grant Woods: Yes, we do, Justice O'Connor, and the fallback position is that Arizona goes above and beyond the requirements of Bounds. As I've said, we do facilitate legal clerks, legal assistants. They... again, you have to go to what we're talking about, and the Court has said in--
Sandra Day O'Connor: Well, do you want us to find that the district court findings were erroneous? I mean, what is it we're supposed to do, parse through the record and say that their findings were clearly erroneous? What is it you're asking us to do, then?
Grant Woods: --We're asking you to reverse the findings of the district court, because Arizona has met the requirements set forth in Bounds. The Arizona system provides meaningful access, and you can find that--
Sandra Day O'Connor: So you don't make an argument, then, today, that the injunction exceeded the scope of the district court's authority? You're not making that argument, I take it.
Grant Woods: --Yes, we are making that argument. We don't think you have to get to that, but if you find... that is another fallback position. Clearly, in this case, if you found that we were not in compliance with Bounds, and that some remediation was appropriate, then you have to look at the scope of the injunction and, of course, when you look at a litany of cases from Dayton through the recent Jenkins case, you see that this case is a perfect example of an overbroad order. Rather than finding a specific systemic injury and trying to resolve that specific injury, what this district court judge has done has basically decided how he would micromanage the prison, to the point where he decides where people sit and when, who goes, and when they go to the library. Telephone calls is just one example I would give you. We have 22,000 prisoners. He's mandating by this order that we have to provide, now, 66,000 20-minute calls per week.
Ruth Bader Ginsburg: General Woods, was there a point... ever a point, after finding constitutional violation, at which the State was asked to come up with a plan to cure the violation, or was this directly referred to a special master?
Grant Woods: Well, Justice Ginsburg, what the district court did was, we had a prior ruling from him in the Gluth case which was just applicable to one prison unit and, again, micromanaged the entire unit much as this order does. He told us that he... his plan was to put this order in place throughout the State, and he gave us the opportunity to make any objections which we wanted to, which we did, but the ball game was over at that point.
Ruth Bader Ginsburg: But before that, isn't it usual in these situations to give the State the first opportunity to present a remedial plan?
Grant Woods: Yes, Justice Ginsburg, and that's exactly what Bounds requires, is that... that you will give deference to the States, and the States will be allowed to formulate their own plans.
Ruth Bader Ginsburg: Did you ask at any point to be permitted to do that before you encountered the special master?
Grant Woods: We anticipated that that would be how... the answer is yes, but we were not allowed to do so. What we were allowed to do is object any way we wanted to the Gluth decision being imposed upon us State-wide and, again, I think that's why you have in this order. If you see... we have orders for things that have nothing to do with the record there's not even any testimony on. We're required to train inmates, for example, for immigration law, for divorce and custody cases, according to this order. We're--
Anthony M. Kennedy: Mr. Woods, Attorney General Woods--
Grant Woods: --Yes, sir.
Anthony M. Kennedy: --did you give consideration, or have any of the people who have written in this field in the scholarly community given any consideration to whether or not the library requirement makes sense at all? It seems to me that maybe libraries might be a waste, and that there might be much better, more efficient ways in which to provide prisoners some assistance.
Grant Woods: I think we've... we've considered that, and I think these things will change with the advent of computers and technology changing, where the old style law library may some day be a thing of the past, but what the Bounds court told us was that we could choose between a law library or... and I believe the disjunctive was used something like 10 times in the decision... or some other form of legal assistance. Most States have chosen a law library, and--
Anthony M. Kennedy: Well, I'm asking whether or not other forms of legal assistance were considered by you. It seems to me you're defending your position, advancing your position on the theory that your library facilities were adequate. You have not taken the position, I take it, and have any other prisoners, prison systems taken the position, that the library requirement is just fanciful, what prisoners need are small books with forms and a couple of people to tell them how to fill them out.
Grant Woods: --I don't know specifically if anyone has been bold enough to do that, Your Honor, in the face of the Bounds decision. In other words, we have felt for 18 years we're required to do a law library. We can come up with another form of--
Anthony M. Kennedy: Well, it says other forms--
Grant Woods: --Yes.
Anthony M. Kennedy: --of legal assistance.
Grant Woods: But I think we would be... I'm supposing that the States would be hesitant to come up with too minimal of a plan for fear that it wouldn't meet the standards, and also--
Anthony M. Kennedy: Have there been any studies on the effectiveness of prison libraries?
Grant Woods: --Well, there have been... there have been commentators who have commentated upon it, but I don't know that that's particularly persuasive. I think that the Bounds court understood, we have to assume that the Bounds court understood that there are illiterate and not English-speaking prisoners in every prison in the United States. There were then, there are now, there always will be, and the point is--
Ruth Bader Ginsburg: General Woods, isn't it the case that in Bounds the district judge would have preferred some other form of legal assistance? It was the State that decided that the library was a better way for it to go. This Court mentioned both, but the district court in that case, I thought, had made it clear that he thought it would be a much better idea to provide some form of legal assistance other than Federal reporters, State reporters on a shelf.
Grant Woods: --I believe that's correct, Justice Ginsburg, and this Court, as... following the direction that it has given ever since then, deferred to the State administrators, which is only reasonable given the very difficult nature of prison administration, and also--
Ruth Bader Ginsburg: So it's the State that made this choice, isn't it, the States?
Grant Woods: --That's correct.
Ruth Bader Ginsburg: It was not something that this Court, and surely not the district court in Bounds, dictated. And haven't you made that same choice? In other words, you're defending your position, or advocating your position based on the adequacy of the library system.
Grant Woods: Yes, we have, and Justice Kennedy, let me make it clear why we believe it is adequate, and why this 18-year period of the States complying with Bounds mainly with law libraries is sufficient, and it's because we put people on equal footing as to the people who have not committed crimes and who are not in prison. And then, what they can do on the outside, if a person is illiterate, if a person doesn't speak English, and they live in Phoenix but they haven't committed a crime, they haven't murdered anybody, they're not incarcerated, if they have a 1983 case they can go to the law library, public library. If they can't use it because of their own personal deficiencies, they can use family, friends, they can try to get a lawyer, they can use prisoner groups, and we facilitate that in Arizona. We allow them to do all of those sort of things so they are not disadvantaged, and that's the point behind Bounds.
David H. Souter: Well then you're not taking the position that it's irrelevant that they're illiterate, then. You're not saying, we can comply in a purely formal way, and that's the end of the matter.
Grant Woods: What we can do, Justice--
David H. Souter: Well, isn't that correct? You're not... I thought you were taking the formalistic position, and now, it seems to me, you're not. Am I correct that you are not?
Grant Woods: --It's not formalistic in this sense. The affirmative duty that we have is to provide a law library. However, we also have an obligation, from Johnson to Wolff and beyond, not to place barriers to the prisoners so that they can't access lawyers, prison groups--
Speaker: Well, do you--
Grant Woods: --friends and other inmates.
David H. Souter: --Let me put it another way. Do you deny that you have any affirmative obligation to give the prisoners some capacity, whether it be through other prisoners, family, friends, the group you were mentioning, to be able to use the library or to have access in some other way? Do you deny that you have any affirmative obligation?
Grant Woods: Justice Souter, I don't know that I would characterize it as an affirmative obligation. It's an obligation not to interfere with that right of the prisoner.
David H. Souter: Well, that seems to me a somewhat negative obligation.
Grant Woods: Yes.
David H. Souter: And I take it you deny that you have any affirmative obligation.
Grant Woods: That's correct. Well--
David H. Souter: So that if you had a prisoner who had no friends and there were no other prisoners who could or would help him, and there were no legal assistants, and all there was was a library, you would say, we have done all that the law requires?
Grant Woods: --I would--
Antonin Scalia: You'd say he'd be in the same shape he was in if he was not in prison.
Grant Woods: --Correct.
Antonin Scalia: No friends, no library, no lawyer.
Grant Woods: That person may live in Phoenix and have not committed a crime, and we wouldn't have an obligation to him either. I would point out--
David H. Souter: Does your case... do you rest your whole case, win or lose, on that position?
Grant Woods: --No. I-- [Laughter] Again, this Court can decide this case based upon what Arizona does, and we do... we move far beyond the requirements of Bounds, all of the things that we do, but you don't--
John Paul Stevens: May I ask you sort of a specific question? We're talking in general terms here. You mentioned earlier about the large number of phone calls that have to be made. As I understand, you don't have to pay for those calls, do you? If I understood the district judge, he said they could call collect or pay for them.
Grant Woods: --That's correct, Justice Stevens. We don't have to pay--
John Paul Stevens: The problem is... and is it not also true that he made findings that the prisoners had been arbitrarily denied access to their attorneys over the phone, and do you question those findings? I'm really asking you whether you think there was any violation at all here justifying any relief, or are we just talking about the scope of relief?
Grant Woods: --The answer to your question is no, we do not find any systemic violation. He... and to answer the cost question first, it's extremely costly, and this order would be... would basically break the bank in most of the States, and I don't think I'm exaggerating there. We don't have the pay for the actual phone call because they call collect, but we have to escort prisoners to and from these phone calls. We have to... we'll have to install extra phone lines. We'd have to hire extra guards. California, for example, we're talking about almost 20 million calls per year of a 20-minute length that they would have to somehow facilitate, and remember, the judge said that if nobody answers or if they don't accept the call, that doesn't count. It's just totally impractical, and that's the sort of thing that the prison administrators themselves should be able to do.
John Paul Stevens: Well, but again, what I'm really trying to find out, let's assume that maybe he's ordered too many phone calls. Are you taking the position that he had no authority to order any phone calls, that there was no violation of their rights of access to their lawyers by the way in which the prisons restricted and listened in on the calls, that sort of thing?
Grant Woods: Justice Stevens, I would apply the Turner analysis here, because we do not allow them simply to walk up and use the phone, because again, most of the calls--
John Paul Stevens: No, I understand that, but are you saying there was no evidentiary basis for a finding of violation of constitutional rights in denying adequate use of the phone? It maybe should have been much less than they allowed, but are you saying there was no evidence of a violation at all?
Grant Woods: --There's no evidence of a systemic violation, because what we found was that there were a... I think there were two inmates who said that their confidentiality was violated because they asked the guard to leave the room and he wouldn't. The guard testified differently, but he believed the prisoner.
William H. Rehnquist: Where do you get the constitutional right to make phone calls out of prison?
Grant Woods: I don't believe you have that. Again, Arizona I think goes beyond what it needs to do in that we allow them to do that. We do encourage... we encourage them to confer by mail.
John Paul Stevens: No, but again, I'm trying to figure out, are you asking that the entire decree be vacated and the complaint be dismissed because there's no proof of any violation, or are you merely arguing, as I thought you were, that he overreached in a lot of the provisions of the decree and we should trim it back somewhat? Which is the basic approach you take?
Grant Woods: Well, the basic approach is that you should simply reverse it because there is no evidence of--
John Paul Stevens: Reverse and direct dismissal of the complaint?
Grant Woods: --That's correct. Now, again, falling back from that, if you didn't want to do that you could simply--
John Paul Stevens: Well, most of the argument in the briefs is not about whether there was a violation, but rather about whether he was overly ambitious in the relief he granted.
Grant Woods: --Well, I think what we tried to point out when we talked about injury in the brief is that, again, going back to Jenkins and Dayton, City of Los Angeles v. Lyons where one, two or three instances when they find that, that's not evidence that we need systemic relief, and there is no evidence here that we need systemic relief. Unless you feel that Bounds needs to be dramatically expanded--
Ruth Bader Ginsburg: General Woods, are you attacking... you're saying the findings themselves were not sufficient, or the evidence beneath them, because I think you told us that these findings didn't originate with the judge, that they were, indeed, I think you said verbatim what were submitted to him, the findings that he made.
Grant Woods: --Oh, yes, that's correct. They were verbatim what were submitted to him. His factual findings are difficult to discern because they are--
Sandra Day O'Connor: Submitted by whom? What are you talking about? I don't even understand what you're saying.
Grant Woods: --The judge basically adopted the inmate's version of everything, the findings of fact and the conclusions of law.
Stephen G. Breyer: Well, all right, let's... I mean, that's fairly normal, parties submit findings and the judge--
Grant Woods: Yes.
Stephen G. Breyer: --The... following up on what Justice Stevens said, as I read this, and your opponents say this, at the heart of this decree... there are a lot of provisions to it, and I think your opponents, to my reading, concede that some are overreaching, but at the heart of it lie 261 prisoners who are locked up, and what I think it found is, respect to those who were locked up in solitary confinement, or whatever, that often they can only ask for one or two law books at a time, and there are frequently long delays, 1 day, 2 days, 3 days, and sometimes weeks before they get those one or two law books. That seems supported in the record, and your opponents concede that we could modify the decree in that respect, and they don't have to be escorted across the place. All they have to have, on page 39, is some effective method, all right. The second major part of this was the Hispanic population, and possibly the illiterates, and as for the Hispanic population, there are a lot of them, and there are findings that the Hispanic people cannot read these law books and are not given proper assistance of any sort, such as organizing other Hispanic bilingual prisoners, and the decree in that respect didn't require too much. It simply required that they get down to figuring out how these Hispanic people systematically could rely on bilingual prisoners to help them out. All right. At least as to those two key matters, which I think everyone thinks are at the heart of this, is there any argument that we... I mean, why shouldn't we do just what your opponents tell us to do in that respect?
Grant Woods: Well--
Stephen G. Breyer: Which is either to modify or to affirm those two key provisions, and then systematically, it wouldn't take too long, go through the other ones and see whether they may or may not have gone beyond the evidence?
Grant Woods: --Your Honor, I think regarding the lockdown prisoners, then I believe there clearly we're not talking about an inadequate law library or--
Stephen G. Breyer: What they were complaining about--
Grant Woods: --Yes.
Stephen G. Breyer: --was just what I said.
Grant Woods: I understand that. That means, I believe, that you go to the Turner analysis and you have to see in that case a whole variety of things, and also, even under the Ninth Circuit's interpretation of injury, you have to find injury. You have to find systemic injury, and there is no injury.
Stephen G. Breyer: Is there not injury in the fact, to take one example, a person is locked down. He says, I would like to see some law books. He makes a request. He gets no books for many days. Finally, he gets one book. Then he has to ask for another book. It would take him 4 years before he was able to have enough books actually to see what the law was. I mean, those seem found here. Isn't that injury?
Grant Woods: If that was the case, Your Honor, I think Arizona would have a bigger problem, but that's not the case, and that is not even what this court found.
Antonin Scalia: What do you mean by a bigger problem? Do you concede, General Woods, that a lockdown prisoner is entitled to have law books, even for matters that have nothing to do with a collateral attack on his conviction?
Grant Woods: I think that--
Antonin Scalia: Even for matters that have nothing to do with the Constitution, he's entitled to that as one of his basic needs like food, housing, shelter, medical care, and a lawyer? Is... you've made that concession?
Grant Woods: --No, I don't make that concession.
Stephen G. Breyer: Well then, what about the... wanting law books either for collateral attacks on his conviction or because he feels he's being treated in an unlawful manner? I imagine people don't read these books for their health. I assume they have a reason for wanting them.
Grant Woods: Once again, Justice Breyer, the reason I point to first the necessity for systemic injury is because the findings here by the judge were that many times... he used the word many... they had to wait a long... longer period of time. Also he found, though, that it's very clear the policy in Arizona is they get their books within 24 hours.
Stephen G. Breyer: That may be the policy, but what he found happened was that they are routinely denied physical access, there are often long delays in receiving books, and then there's a lot of testimony in that respect.
Grant Woods: Often long delays, the policy is 24 hours, and the record shows from the testimony that that is generally what happens. The fact that sometimes somewhere in a prison you can find 9 days, 7 days, the Bureau of Prisons' own policy from their brief is 3 to 4 days, and we're doing 24 hours.
Anthony M. Kennedy: But General Woods, isn't it inevitable that if the State takes the position that it's going to comply with Bounds by having a library system, that you're going to get decrees like this? If I were a district judge, and I read the requirement of the Supreme Court that you have to have a law library, the first thing I'd do probably is make up a list of the books that ought to be in the law library, and how often it ought to be open, and all we're doing is just arguing about details. It seems to me that once you accept the requirement of Bounds that you have an affirmative obligation to provide a library, we're going to be talking up here... we may disagree on exactly how long it ought to be open, and how much of a delay is acceptable, but it just seems to me the district judge is essentially correct in most of what he said if there's an affirmative obligation to provide a library.
Grant Woods: Well, we don't believe that... that that is the case, that the case is that if we provide a reasonably adequate law library that that's enough, and you don't have to micromanage it from there. If it pleases the Court, I would like to reserve the rest of my--
David H. Souter: I have one question, if I may. It seems to me that there are essentially two kinds of legal as opposed to factual issues here, that the first we've spent a lot of time on, and that is, what is the required level of access and so on, and whether you have an affirmative obligation. The other one you've touched upon a couple of times by reference to Turner, and that is, how do we measure sort of what, kind of the reasonable level of required service may be, or required opportunity. I think I'm correct that you argued on the basis of Turner in at least your reply brief in the Ninth Circuit. Did you go to the district court at any time and say, look, we not only have to apply Bounds here, we have to apply Bounds in the light of Turner, which sort of looks, as it were, to both sides of the equation. Did you make that argument to the district court that it wasn't applying Turner and should have?
Grant Woods: --The answer is yes, we did, and I think I... it appears that the district court judge simply had his own version of this expansive reading of Bounds and never applied any other test whatsoever.
David H. Souter: Okay. Would... on what I'm calling here sort of the second issue, call it the overreaching issue if you want to, do you believe it would be appropriate for us to return the case to the Ninth Circuit and perhaps have them return it to the district court for a consideration of Turner?
Grant Woods: We don't believe you have to do that, and we're a little wary, frankly, of going back and--
David H. Souter: You want an all-or-nothing win here, in effect. [Laughter] A win or loss.
Grant Woods: --That's correct. If it pleases the Court, I would like to reserve the rest of my time.
William H. Rehnquist: Very well, General Woods. Ms. Alexander, we'll hear from you.
Elizabeth Alexander: Mr. Chief Justice, and may it please the Court: Before I start trying to talk systematically about this case, I'd like to respond to a few of the questions from General Woods' discussion. First, I think the basic finding here was that the vast majority of adult prisoners have no adequate means to research and present their papers in court, and that was made up specific findings and a number of elements. How the lockdown system... the system as to how the great majority of prisoners actually got the books from the library, inability to use them, how the staffing worked in the system, how the law clerks, who, by the way, have no role in research, worked, how the supposed one source of legal assistance worked, that is the prisoner legal assistance, and what the sources for illiterate and Spanish-speaking prisoners were. I want to point out also that in the defendants' reply brief they said that they were not challenging any of the findings of the district court as clearly erroneous, and I want to further point out that a number of the findings, and these actually from the district court, if one goes back, both parties submitted findings, a number of the findings actually came from defendants. I want to further say that I do not believe that the order... that the record supports a claim that the State asked for some different form of developing the remedy. I do not believe that there is anything at all that would support that.
Antonin Scalia: I thought that-- --Ms. Alexander-- --I thought that the claim was they had no opportunity to, that they were given simply the choice of deciding... of saying why the previous order that had been applied more narrowly shouldn't be expanded State-wide.
Elizabeth Alexander: But--
Antonin Scalia: Is that inaccurate?
Elizabeth Alexander: --They never asked for anything else.
Antonin Scalia: It's too late to ask for that when the judge summons you up and says, tell me why this order shouldn't be applied State-wide.
Elizabeth Alexander: No, Your Honor, I don't think that's so, because they had five opportunities to say anything in this order is not correct, and any--
David H. Souter: They had five opportunities, but were they ever given the opportunity to propose, to draft and propose their own order? Did the judge ever give them that opportunity?
Elizabeth Alexander: --Not in that form, but I don't think--
David H. Souter: Well, that's... what form did it give them, the right to comment on its proposal?
Elizabeth Alexander: --Yes, but that did not limit in any manner--
Ruth Bader Ginsburg: Ms. Alexander, is that common in these institutional decrees? I think it's something that juts out in this case, and whether we're talking about prisons, schools, other institutions, isn't it usual for the alleged offender, the State, to be given the opportunity to come up with a plan, and if that's no good, sometimes the court has to devise its own?
Elizabeth Alexander: --Justice O'Connor, that is a common--
Speaker: Ginsburg. Justice Ginsburg.
Elizabeth Alexander: --Excuse me, Justice Ginsburg, my apologies. That is a usual way of doing this. However, the factual history in this is that they had originally in the Gluth case completely failed to cooperate in any manner with the district court. That order then went from the district court to the court of appeals, was affirmed--
Antonin Scalia: That's no excuse. If it should be done that way, it should be done that way.
Elizabeth Alexander: --But certainly--
Antonin Scalia: We don't punish the State for past defalcations. I can't imagine a judge just whipping up an order on his own and submitting it to the State without asking the State, who knows a lot more about running prisons, how to solve the problem. I just can't imagine that.
Elizabeth Alexander: --Well, I think the... this was an injunction that was running in one of the institutions, and it... there's nothing that the State lost by this process, nothing at all.
Sandra Day O'Connor: Well, how about the loss of any Turner analysis in this thing? I mean, in the Turner case, this Court indicated that prisoners' claims of constitutional violations have to be viewed through some kind of a lens of deference to the needs for prison security and so forth, and there is no indication in this record that I have found of any Turner-type analysis by the district court in deciding to issue the order and injunction that it did in this case.
Elizabeth Alexander: Your Honor--
Sandra Day O'Connor: Can you point me to that?
Elizabeth Alexander: --I would certainly agree that there is no place anywhere in the court's findings in the district court in which it says, here I am applying the Turner analysis and here is what I find. I--
Sandra Day O'Connor: And the breadth of the detailed orders is breathtaking. It has to do with the noise levels in these places, and hours of operation, and no deference to the prison's need for lockdown or security. I mean, it's just... it really is breathtaking in its scope.
Elizabeth Alexander: --Your Honor, if I could take that apart just a bit, I agree that the noise provision goes too far, and I have no problem with just simply getting rid of it, but the claim that somehow it prohibits their lockdown system and requires lockdown prisoners to get direct access to the books is just not correct. It's very clear in the commentary that that was never what the judge or the special master intended, and if there's any--
Sandra Day O'Connor: Well, it's not clear from the language of the injunction, is it?
Elizabeth Alexander: --But it is completely clear from the commentary, and if the Court has any question about that, we also have no objection to a modification to make that absolutely clear.
David H. Souter: Well, Ms. Alexander, on a broader level... I think Justice O'Connor has raised this... my reading of the district court order and I believe of the Ninth Circuit opinion fails even I think to disclose a single citation to Turner. Do you claim that... let me ask you two questions. Do you agree that Turner is applicable here, that Bounds must be read in the light of Turner?
Elizabeth Alexander: Yes, and I--
Speaker: Okay.
Elizabeth Alexander: --If I could go on to explain my answer on that--
David H. Souter: Sure. I'll tell you what my second question is, because that may be what you're going to get at. Even though neither court, if my recollection is correct, so much as cited Turner, do you claim that Turner was in fact applied by the Court?
Elizabeth Alexander: --I believe that if one looks at how the district court treated those things and in fact left, for example, the lockdown provisions in place means that in effect Turner was applied. Now, in terms of the relationship between Turner--
David H. Souter: Well, I think that boils down to saying that if we assume Turner was applied, that particular aspect of the order is not inconsistent as a matter of law with a Turner analysis, but that's about as far as we can go, isn't it?
Elizabeth Alexander: --I would agree.
David H. Souter: We... yes, okay.
Elizabeth Alexander: The relationship between Bounds and any affirmative obligation in the prison context case, whether personal safety or whatever, is there's an obligation to provide that. However, that doesn't mean that regulations that have some incidental effect on something that's an affirmative obligation, therefore cannot be put in place on the State, so if there is something that both has Turner implications--
William H. Rehnquist: Well, you speak of an affirmative obligation, Ms. Alexander. Now, in Estelle v. Gamble, where we were dealing with medical claims of prisoners under the... the basic approach of the Court was, you've got this fellow in prison, or this woman in prison, and they're sick. You can't just leave them there because if they were on the outside of the prison they could have gone and done something about it. Isn't... shouldn't our approach here be somewhat similar? The idea of an affirmative obligation to do more than the person could have done if he were outside, I don't see where that comes from.
Elizabeth Alexander: --Actually I think Estelle, Mr. Chief Justice, is a good illustration of how this principle works, because there is no obligation for the person who's bleeding on the street for the State to do something because the State hasn't been involved in that. But there is an affirmative obligation on the part of the State to provide medical care for the person who is in its custody.
William H. Rehnquist: Even though he has appendicitis... he's not beaten up in the prison. He just has some disease that he could have easily just as well gotten outside, but still he's been cut off from access to other medical sources, so the prison has to supply it.
Elizabeth Alexander: That's correct.
William H. Rehnquist: But it doesn't have to supply more than he could have gotten on the outside.
Elizabeth Alexander: Well, it has to provide reasonable medical care, just as it has to provide reasonable safety. That is the affirmative obligation. That is the obligation that's not--
Anthony M. Kennedy: Incidentally, where does that affirmative obligation come from? I understand the sick prisoner case. That comes from the Eighth Amendment. This isn't an Eighth Amendment case, is it?
Elizabeth Alexander: --That's correct, Your Honor, it is not.
Anthony M. Kennedy: So where does this affirmative obligation to provide a law library come from?
Elizabeth Alexander: In Bounds--
Anthony M. Kennedy: Other than Bounds.
Elizabeth Alexander: --In Bounds it comes from the fact that the right of access to courts is the most fundamental right that a prisoner has, because no other right, including Eighth Amendment rights, can--
Antonin Scalia: It depends on purpose the access is sought, for what purpose the access is sought, doesn't it? I mean, if you say for purposes of vindicating constitutional rights taken away when he's thrown in prison, I suppose that's true.
Elizabeth Alexander: --Yes.
Antonin Scalia: But if you're talking about the right to sue for some monetary damages, that's just a deprivation of economic welfare which he's been deprived of that when he's thrown in prison. He can't go out and make money in all sorts of ways. I don't see that that's so fundamental.
Elizabeth Alexander: I agree that the most fundamental core of the right of access to courts has to do with those things related to the criminal process.
Antonin Scalia: Maybe the only one. I don't see how the other has anything to do with fundamental human rights.
Elizabeth Alexander: Well, civil rights under section 1983 I would think is equally fundamental, because if that doesn't exist, then absolutely nothing that the prison authorities do to the person while in prison can be redressed.
Antonin Scalia: Well, I'd say that, but that's a constitutional violation again.
Elizabeth Alexander: I would agree, Your Honer, and those--
Antonin Scalia: I'm giving you constitutional violations, but would you acknowledge that as far as the obligations of the prison, they don't have to give any legal advice about anything that doesn't deal with constitutional violations.
Elizabeth Alexander: --I think that is more debatable. However, custody rights are... also relate to a fundamental interest, and immigration is in fact so closely tied to the criminal process--
William H. Rehnquist: You think they have to... the prisons have to provide advice on immigration?
Elizabeth Alexander: --I think that it is not beyond the discretion of the district court.
William H. Rehnquist: What provision of the Constitution would cause that to be required?
Elizabeth Alexander: Collateral to the criminal justice rights because they are so closely related.
William H. Rehnquist: Is it an abuse of discretion not to get-- --Well now, wait a minute, collateral to the criminal justice rights... I don't really understand your answer.
Elizabeth Alexander: Well, there are a number of--
William H. Rehnquist: You can be deported. It's not criminal.
Elizabeth Alexander: --Your Honor, a number of detainer issues with regard to immigration also have effects on the criminal justice system. However, I would think that in the overall context this is not nearly as important. Almost all of the access that's here involved in this case has to do with the two fundamental things that Justice Scalia mentioned, that is, the direct relation to the criminal justice process and civil rights. That--
David H. Souter: Well, those things may be taken care of maybe by four or five form books Has there been any studies to show the effectiveness, the cost effectiveness of these massive libraries?
Elizabeth Alexander: --Your Honor, I can't answer the question directly in that form. What I can say, but I can't give the Court citations, is that the studies of effective legal access program show that the effect of the program is to reduce the filing of frivolous lawsuits. The volume goes down, because once prisoners have some opportunity to know what are the requirements of--
David H. Souter: In the Federal system it's now running 1 percent successful.
Elizabeth Alexander: --That may be, but those are still extraordinarily important cases, because without some access to the courts, then there is no possible limit on governmental power. These are the people who have the... in which there is the most possibility of abuse of--
Sandra Day O'Connor: Ms. Alexander, may I ask you to focus for a minute on what you say the injury is that must be proven for a system-wide violation that would justify a system-wide decree?
Elizabeth Alexander: --There has to be a threat of injury to the class, or some defined portion of the class.
Sandra Day O'Connor: A constitutional injury?
Elizabeth Alexander: Yes, Your Honor.
Sandra Day O'Connor: And in this context, what do you say has to be established to justify system-wide relief?
Elizabeth Alexander: Well, in terms of the argument that the defendants have made, the--
Sandra Day O'Connor: No, in terms of what you say the class representatives must prove--
Elizabeth Alexander: --The class--
Sandra Day O'Connor: --to get system-wide relief.
Elizabeth Alexander: --The... they must prove that this entire system as directed to this element poses a real and immediate threat to the likes of access of the class.
Stephen G. Breyer: The question, to go back for a second... because you know a lot more about this actually, and as you've read into the constitutional basis for Bounds, I think really the question is in my mind, too, what part of the Constitution rest on? Naively, I have thought, well, the person is being deprived of his liberty. He's in prison, so he's deprived of his liberty. In a certain number of cases, small, perhaps, it would be an improper deprivation, and he has to have some kind of process available, or at least he can't be cut off from process through which he could challenge what could be an unlawful deprivation of his liberty. So in my own mind I was pinning it on the Fifth or Fourteenth, but that's a naive and uninformed reaction compared to what yours will be, so I think people are trying to get at what, in your reading, has struck you, or you've come to the conclusion as to what the Bounds basis is in the Constitution. Quite literally and specifically, what amendment do you tie it to?
Elizabeth Alexander: Well--
Stephen G. Breyer: And I'm not asking you to accept my characterization.
Elizabeth Alexander: --Well, Justice Breyer, Bounds says also that it's a due process right. I notice that Turner v. Satley describes Johnson v. Avery, the earlier right of access case, as involving a First Amendment petition right. I think the reason that one could describe it best as a due process right is that it has various elements. It has elements of equal protection. It has elements, for a person who has already been convicted, of petitions to redress grievances, and for those reasons I have no quarrel with Bounds' description of it as a due process right.
Stephen G. Breyer: My other question, if I could ask it now, is as you say in your brief on page 39, for example, I think you believe yourself that in certain respects this decree is overdrawn, and your opponent's brief, which is very good, points out certain respects it is... seemed to me is in certain respects overdrawn, yet there are other respects that you point to which may have a good basis, and they've challenged those too, but I mean, the evidence seems more your side, in my opinion, but in other ones not. So what, in your view, should this Court do if we think there are certain basic things like the Hispanic and 261 locked-up people, where the evidence is not too terrible for you, and there are other respects where the evidence seems pretty good for their side, and so what should we do? Should we act like an appeals court and just review the decree as if we were an appeals court? Should we send it back? How do we get to the result even that you want on page 39?
Elizabeth Alexander: If the Court were of the view that a constitutional violation had been proven but was concerned that certain aspects, subsidiary aspects of the remedy did not appropriately consider the Turner analysis, the appropriate relief, I would think, would be to remand it to the Ninth Circuit with directions to remand to the district court to determine what provisions should have a Turner analysis then applied. I'd like to--
Ruth Bader Ginsburg: Ms. Alexander, but what about the problem that we were discussing before about who frames the remedy? You... if you think that we are... we have no reason to be concerned with the method by which this decree was arrived at, that is, a special master was appointed, he drafted the decree, how do you answer the question that the State never had a chance to come up with its own plan? Should it not be given now a chance to do so?
Elizabeth Alexander: --Justice Ginsburg, it seems to me that that... it would be wrong to apply a flat-out rule that no district court can ever enter structural relief without first giving a defendant, no matter how recalcitrant, no matter what the history--
Ruth Bader Ginsburg: But the judge never said why he wasn't... nothing on the record indicates why the State wasn't given an opportunity to present a plan.
Elizabeth Alexander: --Well, Your Honor, I think that one can look at the record, one can look at what happened in Gluth, one can look at the finding of the district court that any books that were not on the so-called Michie list were then immediately removed from the law library, one can look at the finding of the special master in the development of the process that there had been retaliatory practices at some of the facilities, and that's in the--
Ruth Bader Ginsburg: But we would be... you seem to be suggesting that we should make the best case for the judge why he didn't ask the State to come up with a plan first, and I could agree with you that it's not an inexorable requirement in every case, but there's a lot of litigation like this, and this is an important question about what is the general way of proceeding. So if it's proper here for the judge to say, system-wide violation, I will appoint a special master, that's one thing. If it's not appropriate, what should the judge do once he finds a system-wide violation?
Elizabeth Alexander: --I think it would be different, Your Honor, if the Court were now to tell district judges there is such a rule, but to apply retroactively in this case a rule that a district judge who gave the defendants 8 months and five sets of objections during which... and many informal meetings with the special master, and in which many, many, if not most of the defendant's objections were accommodated... indeed, the only reason, for example, that the noise provision, that for the first time in the Supreme Court the defendants objected to, is in there, is at no earlier point did the defendants say, we don't want it. There ought to be some obligation on the part of State--
Antonin Scalia: They were given the chance, as I understand, to say why the earlier order, which contained such a provision, should not be applied State-wide.
Elizabeth Alexander: --And had they taken that opportunity it would have been out of there, because, in fact, I would... there was--
Antonin Scalia: That is not an opportunity to object to one of the provisions of the earlier order. It is simply an objection to say why the earlier order should be extended State-wide. But you know, I'm not even as far along as Justice Ginsburg. I don't know why it shouldn't be an inexorable requirement. What is wrong with an absolute requirement that before a district judge decides how to manage prisons, he ought to ask the State how they think it ought to be managed?
Elizabeth Alexander: --It fail--
Antonin Scalia: What is wrong with making that an absolute, universal, inexorable rule?
Elizabeth Alexander: --It fails to account for the circumstance that if the defendants are not going to cooperate the district court is going to be forced to delay the imposition of consti--
Antonin Scalia: He says, you have 2 weeks to come up with a plan. If you don't come up within 2 weeks, I'll make up my own.
Elizabeth Alexander: --Your Honor--
Antonin Scalia: I'll use the one I used, you know, several years ago.
Elizabeth Alexander: --I think that suggests some of the practical difficulties. If the State, in fact, had been given 2 weeks to come up with a plan, I submit to the Court that what it would have been able to submit in that time would have been less responsive to its interest than the 8-month period it had--
Antonin Scalia: And if 2 weeks is a reasonable period and the State comes up with something that's patently absurd, the judge would say, well, I gave you your chance, now I'm going to make up one. That's fine.
Elizabeth Alexander: --If that is actually what the rule of the court were, it would be a rule that wouldn't really give the State and local defendants anything that they now don't have, because it wouldn't be... it would be just a formality.
Antonin Scalia: For this judge it would give them something. Ms. Alexander, let me return, if I may, to the question of systemic violation, and I'd like to get some feel for how you would quantify it. Supposing there are 260 prisoners in lockdown, and a number of them request books, and say in maybe two or three of those examples the books don't come within a 3-day period that the regulations require. Now, is that a systemic violation?
Elizabeth Alexander: Your Honor, first of all, I... let me say that that's not this case.
William H. Rehnquist: No, but I... give me some idea of what... how many individual violations you have to get of, say, the performance of a particular prison official before you get what's called a systemic violation.
Elizabeth Alexander: Obviously, one can't give a hard and fast rule, but I think the key here is looking, is this the way, based on what you know about the system, that... does this represent isolated events or is, based on what the system is supposed to do, is this what is to be expected? This is a case in which what the evidence showed how the system was working was exactly how one would expect a system to work.
Stephen G. Breyer: Is the evidence here the evidence in footnotes 23, 24, and 25 on page 23a, where as I count there are about 50 or 60 examples, is that what... do you know what I'm referring to?
Elizabeth Alexander: Yes, Your Honor.
Stephen G. Breyer: Is that the relevant evidence in this respect to the 261 lockdown prisoners?
Elizabeth Alexander: Your Honor, if I could say again--
Stephen G. Breyer: Is there more than that, or is that not relevant? I mean, that's what I was looking at.
Elizabeth Alexander: --There... I think there is more evidence. That's what the district judge cited. There is more evidence in the record, particularly from the transcripts, about that, but--
Anthony M. Kennedy: There's-- --Did any of those instances indicate that there was a real danger of a constitutional right being sacrificed?
Elizabeth Alexander: --Yes, because--
Anthony M. Kennedy: Or being impaired? What was one of those? Having in mind that only 1 percent of prisoner petitioners are successful anyway, where in one of these is there a real threat of a constitutional right, in a concrete sense, being deprived?
Elizabeth Alexander: --Well, first, Your Honor, I think the right is... of access is violated whether or not the prisoner would ultimately succeed if the prisoner was denied a reasonable opportunity to present his or her claims to court, and certainly there was testimony with regard to the lockdown system that that happened. There were prisoners who were unable to get the books, who were unable to find, figure out--
Anthony M. Kennedy: You mean there's a right of access even if you don't have a ground for a complaint?
Elizabeth Alexander: --There is a right of access to determine, Your Honor, whether there is a ground to file a case, and certainly that's what we would want prisoners to do. We would want prisoners to be able to determine before they file whether or not what they're filing is a frivolous case, and there certainly was evidence that this system with regard to the one book delivered to the cell with nothing to tell the prisoner that he wants or she wants Volume 452 of Fed 2d--
Anthony M. Kennedy: But there's no evidence of the efficacy of that system, is there?
Elizabeth Alexander: --Of... of how the... whether the law... yes, there is evidence.
Anthony M. Kennedy: What is that--
Elizabeth Alexander: There's evidence that that's how it normally worked, that it normally took a long time. What the--
Anthony M. Kennedy: --No, no, there's no evidence that there's some demonstrated link between access to library materials and successful prisoner petitions.
Elizabeth Alexander: --There is evidence--
Anthony M. Kennedy: As contrasted with simply filing the form that's prescribed in the Federal Rules of Civil Procedure.
Elizabeth Alexander: --There is evidence that those persons who didn't get it were not able to file cases and were... and had their cases dismissed because they were unable to make responses in conformity with the order, and Your Honor, I would submit--
Sandra Day O'Connor: How many instances of that were found? Was it two?
Elizabeth Alexander: --Your Honor, that is a misunderstanding that the defendants first put forward in their reply brief. If one looks at the findings of the district court on this point, it's not that there were two incidents, it is that prisoners, plural, were unable to file their cases. Prisoners, plural, had their cases dismissed. Now, it is the case that the judge cites on this only one witness for each, but that certainly is not what the evidence in this case showed. There were numerous other witnesses who testified to similar events, and I could go through them.
William H. Rehnquist: Well, isn't the district court under some obligation, if he's going to give a system-wide remedy, to say this is the reason I find a systemic violation, that there were not just two prisoners who failed to get their books, but that there were 26?
Elizabeth Alexander: Your Honor, I believe that he did make systemic findings, and given that the defendants specifically say in their reply brief we are not challenging any of the findings of the district court as clearly erroneous, I think this issue is at an end.
William H. Rehnquist: Okay, but if you say, prisoners are not getting books, is it two prisoners, is it... you can't challenge that finding as clearly erroneous if only two got it, because two is a plural, so you can't challenge that, and yet it doesn't lay the groundwork for a systemic violation.
Elizabeth Alexander: Well, I think what I would see as the missing step in this, the two, we disagree, that's not what's involved, but in any event, these are cases in which someone had actually had his or her constitutional rights impaired, but the question the district judge ought to be addressing is a different one, is there threatened injury from the class when I see that these harms have occurred, that this same system is operating the way I would expect this flawed system to operate, and therefore--
Antonin Scalia: What if all the harms-- --Ms. Alexander-- --No-- --Why wouldn't it satisfy the Constitution if prisoners were allowed to file whatever they want to file and provided access to forms so that they could file, and secondly, they were also provided access to legal advice, period? No books, no anything else. They have the forms, you fill out a form, we'll mail it for you, and moreover, you can have legal advice about any particular issues you want to discuss, any particular constitutional issues you want to discuss, maltreatment in prison, your conviction was void for some reason.
Elizabeth Alexander: --For some prisoners that might well provide meaningful access, but for a prisoner who cannot write, the opportunity to be given legal advice and to be given form books just doesn't work to--
Antonin Scalia: I'll add that, that legal advice and the lawyer will fill out the form for you if you can't write.
Elizabeth Alexander: --The... in fact, I would say that the best systems are those systems that rely on something like that, rely on using direct sources of assistance.
Antonin Scalia: So that would be good, and you could get rid of the library.
Elizabeth Alexander: Oh, absolutely. We have no attachment to law libraries. Personally, I think law libraries are not the best way to provide access, but in some sense what Bounds does here is helpful, because it gives us something to measure access by. Does the prisoner have the access that is equivalent to what a literate prisoner given access to a law library would have? That ought to be the appropriate standard. Thank you, Your Honor.
William H. Rehnquist: Thank you, Ms. Alexander. General Woods, you have 2 minutes remaining.
Grant Woods: Thank you, Mr. Chief Justice. First, there were no... there was no showing of actual injury by any lockdown inmates. It wasn't two. Two would not be enough for a systemic remedy, but there were none.
Stephen G. Breyer: I count 30... 29 in those footnotes, I mean, I don't know what you mean by actual injury, but he listed 29 instances in which there were delays that he thought were significant or--
Grant Woods: This is the question, Justice Breyer. We do not believe that delay is actual injury. We're talking about whether somebody actually had a case or a cause of action somehow impaired because of delay. Prisoners, the one thing they have in abundance is time, and if it takes 4 or 5 days and they have a statute of limitations of 300 days, they are not impaired. Secondly, Turner has to be applied to the lockdown situation. That, I think, is crystal clear, that first Turner wasn't applied, and if it is applied, that there is a legitimate penalogical interest in saying that you can't have an unlimited amount of books in a cell, that you can't have them for an unlimited amount of time, and that our system, where... which was place at this time, and Exhibit 85 shows that legal assistance would go and help these people if they were illiterate or if they just wanted any book, that that is a reasonable system, and Turner has to be applied to lockdown, and that lockdown situation isn't just in Arizona, it's in every prison, and in fact ours is better than the Bureau of Prisons. I think the whole point here... I'd like to conclude and ask the Court to consider what Arizona has done and what most States has done is, we've met your precedent. We've said, we have a law library and it's an adequate law library. A pock-apart missing here or there that the judge pointed out does not make it inadequate. And then we have removed any barriers for... caused by incarceration, as dictated by Johnson and by Wolff. If you can't speak English on the outside, you try to get help from whoever you can get help from. We provide that on the inside. We go above and beyond that, and I think that is the key point, and that's why we ask you to reverse.
William H. Rehnquist: Thank you, General Woods.
Grant Woods: Thank you, Your Honor.
William H. Rehnquist: The case is submitted.


Warren E. Burger: Number 727, Vale against Louisiana.
Eberhard P. Deutsch: Mr. Chief Justice --
Warren E. Burger: Mr. Deutsch, you may proceed whenever you're ready. I'm sure you could have proceeded in either case.
William O. Douglas: Would you like to comment on that prior case?
Eberhard P. Deutsch: Pardon?[Laughter] It's a good fortune one rarely has. Mr. Chief Justice and may it please the Court. The appellant in this case have been charged in a proceeding prior to the one here at issue where the violation of the state narcotics law. In the course of that proceeding, his bond was raised on the prior charge and three policemen with capiases for his arrest in connection with the raised bond proceeded to what was believed to be his home and they did what they called stick themselves out and hid themselves near the home to watch it for some reason. They said they want to be sure he was home before they arrested him, I didn't quite understand. In any event, while they were waiting in hiding an automobile drove up in front of the appellant's home and it was driven by a man known to be a narcotics addict. The driver sounded his horn, appellant came out of the house, talked to the driver from the other side, the passenger side of the automobile, returned to his home, came out again, again talked to the driver and then the police made their presence known, surrounded the automobile, arrested the driver, he hastily put something into his mouth and presumably swallowed it. The police assumed that what they called a transaction was taking place and the appellant himself turned and started to walk back into his home, they stopped him and arrested him. There are some variations in the testimony about how far he was from the door of his home. And I suppose, at one point I think it said he was at the front steps. At another, he was at the side of the car anywhere from 15 to 30 feet away. In any event, he was not inside the house when arrested and I think the best way to put it was that he was on the sidewalk in front of his home.
Potter Stewart: I think there were some indications the door was opened.
Eberhard P. Deutsch: The door was presumably opened, yes.
Potter Stewart: And that he was -- had come close enough so that he had opened the door, if that was right?
Eberhard P. Deutsch: No, I don't think that's him.
Potter Stewart: I think that's a misunderstanding.
Eberhard P. Deutsch: Yes, I think he had left it open when he came out.
Potter Stewart: I see.
Eberhard P. Deutsch: I'm not positive of that. In any event, they were all arrested. Now, the police have no search warrant, they entered the home over the protest to the appellant. Advised him they were going to search the home for narcotics and advised him of his rights presumably in the usual fashion. A few minutes later, his mother and brother came home and they were also told that the house was to be searched and protested, at least the mother protested and they proceeded with the search. They also arrested the brother and in the course of the search in a closed locker in a bedroom hidden in clothing which the appellant admitted was his, they found narcotics and then the course of further search and perhaps his -- even helping them with the search is not entirely clear they found some narcotics paraphernalia in the bathroom.
Potter Stewart: The record show how many rooms this house had?
Eberhard P. Deutsch: I believe it had three rooms perhaps --
Potter Stewart: Three downstairs room?
Eberhard P. Deutsch: -- and there's no kitchen and a bathroom.
Potter Stewart: Three downstairs room?
Eberhard P. Deutsch: All one -- one floor.
Potter Stewart: All one floor. And since I've already interrupted you, they of course did not have a search warrant?
Eberhard P. Deutsch: Had none whatever.
Potter Stewart: They had an arrest warrant, did they or capias?
Eberhard P. Deutsch: They had the arrest warrants but not for this offense. They had arrest warrants under a prior charge on which they stick themselves up presumably to find him. They had no arrest warrant for this particular offense.
Potter Stewart: But you were -- we have consumed I guess in this case that this was a lawful arrest, can we?
Eberhard P. Deutsch: I think it would have to assume that although it's very difficult to say what they came up there to make a lawful arrest with arrest warrant.
Potter Stewart: Right.
Eberhard P. Deutsch: Instead of doing that, they hid themselves out and watched what they presumed what they called a transaction taking place. Then, they went into the house and on the search found the narcotics following which they charged him with possession of narcotics.
Warren E. Burger: Do you begin the complain before they began the search?
Eberhard P. Deutsch: No sir, well (Voice Overlap) as a matter of fact this Court has confined me to the matter of search and seizure. So that they charged --
Byron R. White: But in considering -- in considering the matters search and seizure it's important to know whether you -- whether we can assume that proceed on a hypothesis that this was a lawful arrest?
Eberhard P. Deutsch: I would have to assume that.
Byron R. White: Because I suppose that a search incident to an unlawful arrest can never be a reasonable search based on theoretical.
Eberhard P. Deutsch: Well, I so understand the law exactly.
Byron R. White: Whatever, yet the scope of the search.
Eberhard P. Deutsch: I would say this was a lawful arrest on the basis of the offense which they believed to have seen taking place and that thereafter they found the evidence on the basis of which they made the charge on which they had arrested him. Now, that brought us -- I suppose as I come to it on the record which is all that I have under all service. Now, he had counsel appointed for him. He moved to suppress this evidence in a separate sort of proceeding which I understand is typical in this type of case. He also objected according to the record to the introduction of the evidence on the ground that it was obtained by an unconstitutional search and seizure. He pleaded the Fourth and Fourteenth Amendment. The case was appealed to the Supreme Court of the state and they cited the statute, the arrest statute which permits the officers to take from the person arrested all weapons and incriminating articles which he may have about his person. They cited that statute in justification of the search and held that there was no violation of the cited constitutional provisions. I think that is a fair statement of the fact for the purposes of this case.
Warren E. Burger: Do you see a difference in language of that statute as between saying about his person and on his person?
Eberhard P. Deutsch: I don't know, sir.
Warren E. Burger: If it means the same thing?
Eberhard P. Deutsch: Oh! I think from practical purposes. It's --
Warren E. Burger: It doesn't mean about in the sense of lying about?
Eberhard P. Deutsch: Perhaps, but I don't think that's involved in this situation. In any event, this says in so many words from the person arrested all weapons at which he may have about his person. Now, as far as I'm concerned that means on his person, I may be stretching it. I think making a difference on a word of that sort. In any event, is going too far in statutory transaction.
Warren E. Burger: And I wondered if you were emphasizing that one?
Eberhard P. Deutsch: I do not take that position. Now, --
Thurgood Marshall: Mr. Deutsch, did he cover the point as to whose house this was?
Eberhard P. Deutsch: I don't think that's really important. He admitted the clothing was his. His mother denied it was his home.
Thurgood Marshall: See, that's what I thought.
Eberhard P. Deutsch: And they had arrested him at other premises on Pereira case but I can't quite see the relevance of that issue which did arise in the trial court. And the trial judge only said that he knew the cases of this Court where the other way but he didn't propose to follow (Voice Overlap) the law.--
Thurgood Marshall: I was thinking about the relevance. I just want to know that it's just unclear.
Eberhard P. Deutsch: I don't think it's really relevant. He admitted the clothing was his. He admitted the narcotics were taken from his clothing. He never disputed that and while his mother said he doesn't live here, it's his brother who lives here and they were both arrested, both tried. I don't think that that's really at issue at this point. Now, some 200 years ago or more, William Pitt, the Elder in the House of Commons or the Earl of Chatham said, “The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail roof, may leak, the wind may blow through it, storm and the rain may enter, but the King of England may not enter all of his forces they are not cross the threshold.” That's the -- I think the fundamental, the beginning of the principle which we not have embodied in the Fourth Amendment. And about that same era, the Lord Halifax was what was called in England one of the secretaries of state issued a general warrant for the arrest of the publishers of the -- seditious libel stated to have appeared in the North Briton. On moving about the so-called messengers, I suppose equivalent to constables learned that it was John Wilkes who was the publisher of the libel and under that same general warrant namely him or any one else Wilkes was arrested, his house was ransacked, his papers were seized. They called the blacksmiths that broke the locks and so on and that he sued the messengers and others and Lord Halifax for libel or a rather for the unlawful issuance of unlawful writ and the seizure, I should say. He recovered 1000 pounds against Lord Halifax, a lesser amounts against the others in a famous opinion written at that time by Lord Chief Justice Pratt and followed very shortly within the same few years, same decade by the famous case of John Entick who had been arrested and his papers all seized under a somewhat similar warrant except that it main him. It was seditious libel in the British Freeholder and other publication. And in that case, Lord Camden held that if this practice which had originated in the Star Chamber should be sanctioned, “the secret cabinets and bureaus of every subject in this kingdom will be thrown open to the search and inspection whenever the secretary of state shall see fit to charge or even suspect a person. And this power so assumed there's an execution on all of party's papers, his house, his rifle; his most valuable papers are taken out and so on. And then may in his constitutional history of England that antique cases are uncovering perhaps 100 pages of fine print. It's a long-winded thing but may in this constitutional history of England sums it up that with the unanimous concurrence of Lord Mansfield and the other judges of the court, this eminent magistrate now finally condemned this dangerous and unconstitutional practice. Now very interestingly, just before those two famous English cases arose, a situation arose in the Massachusetts Bay Colony. The British ministry set orders to issue general warrants which they were called writs of assistance to search for merchandise on which the duties imposed by parliament and not been paid. There were no names, there were no places, they were simply suppose to go out and it gave them the right presumably to go into any warehouse shop or other place to search for these payments. James Otis was the Attorney General of the Colony of Massachusetts under crown appointment at that time. He refused to support the writs, resigned his office, took employment on the other side without fee and fought the issuance of these writs from the Superior Court of Massachusetts, and the case was reported actually by John Adams whose notes of the case are published. He said in the first instance that the court expressed great doubts of the legality of such a writ and of the authority of the court to grant it. And Otis said in his argument, “the writ prayed for in this petition, being general, is illegal. It is a power that places the liberty of every man in the hands of every petty officer. ”Not more than one instance he went on and he talked about the case in the Star Chamber. Now, these writs were never issued but at the conclusion of his notes, John Adams said, American independence was then and there born.” At the end of his argument, I think this is very significant language, Otis said that special writs only may be granted on oath and probable suspicion. The acts of William at end are confined to this sense that an officer should show probable ground, should take his oath of it, should do this before a magistrate and that such magistrate if he think proper should issue a special warrant to search the place. That language is almost copied for about 25 years later into the Fourth Amendment, it's perfectly astounding. Now closely, that language that he used in the argument as reported by John Adams tracks or vice versa the language of the Fourth Amendment to the Constitution of the United States.Now, if this Court --
Warren E. Burger: May I ask you Mr. Mr. Deutsch that relates that to the present situation. I take it from what you have said that probably would agree that the information which the police end up at the time they went in who made the search and have presented that to the magistrate on oath they could've got a warrant?
Eberhard P. Deutsch: Yes, sir. The state makes the contention that this was one of those hot pursuit cases that it would have to be done immediately and if they have tried to go for a warrant while the evidence would've disappeared as its usual and that sort of thing they say, they flashed it down the toilet and all that sort of thing. And the suspect --
Warren E. Burger: I suppose you agree with those practicalities too?
Eberhard P. Deutsch: Pardon?
Warren E. Burger: I suppose you'd agree with those practicalities?
Eberhard P. Deutsch: Well, not in this case but I do it in principle of courts of that type of things.
Warren E. Burger: But you do agree that they could have got a warrant?
Eberhard P. Deutsch: Oh! I don't think there's any question about that. I think that there were three officers; two of them could have stayed there while the other one get a warrant.
Warren E. Burger: Now, if they stayed there, could -- they don't replace this man under arrest?
Eberhard P. Deutsch: Yes, sir.
Warren E. Burger: It placed his brother under arrest a few moments later?
Eberhard P. Deutsch: And the driver of the car.
Warren E. Burger: Could they then have --
Eberhard P. Deutsch: The only one there was the mother. They'd have no trouble watching the place.
Warren E. Burger: They could make them sit on a chair under arrest and wait until the warrant got back?
Eberhard P. Deutsch: I think they could have.
Warren E. Burger: Without invading their privacy?
Eberhard P. Deutsch: I think so, either without unlawfully invading their privacy under all the circumstances. I don't think that would've been unlawful invasion to wait there and watch the --
Warren E. Burger: Well, do you think they were lawfully in the house then?
Eberhard P. Deutsch: I can't say that, no sir. No sir, they would -- they might have to wait outside but if he had done it on the basis of a warrant to be obtained, he might have gone in to prevent that, yes sir. I think lawfully.
Warren E. Burger: Well, then he could not on my -- the hypothesis I gave you, you would not agree with, he could've made the two brothers sit down in chairs and wait the return of the warrant, they'd have to take him out on the porch or outside?
Eberhard P. Deutsch: I think what he could've done before they entered with the three officers. Could have sent -- one of them could have gone back for a warrant and the other two could then said, now while we wait for the warrant, we'll come in here we will not conduct to search, we'll simply sit here and make sure that no evidence that might be here in this regard would disappear. Now, there is another principle involved, there adds a question as to whether you can search just generally in the hope of finding evidence even under a search warrant. I don't have that situation, I'm not prepared to discuss it but I know there is the question that even with the search warrant they couldn't necessarily have gone into the place and search and said, we hope we are going to find some evidence on which we can convict you on this arrest that we made on a suspicion that you have something hidden in this house which are not allowed to have. But that's another question.
Warren E. Burger: What -- I thought you conceded they could get a warrant, what could they get a warrant for?
Eberhard P. Deutsch: Well, that's -- I mean it's another question, it's a hypothetical question. They go down and say, we saw what we believe to be a transaction. They would say that the judge presumably under oath in narcotics transaction. We believe there are narcotics hidden in this house. We asked for a warrant on basis of which to search for these narcotics under the circumstances. Now, that would bring up a set of facts that does not exist in here that I can't possibly -- I can't go into all the tangential aspects which may arise under that type of hypothesis.
Warren E. Burger: Part of your case is that they had an alternative namely to get a warrant and I'm exploring your alternative to which (Voice Overlap).
Eberhard P. Deutsch: Well, I understand that of course is in the picture but the truth of the matter is that it didn't happen and whether they could have done it or not, it is my position that they have no right to do what they did.
Potter Stewart: What if there is someone else in the house then the police -- assume the police might have gotten the warrant. Assume they had probable cause to get a warrant you could leave the police in the house and do what?
Eberhard P. Deutsch: Simply sit down and wait for the warrant to come by, to make sure --
Potter Stewart: Well, what if there's another person in the house and the other person is wandering, can you follow that person around all over the house to make sure he doesn't destroy evidence?
Eberhard P. Deutsch: Of course, I can't quite conceive of that. I think the police said (Voice Overlap).
Potter Stewart: Well, I would suppose that would be the most normal thing in the world if a confederate or member of the family or something was in the house and the police is waiting there to keep evidence from being destroyed. I suppose if they are going to achieve that, they would have to follow the person around all over the house.
Eberhard P. Deutsch: Either that or ask the person to stay there or person said you go to the devil, I won't do it. I don't know what would happen on that case.
Potter Stewart: Well, where is your privacy going then if you leave the policeman there and he follows you around all over?(Voice Overlap)
Byron R. White: How long does it take to get a warrant in your state?
Eberhard P. Deutsch: I have no idea but I should (Voice Overlap).
Potter Stewart: Five or six hours or two hours or two days or what?
Eberhard P. Deutsch: I would imagine maybe the driving from this area would take 15 to 20 minutes to go to a court house and 15-20 minutes, let's say within an hour you can have it, but not certain.
Potter Stewart: Do you mean if you get it typed -- the warrant typed up and affidavit drafted and --
Eberhard P. Deutsch: You'll have a tremendous advantage over me, sir. I've never tried a criminal case in my life and I don't know. I just imagine that it is a practical matter that it take an hour or so. Now, I could be very well be wrong (Voice Overlap).
Potter Stewart: What time of the day or night?
Eberhard P. Deutsch: I've never seen a search warrant.
Potter Stewart: Excuse me.
Eberhard P. Deutsch: What?
Potter Stewart: I didn't mean to interrupt you.
Eberhard P. Deutsch: No. No.
Potter Stewart: What time of the day or night would this occur?
Eberhard P. Deutsch: It was in broad day light around noon.
Potter Stewart: On a week day?
Eberhard P. Deutsch: Oh! Yes. As this case has said on the course of its opinion especially the recent ones that the law on this subject has moved from side to side any number of times, Mr. Justice White, I think in the last opinion said five times and there isn't any question about it at in my reading of all of this law. I think there is a threat of an effort to live up to the constitutional history to which I have referred. I think it is well summed up in the dissenting opinion of Mr. Justice Murphy in the Harris case which has since been overruled and also in his majority opinion in the Trubiano (ph) case involving the steals. Of course I am not here to argue the question of retroactivity of the Chimel case decided some later 10 months ago. I don't think it's necessary to do so. I know that Mr. Justice Harlan's statement and one of the other cases that it should be applied the case is still subject to direct review by this Court but I have not approached the matter from that point of view. I might refer for a moment to the case of James versus Louisiana in which a man was arrested two blocks from his house, and this Court held in a unanimous decision per curiam that his home could not be searched under those circumstances without a warrant. I might mention --
Byron R. White: Do you think this case just turns out to James, its good?
Eberhard P. Deutsch: No, I'd go further Shipley which is the one you decided on the same day as the Chimel case.
Byron R. White: Do you think they --
Eberhard P. Deutsch: I just can't see any difference and the only reason I've gone – I'm putting my case on the basis on which I have especially on this oral argument is that I can't understand why you would ask for a hearing.
Byron R. White: And why we didn't do this one summarily too?
Eberhard P. Deutsch: Well, I go further than that, exactly the same as the Chimel case. Its open it involves a similar situation except it goes back one step because he wasn't in the home on arrest.
Byron R. White: Well, that -- I mean then you'll have to assume that Chimel was in retroactive but the other case decided with Chimel was one Shipley?
Eberhard P. Deutsch: Shipley and Van Cleef. But Shipley is very closely on point because he was arrested that he was getting out of his automobile near his home.
Byron R. White: In Shipley arrest, he simply went outside and that makes it in the Chimel action?
Eberhard P. Deutsch: No, it was decided on law prior to the Chimel.
Byron R. White: The Chimel law?
Eberhard P. Deutsch: Chimel or Chimel.
Byron R. White: So, it's in the line of James?
Eberhard P. Deutsch: Exactly and I just want to mention if I may as a little interesting sidelight that the James case I have talked about James Otis who was the father of the Fourth Amendment. This man's name was Otis, James. Now, in Shipley, very frankly when this Court said not referring to the Chimel case at all, the Constitution has never been construed and that statement I confine -- I cannot find it any exception. I can't find that that's wrong. By this Court to claim to allow the police in the absence of an emergency to arrest the person outside his home and then take him inside for the purpose of conducting a warrantless search on the contrary it has always been assumed that once house cannot lawfully be search without a search warrant except as an incident to a lawful arrest therein. Now, that's a per curiam decision. The statement as I said, the position of the state in this Court at any rate is that this was an effect a hot pursuit, and that this wasn't really a general search that it last to only two or three minutes. Now, I dispute that as a matter of fact on the record and I'll take only a moment to mention that. The brief of the state says that approximately a minute or two no more than three minutes -- oh, I'm sorry that's the transcript. Within minutes says the brief after entering the house, the officers found the heroin and Dilaudid and so on. Now, what and the reference there is to page 12 of the transcript, the appendix which says, “that approximately a minute or two no more than three minutes Officer Laumann had walked into the back bedroom and while I was standing in the front room, James Vale and his mother came into the front room of the house. At this time, I identified myself to them and told them Donald Vale was under arrest and we were going to conduct a search of the house.” That's where the two or three minutes came in. He told them they were going to search. We simply submit and may it please the Court, that appellant was convicted on the basis of evidence obtained in violation of the Fourth and Fourteenth Amendment. That conviction was affirmed actually here be reversed.
Warren E. Burger: Thank you Mr. Deutsch.
Byron R. White: Mr. Deutsch, may I ask you a moment?
Eberhard P. Deutsch: Certainly.
Byron R. White: I know that the Court suppose upon the jurisdiction in this case rather than noting --
Eberhard P. Deutsch: Yes, sir.
Byron R. White: If your fictional question here is there is only a question of whether to make an appeal or search?
Eberhard P. Deutsch: Well, that could be the only question actually. The state filed a motion to dismiss for one of jurisdiction and the Court postponed that to the merit. The state has not raised the question of jurisdiction in its brief to this Court.
Byron R. White: Well, what was the question raised in motion?
Eberhard P. Deutsch: You see the State Supreme Court cited the statute permitting the search on making arrest and then held not very specifically or clearly that there was nothing violated of the Constitution in the arrest made under that -- and the search made under that statute which I construe to mean that they held that the statute as so applied does not violate the Fourth and Fourteenth Amendment. If so, this is a good appeal if not it belongs here on cert in any event. That would be my construction. They held the statute not to be violated. The statute is so applied not to be violated with the Fourth and Fourteenth Amendment.
Warren E. Burger: Thank you. Mrs. Korns.
Louise Korns: Mr. Chief Justice and may it please the Court. The State of Louisiana certainly agrees with everything that Mr. Deutsch has said about the inviolability of homes and the constitutional prohibition against the search of a house without a warrant. However, as the State of Louisiana sees this case, its issue is much narrow and sort of confined the facts of this case. This Court has held continually and even as later Chimel that --
Byron R. White: Do you have trouble to that? It might interest you that counsel for that effect is here a while ago and he told us that this can have Chimel?
Louise Korns: Chimel? [Laughter Attempt] I think even as later as laid as young as decision in Chimel, it was taken to be settled jurisprudence of this Court that following a valid arrest, an incidental search can be made. Now, do I understand, has the State of Louisiana certainly argues that a valid arrest without warrant was made in this case or at the right at the front door of the house -- front steps of the house. We concede that it was not in the house, it was -- Vale was returning to his house. Now, if a valid arrest was made, an incidental search contemporaneous with this arrest under the jurisprudence of this Court on incidental search was permissible. And as the State of Louisiana sees that the only issue before this Court is whether the scope of that incidental search was also permissible. In other words, --
Thurgood Marshall: What were you searching for?
Louise Korns: The police officers testified Mr. Justice Marshall that they were sure that there were narcotics in that house because as they watched the house to be sure Donald Vale was there before going forward with these prior arrest warrants they had that what they saw convinced them that Donald Vale had gone back into that house to get the narcotics which he brought out and sold to Saucier --
Thurgood Marshall: Well, they weren't looking for weapons, were they?
Louise Korns: No sir, they were looking for narcotics there's no doubt about it.
Thurgood Marshall: They weren't looking for anything that might injure them, were they?
Louise Korns: No, sir. They were looking, the State of Louisiana concedes because it's from the record, the State of Louisiana has to concede. The police officers testified that they were sure there were narcotics in that house from which James Vale was -- Donald Vale had going in. They were sure that was where his supply was that he would come out of that house and sell to the people who would come up to the house like Saucier in instance case. So they -- when they saw him go back in the house, come back in out without within minutes, looked up and down the street as he went down the steps and put his head in the car, and what they were convinced was a narcotic sale. And then when they approached the house, an Saucier swallowed the narcotics and they frisked down Saucier and Donald Vale and found nothing on them, they testified that they were convinced that the source of those narcotics were in that house. So, there is no doubt about the issue in this case as the State of Louisiana sees it is a very narrow one was the scope of their search incident to Donald Vale's legal arrest constitutionally permissible in scope. That is there's no doubt about it that under the jurisprudence of this Court, they had the right following this valid arrest without warrant and from the house to frisked down Saucier and Vale. No doubt about that under the settled decisions of this Court. Now, the State of Louisiana and under the Chimel decision, the incidental arrest has been confined to the area within which the accused could reach. Well, there's no doubt about it that the search in the instant case went beyond the area into which Donald Vale could've reach because it was inside the house. Now, though it's Louisiana's position that this was an emergency situation and that it was impossible to get a search warrant -- impossible to get a search warrant in advance because they didn't know that they were going to be confronted with this emergency sale which took place before their eyes. They thought they were just going there to arrest this man on prior narcotics charges. So, they couldn't have brought along a search warrant, there's no doubt about that. Is it time for the Court to recess, Your Honors?
Warren E. Burger: Not quite. Not quite, you got two more minutes.
Louise Korns: Well, they couldn't have gotten a search warrant in advance on going into this house.
Potter Stewart: How long that they have been stick out there?
Louise Korns: Apparently, about 15 minutes Mr. Justice Stewart. The reason they were watching this house was that Donald Vale operated from three or four addresses.
Potter Stewart: Yes.
Louise Korns: They had arrested him at other addresses previously and they just testified that they -- before approaching the house and letting James Vale, his brother and Mrs. Vale his mother know that they were looking for Donald with an arrest warrant. They didn't want him to be elated to this fact. And therefore, they wanted to be -- they have gotten a tip that he was selling from this address at that day or that he was at this address that day, let's say.
Potter Stewart: Well, now which --
Louise Korns: That they could pick him up at this address that day.
Potter Stewart: Does the record show that they have information that come to him indicated that he was selling on that address on that day?
Louise Korns: No. No, that's a mistake. They just said they have been told what he was at this address and they testified that they took up their position to watch because they want to be sure he was there before they -- they wanted to see him when they approached in to serve the arrest warrants because they didn't want him to doth again and because this was an alias capias that issued for him when he had failed to appeal. So, they watched actually I was completely wrong when I said, they thought he was selling and they did. They watched to be able to serve the arrest warrant. I see that my --
Warren E. Burger: I think we'll suspend until morning. Sorry to hold you over until tomorrow Mr. Deutsch and Mrs. Korns.
Louise Korns: Thank you, Your Honor.