Ken Strutin ()
Prison as much as poverty creates technological inequality, permanently keeping the marginalized out-of-step with the wizardry of modern legal practice. For lawyers and government entities enjoy the benefits of Westlaw and Lexis, PACER and the Internet, smart gadgets and Wi-Fi. Meanwhile, confinement conceals an information-rich society from people seeking justice without counsel.
Digital-born information outstrips paper; big data can only be read by smart machines. And technology consumes more of the knowledge landscape than literacy and education. See Ahmed Alkhateeb, “Science Has Outgrown the Human Mind and Its Limited Capacities,” Aeon, April 24, 2017.
The largest assemblages of learning are only accessible electronically. See “OCLC and Wikipedia Library Link Citations to Millions of Library Materials,” OCLC Press Release, May 11, 2017. And exclusively to those with the technology, skills and finances to connect to them.
Acres of free legal and scientific scholarship are online for the asking, e.g., Caselaw Access Project, LawArXiv, Social Science Research Network and bepress Legal Repository. Not to mention law-based search tools, such as Google Scholar and Casetext. Free for the free, that is.
With a computer and a credit card, a consumer can find almost any information. But at the fence line of poverty, in a state where the dollar buys 86 cents, the pay wall for the incarcerated is insurmountable. See Steven Peters, “The Value of a Dollar in Each State,” 24/7 Wall St., May 18, 2017. And when the dollar declines, poverty is magnified.
Yet, the information-rich get smarter. New on the block is CARA (Case Analysis Research Assistant), an electronic law clerk that reads briefs and finds relevant decisions. See Robert Ambrogi, “Upsetting the Applecart of Legal Research,” Above the Law, May 15, 2017.
And chomping at the bit are supercomputers eager to make partner. See Karen Turner, “Meet ‘Ross,’ the Newly Hired Legal Robot,” Wash. Post, May 16, 2016.
Incarceration, however, separates people from the information world. So, for them, the distant terminus of equal justice is in technology.
The ABA’s Model Rule of Professional Conduct 1.1, speaking to legal competence in Comment 8 noted:
To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology … .
Without “relevant technology,” pro se prisoners are per se ineffective.
The data that makes exoneration—indeed, any measure of justice—possible is often costly and hosted by the state. A problem put in sharp relief by People v. Evans, 141 Misc. 2d 781, 783-784 (Sup. Ct. NY County 1988):
Where the government holds a monopoly of expertise on a matter that reasonably bears on a defense in a criminal action, due process requires that a defendant be afforded access to this expertise. … . Whether or not he has funds to hire an expert, if the only source of expertise that may reasonably be necessary to his defense resides with the government, the government must give him access. This is the essence of fairness. Due process mandates no less.
Today, science is intertwined with information science; expertise with computerese in an unending horizon of cognitive technologies.
Equality of access to expertise now includes the data hosted by computers, see Ken Strutin, “Databases, E-Discovery, and Criminal Law,” 15 Rich. J.L. & Tech. 6 (2009), and the logics of their data processors, see Christian Chessman, “‘Source’ of Error: Computer Code, Criminal Defendants, and the Constitution”, 105 Cal. L. Rev. 179 (2017).
Technology is only one of the inequalities inherent in prisoner self-representation, which includes the cognitive, the financial, and the dignitary. See Ken Strutin, “Litigating from the Prison of the Mind: A Cognitive Right to Post-Conviction Counsel,” 14 Cardozo Pub. L. Pol’y & Ethics J. 343 (2016).
Lawyerless Versus Paperless
Computerization is changing the administration of justice with new modalities.
Mail has become email; phones, smartphones; typewriters, touch screens. Law libraries have relocated to the Internet, case files to online dockets. And mechanical witnesses testify for the state in the cypher language of algorthims. See Andrea L. Roth, “Machine Testimony,” 126 Yale L.J. 1972 (2017).
Legal professionals benefit from the magics of technologies; the unlawyered and the incarcerated do not. Any judge or law clerk tasked with reviewing pro se petitions can testify to the difference. See Ken Strutin, “Pleading Dignity” Alchemizing Form Into Substance,” N.Y.L.J., May 17, 2016, at 5.
Online databases, smart devices, electronic dockets are winnowing away paper filings and book research; thereby, silencing the voices of the information poor and unrepresented. So, justice is a lopsided contest between the lawyerless and the paperless.
Attorneys are defined by their relationship with legal knowledge; prisoners by their distance from it. In the days of John West and Frank Shepard, there was some parity to be found in paperbound research tools and classification systems. But this has not been true for decades.
Data sifted from millions of electronic sources can create new semantic connections exclusive to online research. See Don R. Swanson, “Undiscovered Public Knowledge,” 56 Libr. Q. 103 (1986). On the other hand, a human being who dwells in a cage cannot meaningfully access bodies of legal and general knowledge without the mediation of experts and technology.
Computers are shaping the legal mind of tomorrow. But there is no conception of the incarcerated, working without technology, that can equate them with digitally endowed lawyers and judges.
What database custodian is going to toil over knotty queries and print out costly reams of spreadsheets for a penniless inmate? Without membership in the Information Society, people become irrelevant, their search for knowledge hopeless.
Bounds v. Smith, 430 U.S. 817 (1977) spoke of access to paper libraries; but libraries have evolved into technology, lawyering into artificial intelligence. So, for “access to the courts” to be “meaningful,” it must include rapport with technology, expressed by an irreducible constitutional formula, the “right to counsel.”