In chapter 3 prison offences were analyzed in considered detail, and in chapter 4 the punishments therefor were similarly discussed. In chapter 6, hearing procedures were placed under scrutiny. The past three chapters have dealt with the relationship of the law to practices and procedures for determining offences. However, throughout all of this, little has been said of what a prisoner may do if he fells his alleged offence was unjustly determined, his award unduly severe, or the conditions of his punishment are oppressive. What procedures may he invoke? To whom may he turn?
The answers are not simple and are complicated by the realities of prison life which fall particularly hard upon the dull or unaggressive. The condition of the punishments themselves may limit the prisoner's alternative. Furthermore, prison remedies are not always well defined. In order to right some wrong, the aggrieved person may, in effect, need to create some means of getting his case before an administrative, judicial, or other body, or simply into public view.
The creative advocacy needed will often be far beyond the capability of the affected inmate. He may need to pursue a remedy. However, he may be incapable of pursuing the remedy because ha need assistance. This circularity is not easy for the prisoner to sort out, nor can the text writer determined the order of priority with great certainly. The interdependence of access to remedial sources and the remedies themselves will be seen throughout this chapter.
The issues involved in prisoners' access to court and counsel have been subject to much more judicial interpretation in the United States than Britain. There can be little doubt but the American prisoners have rights of access to the courts which are founded upon due process,1 the right to petition the government for redress of grievances,2 and, to some extent, equal protection of the laws.3 Nevertheless, the law applicable to prisoners' access is for relatively recent evolution.
The first major case dealing with prisoners' access to courts and counsel was not decided by the United States Supreme Court until 1941. In that case, Ex parte Hull,4 the validity of a prison regulation limiting access to court was brought squarely into focus. A prisoner in the Michigan State Prison had prepared a writ of habeas corpus. He asked the prison authorities to notarize and mail it. When permission was refused, he attempted to give the documents to his father for mailing, guards confiscated the materials. Nevertheless, his father did manage to get the case into court as he "agent." In his return to the Supreme Court the prison warden stated that he had published a regulation providing that: