A Tale of Two Technologies: Why “digital” doesn’t always mean “better” for prison law libraries

Electronic law libraries are not always improvements for incarcerated people, particularly when prisons turn to them as a way of cutting costs.

by Stephen Raher and Andrea Fenster, October 28, 2020

Prisons and jails are increasingly turning to electronic law libraries, moving from traditional book collections to databases accessed via shared kiosks or tablets. As of 2018, 88% of states have transitioned to electronic-only legal research tools. And in 2020, with a pandemic making in-person gatherings risky, even more prisons and jails may be moving to make services like law libraries digital.

These legal resources are essential for people behind bars, who have a constitutional right to access the courts, which includes the right to assistance in preparing and presenting a valid legal claim.¹ When prisons provide this assistance in the form of an electronic law library, it’s important to understand how and why these systems are put in place.

In particular, there’s a world of difference between a prison system that designs a digital library with the needs of incarcerated people in mind, compared to one that digitizes its library primarily to cut the costs of running a physical library. To illustrate this difference, consider the two markedly different approaches that Oregon and South Dakota took when implementing an electronic law library system. While neither state’s program is perfect, both provide valuable lessons in the importance of system design.

Oregon

Oregon’s new program is unique because of the way it was designed. It originated with State Law Librarian Cathryn Bowie, who noticed a substantial number of requests for materials that already existed but which were inaccessible to those in the state prison system. While the resulting online system is expected to save the state money over time, it was designed with usability, not budget cutting, as the primary focus. Oregon’s system is an online legal research system provided by a vendor called Fastcase, with external links disabled. Oregon’s system for legal research has several key features:

• Planning process. Planning for the Oregon project started with librarian Bowie visiting every prison in the state and asking incarcerated people about their research needs. Although the content is provided by a vendor (Fastcase), the system was designed in-house, as a collaboration between the state law library and the Department of Corrections.
• Cross-agency. The research platform is available not only to adults in the state prison system, but also to patients in the Oregon State Hospital and juveniles confined in the Oregon Youth Authority.
• Expansion plans. According to Bowie, the project’s designers are not resting on their laurels. Having established the basic functionality and security of the research platform, the designers are evaluating future enhancements (again, driven by user needs). For example, the research platform is now available on desktop computers in facility libraries, but project managers are working on ways to make the resource more readily available to people in segregation or who otherwise have difficulty accessing the library. Other features that could be in the works in the future include educational programs, an expanded catalogue of publications, and electronic court filing capabilities.
• Ongoing training. Bowie continues to tour the state, training incarcerated people on the new electronic legal research system. Unlike South Dakota where training is conducted by a marketing employee of the contractor, Oregon’s training is conducted by the person who is in charge of the program: thus user feedback and suggestions can go straight to the program manager, without having to filter through layers of corporate bureaucracy.

No system is perfect, and surely, Oregon’s law library system has shortcomings. Still, the very fact that it is designed and managed with the specific needs of incarcerated users in mind is a step in the right direction.

South Dakota

On the other hand, South Dakota’s law library system design is largely a result of cost cutting efforts by prison administrators. Prior to 2017, South Dakota provided legal assistance to people in its state prison system via contract attorneys and paralegals who would visit facilities and provide one-on-one assistance to people who needed help. However, in October 2017, the state eliminated this system and replaced it with a computer research program provided by Lexis-Nexis. Users are expected to access this database via computer tablets issued by communications company Global Tel*Link (“GTL”).

The switch saved the state over $80,000 on its regular contracting, not to mention savings on other costs, like printed law books.² Yet, the cost savings is only part of the story:

• Technical failures. When the tablets were rolled out, many users reported persistent connection problems that prevented them from actually doing legal research. Managers eventually concluded that the system’s wireless signals could not travel through the thick reinforced concrete that was used in many facilities, something that apparently was not tested prior to the rollout of the new system.
• Economic unfairness. Although people in South Dakota receive a tablet for free, woe be to those who experience malfunctions. GTL’s corporate representative did not even know if there was technical assistance for people whose tablets fail through no fault of their own. However, if an “investigation” determines that the user is responsible for damage, then they must pay $199 for a replacement. GTL buys the tablets for $80 each.
• Technology instead of help. The Lexis app that runs on the GTL tablets is the same software that legal professionals use (Lexis Advance), with external links disabled. On the one hand, this is helpful since plenty of training materials for Lexis Advance already exist. On the other hand, it’s a vivid illustration of the folly of not providing regular in-person assistance to incarcerated people who need legal help. Law schools and law firms spend considerable resources training lawyers (or soon-to-be lawyers) how to navigate Lexis’s dense collection of information. It is willful indifference to simply give an app to a population of non-lawyers with below-average levels of formal education and unfamiliarity with technology, and expect them to perform legal research. Even GTL’s corporate representative admitted that the tablets are used by “individuals who, in many instances…have no familiarity with tablet technology.” Lexis did provide some on-site training when the program first started, but now only offers live training upon the DOC’s request, via a Missouri-based employee who is responsible for numerous states. It’s unclear whether the DOC regularly schedules such trainings, but it is clear that user education is an afterthought.
• Lack of detailed planning. Incarcerated people sued South Dakota in 1998, alleging constitutional violations of their right to access the courts. When the state settled those lawsuits, it agreed to maintain specified legal resources at all state prisons. It would be logical that the new computerized research system would be designed to honor the state’s obligations under the settlement agreement, but Lexis-Nexis’s corporate representative testified that he was unaware of the settlement or its contents.

Conclusion

South Dakota and Oregon illustrate two radically different approaches states can take to updating their prison law libraries: Take the time to identify people’s needs, and then work collaboratively to continue to train users and modify the systems as necessary; or offload the burden of providing a law library onto a private company, who in turn throws a digital product at incarcerated people and wishes them the best. Unfortunately, by now, many other prison systems have likely taken South Dakota’s path. But with incarcerated people’s access to the courts on the line, states need to focus not on cost-cutting, but on usability.

A Note on Methodology

This piece was written using a combination of sources. The information on Oregon’s law library largely came from an interview on the radio show Think Out Loud with librarian Bowie and an interview by the author. For South Dakota, we drew on two depositions from a 2018 class action case, Brakeall v. Kaemingk. The information used in this briefing can be found in the deposition of Brian Peters at pages 20-35, and the deposition of Anders Ganten at pages 21-34.