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The Right to Counsel for Prisoners & Parolees
Many of our readers are familiar with the Miranda admonition, which is recited on television and in movies, in which a police officer will advise a suspect that he or she has the right to remain silent and the right to an attorney. Many of our readers are also familiar with public defenders and how a judge will appoint one to represent someone facing criminal charges that could result in jail or prison time.
However, after one is convicted, is there still a right to a government-appointed attorney free of charge?
The answer is yes and no. Under the U.S. Constitution’s Fourteenth Amendment, people in prison and on parole generally do not have a due process right to assistance from an attorney. Lassiter v. Department of Social Services (1982) 452 U.S. 17, 101 S. Ct. 2153; 68 L. Ed. 2d 640 (presumption that due process does not require counsel unless physical freedom is at risk, though presumption might be overcome if case involves extremely important interest).
However, in some situations, people in prison or on parole do have a right to be appointed an attorney under either federal or state law if they are “indigent” (do not have enough money to hire an attorney). Matters for which people have the right to an appointed attorney include:
- Criminal trials, plea bargains, and sentencing; recall of sentence and re-sentencing hearings; and criminal direct appeals (Gideon v. Wainwright (1963) 372 U.S. 335, 83 S. Ct. 792; 9 L. Ed. 2d 799; Douglas v. California (1963) 372 U.S. 353, 83 S. Ct. 814; 9 L. Ed. 811);
- Parole suitability hearings for people serving indeterminate life sentences, as well as youth offender parole hearings, elderly parole hearings, and medical parole hearings (Penal Code §§ 3041.5-3041.7; Penal Code § 3051; Penal Code § 3055; Penal Code § 3550(f); 15 CCR § 2256; BPH, Memorandum: Elderly Parole Program (June 16, 2014); BPH, Memorandum: Expanded Medical Parole (June 16, 2014));
- Parole or post-release community supervision (PRCS) revocation hearings (Penal Code § 1203.2(b)(2));
- Mentally Disordered Offender (MDO) and Sexually Violent Predator (SVP) commitment trials (Penal Code § 2966(b); Welfare & Institutions Code § 6603(a));
- State court habeas corpus proceedings, but only if and only after the court issues an order to show cause (California Rules of Court, rule 4.551(c)); and
- actions to end parental rights or make a child a dependent of the court (an incarcerated parent also has the right to attend the hearing, unless they are on death row) (Penal Code § 2625; Welfare & Institutions Code § 366.26(f)(2). See also Jesusa V. (2014) 32 Cal. 4th 588, 10 Cal. Rptr. 3d 205 (right to attend hearing, though violation may sometimes be a harmless error); In re M.M. (2015) 236 Cal. App. 4th 955, 187 Cal. Rptr. 3d 19. Also, for any other action in which an incarcerated person’s parental rights are at stake, the person may ask the court to exercise its discretion to order the person’s transportation to court. Penal Code § 2625(e). An incarcerated parent who is notified of a legal action involving their parental rights should send a letter or motion to the court declaring that they have little or no money, requesting appointment of counsel, and asking to be present at any hearings).
For some legal matters, a court has a duty to assure that incarcerated people have meaningful access to the courts or a meaningful opportunity to be heard – but the court does not necessarily have to appoint counsel to fulfill this duty.
For example, when an indigent person in prison files a civil action involving personal or property interests, the trial court can choose to ensure meaningful access in a number of ways. One way is to appoint counsel for the indigent person; however, the court can choose instead to defer (postpone) the action until the person is released from prison, use depositions instead of personal appearances, hold the trial in prison, conduct hearings by telephone or video, or order written discovery.
The court has discretion to decide which of these options, if any, are appropriate. Wantuch v. Davis (1995) 32 Cal. App.4th 786, 792, 39 Cal. Rptr.2d 47; Apollo v. Gyaami (2008) 167 Cal. App. 4th 1468, 1482-1485, 85 Cal. Rptr. 3d 127 (unrepresented plaintiff in civil case was denied meaningful access to the courts where he vigorously pursued his claim to the best of his ability and made reasonable though unsuccessful attempts at effecting service, filing timely motions, and appearing at hearings); Jameson v. Desta (2009) 179 Cal. App.4th 672, 682 684, 101 Cal. Rptr. 3d 345 (court abused its discretion in a state tort case when it authorized an incarcerated person to appear telephonically at a case management conference, then dismissed the case because the person did not appear, even though the person had informed the court that prison staff were not allowing him to appear by telephone); but see Simmons v. Sacramento County Superior Court (9th Cir. 2003) 318 F. 3d 1156, 1161 (a person incarcerated in jail during a civil trial in which he was the plaintiff was not denied his constitutional right to access to the courts when the court denied his request for transport to the trial while the person was represented by counsel).
Likewise, if an indigent person in prison is sued in a civil action that threatens their property rights or other fundamental rights, the court must determine what measures are needed to protect the person’s rights. One option is to order a continuance (postponement) of the hearing until the person is either released from prison or appointed an attorney. Yarbrough v. Superior Court (1985) 39 Cal. 3d 197, 216 Cal. Rptr. 425; Payne v. Superior Court (1976) 17 Cal. 3d 908, 132 Cal. Rptr. 405.
While this article appears on our website, it would be a mistake to attribute its contents to Greg Hill & Associates. Instead, credit is due to the Prison Law Office in Folsom, California, which created California Prison and Parole Law Handbook, a great treatise. We read this wonderful book and have used much of its contents in this article. Thank you, Prison Law Office.
