1. Individuals subjected to involuntary commitment proceedings in Illinois can, if they are financially eligible, obtain the services of a public defender. The same is true for individuals charged with crime. In addition, those convicted and sentenced to the state’s penitentiaries have the right to a first appeal and representation by the state’s appellate defender office. But these services are only a drop in the bucket, terminating where many other problems and needs begin. There exists a patchwork of legal aid programs for these postcommitment and postappellate problems. For mental patients in institutions in the Chicago area, the Legal Assistance Foundations of Cook County and Chicago are the main resource. For prisoners in institutions in the northern portion of Illinois, there is the Prisoners Legal Assistance Project. Limited and uncertain funding, however, combine to make it inevitable that only a small portion of the problems and needs can be addressed. What is currently available and delivered to the institutionalized is nowhere near adequate.Google Scholar

2. The study is that of the “Legal Needs of the Public” by the Special Committee to Survey Legal Needs of the American Bar Association in collaboration with the American Bar Foundation (Curran, Barbara A. & Spalding, Francis O.). “Group quarters as well as institutions are normally excluded from household-based surveys.” (See Curran, Barbara A., The Legal Needs of the Public: The Final Report of a National Survey 33, 49 n.81 (Chicago: American Bar Foundation, 1977)).Google Scholar

3. Doing the interviews in the library may at first glance suggest the possibility of “sample bias.” This created no problem, however, for the following reasons: (1) Even if the procedure resulted in excluding nonreaders, it would be far-fetched to suggest—particularly where total nonreaders are only a small group—that this would affect the kind of qualitative information and understanding sought in the study through a limited number of case studies. (2) The procedures in fact did not necessarily work to exclude nonreaders, because: (a) the inmate population was notified by way of the bulletin boards and by word of mouth that I was available for interviews at the library; and (b) even among those who frequented the library for the usual reasons there may well be nonreaders—for many inmates go there simply to socialize, to look at “picture” magazines, to get help from jailhouse “lawyers” or other literature fellow inmates, or for various other nonreading purposes.Google Scholar

4. In Illinois today, 70 percent of all admissions are “voluntary.” See Illinois Department of Mental Health and Developmental Disabilities, Fiscal Year 1976, Mental Health Statistics 47. For an article questioning the voluntariness of voluntary admissions, see Gilboy, Janet A. & Schmidt, John R., “Voluntary” Hospitalization of the Mentally 111, 66 Nw. U.L. Rev. 429 (1971).Google Scholar

5. In fact, much general public criticism centers on hospitals’ discharging patients too soon. See, e.g., Shwed, Harvey J., Protecting the Rights of the Mentally 111, 64 A.B.A.J. 564 (1978); also Samuel Jan Brakel, The Role of the Lawyer in the Mental Health Field, 1977 A.B.F. Res. J. 467.Google Scholar

6. For example, Bruce R. Jacob & K. M. Sharma, in their leading piece on prisoners’ problems, Justice After Trial: Prisoners’ Need for Legal Services in the Criminal-Correctional Process, 18 U. Kan. L. Rev. 493, 506 (1970), report that 30 percent of all federal prisoners have detainers pending against them, and then they go on to speculate—wrongly, one suspects, given the particular nature of federal offenses and offenders—that a similar rate might hold for state inmates. A Massachusetts state prison legal aid study found that 19 percent of the total caseload handled was concerned with “warrants/detainers.” Finkelstein, M. Marvin, Perspectives on Prison Legal Services: Needs, Impact and the Potential for Law School Involvement at II-38, table 11 (Springfield, Va.: U.S. Department of Commerce, National Technical Information Service, 1971). An ABA study estimated and recommended detainers to be 12 percent of a typical prison legal aid caseload (Resource Center on Correctional Law and Legal Services, a Project of the ABA Commission on Correctional Facilities and Services, Providing Legal Services to Prisoners: An Analysis and Report 23-25 (Washington, D.C. 1973)). On the other hand, confirming our own findings in this area, at the Prisoners Legal Assistance Project for Northern Illinois, detainers amounted to only 2 percent of the cases handled (from unpublished statistics provided by the general counsel of the project).Google Scholar

7. Many states, including Illinois, have grievance procedures to handle “institutional” problems. The existence of such a process of course has a bearing on whether lawyers should become involved in the problems, or in the grievance process itself, and at what stage or under what circumstances. The point here is only to note the existence of the process, not to make the allocational judgment as to whether lawyers should or should not be involved. One fact that might be considered when making that judgment is that the inmates interviewed seem to regard the grievance process as a farce, a totally institution-oriented and -controlled game in which they almost never win.Google Scholar

8. See Brakel, Samuel J. & Rock, Ronald S., The Mentally Disabled and the Law 155-58 (Rev. ed. Chicago: University of Chicago Press, 1971).Google Scholar

9. Cf. Chi. Tribune, Oct. 24, 1977, § 1, at 5, cols. 3-6: In a sharply critical letter, the American Civil Liberties Union’s Illinois Division has accused Gov. Thompson of insensitivity in his decision to locate two new penitentiaries in the Downstate communities of Centralia and Hillsboro.Google Scholar

10. On January 24, 1977, the Chicago Tribune, at § 1, at 3, cols. 1 and 2, reported that the U.S. Department of Justice had filed suit against the State of Illinois for “permitting racial discrimination, over-crowding and unsanitary conditions in its prison system.” Governor Thompson responded by announcing plans to “correct the deficiencies” rather than fight the suit.Google Scholar

11. See Jacobs, James B., Stateville: The Penitentiary in Mass Society (Chicago: University of Chicago Press, 1977).Google Scholar

12. E.g., Cooper v. Pate, 324 F.2d 165 (7th Cir. 1963), rev’d, 378 U.S. 546 (1964). Walker v. Blackwell, 411 F.2d 23 (5th Cir. 1969).Google Scholar

13. The issue of the man’s “legal competency”—whether this is an allusion to fitness to stand trial or to competency to conduct civil and business affairs—was simply not at stake at that point in the case. The question at that stage was his “need of mental treatment” as judged by the criteria of dangerousness to self or others, or inability to care for self (“if that person, as a result of such mental disorder, is reasonably expected…to intentionally or unintentionally physically injure himself or other persons, or is unable to care for himself so as to guard himself from physical injury or to provide for his own physical needs”—the criteria for civil commitment. 111. Rev. Stat., ch. 911/2, § 1-11 (1977)).Google Scholar

14. Admission statistics for Illinois in 1976 show 9,716 patients out of a total admission figure of 24,611 classified as schizophrenic. The next largest categories are “alcohol addiction” and “other alcoholism,” with 4,420 patients. Drug dependency accounts for another 1,041 admissions. “Depressive neurosis”—1,700 admissions—is the largest mental disorder diagnostic category after schizophrenia. Since the alcoholic patients are usually separated from the general hospital population, patients labeled schizophrenic dominate the general wards. See Illinois Department of Health and Developmental Disabilities, Fiscal Year 1976, Mental Health Statistics 53.Google Scholar

15. Two of these are counted as “problems” in table 2.Google Scholar

16. See generally Jacobs, supra note 11.Google Scholar

17. See sources cited in note 6 supra. Google Scholar

18. Unpublished statistics provided by the program’s general counsel.Google Scholar

19. 111. Ann. Stat., ch. 91½, § 5-10, ch. 3, § 265 (Smith-Hurd 1956).Google Scholar

20. 111. Ann. Stat., ch. 91½, § 8-13 (Smith-Hurd 1966).Google Scholar

21. See the studies cited in note 6 supra. Google Scholar

22. In that respect, jails are more like mental hospitals than penitentiaries, with corresponding implications for delivering legal service there. The Cook County Jail in Chicago is said to have over 50,000 (!) inmates passing through annually.Google Scholar

24. Brakel, supra note 5.Google Scholar

25. By “institutional lawyers,” I simply mean, and use the term interchangeably with, lawyers with offices on institutional grounds. I do not imply answers on, nor do I mean to address at this point, the difficult issue of who should employ and pay these lawyers and all that might mean in terms of preserving independence, motivation, and credibility.Google Scholar

26. In the mental health field, a large part of the impetus has come from the American Bar Association’s Commission on the Mentally Disabled. In 1976 the commission set up a legal advocacy project on the grounds of Norristown State Hospital, just outside Philadelphia. In 1977, with money from the Edna McConnell Clark Foundation, it initiated ten additional legal advocacy experiments—in Georgia; the Los Angeles area; Colorado; Chicago; Rochester, N.Y.; the Omaha, Neb., area; Essex County, N.J.; Vermont; Raleigh, N.C.; and the St. Louis area. The primary purpose of these projects is local bar “activation” and involvement: not all provide services on hospital grounds, but several do, and the “activation” has the potential of generating more institutional programs in the future. The commission is also involved in efforts to document the existence of similar programs throughout the country that have sprung up without ABA sponsorship and to catalogue them. When completed, the list will probably include institutional programs that have come to my attention independently, such as the Wisconsin Legal Assistance Program (University of Wisconsin Law School) and the Western State Hospital advocacy program near Staunton, Virginia (jointly run by the law schools of the University of Virginia and Washington and Lee University). Legal services programs for prison inmates exist widely, but coherent information on their scope and nature is currently unavailable. Many are affiliated with local law schools. Not many operate from the concept of lawyers doing day-to-day business from offices actually located on institutional grounds, but as the programs proliferate, the on-grounds model will probably also spread. The ABA Commission on Correctional Facilities and Services is presently conducting a survey of existing programs. The commission initially identified 1,700 organizations as potentially involved in the delivery of legal services to inmates and sent each of these organizations a preliminary inquiry. Three months later, only 411 had responded to the inquiry, much less reported activity in this area; in the report’s words, the “attrition rate” (nonresponse rate) of the survey is high. “Progress Report” dated Sept. 9, 1977.Google Scholar

27. Some of the programs are already producing scholarly analysis. E.g., Steadman, Henry J. & Brooks, Alexander, A Program for Mental Health Advocacy Services for Pennsylvania (Albany, N.Y.: Special Projects Research Unit, Division of Research, New York State Department of Mental Hygiene, 1977), reporting on the Norristown experience (supra note 26); Walter Dickey & Frank Remington, Legal Assistance for Institutionalized Persons—an Overlooked Need, 1976 SIU L.J. 175, drawing on the experiences from the Wisconsin program. See also the prison literature cited supra note 6. In addition, there are some interesting descriptive pieces from the Wisconsin Correctional Internship Program: Comment, Legal Services for Prison Inmates, 1967 Wis. L. Rev. 514, and Comment, Resolving Civil Problems of Correctional Inmates, 1969 Wis. L. Rev. 574. The Dickey and Remington articles in particular, and also the Wisconsin Law Review internship pieces, deal with the issues of lawyer role and client problems in a manner similar to the way I have in this article, and they arrive at conclusions that are in a number of respects similar to those I reached.Google Scholar