1. Barry Barkow, the author of the letter to the editor, makes a very strong point when he states that many “frivolous” lawsuits are the results of genuine misunderstandings and/or mental health issues, neither of which are helped much by punitive measures. Furthermore, although opponents claim that there is sometimes a fine line between frivolous and non-frivolous lawsuits, such issues as proper sanitation (e.g. the complete lack of toilets at one facility), sexual abuse, and physical violence towards inmates. To put the burden of proof on plaintiffs who are often poorly educated and sometimes also mentally ill, and then trust that the judge will be sympathetic to their cause, seems vastly out of proportion to the nature of their “offense” of complaining about prison conditions.

    • There are plenty of folks who come to the aid of prison litigators. In Massachusetts alone, you have the Committee for Public Counsel Services, Massachusetts Correctional Legal Services, Harvard Prison Legal Assistance Project, newsletters called Massachusetts Dissent and The Phantom Prisoner, and the New England Journal of Criminal and Civil Confinement published by the New England School of Law. There is also a pro bono organization (whose name escapes me for the moment).

      Consider too that some judges are no fans of the Department of Correction. Some detest what they consider to be correction’s legal-yet-underhanded attempts at getting legitimate complaints either dismissed or delayed. Corrections has their share of enemies in the courthouse, and these court personnel keep an open mind when prison suits come across their desks. Plus, when courts receive suits from the mentally ill, I do believe they’re treated with deference.

      It is truly disturbing, however, to see any burden of proof placed on the plaintiff. But perhaps this cuts down on the number of unsubstantiated or vindictive claims that waste a lot of money to defend against? If the vindictive/harassing plaintiff knows ahead of time that he’s got to show supportive documentation, and he doesn’t have it, wouldn’t he be far less likely to waste the court’s time and taxpayer’s dollars? I ask this because of what I’ve learned about the vindictive inmate personality. These inmates have told me that they sue only because they can, and wouldn’t have bothered if the State wasn’t picking up the tab. Then there are the inmates who get a kick out of spending other people’s money which, to my mind, is further victimizing those of us who toe the line and also work for a living.

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