Jailhouse Lawyering: A Last Resort Turned Practice

by Marianella Herrera

What you can do:

What Can You Do?

  1. Get involved with the Legal Empowerment Advocacy Club (LEAH), which is home to the National Jailhouse Lawyers Initiative. You can find information on donating and volunteer/internship opportunities here: http://leahforjustice.com/get-involved/
  2. Read Jailhouse Lawyers: Prisoners Defending Prisoners v. The USA for a better understanding of the lengths individuals in the criminal justice system go to in order to achieve their freedom

Donate to the National Lawyers Guild, a bar association that contributed to the creation of the The Jailhouse Lawyers Handbook, here: https://www.nlg.org

It is an ironic fact in American society that individuals are praised for their ability to demonstrate resourcefulness even when those resources are constitutionally-granted rights. Jailhouse lawyers are but one example of such a phenomenon. Self-made by necessity, jailhouse lawyers are incarcerated individuals who assist others inside the justice system with various legal matters despite little to no formal training or certification. The need for such individuals arose from a gross inaccessibility to counsel in prisons, as well as a toxic environment that makes it increasingly difficult for any given individual to report abuse or negligence within a facility. 

Perhaps the most famous jailhouse lawyer is award-winning journalist and former Black Panther Party member Mumia Abu-Jamal. He published Jailhouse Lawyers: Prisoners Defending Prisoners v. The USA, which details the stories of incarcerated individuals turned advocates for the sake of their freedom, something many current jailhouse lawyers strive to uphold.

In dedicating their time to helping the individuals around them, jailhouse lawyers draw on any resources available to them, whether it be prison law libraries or manuals such as The Jailhouse Lawyers Handbook published by the Center for Constitutional Rights and National Lawyers Guild. Their livelihoods, however, are marked by too many encounters with extremely adverse political and legal roadblocks that seek to further suppress the incarcerated population.

“Criminal defendants are constitutionally required to have court-appointed counsel only during trial and for a first direct appeal,” a fact that not only allocates overworked, underfunded public defenders to low-income defendants, but also strips them of any legal aid for civil claims post-conviction. [1] “It is therefore difficult to find attorneys willing to represent inmates free of charge even when a judge is willing to appoint one,” hence the need for pro se, or self, representation. [1] Given these conditions that foster legal isolation, it is not surprising that medical malpractice, physical and sexual assault, and corruption run rampant in the criminal justice system. The recognition of such failures is thus left to jailhouse lawyers, often picking up where defense lawyers leave off, however early on this may be. While most of their work is informal and anecdotal at best, it is this very experience with the criminal justice system that allows jailhouse lawyers to excel, specifically when it comes to parole hearings.

Parole hearings are notorious for their inefficacy in granting approvals; surprisingly little data is published that details national rates at which boards schedule and/or grant paroles. One report released by the New Jersey State Parole Board in 2018 found that the number of scheduled hearings for state and county inmates has trended downwards since 2015 and that less than half of all parole applications end in approvals for two-membered panels. [2] For three-membered panels, the results are even more concerning: all parole applications were denied. [2] In the state of New Jersey, an incarcerated individual is only eligible for parole after serving a third of their sentences, that is if they were sentenced with parole as a possibility. With the number of people serving life or virtual life at an all time high, one in every seven incarcerated individuals, this paints a discouraging picture for the reduction of the incarcerated population. [3] Furthermore, a Times Union analysis of a New York Department of Corrections and Community Supervision report found that Black and Hispanic individuals are granted parole at lower rates than white individuals, further exacerbating the racial and ethnic divides in the criminal justice system. [4]

How, then, do jailhouse lawyers facilitate the building of parole portfolios and, more generally, any legal proceedings that other incarcerated individuals may wish to file? The same Times Union analysis found that inmates can attend preparation classes that explain what board members are looking for, but such a resource is often sparse and difficult to come by. [4] Moreover, many incarcerated individuals are unaware of the legal loopholes they must jump through to even obtain such goals. As Andre Jacobs, a formerly incarcerated individual who functioned as a jailhouse lawyer during his time at in Pennsylvania’s State Correctional Institution at Albion, wrote for the Marshall Project, “the court system is ruthless and routinely dismisses cases filed by prisoners because they can’t articulate their arguments, or they filed the wrong pleading, or they filed the right pleading in the wrong way.” [5] Essentially, the minutiae of the system are best handled by those who have already fallen prey to them.

Yet, the biggest obstacle to this collaboration is after the fact, in the form of the Prison Litigation Reform Act, or PLRA, which limits the access incarcerated individuals have of seeking the courts for legal redress. “The PLRA is designed to keep grievances in prisons and out of courts, on the theory that prison officials should have the primary responsibility for prison regulation rather than federal judges.” [1] It is centered around four basic premises that make it progressively more difficult to raise concerns: Firstly, the individual must file a complaint via a prison-specific grievance procedure and subsequently pay all court filing fees in full. Following this, once a lawsuit is filed, and if the judge deems it an improper use of the courts, it counts as a strike; “after you get three strikes, you cannot file another lawsuit… unless you pay the entire court filing fee up-front.” [6] Finally, an incarcerated individual cannot file a lawsuit unless there is evident physical injury. Even with a jailhouse lawyer providing advice–though they cannot represent another person in court or accept payment for the aid–the odds are wholly stacked against those who wish to expose injustices due to the weaponization of their economic and social positions.

In addition to these tactics meant to intensify the burdens of proof on incarcerated individuals, there are a number of other informal practices and ambiguities that make it harder for those who wish to further their legal education. The 1996 Supreme Court case Lewis v. Casey “found that while prisoners had a right to access the court, they did not have a right to a law library, so long as the prison provided other resources.” [7] As a main source of knowledge for jailhouse lawyers, the omission of libraries, as well as access to updated information on the internet, eliminates the possibility of any information that can be used against the prisons they are detained in. Additionally, retaliation for the provision of services is a common occurrence for jailhouse lawyers; some formerly incarcerated individuals who served as jailhouse lawyers reported being moved to solitary confinement for helping individuals litigate against staff, while others reported being removed from a job within the facility. [7]

These methodic policies and practices are kept in place because of how effective they are in keeping incarcerated individuals separated from society and ignorant of what freedoms they can obtain for themselves. Jailhouse lawyers, although noble in their pursuits, should not have to go to such lengths to help those around them, especially at the expense of their physical safety. Any criminal justice system that forces incarcerated individuals to represent themselves or deters them from seeking counsel out of fear of further punishment should be viewed as nothing short of an enormous failure. We must collectively strive to dismantle the narrative that incarcerated individuals are undeserving of rights afforded to all citizens; this trend, seen also in felon disenfranchisement and the withholding of government program memberships, seeks to perpetuate the idea of imprisonment as one of many punishments. The moment society views it as being the sole punishment, or better yet, a chance for rehabilitation, is the moment true reform can begin.

Works Cited

[1] https://www.uclalawreview.org/pdf/62-1-4.pdf

[2] https://www.nj.gov/parole/docs/reports/AnnualReport2018.pdf

[3] https://www.sentencingproject.org/publications/still-life-americas-increasing-use-life-long-term-sentences/#III.%20Life%20by%20the%20Numbers

[4] https://www.timesunion.com/news/article/A-broken-parole-process-Data-show-widening-15739596.php

[5] https://www.themarshallproject.org/2019/05/24/i-taught-myself-how-to-read-in-prison-then-i-sued-the-system-and-won

[6] https://www.aclu.org/sites/default/files/images/asset_upload_file79_25805.pdf

[7] https://www.law360.com/articles/1116748/with-no-legal-help-in-sight-jailhouse-lawyers-fill-the-void