The New York Times recently profiled a former Jailhouse Lawyer, Shon Hopwood, who took other prisoners' cases all the way to the US Supreme Court.  During a decade in federal prison he was able to learn the law and advocate.  How does that relate to Rhode Island?  Well for starters, the law never really explains what Jailhouse Lawyers are, nor the obstacles they face.  As has been alluded to elsewhere on this blog, I too was a Jailhouse Lawyer, so naturally I am quite proud of Mr. Hopwood.

The U.S. Constitution's 6th Amendment guarantees the Right to Counsel.  It doesn't say "someone who has passed the Bar," in fact, the American Bar Association didn't exist until a century after the Bill of Rights.   In the 1930's the Supreme Court acknowledged that poor and incompetent defendants were at the mercy of prosecutors, so we evolved towards what we have now: a right to the appointment of "competent" counsel if we cannot afford it... but only at trial and direct appeal for cases that pose the threat of imprisonment.  In RI we are entitled to a "Shatney Hearing" for the stage beyond direct appeal (where the appealable issues are expanded), and a single lawyer (from a particular list) typically spends over year before reporting to the Court that the Petitioner's claims are "without merit."  And then his/her right to counsel ceases.   Rather than look into the likelihood that a claim has merit, they tend to focus on the practicality of dismissal.

Enter the Jailhouse Lawyer.  Practically all of our important Eighth Amendment law comes from Habeas Corpus (or "post-conviction") petitions long after a prisoner has been left for dead.  Petitions involving conditions of confinement DO NOT come with a Right to Counsel, as they are considered Civil Cases.   When Fred Cruz went to prison in Texas during the 1950's, it was being run like a slave plantation under brutal thuggery.  Cruz proclaimed his innocence and learned the law to fight his case because he soon found out that few care about the innocence of a heroin-using Mexicano kid from San Antonio.  And soon he realized that his prison conditions could also be challenged.   Prison authorities, particularly the Texas Director, George Beto, despised him.  Fred Cruz suffered the weight of punishment that lacked all oversight and was transferred to a unit paramount to torture through sensory deprivation, lack of food, and physical beatings.  Along the way, his fellow prisoners sought out Cruz' knowledge.  Those interested can see an incredible film, Writ Writer, to learn more.

Meanwhile, in 1965, William Joe Johnson was being continually punished for assisting other inmates in Tennessee.  In 1969, the U.S. Supreme Court ruled in his favor: that a prison cannot punish inmates for assisting each other in the absence of a viable alternative.  Johnson v Avery has become the foundation for Jailhouse Lawyers, while viable "alternatives," in a nation of over 2,000,000 prisoners, have become ever scarcer.  Consider too that the Sixties were an era of Civil Rights, while the Eighties became a sharp contrast.

The Rhode Island Department of Corrections policy forbids inmates from assisting other inmates. It is punishable conduct. I personally was only punished five or six times, sometimes lightly, as many guards can understand the need for this assistance. A Writ of Mandamus drafted by my former colleague Calvin Walker outlines the systematic abuse suffered by RI Jailhouse Lawyers, and he frames it in terms of both racial discrimination and impeding the Access to the Courts: He profiles a particular man with a legitimate claim of innocence. A client of Mr. Walker.

"Policy: Access to the Courts and Legal Materials/Law Library

 The RIDOC maintains a central law library with up-to-date constitutional, statutory, case law materials, applicable court rules and practices.  Each facility has a small law library containing basic legal research materials, staffed by inmate law clerks. There is a set of inmate-related RIDOC policies in the law library of each facility.  Questions regarding policies can be researched in that area.  

For case law and reference material not found in the facility's law library, a request may be submitted to the RIDOC central library.  A law clerk can provide a request form.  Request forms must be submitted with money transfer slips because a .05-per-page copying fee will be charged to process each request.  

You may use the law library during your recreation period.  You can refer to the facility recreation schedule to plan your library time.  If you need more time in the law library, you may make a request by submitting a slip to the area supervisor.  There are law clerks available to assist you during library time.  You should not hesitate to ask for the help of the law clerks.  Loud talking in the law library will not be tolerated.  Law books are not to be removed from the library.  

You are allowed to request copies of certain parts of the law books.  However, only the assigned copy machine operator can run the copy machine.  There is currently a .05-per-page charge for all legal-related copies.  The copy machine operator will have the forms you need for copies.  Indigent inmates can receive up to 200 copies per month.  The .05-cent charge will apply and may result in a negative account balance.  You are to use your own materials in the law library, except typing paper.  You may have a reasonable amount of legal papers in your possession.  These materials must be about current cases or active appeals.  A maximum of one cubic foot (12" inches high, 12" long and 12" wide) of material may be kept in your living area.  You may request additional storage space for legal materials with proof of need.  This material will be maintained in a secure area other than your living area.

 Anyone (including law clerks) found in possession of unauthorized legal material belonging to another person shall be subject to disciplinary action."

Shon Hopwood's first petition to SCOTUS drew the attention of a former Solicitor General, Seth Waxman.  He took the case pro bono, but he wanted to work with the Jailhouse Lawyer who drafted the petition.  Fred Cruz managed to get a New York attorney to come to Texas and fight, with him, for better conditions in their prison system.  Interestingly, Cruz' most publicized case was actually about religious freedom for his Muslim brothers and sisters in prison.  But for him to fight it, he filed as a Buddhist practitioner seeking religious freedom and won the rights for all religions to be given the same respect as Christianity.

In Rhode Island, we mail petitions to courts and rarely see the inside of a courtroom.  When the responses finally come (often years later), we have no open access to law books to read the cases being cited by the government.  The prisoner may no longer have access to the Jailhouse Lawyer to interpret what the adversary has written in their Objection, Motion, or Brief.  In RI, the prisoner is forced to purchase the caselaw from the ACI... and the process of research and shephardizing is done in a purchase-by-purchase manner until their paperwork exceeds the one cubic foot requirement.  All because the physical libraries no longer stock SCOTUS or Federal decisions. 

I would not take a case unless the prisoner agreed to become an expert on his case. This way, at the least, he would be capable of explaining his situation to the next Jailhouse Lawyer, but hopefully be capable of conducting himself in a courtroom. Some of my early teachers included a Mafia foot soldier, a former Brown professor, a small business owner, a Latino man who I never knew much about, and a classic book written by a civil rights attorney.  Eventually I served about eight years alongside Calvin Walker.  We, and a few others, could not take every valid case that arose- be it a criminal petition, medical neglect, or conditions of confinement.  The greatest pleasant surprise for RI prisoners is that our own Andres Idarraga was not a Jailhouse Lawyer in any fashion.  I recall helping him with his post conviction sentence reduction which helped him get out a few years earlier.   He read books, but not law books.  And now he is poised to receive a degree from Yale Law School... with a particular interest in housing and education.

It is brutal for me to consider a system where I have been the "only hope" for several people who spoke little if any English, where the prison tells them to do their own legal work or rot away in a cell.  If we indulge for a moment that the law can only be practiced by highly trained and intelligent professionals, what hope does the average American prisoner have on their own?  Hopwood, Walker, and I do not have law degrees, but we represent that percentage of prisoners in every prison who have the mental proclivity to sit for hours with words, concepts, and logic.  And some people might be surprised to find how race and class are neutral factors when you get into the only true educational meritocracy: prison.

Fred Cruz, besides challenging the Texas penal system, won his innocence and freedom.  Ironically, if an innocent man hadn't spent time behind bars, the arc of humanity's bend towards justice might have been just a little bit flatter.  One of my own innocent "clients" inspired me to dig into the RI Probation Violation system and its treatment of people framed on new allegations.  He was cleared on the new charges, paroled on the Violation, and when he went to court (I was still Inside) ushered away by the judge who could not seem to understand that to be on parole for a crime you did not commit is not grounds for "You're out of prison.  This case has no merit."  Thus my fight for specific legislation on the matter.

Several of my clients are still fighting, having learned their cases, although one is being treated like Mumia Abu Jamal: refusing to hear the full evidence, and finding "procedural" technicalities to keep an unjust verdict in place.  Both he and his brother (who quit fighting before I met them) have sat in the ACI since 1984.  Out of 8,000 petitions to SCOTUS, the one I wrote didn't make the cut.  This realm of the law is overly loaded with hurdles, including unpopularity and a lack of resources.  We have a Law School cut off from the local prison, an understaffed ACLU chapter, and far too few attorneys interested in challenging the Judicial and Prosecutorial decisions of an insular profession.

Miranda, Washington, Powell, Batson, Scott and so many other landmark names in our canon of law were once labeled as common criminals, racial epithets, and worse.  Hopwood, Walker, Idarraga, the clients, and I can all be negatively labeled (as are most others incarcerated or formerly incarcerated). We can be called terrible names and marginalized in our credibility.  None of these things, however, can change the facts about the wrongs we wish to right within the court of law.  It is time for the Department of Corrections to see the valuable resource brought to the table by a criminal justice system stretched far beyond its means, and acknowledge the policy is not within the Constitutional legal standards.