Petitioner, a Tennessee prisoner, was disciplined for violating
a prison regulation which prohibited inmates from assisting other
prisoners in preparing writs. The District Court held the
regulation void because it had the effect of barring illiterate
prisoners from access to federal habeas corpus and conflicted with
28 U.S.C. § 2242. The Court of Appeals reversed, finding that the
State's interest in preserving prison discipline and limiting the
practice of law to attorneys justified any burden the regulation
might place on access to federal habeas corpus.
Held: In the absence of some provision by the State of
Tennessee for a reasonable alternative to assist illiterate or
poorly educated inmates in preparing petitions for post-conviction
relief, the State may not validly enforce a regulation which
absolutely bars inmates from furnishing such assistance to other
prisoners. Pp.
393 U. S.
485-490.
382 F.2d 353, reversed and remanded.
Page 393 U. S. 484
MR. JUSTICE FORTAS delivered the opinion of the Court.
I
Petitioner is serving a life sentence in the Tennessee State
Penitentiary. In February, 1965, he was transferred to the maximum
security building in the prison for violation of a prison
regulation which provides:
"No inmate will advise, assist or otherwise contract to aid
another, either with or without a fee, to prepare Writs or other
legal matters. It is not intended that an innocent man be punished.
When a man believes he is unlawfully held or illegally convicted,
he should prepare a brief or state his complaint in letter form and
address it to his lawyer or a judge. A formal Writ is not necessary
to receive a hearing. False charges or untrue complaints may be
punished. Inmates are forbidden to set themselves up as
practitioners for the purpose of promoting a business of writing
Writs."
In July, 1965, petitioner filed in the United States District
Court for the Middle District of Tennessee a "motion for law books
and a typewriter," in which he sought relief from his confinement
in the maximum security building. The District Court treated this
motion as a petition for a writ of habeas corpus and, after a
hearing, ordered him released from disciplinary confinement and
restored to the status of an ordinary prisoner. The District Court
held that the regulation was void because it in effect barred
illiterate prisoners from access to federal habeas corpus and
conflicted with 28 U.S.C. § 2242. [
Footnote 1]
252 F.
Supp. 783.
Page 393 U. S. 485
By the time the District Court order was entered, petitioner had
been transferred from the maximum security building, but he had
been put in a disciplinary cell block in which he was entitled to
fewer privileges than were given ordinary prisoners. Only when he
promised to refrain from assistance to other inmates was he
restored to regular prison conditions and privileges. At a second
hearing, held in March, 1966, the District Court explored these
issues concerning the compliance of the prison officials with its
initial order. After the hearing, it reaffirmed its earlier
order.
The State appealed. The Court of Appeals for the Sixth Circuit
reversed, concluding that the regulation did not unlawfully
conflict with the federal right of habeas corpus. According to the
Sixth Circuit, the interest of the State in preserving prison
discipline and in limiting the practice of law to licensed
attorneys justified whatever burden the regulation might place on
access to federal habeas corpus. 382 F.2d 353.
II
This Court has constantly emphasized the fundamental importance
of the writ of habeas corpus in our constitutional scheme,
[
Footnote 2] and the Congress
has demonstrated its solicitude for the vigor of the Great Writ.
[
Footnote 3] The Court has
steadfastly insisted that "there is no higher duty than to maintain
it unimpaired."
Bowen v. Johnston, 306 U. S.
19,
306 U. S. 26
(1939).
Since the basic purpose of the writ is to enable those
unlawfully incarcerated to obtain their freedom, it is fundamental
that access of prisoners to the courts for the purpose of
presenting their complaints may not be denied or obstructed. For
example, the Court has held that a State may not validly make the
writ available
Page 393 U. S. 486
only to prisoners who could pay a $4 filing fee.
Smith v.
Bennett, 365 U. S. 708
(1961). And it has insisted that, for the indigent as well as for
the affluent prisoner, post-conviction proceedings must be more
than a formality. For instance, the State is obligated to furnish
prisoners not otherwise able to obtain it with a transcript or
equivalent recordation of prior habeas corpus hearings for use in
further proceedings.
Long v. District Court, 385 U.
S. 192 (1966).
Cf. Griffin v. Illinois,
351 U. S. 12
(1956).
Tennessee urges, however, that the contested regulation in this
case is justified as a part of the State's disciplinary
administration of the prisons. There is no doubt that discipline
and administration of state detention facilities are state
functions. They are subject to federal authority only where
paramount federal constitutional or statutory rights supervene. It
is clear, however, that, in instances where state regulations
applicable to inmates of prison facilities conflict with such
rights, the regulations may be invalidated.
For example, in
Lee v. Washington, 390 U.
S. 333 (1968), the practice of racial segregation of
prisoners was justified by the State as necessary to maintain good
order and discipline. We held, however, that the practice was
constitutionally prohibited, although we were careful to point out
that the order of the District Court, which we affirmed, made
allowance for "the necessities of prison security and discipline."
Id. at
390 U. S. 334.
And in
Ex parte Hull, 312 U. S. 546
(1941), this Court invalidated a state regulation which required
that habeas corpus petitions first be submitted to prison
authorities and then approved by the "legal investigator" to the
parole board as "properly drawn" before being transmitted to the
court. Here again, the State urged that the requirement was
necessary to maintain prison discipline. But this Court held that
the regulation violated the principle that
"the state and its officers may not
Page 393 U. S. 487
abridge or impair petitioner's right to apply to a federal court
for a writ of habeas corpus."
312 U.S. at
312 U. S. 549.
Cf. Cochran v. Kansas, 316 U. S. 255,
316 U. S. 257
(1942).
There can be no doubt that Tennessee could not constitutionally
adopt and enforce a rule forbidding illiterate or poorly educated
prisoners to file habeas corpus petitions. Here, Tennessee has
adopted a rule which, in the absence of any other source of
assistance for such prisoners, effectively does just that. The
District Court concluded that,
"[f]or all practical purposes, if such prisoners cannot have the
assistance of a 'jail-house lawyer,' their possibly valid
constitutional claims will never be heard in any court."
252 F. Supp. at 784. The record supports this conclusion.
Jails and penitentiaries include among their inmates a high
percentage of persons who are totally or functionally illiterate,
whose educational attainments are slight, and whose intelligence is
limited. [
Footnote 4] This
appears to be equally true of Tennessee's prison facilities.
[
Footnote 5]
In most federal courts, it is the practice to appoint counsel in
post-conviction proceedings only after a petition for
post-conviction relief passes initial judicial evaluation and the
court has determined that issues are presented calling for an
evidentiary hearing.
E.g., Taylor v. Pegelow, 335 F.2d 147
(C.A.4th Cir.1964); United States ex rel. Marshall v. Wilkins, 338
F.2d 404 (C.A.2d Cir.1964).
See 28 U.S.C. § 1915(d); R.
Sokol, A Handbook of Federal Habeas Corpus 71-73 (1965). [
Footnote 6]
Page 393 U. S. 488
It has not been held that there is any general obligation of the
courts, state or federal, to appoint counsel for prisoners who
indicate, without more, that they wish to seek post-conviction
relief.
See, e.g., Barker v. Ohio, 330 F.2d 594 (C.A. 6th
Cir.1964). Accordingly, the initial burden of presenting a claim to
post-conviction relief usually rests upon the indigent prisoner
himself with such help as he can obtain within the prison walls or
the prison system. In the case of all except those who are able to
help themselves -- usually a few old hands or exceptionally gifted
prisoners -- the prisoner is, in effect, denied access to the
courts unless such help is available.
It is indisputable that prison "writ writers" like petitioner
are sometimes a menace to prison discipline and that their
petitions are often so unskillful as to be a burden on the courts
which receive them. [
Footnote
7] But, as this Court held in
Ex parte Hull, supra, in
declaring invalid a state prison regulation which required that
prisoners' legal pleadings be screened by state officials:
"The considerations that prompted [the regulation's] formulation
are not without merit, but the state and its officers may not
abridge or impair petitioner's right to apply to a federal court
for a writ of habeas corpus."
312 U.S. at
312 U. S.
549.
Tennessee does not provide an available alternative to the
assistance provided by other inmates. The warden of the prison in
which petitioner was confined stated that the prison provided free
notarization of prisoners' petitions. That obviously meets only a
formal requirement. He also indicated that he sometimes allowed
prisoners to examine the listing of attorneys in the Nashville
telephone directory so they could select one to write to in an
effort to interest him in taking the case, and
Page 393 U. S. 489
that, "on several occasions," he had contacted the public
defender at the request of an inmate. There is no contention,
however, that there is any regular system of assistance by public
defenders. In its brief, the State contends that
"[t]here is absolutely no reason to believe that prison
officials would fail to notify the court should an inmate advise
them of a complete inability, either mental or physical, to prepare
a habeas application on his own behalf,"
but there is no contention that they have in fact, ever done
so.
This is obviously far short of the showing required to
demonstrate that, in depriving prisoners of the assistance of
fellow inmates, Tennessee has not, in substance, deprived those
unable themselves, with reasonable adequacy, to prepare their
petitions, of access to the constitutionally and statutorily
protected availability of the writ of habeas corpus. By contrast,
in several States, [
Footnote 8]
the public defender system supplies trained attorneys, paid from
public funds, who are available to consult with prisoners regarding
their habeas corpus petitions. At least one State employs senior
law students to interview and advise inmates in state prisons.
[
Footnote 9] Another State has
a voluntary program whereby members of the local bar association
make periodic visits to the prison to consult with prisoners
concerning their cases. [
Footnote 10] We express no judgment concerning these
plans,
Page 393 U. S. 490
but their existence indicates that techniques are available to
provide alternatives if the State elects to prohibit mutual
assistance among inmates.
Even in the absence of such alternatives, the State may impose
reasonable restrictions and restraints upon the acknowledged
propensity of prisoners to abuse both the giving and the seeking of
assistance in the preparation of applications for relief: for
example, by limitations on the time and location of such activities
and the imposition of punishment for the giving or receipt of
consideration in connection with such activities.
Cf. Hatfield
v. Bailleaux, 290 F.2d 632 (C.A. 9th Cir.1961) (sustaining as
reasonable regulations on the time and location of prisoner work on
their own petitions). But unless and until the State provides some
reasonable alternative to assist inmates in the preparation of
petitions for post-conviction relief, it may not validly enforce a
regulation such as that here in issue, barring inmates from
furnishing such assistance to other prisoners. [
Footnote 11]
The judgment of the Court of Appeals is reversed, and the case
is remanded for further proceedings consistent with this
opinion.
Reversed and remanded.
Page 393 U. S. 491
[
Footnote 1]
28 U.S.C. § 2242 provides in part:
"Application for a writ of habeas corpus shall be in writing
signed and verified by the person for whose relief it is intended
or by someone acting in his behalf."
[
Footnote 2]
E.g., Fay v. Noia, 372 U. S. 391
(1963).
[
Footnote 3]
28 U.S.C. §§ 2241-2255.
[
Footnote 4]
See Note, Constitutional Law: Prison "No-Assistance"
Regulations and the Jailhouse Lawyer, 1968 Duke L.J. 343, 347-348,
360-361.
[
Footnote 5]
Tennessee Department of Correction, Departmental Report: Fiscal
Years 1965-1966, 1966-1967.
[
Footnote 6]
Tennessee's post-conviction procedure provides for appointment
of counsel "if necessary." Tenn.Code Ann. §§ 40-3821, 40-2019
(Supp. 1967).
[
Footnote 7]
See, e.g., Spector, A Prison Librarian Looks at
Writ-Writing, 56 Calif.L.Rev. 365 (1968).
[
Footnote 8]
Note,
supra, n 4,
at 349, n. 27, and 359.
See also Rossmoore &
Koenigsberg, Habeas Corpus and the Indigent Prisoner, 11 Rutgers
L.Rev. 611, 619-622 (1957).
[
Footnote 9]
At the time of the second hearing in petitioner's case, the
warden testified, the State was considering setting up a program
under which senior law students from Vanderbilt Law School would
assist prisoners in the preparation of post-conviction relief
applications. For whatever it may be worth, petitioner testified
that he would stop helping other inmates if such a system were in
existence.
[
Footnote 10]
One State has designated an inmate as the official prison
writ-writer.
See Note,
supra, n 4, at 359.
[
Footnote 11]
In reversing the District Court, the Court of Appeals relied on
the power of the State to restrict the practice of law to licensed
attorneys as a source of authority for the prison regulation. The
power of the States to control the practice of law cannot be
exercised so as to abrogate federally protected rights.
NAACP
v. Button, 371 U. S. 415
(1963);
Sperry v. Florida, 373 U.
S. 379 (1963). In any event, the type of activity
involved here -- preparation of petitions for post-conviction
relief -- though historically and traditionally one which may
benefit from the services of a trained and dedicated lawyer, is a
function often, perhaps generally, performed by laymen. Title 28
U.S.C. § 2242 apparently contemplates that, in many situations,
petition for federal habeas corpus relief will be prepared by
laymen.
MR. JUSTICE DOUGLAS, concurring.
While I join the opinion of the Court, I add a few words in
emphasis of the important thesis of the case.
The increasing complexities of our governmental apparatus at
both the local and the federal levels have made it difficult for a
person to process a claim or even to make a complaint. Social
security is a virtual maze; the hierarchy that governs urban
housing is often so intricate that it takes an expert to know what
agency has jurisdiction over a particular complaint; the office to
call or official to see for noise abatement, for a broken sewer
line, or a fallen tree is a mystery to many in our metropolitan
areas.
A person who has a claim assertable in faraway Washington, D.C.
is even more helpless, as evidenced by the increasing tendency of
constituents to rely on their congressional delegation to identify,
press, and process their claims.
We think of claims as grist for the mill of the lawyers. But it
is becoming abundantly clear that more and more of the effort in
ferreting out the basis of claims and the agencies responsible for
them and in preparing the almost endless paperwork for their
prosecution is work for laymen. There are not enough lawyers to
manage or supervise all of these affairs; and much of the basic
work done requires no special legal talent. Yet there is a
closed-shop philosophy in the legal profession that cuts down
drastically active roles for laymen. It was expressed by a New York
court in denying an application from the Neighborhood Legal
Services for permission to offer a broad legal-aid type of service
to indigents:
"[I]n any legal assistance corporation, supported by Federal
antipoverty funds, the executive staff, and those with the
responsibility to hire and discharge staff from the very top to the
lowest lay
Page 393 U. S. 492
echelon must be lawyers."
Matter of Action for Legal Services, 26 App.Div.2d 354,
360, 274 N.Y.S.2d 779, 787 (1966).
That traditional, closed shop attitude is utterly out of place
in the modern world, [
Footnote 2/1]
where claims pile high and much of the work of tracing and pursuing
them requires the patience and wisdom of a layman, rather than the
legal skills of a member of the bar.
"If poverty lawyers are overworked, some of the work can be
delegated to sub-professionals. New York law permits senior law
students to practice law under certain supervised conditions.
Approval must first be granted by the appellate division. A rung or
two lower on the legal profession's ladder are laymen legal
technicians, comparable to nurses and lab assistants in the medical
profession. Large law firms employ them, and there seems to be no
reason why they cannot be used in legal services programs to
relieve attorneys for more professional tasks."
Samore, Legal Services for the Poor, 32 Albany L.Rev. 509,
515-516 (1968).
And see Sparer, Thorkelson & Weiss,
The Lay Advocate, 43 U.Det.L.J. 493, 510-514 (1966).
The plight of a man in prison may in these respects be even more
acute than the plight of a person on the outside. He may need
collateral proceedings to test the legality of his detention
[
Footnote 2/2] or relief against
management
Page 393 U. S. 493
of the parole system [
Footnote
2/3] or against defective detainers lodged against him which
create burdens in the nature of his incarcerated status. [
Footnote 2/4] He may have grievances of a
civil nature against those outside the prison. His imprisonment may
give his wife grounds for divorce and be a factor in determining
the custody of his children; and he may have pressing social
security, workmen's compensation, or veterans' claims. [
Footnote 2/5]
While the demand for legal counsel in prison is heavy, the
supply is light. For private matters of a civil nature, legal
counsel for the indigent in prison is almost nonexistent. Even for
criminal proceedings, it is sparse. [
Footnote 2/6] While a few States have post-conviction
statutes providing such counsel, [
Footnote 2/7] most States do not. [
Footnote 2/8] Some States like California do appoint
counsel to represent the indigent prisoner in his collateral
hearings, once he succeeds in making out a
prima facie
case. [
Footnote 2/9] But, as a
result, counsel
Page 393 U. S. 494
is not on hand for preparation of the papers or for the initial
decision that the prisoner's claim has substance. Many think that
the prisoner needs help at an early stage to weed out frivolous
claims. [
Footnote 2/10] Some
States have Legal Aid Societies, sponsored in part by the National
Legal Aid and Defender Association, that provide post-conviction
counsel to prisoners. [
Footnote
2/11] Most legal aid offices, however, have so many pressing
obligations of a civil and criminal nature in their own communities
and among freemen as not to be able to provide any satisfactory
assistance to prisoners. [
Footnote
2/12] The same thing is true of OEO-sponsored Neighborhood
Legal Services offices, which see their function as providing legal
counsel for a particular community, which a member leaves as
soon
Page 393 U. S. 495
as he is taken to prison. [
Footnote 2/13] In some cases, state public defenders
will represent a man even after he passes beyond prison walls. But,
more often, the public defender has no general authorization to
process post-conviction matters. [
Footnote 2/14]
Some States have experimented with programs designed especially
for the prison community. The Bureau of Prisons led the way with a
program of allowing senior law students to service the federal
penitentiary at Leavenworth, Kansas. Since then, it has encouraged
similar programs at Lewisburg (University of Pennsylvania Law
School) and elsewhere. Emory University School of Law provides free
legal assistance to the inmates of Atlanta Federal Penitentiary.
The program of the law school at the University of California at
Los Angeles is now about to reach inside federal prisons. In
describing the University of Kansas Law School program at
Leavenworth, legal counsel for the Bureau of Prisons has said:
"The experience at Leavenworth has shown that there have been
very few attacks upon the [prison] administration; that prospective
frivolous litigation has been screened out, and that, where the law
school felt the prisoner had a good cause of action, relief was
granted in a great percentage of cases. A large part of the
activity was disposing of long outstanding detainers lodged against
the inmates. In addition, the program handles civil matters such as
domestic relations problems and compensation claims. Even where
there has been no tangible success, the fact that the inmate had
someone on the outside listen to him and analyze his problems had a
most beneficial effect. . . . We think that these
Page 393 U. S. 496
programs have been beneficial not only to the inmates, but to
the students, the staff and the courts. [
Footnote 2/15]"
The difficulty with an
ad hoc program resting on a
shifting law school population is that, worthy though it be, it
often cannot meet the daily prison demands. [
Footnote 2/16] In desperation, at least one State has
allowed a selected inmate to act as "jailhouse" counsel for the
remaining inmates. [
Footnote
2/17] The service of legal aid, public defenders, and assigned
counsel has been spread too thinly to serve prisons adequately.
[
Footnote 2/18] Some federal
courts have begun to provide prisons with standardized habeas
corpus forms, in the hope that they can be used by laymen.
[
Footnote 2/19] But the prison
population has not found that satisfactory. [
Footnote 2/20]
Where government fails to provide the prison with the legal
counsel it demands, the prison generates its own. In a community
where illiteracy and mental deficiency is notoriously high, it is
not enough to ask the prisoner to be his own lawyer. [
Footnote 2/21] Without the assistance of
fellow prisoners, some meritorious claims would never see the light
of a courtroom. In cases
Page 393 U. S. 497
where that assistance succeeds, it speaks for itself. And even
in cases where it fails, it may provide a necessary medium of
expression: [
Footnote 2/22]
"It is not unusual, then, in a subculture created by the
criminal law, wherein prisoners exist as creatures of the law, that
they should use the law to try to reclaim their previously enjoyed
status in society. The upheavals occurring in the American social
structure are reflected within the prison environment. Prisoners,
having real or imagined grievances, cannot demonstrate in protest
against them. The right peaceably to assemble is denied to them.
The only avenue open to prisoners is taking their case to court.
Prison writ-writers would compare themselves to the dissenters
outside prison. . . ."
"
* * * *"
"Many writ-writers have said that they would be able to make
positive plans for the future if they knew when their
[indeterminate] sentences would end. They seem to feel that they
are living in a vacuum, where their fates are determined
arbitrarily, rather than by rule of law. One writ-writer very aptly
summed up the majority's view with these words:"
"When I arrived at the prison and discovered that no one,
including the prison officials, knew how long my sentence was, I
had to resort to fighting my case to keep my sanity. . . ."
"Psychologically, the writ-writer, in seeking relief from the
courts, is pursuing a course of action which relieves the tensions
and anxieties created by the [indeterminate] sentence system.
[
Footnote 2/23] "
Page 393 U. S. 498
In that view, which many share, the preparation of these endless
petitions within the prisons is a useful form of therapy. Apart
from that, their reparation must never be considered the exclusive
prerogative of the lawyer. Laymen -- in and out of prison -- should
be allowed to act as "next friend" to any person in the preparation
of any paper or document or claim, so long as he does not hold
himself out as practicing law or as being a member of the Bar.
The cooperation and help of laymen, as well as of lawyers, is
necessary if the right of "[r]easonable access to the courts"
[
Footnote 2/24] is to be
available to the indigents among us.
[
Footnote 2/1]
The New York program that is funded by the Office of Economic
Opportunity (OEO) and which as noted was first rejected by the New
York courts, is called Community Action for Legal Services. It as
finally approved by the New York courts with a board of directors
of 20 lawyers and 10 laymen. 158 N.Y.L.J. No. 72, pp. 1, 5
(1967).
[
Footnote 2/2]
Reitz, Federal Habeas Corpus: Post-conviction Remedy for State
Prisoners, 108 U.Pa.L.Rev. 461 (1960).
[
Footnote 2/3]
Hubanks & Linde, Legal Services to the Indigent Imprisoned,
23 Legal Aid Briefcase 214 (1965).
[
Footnote 2/4]
Temin, Report on Postconviction Services to the County Prison,
25 Legal Aid Briefcase 18 (1966).
[
Footnote 2/5]
Note, Constitutional Law: Prison "No-Assistance" Regulations and
the Jailhouse Lawyer, 1968 Duke L.J. 343.
[
Footnote 2/6]
L. Silverstein, Defense of the Poor in Criminal Cases in
American State Courts: A Preliminary Summary (Amer. Bar Foundation
1964); Note, Legal Services for the Poor, 49 Mass.L.Q. 293 (1964);
O.E.O. and Legal Services -- A Symposium, 14 Catholic Law. 92-174
(1968); Note, Legal Services for Prison Inmates, 1967 Wis.L.Rev.
514; Uelmen, Post-Conviction Relief for Federal Prisoners Under 28
U.S.C. § 2255: A Survey and a Suggestion, 69 W.Va.L.Rev. 277
(1967).
[
Footnote 2/7]
Ill.Rev.Stat., c. 38, § 122-4 (1967); Ore.Rev.Stat. § 138.590
(1967).
[
Footnote 2/8]
Comment, Right to Counsel in Criminal Post-Conviction Review
Proceedings, 51 Calif.L.Rev. 970 (1963).
[
Footnote 2/9]
See, e.g., People v. Shipman, 62 Cal. 2d
226, 397 P.2d 993 (1965). Note, Indigent's Right to Counsel in
Post-Conviction Collateral Proceedings in California:
People v.
Shipman, 13 U.C.L.A.L.Rev. 446 (1966).
[
Footnote 2/10]
"Lawyers generally require at least a fifty dollar fee to travel
to the prisons to consult with a prisoner. The ones not able to pay
this sum must resort to the next best course of action -- act as
their own lawyers. The disadvantages to the prisoner are obvious. A
lawyer, after examining the prisoner's transcripts or conducting an
independent investigation of the facts, could immediately advise
him on a course of action. Lacking the money to hire a lawyer, the
prisoner must spend considerable time researching the law,
preparing the required legal documents, and filing them. Sometimes
years pass before the prisoner discovers what a lawyer could have
told him in several weeks -- that his case either has or lacks
merit. The prisoners who have militantly prosecuted frivolous
actions have wasted time they could have devoted to preparing
themselves for release from prison. The state, by shouldering these
indigent prisoners with the responsibility of acting as their own
counsel, has dissipated the taxpayers' money in wasted manpower and
court costs."
Larsen, A Prisoner Looks at Writ-Writing, 56 Calif.L.Rev. 343,
345-36 (1968).
[
Footnote 2/11]
Note, Legal Services for the Poor, 49 Mass. L.Q. 293 (1964).
[
Footnote 2/12]
Note, Representation of Indigent Criminal Defendants in the
Federal District Courts, 76 Harv.L.Rev. 579 (1963); Note,
Representation of Indigents in California -- A Field Study of the
Public Defender and Assigned Counsel Systems, 13 Stan.L.Rev. 522
(1961); Gardiner, Defects in Present Legal Aid Service and the
Remedies, 22 Tenn.L.Rev. 505 (1952); Note, Prisoner Assistance on
Federal Habeas Corpus Petitions, 19 Stan.L.Rev. 887 (1967).
[
Footnote 2/13]
O.E.O. and Legal Services -- A Symposium, 14 Catholic Law.
92-174 (1968).
[
Footnote 2/14]
E. Mancuso, The Public Defender System in the State of
California 5 (1959).
[
Footnote 2/15]
Barkin, Impact of Changing Law Upon Prison Policy, 47 Prison J.
3, 8 (1969).
And see Matter of Cornell Legal Aid Clinic,
26 App.Div.2d 790, 273 N.Y.S.2d 444.
[
Footnote 2/16]
Wilson, Legal Assistance Project at Leavenworth, 24 Legal Aid
Briefcase 254 (1966).
[
Footnote 2/17]
Note,
supra, 393
U.S. 483fn2/5|>n. 5, at 359.
[
Footnote 2/18]
Note, Representation of Indigent Criminal Defendants in the
Federal District Courts, 76 Harv.L.Rev. 579 (1963); Note,
Representation of Indigents in California -- A Field Study of the
Public Defender and Assigned Counsel Systems, 13 Stan.L.Rev. 522
(1961).
[
Footnote 2/19]
R. Sokol, A Handbook of Federal Habeas Corpus 53-54, 192-200
(1965).
[
Footnote 2/20]
Larsen, A Prisoner Looks at Writ-Writing, 56 Calif.L.Rev. 343,
353 (1968).
[
Footnote 2/21]
Note,
supra, 393
U.S. 483fn2/5|>n. 5, at 348-349
[
Footnote 2/22]
Freund, Remarks, Symposium, Habeas Corpus -- Proposals for
Reform, 9 Utah L.Rev. 18, 30 (1964).
[
Footnote 2/23]
Larsen, A Prisoner Looks at Writ-Writing, 56 Calif.L.Rev. 343,
347-348 (1968).
[
Footnote 2/24]
"Reasonable access to the courts is . . . a right [secured by
the Constitution and laws of the United States], being guaranteed
as against state action by the due process clause of the fourteenth
amendment. Insofar as access by state prisoners to federal courts
is concerned, this right was recognized in
Ex parte Hull,
312 U. S.
546,
312 U. S. 549. . . . The
right of access by state prisoners to state courts was recognized
in
White v. Ragen, 324 U. S. 760,
324 U. S.
762, n. [1]."
Hatfield v. Bailleaux, 290 F.2d 632, 636 (C.A. 9th
Cir.1961).
MR. JUSTICE WHITE, with whom MR. JUSTICE BLACK joins,
dissenting.
It is true, as the majority says, that habeas corpus is the
Great Writ, and that access through it to the courts cannot be
denied simply because a man is indigent or illiterate. It is also
true that the illiterate or poorly educated and inexperienced
indigent cannot adequately help himself, and that, unless he
secures aid from some other source, he is effectively denied the
opportunity to present to the courts what may be valid claims for
post-conviction relief.
Having in mind these matters, which seem too clear for argument,
the Court rules that, unless the State provides a reasonably
adequate alternative, it may not
Page 393 U. S. 499
enforce its rule against inmates furnishing help to others in
preparing post-conviction petitions. The Court does not say so in
so many words, but apparently the extent of the State's duty is not
to interfere with indigents seeking advice from other prisoners. It
seems to me, however, that, unless the help the indigent gets from
other inmates is reasonably adequate for the task, he will be as
surely and effectively barred from the courts as if he were
accorded no help at all. It may be that those who could help
effectively refuse to do so because the indigent cannot pay, that
there is actually no fellow inmate who is competent to help, or
that the realities of prison life leave the indigent to the mercies
of those who should not be advising others at all. In this event,
the problem of the incompetent needing help is only exacerbated, as
is the difficulty of the courts in dealing with a mounting flow of
inadequate and misconceived petitions.
The majority admits that it "is indisputable" that jailhouse
lawyers like petitioner "are sometimes a menace to prison
discipline and that their petitions are often so unskillful as to
be a burden on the courts which receive them." That is putting it
mildly. The disciplinary problems are severe, the burden on the
courts serious, and the disadvantages to prisoner clients of the
jailhouse lawyer are unacceptable.
Although some jailhouse lawyers are no doubt very capable, it is
not necessarily the best amateur legal minds which are devoted to
jailhouse lawyering. Rather, the most aggressive and domineering
personalities may predominate. And it may not be those with the
best claims to relief who are served as clients, but those who are
weaker and more gullible. Many assert that the aim of the jailhouse
lawyer is not the service of truth and justice, but rather
self-aggrandizement, profit, and power. According to prison
officials, whose expertise in
Page 393 U. S. 500
such matters should be given some consideration, the jailhouse
lawyer often succeeds in establishing his own power structure,
quite apart from the formal system of warden, guards, and trusties
which the prison seeks to maintain. Those whom the jailhouse lawyer
serves may come morally under his sway as the one hope of their
release, and repay him not only with obedience, but with what minor
gifts and other favors are available to them. When a client refuses
to pay, violence may result, in which the jailhouse lawyer may be
aided by his other clients.
*
It cannot be expected that the petitions which emerge from such
a process will be of the highest quality. Codes of ethics,
champerty, and maintenance frequently have little meaning to the
jailhouse lawyer, who solicits business as vigorously as he can. In
the petition itself, outright lies may serve the jailhouse lawyer's
purpose, since, by procuring for a prisoner client a short trip out
of jail for a hearing on his contentions, the petition writer's
credibility with the other convicts is improved.
Habeas corpus petitions, as the majority notes, are relatively
easy to prepare: they need only set out the facts giving rise to a
claim for relief and the judge will apply the law, appointing a
lawyer for the prisoner and giving him a hearing when appropriate.
This fact does not buttress the unregulated jailhouse lawyer
system, but undermines it. To the extent that it is easy to state a
claim, any prisoner can do it, and need not submit to the mercies
of a jailhouse lawyer. To the extent that it is difficult --
Page 393 U. S. 501
and it is necessary to understand what one's rights are before
it is possible to set out in a petition the facts which support
them -- there may be no fellow prisoner adequate to the task. There
are some well informed and articulate prisoners, and some (not
necessarily the same) who give advice and aid out of altruism. When
the two qualities are combined in one man, as they sometimes are,
he can be a perfectly adequate source of help. But the jails are
not characteristically populated with the intelligent or the
benign, and capable altruists must be rare indeed. On the other
hand, some jailhouse clients are illiterate, and, whether
illiterate or not, there are others who are unable to prepare their
own petitions. They need help, but I doubt that the problem of the
indigent convict will be solved by subjecting him to the false
hopes, dominance, and inept representation of the average
unsupervised jailhouse lawyer.
I cannot say, therefore, that petitioner Johnson, who is a
convicted rapist serving a life sentence and whose prison conduct
the State has wide discretion in regulating, cannot be disciplined
for violating a prison rule against aiding other prisoners in
seeking post-conviction relief, particularly when there is no
showing that any prisoner in the Tennessee State Penitentiary has
been denied access to the courts, that Johnson has confined his
services to those who need it, or that Johnson is himself competent
to give the advice which he offers. No prisoner testified that
Johnson was the only person available who would write out a writ
for him, or that guards or other prison functionaries would not
furnish the necessary help. And it is really the prisoner client's
rights, not the jailhouse lawyer's, which are most in need of
protection.
If the problem of the indigent and ignorant convict in seeking
post-conviction relief is substantial, which I think it is, the
better course is not, in effect, to sanction
Page 393 U. S. 502
and encourage spontaneous jailhouse lawyer systems, but to
decide the matter directly in the case of a man who himself needs
help, and, in that case, to rule that the State must provide access
to the courts by ensuring that those who cannot help themselves
have reasonably adequate assistance in preparing their
post-conviction papers. Ideally, perhaps professional help should
be furnished, and prisoners encouraged to seek it so that any
possible claims receive early and complete examination. But I am
inclined to agree with MR. JUSTICE DOUGLAS that it is neither
practical nor necessary to require the help of lawyers. As the
opinions in this case indicate, the alternatives are various, and
the burden on the States would not be impossible to discharge. This
requirement might even be met by the establishment of a system of
regulated trusties of the prison who would advise prisoners of
their legal rights. Selection of the jailhouse lawyers by the
prison officials for scholarship and character might assure that
the inmate client received advice which would actually help him,
and regulation of the "practice" by the authorities would reduce
the likelihood of coerced fees or blackmail. The same legislative
judgment which should be sustained in concluding that the evils of
jailhouse lawyering justify its proscription might also support a
legislative conclusion that jailhouse lawyering under carefully
controlled conditions satisfies the prisoner's constitutional right
to help.
Regretfully, therefore, I dissent.
* Krause, A Lawyer Looks at Writ-Writing, 56 Calif.L.Rev. 371
(1968); Spector, A Prison Librarian Looks at Writ-Writing, 56
Calif.L.Rev. 365 (1968); Note, Constitutional Law: Prison
"No-Assistance" Regulations and the Jailhouse Lawyer, 1968 Duke
L.J. 343, 345-347; Note, Legal Services for Prison Inmates, 1967
Wis.L.Rev. 514, 520-522; Note, Prisoner Assistance on Federal
Habeas Corpus Petitions, 19 Stan.L.Rev. 887, 891, n. 31 (1967).