Tennessee argued that the prisoner violated a prison regulation barring prisoners from functioning as jailhouse lawyers; he violated state law restricting the practice of law to those licensed to do so.
The Supreme Court determined that the central question was the availability and quality of legal assistance provided by Tennessee to those prisoners who needed it. The state allowed prisoners minimal assistance, sometimes limited to allowing prisoners to place phone calls to public defenders, and the court, finding this wanting, held that absent more adequate assistance, it could not penalize a prisoner jailhouse lawyer for giving his. In essence, the Johnson v. Avery decision recognized not the right of jailhouse lawyers to practice, but the right of their clients to have meaningful access to the courts. Nevertheless, it has become a kind of charter for jailhouse lawyers ever since.
Some states have attempted to institutionalize this practice by sending interested prisoners to paralegal courses and, when they graduate, hiring them as prison library assistants. This comes with quite a caveat, however, for some paralegals are strictly forbidden to assist prisoners in preparing or bringing a legal claim to court. They may provide case citations or copies of cases decided by a given court, but only if the borrower knows and cites the proper case numbers. Yet by restricting rather than expanding the right of the imprisoned to fight their case or to litigate a claim against the prison or the state, the state’s initial aim is reached, albeit by other means.
Before Johnson v. Avery, jailhouse lawyers were routinely thrown into the hole for their writ-writing activities. In Johnson’s wake, however, states across the country lost a series of cases brought by jailhouse lawyers who, as a direct consequence of their violation of prison regulations, had lost good time, or a cut in one’s term, and other amenities. For example, in Ayers v. Ciccone, a federal court granted a writ of habeas corpus, ordered restoration of the petitioner’s good time, and issued a permanent injunction against the enforcement of the regulation without a “reasonable alternative” that offered legal help to prisoners of the Missouri Medical Center.10
But a funny thing happened in the aftermath of Johnson v. Avery.
Prison administrators began using other reasons and pretexts to punish prisoners who were active jailhouse lawyers—especially those who were engaged in civil actions against the prison administration.
In 1991, a group of scholars, researchers, and activists headed by Mark S. Hamm conducted an extensive review of disciplinary actions occurring in prisons across the country. The study found that no segment of the modern American prison population—not Blacks nor gays nor AIDS patients nor gang members—outweighed jailhouse lawyers when it came to prisoners who were targeted by the prison administration for punishment.
In their report, “The Myth of Humane Imprisonment,”11 the writers presented a telling tableau of the most frequently disciplined groups of prisoners:
Table 1 12
| Group | Percentage of sample |
| Jailhouse lawyers | 62.1 |
| Blacks | 51.2 |
| mentally ill | 37.5 |
| Gang members | 32.7 |
| Political prisoners | 33.3 |
| Hispanics | 29.6 |
| Homosexuals | 24.0 |
| Whites | 20.1 |
| AIDS patients | 18.4 |
| Physically handicapped | 17.3 |
| Asians | 5.0 |
The report notes, “Respondents observed that guards and administrators had a standard practice of singling out jailhouse lawyers for discipline and retaliation for challenging the status quo.” It is telling that those who, for the most part, are the most studious of prisoners, those who are most apt to use pen and paper—rather than, say, a “lock in a sock”—to address and resolve grievances, are the most targeted of all prison populations. It speaks volumes about the threats posed to the people who think and who work to transform the repressive power relations that exist in every prison in the United States.
While the Hamm report may not have met the standards of rigor required by academic journals, other studies, such as that undertaken in furtherance of the civil actions of Ruiz v. Estelle,13 have certainly confirmed that prison discipline is disproportionately harsh on jailhouse lawyers.
Few people are better situated than jailhouse lawyers to observe the contradictions in society and, on occasion, to bring them forth into public view. For their services, for protecting the Constitution from violation, their institutional reward is often a bitter consignment to the depths of the hole. The reason is actually quite simple: unlike other groups in prisons, jailhouse lawyers, in helping to free other prisoners or reduce their sentences, act to challenge how the joint is run. Jailhouse lawyers force prisons to change their formal rules and regulations, especially when they are illogical or downright silly, and for this administrators unleash their disciplinary arsenal with special vehemence.
That is why in every hole, in every prison, you will find some jailhouse lawyers who are there on pretextual—and frequently false—disciplinary reports. Under U.S. constitutional law, it was no longer kosher to write them up for being a jailhouse lawyer. Other “cover charges” are inflicted instead.
That’s the way the game is now played.
2
WHAT “THE LAW” IS
What is “the law”?
It really depends on who you ask.
Like Scripture, the law seems to be many things to many people.
The great French Enlightenment thinker Rousseau once opined, “Law is an invention of the strong to chain and rule the weak.”1
In Marx’s view, it is “the will of [one] class made into a law for all.”2
Is law merely morality or the institutionalization of what we commonly view as right and wrong?
In the United States, where history evolves from the spectacle and national drama of slavery, law fails on the question of its internal morality. The words of North Carolina Supreme Court “Justice” Thomas Ruffin, spoken in 1829, leave no doubt as to the morality of his pro-slavery rulings: “The power of the master must be absolute, to render the submission of the slave perfect. . . . As a principle of moral right, every person in his retirement must repudiate it. But in the actual condition of things it must be so.”3
Now, as then, the law continues to be an instrument of the powerful, morality be damned. For the weak, the powerless, the oppressed, the law is more often a hindrance than a help.
As early as the 1760s, the man now deemed the avatar of Western capitalism, Adam Smith (author of the economics classic, An Inquiry into the Nature and Causes of the Wealth of Nations, 1776), lectured openly on the role of the law, and whom it serves:
Laws and governments may be considered in this and indeed in every case as a combination of the rich to oppress the poor, and preserve to themselves the inequality of the goods which would otherwise be soon destroyed by the attacks of the poor, who if not hindered by the government would