Jailhouse lawyers are inmates who provide legal assistance to other inmates within the correctional system. These individuals usually have developed an understanding of the law through self-study or practical experience, and they use this knowledge to help fellow inmates with legal issues such as filing appeals, drafting legal documents and preparing for court appearances.

Jailhouse lawyers are often sought out by other inmates who are unable to afford an attorney or are representing themselves in court. They may provide assistance with a variety of legal matters, including criminal defense, civil litigation, and prison administrative proceedings. In some cases, they may help other inmates with non-legal issues such as filing prison grievances, disciplinary hearings or with general navigation of the prison system’s policies and procedures.

It’s important to note that while jailhouse lawyers can be a valuable resource for inmates, they are not licensed attorneys and their legal advice may not always be accurate or reliable. Additionally, in some cases, providing legal assistance to other inmates can be prohibited by prison rules or may result in disciplinary action to an inmate.

Who can use jailhouse lawyers?

In Johnson v. Avery, 393 U.S. 483 (1969), the Supreme Court recognized a need for illiterate or functionally illiterate inmates to receive assistance in preparing legal documentation. Federal courts usually don’t restrict this decision to such a narrow holding.

The initial restriction forbidding legal assistance by anyone but illiterate inmates has been found contrary to the intent of Johnson v. Avery. Where there is no “reasonable alternative,” all inmates must be permitted to seek legal counsel from a jailhouse lawyer. See: Storseth v. Spellman, 654 F.2d 1349 (9th Cir. 1981).

An exception to the broad statement all inmates must be permitted assistance from a jailhouse lawyer occurs when individuals have been temporarily confined in isolation. As long as the confinement is not for an extended duration hindering access to the courts, isolated inmates need not be afforded assistance from a jailhouse lawyer. See: In re Harrell, 470 P.2d 640 (Cal. 1970).

It must be noted that Johnson v. Avery applies only when a prison system has no “meaningful” alternative to the jailhouse lawyer. See: Lewis v. Casey, 578 U.S. 343 (1996). Thus, if a prison provides paralegal services, an inmate may be denied the assistance of a jailhouse lawyer in some instances.

What can jailhouse lawyers do?

The issue in Johnson v. Avery concerned what jailhouse lawyers can do, specific to habeas corpus petitions. However, similarly protected is a jailhouse lawyer’s aid in preparing other filings such as a civil rights action under 42 U.S.C. §1983. In Wolff v. McDonnell, 418 U.S. 539 (1974), the Supreme Court held that the doctrine of Johnson v. Avery was not limited to cases involving the preparation of habeas corpus petitions, but also applied to civil rights actions.

Jailhouse lawyers may also assist with internal prison matters. In Kirby v. Blackledge, 530 F.2d 583 (4th Cir. 1976), prison officials were required to allow the assistance of a fellow prisoner, or a designated staff member, to be part of proceedings to transfer an illiterate and disadvantaged prisoner to maximum security.

In Clutchette v. Enomoto, 471 F. Supp. 1113 (N.D. Cal. 1979), the Fourth Circuit held prison disciplinary procedures must permit an inmate who is illiterate or facing complex issues to have adequate assistance in lieu of counsel. The reasoning was that a prisoner might not have the capacity to collect and present necessary evidence for an adequate presentation of the case.

Who may act as a jailhouse lawyer?

Related to the issue of who may receive legal assistance from a jailhouse lawyer, is the problem of who among the inmate population may act as a jailhouse lawyer. Courts have stressed the right asserted in Johnson v. Avery was not the privilege of the jailhouse lawyer to practice law. Rather, it was the right of an inmate to receive legal assistance from a fellow prisoner. See: Bounds v. Smith, 430 U.S. 817 (1977).

This principle becomes clear in cases where jailhouse lawyers have attempted to send legal material to someone in another prison and, as a result, have been subjected to disciplinary action. The rule which emerged has been the inmate “client” could receive legal assistance from others in his or her own prison. Because one’s rights could be protected there, it became unnecessary for legal assistance to be provided by a person confined at a different prison facility. See: McKinney v. DeBord, 324 F. Supp. 928 (E.D. Cal. 1970).

Therefore, because no prisoner is entitled to receive legal assistance from a particular prisoner in another prison, access to the jailhouse lawyer may be restricted accordingly, in the absence of evidence that alternative means of obtaining legal assistance are unavailable. See: Webb v. State, 412 N.E.2d 790 (Ind. 1980).

Can jailhouse lawyers be restricted by institutional rule?

Jailhouse lawyers can be restricted in accordance with institutional rules when the restrictions are “reasonable.” In Johnson v. Avery, the Court acknowledged activities of a jailhouse lawyer could be restricted as to time and place. Furthermore, prohibition of the jailhouse lawyer charging any fee was also announced.

What prison restrictions can be placed on jailhouse lawyers?

One litigated issue involving restrictions upon jailhouse lawyers concerned the proper exercise of discretion by prison officials. Courts have found the uncontrolled discretion of prison officials restricting the practice of the jailhouse lawyer is unconstitutional under Johnson v. Avery. Discretion must be subject to established guidelines or standards to assure they are reasonable. See: Sostre v. McGinnis, 442 F.2d 178 (2nd Cir. 1971).

A rule requiring legal assistance be conducted in a specific area of an institution has been upheld. Both before and after the Johnson ruling, courts have approved such a rule, as long as prison officials were not unduly restrictive in the available hours of access. See: Jensen v. Satran, 303 N.W.2d 568 (N.D. 1981).

A jailhouse lawyer’s right to have another prisoner’s legal papers in their possession is inconsistent. In one case, the court held jailhouse lawyers must be able to possess papers pertaining to their “client’s” case. See: In re Harrell, 470 P.2d 640 (Cal. 1970). Another court interpreted a regulation as authorizing documents to be kept by the jailhouse lawyer only until the petition was complete, after which the papers had to be returned to the “client.” See: Gilmore v. Lynch, 319 F. Supp. 105 (N.D. Cal. 1970).

Another challenged regulation involved the number of books which could be retained by a jailhouse lawyer in his cell. The court found such a restriction would be permissible in most instances. See: Storseth v. Spellman, 654 F.2d 1349 (9th Cir. 1981).

If you review the case of In re Harrell, 470 P.2d 640 (Cal. 1970), the California Supreme Court dealt extensively with the type of restrictions permissible under the Johnson v. Avery decision. The regulations discussed therein were typical of many correctional institutions.

Jailhouse lawyers and First Amendment protection

The Supreme Court held in Shaw v. Murphy, 532 U.S. 223 (2001), jailhouse lawyers do not have any additional First Amendment protection to provide legal assistance to fellow inmates beyond the protections otherwise available under the test outlined in Turner v. Safley, 482 U.S. 78 (1987). To learn more about the protections defined by Turner, read my post titled: What is the Turner test?

What books best help jailhouse lawyers?

The Colossal Book of Criminal Citations and The Colossal Book of Civil Citations, by Richard Davis, are two of the most thorough citations books covering criminal and civil subjects on the market. These books will strengthen every self represented individual or jailhouse lawyer’s legal filings. Our books are institutional friendly and shipped to facilities throughout the country. Order your books today.