JOHNSON v. AVERY, COMMISSIONER OF CORRECTION, ET AL.
No. 40
Supreme Court of the United States
Argued November 14, 1968. Decided February 24, 1969.
393 U.S. 483
Thomas E. Fox, Deputy Attorney General of Tennessee, argued the cause for respondents. With him on the brief were George F. McCanless, Attorney General, and David W. McMackin, Assistant Attorney General.
Melvin L. Wulf filed a brief for the American Civil Liberties Union et al., as amici curiae, urging reversal.
Thomas C. Lynch, Attorney General of California, Albert W. Harris, Jr., Assistant Attorney General, and Robert R. Granucci and George R. Nock, Deputy Attorneys General, filed a brief for the State of California, as amicus curiae, urging affirmance.
I.
Petitioner is serving a life sentence in the Tennessee State Penitentiary. In February 1965 he was transferred to the maximum sеcurity 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 thе 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
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 plаce 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,2 and the Congress has demonstrated its solicitude for the vigor of the Great Writ.3 The Court has steadfastly insisted that “there is no higher duty than to maintain it unimpaired.” Bowen v. Johnston, 306 U. S. 19, 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
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 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
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 оf 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.4 This appears to be equally true of Tennessee‘s prison facilities.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
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.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 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
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 reаsonable 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,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.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.10 We express no judgment concerning these plans,
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.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.
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 оr 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
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 world1 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 appellatе 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 detention2 or relief against management
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.6 While a few States have post-conviction statutes providing such counsel,7 most States do not.8 Some States like California do appoint counsel to represent the indigent рrisoner in his collateral hearings, once he succeeds in making out a prima facie case.9 But as a result, counsel
Many think that the prisoner needs help at an early stage to weed out frivolous claims.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.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.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
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 schоol 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
programs have been beneficial not only to the inmates but to the students, the staff and the courts.”15
The difficulty with an ad hoc program resting on a shifting law school population is that, worthy thоugh it be, it often cannot meet the daily prison demands.16 In desperation, at least one State has allowed a selected inmate to act as “jailhouse” counsel for the remaining inmates.17 The service of legal aid, public defenders, and assigned counsel has been spread too thinly to serve prisons adequately.18 Some federal courts have begun to provide prisons with standardized habeas corpus forms, in the hope that they can be used by laymen.19 But the prison population has not found that satisfactory.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.21 Without the assistance of fellow prisoners, some meritorious claims would never see the light of a courtroom. In cases
“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 assemblе 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.”23
The cooperation and help of laymen, as well as of lawyers, is necessary if the right of “[r]easоnable access to the courts”24 is to be available to the indigents among us.
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
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
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 proсuring 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—
*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).
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
Regretfully, therefore, I dissent.