With No Legal Help In Sight, 'Jailhouse Lawyers' Fill The Void

By Emma Cueto | January 13, 2019, 8:02 PM EST

Before he was exonerated, Derrick Hamilton was among the ranks of prisoners operating as 'jailhouse lawyers,' handling legal work on behalf of their fellow inmates. (Kevin Penton | Law360)

Derrick Hamilton was convicted of murder in 1991 and exonerated more than two decades later. For much of the time in between, he was his own best advocate in court.

Representing himself from prison, Hamilton honed his legal skills and became what is colloquially known as a jailhouse lawyer — someone in prison who helps meet their own legal needs and those of other inmates.

"I was always in the courtroom, so I wanted to understand what was going on," he said. "The more I learned, the more intriguing I found it to be."

Jailhouse lawyers cannot represent another person in court, but they can offer advice, write motions or briefs, and do legal research on behalf of their fellow inmates. They might assist with post-conviction work, raise a claim for ineffective assistance of counsel during a criminal trial, pitch in on divorce or custody cases, or help someone object to prison conditions or push for necessary medical care.

They are not allowed to accept payment, which would open them up to criminal charges for unauthorized practice of law. But many are more than willing to help others anyway.

Some are wildly successful, including jailhouse lawyers who have written petitions taken up by the U.S. Supreme Court and some who have gone on to become licensed attorneys after being released — for instance Shon Hopwood, who wrote a successful petition for certiorari to the U.S. Supreme Court on behalf of a fellow inmate in 2002 while serving a sentence for bank robbery. The court not only heard the case, but unanimously sided with the inmate, John Fellers.

However, jailhouse lawyers can also make mistakes that badly hurt another inmate's chances of success or that burden the court system with flurries of litigation. And regardless of skill, all face major hurdles accessing the courts — from a lack of materials to outdated law libraries to retaliation by prison officials.

Their very existence is a symptom of what experts say is a lack of access to justice for one of the most underserved populations: the millions of people already locked within the justice system itself.

"There are some who have been very effective," said David Fathi, director of the ACLU's National Prison Project. "But we shouldn't let those few examples obscure the fact that the vast majority of the 2.3 million people behind bars in this country have virtually no access to the courts."

What is a Jailhouse Lawyer?

Despite filling a key void in legal services, much about jailhouse lawyers is unknown. Even basic statistics are missing, such as how many jailhouse lawyers exist in the U.S. prison system, let alone information about how effective they are or how many people they assist.

Even though they are unofficial and unregulated, they are often acknowledged both by the prisons and the courts. The federal Bureau of Prisons specifically allows inmates in the same facility to help each other with legal work, and many court cases have also noted the role jailhouse lawyers play.

For instance, a California federal court recently found that a Spanish-speaking inmate was not entitled to a translator or to court documents that had been translated into Spanish, and justified the decision in part by saying that that the plaintiff, Rogelio May Ruiz, could seek assistance from a jailhouse lawyer.

"The use of jailhouse lawyers is one recognized avenue available to ensure that non-English speaking and/or illiterate inmates have meaningful access to the courts," U.S. District Judge Barbara A. McAuliffe wrote in a May 2017 order.

Courts have in some instances also protected jailhouse lawyers' ability to do their work.

In Vermont, after an inmate in state prison, Serendipity Morales, was charged with practicing law without a license, the Vermont Supreme Court dismissed the case, noting that she had not actually charged for her services.

"From a public policy perspective," the decision said, "although 'jailhouse lawyers' may pose a risk to the individuals they are trying to help ... they may also perform a valuable service in promoting more meaningful access to justice than their fellow inmates would otherwise enjoy."

There is no universal definition for a jailhouse lawyer. Most, however, are self-taught, including Hamilton, who says that he got his start with a legal course he took on Rikers' Island while awaiting trial.

Once sentenced, he started out as a "counterman" in federal prison, working the counter of the prison law library.

"You would get books for other people when they would come and ask for certain things, you would have to be the researcher that gets it to them," Hamilton said. "I did that for a lot of years. That's when I became very knowledgeable."

Some jailhouse lawyers also have more formal training, and in some very rare cases, they can have a law degree.

One such prisoner was Theresa Squillacote, who was convicted of espionage in 1998. Squillacote lost her law license, but wound up giving advice to others once she was incarcerated, in addition to working on her own appeals.

To avoid confusion, Squillacote, who was released after serving 18 years, was careful to note she did not use the term jailhouse lawyer to describe herself; rather, she said, she preferred to think of herself as helping others learn how to advocate for themselves.

Barriers — And Retaliation

Whatever level of formal training, however, jailhouse lawyers can face intense obstacles when attempting to access and navigate the court system.

"The most basic tools of litigation — pencils, paper, a typewriter — prisoners don't have access to those," Fathi said. "Prisoners don't have access to legal research. Prisoners don't have access to the internet. Some prison systems have completely gotten rid of their law libraries."

Although the Bureau of Prisons' official regulations require federal prisons to have and maintain a law library, a 1996 U.S. Supreme Court decision in Lewis v. Casey found that while prisoners had a right to access the court, they did not have a right to a law library, so long as the prison provided other resources.

As a result, according to Fathi, some prison systems, including Arizona where the Lewis case originated, have done away with law libraries, and it is unclear if the required alternatives are being offered. The Arizona Department of Corrections did not respond to a request for comment.

Lack of internet access is another barrier. Though some prisons have a limited online email system, people in prison are not able to search the internet or access court websites, making it more difficult to file documents and find current information.

Darius Maurice Bailey, who was convicted of bank robbery as a 19-year-old in Virginia in 1996 and is not scheduled to be released until 2025, says that accessing information is his top problem.

Bailey, who first became interested in law while studying up on entertainment law as an aspiring musician, said that after being convicted and realizing he could not afford an appellate lawyer, he began teaching himself criminal law. But trying to successfully advocate for himself is difficult.

"If there's anything that could be done to help us navigate the legal system a little easier, it would be allowing us the opportunity to have the same access to cases as prosecutors," Bailey said. "As it stands, the cases we are allowed to see are screened and, even then, are 'old news' by the time we actually do see them. Prosecutors have resources that allow them to always stay a step ahead."

The federal Bureau of Prisons declined to comment for this story and did not respond to an additional request for comment regarding policies at Bailey's facility, Federal Medical Center Butner, in North Carolina.

Even when workarounds are in place, delays are still a problem since inmates still have to meet filing deadlines. Judges might be lenient for some things once a case is filed, Hamilton said, but there typically isn't any leeway on requirements such as the statute of limitations.

Lockdowns and library closures cause a similar problem, Bailey says, especially since people only have so much time in a day when they are allowed to use the law library.

Even when given time, resources and up-to-date information, trying to understand landmark decisions is its own headache.

After the Anti-Terrorism and Effective Death Penalty Act, which banned successive habeas petitions and made other changes to appellate processes, was passed in 1996, Hamilton and his fellow inmates were left "scrambling" to understand it.

"Lawyers didn't even know how to interpret it yet," he remembers.

Jailhouse lawyers say they also risk retaliation from prison officials, especially when they file suit against the prison itself or assist others who do so.

"I spent 10 years in special housing," Hamilton said, referring to the practice that is also known as solitary confinement or segregation. "It was retaliation for litigating [against the prison]. They don't like people that litigate against them."

The New York State Department of Corrections and Community Supervision declined to comment due to pending litigation. Hamilton is currently suing the department for allegedly violating his right to religious freedom.

Others also said retaliation was common — and at least one jailhouse lawyer has sued over these alleged practices.

Thomas Wisniewski, who is serving time in state prison in Pennsylvania, filed suit in 2013 in federal court against prison officials for removing him from his job in the law library, allegedly because he helped another inmate with a challenge to prison policy. The case eventually settled.

Wisniewski and the Pennsylvania Department of Corrections did not respond to a request for comment.

The Downside of Jailhouse Lawyers

In addition to the challenges jailhouse lawyers face when trying to advocate for themselves or advise others, there are also problems inherent in having people who are essentially unlicensed amateurs provide legal services.

Charles Cavenee, an attorney with Legal Services for Prisoners in Kansas, a nonprofit funded by the state, says that in his experience most jailhouse lawyers are not very effective, and many are sloppy.

Often, he said, inmates file lawsuits based on rumors that have circulated around the prison without putting in any investigation, or would encourage other inmates to file useless motions. That can include motions to modify a sentence, which the district court does not have jurisdiction to hear once the case has been closed, according to Cavenee.

"I'm sure there are jailhouse lawyers behind that who are telling these guys to file these things," he said.

Squillacote, who now runs the advocacy organization Core Legal Support in New York, echoed the sentiment.

"There were some that were just really smart and did really, really good work," Squillacote remembered. "And then there were some that … would really screw up and damage some inmates' situations."

The prohibition against charging for services leads to its own headaches. Despite the rules, many jailhouse lawyers try to accept indirect payment, resulting in schemes that often implicate family members in what is essentially money laundering, Cavenee said. And when someone gives bad advice, sometimes the people they've assisted will retaliate with violence, he added.

That volatile brew is why Kansas set up Legal Services for Prisoners in the 1980s, but budget cuts have left it with limited resources to make a dent in the legal needs of the 10,000 people incarcerated in the state, according to Cavenee. The program is down to three attorneys compared to the 14 lawyers on staff when it started, Cavenee said.

Indeed, the very existence of jailhouse lawyers implies a lack of traditional legal services for the millions of people incarcerated in the United States.

It's a gap that Fathi calls "massive and yawning."

"It is appalling that we have prisoners facing life and death consequences — whether it's trying to get medical treatment for their cancer or trying to appeal their death sentence — who are being represented by fellow prisoners," Fathi said.

--Editing by Pamela Wilkinson.

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