"If the judges interpret the laws themselves, and suffer none else to interpret, they may easily make, of the laws, [a shredded] shipman's hose!" - King James I of England, around 1616.

“No class of the community ought to be allowed freer scope in the expression or publication of opinions as to the capacity, impartiality or integrity of judges than members of the bar. They have the best opportunities of observing and forming a correct judgment. They are in constant attendance on the courts. Hundreds of those who are called on to vote never enter a court-house, or if they do, it is only at intervals as jurors, witnesses or parties. To say that an attorney can only act or speak on this subject under liability to be called to account and to be deprived of his profession and livelihood by the very judge or judges whom he may consider it his duty to attack and expose, is a position too monstrous to be entertained for a moment under our present system,” Justice Sharwood in Ex Parte Steinman and Hensel, 95 Pa 220, 238-39 (1880).

“This case illustrates to me the serious consequences to the Bar itself of not affording the full protections of the First Amendment to its applicants for admission. For this record shows that [the rejected attorney candidate] has many of the qualities that are needed in the American Bar. It shows not only that [the rejected attorney candidate] has followed a high moral, ethical and patriotic course in all of the activities of his life, but also that he combines these more common virtues with the uncommon virtue of courage to stand by his principles at any cost.

It is such men as these who have most greatly honored the profession of the law. The legal profession will lose much of its nobility and its glory if it is not constantly replenished with lawyers like these. To force the Bar to become a group of thoroughly orthodox, time-serving, government-fearing individuals is to humiliate and degrade it.” In Re Anastaplo, 18 Ill. 2d 182, 163 N.E.2d 429 (1959), cert. granted, 362 U.S. 968 (1960), affirmed over strong dissent, 366 U.S. 82 (1961), Justice Black, Chief Justice Douglas and Justice Brennan, dissenting.

" I do not believe that the practice of law is a "privilege" which empowers Government to deny lawyers their constitutional rights. The mere fact that a lawyer has important responsibilities in society does not require or even permit the State to deprive him of those protections of freedom set out in the Bill of Rights for the precise purpose of insuring the independence of the individual against the Government and those acting for the Government”. Lathrop v Donohue, 367 US 820 (1961), Justice Black, dissenting.

"The legal profession must take great care not to emulate the many occupational groups that have managed to convert licensure from a sharp weapon of public defense into blunt instrument of self-enrichment". Walter Gellhorn, "The Abuse of Occupational Licensing", University of Chicago Law Review, Volume 44 Issue 1, September of 1976.

“Because the law requires that judges no matter how corrupt, who do not act in the clear absence of jurisdiction while performing a judicial act, are immune from suit, former Judge Ciavarella will escape liability for the vast majority of his conduct in this action. This is, to be sure, against the popular will, but it is the very oath which he is alleged to have so indecently, cavalierly, baselessly and willfully violated for personal gain that requires this Court to find him immune from suit”, District Judge A. Richard Caputo in H.T., et al, v. Ciavarella, Jr, et al, Case No. 3:09-cv-00286-ARC in the U.S. District Court for the Middle District of Pennsylvania, Document 336, page 18, November 20, 2009. This is about judges who were sentencing kids to juvenile detention for kickbacks.

Thursday, October 8, 2015

The untapped source of court representatives in the U.S. - jailhouse lawyers

The loss of the Harvard loss debated team to the debate team of prisoners made headline across the leading mainstream media sources, such as, among others:

Washington Post raised a very valid point - that such a win by prisoners over Ivy League law students is not surprising, because:

  • prisoners had years of experience on the college kids;
  • they had to overcome hardships in preparation - prison security prohibitions on learning materials such as Internet-based databases and law research;
  • prisoners, according to one of the participants prisoners in the debate, worked towards a goal to show their worth to society;
  • Harvard students were taken by surprise by the prisoners preparedness and "unanticipated position", in other words, there is an implication that Harvard law students, very possibly, were too uppity to properly prepare for a debate with such a lowly opponent as convicted prisoners, and it always is a bad strategy to underestimate the strength of your opponent

What mainstream media does not cover though is that not only participants of the "Bard" program are capable attorneys-without-a-JD-degree.

Many prisoners are, by necessity.

Once a person lands up in prison, the state no longer has to provide any representation, if assigned representation in criminal defense that landed prisoners in prison can even be called representation.

In prison, prisoners are faced with discrimination, denial of medical care, guard brutality - and efforts by the government not to notice what is going on behind prison walls and to quash all dissents by restricting civil rights.

Let's look at the names of statutes restricting rights of prisoners to obtain relief from often unlawful convictions obtained through police coercion and outright brutality, perjury by police witnesses and prosecution and assigned criminal defense in name only.

Even though the Civil Rights Act of 1983 does not require exhaustion of state administrative remedies to gain a right to sue, for prisoners, people who are mostly poor and having no access to legal services - it does, and it does it in a brutal and completely inhumane way.

The statute of limitations under the PRLA for a prisoner to preserve his or her right to sue in federal courts for UNCONSTITUTIONAL prison conditions is 15 DAYS - compare it to 3 YEARS for everybody else.

If a prisoner who was brutally beaten up by guards does not file a grievance with the same guards who beat him up, practically asking to beat him up more, then he loses his right to raise unconstitutionality of such conduct ever again.

According to Marbury v Madison, the pivotal U.S. Supreme Court case by which the U.S. Supreme Court gave itself permission to interpret the U.S. Constitution, any law that is unconstitutional is VOID - not voidable, but VOID, meaning there should be no waivers, no exhaustion requirements and no statutes of limitation, not 15 days, not 3 years.

Yet, PRLA exists, and is repeatedly used to cut off prisoners' constitutional rights.

The next "winner" of a statute is the Anti-terrrorism and Effective Death Penalty Act of 1996.

AEDPA cuts off rights of death row prisoners for multiple appeals, which many critics believe, increases possibilities for innocent people to be killed by the government.

The next adverse treatment/discrimination prisoners meet in federal courts is restrictions on appeals and determinations of presumed frivolity I wrote about earlier in one of my blogs here.

The discriminatory reach of the 3-strikes bar to civil rights actions by prisoners starts at detention of a presumed-innocent accused, not with conviction.

28 U.S.C. 1915(g) provides:  

"In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasionswhile incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be grantedunless the prisoner is under imminent danger of serious physical injury.

 Furthermore, under 28 U.S.C. 1915(h):

" (h) As used in this section, the term “prisoner” means any person incarcerated or detained in any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms and conditions of parole, probation, pretrial release, or diversionary program.

Given the fact that courts regularly dismiss even represented civil rights actions as part of their policies and based on court-invented bars to jurisdiction, it is a matter of time when a prisoner is adjudicated as having filed 3 "frivolous" pro se actions in court and is permanently barred from any relief against unconstitutional actions of the government, putting a bull's eye for further government abuse on his or her head.

I was exposed to what was going on in the prison system of the State of New York when, while still a law student, I had an academic externship and then volunteered, for Prisoners Legal Services of New York, a non-profit protecting prisoner's rights (at least some of them).

When I told my professor of Advanced Criminal Law who was previously the Commissioner of New York State Department of Corrections appointed to clean up the system after the notorious Attica riot, that prisoners in New York are starved as punishment, he got excited to the point of accusing me of lying.  I will give credit to his no less famous integrity when the next day he came back, told me that he verified my words, had them confirmed and apologized.

New York does starve prisoners as punishment, as do other states.  Prisoners punished by "the loaf" wrote to us in Prisoners Legal Services, reported dramatic, health and life-threatening loss in weight, and all we could do is file administrative appeals for medical releases from solitary where that "loaf" was "administered".

The organization had severe budget restrictions, and, when I was put on the "intake" of letters from prisoners, one of my main duties was to write rejection letters:

  • no, we do not handle habeas corpus proceedings;
  • no, we do not handle criminal appeals;
  • no, we do not handle motions to vacate criminal convictions based on new evidence;
  • no, we do not handle claims of unlawful solitary confinement unless you are put into it for more than 18 months (!)
No, no, no, no.  It was heartbreaking to read prisoners letters, and it was even more heartbreaking to have to write rejection letters - based on budget constraints only.

My experience in Prisoners Legal Services shaped my determination to provide a wide specter of services to people, from family court, to civil proceedings in the Supreme Court, to criminal proceedings, to civil rights cases in federal courts.

For the majority of prisoners the only rescue available to them is their own determination and hard work.  

Note what a prisoner convicted of manslaughter said to the reporter after winning the debate against a team of privileged kids, Harvard law students: that prisoners may lack in rhetoric, but make up in hard work.

And their law libraries where there are no online Westlaw databases, where they have to learn the As and Bs of legal research through books, from scratch, which is time-consuming, but prisoners have time, and they use it.

There are many successful civil rights cases brought, against all odds, by pro se prisoners.

And, as far back as in 1969, the U.S. Supreme Court allowed "jailhouse lawyers" to provide legal services to other prisoners - because of the absence of any other alternative.

Well, time has come where 80% of Americans cannot afford services of licensed attorneys.

Yet, there is an untapped resource who, maybe "lack in rhetoric", but makes up by hard work and determination, to the point of being BETTER than the best of the best of American law students.

Loss of liberty does not constitute loss of a right to earn a livelihood.

Prisoners who trained themselves in the law, as well as anybody else who did that, should be able to provide legal services to people.

That will be fair.

That will close the "justice gap immediately".

Representation by such "jailhouse lawyers" will be no worse, and actually better, than representation by privileged and politically entrenched people with eyes on political career and not on meeting their clients' needs, even in raising challenging issues.

But, to tap into prisoners as a resource of legal services, prisoners must be protected from repercussions for such services that can often involve stepping on toes of government and suing governmental officials for misconduct.

And, notwithstanding whether prisoners are or are not a valuable resource of legal services to other people, discriminatory statutes:

Prisoner Reform Litigation Act, with its 15-day statute of limitations for constitutional violations;
Anti-terrorism and "Effective Death Penalty" Act, with its cut off of possibility of exonerations for wrongfully convicted condemned prisoners;
The 3-strikes act putting a permanent bar on protection of prisoners against constitutional violations by the government, even after they beat all odds of PRLA, and applied in a biased and arbitrary fashion by the courts - 

all of these "beauties" of discrimination against prisoners should go, along with death penalty, prolonged solitary confinement and starving prisoners as punishment.

After all, we are the beacon of freedom and democracy for other countries of the world.


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