International Law

DEFINITION OF JAILHOUSE LAWYER

By John Hirst

JAILHOUSE LAWYER - A prison or jail inmate who assists other inmates with litigation.

An inmate's First Amendment right to assist other inmates with litigation was first recognized in Johnson v. Avery, 393 U.S. 483, 490 ('69). But that case also made clear that the right could be restricted. '[T]he 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.' Id. at 490. Restrictions may limit the time and place of such activities, id., but they must be 'reasonably related to legitimate penological interests.' Turner v. Safley, 482 U.S. 78, 89 ('87); Bradley v. Hall, No. 94-35844, slip op. 10511, 10521-2 (9th Cir.8/23/95)(finding under Turner that prison 'disrespect rule' as applied to inmate was not reasonably related to legitimate penological interests because it burdened his ability to file grievances). Limitations may not be imposed arbitrarily or without reason.

In enacting restrictions on 'jailhouse lawyers,' many courts have implicitly adopted the proposition that there is a fundamental right to provide legal assistance. Within Johnson's guarantee of the right of mutual inmate assistance is the derivative right, vested in 'jailhouse lawyers,' to provide legal assistance to others. See Adams v. James, 784 F.2d 1077, 81 (11th Cir.'86) (a properly stated First Amendment claim by an inmate does not fail simply because the activities were conducted on behalf of others); Vaughn v. Trotter, 516 F.Supp. 886, 93 (M.D.Tenn.'80) ('The clear right to receive assistance necessarily creates the concomitant right to provide it.'). 'Logic demands that if inmate mutual assistance is constitutionally required, the state, through its agents, may not harass, intimidate, or otherwise interfere with those inmates who have undertaken to provide legal assistance to other inmates.' Id. at 892-3.

Proper time, place, and manner restrictions could be adopted by the prison to curtail the First Amendment rights of 'jailhouse lawyers.' See, e.g.,Ward v. Rock Against Racism, 491 U.S. 781, 91 ('89) (application of time, place and manner analysis to a First Amendment claim).

The right of mutual legal assistance among inmates is ultimately to protect and aid 'the blind, illiterate, and mentally handicapped...' Vaughn, 516 F.Supp. at 892.

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Full post as published by prisonlawinsideout on September 09, 2008 (boomark / email).