Former chief justice of the Supreme Court Warren Burger has described “our” legal profession as “sick.” In Burger’s view, the U.S. legal profession is marked by “incompetence, lack of training, misconduct, and bad manners. Ineptness, bungling, malpractice, and bad ethics can be observed in courthouses all over this country every day.”1
If such was the view of one of the nation’s leading judicial officers, the wonder is not that there are tens of thousands of jailhouse lawyers, but that there are not many more.
It is this deep, abiding disenchantment with lawyers that forces some people to represent themselves and also to assist others. In every penitentiary, in every state of the United States, there are men and women who have learned through study and experience, trial and error, the principles and practices of the law.
Many study case reports2 from cover to cover, and by so doing learn not grand theories of law, but how actual litigants fare in real cases where life, liberty, and property are at stake. Instead of dealing with a single state, such reports often describe cases from broad regions of the United States, so students learn about cases and outcomes in various state court systems, providing further insight into how their state may be out of step in some respects. They frequently read through broad areas of the law, not limited merely to criminal issues but including civil law, divorce complaints and property disputes. Such studies enable good jailhouse lawyers to serve their clients in a variety of ways.
Because such students will never be trained as representatives of the state, as in most law schools, they become deeply committed advocates for those they assist and serve. Their clients are their associates, sometimes their friends, and they themselves are as confined as those they are assisting. Since both client and jailhouse lawyer are convicts, it isn’t a stretch to say they identify with their clients, since they share an adversary. For both jailhouse lawyer and client, the state is that entity that stole their freedom and with which they must contend, and they are thus highly motivated to fight for those who enlist their help.
What follows are stories and firsthand accounts from the shadow world of jailhouse lawyers. These are stories of prisoners who use their time and mental energy to aid their often uneducated and illiterate fellow prisoners, for little more than a bag of coffee or a pouch of tobacco as pay.
Steve Evans
Steve was a slight, intense man, with a distinctive limp from his North Philadelphia days. With his curly hair and sharp features, he looked like an olive-skinned Puerto Rican. When he spoke, however, his accent was definitely North Philadelphia, with a taste of his family’s native Virginia.
Because he refused to take a cellmate, he was placed in the “hole,” the prison’s disciplinary housing unit on B Block of the century-old Huntingdon State Prison. In the approximately seven years that he spent in the hole, he left his cell rarely, venturing to visit the so-called yard—it was actually a row of cages—perhaps twice in half a decade, while conducting the majority of his business by either rapping to people from his cell or writing notes to them.
He had two hard-and-fast rules that governed his practice: no snitches and no baby rapers. All other convicts could approach him for help and he would usually find time to work on their cases. He was also a teacher for younger men who aspired to become jailhouse lawyers. He worked incessantly.
He asked men around him to order cases from both the prison law library and from various courts (for example, the U.S. Supreme Court provided a limited number of free opinions of their cases). Steve therefore read constantly and, fueled by an ever-present cup of Maxwell House coffee and a potent drag of his hand-rolled Top cigarette, he would take time off to discuss cases with interested guys deep into the night.
His reputation reached far and wide; men knew that he could be trusted to write their writs or advise them on where and how to lodge an appeal, when no other person on earth seemed to care. Every so often, a guy would come back from court and announce that Steve’s advice was correct; he had received a new hearing in his case, or sometimes a new trial. Steve seemed to take such news with genuine equanimity. If he obtained an ego boost from such news, it never showed. He seemed nonplussed about his considerable talents and brushed off praise like dandruff. This seemed all the more remarkable in the context of prison’s all-male milieu, where machismo often demands egotism.
Once, he was compared to another legendary jailhouse lawyer, an older white guy named Mayberry who won more civil cases than most lawyers do in their entire careers. It is rare to open a case report that doesn’t begin or end with Mayberry in the citation, or at least mention him in the text.
Steve demurred.
“I don’t even compare with that dude, man. I mean, he has spent a lifetime in these joints, filing cases from here up to the Supreme Court. His stuff is in the casebooks, man. He done made more law than street lawyers.”
When the speaker wouldn’t accept his assessment, Steve went even further.
“Dig this—I can’t even hold a jock strap to that dude, man. I might know this or that about the law—and at that, only criminal law—but this dude knows criminal law and civil law, back to front. I don’t, man.”
When the speaker once again protested, Steve politely closed the door.
“I ain’t got no ego about this stuff, man. I will help a brother, but I’m also helping myself. I learn when I look at other cases, man. But I don’t trip on it, man. I ain’t got no ego about the law, man. That’s they law; it ain’t our law, dude.
“They make that shit up as they go along.”
Such an assertion may sound shocking, but is it?
We, as Americans, believe that laws are decided by judges (or justices) of the courts. Essentially, judges say what the law is.
But history teaches us that it ain’t always so. Let us briefly examine the case of Santa Clara County v. Southern Pacific Railroad (1886).3 When California sought to tax the wealthy railroad companies, the companies went to court to defeat the challenge. The case went all the way to the Supreme Court, which, not surprisingly, ruled in favor of the rich.
What is remarkable isn’t that they did it, but how they did it.
If one peruses the text of the opinion, one will find no reference to what is now regarded as its central holding: that corporations are persons within the meaning of the Fourteenth Amendment to the Constitution, and are thus entitled to full constitutional protections.
How can that be?
It seems that the court reporter, whose duties are to record the proceedings, introduce the opinion in the printed text, and then publish the official opinion, cited a remark made by the court’s Chief Justice prior to oral arguments. In what are called the headnotes4 to the case, chief court reporter J.C. Bancroft Davis wrote, “The defendant Corporations are persons within the intent of the clause in section I of the Fourteenth Amendment to the Constitution of the United States, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws.”5
But headnotes only serve as a convenient summary of the actual case. This recap is sometimes referred to as a syllabus. In any event, they are not part of the case. No judge or justice writes a headnote, nor is the court bound by any part of it.
Writing headnotes is the duty of the court reporter, who, while a court employee, is not a judicial officer.
Yet Davis’ assertion became the law—and it stands to this very day. Now, to return to our deeply held belief that