For many jailhouse lawyers, the texts of court rulings are read with a close and rapt attention that would be the envy of any conscientious law professor. The writer knows one guy, who, after years of study of criminal law cases, can recite from sheer memory, the names of cases, their citations, and large swathes of the written opinionword for word. If he were not a denizen of death row he could probably pass the toughest bar exam in America.
Guys like him are astute students of the law, who, unlike their free and licensed counterparts "in the world," study legal texts not as a tool to make a living (other than the occasional candy bar, cigarette or cup of java), but to save a life or free a friend.
If those men and women could be united in one body they would constitute the largest law firm in the nation. But to be a student of the law necessarily means more than simply reading, reciting or even analyzing the law as written by the courts. It must mean understanding that the law is a political enterprise, and that the law develops according to the political agendas of those announcing (and indeed, deciding) the law.
Let us examine a recent example.
In 1989 the U.S. Supreme Court, in a 54 decision held that the constitution did not forbid the execution of the mentally retarded in a case called Penry v. Lynaugh.
At the end of the Court's most recent session, it decided, by a 63 vote, that the execution of the mentally retarded violated the Eighth amendment of the U.S. Constitution, in a case called Atkins v. Virginia. (See page 17 of this issue for a more detailed analysis of the case.) What accounts for one result in one case, and yet another result some 13 years later?
Supreme court justice John Paul Stevens seemed to reply to that question by citing the fact that some 15 odd American states had passed statutes outlawing the execution of the mentally retarded, and that the international community almost universally frowned on the practice.
The deciding factor, in a word, politics.
The organizing efforts of anti death penalty groups continued to chip away at capital punishment, bit by bit. The European Union, and a number of nations have been openly critical of the American practice of executing the mentally ill.
These are political, not legal, developments.
And therein lies the lesson: the law is not a science, like chemistry, but more resembles the art of politics. It codifies, reflects, and indeed echoes, political will of social and economic elites. It can respond to the sustained efforts of activists and organizers.
For jailhouse lawyers, that means one's work is not done upon writing a brief, or helping another prisoner file a pleading or grievance. We must make contacts in the wider world, to gain adherents and supporters who will organize others.
As the late, great Industrial Workers of the World (IWW) organizer, Joe Hill once said, (while awaiting execution on Utah's death row), "Don't mourn for men. Organize."
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