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Fahrenheit 451 on Cell Block D

[Certified Jailhouse Lawyer Program Proposed]
By Evan R. Seamone, Esq., Reprinted from Yale Law & Policy Review, Vol. 24, No. 1 (2006), pp. 91-147.

Reviewed by John E. Dannenberg

Attorney Evan R. Seamone wants to promote justice by raising the stature of jailhouse lawyers nationwide. He proposes having a mini-Bar examination to certify them in an effort to fight back against the debilitating effect of the U.S. Supreme Court?s decision in Lewis v. Casey, 518 U.S. 343 (1996).

Lewis pitilessly declared that prisoners have no constitutional right to a law library to prepare pleadings for their liberty; they only have the right of ?access to the courthouse steps? to file what predictably follows -- inartful and ineffectual petitions. While the Lewis court did allow that one could seek damages for denial of access to the courts after having thus suffered an irreversible loss (e.g., time bar, procedural bar or insufficient pleadings), the ?Catch-22? is that damages for one?s now unredressable wrongful incarceration are barred by Heck v. Humphrey, 512 U.S. 477 (1994) [damages unavailable unless and until one first overturns the conviction]. In sum: prisoners who get no law library rot in prison and can?t sue. Absent an omnipresent pro bono bar, Seamone envisages salvation only in the form of ?professional? jailhouse lawyers.

Following Lewis, several states literally dumped their prison law libraries. Iowa prison guards threw them all into the prison yard. Arizona officials disbanded 34 prison libraries. Idaho sold all of its law library books in a lot for $100 on e-bay. Author Seamone likens this to the epic novel Fahrenheit 451 wherein the government outlawed reading materials. The Lewis court left all prisoners to the wiles of the few recognized jailhouse lawyers who were legally permitted to aid other prisoners per Bounds v. Smith, 430 U.S. 817 (1977). However, Lewis didn?t deal with the more practical problem that even jailhouse lawyers need law books, and left this conundrum unresolved. It is to precisely this dilemma that Seamone addresses his proposal of professionalizing jailhouse lawyers.

Seamone describes the attributes of the stereotypical jailhouse lawyer in Part II of his treatise. He acknowledges at the outset that thousands of them ?eagerly await the newest edition of Prison Legal News? to gain ?updates on recent cases and other legal commentary.? Seamone traces the legal recognition of jailhouse lawyers back to Johnson v. Avery, 393 U.S. 483 (1969) which prohibited outlawing them unless reasonable alternatives of court access were provided. A major obstacle to prisoner redress emerged with the advent of the Prison Litigation Reform Act, a pernicious disenfranchisement designed in 1996 by Senator Orrin Hatch to suppress pro per litigation and to deter lawyers from representing prisoners. Seamone asserts that the single defining characteristic of the jailhouse lawyer is legal competence, which presupposes a good basic education, training and experience in researching legal issues. Importantly, he notes that jailhouse lawyers have been able to help non-English-speaking and blind prisoners -- members of the imprisoned class otherwise totally helpless to defend themselves.

In Part III, Seamone outlines seven essential services provided by jailhouse lawyers. He noted that only 1% win their writs, although over 20% raise meritorious claims. But even when they lose, jailhouse lawyers provide some modicum of respect for the law inside the walls, offsetting energies that might have simply been directed to violence. Jailhouse lawyers, for themselves, develop marketable skills, and are thus to be encouraged. At the very least, Seamone states, they provide something sorely needed in prison -- hope.

In Part IV, Seamone addresses the havoc wreaked on pro per prisoners by Lewis. He discusses some of the alternatives used, such as paralegals, law clinics, law students and state-contracted attorneys, as well as the problems that attend these alternatives. Not addressed directly is the fact that Lewis deals ostensibly only with legal aid to attack one?s conviction or conditions of confinement; it doesn?t acknowledge a need to be able to sue for injunctive relief or damages in a civil action. Nor does Lewis recognize the need for tax, divorce, child custody or probate legal aid, issues that commonly affect prisoners.

Considering all of the above, Seamone details in Part V his proposed Jailhouse Lawyer Bar Examination, canvassing existing recognized prison law clerk examinations in New York, New Jersey, Massachusetts, Pennsylvania, Louisiana and Florida as models. In addition to sample formats for such exams, Seamone deals with the delicate subject of a Code of Professional Responsibility. Here, Seamone envisions eight ?rules? dealing with loyalty, compensation, bias/favoritism, safekeeping of records, competence, confidentiality, reporting misconduct and disciplining jailhouse lawyers.

In Part VI, Seamone concludes with his ideas on how to implement the exam. Quoting jailhouse lawyer Jerry Rosenberg, ?to become a lawyer, they ought to make you do some time in jail,? Seamone sees seasoned jailhouse lawyers as being uniquely qualified to help fill the post-Lewis void for certified legal assistance behind bars.

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