This story was co-published with the Marshall Project.
In 1980, the Texas Court of Criminal Appeals vacated Jerry Hartfield's murder conviction and ordered a new trial. But the trial never happened. Twenty-six years later, Hartfield crafted a handwritten petition arguing, essentially, he was serving time for a crime he was no longer convicted of. The person who helped him craft the petition? His cellmate, a jailhouse lawyer. It took almost ten years, but it worked: Hartfield's new trial started this week.
"Jailhouse lawyer" is an informal term for a prisoner who helps other inmates with legal filings. And in most places, the help is just that: informal. Though the term is occasionally used synonymously with "hack" ("a lawyer who throws out any and all arguments, even blatantly wrong ones," according to Urban Dictionary), jailhouse lawyers have been at the heart of several key legal victories: the right to an attorney, the right to be protected from abuse by other prisoners and by guards, and the right to free exercise of religion. In his book Jailhouse Lawyers, Mumia Abu-Jamal, perhaps America's most well-known jailhouse lawyer, described the practice as "law written with stubs of pencils…law learned in a stew of bitterness, under the constant threat of violence, in places where millions of people live, but millions of others wish to ignore or forget."
Occasionally jailhouse lawyers are actual lawyers: people who went to law school before they were convicted of a crime. Most often, however, they are self-taught, spending long hours in the prison law library. With no access to the internet, they read outdated law books and case law on CD-ROMs. "The reality of being a jailhouse lawyer is it takes intensive legal study, just the same way it does for lawyers on the outside," says Rachel Meeropol, an attorney with the Center for Constitutional Rights and co-author of the Jailhouse Lawyer's Handbook. "It's an incredibly difficult endeavor."
A handful of states provide more formal means for inmates to provide competent legal help to other inmates. One of the most well-established of these programs is in Louisiana, where 115 "offender counsel substitutes" serve 19,000 of their fellow inmates. They receive 40 hours of training each year and must prove their chops on a standardized adult education exam to earn the coveted job. Michigan and Florida have similar programs.
What Everyone Gets Wrong
"There's this story about prisoners constantly using lawsuits to complain about frivolous things," says Meeropol. The image of the prisoner with too much time on his hands, filing one lawsuit after another, gained currency in the 1990s, and remains potent today. "Rikers Island inmates cost city big $$ with 'frivolous' lawsuits," blared the New York Post (citing anonymous sources) in 2013. A San Diego paper ran a similar story that same year.
The Prison Litigation Reform Act—passed in 1996 in response to this perception about inmate lawsuits (a case involving an inmate who sued over receiving the wrong type of peanut butter was referenced often during its consideration)—includes a "three strikes" provision. Poor inmates who have had three lawsuits dismissed lose the right to have their filing fees waived for any future lawsuits. Because filing fees can run into the hundreds of dollars, requiring inmates to pay the fee often makes it impossible for them to file lawsuits in the future.
The Insider's Perspective
Shon Hopwood became a jailhouse lawyer during his 11-year federal sentence for bank robbery. One of Hopwood's earliest filings for a fellow inmate, John Fellers, was ultimately won before the US Supreme Court. (After his release from prison in October 2008, Hopwood went to law school and will begin a faculty position at Georgetown Law School in late August.) Because prisons typically have rules preventing inmates from paying one another, jailhouse lawyers are "paid" in creative ways. When Hopwood was working on a petition for a fellow inmate who was Italian, "every Friday, I would take my plastic bowl and meet him at the housing unit, and he would bring me back a bowl of pasta and homemade pasta sauce he and the other Italian gentlemen had made" using generic marinara sauce from the commissary supplemented with fresh vegetables smuggled out of the kitchen. "To this day, it's the best spaghetti I've ever had." Another inmate paid for his petition—which ultimately helped shave ten years off of his sentence—by buying Hopwood a typewriter ribbon and a card for using the copy machine. "For $12 of commissary, he got 10 years off his sentence," Hopwood says.
Jailhouse lawyering can be a high-stakes proposition. Stories abound of retaliation, both big and small, by prison administrators against those who make trouble for them in the legal system. The New York Civil Liberties Union identified at least 100 instances of inmates being sent to solitary confinement for providing "unauthorized legal assistance." In a federal lawsuit, a prisoner named Avon Twitty accused the Bureau of Prisons of moving him to a "Communication Management Unit," designed to limit prisoners' access to other prisoners or the outside world, as a result of his jailhouse lawyering (he was paroled in 2011, and his role in the case was dismissed). Says Hopwood, "Once you start suing prison staff, things get real real quick."
This article was originally published by the Marshall Project, a nonprofit news organization that covers the US criminal justice system. Sign up for their newsletter, or follow the Marshall Project on Facebook or Twitter.