Jailhouse Lawyers Take On COVID-19 Where Prisons Won’t
Jailhouse lawyers are no strangers to the enormous challenges brought about by waging legal battles on behalf of themselves and other incarcerated people. Throughout the COVID-19 pandemic, they have worked through even greater challenges stemming from a lack of safety measures, and increased restrictions on privileges and mobility.
Over the past year and a half, jailhouse lawyers—incarcerated people who use their legal knowledge to research and submit legal filings—have been forced to face obstacles brought on by the pandemic, such as limited law library access, as well as challenges that existed prior to the pandemic rooted in unfavorable laws and court decisions.
They’ve undertaken abolitionist organizing and collaborated with lawyers on the outside to build class-action lawsuits. Their advocates on the outside have persisted in lending their support.
Jonas Caballero is one such advocate. A paralegal at the Pittsburgh-based Abolitionist Law Center, Caballero reads and responds to dozens of letters each week from prisoners, many of whom are jailhouse lawyers.
Caballero also filed lawsuits when he was incarcerated. His journey to practicing jailhouse law started in late 2017 with a stint at the Brooklyn Medical Center (BMC), where he underwent treatment for a heart problem and faced conditions that were not conducive to his health.
At BMC, Caballero was chained to his hospital bed night and day, forbidden from using the bathroom or walking around at all. At one point, a nurse forced him to remove his own IV tubes with his one free hand and his mouth before joking “now stay put” and leaving the room, according to court documents.
“I didn’t know the law at that time,” Caballero recalled. “I didn’t know the policies on shackling a person to a bed by hand and foot for 24 hours a day, seven days a week, but I knew that it wasn’t right.”
After returning to the Brooklyn Detention Center, where he was detained pre-trial, Caballero got to work learning about the law. He began reading policies about the treatment of prisoners at outside facilities in New York City. That snowballed into him reaching out to New York’s Legal Aid Society, researching Eighth and Fourteenth Amendment claims, and finally writing and filing a lawsuit against the city and staff at BMC—without the help of a lawyer.
Although a federal judge granted BMC’s motion to dismiss Caballero’s case against the hospital staff, he was awarded money in a settlement over his claims against the city defendants. Caballero also reached a cash settlement in a second lawsuit against the city, again for constitutional rights violations that he experienced.
Caballero was released on parole in December 2019, and is currently the lead plaintiff in a lawsuit challenging the New York State Department of Corrections and Community Supervision’s policy of excluding people with mental health disabilities from its early release programs.
Learning Jailhouse Law
Jailhouse law is “law learned in the bowels of the slave ship, in the hidden, dank dungeons of America—the Prisonhouse of Nations,” Mumia Abu-Jamal, the nation’s best-known jailhouse lawyer, wrote in his 2009 book. “It is 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.”
Ronald Simpson-Bey turned to the practice for financial reasons. Despite spending $30,000 on attorneys’ fees, he was sentenced to 30-50 years in prison, well beyond the sentencing guidelines for his offense.
“That didn’t make any sense to me. I told my family, ‘you’re not spending another quarter on attorneys. I will figure this out myself,'” said Simpson-Bey, a former jailhouse lawyer who was incarcerated in Michigan for 27 years, and who now works at JustLeadership USA as an advocate for formerly incarcerated people.
Simpson-Bey was able to win his own release in 2012 thanks to his own legal research and work, an unusual accomplishment for a jailhouse lawyer. He was also one of the lead plaintiffs in a massive class-action lawsuit against the Michigan Department of Corrections that spanned 15 years. The magnitude of the lawsuit was such that the state had to drive a semi-trailer filled with evidence to the prisoners’ office during the discovery phase of the lawsuit, recalled Simpson-Bey.
Paul Redd began his decades-long jailhouse lawyering career with a desire to learn more about his own case.
During yard time, he would ask guys experienced in legal research about how to navigate the prison’s law library. That quickly morphed into an obsession with providing legal assistance for other incarcerated people.
“I got addicted to it,” Redd said. “Your whole cell is scattered out with paperwork on the floor and law books all open. And when they come with your food, you got to put the food aside because you’re so concentrated on this research.”
Redd started jailhouse lawyering in the late 1970s. During the 1980s, he was part of a lawsuit to improve conditions at Folsom Prison, where he was incarcerated at the time. He also testified about conditions at Folsom in front of the California Legislature.
In 2011 and 2013, Redd participated in the hunger strikes that took place at Pelican Bay State Prison, and in 2012, he became a named plaintiff in Ashker v. Brown, a class-action lawsuit challenging California’s solitary confinement practices.
Ashker began with a handwritten complaint filed pro se in 2009 by two incarcerated people, Todd Ashker and Danny Troxell. (Pro se is the formal legal term for people who represent themselves, without the assistance of a professional attorney, in a legal proceeding.) Later, the case was taken on by attorneys from the Center for Constitutional Rights, whose communication skills and willingness to seek input from their incarcerated collaborators impressed Redd.
“They made you feel a part of the litigation,” Redd said. “From the day one, they came on to the case, and we all had a conference together.”
Redd was released from prison in May 2020 after Danielle Harris, a public defender in San Francisco who specializes in post-conviction work, helped him put together a package to guide him through his resentencing hearing. He was incarcerated for 44 years.
Redd now works as an advocate with the abolitionist American Friends Service Committee in Oakland, although he’s gotten job offers from law firms and is looking to land a gig that will let him use his legal skills to get people out of prison.
Incarcerated people are also affected by, and need representation for, everyday legal proceedings. That includes matters like child support and custody, divorces and marriages, and bankruptcy and other financial issues.
“Just because people go to prison doesn’t mean their legal needs somehow are just being in prison and just the conditions of confinement they’re being held under,” said Paul Wright, an editor of Prison Legal News who has litigated censorship and public records cases against prisons as both a jailhouse lawyer and on behalf of the publication.
Indispensable Contributions To The Law
Jailhouse lawyers have been demonized by members of law enforcement and the legal profession as amateur hacks more likely to file frivolous lawsuits over receiving crunchy instead of creamy peanut butter rather than over matters of life and death.
“It’s not untrue that prisoners bring lots of frivolous cases,” says Margo Schlanger, a law professor at the University of Michigan. But those prisoners had been deprived of other methods by which they could petition for their rights.
And that peanut butter lawsuit? The prisoner who filed it didn’t do so because he received the wrong kind of peanut butter but because he was being charged money for an item he ordered but never received.
In fact, jailhouse lawyers have made an indispensable contribution to how the law functions by developing and creating entire areas of case law.
One such example: laws regarding prison disciplinary hearings, according to Wright. In addition, the 1994 Supreme Court decision that established the standard by which prison officials can be found to have violated the Eighth Amendment originated from a petition filed by an incarcerated person. And thanks to a federal district court filing by an incarcerated person who received assistance from a seasoned jailhouse lawyer, the Supreme Court recently denied an officer qualified immunity for the first time since 2002.
“Jailhouse lawyers often identify issues and challenges to the law that people on the outside wouldn’t think of,” said Hanna Lauritzen, the 2020-2021 Editor-in-Chief of A Jailhouse Lawyer’s Manual (JLM), a publication designed for use by incarcerated people that gives readers an overview of how to exercise their legal rights and navigate procedures. The JLM is written and managed by students at Columbia Law School.
Jailhouse lawyers are the legal minds who are closest to the everyday abuses and rights violations that occur inside prisons. That makes their work crucial for informing outside lawyers when prison officials are violating consent decrees, according to Jenipher Jones, a civil rights attorney.
Jones worked previously on Winston v. Polis, a case concerning prison conditions in the Colorado Department of Corrections that resulted in a consent decree.
“Jailhouse lawyers have been the ones who have let us know, those of us who file the cases,” said Jones, who is the co-chair of the National Lawyers Guild Mass Incarceration Committee. “Those are often the entry point to understanding whether or not jails and prisons are complying with the terms with regard to COVID-19 and using the health and safety protocols necessary.”
The accomplishments of jailhouse lawyers stem in part, however, from the criminal legal system’s failure to provide incarcerated people with sufficient access to meaningful and affordable professional legal assistance.
Twenty-five years ago, Congress passed the Legal Services Reform Act of 1996, which forbade any grant money provided by the federal Legal Services Corporation from paying for any civil litigation on behalf of prisoners.
“In some respects, I think that the whole phenomenon of jailhouse lawyering is a symptom of a very oppressive, dysfunctional system,” said Wright. “I think it’s a symptom of a bad thing rather than a positive.”
After all, how many prisoners would pick the services of a jailhouse lawyer over a professional one, if they really had a choice?
Jailhouse Lawyering For Pandemic Protection
In the letters he receives from incarcerated people, Caballero is seeing more people turn to jailhouse lawyering who are seeking relief under the increased danger of COVID-19.
Most of the letters Caballero reads are from Pennsylvania, though a few are from out-of-state. These days, he’s getting letters arguing that prison officers are demonstrating deliberate indifference by refusing to wear their masks, that the prison they’re incarcerated in possesses an inadequate ventilation system, and that their limited access to the law library during the pandemic constitutes a due process violation.
Even in the midst of the COVID-19 pandemic, jailhouse lawyers like Pierre Pinson are advocating for themselves and others. One of the main challenges they’re up against: prison administrators reducing or completely rescinding law library access.
Pinson began jailhouse lawyering because he was failed by his court-appointed attorney.
“I didn’t know how to fight, all I knew is that my life was on the line so I had to fight,” he wrote in a message to Shadowproof.
In 1999, when Pinson was in a county jail in Pennsylvania, he started going to the law library.
“I asked questions, researched, and even filed handwritten motions that meant nothing because my court-appointed attorney had already planned to sell me ‘down the river.'”
Pinson was sentenced to 50 to 150 years in prison. He is currently incarcerated at SCI-Fayette in Pennsylvania.
Pinson wrote that during the lockdown, incarcerated people at Fayette were “restricted from all activities including law library.” As Fayette began to reopen, the prison administration gave certain prisoners access to the yard and gym, but not the law library—and cited a directive from the Department of Corrections as the reason why.
“The directive limits access to the law library only allowing those who are pro se prisoners with a deadline to meet,” wrote Pinson.
The problem is not limited to SCI-Fayette. It’s also ongoing at SCI-Cambridge Springs, a Pennsylvania women’s prison, according to Donna Hill, a member of Let’s Get Free, an organization that supports women and trans prisoners in the state.
Hill’s daughter, Charmaine Pfender, is incarcerated at Cambridge Springs, where Hill says prison officials were recently only scheduling incarcerated people with active cases for time in the library. Incarcerated people are only permitted to access the library one hour a week, when it’s available.
The situation was similar at the California Medical Facility, the state prison where Redd was incarcerated at the onset of the pandemic. At that time, the California Department of Corrections and Rehabilitation (CDCR) implemented a variety of policy changes.
“The law library was shut down. Access to material was virtually non-existent,” Redd recalled.
Asked whether officials are only allowing prisoners with active cases to be scheduled for time in the law library, Pennsylvania Department of Corrections Press Secretary Maria Bivens wrote in a message to Shadowproof that “as we begin to allow inmates back into these areas, those inmates with a valid court deadline will be given priority.”
“Physical libraries were closed at different times throughout the pandemic depending on the quarantine situation. However, inmates were able to request materials and they would be delivered to the units by staff,” Bivens said.
The CDCR did not respond to a request for comment.
Within the South Carolina Department of Corrections (SCDC), incarcerated people’s access to prison law libraries is further restricted by what’s known as “collective punishment:” when one or two prisoners break a rule, SCDC sometimes chooses to punish hundreds of prisoners for it, including by limiting their hours to the law library.
That’s according to T-Black, an organizer with Jailhouse Lawyers Speak, an abolitionist collective of incarcerated people fighting for human rights. Shadowproof granted T-Black anonymity due to the possibility of retaliation against incarcerated organizers.
Asked how COVID-19 affected JLS’s organizing, T-Black responded that the group’s work is still going strong, and that the organization has been undaunted by the pandemic.
“We’re not really concerned about that because, you know, JLS is the vaccine. We is the COVID vaccine,” said T-Black. “I know you’ve heard of the one shot, two shot. We’re the three shot.”
This year, JLS is calling for national “shut ’em down” demonstrations to take place on August 21 and September 9, the dates that the 2018 prison strike, which JLS also helped to organize, took place.
Both dates are deeply symbolic ones in the history of prison organizing: August 21, 1971 was the day that George Jackson was shot and killed in California. Jackson was an incarcerated Black Panther at the time. Meanwhile, September 9, 1971 was the day that the Attica prison rebellion began.
“The shut ‘em down call was made due to the Abolitionist Movement momentum seeming to have stalled in the face of our recent past presidential election,” a JLS organizer wrote in an email to Shadowproof. “We want people to understand that we have to start mounting direct challenges to the building of cages and demand the closing down of jails, prison[s], and immigration jails all over the country. Each event is autonomous, so the success will depend on the local organizers in each state.”
Lawyering In The Face Of Increasing Obstacles
All of the difficulties that jailhouse lawyers face during pandemic times are, of course, additional to the mountain of obstacles that they face during non-pandemic times. Such obstacles include legal ones, such as the Prison Litigation Reform Act.
“There was a real spike in prison litigation in the early 90s,” according to Schlanger, the University of Michigan law professor. That shift was one factor that led to the passage of the PLRA in 1996, which made it much more difficult for incarcerated people to file federal lawsuits.
In particular, the PLRA prevents prisoners from filing a lawsuit in federal court unless they have “exhausted” their prison administration’s grievance process.
In the quarter-century since the PLRA was passed, incarcerated plaintiffs have been winning fewer cases through pre-trial decisions and going less often to trial, according to data analyzed by Schlanger. However, prisoners have had roughly the same level of success when it comes to winning at trial.
The percentage of voluntary dismissals has also gone up in recent years. But Schlanger acknowledges that it’s difficult to ascertain from the data whether that means incarcerated people are giving up and walking away from their lawsuit, or whether they’re settling for something worthwhile, because those two possibilities can fall under the same category of outcomes.
The same year the PLRA was passed, the Supreme Court delivered a devastating blow to law library access for prisoners in its decision in Lewis v. Casey. The decision illustrated the pitfalls prisoners face when seeking legal remedies.
Lewis greatly restricted the scope of a previous decision of the Court—Bounds v. Smith—in which the Court determined that authorities were required to provide prisoners “with adequate law libraries or adequate assistance from persons trained in the law.”
Under Lewis, an incarcerated person cannot claim that their constitutional right to access to the courts was violated simply because their prison’s law library was missing something. They must satisfy the additional burden of proving that their law library was missing something that prevented them from bringing forth a legal claim.
The political environment inside prisons has morphed in the last few decades, according to Wright. When he litigated prison censorship cases in Washington state during the 1990s, Wright relied on cases regarding the censorship of leftist literature that were brought forth by prisoners in the 1970s. But he sees much fewer cases like those now.
“Leftist politics in prison have definitely taken a nosedive,” said Wright. And prison officials are “probably more reactionary now than they’ve ever been at any point in the past.”
Prison officials frequently retaliate against jailhouse lawyers. Caballero experienced this on multiple occasions. In one instance, after he returned to his cell from a medical appointment, he found that his legal property had been confiscated.
For Redd, retaliation was something that he learned to accept as a jailhouse lawyer. “I don’t worry about it because it just happened,” he said. “To me, it was the norm.”
Adjusting Strategy For Unprecedented Problems
Pandemic-related factors and obstinate prison administrators have forced outside advocates to adjust their strategies. Caballero has been printing out chapters from the JLM (a work he utilized during the course of his own jailhouse lawyering) and sending the papers to people on the inside who have questions about their cases.
Prior to COVID-19 restrictions, incarcerated people would’ve been allowed to print that material for themselves at their institution’s law library.
The pandemic also forced the staff behind the JLM to completely overhaul their workflow. The closure of Columbia’s campus in March 2020 left them without a physical office; it also scattered them across the country.
Lauritzen returned to California, where she rented a P.O. box. For the next six months, incarcerated people who wished to correspond with them sent their letters to that address, until Columbia reopened its campus in the fall of 2020.
JLM staff responded to letters and shipped out copies of the manual from all over the country. They set up an online system to keep track of requests for the resource, and even completed and published a 12th edition.
Despite the staff’s resilience, the organization encountered unprecedented problems. Because copies of the manual weren’t being sent from the organization’s typical New York address, prison officers flagged some of them as contraband and returned them.
Incarcerated people were also left in a lurch by the court closures brought on by the pandemic, according to Lauritzen. Prisoners wrote to JLM staff asking whether the pandemic affected what court address they should file cases at, but those questions weren’t the type that they are equipped to answer quickly.
Prison lockdowns further compounded the obstacles. “People expressed a lot of doubt as to whether the letter they were writing would actually reach us,” said Lauritzen.
The situation deteriorated around the time of the 2020 election: there was a drop in the number of letters the JLM staff received then, the cause of which Lauritzen attributes to the U.S. Postal Service’s effort to slow down mail and suppress voters.
Another popular resource amongst jailhouse lawyers is the Jailhouse Lawyer’s Handbook, published by the Center for Constitutional Rights and the National Lawyers Guild. One of its editors, Rachel Meeropol, worked as an attorney on Ashker v. Brown.
With limited office access during the pandemic, CCR’s staff also faced the challenge of responding to the hundreds of letters they get each month from incarcerated people who want to get a copy of the handbook.
Lawyering Toward Collective Liberation?
Jailhouse lawyering is laden with theoretical tensions bordering on contradictions. It is an act that contains both a multitude of promises (the possibility of freeing oneself and others, or of prevailing against prison officials despite the odds) and perils (the risk of retaliation, or of reifying a criminal legal system that legitimizes so much everyday injustice).
The fact that the criminal legal system allows the practice at all does not signify its virtues, but rather its failures. It demonstrates that the system expects at least some jailhouse lawyers to succeed where they have previously been failed at every turn by legal workers and institutions.
The relationship between jailhouse lawyering and prison abolition is complex as well. Some jailhouse lawyers (like those affiliated with JLS) are explicitly and unapologetically abolitionist, while others are simply interested in their own case. Still other jailhouse lawyers may not self identify as abolitionists, and yet their work is in alignment with its precepts.
“I can’t remember a single jailhouse lawyer that was actively advocating for abolition even though all of them want prisons to be abolished,” said Simpson-Bey, the former Michigan jailhouse lawyer. “It’s because we just didn’t have the bandwidth, the capacity to actually do that. I mean, you only get six hours a week in the law library, your main thing is to try to get yourself out.”
“I think that people who work on the outside, directly with people who are incarcerated, sometimes worry that having an explicitly abolitionist framework could actually jeopardize the people on the inside,” Lauritzen told Shadowproof. “Because at the end of the day, we who do support people who are incarcerated, we rely on corrections officers basically to be able to communicate with incarcerated people.”
Lauritzen and Jones, who have received formal legal training, both said that they want to see the legal profession more openly welcome jailhouse lawyers into its ranks.
“I think more and more, jailhouse lawyers and the people supporting them on the outside are thinking in an abolitionist framework,” said Meeropol, the CCR lawyer. “Our approach to this work is to understand that abolition will only occur through the leadership of people inside prison, who are organizing through their own liberation.”
For his part, Pinson wrote that he believes that “jailhouse lawyering is an effective tool of the prison abolition movement.”
Asked how much of the jailhouse lawyering that he’s seen has been abolitionist, Pinson responded: “A small percentage, most is concentrated on gaining individual freedom. In time, the system reveals its teeth and forces one to realize that individual freedom is a victory in battle but only a drop of blood saved in a war that has killed people and left them alive.”
T-Black, the JLS organizer, said that he doesn’t at all feel that prison abolition and jailhouse lawyering are contradictory. “We [JLS] are the prison abolition movement, I even go so far as to add that,” he said. “And you can quote me on that.”
As for the organization that Caballero works for, the Abolitionist Law Center, it has stayed true to its name by lending legal support to Abu-Jamal.
“Mumia’s jailhouse lawyering resources on the inside definitely were key to helping me develop my own strategies,” said Caballero. “To be on the outside now and communicating with him directly, because he’s one of our clients is just like—I’m totally honored and awestruck and starstruck.”
“Whether abolition is your target when you set out to create a new lawsuit to try to change the situation for yourself and for others on the inside, ultimately, it’s all connected,” he said. “It’s all interwoven into the same beautiful package which is the package of abolition.”