NCJ Number
86979
Journal
New England Journal of Prison Law Volume: 8 Issue: 1 Dated: (Winter 1982) Pages: 39-64
Date Published
1982
Length
26 pages
Annotation
This article identifies the deficiencies of the present system for safeguarding 'jailhouse lawyers,' and suggests limited recognition of the jailhouse lawyer's right to operate within the prison by requiring procedural due process before the writ writer may be prohibited from operating.
Abstract
Currently, as a consequence of their right of access to the courts, inmates may not be prohibited from obtaining legal assistance from jailhouse lawyers in the absence of adequate alternatives, and retaliatory punishments inflicted upon jailhouse lawyers for providing such assistance in a reasonable manner is strictly prohibited by the courts; however, the rule against retaliatory punishments is an attempt to redress only the most flagrant abuses by prison officials. Further, the rule provides an after-the-fact remedy that must be initiated by the victim of retaliation, and the victim has the burden of proving retaliation. Also, the rule against retaliation does not directly confront the problem of the immense discretion prison officials enjoy over inmates. Neither does the rule provide protection to the writ writer who is simply prevented by prison officials from operating within the prison. A proposed alternative to the safeguarding of the operation of jailhouse lawyers is the provision that jailhouse lawyers be given a hearing before they can thereafter be suspended or prohibited altogether from continuing to operate as a jailhouse lawyer within that prison. Particularly, the following procedural safeguards should be used: advance written notice of the reasons for the proposed suspension or prohibition, an impartial hearing board, the right to call witnesses and to present evidence, and a written statement by the hearing board as to the evidence relied upon and the reasons for the action taken. A total of 101 footnotes are provided.