[Editor's note: footnotes (if any) trail the opinion]
[1] SUPREME COURT OF THE UNITED STATES
[2] JOHNSON
v.
[3] AVERY, COMMISSIONER OF CORRECTION, ET AL.
[4] No. 40
BLUE BOOK CITATION FORM: 1969.SCT.19 (http://www.versuslaw.com)
[5] Date Decided: February 24, 1969
[6] SYLLABUS
[7] Petitioner, a Tennessee prisoner, was disciplined for violating
a prison regulation which prohibited inmates from assisting other
prisoners in preparing writs. The District Court held the regulation
void because it had the effect of barring illiterate prisoners from
access to federal habeas corpus and conflicted with 28 U. S. C. § 2242.
The Court of Appeals reversed, finding that the State's interest in
preserving prison discipline and limiting the practice of law to
attorneys justified any burden the regulation might place on access to
federal habeas corpus. Held : In the absence of some provision by the
State of Tennessee for a reasonable alternative to assist illiterate or
poorly educated inmates in preparing petitions for post-conviction
relief, the State may not validly enforce a regulation which absolutely
bars inmates from furnishing such assistance to other prisoners. Pp.
485-490.
[8] CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH
CIRCUIT.
[9] APPELLATE PANEL:
[10] Warren, Black, Douglas, Harlan, Brennan, Stewart, White, Fortas,
Marshall
[11] DECISION OF THE COURT DELIVERED BY THE HONORABLE JUSTICE FORTAS
I.
[12] Petitioner is serving a life sentence in the Tennessee State
Penitentiary. In February 1965 he was transferred to the maximum
security building in the prison for violation of a prison regulation
which provides:
[13] "No inmate will advise, assist or otherwise contract to aid
another, either with or without a fee, to prepare Writs or other legal
matters. It is not intended that an innocent man be punished. When a man
believes he is unlawfully held or illegally convicted, he should prepare
a brief or state his complaint in letter form and address it to his
lawyer or a judge. A formal Writ is not necessary to receive a hearing.
False charges or untrue complaints may be punished. Inmates are
forbidden to set themselves up as practitioners for the purpose of
promoting a business of writing Writs."
[14] In July 1965 petitioner filed in the United States District
Court for the Middle District of Tennessee a "motion for law books and a
typewriter," in which he sought relief from his confinement in the
maximum security building. The District Court treated this motion as a
petition for a writ of habeas corpus and, after a hearing, ordered him
released from disciplinary confinement and restored to the status of an
ordinary prisoner. The District Court held that the regulation was void
because it in effect barred illiterate prisoners from access to federal
habeas corpus and conflicted with 28 U. S. C. § 2242.1 252 F.Supp. 783.
[15] By the time the District Court order was entered, petitioner had
been transferred from the maximum security building, but he had been put
in a disciplinary cell block in which he was entitled to fewer
privileges than were given ordinary prisoners. Only when he promised to
refrain from assistance to other inmates was he restored to regular
prison conditions and privileges. At a second hearing, held in March
1966, the District Court explored these issues concerning the compliance
of the prison officials with its initial order. After the hearing, it
reaffirmed its earlier order.
[16] The State appealed. The Court of Appeals for the Sixth Circuit
reversed, concluding that the regulation did not unlawfully conflict
with the federal right of habeas corpus. According to the Sixth Circuit,
the interest of the State in preserving prison discipline and in
limiting the practice of law to licensed attorneys justified whatever
burden the regulation might place on access to federal habeas corpus.
382 F.2d 353.
II.
[17] This Court has constantly emphasized the fundamental importance
of the writ of habeas corpus in our constitutional scheme,2 and the
Congress has demonstrated its solicitude for the vigor of the Great
Writ.3 The Court has steadfastly insisted that "there is no higher duty
than to maintain it unimpaired." Bowen v. Johnston, 306 U.S. 19, 26
(1939).
[18] Since the basic purpose of the writ is to enable those
unlawfully incarcerated to obtain their freedom, it is fundamental that
access of prisoners to the courts for the purpose of presenting their
complaints may not be denied or obstructed. For example, the Court has
held that a State may not validly make the writ available only to
prisoners who could pay a $ 4 filing fee. Smith v. Bennett, 365 U.S. 708
(1961). And it has insisted that, for the indigent as well as for the
affluent prisoner, post-conviction proceedings must be more than a
formality. For instance, the State is obligated to furnish prisoners not
otherwise able to obtain it, with a transcript or equivalent recordation
of prior habeas corpus hearings for use in further proceedings. Long v.
District Court, 385 U.S. 192 (1966). Cf. Griffin v. Illinois, 351 U.S.
12 (1956).
[19] Tennessee urges, however, that the contested regulation in this
case is justified as a part of the State's disciplinary administration
of the prisons. There is no doubt that discipline and administration of
state detention facilities are state functions. They are subject to
federal authority only where paramount federal constitutional or
statutory rights supervene. It is clear, however, that in instances
where state regulations applicable to inmates of prison facilities
conflict with such rights, the regulations may be invalidated.
[20] For example, in Lee v. Washington, 390 U.S. 333 (1968), the
practice of racial segregation of prisoners was justified by the State
as necessary to maintain good order and discipline. We held, however,
that the practice was constitutionally prohibited, although we were
careful to point out that the order of the District Court, which we
affirmed, made allowance for "the necessities of prison security and
discipline." Id., at 334. And in Ex parte Hull, 312 U.S. 546 (1941),
this Court invalidated a state regulation which required that habeas
corpus petitions first be submitted to prison authorities and then
approved by the "legal investigator" to the parole board as "properly
drawn" before being transmitted to the court. Here again, the State
urged that the requirement was necessary to maintain prison discipline.
But this Court held that the regulation violated the principle that "the
state and its officers may not abridge or impair petitioner's right to
apply to a federal court for a writ of habeas corpus." 312 U.S., at 549.
Cf. Cochran v. Kansas, 316 U.S. 255, 257 (1942).
[21] There can be no doubt that Tennessee could not constitutionally
adopt and enforce a rule forbidding illiterate or poorly educated
prisoners to file habeas corpus petitions. Here Tennessee has adopted a
rule which, in the absence of any other source of assistance for such
prisoners, effectively does just that. The District Court concluded that
"for all practical purposes, if such prisoners cannot have the
assistance of a 'jail-house lawyer,' their possibly valid constitutional
claims will never be heard in any court." 252 F.Supp., at 784. The
record supports this conclusion.
[22] Jails and penitentiaries include among their inmates a high
percentage of persons who are totally or functionally illiterate, whose
educational attainments are slight, and whose intelligence is limited.4
This appears to be equally true of Tennessee's prison facilities.5
[23] In most federal courts, it is the practice to appoint counsel in
post-conviction proceedings only after a petition for post-conviction
relief passes initial judicial evaluation and the court has determined
that issues are presented calling for an evidentiary hearing. E. g.,
Taylor v. Pegelow, 335 F.2d 147 (C. A. 4th Cir. 1964); United States ex
rel. Marshall v. Wilkins, 338 F.2d 404 (C. A. 2d Cir. 1964). See 28 U.
S. C. § 1915 (d); R. Sokol, A Handbook of Federal Habeas Corpus 71-73
(1965).6
[24] It has not been held that there is any general obligation of the
courts, state or federal, to appoint counsel for prisoners who indicate,
without more, that they wish to seek post-conviction relief. See, e. g.,
Barker v. Ohio, 330 F.2d 594 (C. A. 6th Cir. 1964). Accordingly, the
initial burden of presenting a claim to post-conviction relief usually
rests upon the indigent prisoner himself with such help as he can obtain
within the prison walls or the prison system. In the case of all except
those who are able to help themselves -- usually a few old hands or
exceptionally gifted prisoners -- the prisoner is, in effect, denied
access to the courts unless such help is available.
[25] It is indisputable that prison "writ writers" like petitioner
are sometimes a menace to prison discipline and that their petitions are
often so unskillful as to be a burden on the courts which receive them.7
But, as this Court held in Ex parte Hull, supra, in declaring invalid a
state prison regulation which required that prisoners' legal pleadings
be screened by state officials:
[26] "The considerations that prompted [the regulation's] formulation
are not without merit, but the state and its officers may not abridge or
impair petitioner's right to apply to a federal court for a writ of
habeas corpus." 312 U.S., at 549.
[27] Tennessee does not provide an available alternative to the
assistance provided by other inmates. The warden of the prison in which
petitioner was confined stated that the prison provided free
notarization of prisoners' petitions. That obviously meets only a
formal requirement. He also indicated that he sometimes allowed
prisoners to examine the listing of attorneys in the Nashville telephone
directory so they could select one to write to in an effort to interest
him in taking the case, and that "on several occasions" he had contacted
the public defender at the request of an inmate. There is no contention,
however, that there is any regular system of assistance by public
defenders. In its brief the State contends that "there is absolutely no
reason to believe that prison officials would fail to notify the court
should an inmate advise them of a complete inability, either mental or
physical, to prepare a habeas application on his own behalf," but there
is no contention that they have in fact ever done so.
[28] This is obviously far short of the showing required to
demonstrate that, in depriving prisoners of the assistance of fellow
inmates, Tennessee has not, in substance, deprived those unable
themselves, with reasonable adequacy, to prepare their petitions, of
access to the constitutionally and statutorily protected availability of
the writ of habeas corpus. By contrast, in several States,8 the public
defender system supplies trained attorneys, paid from public funds, who
are available to consult with prisoners regarding their habeas corpus
petitions. At least one State employs senior law students to interview
and advise inmates in state prisons.9 Another State has a voluntary
program whereby members of the local bar association make periodic
visits to the prison to consult with prisoners concerning their cases.10
We express no judgment concerning these plans, but their existence
indicates that techniques are available to provide alternatives if the
State elects to prohibit mutual assistance among inmates.
[29] Even in the absence of such alternatives, the State may impose
reasonable restrictions and restraints upon the acknowledged propensity
of prisoners to abuse both the giving and the seeking of assistance in
the preparation of applications for relief: for example, by limitations
on the time and location of such activities and the imposition of
punishment for the giving or receipt of consideration in connection with
such activities. Cf. Hatfield v. Bailleaux, 290 F.2d 632 (C. A. 9th Cir.
1961) (sustaining as reasonable regulations on the time and location of
prisoner work on their own petitions). But unless and until the State
provides some reasonable alternative to assist inmates in the
preparation of petitions for post-conviction relief, it may not validly
enforce a regulation such as that here in issue, barring inmates from
furnishing such assistance to other prisoners.11
[30] The judgment of the Court of Appeals is reversed and the case is
remanded for further proceedings consistent with this opinion.
[31] Reversed and remanded.
[32] CASE RESOLUTION
[33] 382 F.2d 353, reversed and remanded.
IN AGREEMENT
[34] MR. JUSTICE DOUGLAS, concurring.
[35] While I join the opinion of the Court, I add a few words in
emphasis of the important thesis of the case.
[36] The increasing complexities of our governmental apparatus at
both the local and the federal levels have made it difficult for a
person to process a claim or even to make a complaint. Social security
is a virtual maze; the hierarchy that governs urban housing is often so
intricate that it takes an expert to know what agency has jurisdiction
over a particular complaint; the office to call or official to see for
noise abatement, for a broken sewer line, or a fallen tree is a mystery
to many in our metropolitan areas.
[37] A person who has a claim assertable in faraway Washington, D.C.,
is even more helpless, as evidenced by the increasing tendency of
constituents to rely on their congressional delegation to identify,
press, and process their claims.
[38] We think of claims as grist for the mill of the lawyers. But it
is becoming abundantly clear that more and more of the effort in
ferreting out the basis of claims and the agencies responsible for them
and in preparing the almost endless paperwork for their prosecution is
work for laymen. There are not enough lawyers to manage or supervise all
of these affairs; and much of the basic work done requires no special
legal talent. Yet there is a closed-shop philosophy in the legal
profession that cuts down drastically active roles for laymen. It was
expressed by a New York court in denying an application from the
Neighborhood Legal Services for permission to offer a broad legal-aid
type of service to indigents:
[39] "In any legal assistance corporation, supported by Federal
antipoverty funds, the executive staff, and those with the
responsibility to hire and discharge staff from the very top to the
lowest lay echelon must be lawyers." Matter of Action for Legal
Services, 26 App. Div. 2d 354, 360, 274 N. Y. S. 2d 779, 787 (1966).
[40] That traditional, closed-shop attitude is utterly out of place
in the modern world*fn1 where claims pile high and much of the work of
tracing and pursuing them requires the patience and wisdom of a layman
rather than the legal skills of a member of the bar.
[41] "If poverty lawyers are overworked, some of the work can be
delegated to sub-professionals. New York law permits senior law students
to practice law under certain supervised conditions. Approval must first
be granted by the appellate division. A rung or two lower on the legal
profession's ladder are laymen legal technicians, comparable to nurses
and lab assistants in the medical profession. Large law firms employ
them, and there seems to be no reason why they cannot be used in legal
services programs to relieve attorneys for more professional tasks."
Samore, Legal Services for the Poor, 32 Albany L. Rev. 509, 515-516
(1968).
[42] And see Sparer, Thorkelson, & Weiss, The Lay Advocate, 43 U.
Det. L. J. 493, 510-514 (1966).
[43] The plight of a man in prison may in these respects be even more
acute than the plight of a person on the outside. He may need collateral
proceedings to test the legality of his detention*fn2 or relief against
management of the parole system*fn3 or against defective detainers
lodged against him which create burdens in the nature of his
incarcerated status.*fn4 He may have grievances of a civil nature
against those outside the prison. His imprisonment may give his wife
grounds for divorce and be a factor in determining the custody of his
children; and he may have pressing social security, workmen's
compensation, or veterans' claims.*fn5
[44] While the demand for legal counsel in prison is heavy, the
supply is light. For private matters of a civil nature, legal counsel
for the indigent in prison is almost nonexistent. Even for criminal
proceedings, it is sparse.*fn6 While a few States have post-conviction
statutes providing such counsel,*fn7 most States do not.*fn8 Some States
like California do appoint counsel to represent the indigent prisoner in
his collateral hearings, once he succeeds in making out a prima facie
case.*fn9 But as a result, counsel is not on hand for preparation of the
papers or for the initial decision that the prisoner's claim has
substance.
[45] Many think that the prisoner needs help at an early stage to
weed out frivolous claims.*fn10 Some States have Legal Aid Societies,
sponsored in part by the National Legal Aid and Defender Association,
that provide post-conviction counsel to prisoners.*fn11 Most legal aid
offices, however, have so many pressing obligations of a civil and
criminal nature in their own communities and among freemen, as not to be
able to provide any satisfactory assistance to prisoners.*fn12 The same
thing is true of OEO-sponsored Neighborhood Legal Services offices,
which see their function as providing legal counsel for a particular
community, which a member leaves as soon as he is taken to prison.*fn13
In some cases, state public defenders will represent a man even after he
passes beyond prison walls. But more often, the public defender has no
general authorization to process post-conviction matters.*fn14
[46] Some States have experimented with programs designed especially
for the prison community. The Bureau of Prisons led the way with a
program of allowing senior law students to service the federal
penitentiary at Leavenworth, Kansas. Since then, it has encouraged
similar programs at Lewisburg (University of Pennsylvania Law School)
and elsewhere. Emory University School of Law provides free legal
assistance to the inmates of Atlanta Federal Penitentiary. The program
of the law school at the University of California at Los Angeles is now
about to reach inside federal prisons. In describing the University of
Kansas Law School program at Leavenworth, legal counsel for the Bureau
of Prisons has said:
[47] "The experience at Leavenworth has shown that there have been
very few attacks upon the [prison] administration; that prospective
frivolous litigation has been screened out and that where the law school
felt the prisoner had a good cause of action relief was granted in a
great percentage of cases. A large part of the activity was disposing of
long outstanding detainers lodged against the inmates. In addition, the
program handles civil matters such as domestic relations problems and
compensation claims. Even where there has been no tangible success, the
fact that the inmate had someone on the outside listen to him and
analyze his problems had a most beneficial effect. . . . We think that
these programs have been beneficial not only to the inmates but to the
students, the staff and the courts."*fn15
[48] The difficulty with an ad hoc program resting on a shifting law
school population is that, worthy though it be, it often cannot meet the
daily prison demands.*fn16 In desperation, at least one State has
allowed a selected inmate to act as "jailhouse" counsel for the
remaining inmates.*fn17 The service of legal aid, public defenders, and
assigned counsel has been spread too thinly to serve prisons
adequately.*fn18 Some federal courts have begun to provide prisons with
standardized habeas corpus forms, in the hope that they can be used by
laymen.*fn19 But the prison population has not found that
satisfactory.*fn20
[49] Where government fails to provide the prison with the legal
counsel it demands, the prison generates its own. In a community where
illiteracy and mental deficiency is notoriously high, it is not enough
to ask the prisoner to be his own lawyer.*fn21 Without the assistance of
fellow prisoners, some meritorious claims would never see the light of a
courtroom. In cases where that assistance succeeds, it speaks for
itself. And even in cases where it fails, it may provide a necessary
medium of expression:*fn22
[50] "It is not unusual, then, in a subculture created by the
criminal law, wherein prisoners exist as creatures of the law, that they
should use the law to try to reclaim their previously enjoyed status in
society. The upheavals occurring in the American social structure are
reflected within the prison environment. Prisoners, having real or
imagined grievances, cannot demonstrate in protest against them. The
right peaceably to assemble is denied to them. The only avenue open to
prisoners is taking their case to court. Prison writ-writers would
compare themselves to the dissenters outside prison . . . .
[51] . . . .
[52] "Many writ-writers have said that they would be able to make
positive plans for the future if they knew when their [indeterminate]
sentences would end. They seem to feel that they are living in a vacuum
where their fates are determined arbitrarily rather than by rule of law.
One writ-writer very aptly summed up the majority's view with these
words: 'When I arrived at the prison and discovered that no one,
including the prison officials, knew how long my sentence was, I had to
resort to fighting my case to keep my sanity.' . . . Psychologically,
the writ-writer, in seeking relief from the courts, is pursuing a course
of action which relieves the tensions and anxieties created by the
[indeterminate] sentence system."*fn23
[53] In that view, which many share, the preparation of these endless
petitions within the prisons is a useful form of therapy. Apart from
that, their preparation must never be considered the exclusive
prerogative of the lawyer. Laymen -- in and out of prison -- should be
allowed to act as "next friend" to any person in the preparation of any
paper or document or claim, so long as he does not hold himself out as
practicing law or as being a member of the Bar.
[54] The cooperation and help of laymen, as well as of lawyers, is
necessary if the right of "reasonable access to the courts"*fn24 is to
be available to the indigents among us.
[55] MINORITY OPINION
[56] MR. JUSTICE WHITE, with whom MR. JUSTICE BLACK joins,
dissenting.
[57] It is true, as the majority says, that habeas corpus is the
Great Writ, and that access through it to the courts cannot be denied
simply because a man is indigent or illiterate. It is also true that the
illiterate or poorly educated and inexperienced indigent cannot
adequately help himself and that unless he secures aid from some other
source he is effectively denied the opportunity to present to the courts
what may be valid claims for post-conviction relief.
[58] Having in mind these matters, which seem too clear for argument,
the Court rules that unless the State provides a reasonably adequate
alternative, it may not enforce its rule against inmates furnishing help
to others in preparing post-conviction petitions. The Court does not say
so in so many words, but apparently the extent of the State's duty is
not to interfere with indigents seeking advice from other prisoners. It
seems to me, however, that unless the help the indigent gets from other
inmates is reasonably adequate for the task, he will be as surely and
effectively barred from the courts as if he were accorded no help at
all. It may be that those who could help effectively refuse to do so
because the indigent cannot pay, that there is actually no fellow
inmate who is competent to help, or that the realities of prison life
leave the indigent to the mercies of those who should not be advising
others at all. In this event the problem of the incompetent needing help
is only exacerbated as is the difficulty of the courts in dealing with a
mounting flow of inadequate and misconceived petitions.
[59] The majority admits that it "is indisputable" that jailhouse
lawyers like petitioner "are sometimes a menace to prison discipline and
that their petitions are often so unskillful as to be a burden on the
courts which receive them." That is putting it mildly. The disciplinary
problems are severe, the burden on the courts serious, and the
disadvantages to prisoner clients of the jailhouse lawyer are
unacceptable.
[60] Although some jailhouse lawyers are no doubt very capable, it is
not necessarily the best amateur legal minds which are devoted to
jailhouse lawyering. Rather, the most aggressive and domineering
personalities may predominate. And it may not be those with the best
claims to relief who are served as clients, but those who are weaker and
more gullible. Many assert that the aim of the jailhouse lawyer is not
the service of truth and justice, but rather self-aggrandizement,
profit, and power. According to prison officials, whose expertise in
such matters should be given some consideration, the jailhouse lawyer
often succeeds in establishing his own power structure, quite apart from
the formal system of warden, guards, and trusties which the prison seeks
to maintain. Those whom the jailhouse lawyer serves may come morally
under his sway as the one hope of their release, and repay him not only
with obedience but with what minor gifts and other favors are available
to them. When a client refuses to pay, violence may result, in which the
jailhouse lawyer may be aided by his other clients.*
[61] It cannot be expected that the petitions which emerge from such
a process will be of the highest quality. Codes of ethics, champerty,
and maintenance, frequently have little meaning to the jailhouse lawyer,
who solicits business as vigorously as he can. In the petition itself,
outright lies may serve the jailhouse lawyer's purpose since by
procuring for a prisoner client a short trip out of jail for a hearing
on his contentions the petition writer's credibility with the other
convicts is improved.
[62] Habeas corpus petitions, as the majority notes, are relatively
easy to prepare: they need only set out the facts giving rise to a claim
for relief and the judge will apply the law, appointing a lawyer for the
prisoner and giving him a hearing when appropriate. This fact does not
buttress the unregulated jailhouse lawyer system, but undermines it. To
the extent that it is easy to state a claim, any prisoner can do it, and
need not submit to the mercies of a jailhouse lawyer. To the extent that
it is difficult -- and it is necessary to understand what one's rights
are before it is possible to set out in a petition the facts which
support them -- there may be no fellow prisoner adequate to the task.
There are some well informed and articulate prisoners and some (not
necessarily the same) who give advice and aid out of altruism. When the
two qualities are combined in one man, as they sometimes are, he can be
a perfectly adequate source of help. But the jails are not
characteristically populated with the intelligent or the benign, and
capable altruists must be rare indeed. On the other hand, some jailhouse
clients are illiterate; and whether illiterate or not, there are others
who are unable to prepare their own petitions. They need help, but I
doubt that the problem of the indigent convict will be solved by
subjecting him to the false hopes, dominance, and inept representation
of the average unsupervised jailhouse lawyer.
[63] I cannot say, therefore, that petitioner Johnson, who is a
convicted rapist serving a life sentence and whose prison conduct the
State has wide discretion in regulating, cannot be disciplined for
violating a prison rule against aiding other prisoners in seeking
post-conviction relief, particularly when there is no showing that any
prisoner in the Tennessee State Penitentiary has been denied access to
the courts, that Johnson has confined his services to those who need
it, or that Johnson is himself competent to give the advice which he
offers. No prisoner testified that Johnson was the only person available
who would write out a writ for him or that guards or other prison
functionaries would not furnish the necessary help. And it is really the
prisoner client's rights, not the jailhouse lawyer's, which are most in
need of protection.
[64] If the problem of the indigent and ignorant convict in seeking
post-conviction relief is substantial, which I think it is, the better
course is not in effect to sanction and encourage spontaneous jailhouse
lawyer systems but to decide the matter directly in the case of a man
who himself needs help and in that case to rule that the State must
provide access to the courts by ensuring that those who cannot help
themselves have reasonably adequate assistance in preparing their
post-conviction papers. Ideally, perhaps professional help should be
furnished and prisoners encouraged to seek it so that any possible
claims receive early and complete examination. But I am inclined to
agree with MR. JUSTICE DOUGLAS that it is neither practical nor
necessary to require the help of lawyers. As the opinions in this case
indicate, the alternatives are various and the burden on the States
would not be impossible to discharge. This requirement might even be met
by the establishment of a system of regulated trusties of the prison who
would advise prisoners of their legal rights. Selection of the jailhouse