U.S. Supreme Court JOHNSON v. AVERY, 393 U.S. 483 (1969) 393 U.S. 483

[Page 393 U.S. 483, 484]

MR. JUSTICE FORTAS delivered the opinion of the Court. I. 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:

"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."

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.[Footnote 1] 252 F. Supp. 783.

[Page 393 U.S. 483, 485]

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.

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. This Court has constantly emphasized the fundamental importance of the writ of habeas corpus in our constitutional scheme,[Footnote 2] and the Congress has demonstrated its solicitude for the vigor of the Great Writ.[Footnote 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).

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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).

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 "[f]or 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.

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.[Footnote 4] This appears to be equally true of Tennessee's prison facilities.[Footnote 5]

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).[Footnote 6]

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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.

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.[Footnote 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:

"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.

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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 "[t]here 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.

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,[Footnote 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.[Footnote 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.[Footnote 10] We express no judgment concerning these plans,

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but their existence indicates that techniques are available to provide alternatives if the State elects to prohibit mutual assistance among inmates.

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.[Footnote 11]

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MR. JUSTICE DOUGLAS, concurring.

While I join the opinion of the Court, I add a few words in emphasis of the important thesis of the case.

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.

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.

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:

"[I]n 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

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is not on hand for preparation of the papers or for the initial decision that the prisoner's claim has substance.

Many think that the prisoner needs help at an early stage to weed out frivolous claims.10 Some States have Legal Aid Societies, sponsored in part by the National Legal Aid and Defender Association, that provide post-conviction counsel to prisoners.11 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.[Footnote 12] 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

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as he is taken to prison.[Footnote 13] 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.[Footnote 14]

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:

"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

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programs have been beneficial not only to the inmates but to the students, the staff and the courts."[Footnote 15]

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.[Footnote 16] In desperation, at least one State has allowed a selected inmate to act as "jailhouse" counsel for the remaining inmates.[Footnote 17] The service of legal aid, public defenders, and assigned counsel has been spread too thinly to serve prisons adequately.[Footnote 18] Some federal courts have begun to provide prisons with standardized habeas corpus forms, in the hope that they can be used by laymen.[Footnote 19] But the prison population has not found that satisfactory.[Footnote 20]

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.[Footnote 21] Without the assistance of fellow prisoners, some meritorious claims would never see the light of a courtroom. In cases

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where that assistance succeeds, it speaks for itself. And even in cases where it fails, it may provide a necessary medium of expression:[Footnote 22]

"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 . . . .

. . . . .

"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."[Footnote 23]

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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.

The cooperation and help of laymen, as well as of lawyers, is necessary if the right of "[r]easonable access to the courts"[Footnote 24] is to be available to the indigents among us.

[Footnote 1] The New York program that is funded by the Office of Economic Opportunity (OEO) and which as noted was first rejected by the New York courts, is called Community Action for Legal Services. It was finally approved by the New York courts with a board of directors of 20 lawyers and 10 laymen. 158 N. Y. L. J. No. 72, pp. 1, 5 (1967).

[Footnote 2] Reitz, Federal Habeas Corpus: Postconviction Remedy for State Prisoners, 108 U. Pa. L. Rev. 461 (1960).

[Footnote 3] Hubanks & Linde, Legal Services to the Indigent Imprisoned, 23 Legal Aid Briefcase 214 (1965).

[Footnote 4] Temin, Report on Postconviction Services to the County Prison, 25 Legal Aid Briefcase 18 (1966).

[Footnote 5] Note, Constitutional Law: Prison "No-Assistance" Regulations and the Jailhouse Lawyer, 1968 Duke L. J. 343.

[Footnote 6] L. Silverstein, Defense of the Poor in Criminal Cases in American State Courts: A Preliminary Summary (Amer. Bar Foundation 1964); Note, Legal Services for the Poor, 49 Mass. L. Q. 293 (1964); O. E. O. and Legal Services - A Symposium, 14 Catholic Law. 92-174 (1968); Note, Legal Services for Prison Inmates, 1967 Wis. L. Rev. 514; Uelmen, Post-Conviction Relief for Federal Prisoners Under 28 U.S.C. 2255: A Survey and a Suggestion, 69 W. Va. L. Rev. 277 (1967).

[Footnote 7] Ill. Rev. Stat., c. 38, 122-4 (1967); Ore. Rev. Stat. 138.590 (1967).

[Footnote 8] Comment, Right to Counsel in Criminal Post-Conviction Review Proceedings, 51 Calif. L. Rev. 970 (1963).

[Footnote 9] See, e. g., People v. Shipman, 62 Cal. 2d 226, 397 P.2d 993 (1965). Note, Indigent's Right to Counsel in Post-Conviction Collateral Proceedings in California: People v. Shipman, 13 U. C. L. A. L. Rev. 446 (1966).

[Footnote 10] "Lawyers generally require at least a fifty dollar fee to travel to the prisons to consult with a prisoner. The ones not able to pay this sum must resort to the next best course of action - act as their own lawyers. The disadvantages to the prisoner are obvious. A lawyer, after examining the prisoner's transcripts or conducting an independent investigation of the facts, could immediately advise him on a course of action. Lacking the money to hire a lawyer, the prisoner must spend considerable time researching the law, preparing the required legal documents, and filing them. Sometimes years pass before the prisoner discovers what a lawyer could have told him in several weeks - that his case either has or lacks merit. The prisoners who have militantly prosecuted frivolous actions have wasted time they could have devoted to preparing themselves for release from prison. The state, by shouldering these indigent prisoners with the responsibility of acting as their own counsel, has dissipated the taxpayers' money in wasted manpower and court costs." Larsen, A Prisoner Looks at Writ-Writing, 56 Calif. L. Rev. 343, 345-346 (1968).

[Footnote 11] Note, Legal Services for the Poor, 49 Mass. L. Q. 293 (1964).

Footnote 12 Note, Representation of Indigent Criminal Defendants in the Federal District Courts, 76 Harv. L. Rev. 579 (1963); Note, Representation of Indigents in California - A Field Study of the Public Defender and Assigned Counsel Systems, 13 Stan. L. Rev. 522 (1961); Gardiner, Defects in Present Legal Aid Service and the Remedies, 22 Tenn. L. Rev. 505 (1952); Note, Prisoner Assistance on Federal Habeas Corpus Petitions, 19 Stan. L. Rev. 887 (1967).

Footnote 13 O. E. O. and Legal Services - A Symposium, 14 Catholic Law. 92-174 (1968).

Footnote 14 E. Mancuso, The Public Defender System in the State of California 5 (1959).

Footnote 15 Barkin, Impact of Changing Law Upon Prison Policy, 47 Prison J. 3, 8 (1969). And see Matter of Cornell Legal Aid Clinic, 26 App. Div. 2d 790, 273 N. Y. S. 2d 444.

Footnote 16 Wilson, Legal Assistance Project at Leavenworth, 24 Legal Aid Briefcase 254 (1966).

Footnote 17 Note, supra, n. 5, at 359.

Footnote 18 Note, Representation of Indigent Criminal Defendants in the Federal District Courts, 76 Harv. L. Rev. 579 (1963); Note, Representation of Indigents in California - A Field Study of the Public Defender and Assigned Counsel Systems, 13 Stan. L. Rev. 522 (1961).

Footnote 19 R. Sokol, A Handbook of Federal Habeas Corpus 53-54, 192-200 (1965).

Footnote 20 Larsen, A Prisoner Looks at Writ-Writing, 56 Calif. L. Rev. 343, 353 (1968).

Footnote 21 Note, supra, n. 5, at 348-349.

Footnote 22 Freund, Remarks, Symposium, Habeas Corpus - Proposals for Reform, 9 Utah L. Rev. 18, 30 (1964).

Footnote 23 Larsen, A Prisoner Looks at Writ-Writing, 56 Calif. L. Rev. 343, 347-348 (1968).

Footnote 24 "Reasonable access to the courts is . . . a right [secured by the Constitution and laws of the United States], being guaranteed as against state action by the due process clause of the fourteenth amendment. In so far as access by state prisoners to federal courts is concerned, this right was recognized in Ex parte Hull, 312 U.S. 546, 549. . . . The right of access by state prisoners to state courts was recognized in White v. Ragen, 324 U.S. 760, 762, n. 1.." Hatfield v. Bailleaux, 290 F.2d 632, 636 (C. A. 9th Cir. 1961).

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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 lawyers by the prison officials for scholarship and character might assure that the inmate client received advice which would actually help him, and regulation of the "practice" by the authorities would reduce the likelihood of coerced fees or blackmail. The same legislative judgment which should be sustained in concluding that the evils of jailhouse lawyering justify its proscription might also support a legislative conclusion that jailhouse lawyering under carefully controlled conditions satisfies the prisoner's constitutional right to help.

Regretfully, therefore, I dissent.

[Footnote *] Krause, A Lawyer Looks at Writ-Writing, 56 Calif. L. Rev. 371 (1968); Spector, A Prison Librarian Looks at Writ-Writing, 56 Calif. L. Rev. 365 (1968); Note, Constitutional Law: Prison "No-Assistance" Regulations and the Jailhouse Lawyer, 1968 Duke L. J. 343, 345-347; Note, Legal Services for Prison Inmates, 1967 Wis. L. Rev. 514, 520-522; Note, Prisoner Assistance on Federal Habeas Corpus Petitions, 19 Stan. L. Rev. 887, 891, n. 31 (1967).

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