Judicial Economy at the expense of Fundamental Rights
Our founding fathers were dedicated to protecting rights of those accused of a crime. They endorsed Sir William Blackstone's belief that “the law holds that it is better that ten guilty persons escape, than that one innocent suffer.” Thus, they instilled within the US judicial framework the concept of "the right to be heard." However, over time, this right has been eroded for the sake of judicial economy.
Until the mid-1900's, US courts recognized a prisoner's right to be heard. As the Supreme Court said in Walker v. Johnston, "improbable or unbelievable though the allegations may seem — though they `may tax credulity' — the defendant is entitled to a hearing." However, some prisoners abused this absolute right to be heard and overwhelmed courts with frivolous pleadings. In response, Congress enacted laws providing courts the means to resolve cases without a hearing. Over time, this "judicial economy" has severely eroded the right to be heard. Today, hearings and oral arguments are at a historic low. For example, federal appellate courts provide hearings in only 7% of prisoner petitions.
The importance of the right to be heard is not to give a person a voice, but instead, the importance is to give a person the confidence that their grievances are understood. However, for the sake of judicial economy, courts often issue unreasoned opinions. These opinions are short - or copies nearly verbatim the pleadings of the prevailing party - and provides no reasoning for dismissing the prisoner's primary arguments. While this may help with judicial economy, the lack of understanding creates contempt and mistrust for the judiciary. Therefore, the right to be heard is important for both prisoners and the judicial system.
The Problem with In-House Jailhouse Lawyers
Many prisons have, within its prison walls, unsanctioned "Jailhouse Lawyers" ("JL"). JLs are prisoners who are self-trained in law and willing to help other prisoners with their legal matters. While most JLs provide prisoners an important service, there are some concerns with in-house JLs. Generally, JLs obtain commissary items for their services. In some cases, JLs (or their relatives) receive cash payments from a prisoner's family. But any form of compensation to a JL is prohibited, and violations can jeopardize release dates for both the JL and prisoner.
Should a prisoner obtain the services of a JL, the prisoner will then need to provide the case's legal documents. This gives the JL access to confidential information that may expose co-conspirators, or plea deals involving other inmates. Furthermore, some prisoners place their safety at risk should a JL "accidentally" leak details of the case to other inmates. Similarly, a JL may be forced or threatened into providing their legal services. And, if the results of the services do not meet expectations, the JL's safety may be in danger.
Finally, these JLs have various understanding of the law. As mentioned, in-house JLs generally have no formal legal training. Thus, the "help" provided can often be useless or even detrimental to the prisoner.
The Argument for a Dedicated Jailhouse Lawyers Facility
Placing JLs into a centralized, dedicated location - such as a wing or unit of an existing prison - would resolve many of the concerns mentioned above. Instead of receiving commissary or monetary compensation for the services, JLs would receive education and training for a legal career upon their release. To maintain confidentiality of the prisoners, these facilities would have safeguards in place and sanctioned JLs would be bound to maintain confidentiality. A dedicated facility would improve the overall service to prisoners by allowing those with a common goal to brainstorm and develop programs to help maximize their services.
The facility would serve as a prison, a quasi law school, and an office environment. The prison would have security similar to that found in a low-security prison camp. Should the facility be a wing or unit of an existing prison, the JL unit/section/wing must be segregated from the rest of the facility. Thus, the facility would need a solution for activities such as recreation and meals.
The scope of the education and training would be limited to those subjects that would apply to criminal law and facilitate the mission of this project. Subjects, such as torts or contracts, would not be taught. JL students would be furnished legal textbooks and have access to training, whether it is training videos or live classes with instructors.
The office portion would allow the JLs to have group meetings, office supplies, copy machines, and conference call equipment.
Candidates for the Jailhouse Lawyers Program
This program will have a thorough selection process. Those convicted of certain crimes will not be eligible for the program. The candidate must be imprisoned for at least one year and must have a clean record while in prison before they can apply to the program. The selection committee may also rely on feedback from prison officials as part of the selection process.
This program is only eligible for those sentenced for a term of more than 60 months. In addition to the one year of imprisonment, the candidate must also complete one year of training and provide at least three years of legal assistance.
Upon selection to the program, participants must maintain a high standard of professionalism. Violations may result in immediate termination. Furthermore, any major violation, such as disclosing a prisoner's confidential information outside the facility, could results in additional charges.
Prior to the JL's release, if the JL desires to either go to law school or begin a career in the legal profession, the facility will assist with career a counseling program.
Scope of Services to be Provided by Jailhouse Lawyers
Despite receiving education and training in matters of law, these sanctioned JLs are not lawyers and can neither represent prisoners nor provide specific legal advise. However, the JLs will be able to provide general legal guidance, research and provide applicable case law, refer worthy cases to the public defenders office or other licensed attorneys, and file amici curiae briefs with the courts.
While the Mission of JLP is to help protect the rights of prisoners, the program should also work with public defenders to help improve efficiencies and identify ways to reduce the number of frivolous petitions submitted to courts. This will allow public defenders and courts to focus on legitimate cases.
Program Administration
While much of the program is self-supported, there will need to a be a Committee responsible its administration. Each program will be overseen by government appointed director and committee. The committee will be responsible for selection of candidates, developing and education program, reviewing program activities, overseeing program requirements, and issuing reports on the program.