WHY THE GOVERNMENT, IN A RECENT SUPREME COURT CASE, HAS OPPOSED PRISONERS FIRST AMENDMENT RIGHTS

By JULIE HILDEN

julhil@aol.com

Tuesday, Jan. 30, 2001

Earlier this month, the Supreme Court heard oral argument in the case of Shaw v. Murphy, which raises the question of whether prisoners have a First Amendment right to provide legal assistance to other inmates. The United States (through the Clinton Administration's Solicitor General's Office) has argued that they do not. And the Bush Administration is, of course, unlikely to reverse this position.

The case started when inmate Kevin Murphy, who was incarcerated in the Montana State Prison and who had been trained as an "inmate law clerk," sent a letter containing legal advice to a fellow inmate, Pat Tracy, who was in the maximum security wing. Tracy had been charged with assaulting a prison guard. However, according to Murphy's letter, the guard had physically harassed inmates in the past, and many of them had filed complaints and were willing to testify to the harassment — thus helping Tracy to establish that he acted in self-defense.

Unfortunately, however, Murphy's letter never got to Tracy, who pled guilty to the assault charge without the benefit of Murphy's advice. Worse, after prison officials read the letter, Murphy was disciplined for "insolence" and other violations of prison rules, merely for sending the letter. Since the officials' reading of the letter was legal (prisoners generally do not enjoy Fourth Amendment protections), Murphy's only recourse was to assert his First Amendment right to assist Tracy with his defense.

But when the case reached the Supreme Court, the Clinton administration, sadly, sided against Murphy's assertion of First Amendment rights. Why would a relatively liberal administration have taken such an anti-civil liberties position? The government provides some rationales for its position in its brief in Shaw, but each is more ridiculous than the last. The real reason behind the government's position, I will argue, lies elsewhere.

The "Dangerous Individuals" Argument

In its brief in Shaw, the government starts off on the wrong foot when it contends that prisons "are populated with dangerous individuals with a demonstrated propensity for anti-social behavior," and that therefore many rights — including the right of prisoners to provide each other legal assistance — must be curtailed there. To some extent, the government's assertion that many prisoners are dangerous is true, of course, but it is irrelevant to the issue of whether prisoners have a First Amendment right to provide each other legal assistance, for several reasons.

First, how can prison's violent atmosphere justify failing to recognize the First Amendment rights of non-violent offenders (say, a student convicted of a minor drug infraction, or a young computer hacker who broke into a company's system) or the non-violent jailhouse lawyers advising them — all of whom will be just as deeply affected by the Court's holding as a hardened serial murderer will be?

Second, the government's generalization is entirely inaccurate as to those who are wrongfully convicted and incarcerated. They are not dangerous; it is prison that is dangerous to them. And of course, they are the very prisoners likely to be most avidly seeking legal assistance.

While some of the guilty prisoners may still fight on, hoping to trick a judge into vacating their sentences, others will be reconciled to the overwhelming evidence against them. But we must hope that the truly innocent prisoners (and DNA evidence has confirmed that they exist, in significant numbers) will never give up their legal fight, resorting to "jailhouse lawyers" or any other legal help they can get.

The Conflict between Taking Away Fourth and First Amendment Rights

The other arguments presented by the government are equally flawed. The government suggests, for example, that if First Amendment rights are recognized, prisoners will be able to use their communications in the course of giving legal assistance to accomplish non-legal objectives such as "formulat[ing] escape plans," and "pass[ing] contraband."

The problem with this argument is that in the same breath — or at least, in the same brief — the government admits that prisoners have no Fourth Amendment rights. That means that their mail can legally be opened and their cells legally searched, without a warrant or probable cause. It's pretty hard to plan an escape or enclose a packet of cocaine along with your legal advice when the warden's assistant reads all of your mail.

In short, by convincing the Supreme Court to reject inmates' Fourth Amendment arguments entirely in earlier cases, the government has now made inmates' First Amendment arguments much more difficult to defeat. Any threats posed by inmates' correspondence could be solved by, at most, selective censorship of the letters — which would allow only case-related comments through.

Jailhouse "Lawyers" and "Clients": A True Prison Problem?

The government also argues that recognizing a First Amendment right of inmates to give each other legal assistance "would confer on inmates who provide legal assistance a type of special status that often is disruptive in the prison world, where uniformity is vital to ensuring order."

But we all know that prison status is hardly "uniform," and since that is the reality, we must ask which is worse — if smart, well-educated, legally savvy inmates are at the top of the prison food chain, or if brutal, well muscled, heavily tattooed ones are?

Finally, the government also expresses a worry about anger and violence from inmates whose jailhouse lawyers disappoint their expectations, or who even find that "the consequences of the legal action [offered by the jailhouse lawyer] turn[] out to be detrimental."

The problem with this argument is that the main reason jailhouse lawyers' actions could turn out to be "detrimental" to other inmates is because of a particular federal statute — a law enacted by the government itself — that generally limits a prisoner to one habeas corpus petition (with some very narrow exceptions). If that one petition is filed and is unsuccessful, later petitions can virtually never succeed. They are procedurally barred, meaning that their dismissal is almost automatic. In essence, the rule is "One petition to a customer."

In practice, that means that certain prisoners face the cruel result that their meritless pro se habeas corpus petition, which a "jailhouse lawyer" friend drafted, forecloses their ability to file a better petition, assisted by counsel, later. (Habeas corpus petitions challenge a criminal conviction after the prisoner has been unsuccessful in an initial criminal appeal; a pro se pleading is one that is not drafted by an attorney.)

Ironically, this "One petition to a customer" rule means that these prisoners might be, in a sense, better off if the First Amendment right in Shaw v. Murphy were not recognized — since for them, jailhouse lawyers' legal assistance may actually be harmful, in that it waives future rights. For the same reason, inmates might be angry at jailhouse lawyers, just as the government notes in its brief. But that is only because the rule itself is not well publicized — and that is the government's fault. Any anger inmates might have at their jailhouse lawyers for triggering the waiver rule could be averted by the government's simply publicizing the waiver rule in prisons, so all inmates know their first petition is their only chance.

Moreover, it is unfair for the very government that enacted the restrictive habeas corpus statute to attempt to use it as a justification for further restrictions. If the government did not limit pro se habeas corpus petitions to a single one under this statute, then inmates would never be angry at their jailhouse lawyers for effectively waiving their right to file their second or third habeas corpus petition, merely by filing their first.

The Government's Real Motivation: The Burden of Pro Se Prisoner Submissions

In short, all the reasons offered by the government in support of its position in Shaw ring hollow. That suggests that there must be another, largely unacknowledged real reason for the position. What is it?

I believe it is the burden that prisoners' pro se habeas corpus petitions and other legal submissions put on the court system. Every pro se submission must be responded to by a government attorney, researched by a law clerk, and considered by a judge. Many of the submissions are meritless; many are handwritten and difficult to decipher; and many are time-consuming for the judges, attorneys, and other personnel involved.

If most of these submissions are so meritless, you might ask, why are still they so time-consuming? The answer is that, in law, a poorly-made point is often harder to refute than a crisply-made one — so a conscientious law clerks may spend hours first understanding what a prisoner's argument is, in order to ascertain, for example, that a recent Supreme Court case rejected that very argument, or that the prisoner has misinterpreted or mischaracterized the relevant law.

The burden of these submissions — which, viewed as a group, are quite voluminous — was doubtless one of the inspirations for the "One petition to a customer" habeas corpus rule. It is also, I believe, a major inspiration for the government's position in Shaw. The reason the government does not acknowledge it as such may be the uneasy place of practicalities in the realm of constitutional litigation. It's hard to admit that a desire to avert a paper avalanche is the proposed basis for an adverse First Amendment ruling.

Why the Government's Response to the Prisoner Litigation Burden Is Wrong

As a practicality, this burden should not be underestimated. But laws like the "One petition to a customer" rule, and positions like the government's opposition to jailhouse lawyers' First Amendment rights, are improper solutions to this burden.

That is because these solutions are far too crude. The "one petition" rule cuts off meritless and meritorious claims alike, based merely on the sequence of filings. Similarly, shutting down jailhouse lawyers by refusing to recognize their First Amendment rights will predictably decrease the total number of prisoner claims, but in a way that makes no distinction between the worthy and the worthless.

Is it worth losing the meritorious submissions to decrease the total number of claims? Absolutely not. If we believe ten guilty men should go free before an innocent one goes to jail, we should also expect the courts to wade through a hundred meritless prisoner submissions in order to find the one potentially meritorious one. After all, life and liberty are at stake. We should not have to tell an innocent person, "You suffered in jail for years because as a society, we just couldn't handle the paperwork."

In the end, there is little doubt about how Shaw v. Murphy will come out: With only a single judicial Circuit (through a very liberal panel of judges) recognizing the First Amendment rights of jailhouse lawyers, and several other Circuits rejecting these rights, the Rehnquist Supreme Court is likely to reject them, too. But when the decision is handed down, the federal government — whose brief will have contributed to this unjust result — should at least be honest that its reasons stemmed from pragmatism, not from principle.

--------------------------------------------------------------------------------

Julie Hilden, a FindLaw columnist and a graduate of Yale Law School, is a freelance writer and the author of the memoir "The Bad Daughter." She practiced First Amendment law as an associate at the Washington, D.C. firm of Williams & Connolly from 1996-99.