Jailhouse Lawyer

Prison inmates with some knowledge of law who give legal advice and assistance to their fellow inmates.

The important role that jailhouse lawyers play in the criminal justice system has been recognized by the U.S. Supreme Court, which has held that jailhouse lawyers must be permitted to assist illiterate inmates in filing petitions for post-conviction relief unless the state provides some reasonable alternative (Johnson v. Avery, 393 U.S. 483, 89 S. Ct. 747, 21 L. Ed. 2d 718 [1969]).

However, the U.S. Supreme Court also has recognized that prison authorities may restrict the activities of prisoners who provide more formalized legal advice. For example, in Shaw v. Murphy, 532 U.S. 223, 121 S. Ct. 1475, 149 L. Ed. 2d 420 (2001), the Court held that prisoners do not possess a First Amendment right to provide legal advice to other prisoners. In so ruling, the Court permitted prison officials to discipline inmates who do not have authority to assist other inmates with their legal problems. Kevin Murphy was one of a number of inmates who were designated "inmate law clerks" by Montana prison authorities. Administrators directed certain inmates to Murphy, who would consult with them on their legal problems and assist them with filling out paper work. Montana authorities maintained control over the clerks by preventing them from consulting with inmates without prior approval. Murphy was disciplined for involving himself in an inmate's case without permission, and he took the issue to court. The U.S. Supreme Court unanimously held that prison authorities had reasonable administrative grounds for restricting legal communications and for disciplining Murphy.

One notable example of a jailhouse lawyer is Jerry Rosenberg. He has been serving a life sentence since 1963 at the Auburn Correctional Facility in upstate New York for the murder of two New York City police officers during a holdup in 1962. Rosenberg never went beyond the eighth grade.

While in prison, Rosenberg has received two separate law degrees from Illinois correspondence schools. As a convicted felon, Rosenberg is unable to obtain a law license, but he still can make use of his Legal Education. In 1978, the U.S. Supreme Court ordered the release of Rosenberg's fellow inmate, Carmine Galante, upon reviewing a brief filed by Rosenberg on Galante's behalf.

In June 1988, Rosenberg made news as he attempted to secure his own release with an imaginative legal argument. In 1986, Rosenberg had suffered a heart attack during open-heart surgery, and his heart had stopped beating for a short time. A patient's heart frequently stops beating during such surgery, but Rosenberg seized on the occurrence to argue that since his heart had stopped, he had "died" while on the operating table. Therefore, he argued, he had met the requirements of his New York life sentence, and should, perhaps as a new man, be freed immediately.

Acting New York State Supreme Court Justice Peter Corning denied Rosenberg's petition. Corning agreed with New York Assistant Attorney General Kenneth Goldman's argument for the state that death is an irrevocable condition, and that Rosenberg therefore had not yet died.

Further readings

Hudson, David L. Jr. 2001. "Jailhouse Lawyer Muzzled; Thomas, Supreme Court Take Narrow View On Prisoner Speech." ABA Journal 87 (July).

Humes, Edward. 2000. "The Making of a Jailhouse Lawyer." California Lawyer 20 (September).