By Kevin D. Sawyer
Two widespread endeavors of active and passive resistance in prison are violence and litigation, respectively. As anyone might imagine, senseless acts of violence in a carceral environment are a zero-sum game.
Yet, those two paths open to prisoners run parallel with Chairman Mao Tse Tung’s expression: “War is politics with bloodshed, and politics is war without bloodshed.”
An effective act of resistance, through politics, is the written word. In lieu of wielding the proverbial sword, the mighty pen will do the job. In prison, a proxy for politics, legislation, and law — “war without bloodshed” — begins with paperwork.
In California, “602” is a verb — the jailhouse lawyers’ first strike in a long course of legal action. The formal document is the CDCR Form 602, Grievance. An administrative grievance is a starting point for learning how to litigate. It is also required before filing a suit in state or federal court, but this is not legal advice.
Inside the nation’s prisons, it is jailhouse lawyers who undertake the principled ambition to challenge daily injustices behind bars. To become an effective jailhouse lawyer, it is imperative to know the history of one’s state, its carceral systems, and to acquire the skills needed to navigate the American system of jurisprudence.
New arrivals to prison may wonder how someone becomes a competent jailhouse lawyer. There is no clear answer, or easy step, but it is possible to learn a measureable amount of law behind bars. Over time, it may become necessary for a prisoner to learn how to protect his or her rights, health, and safety.
Reading is a first step, but urban novels and manga genres will not help because the science of law is not entrenched in entertainment, escapism or fantasy. Seize the time. Do not waste it on meaningless nonsense.
After three decades behind bars, I am still amazed that so many incarcerated people do not read or understand basic civics. I also find it remarkable how after conviction many prisoners do not understand the simple steps of appeal from superior court up to the U.S. Supreme Court.
“They don’t teach that stuff in school,” is a typical response I hear. To that I say, “So what?” To me, that is a juvenile response to an adult problem. Unless a mature prisoner is mentally impaired, or is severely uneducated, it is unreasonable for them to expect someone to hand down an unsolicited teaching of the law.
This is about volition. Prisoners usually make an effort to learn what they consider important. For example, where does an inmate learn how to acquire a cellphone, drugs, or other contraband in prison? That information does not exist in any regulations, law books, or prison operational procedures.
However, if enough importance is placed on the procurement of illegal items, some prisoners will go to great lengths to learn how to acquire them. No one imprisoned is likely to disagree. An education — in law or other studies — should be no different, even it if does take a little longer to obtain.
A hard-hitting reality in America, though, is the vast majority of society could not care any less about a prisoner who came from an underserved, over-policed community, plagued with drugs, gangs, violence, and a well-established pipeline from school to prison.
It matters little whether a court was right, wrong, or indifferent when it convicted a person. Once imprisoned, it is the responsibility and obligation of a prisoner to find a way out. A good place to start is by reading the transcript of trial proceedings, motions filed, abstract of judgment, any appeal, and other court documents. It is the only way to analyze what happened, and why.
Know your rights. If you are in the Golden State, read the California Code of Regulations, title 15. Its Division 3 covers prison, and Division 2 covers the Board of Parole Hearings. I am always astonished at the number of prisoners serving life sentences that have never read Division 2, or simply do not know it exist.
A person who does not know his or her rights cannot exercise those rights, and too often, there are any number of state agents willing to exploit such ignorance, to the detriment of the uninformed prisoner.
Reading is a way to become well versed in the law. I recommend Legal Research by Stephen Elias & Susan Levinkind. In California, the nonprofit Prison Law Office publishes the California State Prisoners Handbook. It provides a comprehensive overview on nearly every type of legal action filed by prisoners in the state. The book may be available in prison libraries, West Law, or LexisNexis, and on tablets provided by Viapath/GTL, Aventiv/Securus or other communications service provider.
Another useful resource is the Prisoners’ Self-help Litigation Manual (John Boston & Daniel E. Manville). It is helpful for federal litigation such as civil rights complaints, and may be available on computers in prison law libraries and on tablets.
It is doubtful prisoners read Latin or know many legal definitions. To combat that limitation, get a law dictionary. Read the U.S. Constitution, and supplement that reading with books on philosophy to elevate critical thinking skills. Read books on English grammar, and learn to write cogent legal arguments.
Understand how to use state and federal case reporters, and how to “Sheppardize” cases. Familiarize yourself with the state Penal Code, Government Code, Code of Civil Procedure, Rules of Court, and connect the dots.
This may all seem like esoteric information, but in time, the well-read prisoner will appreciate U.S. Supreme Court cases, such as Batson v. Kentucky, which bans jury selection based on race; Teague v. Lane, which places a bar on “retroactivity” when a new law passes; and Strickland v. Washington, the controlling case on ineffective assistance of counsel.
The Anti-terrorism and Effective Death Penalty Act should give pauses to every prisoner newly convicted at trial. The mid-1990s law mandates prisoners file a federal petition for writ of habeas corpus, to challenge their conviction and or sentence, within one year of a denied appeal by the highest state court. Because a prisoner is not entitled to federal attorneys, he or she may be on their own.
This is where prisoners can help each other, whenever possible. Still, watch out for jailhouse lawyers with ulterior motives — those who may make overconfident claims and promises to “get you back in court,” for a fee. For some of them, it is part of their jailhouse hustle. They are not lawyers and more than likely not licensed by the state bar to practice law. They can also cause irreparable harm like creating procedural bars for an inmate in a court of law.
On the journey to learn the law, become intimately aware of the Prison Litigation Reform Act. That 1995 law set prisoner pro se litigants back 50 years, ostensibly, to stop the flood of “frivolous” lawsuits. There is some truth to that last statement, so here’s a word of caution: Do not become a Vexatious Litigant. It has the longest definition is in 15 CCR, Section 3000. Now get started, and good luck.
Author’s note:
Much of this information was extracted from the essay, “Jailhouse Lawyering from the Beginning,” by Kevin D. Sawyer. It was first published in 2021, by the UCLA Law Review (Discourse), 68 UCLA L. Rev. Disc. 98.