Johnson v. Avery/Concurrence Douglas

by William O. Douglas

United States Supreme Court

393 U.S. 483

Johnson  v.  Avery

 Argued: Nov. 14, 1968. --- Decided: Feb 24, 1969

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 echelon must be lawyers.' Matter of Community Action for Legal Services, 26 A.D.2d 354, 360, 274 N.Y.S.2d 779, 787 (1966).

That traditional, closed-shop attitude is utterly out of place in the modern world ^[1] where claims pile high and much of the work of tracing and pursuing them requires the patience and wisdom of a layman rather than the legal skills of a member of the bar.

'If poverty lawyers are overworked, some of the work can be delegated to sub-professionals. New York law permits senior law students to practice law under certain supervised conditions. Approval must first be granted by the appellate division. A rung or two lower on the legal profession's ladder are laymen legal technicians, comparable to nurses and lab assistants in the medical profession. Large law firms employ them, and there seems to be no reason why they cannot be used in legal services programs to relieve attorneys for more professional tasks.' Samore, Legal Services for the Poor, 32 Albany L.Rev. 509, 515-516 (1968).

And see Sparer, Thorkelson, & Weiss, The Lay Advocate, 43 U.Det.L.J. 493, 510-514 (1966).

The plight of a man in prison may in these respects be even more acute than the plight of a person on the outside. He may need collateral proceedings to test the legality of his detention ^[2] or relief against management of the parole system ^[3] or against defective detainers lodged against him which create burdens in the nature of his incarcerated status. ^[4] He may have grievances of a civil nature against those outside the prison. His imprisonment may give his wife grounds for divorce and be a factor in determining the custody of his children; and he may have pressing social security, workmen's compensation, or veterans' claims. ^[5]

While the demand for legal counsel in prison is heavy, the supply is light. For private matters of a civil nature, legal counsel for the indigent in prison is almost nonexistent. Even for criminal proceedings, it is sparse. ^[6] While a few States have post-conviction statutes providing such counsel, ^[7] most States do not. ^[8] Some States like California do appoint counsel to represent the indigent prisoner in his collateral hearings, once he succeeds in making out a prima facie case. ^[9] But as a result, counsel 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 f a civil and criminal nature in their own communities and among freemen, as not to be able to provide any satisfactory assistance to prisoners. ^[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 as he is taken to prison. ^[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. ^[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 programs have been beneficial not only to the inmates but to the students, the staff and the courts.' ^[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. ^[16] In desperation, at least one State has allowed a selected inmate to act as 'jailhouse' counsel for the remaining inmates. ^[17] The service of legal aid, public defenders, and assigned counsel has been spread too thinly to serve prisons adequately. ^[18] Some federal courts have begun to provide prisons with standardized habeas corpus forms, in the hope that they can be used by laymen. ^[19] But the prison population has not found that satisfactory. ^[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. ^[21] Without the assistance of fellow prisoners, some meritorious claims would never see the light of a courtroom. In cases where that assistance succeeds, it speaks for itself. And even in cases where it fails, it may provide a necessary medium of expression: ^[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.' ^[23]

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' ^[24] is to be available to the indigents among us.

Mr. Justice WHITE, with whom Mr. Justice BLACK joins, dissenting.

Notes

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).
2. Reitz, Federal Habeas Corpus: Postconviction Remedy for State Prisoners, 108 U.Pa.L.Rev. 461 (1960).
3. Hubanks & Linde, Legal Services to the Indigent Imprisoned, 23 Legal Aid Briefcase 214 (1965).
4. Temin, Report on Postconviction Services to the County Prison, 25 Legal Aid Briefcase 18 (1966).
5. Note, Constitutional Law: 'No-Assistance' Regulations and the Jailhouse Lawyer, 1968 Duke L.J. 343.
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).
7. Ill.Rev.Stat. c. 38, § 122-4 (1967); Ore.Rev.Stat. § 138.590 (1967).
8. Comment, Right to Counsel in Criminal Post-Conviction Review Proceedings, 51 Calif.L.Rev. 970 (1963).
9. See, e.g., People v. Shipman, 62 Cal.2d 226, 42 Cal.Rptr. 1, 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).
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).
11. Note, Legal Services for the Poor, 49 Mass.L.Q. 293 (1964).
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).
13. O.E.O. and Legal Services-A Symposium, 14 Catholic Law. 92-174 (1968).
14. E. Mancuso, The Public Defender System in the State of California (1959).
15. Barkin, Impact of Changing Law Upon Prison Policy, 47 Prison J. 3, 8 (1969). And see Matter of Cornell Legal Aid Clinic, 26 A.D.2d 790, 273 N.Y.S.2d 444.
16. Wilson, Legal Assistance Project at Leavenworth, 24 Legal Aid Briefcase 254 (1966).
17. Note, supra, n. 5, at 359.
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).
19. R. Sokol, A Handbook of Federal Habeas Corpus 53-54, 192 200 (1965).
20. Larsen, A Prisoner Looks at Writ-Writing, 56 Calif.L.Rev. 343, 353 (1968).
21. Note, supra, n. 5, at 348-349.
22. Freund, Remarks, Symposium, Habeas Corpus-Proposals for Reform, 9 Utah L.Rev. 18, 30 (1964).
23. Larsen, A Prisoner Looks at Writ-Writing, 56 Calif.L.Rev. 343, 347-348 (1968).
24. 'Reasonable access to the courts is * * * a right (secured by the Constitution and laws o 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, 61 S.Ct. 640, 85 L.Ed. 1034. The right of access by state prisoners to state courts was recognized in Write v. Ragen (324 U.S. 760, 762, n. 1, 65 S.Ct. 978, 89 L.Ed. 1348).' Hatfield v. Bailleaux, 290 F.2d 632, 636 (C.A.9th Cir. 1961).