Of all the city’s attorneys-of-ill-repute, none are more despised than jailhouse lawyers. Will we miss them when they’re gone?
Photographs by Darrow Montgomery
On the morning of his most recent trip to the courthouse, a Lorton corrections officer wakes Keith White up at 3:30 a.m. He’s groggy and has trouble seeing in the predawn darkness. But he gets out of bed and pulls his legal files out of his locker. For the rest of the day, he will clutch those papers at his side like a briefcase full of state secrets. In prison, it’s easy to lose your “exhibits,” as he calls them, and if you do, you can’t very well tell the paralegal down the hall to fetch you more copies.
It’s June 30, 1999, the day of White’s pretrial conference, a date that has been etched into his memory for months. Like most inmates, White has memorized the exact dates of those few important days that aren’t like the rest: March 26, 1993—the last time he saw his son, when he visited during White’s first year at Lorton; Aug. 14, 1996—the day he got locked down in the segregation unit, in retaliation, he claims, for filing suit against the city; March 25, 1999—the day he got shipped away from Lorton down to Sussex Correctional Facility in Waverly, Va.; June 17, 1999—the day he came back.
By 5:30 a.m., White has showered and changed into his prison blues. Because he has to eat before the other prisoners today, an officer escorts him to breakfast. Then White goes to the bathhouse to get strip-searched, shackled, and handcuffed. When the van comes to pick him up, around 7 a.m., he may get strip-searched again. All the while, he keeps his exhibits in his line of sight.
The van winds around the various nearly deserted facilities at Lorton, collecting a few prisoners here and there. Some will argue their own cases today, like White; others will testify in the trials of people they once knew. As usual, White keeps to himself—a handsome, bald-headed 43-year-old who looks either straight ahead or down at his papers. He is a man constantly at work.
Eventually, the van unloads White at the cellblock in the ground underneath Judiciary Square in downtown Washington. There are 80 or 90 other inmates packed into the holding cell, but White finds a nice clean spot on the concrete floor on which to sit and thumb through his exhibits. He has two thick envelopes full of papers, mostly back-and-forth filings between himself and city attorneys.
White has two cases pending against the D.C. Department of Corrections. They have nothing to do with his original crimes or his desire to get out of prison. White is going blind, and he claims the city is doing nothing to stop it from happening. He has suffered from glaucoma in both eyes for at least a decade. It’s a slow, degenerative disease, which is—at first—hardly noticeable. Doctors call it the “silent thief of sight” because of the way the disease sneaks up on its victims. Gradually, fluid builds up in the eye, putting more and more pressure on the optic nerve. Under the mounting pressure, the nerve cells start to die, resulting in permanent vision loss. Once it occurs, any damage to the eye cannot be reversed. But further damage can be prevented—with the proper treatment.
Like all prisoners, White lives for the day he’ll get out. But he dreads that day, too, contemplating what it will be like if he returns to the streets completely blind. Until then, he isn’t so comfortable walking around Lorton without being able to ID who’s coming toward him. The doctor has given him drops for his eyes, but he says they only make things fuzzier. “I’m taking a big risk walking around with these guys with my eyes blurry. I’ve got to squint just to make out a guy’s face,” he says.
About half of the men at Lorton are involved in some sort of litigation, according to inmates’ estimates. Like most of them, White has a complaint, but he doesn’t have an attorney. He represents himself, pro se. Many of his motions are typed, and some are written in neat cursive because he couldn’t get access to the typewriters in the prison law library. One of those papers has a handwritten request across the top: “Clerk, please return because I could not obtain copies. The law library here is very inadequate! Thank you!”
Waiting to go into court, White sees a couple of prisoners he recognizes, guys who call him “Country” because of the North Carolina accent he has held on to ever since he moved to D.C. when he was 18. But White doesn’t talk much; most of those other guys wouldn’t understand his case anyway, he says.
At 9:35 a.m., the marshals lead White into Courtroom 16 of the U.S. District Court for the District of Columbia. The white-haired attorney from the Office of Corporation Counsel is already there, chatting with the clerks. Judge James Robertson appears and invites White to step up to the podium, which he does. A marshal follows him everywhere he goes, standing right behind him with his hands on his hips.
Over the last three years, D.C. inmates have filed 2,328 lawsuits against the Department of Corrections and its officials. Over the same time period, the city has paid out money in just 679 cases—handing over a grand total of $11 million to inmates and their attorneys, according to the Office of Corporation Counsel. That means that the vast majority of the cases filed do not result in a victory—at least not the kind you can take to the bank.
In a court system already choking on backlogged cases, inmate lawsuits create a lot of work with little payback. Each of those cases must be processed by a court and reviewed by a judge and a city attorney.
To stem the tide of litigation, federal and local officials are making life significantly harder for that much-reviled species of inmate known as the jailhouse lawyer. Many have been transferred out of Lorton in recent years, as the city prepares to shut it down for good in accordance with the D.C. Revitalization Act passed by Congress in 1997. The ones who remain “are less effective than they used to be,” says Eric Lotke, director of D.C. Prisoners’ Legal Services Project.
Soon, all D.C. inmates will be shipped to federal, state, and private prisons—some of which are thousands of miles away with law libraries that don’t stock copies of the D.C. Code. Even if they do have the right books, access to the libraries in these newer prisons is considered more a privilege than a right, mirroring the country’s growing disdain toward prison “perks” like legal books. And, after D.C. inmates complete the transition into the federal system in a couple of years, they will have to take their complaints about prison conditions to the feds. Then they will face a whole new obstacle course.
Over the past few years, the Supreme Court and Congress have systematically cut away at the legal rights it took inmates and their advocates decades to win. In 1996, the Court’s Lewis vs. Casey decision eased requirements that prisons maintain decent law libraries, where inmates can find up-to-date material to make their cases. Even if inmates do manage to file suits, the Prison Litigation Reform Act (PLRA), signed into law in 1996, has forced them to pay federal filing fees and limited their ability to collect damages. Across the country, politicians have learned that there is great political currency in cracking down on anything a prisoner might do other than stew in a cell—recreation, religious services, visitation, education, and now legal work.
On the surface, at least, it seems the world would be a better place without as many bored inmates churning out pesky litigation. For example, District officials would be happy to see Johnny Ray Chandler retire. In the last three years, D.C. inmate Chandler has filed at least 61 suits against the city—claiming he has been unfairly transferred, unjustly denied documents requested under the Freedom of Information Act, and deliberately ignored after he was physically assaulted. In all that time, the city has paid him a whopping total of $15, according to Corporation Counsel spokesperson Walter Smith.
The caricature of the jailhouse lawyer resonates with voters almost as much as the thought of welfare mothers driving Cadillacs. It is universally galling to imagine an inmate rubbing his hands together as he pores over law books searching for a technical loophole to reverse his conviction, or an arrogant kingpin at some country club prison clogging the courts with whiney claims just because he can.
In 1995, then-Sen. Bob Dole summoned those images on the Senate floor to champion the PLRA. First he noted the increase in due-process and cruel-and-unusual-punishment complaints filed by state and federal prisoners between 1975 and 1994. The statistics are staggering: Over those 19 years, the number of complaints grew almost sevenfold. Of course, Dole failed to point out that the number of prisoners had grown fourfold over the same period. But even so, his point that complaints were on the rise was a valid one. And the anecdotes he used in support of the argument crystallized the image of prisons as playgrounds for spoiled-brat wannabe lawyers.
“Prisoners,” Dole said, “have filed lawsuits claiming such grievances as insufficient storage locker space, being prohibited from attending a wedding anniversary party, and, yes, being served creamy peanut butter instead of the chunky variety they had ordered.”
Soon other senators were all over C-SPAN protesting prisoner frivolity, decrying “lavish law libraries” and balking at lawsuits filed by inmates who had received melted ice cream or Converse tennis shoes instead of L.A. Gear. “Prisons should be tough times for prisoners,” declared Sen. Spencer Abraham (R-Mich.). The lawsuits coming out of prisons “occupy an enormous amount of…time and resources that would be better spent incarcerating more dangerous offenders.”
The PLRA passed; President Clinton signed it into law; and now prisoners who sue in federal court are required to pay the $150 filing fee (in installments, if necessary, but all at once if they’ve already filed three suits that have been judged meritless), exhaust state-level administrative remedies before going to court, and show specific physical harm (mental doesn’t count). By way of comparison, prisoner advocate Jonathan Smith speculates that one woman who was forced to strip for corrections officers in D.C. Jail in 1995 wouldn’t have won money in federal court because of this new rule. Unless there is significant bodily injury, claims like sexual harassment are much harder to make under the PLRA.
At the same time that federal and local governments are restricting inmates’ ability to make their cases in court, they are also sending more people to prison than ever before. D.C. inmates are going to facilities relatives and attorneys cannot easily visit—faraway places like the Red Onion super-maximum-security state prison in Pound, Va., which human rights advocates have not been permitted to tour. And while the new laws will squelch hundreds of dubious lawsuits that should never be filed, they will likely stifle a few others, too—the kind that could make important legal precedents that benefit society as a whole.
“The courts are so weary of hearing prisoner complaints that they’re throwing everything out,” says Smith, who spent nine years working for D.C. Prisoners’ Legal Services Project before moving to the Public Justice Center in Baltimore last year. If a civilized society measures itself by the way it treats its prisoners, inmates’ lawsuits offer a blunt but effective way of maintaining minimum standards of decency and fairness. Now that window is closing, so an unknowable number of cases addressing legitimate injustices will get thrown out of court or never even filed, Smith says. “Even if it’s 10 percent of the cases,” he adds, “that’s a lot of meritorious cases that are real issues, often of constitutional significance; it seems to me that that’s a price worth paying.”
Generally speaking, inmates agree with the old adage that “a man who represents himself has a fool for a client.” But most times, inmates have no choice. And a prisoner’s poorly written complaint on his own behalf has—on notable occasions—been better than nothing.
One of the most important legal opinions on the books started out as a pro se prisoner case. In 1963, the Supreme Court ruled in Gideon vs. Wainwright that all defendants charged with a serious crime have a right to have an attorney, even if they can’t afford one. The case was eventually picked up by an attorney—like most successful inmate suits—but it wouldn’t have gotten anywhere if Clarence Gideon hadn’t made the original filing.
Likewise, D.C. attorneys regularly cite vital case law that wouldn’t have been written if an inmate had not filed a suit on his own behalf. In 1988, William H. Yarbaugh was watching his body degenerate from multiple sclerosis. He was only 30 years old, but he was having trouble walking and showering at the D.C. Jail. He had just one good hand, and even that hand had its bad days. But he would try to bathe himself in bed in his jail cell, using that one hand and a washcloth. More than once, he tumbled out of bed. All this time, he was not receiving care or advice from any physician, let alone a neurologist or a physical therapist. Finally, he filed a lawsuit against the city requesting that prison officials give him appropriate medical care.
A U.S. District Court judge read Yarbaugh’s filing and never forgot it. He and his clerks hounded the D.C. Bar to find a pro bono attorney to help Yarbaugh make his case. But for one year, there were none available. “A lot of firms tend to take the more glamorous cases,” says Robert C. Hauhart, the Public Defender Service attorney who finally took the case in 1989. When he met Yarbaugh, the inmate could barely walk and had trouble talking.
Hauhart took his client to two prominent neurologists in the area, who agreed that he was not getting adequate care. The judge ruled that D.C. officials had violated Yarbaugh’s constitutional rights by showing “deliberate indifference” to his serious medical needs. Within days, Yarbaugh was transferred to the Washington Hospital Center, where he received some of the best rehab care in the country. After a month, he was able to walk down the hallway with a walker. He returned to jail, but this time with a motorized wheelchair and a shower chair. After he was released in 1993, he accepted a $130,000 settlement from the city in a separate civil suit over his mistreatment, Hauhart says.
Whereas the vast majority of inmate lawsuits never go anywhere, Yarbaugh’s case is now cited routinely in other cases, Hauhart says: “It is part of the precedent that’s binding on the other judges in that court.” Although Yarbaugh’s initial complaint was far from perfect, his ability to file it was a crucial first step.
Like most prisoners, Keith White knows all about the PLRA and the rhetoric surrounding it. He even agrees that a lot of inmate lawsuits are unfounded. But he also believes with all his heart that his lawsuits are not among them.
Whatever else you can say about the merits of his cases, White is not trying to get a nicer pair of sneakers. In November 1997, he filed suit against city officials because he believed they were refusing to help him save his vision when they had the means to do so. He says the neglect persists, almost two years later. His second suit, filed in 1998, claims that prison officials retaliated against him for filing his first suit by putting him in maximum security—a common inmate complaint.
Everyone—even prison officials—agrees that White has glaucoma. And he has been to visit a doctor multiple times. But he says the doctor’s advice is worthless if prison officials do not follow through on it. White has complained that he hasn’t gotten the eye drops the doctor ordered on some occasions, and, at other times, he has run out of the drops he has been given. The Department of Corrections flatly denies all these claims in motions issued by the Office of Corporation Counsel. But White says officials have neglected his eyes to the point of constitutional violation. “I am trying my very best to preserve the little sight I have left,” he wrote in his original complaint.
Even though about 4,500 Americans a year do go blind from glaucoma, the disease is treatable. But it takes real vigilance to succeed in preventing permanent eye damage, says John W. Corwin, director of the Glaucoma Foundation in New York. It’s not hard to see how a prisoner could run into problems trying to get the personal attention he needs and follow the doctor’s orders. “The drugs and surgery are there,” Corwin says. But “the fundamental thing…is to follow your doctor’s regimen.” And that is no small feat. For one thing, individual patients respond differently to different eye drops—and new versions come out all the time. Some patients have to take just one kind of drop a day, while others—like White—need three different drops multiple times a day. And, Corwin
says, the drops can be expensive. On at least one occasion, White has complained, prison officials resisted giving him the proper drops because
of the cost.
When I meet with White at Lorton one hot July afternoon, he brings his papers, of course, and all of the boxes from the various drops and medicines he’s been given for his eyes. He keeps them in an empty Four Aces tobacco bag. Some of the meds have hurt his eyes, and some have hurt his heart, he says. Some have done nothing at all.
One brand of his drops needs to be refrigerated. “But I don’t have no refrigerator in my cell,” he points out, serious as always, but with a sarcastic edge indicating that he’s quite conscious of the absurdity of his situation. Prison officials told him to keep the drops in a little bucket of ice by his bed. But he says the officers won’t get ice for him. And even if they did, it would be a futile gesture when it’s 95 degrees inside his un-air-conditioned red-brick bunker.
Meanwhile, as White and his keepers grapple with each new logistical dilemma, the tiny type on the government’s motions is getting harder and harder for White to make out. He looks healthy and normal, his pants tucked into his boots and his Bulls cap crammed into his back pocket. But even though he spends hours studying his exhibits, the truth is that he really can’t read them anymore.
Some days are better than others, White says. But when I hold one of his papers in front of him, he concedes that he can’t quite make the words come into focus. And yet he can guess what the paper says, more or less, just by looking at the broad shape of the text on the page. White knows every page of his legal filings by heart. He remembers which is the note from his prison teacher notifying the doctors that he could not read his test sheet, which is his letter to the judge asking him to please request his transport to court for his next appearance. “I know it down pat, like a computer. I got it all here,” he says, pointing to his head.
Even on days when his eyes are working right, White says, it is getting harder for him to go to the law library and find updated case citations. In the last couple of years, he has noticed that it takes longer to get forms notarized or photocopied and to find the information he needs—most dramatically at Sussex Correctional Facility, a Virginia-run facility where he was transferred for a few months earlier this year. More and more, he relies on old-timer jailhouse lawyers to serve as guide dogs through the labyrinthine justice system.
The really great jailhouse lawyers at Lorton—and most inmates say there are only a handful left—are not men like White, men with finite sentences and a single, discernible issue. They are usually lifers, guys who have been there for decades and have long since seen their last visitor from the outside. Those are the ones who hunker down in the law library four or five days a week. Then they start to get a reputation. Soon they’re exchanging advice for a couple of cartons of cigarettes or a bag of coffee.
Fifty-two-year-old Ronald Smith has been incarcerated for only 11 years on his current conviction—murder while armed, 16 years to life. But he’s been at Lorton, in and out, since the 1960s. Like most jailhouse lawyers, he learned the basics of writing a writ from other inmates. About 10 years ago, he and a group of other inmates started getting together on a regular basis to have “roundtable discussions” about cases. They’d pick some lucky inmate and use his situation as a test case, drawing up a plan of attack free of charge.
Since then, Smith estimates, he’s assisted about 200 inmates. “It gives me a sense of purpose,” he says. But it also stresses him out. He says he has gotten “time cuts” for at least 12 other inmates. Whether it’s true or not, the word has gotten around. “I get a lot of headaches. Guys swamp me. Like, I have five or six cases now, but I can’t go out of the door of my dormitory without someone coming to me for some legal advice….They feel that if there’s a way out of prison through the criminal justice system, then Smitty knows it.”
Smith says he’s not taking any new cases right now. Too busy. Even though he has years of emptiness in front of him, he has managed to fill up the days for the time being. He has no one to call on the outside anymore, now that his wife has passed away. But he has plenty of people who want to talk to him on the inside.
Department of Corrections Director Odie Washington doesn’t relish having his agency sued on a regular basis by people like Ronald Smith. But still, he says he appreciates the importance of inmates’ having access to legal materials. “I think [inmates] are more stable, more rational, when they can address their legal difficulties. I think it’s a good management tool to give them adequate access to legal materials,” he says.
From the inmate’s perspective, winning is not everything, Lotke says. “Even if you don’t get your relief, you went to the law library. You’re not sitting bored in your cage; you’re at the law library reading and writing with the hope that you may someday get released.”
A senior attorney at the Public Defender Service who is familiar with inmate problems says he wishes that politicians would consider the alternatives before they condemn jailhouse lawyers. “Prisoners could be doing something other than writing things on paper and mailing them to courts. Here’s some of the things they could be doing: They could be burning their cells down, they could be stabbing their cellmates or guards, they could be fashioning knives out of small pieces of metal. You can only shut people down so far, and when you shut off all the legitimate activities, that only leaves the illegitimate activities. And in a [population] that’s predisposed to them anyway, you’ll get plenty.”
Fifteen years ago, Lorton inmate Willie Mobley Jr. filed his first motion as a prisoner representing himself. Ever since then, he’s been trying to get a hearing for reconsideration of his felony murder conviction. Mobley says he didn’t kill anybody and didn’t rob anybody. And he’s widely recognized by his fellow Lorton prisoners and their lawyers as a deft writ writer. But he has yet to get that hearing. “It’s not a pretty picture,” Mobley admits. “But you have to try to keep some kind of hope; other than that, it’s a very dim situation.”
You have essentially two choices, Mobley says: “Everybody who gets locked up, they’re mad and frustrated. Some turn their frustration into a positive effort—going to the law library and filing a writ—and some of them turn it into a negative: they don’t care—they don’t do nothing,” he says. “The time’s gonna eat them away.”
In White’s case, the fear of going blind is a logical and powerful motivator behind his obsession with his case. But his fixation with his exhibits and motions extends slightly past the realm of the rational. Sitting for hours at a time, sifting through papers he can no longer read, is not likely to help his case. What those papers are really doing is taking up space in White’s head, space that begs to be filled. Otherwise, all he’d have to think about is how he got here. And that’s not a real satisfying endeavor.
In March 1992, White robbed a disabled man at knifepoint in Southeast, getting away with $34 and some gold jewelry, according to court documents. A month later, he robbed a senior citizen who was delivering newspapers at 6 in the morning on Martin Luther King Avenue SE. White pointed a black handgun at him and ran off with $20. That time, he got caught, two blocks from the scene of the crime, cowering under somebody’s porch. White was unemployed at the time, having been laid off from a masonry job. He says he was using PCP and cocaine and having some troubles. “I was hanging out—one thing led to another,” he says. The two pathetic crimes—coupled with a bunch of piddly priors—landed White in jail for 10 to 30 years.
As it gets harder for White to do legal work, it is proportionally harder for him to maintain the illusion of control over his destiny. The intangible effect that all of these changes has on inmates’ morale is real, even if it doesn’t tap great wells of compassion in people on the outside.
When I visit the law library at Lorton Central, the law librarian asks the 15 prisoners who are in there working to step into another room for a few minutes. Fifteen heads pop up from their books and forms. The request is not well-received. “We don’t get much time in here,” yells one man with a goatee and gold teeth as he looks up from a huge leather-bound book. Other inmates mutter under their breath but slowly get up and leave. Eventually, after a brief shouting match with the librarian, the angry man shuffles out into the hallway, too, carrying his books with him.
“Inmates are like schoolchildren,” the librarian, Martin Chuks Ezeagu, says to me after they leave. “They complain about everything. They complain about the air they breathe.”
Ezeagu has a master’s degree in library science, but no law degree. Many of the inmates complain that he knows less about the law than they do. But Ezeagu recites his credentials with pride and says that he knows more than enough to do his job. He says that if I came to his library as an inmate who knew nothing about the law, he would immediately sit down with me for a “reference interview.” “You would work with me,” he says. Lorton Central’s law library is one of the best in the nation, he says.
If that’s true—and it just may be—then it’s not a promising sign for those inmates who will be prosecuting their cases from other facilities once Lorton is closed.
As of late July, the library’s D.C. and federal law books are woefully out-of-date. The most recent date on one of the most crucial series of books, Shepard’s Citations for the Atlantic Reporter, is 1994. That’s the book inmates check to see if a D.C. law has been overturned. “Oh my God,” says Marie-Ann Sennett, litigation director at D.C. Prisoners’ Legal Services Project, when I tell her the date. “If they’re fighting their criminal convictions, they’re using 1994 law,” she says. Inmates could be hinging their cases on a decision that no longer exists in the court’s eyes.
The library’s latest Atlantic Reporter, which is where the actual opinions can be found for D.C. cases, is dated April 25, 1997. Those updates come out weekly, but not at Lorton Central. The federal law books are also outdated, and the library has no Black’s Legal Dictionary—an important tool for understanding legalese. “One of them stole it,” Ezeagu whispers.
Although it is the only law library for all of Central’s 2,000 inmates, it holds just 15 people at a time. It has one computer, which inmates do not have direct access to, and just three typewriters, all of which have long waiting lists. “I need at least six,” Ezeagu admits. And the library is open only from 8:15 to 11:15 in the morning and 12:30 to 3:25 in the afternoon. It has no evening hours. It did once, but no longer. “Budget cuts,” Ezeagu says, shrugging his shoulders.
Back outside, I meet up with Cornell Rorie and Ronald Smith, bunkmates and two of the more respected jailhouse lawyers at Lorton. I ask them if, in all their days at the law library, they’ve ever seen Ezeagu conduct a “reference interview.” Both of them burst out laughing. “I’ve never seen him do a reference interview,” Rorie says. “I see inmates teaching him how to use the computer,” Smith adds.
Rorie resents being called a jailhouse lawyer, because he has received professional training in prison paralegal classes. But he concedes that most other inmates are ill-prepared for the courtroom. Those are the ones who get taken advantage of by more legally learned inmates, who demand payments in exchange for their help. The vast majority of inmates would be better off with real, court-appointed attorneys, but there simply aren’t enough to go around. Desmond Hogan, an attorney at Hogan & Hartson who works pro bono on prisoners’ cases, says his firm is forced to turn down cases on a regular basis. “We decline them because we just don’t have time,” he says. “We’ve turned down some cases where I thought if somebody was willing to put a lot of time into it, it could have succeeded. But it’s a question of resources.”
So, if the only attorney you’ve got is yourself, the odds are already stacked against you in court. And if you don’t have even vaguely recent books to work with, you may be hoping for a miracle, says Jonathan Smith. “You have no hope of writing a petition to a court of appeals without citing [current] legal cases.”
District Court Judge Gladys Kessler hears cases filed by both federal inmates and D.C. inmates. She says that she sees far more complaints about legal materials from prisoners in the D.C. system: “In the D.C. system, there seem to be real problems with access to legal materials.”
It used to be that lawyers at D.C. Prisoners’ Legal Services Project could point to a 1989 court order that mandated that Lorton keep its law library up-to-date. But the 1996 Lewis vs. Casey Supreme Court case changed all that. The justices narrowed prevailing readings of a 1977 case—in which a more liberal Supreme Court had determined that inmates have a constitutional right of meaningful access to the courts, which means access to law libraries or other legal assistance. In Lewis vs. Casey, the court made it harder for inmates to sue for better law libraries. Now, in order to show they’ve been denied rightful legal assistance, inmates have to prove that better legal materials would have helped them in filing a nonfrivolous claim.
“It’s an awful Catch-22,” says Smith. “If you couldn’t get the materials in the first place…how can you subsequently prove that it would have made a difference? It doesn’t make any sense.” But in the majority opinion, Justice Antonin Scalia made it clear that the court intended to limit frivolous filings by limiting entitlement to legal materials. Scalia’s opinion of jailhouse lawyers falls neatly in line with Dole’s. The court’s previous decision, Scalia wrote, “does not guarantee inmates the wherewithal to transform themselves into litigating engines capable of filing everything from shareholder derivative actions to slip and fall claims.”
Since that decision, prisoners’ attorneys have not felt nearly as confident in demanding adequate law libraries. Before, if a law library started to show signs of neglect, Lotke says, “it used to be that we would push, move for contempt, complain….Now, whenever we do that calculus, we say, ‘We better not push.’” Lotke fears that if he pressures the city to comply with existing court orders governing its treatment of inmates, the city’s lawyers will use the leverage granted them by the PLRA and the Lewis vs. Casey decision to overturn those orders altogether—as other states have done.
The newer prisons accepting D.C. inmates are prime examples of what happens when law libraries become nonessential. If prisoners complain about Lorton Central’s law library, they tend to change their minds when they get shipped elsewhere within D.C.’s ever-expanding system of prisons. Libraries upstream in the system have deeper, more systemic problems:
* Sussex Correctional Facility, Waverly, Va.
When Sussex started taking in D.C. inmates in January, it had no law library at all. By April, the library was up and running. But at least one inmate contacted D.C. Prisoners’ Legal Services Project to say his case had been dismissed in the meantime, because he was unable to gain access to the materials to file his motion on time. Since then, two other Sussex inmates have contacted the organization to complain that they weren’t allowed to go to the existing library to file their motions before their deadlines.
During his nearly three-month stay at Sussex this spring, White says, he was able to visit the law library only once. Inmates routinely wait one to two months to get to the library after submitting a request, he says. By comparison, Lorton inmates can usually get to the library within a week of their request. Virginia Department of Corrections spokesperson Larry Traylor says Sussex inmates must prove they need legal documents with letters from their attorneys or from a court. “If the inmate can prove immediate need, he is given unlimited access,” Traylor says. But inmates never have direct access to legal materials—they can only submit requests to trained inmate clerks who then make copies of opinions for them. The same is true at Red Onion State Prison, a “supermax” facility also run by Virginia.
* Northeast Ohio Correctional Center, Youngstown, Ohio
Youngstown, a private prison operated by the Corrections Corporation of America, has a short but unimpressive history, tainted by two inmate deaths, 20 stabbings, and six escapes. Inmates report that, although the library has copies of the D.C. Code, the books are more out-of-date than those in Lorton Central’s library. Inmate Anthony Kelly says it can take up to three weeks to get to use a typewriter in the library. Reached at the prison, the Youngstown law librarian would not talk about the library’s resources. “That is not something that I could discuss over the telephone,” she said, referring me to an assistant warden, who did not return phone calls.
* Central Arizona Detention Center, Florence, Ariz.
James Price, a D.C. inmate who has been transferred from Lorton to Ohio and now to Arizona, says that Arizona’s law library is the worst of the three. The room is the size of a cell, he says, holding a maximum of six people. The library has copies of the D.C. Code, he says, but the set is incomplete. A D.C. attorney who visited the site in late 1998 says that D.C. inmates had access to federal law, but there was very little regional D.C., Maryland, or Virginia law. Prison officials in Arizona did not return phone calls requesting comment.
Distant prisons pose other problems for jailhouse lawyers, in addition to poor libraries. Over the last year, the Public Defender Service has been “bombarded” with complaints from D.C. inmates in faraway facilities who cannot get back to D.C. for hearings, says the senior attorney. First, they receive a notice that a hearing is scheduled in Superior Court, but then they get told that their hearings will be put on hold until they get out of prison and return to the District. Due to the cost of transporting the inmates back to D.C. for hearings, many of their cases will languish for years.
Inmates also have a harder time getting professional attorneys to check out their concerns when they’re a plane ride away. “It’s impossible to do any fact-finding,” says the attorney, adding that the Public Defender Service receives about 3,000 inmate requests a year. “You get this voice out of the wilderness telling you about a problem, and it’s not like I can go there and check it out.”
When such inmates have appearances scheduled in court, the unlucky ones must defend themselves over the telephone. Many inmates say this setup only weakens their already shaky position in court. Judge Kessler says that she prefers to bring inmates into her courtroom if they are housed locally. It makes a difference, she says: “I would rather see the human being with whom I am dealing. I think it’s easier to communicate, especially if they are without a lawyer.”
Keith White has the advantage of appearing before Judge Robertson in person. It starts out like an ideal day in court: The conference begins right on time, White is seated in a leather chair, and he’s no longer wearing handcuffs.
The judge goes to great lengths to include White in the process. “Good morning, Mr. White,” he says. “Good morning, sir,” White answers, stone-faced but polite. Robertson spends a few moments lamenting the fact that White’s original complaint has been pending for two years. “These cases have been rocking along for two years now, and they need to be resolved,” he says, clearly communicating that he shares at least some of the inmate’s frustration. He turns to address White and says: “I understand you’re not a lawyer, and you don’t have a lawyer here with you. But I’d like you to step up to this podium.”
White dutifully approaches the podium and answers the judge’s questions. But he speaks in a low murmur, causing the judge to lean forward and ask him to repeat himself. At one point, White raises his hands to waist level while he is talking, prompting the marshal to tap his elbows to remind him to lower his hands to his side.
Although White gets his chance to speak, he focuses far too much on the practical facts of his situation as opposed to matters of law. He says he
didn’t get his eye drops when he was transferred to Sussex. And, he adds, “I still don’t have no glasses.” But for the judge and the city’s attorney, those points turn out to be irrelevant.
When Corporation Counsel attorney Robert H. Stockel gets his turn, he starts by dismissing White’s hard-luck story: “I have reviewed his medical records, which are replete with constant examinations,” he says. But Stockel is less interested in the fine points of the cases than the venue they’re being heard in. Stockel goes on to argue that—worthy or not—the cases do not belong in federal court because the offenses do not qualify as constitutional violations. “At best, [White] has a claim for malpractice,” the attorney says. “But neither one of these cases belongs in this court.”
The judge sympathizes with White’s plight, but ultimately he agrees that the suits should probably be dismissed for lack of jurisdiction. “Well, neither one of those cases belongs in this court, but Mr. White’s entitled to decent treatment for his eyes,” he says. “You can understand that a man in Mr. White’s position, frustrated by being told there’s no money in the budget for medication, would start filing pieces of paper,” Robertson says. “But I think that [the city’s attorney] is probably right as a matter of law.”
In essence, White is being told that he may have a legitimate complaint, but he is in the wrong court. A lawyer might have told him as much after looking at his case for five minutes two years ago. Or White might have figured it out by himself had he had better access to better materials. Jurisdictional issues are a complicated component of the law and a frequent source of error in pro se cases. While the federal courts used to be the place to go for inmates looking for sympathy, attorneys say the situation has changed over the last five years.
During this exchange, White is largely silent. No one asks him to speak. He is a man who has struggled for years working with documents he can no longer see only to be told in a matter of seconds that he is before the wrong court. But his face doesn’t register disappointment. It’s as if he expected anticlimax.
The judge asks the government to go ahead and file its motion to dismiss within 30 days. “I’m going to keep trying to get the District to take care of your eyes,” he says, optimistically, to White. He doesn’t say how. Instead, he moves seamlessly onto the next case on his docket. The whole proceeding has only lasted a half-hour.
White goes back to the holding cell, where he waits eight hours for the return van to prison. He thinks about what he did right and wrong in his brief moments before the judge. “I go through my exhibits to make sure I didn’t miss anything,” he says. By 7 p.m., he is back at Lorton.
Weeks later, when I speak to White about the conference, he doesn’t seem to believe that the cases will be dismissed. But sure enough, on July 29, Stockel files a motion to dismiss. Two weeks later, White says he still hasn’t received a copy at Lorton. But it hardly matters. White has not given up. He says the city’s attorney is just bluffing; “He’s been trying to find a way for me to slip up. But I haven’t given myself any room to slip up,” he says.
If the cases do get dismissed, White says, he will appeal. He has a mission, he says. He’s going blind. What else is he supposed to do? CP
Art accompanying story in the printed newspaper is not available in this archive: Photographs by Darrow Montgomery.