Abstract
Jailhouse lawyering is a form of resistance against the prison industrial complex that seeks to silence and disappear prisoners. This Essay describes the author’s acts of resistance, or growth as a jailhouse lawyer, from arrest to imprisonment using critical race theory and abolition theory. While it tells one person’s stories, it is both shaped by those who taught him and the tradition of jailhouse lawyering as a form of resistance to mass incarceration in America.
Introduction
My first act of resistance was doing legal work in county jail. Following my conviction, I made my first public political statement about the legal system on my way to prison. I set forth my political views at my sentencing hearing. The transcript of that speech is forty pages long. “I was in trouble when was I was born Black.” I quoted the words of my Uncle Jimmy Lee Davis, made more than twenty years earlier when I was a boy. I continued with my own words: “I was born a suspect. All Black men are born suspects.” Sheri Lynn Johnson made a similar observation:
The very bottom of the American well has to be inhabited by the Black defendant; the suspicion of their wrongdoing, a suspicion that both exacerbates and confirms racial stereotypes, pushes them to the nadir of respect, privilege, and possibility.[1]
Recalcitrant in speech, defiant in heart, and facing a life sentence, I refused to beg the court for mercy I was not about to receive. I would not bend, bow, genuflect, or crawl. I was determined to fight, if only with words. Then I quoted George Jackson from his book Soledad Brother:
Black men born in the U.S. and fortunate enough to live past the age of eighteen are conditioned to accept the inevitability of prison. For most of us, it simply looms as the next phase in a sequence of humiliations. Being born a slave in a captive society and never experiencing any objective basis for expectation had the effect of preparing me for the progressively traumatic misfortunes that lead so many black men to the prison gate. I was prepared for prison. It required only minor psychic adjustments.[2]
Toward the end of my speech I quoted Ernesto “Che” Guevara, author of Guerilla Warfare: “Forever onward to victory.” I’d already read a makeshift legal manual in jail titled Gorilla Law. This for me was a new beginning. I titled my first unpublished essay written in prison “The Nascent Zero Hour.”
My final statement at my sentencing was: “For the rest of my life, I’ll always spell ‘Contra Costa County’ not with three C’s, but with three K’s.”
Arrest warrant, search warrant, and police report are narratives created and controlled by law enforcement. The formal filing of charges against the accused, arraignment, advice from counsel (private or public), and the inescapable question “Do you wish to enter a plea?” are routine tasks carried out by officers of the court. Months, maybe years later, evidence, discovery, pretrial motions, hearings, memorandums of points and authorities, Latin phrases, voir dire, and jury instructions become the arcane language the accused-turned-defendant will become accustomed to during the course of a full-blown criminal trial. If they are unfortunate and the jury or judge returns a guilty verdict, what follows is a probation report, victim impact statements, clerk minute orders, trial transcripts, abstract of judgment, notice of appeal, and other documents. But finally, it is the trial judge who expresses an opinion or makes a statement, if any, and pronounces a defendant’s fate through a sentence of imprisonment. They are the final words from the arbiter of the entire process.
Any first-year law student should be able to describe the above in intricate detail. The aspiring neophyte of law understands each voice laid bare, with one remarkable exception: the defendant’s. They rarely speak on the record unless they testify in their defense or make a statement at sentencing. If they exercise their rights under the Fifth Amendment to the U.S. Constitution,[3] or the First Amendment,[4] as reticence is a form of free speech, the benefits there and under Miranda v. Arizona[5] will follow them to the iron gates of prison.
The defendant-turned-prisoner in many instances does not speak because the humiliating process of trial and incarceration has taught them to be the obedient pariah that officials have shaped through law and indoctrination. As Jack Henry Abbott opined:
I have never accepted that I did this to myself. I have never been successfully indoctrinated with that belief. That is the only reason I have been in prison this long.
. . . .
A prisoner is taught that what is required of him is to never resist, never contradict. A prisoner is taught to plead with the pigs and accept guilt for things he never did.[6]
Speechless about their self-determination and fate, some who’ve been convicted remain enveloped in silence. Although a little too late, when some prisoners become acclimated to the life of incarceration, the astute and disciplined among them will invariably find their voice and become jailhouse lawyers.
Inside the California Department of Corrections and Rehabilitation’s (CDCR) thirty-five prisons,[7] such a lofty legal ambition is thwarted often by lockdowns and changes to daily operation of institutional programs caused by limited visibility from fog, officer training exercises, staff shortage, inmate-initiated work stoppages, riots, or scheduled institution cell searches. The Fourth Amendment’s prohibition against unlawful search and seizure does not generally apply to prisoners, so there is no reasonable expectation of privacy in carceral environments.[8] When prison operations run uninterrupted, there remains still the issue of access to the law library. Old films that depict a convict at study for hours, year after year, in a prison library stocked with updated legal material are a farce in the twenty-first century, as obsolete as a leather helmet in a football game. Prison overcrowding precludes inmates from regular use of libraries at many CDCR prisons. This is in direct violation of California law, which provides:
All inmates, regardless of their classification or housing status, shall be entitled to physical law library access that is sufficient to provide meaningful access to the courts. Inmates on PLU [(priority library use)] status may receive a minimum of 4 hours per calendar week of requested physical law library access, as resources are available, and shall be given higher priority to the law library resources. Inmates on GLU [(general library use)] status may receive a minimum of 2 hours per calendar week of requested physical law library access, as resources are available.[9]
Two to four hours per calendar week simply is not enough time for even a skilled attorney to do legal work. Furthermore, the word “may” is not mandatory language, which means the hours noted are not guaranteed.[10] Although the Sixth and Fourteenth Amendments accord litigants the right to an adequate defense or prosecution of a case,[11] these amendments, as written, may as well be paper tigers because for the jailhouse lawyer—they have no teeth or claws. For this reason, prison sometimes exists as infinitely void of adjudicatory resources, with its libraries in eternal darkness.
It is no secret that most attorneys in California who have a state bar number are college educated. At the undergraduate level, they hold degrees in English, political science, philosophy, or some other discipline that may have prepared them for study of American jurisprudence. They are likely to also possess knowledge on subjects such as civics, psychology, and sociology. Unfortunately for many prisoners, they enter a fortress of doom, with little understanding of basics skills such as filling out a job application or writing a resume. If their criminal case makes its rounds through a state appellate and state supreme court, it is likely because they had a court-appointed attorney to represent them and hopefully enforce their rights under the law.
Many prisoners arrive in the CDCR bereft of a high school diploma or GED,[12] defeated by the prosecution, left with the idea of an imagined abuse of language used to obscure facts in evidence that may not have existed and the effect of legalese on the jury. Many prisoners will admit that a prosecutor, however, is adept at convincing a layperson of a defendant’s guilt based on insight to an event that this state agent never witnessed. It is done so often it requires no original thought.
The precursor to such subterfuge requires the sequestered mind of a biased jury.[13] In spite of the protection afforded a defendant-prisoner, bail in many cases is set at such an exorbitant amount, in violation of the Eighth Amendment,[14] that it may as well serve as a ransom. After a futile attempt to make bail, a defendant-prisoner of color may learn that at trial, a skilled prosecutor’s scepter of power lies in the hands of the entitled, dominant white culture, which is predisposed to exhibit racial bias toward defendants of color. Sometime after conviction, a defendant-prisoner might discover Batson v. Kentucky[15] and People v. Wheeler.[16]
[U]ntil Batson v. Kentucky, prosecutors were free to use peremptory challenges to preclude black venire members from serving as jurors . . . .. . . .
Batson v. Kentucky overruled Swain, certainly a step forward in the sense that it put jury selection in line with all the rest of Equal Protection doctrine: “Discrimination based upon race” is suspect, “and bears a heavy burden of justification.” As Batson held, the racially motivated use of peremptory challenges—even of a single juror—violated the Equal Protection Clause.[17]
As defendant-prisoners learn this—and other criminal procedure cases—they might begin to see ways in which the system failed them and led them to prison. Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),[18] after the highest state court has had the opportunity to review a prisoner’s appeal, they have one year to seek relief at the federal level. In that span of time a prisoner, who hopefully has a high school education, must learn the court system, case reports, Shepardizing, the applicable Penal Code, the Code of Civil Procedure, the Rules of Court, a new vocabulary, and more. It is a daunting task that a skilled lawyer, attorney general, and judge no longer face, especially inside a maximum-security prison where violence and lockdowns are the order of the day.
If a prisoner is resourceful or has connections, week-old copies of Daily Journal and Daily Appellate Reporter are available to him or her. LexisNexis is virtually nonexistent to California state prisoners, as is email, internet access, and unmonitored use of a telephone. The reality and the urgency of the one year deadline to file a federal petition for a writ of habeas corpus places many prisoners at a grave disadvantage since, in some cases, a life sentence is interpreted as death by incarceration.[19] The provisions of the AEDPA—as most incarcerated people and people familiar with the law will agree—constitute one of the worst pieces of legislation from the Clinton tough-on-crime era of the 1990s.[20] The AEDPA’s time constraints alone forestall due process of law for both ignorant and scholarly prisoners. Failing to meet the time requirements to file a petition will time bar a prisoner from proceeding under the AEDPA, unless they can demonstrate some extraordinary circumstance that explains why the deadline was missed. And in the most explicit use of the phrase, “ignorance of the law is no excuse.”
How does a jailhouse lawyer learn the law under such alien conditions? Upon entering prison in 1998, after spending a little more than two years in county jail, I was given a mandatory copy of the California Code of Regulations, Title 15. I was expected to read it and understand it, so I did. But it was a cellmate of mine named Don in the county jail who started preparing me to become a jailhouse lawyer. He’d already served two prison terms and had worked as a clerk in one of the then-CDC prison law libraries.[21]
Don was white and about twenty years my senior. He understood the legal and carceral skullduggery of politics that involved special interest groups such as crime victims, law enforcement agencies and their unions, prosecutors, and tough-on-crime advocates, and the racism that many of these groups espoused. He didn’t run with the white boys, although it was expected in prison for everyone to unite along racial lines. As in everyday life on the outside, racism in prison creates a chasm between people. Navigating the ‘color line’ is no small feat in lockup either.[22]
Don was exceptionally different. He was a jailhouse lawyer who had already seen the destructive nature of both prisoners and prison. He was different because his focus was on legal matters, and racial politics in prison to him had no place in the law library. Jailhouse lawyers seldom work in a solitary state. Rather, by the nature of our confinement, it is a study of law inextricably linked to each other and our convict predecessors who passed the proverbial torch on how to effectively file administrative appeals, and state petitions for writ of habeas corpus.[23]
My knowledge of the law can easily be misunderstood as that of a self-taught jailhouse lawyer. On the surface, this is partly true. But much of my erudition on the subject of law is owed to those who pointed me in the right direction as I stumbled and made mistakes, men like Don.
Then there was Charlie, whom I met in administrative segregation—more commonly referred to as the jail’s “hole”—after being sent there for ninety days because of what some deputies believed was an inflammatory composition written in my personal journals. Charlie claimed to have attended law school in another state and seemed to always know what he was talking about. When he and I wound up at San Quentin’s reception center before transferring to other prisons, we met in the legal library. I explained my desire to understand law.
“Charlie, I know I need to be in here learning, but I don’t know where to start,” I explained.
“Stay right there,” Charlie said. “I’ll be right back.”
He disappeared in the library for what seemed like an eternity as I stood there, anxious and clueless, a thirty-five-year-old doing his first prison term. When he returned, he handed me the book Legal Research.[24] Charlie told me that this book would get me started on everything I needed to know.
That was my formal introduction to understanding the law. I was not allowed to check the book out, so I wrote down its information and took that with me for future reference. Three years and two prisons later, I ordered what by then was the seventh edition. I read the book cover to cover and did every library training exercise, such as learning how to distinguish the various state and federal case reporters, Shepardizing cases, and other research techniques. Of the 416 discursive books that I’ve read during my twenty-four-plus years of incarceration, Legal Research is book number 106. By then I’d been locked up about five years, and I still had a lot to learn about prison procedures, politics, and the dirty tricks played by guards and endorsed by other prison officials.
Other men who’d been locked up decades before my arrival to prison helped me to expand my legal knowledge. They were Larry, Vince, “Shogun,” Karluk, Wendell, Robert, Earnest, and Chung. Some like Karluk Mayweathers, a Muslim who was my neighbor at California State Prison, Solano, have published cases.[25] He was intelligent and even drew for me the schematics for series and parallel circuits, years before I studied in the vocational trade to become an electrician. It was all about “each one teach one.”[26]
Chung Kao, who I met and worked with at the inmate-run publication San Quentin News, had his own legal victories and helped to direct my written argument, strategy, and citations in my First Amendment complaint filed pursuant to 42 U.S.C. § 1983 for the case Sawyer v. McDonald.[27]
I met Robert Mitchell in the law library at Folsom State Prison. He won his federal district court case, which raised the issue of whether the CDCR’s race-based lockdowns were an unconstitutional practice.[28] Although Mitchell’s case did not go to trial, he received a favorable settlement.
Larry Craig Green was a clerk in the library at California State Prison Solano when I arrived at the prison in 2000. During my early days of learning the law, he was kind enough to show me how to navigate through the library. He was one of the defendants convicted in the 1970s Zebra Murders case in San Francisco, California. His codefendant, the late J. C. Simon, was my last cellmate at the prison before I transferred.
Earnest Woods sued Solano’s appeals coordinator Santos Cervantes in district court and won.[29] By that time, I’d transferred from Solano to Folsom State Prison. I didn’t know Woods, but when I read about his case in Prison Legal News and learned it was in the Court of Appeals for the Ninth Circuit, I filed an amicus curiae brief on his behalf because I was familiar with the delay, derail, distract, dissuade, and discourage tactics employed by that appeals coordinator. Cervantes used to frustrate me when I filed grievances, but he also made me a better litigator. He forced me to learn to not submit sloppy work to him that did not follow regulations, as he would frequently kick my work back to me for what I believed were petty technical flaws. Before I transferred from Solano, I wrote to him and thanked him for his “lessons.” Later, I met Woods at San Quentin, in the law library.
Wendell Bigelow alerted me about the case Woods v. Carey.[30] For nearly a decade he and I walked the yard and discussed law, politics, religion, the economy, U.S. foreign policy, family, and life. He’s a vegetarian and practicing Buddhist who always kept me centered. Today, he is a clerk in the law library at Solano, and he has written many legal articles in the prison’s inmate publication Solano Vision.
Jonathan “Shogun” Williams provided me with direction and much needed advice over the years. I still have a well-worn book, The Federalist Papers, that he gave me to read.
I’ve had the good fortune to build my mind and limited understanding of the law and its principles on the erudition of past inmate legal scholars, each of whom used their unique methods to impart valuable lessons on research, writing, communication with court clerks, and more. Suffice it to say, there are skills that a prisoner must acquire in a carceral environment that may never arise in law school.
One example is priority library use (PLU) versus general library use (GLU) status in a prison legal library.[31] There is a stark difference between what is codified in administrative law and the practice of prison administrators. Another inventive method I employed to learn the law was typing other prisoners’ legal briefs. That was the next best thing to do, outside of having an intern or law clerk assignment. As one might imagine though, some prison litigators will test a person’s editing skills and their ability to interpret what the litigator attempts to articulate in writing. They’ll also test patience. Because some prisoners are not accustomed to adhering to rules, they tend to make them up as they go. I imagine court clerks understand this salient point only too well. Author John Irwin put it another way:
Prisoners do not simply comply with the regimens imposed on them. They actively conspire to survive, to reduce their state of deprivation, to ease their moral condemnation, and to pursue their own self-interests. To the extent that their situation allows, they fully or partly cooperate with other prisoners and form their own social organizations with their own values and rules to achieve their goals.[32]
It was Vince, whose last name I do not recall, that allowed me to read his prepublication copy of Irwin’s book. He was my hero because he’d escaped from prison, not once but twice. Vince was his alias when he was on the lam. He could always be found in the law library, searching for another way out.
In so-called free society, the downtrodden fight and are beaten by a horde of iniquitous “isms,” namely capitalism, racism, and sexism. After a time, some contemplate the path open to each of us, the proverbial fork in the road of temptation and right and wrong. When the latter fails and one is apprehended, this underdog who is often uneducated will lack the sophistication to fight an unknown battle where the code of the streets do not apply. This is where a surrogate defender takes up the cause in a courtroom. The battle ensues, but, as in life, defeat remains a constant and surrender to a sentence is all that’s left. Many may suppose fair sailing will transport the felon through time, but that’s not so. Time away from society is supposed to be the punishment, cloaked under an authority that boasts of opportunity for reform and rehabilitation. This, however, is when more crime, inhumanity, and violations of one’s person and rights have a criminogenic effect on so many prisoners.
Caged or confined and stripped of his freedom, the prisoner is forced to submit to an existence without the ability to exercise the basic capacities that define personhood in a liberal society. The inmate’s movement is tightly controlled, sometimes by chains and shackles, and always by orders backed with the threat of force; his body is subject to invasive cavity searches on command; he is denied nearly all personal possessions; his routines of eating, sleeping, and bodily maintenance are minutely managed; he may communicate and interact with others only on limited terms strictly dictated by his jailers; and he is reduced to an identifying number, deprived of all that constitutes his individuality.[33]
The jailhouse lawyer takes up a different fight, though. He or she picks up books, California Code of Regulations Title 15, the Penal Code, and the Constitution. That is a basic starting point. Like a journalist, considered part of the Fourth Estate, or fourth political branch after the Executive, Legislative and Judicial, prisoners who litigate are a large part of a resistance that challenges power in the darkest part of injustice within America’s democracy: its prisons.
The United States stands out from all nations on Earth for its reliance on caging human beings. In the last forty years, the U.S. incarcerated population exploded from about 500,000 to more than two million. The U.S. federal and state governments lock up more people and at higher rates than do any other governments in the world, and they do so today more than they did at any other period in U.S. history. Most people sentenced to prison in the United States today are from politically marginalized groups—poor, black, and brown.[34]
It’s doubtful that most prisoners aspire to become jailhouse lawyers. Rather, it is a necessity borne out of an injustice. Was it the arrest? The warrant? Evidence? Jury instructions? Sentence? How and where does a prisoner, who is likely ill-equipped, even begin?
I. My Case
I started my legal erudition in the county jail. Accused of fifteen unrelated crimes in different jurisdictions and various cases between 1994 and 1996, I understood immediately that it was less about what authorities believed I might have done and more about an understood process known in the streets and by convicts as “clearing the books.”[35]
One of my two private attorneys (now Alameda County Superior Court Judge Trina Thompson who presided over the Oakland, California “Ghost Ship” fire trial) and co-counsel Gordon Brown disposed of eleven of those cases within the first six months of my incarceration. Nothing I was accused of carried a life sentence on its face. But the prosecutor’s shrewd use of statutes in the Penal Code fixed it so that they would.
In custody with a $1.5 million dollar bail, four cases remained and were eventually bound over for trial after a three-day preliminary hearing. But I had no way to earn money to continue paying for my two private defense lawyers. During that first six months, I was hemorrhaging cash.
Police arrest tactics such as stacking cases against a so-called suspect, I soon learned, were the state’s front line of persecution. Because of that, I was left with no other choice than to employ the services of a public defender, lest I become completely indigent. The year I was born, a U.S. Supreme Court decision, Gideon v. Wainwright,[36] made such a defense possible:
The 1963 court decision . . . held simply that poor defendants facing “serious charges” had to be provided with counsel by the state. Thus the public defender, or the “P.D.,” as he is known by his clients, arrived on the scene. But although the Supreme Court did say that all defendants, regardless of their ability to afford an attorney, were entitled to representation, it said nothing about the quality of such counsel. States satisfied the constitutional mandate by setting up public defender offices as cheaply as they could.[37]
Before parting ways with Thompson, she instructed me on what needed to happen next, should I take the cases to trial. I’m only guessing, but it would not be a stretch for her to have exerted some influence on the decision as to which P.D. would take on my case.
“Your case is ready,” Thompson said to me. “All your next attorney needs to do is put your case on trial. Whoever that attorney is, make sure they file these motions.”
In the jail’s attorney-client visiting room she wrote the following on a piece of scratch paper: motion to quash, motion to suppress, Kelly-Frye hearing, motion in limine, 402 hearing, and motion to sever. At the time, I had no idea what most of this meant, but like most things legal, I had to learn quickly to understand my defense strategy.
Armed with a Bachelor of Arts in mass communication and fourteen years of successive employment experience at various corporations in the telecommunications industry, I had an eye for detail. But I also knew I was ignorant to varying degrees about incarceration, trial, and the mechanics of the criminal justice system. Yet, there I was in 1996, ensnared like so many others who looked like me. Personal accomplishments and failures aside, by virtue of our arrests and detainment, we were all equals enmeshed in a legal ecosystem in which prisoners were stationed in the silt, sludge, and runoff from the legal system. As I’ve written before:
My confinement is due in part to my status in the middleclass which more than a few malefactors working in law enforcement and the courts scorned, so I had to be jailed, confined, and locked away for good. I occupied an ambiguous position in the eyes of white America because although successful, I “didn’t know my place.”[38]
Over the next year and a half, my public defender William H. Green would take me through three attempts to adjudicate those four cases. Because the motion to sever the counts was denied for “judicial economy,” four unrelated cases were consolidated into one trial, something I thought was egregiously prejudicial to the defense, to say the least. The jury deadlocked in the first trial on all seventeen felony counts after three days of deliberation. The judge declared a mistrial.
During voir dire in the second trial, the defense was granted a Wheeler motion[39] because there were not enough potential Black jurors and because the handful of potential Black jurors in attendance were dismissed unnecessarily with peremptory challenges by the Deputy District Attorney Phyllis Redmond. The final dismissal, which led to a second mistrial, was that of a young Black woman. The prosecution “didn’t think she could follow the evidence, because she’s a bus driver.” The naked truth of racial discrimination during jury selection was quite common and had revealed itself to me. I would later learn about Batson v. Kentucky.[40] The decision in Batson
established a procedure for determining whether a preemptory [sic] challenge was racially motivated, one that requires a three-step inquiry. First, the trial court must determine whether the defendant has made a prima facie showing that the prosecutor exercised a peremptory challenge on the basis of race. Second, upon such a showing, the burden shifts to the prosecutor, a burden that, according to the Court, could not be satisfied by mere denial of discriminatory motives, but could only be satisfied by a race neutral explanation for the strike. Finally, if the court finds the explanation on its face to be race-neutral, it must then determine whether the defendant has carried his burden of proving purposeful discrimination. This final step involves evaluating “the persuasiveness of the justification” proffered by the prosecutor; that is, determining whether the race neutral reason was pretextual.[41]
Immediately, I thought of my own trials.
As a Black defendant, it would be easy to accuse my white judge, prosecutor, and jurors of bigotry and racism. The problem, however, ran much deeper than their consciousness of my Blackness:
Even if whites live in physical proximity to people of color (and this would be exceptional outside of an urban or temporarily mixed class neighborhood), segregation occurs on multiple levels, including representational and informational. Because whites live primarily segregated lives in a white-dominated society, they receive little or no authentic information about racism and are thus unprepared to think about it critically or with complexity.[42]
White people live in such a way that they cannot prepare to be fair to Black defendants as jurors, even if they want to be.
During voir dire in my third trial, three white women, who were potential jurors, discussed my charges at lunch over a period of days, against the court’s admonishment not to do so, as it would be prejudicial. All they knew about me was that I was Black and on trial. One woman wrote a note. The judge read it on the record before the defense and prosecution. In short, they said: “Your Honor, some of us jurors don’t want our names and other information read aloud in the presence of the defendant for fear of reprisal.” They were never dismissed for cause and were eventually seated on the jury that convicted me.
Although the judge requestioned these women, it was all for show to satisfy the record. By this time, I knew why I was going to prison. My Blackness would serve as my usher to a life sentence. Kenneth Nunn described this experience aptly:
The most obvious target of racial oppression in the jury selection process is the Black defendant. Trial before a racially biased jury is an unfortunate, but all too common, experience for Black defendants. Racially biased juries may harm Black defendants in a number of ways. Black defendants may become victims of both conscious and unconscious racial bias on the part of jurors—either of which can result in an unwarranted conviction. An unwarranted conviction also may result when, due to the underrepresentation of Blacks, a jury wrongly interprets data crucial to the outcome of the trial. In addition to the danger of an incorrect result, the Black defendant may suffer symbolic and psychic harm as a result of the underrepresentation of Black jurors. These latter forms of race-based harm may not necessarily implicate the veracity of the verdict, but they do provide cause for concern for reasons related to fairness and due process of law.[43]
Like today’s “BBQ Beckys,” these women wanted to put me in my place long before the trial took place.[44] These women were assured by the judge that if I requested transcripts of voir dire, a hearing would take place to assess my need for the documents and to address concerns they may have on the matter. That did not happen, and after my appeal I was given all of the information and many of the augmented trial records. In hindsight, I supposed the system failed them too.
Unbeknownst to me, though, I was already learning jurisprudence and the latent politics in the criminal justice system. I studied every motion my attorney filed, as he always made me a copy of the legal briefs he filed. And I never waived my right to be present at pretrial hearings. That meant I had to be escorted to court, shackled with a waist chain, handcuffs, and chains on my ankles, all to take copious notes. As I listened to what was being said about my case, the esoteric legal language gave me pause. My dictionary and thesaurus could not help me, so I purchased my first of many legal books: Barron’s Law Dictionary. Today I keep it next to my Black’s Law Dictionary. Because my case involved DNA, Bill loaned me a copy of the public defender’s office book DNA in the Courtroom by Howard Coleman and Eric Swenson.
At the time there was no way I could have known the foregoing was my crash course to become a jailhouse lawyer. My 101 introduction to the law was my arrest. From there I learned to improvise and study my attorneys’ every move. I listened to each of them intently and asked what were probably annoying questions.
“Bill, what does voir dire mean?” I asked.
“Search for the truth,” he responded in a terse but respectful voice. I tried to not interrupt him when he was listening to the judge and prosecutor in court. But whenever possible, I did lend assistance in my own defense. “To speak the truth” is how my Black’s and Barron’s law dictionaries define voir dire.
Dare we arrive at any truth, however. The full sense of it from the perspective of each side could not be known because its existence posits, inexorably, a love triangle between a defendant, the state, and lies. Believing that, I’ve maintained a vague sense of rebellion that has fueled my diligence over the years. It is an outgrowth of what I view as a malicious arrest and prosecution. What followed was a thirst for the knowledge of jurisprudence. Injustice, real or imagined, is the impetus that motivates many jailhouse lawyers. I was no different. I simply viewed it as another in line of methods of practicing carceral Darwinism.[45]
During a failed attempt to interrogate me, the detective who later arrested me said: “There’s always two sides to a story.”
“No,” I countered. “There are three sides to a story: yours, mine, and the truth.” That did not appear to sit well with him. He arrested me nine days later at my job.
Before my first trial, my attorney filed a motion to have the judge recuse herself in the hope we would get assigned one who was more liberal.[46] I told him it was unnecessary because the judge had an ongoing trial that would not end before my right to a speedy trial. I knew this to be a fact because I was in jail with the defendant’s codefendant, and like lawyers, prisoners also discuss legal matters. My attorney filed the motion. It was denied but the judge’s trial had not ended, just as I had predicted.
“Bill, just refuse to waive time,” I said. “The law states that I’m entitled to a speedy trial. If this judge isn’t ready the court will have to assign me another judge.”
My attorney took my advice, refused to waive time, and that’s how the Honorable John C. Minney became my trial judge.
“You’re my best client,” Bill once said to me. Right or wrong, public defenders have bad reputations among many of their clients. “Dump truck” and “public pretender” are among the names they’re often called. I never viewed Bill that way. He was my advocate. Twenty-two years into my life sentence he wrote me a letter in support of my commutation of sentence. When I contacted him, I wasn’t sure that he would remember me.
“Of course I remember you,” Bill wrote in his reply. He also signed a declaration in support of my Petition for Recall of Sentence.[47]
The courtroom served as a classroom to me. Nothing and no one was off-limits, so I observed the judges, deputy district attorney, and the clerk. Even the bailiffs fell under my scrutiny. As I recall, at each pretrial hearing all defense motions were denied. It seemed unfair how the court consistently ruled in favor of the prosecution, over the objections made by the defense. The judge said “denied” so much the word to me became a synonym for defendant.
Still, it took two years, seven judges (John Allen, s, Lowell Richards, Wayne Westover, Patricia Sepulveda, Peter Spinetta, and John C. Minney) and three trial attempts to reach a verdict of guilty on two of the four cases that remained. And it was no small undertaking. One case was dismissed because a victim and witness grew impatient with the process and decided to move on with their lives. Another case hung again: A mistrial was declared, and it was dismissed “in the interest of justice.” I was convicted of a stand-alone burglary, and a second burglary involving sexual assault and the possession of a weapon. Section 667.61 of the Penal Code was used as an alternative means to sentence me, which added twenty-five years to life to what was already twenty-three years, four months of a determinate sentence, all ordered to run consecutively with the indeterminate life sentence. In prison vernacular it’s referred to as a “bow legged” sentence that in the aggregate gives me a sentence of 48 years, four months to life. To do this, the most serious charge of Penal Code section 261.1 was stayed using Penal Code section 654 in lieu of Penal Code section 667.61.
II. Prison
After three trials, I found myself imprisoned inside the level-four, maximum security California State Prison, Sacramento, the infamous “New Folsom.” And I remained clueless on many details of the law.
In a large way, reading books and extracting notes from them helped to solve some of my problems. I read books on philosophy, religion, street life, biographies, revolution, books written by judges and prosecutors, and Johnnie Cochran’s Journey to Justice. Although I was already a college graduate, I enrolled in and completed several college courses, one on contract law. I even spent six years in the vocational electrical trade and became a certified electrician.
After my state appeal was denied at all levels of review, I had to learn how to file a federal petition for writ of habeas corpus under the time constraints of the AEDPA. I foolishly thought I could mirror most of my state appeal issues in federal court. The Assistant Attorney General, John H. Deist, who handled my federal petition, wrote: “Petitioner now challenges his convictions on federal habeas corpus, alleging errors in virtually every phase of the proceedings.” Deist was right, and that was not the worst of my legal faux pas. I failed to properly file a certificate of appealability to the Ninth Circuit after my petition was denied by the Northern District Court of California.
It would be years before I understood controlling cases such as Strickland v. Washington[48] involving ineffective assistance of counsel. When new rulings came down from higher courts that I believed would benefit me, I learned about Teague v. Lane,[49] which placed a bar on retroactivity. Law school or unfettered access to a legal library might have spared me, other incarcerated defendants, and many courts from untimely and unnecessary litigation, but with a prison population still exploding in California, reaching by some estimates to more than 175,000 people, it was all trial and mostly errors.[50] We were all overwhelmed and suffered behind it, including many court clerks, assistant attorneys general, and judges.
Prison and its attendant strife offered new problems and violations, however. It was all so very new to me at the time—everything from deplorable conditions of confinement, unhealthy food, gangs, drugs, violence, inadequate medical treatment, and disciplinary procedures to the improper application of sentencing credits. It all mandated what amounted to an inordinate amount of time filing grievances while simultaneously appealing my conviction and lengthy sentence. Exhaustion of administrative remedies within the CDCR led to my learning how to file state habeas petitions, suits in small claims court, and claims with the Victim Compensation Government Claims Board, most times with little success. Each failure, however, became a lesson on how to navigate the courts through the Penal Code, Government Code, Welfare and Institutions Code, Code of Civil Procedure, Rules of Court, case law precedent, Latin terms, and more. I did not quite appreciate that I was making my trek on a similar path of convicts who’d preceded my incarceration more than fifty years earlier. As one prisoner said:
We started to learn legal terminology so we could understand what was going on in court. We convinced ourselves that since we were innocent we could fight our cases and even win them. The first thing we found we had to do in order to practice law was to learn the Constitution, especially the first Ten Amendments, the Bill of Rights. We got very down with the Constitution.[51]
I was following in the footsteps of others.
As I transferred to different prisons, I learned something new at each stop. At Folsom State Prison there were very few programs for prisoners serving a life sentence. Because of that, I used my own money to pay for and complete a two-year paralegal/legal assistant correspondence course through Blackstone Career Institute. By then, I already had a small amount of hands-on experience and working knowledge of the law, or so I thought. But through Blackstone, and time in my cell, I learned about the origin of the American legal system going back to the Magna Carta, English common law, and ecclesiastical law. I studied the Constitution and also learned about torts, contracts, wills and trusts, partnerships and corporations, real property, and more. It allowed me an opportunity to expand my diminutive legal foundation. For what I could not be certain, but I would later find out.
Prison litigation is never ending. The CDCR has a history of violating prisoners’ rights, and the infringement on those rights have been challenged time and again by inmate litigators.
The nonprofit Prison Law Office wrote the book on California prison litigation. In 2010, I purchased its California State Prisoners Handbook.[52] It is a valuable resource. For federal litigation, I have the Prisoners’ Self-Help Litigation Manual.[53] For citations and references, I have the twelfth edition of The Bluebook: A Uniform System of Citation.[54] I’ve even gone so far as to read Typography for Lawyers.[55] Lawyers and paralegals unfamiliar with the latter would be wise to get a copy for their office, because the aesthetic value of legal documents should never be disregarded. As important, the publications cited above are often updated, leaving prisoners with outdated legal material even for those who can afford it. Added to that is the regulation that allows California state prisoners to possess only ten books or magazines, or a combination of the two because they are only allowed six cubic feet of property.[56] An additional cubic foot of legal material is permitted, which includes law books if “related to their active case(s).”[57]
III. Political Prisoner
After a short time, many jailhouse lawyers, including myself, come to understand that the very nature of our decades-long incarceration makes us political prisoners. The law, on the surface, substitutes the term with the more politically-neutral phrase “crime and punishment.” But it is the bulwark of tough-on-crime politics such as the war on drugs, sex offenders, repeat offenders, the war on terror, and the war on poverty that has given way to laws such as California’s Three-Strikes Law,<[58] the Clinton-era crime bill,[59] the AEDPA, and the Prison Litigation Reform Act of 1995 (PLRA),[60] the latter of which was enacted, in part, to stop the deluge of “frivolous” lawsuits.[61] If the PLRA has done anything, it has pushed prisoners’ litigation back fifty years.[62] Even section 3000 of Title 15 (definitions) uses a derogatory phrase to define some prolific jailhouse lawyers: “vexatious” litigants.[63] It’s the longest definition in the regulations.
For decades too many politicians have remained in lockstep with such policies that have created overcrowded prisons in the United States. Jailhouse lawyers are perhaps the last remedy to mitigate the exploitation of crime for political gain and profit. As Dorothy Roberts, recognizes, “[r]ather, prisons are part of a larger system of carceral punishment that legitimizes state violence against the nation’s most disempowered people to maintain a racial capitalist order for the benefit of a wealthy white elite.”[64] The edicts of everyday prison life and its underground regulations place a target on the back of jailhouse lawyers, or “writ writers.” A 1991 study on prison discipline by the U.S. Department of Justice found that writers and prisoners who file litigation against prison officials often find themselves in solitary confinement.[65] The study found “[t]hat the most frequently disciplined groups of prisoners are jailhouse lawyers, Black prisoners, and prisoners with mental handicaps.”[66] I’m in the first two groups of prisoners.[67] The report explained:
Jailhouse lawyers assist other prisoners, many of whom are illiterate, to participate on their own behalf in formal grievance and appeal procedures both within the prison and in the courts . . . . Because of this, . . . guards and administrators have a standard practice of “singling out jailhouse lawyers” for discipline in retaliation for so challenging the status quo.[68]
This is because they are far more likely to blow the whistle and are made to suffer for it. That’s part of the inescapable social construct of prison for a jailhouse lawyer, something I refer to as intellectual castration.
IV. My Civil Case
The culmination of my legal erudition manifested itself in 2011 when I transferred to San Quentin State Prison from Folsom State Prison as part of Assembly Bill 109, “Realignment,” which is California’s attempt to reduce its prison population.[69] It was then that my notes, quotes, research, and personal and political writings, identified as my intellectual property and compiled during years of reading in other prisons, was seized by prison guards. Using the application of post hoc ergo propter hoc (in Latin, the “after this, therefore because of this” fallacy), they identified “Black August” material that referenced George Jackson and other revolutionary documents indicative of my involvement or membership in the Black Guerilla Family (BGF) prison gang. I am not, nor have I ever been, affiliated with the BGF or any other gang. None of that mattered, though. There was no deterring their total disregard for the truth. State repression spawned decades earlier had reared its head in the form of underground prison politics, and I was in its crosshairs. A prisoner tagged with a BGF designation of any kind has a virtual death sentence:
[The CDCR] administratively segregate[s] [these prisoners] from the general population by holding them for years in harsh, highly restrictive . . . secure housing units (“SHUs”). [The] CDCR’s gang validation process [is] applied to the Black Guerilla Family . . . the only Black prison gang that CDCR recognizes.. . . .
Through its gang validation procedures, the [CDCR] is attempting to place a categorical ban on anything related to Black August, George Jackson, and certain cultural and political ideologies by connecting them to criminal activity.[70]
Yet again, I’d been criminalized for my Blackness.
Although I’d been incarcerated fifteen years and had already served time in four CDCR prisons, the administration knew nothing about me other than what it received from my sentencing court. I wanted to keep it that way because to know too much about a person gives power to control that person. The less they knew about me the more I could be allowed to stay free. That was about to change, and I would not be allowed to ensconce myself in a cell where my political ideals were forged and fortified. My past reading and writing regimen had returned to interrupt my present and future, led by prison guards who were paid to debase the truth and justify perilous dishonesty. Their goal was to punish me for boldly wandering down a revolutionary road with my thought process, and to intimidate others from daring to do the same. Because they didn’t know me, they probably did not expect me to resist and push back. These were white experts, dissociated with prison and penology as it related to the Black experience.
The prison’s institutional gang investigators gratuitously ascribed criminal activity to my Black studies regimen and, at all three levels of administrative review, the CDCR endorsed their abject investigation and the glossing over of my appeal. “It was their racial otherness that came to justify the subordinated status of Blacks.”[71]
If there was ever a time to practice law as a jailhouse lawyer, for me this was the moment. Fifteen years after being accused of multiple crimes and sent to prison, my new accusers were attempting to bury me deeper in the abyss of the prison industrial complex. By this time, though, I’d already walked the gauntlet and had found my legal and political voice.
In 2011, that same year, I filed a grievance to adjudicate the matter with the prison administration. Technically, this document is a pretrial pleading. In most instances, inmates must exhaust all three levels of the administrative appeal process within the CDCR before an advance to state or federal court. Not only was my appeal denied at all three levels of review, but the prison’s institutional gang investigators, or goon squad in prison vernacular, threatened me with two validation points after I filed my administrative appeal. The points were toward being a member or associate of the BGF, clearly a retaliatory tactic.
As a pro se litigant working in a carceral environment, I had a tough uphill battle. I had to file my first Section 1983 civil rights lawsuit, and I lacked much of the knowledge, tools, and modern technology necessary to prevail. But I’d raised a First Amendment claim because I was a writer and a person that many consider well-read. Just as Thompson had advised me twenty years earlier, this meant I had to follow every instruction made available to me. That I did as a quasi-self-taught litigant, by the book.
Most prison legal libraries, including San Quentin’s, have well-worn and outdated legal material. And as has been described above, an inmate who covets access to the library may be denied because of myriad disruptions inside a prison. If there is one place a prisoner is guaranteed to be in prison, that’s his cell. I learned to master the art of cell time which is why I kept a few essential legal books in my personal property, along with my Brother ML 300 typewriter.
For nearly seven years I pushed through administrative appeals, studied copyright law, and the First and Fourteenth Amendments, and read more than one hundred books on various subjects. I’d also solidified my position as a journalist and associate editor for the inmate-run publication San Quentin News. Prison policy, inmate rehabilitation, and court and legislative mandates became my beat. But little did I know my case, Sawyer v. McDonald,[72] would take a little over eight years from its inception to reach a settlement.
I did everything by the book and sought the advice from other jailhouse lawyers. I’d even consulted with former BGF members who had served more than forty years in prison and decades in the SHU. They were released from the SHU, and subsequently from prison, after the CDCR settled the class action suit Ashker v. Brown[73] and three hunger strikes. In fact, it was one of them who gave me his copy of the Hastings Race and Poverty Law Journal, which was written after I was accused of BGF involvement but before my case made its way to federal court. It documented and made abundantly clear what the CDCR’s pattern and practice had been, and these brothers were willing to do everything in their power, including testify in court, to help me extricate myself from the state’s web of untruthfulness.[74]
For years I stood on top of a bucket in my cell with my typewriter on the top bunk, filing 602s,[75] my complaint, the amended complaint, my application to proceed in forma pauperis, motions for appointment of counsel, motions for enlargement of time, requests for discovery, a reply brief, and all that falls between. In the end, though, the Northern District Court of California dismissed my complaint on summary judgment.
I was aware of the hands-off policy adopted by courts when it came to matters of inmates challenging prison administrations. Typically, the final word of prison officials reverberated with the word “denied” on an appeal form. In effect, some courts have taken this so far that there is functionally no legal redress for inmates behind the prison gate.
During the years I spent enduring three criminal trial attempts, I’d watched painstakingly how my attorney would take notes as the court made statements or certain rulings.
“What are you doing?” I asked Bill, who had a separate file folder that he maintained.
“These are issues you can raise on appeal,” Bill said. In one instance he said: “These are the kinds of issues that get cases like yours reversed.”
I learned well from Bill to document every legal step I made, just in case. As a prisoner, I understood the importance of Rule 56 of the Federal Rules of Civil Procedure, which governs summary judgment.[76] Although I’m serving a life sentence, time is something a prisoner needs most to effectuate the legal process. The AEDPA’s strict filing deadline taught me early on that time is never on a prisoner’s side when a court is more concerned about fastidious rules and its calendar than a man’s rights or his life. Courts too often insist on finality of cases.[77]
I appealed the court’s summary judgment decision and filed for a motion for appointment of counsel. As in the past, the motion was denied. However, it was the best denial I’d ever read. The court reasoned that my motion was unnecessary and assigned Paul Hoffman, who teaches at the University of California, Irvine School of Law, to be my attorney. Two of his students, Samantha Abraham and Chaplin Carmichael, worked on my appeal. Hoffman was to represent me only on my appeal. Whatever happened after that, I was on my own. I dreaded starting over if the appeal was in my favor.
“This is a winning case,” Hoffman said, before the case was presented to the court. In one letter to me he said the work I’ve done in prison as a journalist and my career before prison was impressive. “If this case gets reversed, I want to continue to represent you.” Naturally, I was elated. But I had to wait for the court’s decision.
“Sawyer, cell 1-0-8, you have legal mail,” a guard said over the West Block public address system. It was a large white envelope from UCI School of Law. Following prison procedures,[78] I signed for it and opened it in the guard’s presence so he could see there was no contraband in the package.
I turned immediately to the last page of the Ninth Circuit’s memorandum. “Reversed and Remanded” was written in bold. The Ninth Circuit reversed on four issues, writing:
The district court abused its discretion by denying sub silentio Plaintiff’s . . . motion for an extension of time to complete further discovery . . . . The district court also erred by granting summary judgment to Defendant on the retaliation claim . . . . Finally, the district court erred by granting qualified immunity to Defendant.[79]
This was huge, but I’ve learned that some victories are short-lived. Much to my relief, Hoffman kept his word and remained with me, pro bono, in district court. Two different students, MacKenzie Anderson and Sarah Eller, prepared the case for trial. But not long after the Ninth Circuit’s ruling, the CDCR and attorney general inquired about a settlement. The choice was mine, and Hoffman assured me that I had his full support and the backing of UCI School of Law.
For me the case was never about money, making sweeping changes in prison, or having someone fired or imprisoned. All that seemed too overreaching and vindictive. Police and prosecutors had done that to me. I wanted to do better than them and not seek vengeance. I’d rather write creatively or exercise my right to freedom of the press than to punish those who, as one court wrote, “would chill or silence a person of ordinary firmness from future First Amendment activities.”[80]
Conclusion
My desire was never to become a jailhouse lawyer, and much less do I consider myself an efficient one. Out of necessity, litigation became practical to learn how to defend myself and my rights in prison, especially against erroneous write-ups.[81] As a journalist, writer, and part time litigant, I cannot stand idly by and not respond in some measure to the injustice that surrounds me.
Beginning in the 1960s, prisoners have asserted legal claims based on the Constitution to challenge their incarceration and the conditions of their confinement. The 1964 case Cooper v. Pate, which held that prisoners could bring constitutional challenges against prison officials in federal court, fueled a prisoners’ rights movement that relied largely on civil rights lawsuits . . . .
. . . .
. . . For these prison activists, asserting their constitutional rights constitutes both a pragmatic use of legal tools to win release or change carceral conditions and an empowering rhetorical demand for legal recognition. As George Jackson’s appeal to “brainy types” suggests, lawyers and legal scholars can play an important role in helping to articulate and present the demands of people subjected to carceral punishment for strict adherence to the Constitution’s abolitionist directives—even when they anticipate failure.[82]
While I was glad to have won this case, the litigation was not solely about winning. It was part of a long line of activism behind prison walls.
Now in my twenty-fifth year of incarceration, I still read books and write. That will not change. In doing so, I know my words will invariably evoke negative responses from some prison officials who may view it as inflammatory. And if I am in prison any longer, I know aspersions and false stories about me may have me defending my rights again. That is the nature of being creative or speaking truth to power as an incarcerated journalist, writer, and ultimately—having no other choice—jailhouse lawyer. As Charles Johnson once wrote: “Usually one of two things happens when a Negro fails to reflect this [stereo]type: Either he is considered an exception or he is ‘out of his place.’”[83]
In my own way, as a form of resistance, I am probably both.
[1]. Sheri Lynn Johnson, Batson From the Very Bottom of the Well, 12 Ohio St. J. Crim. L. 71, 71 (2014).
[2]. George Jackson, Soledad Brother 4 (1970).
[3]. U.S. Const. amend. V.
[4]. Id. amend. I.
[5]. 384 U.S. 436 (1966).
[6]. Jack Henry Abbott, In the Belly of the Beast 15–16 (1981).
[7]. Heather Harris, Justin Goss, Joseph Hayes & Alexandria Gumbs, California’s Prison Population, Pub. Pol’y Inst. Cal. (July 2019), https://www.ppic.org/publication/californias-prison-population [https://perma.cc/H4CX-WU3Y]. For current population numbers of the California Department of Corrections and Rehabilitation (CDCR) institutions, see Population Reports, Cal. Dep’t Corr. & Rehab., https://www.cdcr.ca.gov/research/population-reports-2 [https://perma.cc/G8JM-83AV] (providing weekly population updates).
[8]. See, e.g., Hudson v. Palmer, 468 U.S. 517, 527–28 (1984) (holding that the Fourth Amendment does not protect incarcerated people from searches of their personal property by correctional officers); Florence v. Bd. of Chosen Freeholders of Cnty. of Burlington, 566 U.S. 318 (2012) (holding that prisons can conduct blanket, suspicionless strip searches on all incarcerated people before admission into the general population).
[9]. Cal. Code Regs. tit. 15, § 3123(b) (2020).
[10]. See id. § 3000.5.
[11]. See U.S. Const. amends. VI, XIV § 1.
[12]. See Paul Butler, Racially Based Jury Nullification: Black Power in the Criminal Justice System, 105 Yale L.J. 677, 693 (1995) (“Due to discrimination and segregation, the majority of African-Americans receive few meaningful educational and employment opportunities and, accordingly, are unable to succeed, at least in the terms of the capitalist ideal.”); see also id. at 693 n.86.
[13]. As Sheri Lynn Johnson explains:
On the eighth amendment front, the phenomenon of unconscious racism provides a compelling ‘explanation’ of the data Powell claimed to find unexplained and, therefore, presumptively noninvidious. In one sense, race itself is the explanation: the race of the victim and, to a lesser extent, the race of the defendant, explain some of the variation in the imposition of death sentences.
Sheri Lynn Johnson, Comment, Unconscious Racism and the Criminal Law, 73 Cornell L. Rev. 1016, 1020 (1988).
[14]. U.S. Const. amend. VIII.
[15]. 476 U.S. 79 (1986).
[16]. 583 P.2d 748 (Cal. 1978), abrogated by Johnson v. California, 545 U.S. 162 (2005).
[17]. Johnson, supra note 1, at 73–74 (footnotes omitted) (quoting McLaughlin v. Florida, 379 U.S. 184, 196 (1964)). The U.S. Supreme Court in Batson v. Kentucky, 476 U.S. 79 (1986), affirmed this reasoning:
Just as the Equal Protection Clause forbids the States to exclude black persons form the venire on the assumption that blacks as a group are unqualified to serve as jurors, so it forbids the States to strike black venire men on the assumption that they will be biased in a particular case simply because the defendant is black.
Id. at 97.
[18]. Pub. L. No. 104-132, 110 Stat. 1214 (codified as amended in scattered sections of 8, 15, 18, 19, 21, 22, 28, 34, 49 & 50 U.S.C.).
[19]. See 28 U.S.C. § 2254.
[20]. See, e.g., Liliana Segura, Gutting Habeas Corpus: The Inside Story of How Bill Clinton Sacrificed Prisoners’ Rights for Political Gain, Intercept (May 4, 2016), https://theintercept.com/2016/05/04/the-untold-story-of-bill-clintons-other-crime-bill [https://perma.cc/A8TM-E2L9]; Lynn Adelman, Who Killed Habeas Corpus?, Dissent Mag. (Winter 2018), https://www.dissentmagazine.org/article/who-killed-habeas-corpus-bill-clinton-aedpa-states-rights [https://perma.cc/2ZYQ-AZYZ].
[21]. Governor Arnold Schwarzenegger changed the name to CDCR in 2005. Marvin Mentor, California Legislature Reorganizes DOC to Add Rehabilitation, Prison Legal News (June 15, 2006), https://www.prisonlegalnews.org/news/2006/jun/15/california-legislature-reorganizes-doc-to-add-rehabilitation [https://perma.cc/4S7P-4QEP].
[22]. See Robin DiAngelo, White Fragility, 3 Int’l J. Critical Pedagogy, no. 3, 2011, at 54, 57 (“In a white dominant environment, each of these challenges becomes exceptional. In turn, whites are often at a loss for how to respond in constructive ways. Whites have not had to build the cognitive or affective skills or develop the stamina that would allow for constructive engagement across racial divides.”).
[23]. The form for inmate/parolee appeals is known as CDCR Form 602, Inmate/Parolee Appeal. The administrative grievance and appeal process is governed by the California Code of Regulations, Cal. Code Regs. tit. 15, §§ 3084–3084.9 (2020).
[24]. Stephen Elias & Susan Levinkind, Legal Research (Janet Portman ed., 7th ed. 1999).
[25]. E.g., Mayweathers v. Terhune, 136 F. Supp. 2d. 1152 (E.D. Cal. 2001), aff’d sub nom. Mayweathers v. Terhune, 258 F.3d 930 (9th Cir. 2001); Mayweathers v. Newland, 314 F.3d 1062 (9th Cir. 2002); Mayweathers v. Terhune, 328 F. Supp. 2d 1086 (E.D. Cal. 2004).
[26]. This is an African American proverb that originated among enslaved people who taught each other when they were denied access to education. Each One, Teach One, Univ. Ariz., <ahref="https://coe.arizona.edu/each-one-teach-one">https://coe.arizona.edu/each-one-teach-one [https://perma.cc/8HK5-SRRB].
[27]. 768 F. App’x 669 (9th Cir. 2019).
[28]. Mitchell v. Cate, No. 08-CV-01196, 2015 WL 5920755 (E.D. Cal. Oct. 8, 2015).
[29]. Woods v. Carey, 684 F.3d 934 (9th Cir. 2012).
[30]. Id.
[31]. See Cal. Code Regs. tit. 15, § 3123(b) (2020).
[32]. John Irwin, The Warehouse Prison 9 (2005).
[33]. Allegra M. McLeod, Prison Abolition and Grounded Justice, 62 UCLA L. Rev. 1156, 1173–74 (2015) (footnotes omitted).
[34]. Dorothy E. Roberts, Foreword: Abolition Constitutionalism, 133 Harv. L. Rev. 3, 12–13 (2019) (footnotes omitted).
[35]. This is a process in which a rogue police officer(s) stacks the deck against a suspect by ascribing unsolved crimes to them. It’s a clever legal tactic to raise a suspect’s bail and force a defense attorney to work on trumped up charges. When I was arrested, I’d never served time in jail or prison and had no felony convictions on my record.
[36]. 372 U.S. 335 (1963).
[37]. Angela Y. Davis, If They Come in the Morning 205–06 (1971) (footnote omitted) (quoting Gideon, 372 U.S. 335). Gideon made real the right to counsel inherent in the Constitution, finding that the Sixth Amendment required that in all criminal prosecutions, “the accused shall enjoy right to assistance of counsel for his defense . . . [and] an indigent defendant in a criminal prosecution in a state court has the right to have counsel appointed for him.” Gideon, 372 U.S. at 335.
[38]. Kevin D. Sawyer, Am. Prison Writing Archive, The Rehabilitation Fallacy 3 (2015), https://apw.dhinitiative.org/islandora/object/apw:12346603/datastream/PDF/view [https://perma.cc/8F9R-BXS4].
[39]. This motion takes its name from People v. Wheeler, 583 P.2d 748 (Cal. 1978), abrogated by Johnson v. California, 545 U.S. 162 (2005).
[40]. 476 U.S. 79 (1986).
[41]. Johnson, supra note 1, at 75 (footnotes omitted).
[42]. DiAngelo, supra note 22, at 58. As Cheryl Harris explains, courts are part of the machinery that upholds white supremacy:
The possessors of whiteness were granted the legal right to exclude others from the privileges inhering in whiteness; whiteness became an exclusive club whose membership was closely and grudgingly guarded. The courts played an active role in enforcing this right to exclude—determining who was or was not white enough to enjoy the privileges accompanying whiteness.
Cheryl Harris, Whiteness as Property, 106 Harv. L. Rev. 1707, 1736 (1993).
[43]. Kenneth B. Nunn, Rights Held Hostage: Race, Ideology and the Peremptory Challenge, 64 Harv. C.R.-C.L. L. Rev. 63, 107 (1993) (footnotes omitted).
[44]. See Roberts, supra note 34, at 27 (“The recent spate of ‘BBQ Beckys’—white residents who call 911 on black men, women, and children engaged in harmless public activities like barbequing in a park or selling bottled water on a sidewalk—spotlights the role of police to keep black people in their place for the benefit of white citizens.” (footnotes omitted)).
[45]. Because imprisonment requires fortitude, physical strength, and other characteristics, it is often viewed as a game of survival of the fittest. That means, if I was going to somehow endure the time, it behooved me to learn the law, along with everything else.
[46]. See Cal. Civ. Proc. Code § 170.1 (West 2020).
[47]. These petitions are filed pursuant to Cal. Penal Code § 1170(d)(1) (West 2020).
[48]. 466 U.S. 668 (1984).
[49]. 489 U.S. 288 (1989).
[50]. E.g., Rick Anderson, California Prisons Struggle With Environmental Threats From Sewage Spills, Contaminated Water, Airborne Disease, Prison Legal News (Dec. 5, 2017), https://www.prisonlegalnews.org/news/2017/dec/5/california-prisons-struggle-environmental-threats-sewage-spills-contaminated-water-airborne-disease [https://perma.cc/S3RK-AA8X].
[51]. Davis, supra note 37, at 152 (quoting Ruchell Magee).
[52]. Heather MacKay, The Prison L. Off., The California State Prisoners Handbook (4th ed. 2008).
[53]. John Boston & Daniel E. Manville, Prisoners’ Self-Help Litigation Manual (4th ed. 2010).
[54]. The Bluebook: A Uniform System of Citation (Columbia L. Rev. Ass’n et al. eds., 12th ed. 1976).
[55]. Matthew Butterick, Typography for Lawyers (2d ed. 2018).
[56]. Cal. Code Regs. tit. 15, § 3190(e) (2020).
[57]. Id. § 3161.
[58]. Cal. Penal Code §§ 667, 1170.12 (West 2020).
[59]. Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, 108 Stat. 1796 (codified as amended in scattered sections of 8, 18, 20, 26, 28, 31, 34, 42 & 54 U.S.C.).
[60]. Pub. L. No. 104-134, §§ 801–809, 110 Stat. 1321, 1321–66 to –76 (codified as amended in scattered sections of 18, 28 & 42 U.S.C.).
[61]. See Margo Schlanger, Trends in Prisoner Litigation as the PLRA Enters Adulthood, 5 U.C. Irvine L. Rev. 153, 171 (2015).
[62]. See id. at 158 fig.B (showing that civil rights filings declined dramatically after passage of the PLRA, even as the prison population expanded).
[63]. Cal. Code Regs. tit. 15, § 3000.
[64]. Roberts, supra note 34, at 14 (footnotes omitted).
[65]. Nat’l Inst. of Just., U.S. Dep’t of Just., Shattering the Myth of Humane Imprisonment in the United States (1991) [hereinafter Shattering the Myth], https://www.ojp.gov/pdffiles1/Photocopy/127765NCJRS.pdf [https://perma.cc/TA7U-6EDG].
[66]. Id. at 2.
[67]. See Kevin Sawyer, “They Want to Do Me In”: The Prisoner Who Fought COVID Overcrowding, Filter Mag. (Feb. 8, 2021), https://filtermag.org/prisoner-covid-overcrowding-california/ [https://perma.cc/P2A5-2TE3].
[68]. Shattering the Myth, supra note 65; see also id. at 6 tbl.9.
[69]. Assemb. 109, 2011 Leg., 2011–2012 Sess. (Cal. 2011).
[70]. Azadeh Zohrabi, Resistance and Repression: The Black Guerilla Family in Context, 9 Hastings Race & Poverty L.J. 167, 167, 186 (2012).
[71]. Harris, supra note 42, at 1717 (footnote omitted).
[72]. 768 F. App’x 669 (9th Cir. 2019).
[73]. No. C 09-5796, 2013 WL 1435148 (N.D. Cal. Apr. 9, 2013).
[74]. Zohrabi, supra note 70.
[75]. This refers to CDCR Form 602–1, for inmate/parolee appeals.
[76]. Fed. R. Civ. P. 56.
[77]. As explained by Allegra McLeod:
The Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA) has codified this fetish of finality into a statutory framework that often causes constitutional challenges to criminal convictions in federal court to be altogether disregarded. AEDPA purports to strip federal courts of jurisdiction to consider in habeas “a determination of a factual issue made by a State court,” and limits disturbing a state conviction in habeas to cases where “the facts underlying the claim (are) . . . sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.” As a consequence, under AEDPA, even in cases with gutting evidence of possible innocence, courts have deferred to the state’s rights to kill possibly innocent persons on the ground that finality of a conviction must take priority over other moral and constitutional considerations.
McLeod, supra note 33, at 1214–15 (alterations in original) (citations omitted).
[78]. See Cal. Code Regs. tit. 15, § 3143(a) (2020) (governing procedures for opening prison legal mail).
[79]. Sawyer v. McDonald, 768 F. App’x 669, 671–72 (9th Cir. 2019).
[80]. Rhodes v. Robinson, 408 F.3d 559, 567–69 (9th Cir. 2005) (emphasis omitted) (quoting Mendocino Env’t Ctr. v. Mendocino County, 192 F.3d 1283, 1300 (9th Cir. 1999)).
[81]. Write-ups are formally known as Rules Violation Reports, also called CDCR Form 115s.
[82]. Roberts, supra note 34, at 111, 113 (footnotes omitted).
[83]. Charles S. Johnson, Public Opinion and the Negro, in The Opportunity Reader 430, 432 (Sondra Kathryn Wilson ed., 1999).
