This article was published in partnership with Truthout.
Timothy Phillips was in the middle of working on multiple legal cases when jail staff called him away from his cell in Alameda County’s Santa Rita Jail. When he returned hours later, he found all his papers were disorganized and his room assignment had been changed. While frustrating, this experience is something Phillips has come to expect in retaliation for the work he does as a “jailhouse lawyer,” a common term for incarcerated people who represent themselves and provide legal help to others.
Jailhouse lawyers, who are typically self-taught, spend massive amounts of time navigating a complex and unfairly stacked legal system in an attempt to hold the state accountable for crimes committed against themselves and their peers. And in response to this work, Phillips and other jailhouse lawyers around the country routinely face retaliation and punishment — often in the form of transfers and solitary confinement.
Avon Twitty, a former jailhouse lawyer, alleged in a federal lawsuit that his transfer to the highly restricted Communications Management Unit in his federal prison was retaliatory, for both his legal work and his conversion to Islam. And in New York, Derrick Hamilton spent 10 of his 23 years incarcerated in solitary confinement. “It was retaliation for litigating,” Hamilton told Law360 of his time in isolation. “They don’t like people that litigate against them.”
Incarcerated people often turn to jailhouse lawyers due to an overwhelmingly lack of access to outside legal representation. In the 1940s, the Supreme Court established that incarcerated people have constitutional access to the courts. But in reality that access is highly limited, in part due to a lack of legal representation: In recent federal civil rights cases brought by incarcerated people, over 90 percent of plaintiffs have no attorney. Often, their only choice is to figure out how to navigate the legal system and file their own (often handwritten) briefs from their cells, or turn to jailhouse lawyers.
But for jailhouse lawyers, this vital work can be dangerous. They frequently find themselves targeted by jail or prison staff, who see litigation as a threat to their systems of punishment. Jailhouse lawyers are particularly at risk of being sent to solitary confinement, which is used not only as retaliation, but also to effectively separate people from their clients and legal materials. Separation and solitary are used strategically by prison staff to keep people from pursuing their human rights while incarcerated.
Separation and “Investigation”
In Santa Rita Jail, Phillips says he is moved at least once a month — sometimes in routine prison operations, but often to prevent him from continuing cases with clients. “One of the biggest things they do is once they find out that I’m helping somebody, they’ll either try to move me or the other person,’ said Phillips. “Separation is probably the biggest tool that they use. They fabricate things to justify their reasons for separating you, but the real reason is because of the work.”
Recently, Phillips said he was separated from his friend and former cellmate, when staff realized they were working together on his legal issues. Phillips frequently helps this friend, who is autistic, to communicate with his lawyer and write grievances and official internal complaints, usually regarding inadequate disability accommodations in the jail. When Phillips is moved, prison staff often confiscate his written notes about his friend’s concerns, under the justification that people are not supposed to have legal documents belonging to other incarcerated individuals.
When jailhouse lawyers are sent to solitary confinement, they lose access to law libraries and the vital tools required to file a legal case from inside of a cell. “Once you get past the grievance stages, lawsuits, more filing with the courts, it becomes costly — photocopies, stationery items,” explained Phillips. “There’s a lot involved with writing and typing. It’s difficult too, because a lot of guys that need help, they don’t have resources.”
In this way, the use of solitary exacerbates what is already an extremely unbalanced legal fight. In an article about the state of law library access in prisons, Florida jailhouse lawyer Thomas O’Bryant explained to Prison Legal News: “The prosecution has experts available to help prepare their cases, medical doctors, biomedical engineers, psychologists, etc. The pro se litigant? He gets a boilerplate form to fill out and copies of case law. Good luck.”
There is not much stopping prison and jail staff from separating jailhouse lawyers from their clients and law libraries, and destroying their legal work. Housing shifts are already common in prisons and jails, and staff often have ways of assigning people to restrictive housing with little to no justification.
This happened to former jailhouse lawyer John Thompson in SCI Pittsburgh, a state prison in Pennsylvania, when he helped a client successfully prove his innocence back in 1998.
“I was helping a guy named Henry, he was involved in an alleged assault on another prisoner,” Thompson said. He says he successfully proved that the assault never happened, because it was not caught on camera. “That made them irate, and in order to get past it, they put me in the hole.” By locking Thompson in solitary, the prison removed his ability to act as a jailhouse lawyer. As Thompson put it, the prison was able “to keep me from being able to continue representing him, because you can’t represent somebody if you’re in the hole too.”
A spokesperson from Santa Rita Jail disputed claims that jailhouse lawyers face retaliation in the jail. When asked generally if people are ever transferred or disciplined in response to practicing law, he said, “We do not retaliate against inmates for any reason. If a ‘jail house lawyer’ is helping a fellow inmate that’s not something we would get involved in.”
Nearly everyone who spoke to Solitary Watch/Truthout about their work as jailhouse lawyers reported seeing or experiencing sudden, retaliatory transfers to solitary confinement for prison advocates. In particular, multiple correctional systems use the label “investigation” to justify placing people in solitary confinement, often for indefinite periods of time, and with little or no paperwork demonstrating evidence of an actual investigation. Robert Reed, formerly incarcerated in Stateville Correctional Center in Illinois, recalled entire cell blocks being put on “investigation” due to any kind of incident, advocacy, or whim of a guard. In Santa Rita Jail, Phillips said that people could be put into solitary under investigation with no further justification required. “It could be anything,” Phillips says. “That is a generic answer for: we don’t have to give you a reason why [you’re in solitary]. The codeword is ‘investigation.’”
Punished for Filing Grievances
Part of the work of a jailhouse lawyer involves filing grievances, or internal prison complaints. But this too can lead to retaliation. “I’ve been put in [solitary confinement] one time in Santa Rita Jail because I filed grievances,” said Phillips. “When I inquired about it, the classification deputy specifically told me, ‘You were complaining too much.’”
In spite of the risks, Phillips remains a prolific writer of grievances, and his expertise in wording them is highly sought after in Santa Rita. These grievances are only a first step: Before they can pursue any legal action over an abuse or prison issue, incarcerated people must first contend with the prison’s internal grievance system.
This flawed pathway is one of the many barriers put in place by the 1996 Prison Litigation Reform Act (PLRA). Before this law, people who were facing injustices while incarcerated were allowed to go straight to filing a civil case with the courts. In fact, litigation was a major way that prison conditions were improved, the result of lawsuits beginning in the 1970s regarding medical care, assault protection and sanitation. But after the passage of the PLRA, federal civil lawsuits from people in prison fell 43 percent by 2001, despite a 23 percent increase in the prison population, according to a Human Rights Watch report. The PLRA also reduced the rate of success of prison lawsuits, acting as an obstacle to anyone seeking to confront unlivable conditions in prisons and jails.
The specific provision in the PLRA that forces Phillips to file endless grievances before seeking legal action is called the “Exhaustion Requirement.” It essentially requires incarcerated people to “exhaust” all of a prison’s options for reform internally before going to court. But prison officials are the ones who design the grievance systems in the first place, and these systems are often poorly monitored and unnecessarily complex, and include cumbersome requirements. In some states, for example, lawsuits have been thrown out because the original grievances were filed in the wrong colored ink or failed to meet a deadline of two days after the incident. “The sky’s the limit for the procedural complexity or difficulty of the exhaustion regime,” Margo Schlanger, a University of Michigan law professor and expert on the PLRA, noted in an article in the Harvard Law Review.
In response to the exhaustion requirement, Phillips has attempted to learn how to file grievances in ways that might actually shift policy. “I try to familiarize myself with their policies and their rules, and I cite those rules and policies in the grievances, close them in a little bit,” Phillips says.
However, even the most carefully written, heavily cited grievances rarely succeed. “All they’re required to do is to reply to it,” he says. “They’re not required to resolve the grievance or compensate you in some kind of way, although they should. They try to protect each other, to cover for each other.”
The complex grievance requirements create yet another way for prisons and jails to retaliate against jailhouse lawyers. The PLRA literally mandates that incarcerated people exhaust the grievance process before litigating. Yet Phillips was sent to solitary for “complaining too much” — in other words, for being exhausting.
Sending a Message
In a lawsuit filed this past November, jailhouse lawyer Mark Wilson alleges that he was sent to — and currently remains in — solitary confinement in Oregon State Correctional Institution in retaliation for litigating against the prison. The prison’s justification for his isolation was that Wilson was found with “contraband” in the form of a children’s toy telephone. Wilson worked as a legal clerk, and the toy was placed on his desk by the prison library coordinator as a joke. But that joke put him in isolation for 120 days, a punishment that is usually reserved for the most violent assaults. In an interview with The Oregonian, Wilson expressed concern that “other legal assistants are afraid to do the kind of work I was doing now because they’re afraid they’ll face what happened to me.”
The fear of retaliation and the long-term negative consequences of being a jailhouse lawyer haunt Phillips. The ongoing forced relocations and stints in solitary give him little hope for his own chances of parole and eventual release. “It doesn’t look good for us to be put in [solitary] like that,” he said. “You get reviewed every six months, and they look to see if anything has happened to you, and if it has, it hurts your chances of reentry, getting moved to a halfway house.”
But Phillips fights on. Despite the bureaucratic nightmare of being a jailhouse lawyer, and regardless of the retaliation he has faced for it, he has no plans to stop. “Filing sends a message,” he says. “We’re not going to just sit. We’re going to go to your superiors.”
Banner photo: Scott Morris, East Bay Express