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Johnson v. Avery: Justice Douglas concurring opinion

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  • Legalbear
    This is from JOHNSON v. AVERY, 89 S. Ct. 747, 393 U.S. 483 (U.S. 02/24/1969) MR. JUSTICE DOUGLAS, concurring. I added emphasis to the part I remembered and
    Message 1 of 1 , Mar 4, 2008
      This is from JOHNSON v. AVERY, 89 S. Ct. 747, 393 U.S. 483 (U.S. 02/24/1969)
      MR. JUSTICE DOUGLAS, concurring. I added emphasis to the part I remembered
      and liked near the bottom of his opinion:

      [36] While I join the opinion of the Court, I add a few words in
      emphasis of the important thesis of the case.

      [37] The increasing complexities of our governmental apparatus at both
      the local and the federal levels have made it difficult for a person to
      process a claim or even to make a complaint. Social security is a virtual
      maze; the hierarchy that governs urban housing is often so intricate that it
      takes an expert to know what agency has jurisdiction over a particular
      complaint; the office to call or official to see for noise abatement, for a
      broken sewer line, or a fallen tree is a mystery to many in our metropolitan

      [38] A person who has a claim assertable in faraway Washington, D.C., is
      even more helpless, as evidenced by the increasing tendency of constituents
      to rely on their congressional delegation to identify, press, and process
      their claims.

      [39] We think of claims as grist for the mill of the lawyers. But it is
      becoming abundantly clear that more and more of the effort in ferreting out
      the basis of claims and the agencies responsible for them and in preparing
      the almost endless paperwork for their prosecution is work for laymen. There
      are not enough lawyers to manage or supervise all of these affairs; and much
      of the basic work done requires no special legal talent. Yet there is a
      closed-shop philosophy in the legal profession that cuts down drastically
      active roles for laymen. It was expressed by a New York court in denying an
      application from the Neighborhood Legal Services for permission to offer a
      broad legal-aid type of service to indigents:

      [40] "In any legal assistance corporation, supported by Federal
      antipoverty funds, the executive staff, and those with the responsibility to
      hire and discharge staff from the very top to the lowest lay echelon must be
      lawyers." Matter of Action for Legal Services, 26 App. Div. 2d 354, 360, 274
      N. Y. S. 2d 779, 787 (1966).

      [41] That traditional, closed-shop attitude is utterly out of place in
      the modern world*fn1 where claims pile high and much of the work of tracing
      and pursuing them requires the patience and wisdom of a layman rather than
      the legal skills of a member of the bar.

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

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

      [44] The plight of a man in prison may in these respects be even more
      acute than the plight of a person on the outside. He may need collateral
      proceedings to test the legality of his detention*fn2 or relief against
      management of the parole system*fn3 or against defective detainers lodged
      against him which create burdens in the nature of his incarcerated
      status.*fn4 He may have grievances of a civil nature against those outside
      the prison. His imprisonment may give his wife grounds for divorce and be a
      factor in determining the custody of his children; and he may have pressing
      social security, workmen's compensation, or veterans' claims.*fn5

      [45] While the demand for legal counsel in prison is heavy, the supply
      is light. For private matters of a civil nature, legal counsel for the
      indigent in prison is almost nonexistent. Even for criminal proceedings, it
      is sparse.*fn6 While a few States have post-conviction statutes providing
      such counsel,*fn7 most States do not.*fn8 Some States like California do
      appoint counsel to represent the indigent prisoner in his collateral
      hearings, once he succeeds in making out a prima facie case.*fn9 But as a
      result, counsel is not on hand for preparation of the papers or for the
      initial decision that the prisoner's claim has substance.

      [46] Many think that the prisoner needs help at an early stage to weed
      out frivolous claims.*fn10 Some States have Legal Aid Societies, sponsored
      in part by the National Legal Aid and Defender Association, that provide
      post-conviction counsel to prisoners.*fn11 Most legal aid offices, however,
      have so many pressing obligations of a civil and criminal nature in their
      own communities and among freemen, as not to be able to provide any
      satisfactory assistance to prisoners.*fn12 The same thing is true of
      OEO-sponsored Neighborhood Legal Services offices, which see their function
      as providing legal counsel for a particular community, which a member leaves
      as soon as he is taken to prison.*fn13 In some cases, state public defenders
      will represent a man even after he passes beyond prison walls. But more
      often, the public defender has no general authorization to process
      post-conviction matters.*fn14

      [47] Some States have experimented with programs designed especially for
      the prison community. The Bureau of Prisons led the way with a program of
      allowing senior law students to service the federal penitentiary at
      Leavenworth, Kansas. Since then, it has encouraged similar programs at
      Lewisburg (University of Pennsylvania Law School) and elsewhere. Emory
      University School of Law provides free legal assistance to the inmates of
      Atlanta Federal Penitentiary. The program of the law school at the
      University of California at Los Angeles is now about to reach inside federal
      prisons. In describing the University of Kansas Law School program at
      Leavenworth, legal counsel for the Bureau of Prisons has said:

      [48] "The experience at Leavenworth has shown that there have been very
      few attacks upon the [prison] administration; that prospective frivolous
      litigation has been screened out and that where the law school felt the
      prisoner had a good cause of action relief was granted in a great percentage
      of cases. A large part of the activity was disposing of long outstanding
      detainers lodged against the inmates. In addition, the program handles civil
      matters such as domestic relations problems and compensation claims. Even
      where there has been no tangible success, the fact that the inmate had
      someone on the outside listen to him and analyze his problems had a most
      beneficial effect. . . . We think that these programs have been beneficial
      not only to the inmates but to the students, the staff and the courts."*fn15

      [49] The difficulty with an ad hoc program resting on a shifting law
      school population is that, worthy though it be, it often cannot meet the
      daily prison demands.*fn16 In desperation, at least one State has allowed a
      selected inmate to act as "jailhouse" counsel for the remaining
      inmates.*fn17 The service of legal aid, public defenders, and assigned
      counsel has been spread too thinly to serve prisons adequately.*fn18 Some
      federal courts have begun to provide prisons with standardized habeas corpus
      forms, in the hope that they can be used by laymen.*fn19 But the prison
      population has not found that satisfactory.*fn20

      [50] Where government fails to provide the prison with the legal counsel
      it demands, the prison generates its own. In a community where illiteracy
      and mental deficiency is notoriously high, it is not enough to ask the
      prisoner to be his own lawyer.*fn21 Without the assistance of fellow
      prisoners, some meritorious claims would never see the light of a courtroom.
      In cases where that assistance succeeds, it speaks for itself. And even in
      cases where it fails, it may provide a necessary medium of expression:*fn22

      [51] "It is not unusual, then, in a subculture created by the criminal
      law, wherein prisoners exist as creatures of the law, that they should use
      the law to try to reclaim their previously enjoyed status in society. The
      upheavals occurring in the American social structure are reflected within
      the prison environment. Prisoners, having real or imagined grievances,
      cannot demonstrate in protest against them. The right peaceably to assemble
      is denied to them. The only avenue open to prisoners is taking their case to
      court. Prison writ-writers would compare themselves to the dissenters
      outside prison . . . .

      [52] "Many writ-writers have said that they would be able to make
      positive plans for the future if they knew when their [indeterminate]
      sentences would end. They seem to feel that they are living in a vacuum
      where their fates are determined arbitrarily rather than by rule of law. One
      writ-writer very aptly summed up the majority's view with these words: 'When
      I arrived at the prison and discovered that no one, including the prison
      officials, knew how long my sentence was, I had to resort to fighting my
      case to keep my sanity.' . . . Psychologically, the writ-writer, in seeking
      relief from the courts, is pursuing a course of action which relieves the
      tensions and anxieties created by the [indeterminate] sentence system."* In
      that view, which many share, the preparation of these endless petitions
      within the prisons is a useful form of therapy. Apart from that, their
      preparation must never be considered the exclusive prerogative of the
      lawyer. Laymen -- in and out of prison -- should be allowed to act as "next
      friend" to any person in the preparation of any paper or document or claim,
      so long as he does not hold himself out as practicing law or as being a
      member of the Bar.

      [53] The cooperation and help of laymen, as well as of lawyers, is
      necessary if the right of "reasonable access to the courts"*fn24 is to be
      available to the indigents among us.

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