There is a well-kept secret in the federal criminal justice system. Although it is true that the constitutional right to a criminal defense attorney so as to ensure basic fairness is a fundamental right during criminal proceedings—even if the accused cannot afford their own representation—when prisoners are most vulnerable and their need for an attorney is most acute, they are stripped of that right and left to fend for themselves in court. That is, at the critical post-conviction stages of criminal proceedings, federal prisoners do not have a constitutional right to an attorney (not even in capital cases), forcing them to overlook legitimate legal errors that resulted in injustice—the degree of injustice ranging from one end of the spectrum to the other. (Nor does a prisoner have the right to file a legal brief in the U.S. Supreme Court, which comes after the initial appeal.) This forces layman prisoners to serve as their own attorneys by filing futile, ill-prepared, grossly deficient legal briefs that are essentially laughed out of court, leaving them floundering without any further recourse. This leaves many prisoners to languish in prison under illegal sentences, simply because they do not have money for their own attorney. 

The U.S. Supreme Court has cited the lack of funding, lack of training, and shortage of public defender offices nationwide as obstacles to handling the right beyond the appellate stage. The obvious solution is to allow prisoners to help their fellow prisoners by becoming certified paralegals (or more). Accordingly, we are asking for your support to implement a federal prison program that would allow prisoners to take meaningful classes with the ultimate goal of becoming certified paralegals—paralegals who can then guide the thousands of prisoners who need help during the post-conviction litigation stages. 

Prisoners desperately require legal labor and guidance when attempting to litigate legal issues that could mean the difference between prison and freedom. In particular, after federal prisoners file a single appeal of the trial court's errors, their right to an attorney is cut off. They are on their own. This blatantly ignores the realities of the criminal justice system: there are many opportunities to use litigation to reverse injustices that produced an illegal conviction or an illegal prison sentence after one appeals the legal soundness of the trial court's many rulings and handling of the case. Put differently, an appeal is only the fifth inning; there is a lot that lies ahead. But, sadly, it's game over for prisoners who don't have money for an attorney, which describes nearly all prisoners.

To understand the vital importance of having legal assistance during the post-conviction stages, one must first understand the nature and stakes of the post-conviction stages. Importantly, a prisoner exhausting his direct appeal is just the beginning. Post-conviction litigation, as well as appeals to the U.S. Supreme Court, occur after a direct appeal. By this time, most prisoners have been sitting in prison for a while—they are isolated, out of money, and on their own. Notably, post-conviction litigation is extraordinarily complex and is arguably the most difficult, time-consuming, and laborious stage of the entire proceedings, as it requires what could easily add up to hundreds of hours of poring over thousands of pages of court transcripts and other parts of the record spanning many years. (Most prisoners cannot even procure the record.)  Post-conviction litigation is designed as a safeguard against wrongful conviction or illegal sentencing because of the incompetence of an inmate’s attorney. Post-conviction litigation is, in fact, a golden opportunity for prisoners to correct injustices that unfolded because of an incompetent attorney, which is much more common than one might think. (The overwhelming majority of federal prisoners had overworked, apathetic and, quite frankly, callous court-appointed attorneys who are conditioned to perpetuate assembly-line justice.) Asking a layman prisoner to gather the voluminous record of many years of legal filings and court transcripts, identify the legal errors and the proper legal standards, sift through thousands of cases to find applicable precedents, and then articulate a highly nuanced legal argument in a 40-page legal brief, is sort of like asking him to act as a doctor—to listen to a patient, review the patient's file, identify a complex disease, prescribed a treatment plan and medication, and even operate. A doctor can only be effective at his job because of the vast stores of knowledge he has accumulated through many years of study, learning, and experience. Take the reservoir of medical knowledge away, and the same information might as well be Chinese arithmetic. That a layman prisoner must litigate on his own at this stage is complicated by the fact that a large percentage of the prison population is composed of people who can barely read or write. Not surprisingly, most legal briefs filed by prisoners are derided by the courts, vehemently opposed by seasoned federal prosecutors who write legal briefs in their sleep, resulting in the inevitable conclusion: courts that rubber-stamp deny prisoners’ convoluted legal arguments.

Beyond post-conviction litigation, there are myriad circumstances that require a trained legal eye and more litigation. Both the legal landscape and the numerous nuances in the law are constantly changing. One significant change in the law or new case ruling can open the floodgates, affecting thousands of prisoners. It is not uncommon for a new ruling from the Supreme Court or Appeals Court, or a change in the law, to render a prisoner's prison term or conviction illegal. Unfortunately, taking advantage of the change or highlighting a legal error that occurred as a result of a grossly incompetent attorney for the court is hardly a straightforward process. 

The difference between a prisoner having access to trained legal labor at the post-conviction stage or not can translate to many years, decades, or a lifetime in prison, or even the death penalty. History has shown us that numerous convictions—even death penalty convictions—have been overturned because post-conviction litigation pinpointed the actions of a shockingly incompetent attorney. While some prisoners are fortunate enough to receive the mercy of a legal clinic or legal advocate who will undertake the litigation at no cost (pro bono), this is not a solution: very few prisoners are lucky enough to receive free legal labor. With that in mind, post-conviction litigation is rife with viable opportunities for prisoners to reverse injustices in their cases and win their freedom. As it stands, if an attorney botches a case, and the attorney's error causes the prisoner to be wrongfully convicted, illegally sentenced to additional prison time, or even put to death, unless a prisoner can unravel the mess and navigate through what typically amounts to many years of legal litigation, he will suffer the consequences.

The stark reality is that most prisoners are, understandably, overwhelmed by the litigation and, with no other options, turn to a "jailhouse lawyer." (A jailhouse lawyer is an inmate who uses the black market in prison to prepare and file a legal brief under the prisoner's name.) Problematically, most of the jailhouse attorneys fall into one of two categories: they either knowingly con their desperate fellow prisoners out of their money by filing bogus legal briefs that are not rooted in the law, pocketing fees in the process; or, in good faith, they file a grossly deficient legal brief. Either way, the net result is the same: there are prisoners who are sitting in prison under an illegal conviction or sentence that was the product of an incompetent attorney, but who have no way to identify and litigate the claims. 

Arming prisoners with legal knowledge through certified paralegal programs would give thousands of prisoners a reliable place to turn for legal guidance.

Justiceproject@clemencycampaign.com