Jailhouse Lawyers. Mumia Abu-JamalЧитать онлайн книгу.
case was tried a generation before the ignoble Dred Scott decision—made by a U.S. Supreme Court composed of a majority of slaveholders—that had launched a war, and it came down to the same, narrow, uncivil ground: “[N]o colored race was a party to our social compact.”11 In the 1837 case Hobbs v. Fogg, Pennsylvania law made it illegal for Blacks to vote, even if one met all of the qualifications of taxes and property under the state’s constitution.12
Essentially, the state’s highest court made an exception to the claim that had sparked a revolution against England, “taxation without representation,” for tax-paying Black Pennsylvanians continued to pay taxes, but by judicial edict they could not vote for their political representatives.
Nearly a century and a half after Hobbs, a Black revolutionary named John Africa would strike a similar chord when writing of late-twentieth-century Philadelphia that “the law was a weapon for the rich and a whippin’ for the poor.”13
If this was law, what of the outlaw?
For jailhouse lawyers, the law could sometimes be wielded as a weapon or a tool.
It took years of long, hard legal struggles to secure basic constitutional protections for religious practices, many of which were spearheaded in the 1960s and 1970s by Black Muslims, Native American activists, and Buddhists. When members of the Nation of Islam tried to practice their faith like other groups that were seen as more legitimate, prison administrators didn’t hesitate to deny them religious practice rights. This of course forced courts to address the question of whether such a faith was a religion, and if so, whether states were required to provide rights of religious expression. One of the earlier Black Muslim cases was Fulwood v. Clemmer, which the federal court in Washington, D.C., decided thus:
It is sufficient here to say that one concept of religion calls for a belief in an existence of a supreme being controlling the destiny of man. That concept of religion is met by the Muslims in that they believe in Allah as a supreme being and as the one true God. It follows, therefore, that the Muslim faith is a religion.14
A decade after Fulwood, a prison case would make its way to the U.S. Supreme Court wherein a man claimed the right to be able to freely practice his Buddhist faith. In the 1972 case Cruz v. Beto, the court decided a case that had been dismissed by lower courts.15 The Supreme Court ruled in the Buddhist prisoner’s favor, and it seemed that the door had inched open for Black Muslims as well. Indeed, Cruz’s progeny includes cases supporting religious practice rights of Native American traditional believers, as well as such nontraditional practices as Satanism, Wicca, and the like. However, it is ever problematic for a political body such as a court to determine what is and what is not religious, as may be seen in the 1981 case Africa v. Pennsylvania.16 There, the federal appeals court used analogy to determine what was and what was not religious. In a nutshell, the court held that absent the indicia found in traditional faiths, such as hierarchy, buildings of worship, and denomination of a supreme being, for example, courts should decline to grant rights to religious practice. Given that Africa involved a claim raised by a member of the MOVE organization, it should be no surprise that the court was swayed by the revolutionary beliefs of the claim ant, rather than a true concern over the adherent’s religious beliefs. It is undeniable that throughout the world there are religions that are non-hierarchical, have no formal buildings (at least of brick or stone), and do not posit the existence of a supreme being, such as some forms of Buddhism.
That said, courts have tended to be more expansive of prisoners’ rights claims in other contexts. In fact, cases have been brought challenging other prison conditions, regarding decent medical care, for example, as well as fair misconduct hearings, other First Amendment rights (e.g., free speech), and more. Some prisoners challenged unfair transfers to other prisons, unjust firings from jobs, or improper parole regulations. The 1960s and 1970s marked a wave of civil suits addressing a plethora of unjust conditions. These cases are legendary, recounting incidents of prison staffers filing false disciplinary charges, locking prisoners down under specious administrative charges, delaying or denying transfers, denying parole to those who were eligible, and the like, in direct retaliation against jailhouse lawyers for their lawsuits. Some retaliatory state actions took a decidedly more dangerous turn when a jailhouse lawyer was labeled a “snitch” by prison officials, a label that in some prisons can get a person killed.17
The law, as we have seen, is an elusive thing. Yet how can we say what the law is without looking at the people who wear the title “judge”? Whether one wins or loses in the wheel of fortune that is the law, a definitive factor is often the judge on the case.
In the view of the American wit H. L. Mencken, “a judge is a law student who marks his own examination papers.” Radical historian Howard Zinn has opined that “the judge is [a] monarch” and his courtroom “essentially a tyranny.”18 One enters thinking it is a “bastion of democracy” or a “hall of justice,” only to be sorely disappointed. The judge, Zinn explains, “is in control of the evidence, the witnesses, the questions, and the interpretation of law.”19
When called as an expert witness in a trial in the mid-1980s, the historian expected to tell the jury about the history of civil disobedience in America. There was little objectionable about such testimony, for the accused were charged with doing some small, mostly symbolic damage to a nuclear submarine to protest the growing nuclear arms race. As Zinn recounts, the judge performed the additional functions of prosecutor and censor:
The judge would not let me speak. From the very first question—Can you tell us about the history of civil disobedience in the United States?—as I began to answer, the judge stopped me. Objection sustained, he said loudly. I had not heard any objection from the prosecuting attorney.
Indeed, at this point the prosecuting attorney, a young man, spoke up, Your Honor, I did not object.
Well, said the judge, why didn’t you?
Because, the prosecutor said, I thought the question was relevant.
I disagree, the judge said, with finality.20
Indeed, in a brief span of years following the American Revolution, the U.S. Supreme Court’s chief justice (who had previously sat as a senator on the judiciary committee that determined the constitutional powers of federal judges), one Oliver Ellsworth, wrote in a 1799 opinion, “The common law of this country remains the same as it was before the Revolution.” Judge Ellsworth’s opinion reflects the inherent conservatism of courts, which look back to the hoary precedents of a long-dead past in order to answer questions of an ever-changing present and unseen future. The law is heavy with the weight of past precedents, which is the lens through which judges still look upon the world.
Perhaps the best insights into legal precedents came not from a jurist but from Jonathan Swift, who, in his satirical masterpiece Gulliver’s Travels, observed:
It is a maxim among lawyers, that whatever hath been done before may legally be done again; and therefore they take special care to record all the decisions formerly made against common justice and the general reason of mankind. These, under the name of precedents, they produce as authorities, to justify the most iniquitous opinions; and the judges never fail of directing accordingly.21
The law is a tool of class domination and, as we have seen, of racial domination as well. But it can sometimes be wielded against that domination by those who make themselves adept at its use. Although it favors the wealthy, it has occasionally been utilized by those who are without means, as shown by the wins notched by jailhouse lawyers who litigated for civil rights and constitutional protections.
But the law, in its elusiveness, can be readily and quickly changed.
This is precisely what happened in 1996, under the neoliberal reign of President William J. Clinton, in his infamous Prison Litigation Reform Act. Much like his welfare “reform” efforts, at the bottom line the law meant a diminution of the rights of the poor and powerless, and the strengthening of state power. Under the act, prisoners became limited in the number of suits they could file, dismissal of cases became easier to make, injunctions