Johnson v. Avery

LOCATION: United States District Court for the Northern District of Illinois, Eastern Division

DECIDED BY: Warren Court (1967-1969)
LOWER COURT: United States Court of Appeals for the Sixth Circuit

CITATION: 393 US 483 (1969)
ARGUED: Nov 14, 1968
DECIDED: Feb 24, 1969

Facts of the case


Media for Johnson v. Avery

Audio Transcription for Oral Argument - November 14, 1968 in Johnson v. Avery

Earl Warren:

Number 40, William Joe Johnson versus Areas Avery, Commissioner of Corrections.

Mr. Warden.

Karl P. Warden:

Mr. Chief Justice and may it please the Court.

I'm counsel for William Joe Johnson who is a prisoner in the Tennessee State Penitentiary in Nashville, Tennessee.

As of the time of this argument today, William Joe Johnson has served approximately three years in solitary confinement or in maximum security or in a segregated environment within the penitentiary.

This confinement is over and above that confinement called for by his sentence, which is a life sentence for the crime of rape.

The reason for this extraordinary confinement is because he has violated one rule of the Tennessee State prison system is that rule is here being challenged today, and that rule is that no inmate will advice, assist, or otherwise contract to aid another either with or without a fee to prepare writs or other legal matters.

The United States District Court that first heard this case determined that his confinement was arbitrary and capricious and that it was in violation of Title 28 United States Code Annotated Section 2242 and it was in violation of the United States Constitution.

The Court of Appeals reversed the District Court.

Our argument here today seeks to have the United States Court of Appeals reversed to have further enforcement of this prison rule ended and to have William Joe Johnson return to the general prison population and these lib -- these unnecessary restraints on his liberties ended.

Now, the basis for our argument is five-fold.

The two major points that we wish to make are that, first off, the State of Tennessee, by enforcing this prison rule and by providing no alternative assistance, has effectively blocked access to the Courts by those prisoners who are indigent and inarticulate or illiterate, and that to so prevent these people from being heard as a violation of due process, a violation of equal protection, and a violation of the First Amendment Freedoms of Speech and right to protect, right to petition for redress of grievances.

And, our second principle point is that this prison regulation is not a proper exercise of the state's limited power to regulate the practice of law for two reasons.

One, this is not the practice of law and, two, that even if it should be considered the practice of law, it's beyond the power of the strait -- of the state to restrict this particular kind of practice.

Our further points are that Title 28 Section 2242 of the United States Code, annotated, reflects the ancient common law right of one layman to prepare, sign, and verify petitions of habeas corpus for those who cannot help themselves.

And, the final two points, are that the petitioner does have standing to raise these issues and that was the holding of both the District and the Court of Appeals and, finally, that this is a proper case and circumstance for Federal Courts to intervene with state prison management.

And, apparently, this has been agreed to by the State of Tennessee in its supplemental brief provided that the Court finds that these regulations are in violation of federal right.

Now, as to our first point, it's clear that a prisoner who can employ an attorney will be fully and well-heard by whatever Court he wishes to petition, but it's equally clear that if this prisoner is indigent, that he only has then four alternatives.

One of these is to be able to talk some lawyer into representing him for free.

The second is to proceed pro se, the third is to get help from someone untrained in law, and the fourth is just to forget about it all together and let his claim go by the Boards.

Now, as to the first of these alternatives, if he can talk a lawyer into taking a case, all of us who practice law know what happens to the attorney who agrees to help one indigent prisoner, he's immediately inundated with letters from not only that prison, but from every prison in the country requesting similar aid.

Abe Fortas:

Well, aren't there some states which provide legal services for prisoners?

It seems to me that -- was it California's brief, amicus, here?

Karl P. Warden:

California has an amicus brief here, Your Honor.

I do not believe that California provides counsel for indigent prisoners.

Abe Fortas:

But some assistance?

Karl P. Warden:

They provide the assistance of prison guards and chaplains, apparently, Your Honor.

Abe Fortas:

And the clerical stuff, do they -- don't they?

Karl P. Warden:

They apparently, yes, sir.

Potter Stewart:

And, apparently, the Courts have cooperated by setting up these forms to be with check lists.