The recent supreme court rulings concerning student loan forgiveness and affirmative action, building on last year’s reversal of the right to abortion, have left many considering the flexibility of the law and what this flexibility means for their lives, rights, and freedoms. Of course, this flexibility is built into the system, both explicitly (e.g., judicial review and the appeals process) and implicitly (e.g., ambiguous language and the blurring of holding and dicta in judicial opinions), with room for varied interpretation playing a very central role in the functioning of our legal system. As a conservative supreme court undoes legal protections, this inherent flexibility can feel like an incredibly destabilizing force, can heavily impact one’s day-to-day life, and has left many fearful and unsure of what the future holds.
For justice-impacted people – those who have come into contact with the American criminal legal system – and especially for those who have spent time in prison and or jail, the instability inherent to legal interpretation can have very negative implications on their experiences in court, during incarceration, and well beyond. For example, as Mumia Abu-Jamal highlights in his book Jailhouse Lawyers: Prisoners Defending Prisoners v USA, flexibility in the law leaves already vulnerable and often under-resourced populations at high risk for discrimination and marginalization by legal interpretation. In Strickland v. Washington, the Supreme Court, ruling on one’s 6th Amendment right to counsel, determined that the right to counsel entails “the right to the effective assistance of counsel…[where] the benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” While common sense might suggest that “effective assistance of counsel” under this definition requires that counsel be present, awake and/or not under the influence of narcotics such as heroin and cocaine, court rulings in Vines v Us, People v. Tippins, and People v. Badia, courts show that given a flexible understanding of “effective counsel,” none of the above are necessarily an indication of ineffective representation.
Stripping the rights of already vulnerable populations – a reality that extends beyond one’s right to counsel – contributes to a sense that not only are legal rights and protections vulnerable to seemingly outlandish interpretations but that the system itself “makes and breaks laws as it seeks fit.” (28) However, while incredibly disparaging, it is the very same flexibility that has allowed American jailhouse lawyers to fight for their rights and find successes under the law. As I continue my research on legal empowerment, focusing on legal empowerment as a tool/building block of abolition, I have been constantly considering this tension. What does it mean to engage with a legal system that undermines your rights? Does the pursuit of legal knowledge by Jailhouse Lawyers only further legitimize the system? Or, is the work of jailhouse lawyers actually a profound revolutionary act within the system – to know, use, and even reshape the very system working against them?
Courtesy of the Jailhouse Lawyers Initiative. An excerpt from a letter written to JLI by Jason M. as part of their Within These Walls project which “highlights different aspects of the legal empowerment cycle.”