Jailhouse lawyers

In June I toured the Wyoming Frontier Prison, which operated as the state penitentiary from 1901 to 1981. The tour guide mentioned that at one point, the prison housed the most complete law library in the state. I don’t know if this bit of trivia is accurate, but it does raise an interesting topic: jailhouse lawyers.

The problem is this: Inmates have only limited access to legal assistance. Yes, they’re entitled to an attorney for their case but not for all appeals and not for other legal cases such as habeas corpus and civil lawsuits. Of course, they probably don’t have money to hire counsel for those cases. And while they can represent themselves, a large proportion of inmates are functionally illiterate, poorly educated, or have limited English skills, so they can’t realistically research and write about their legal issues.

As a result, jailhouse lawyers exist. These are inmates who are willing to provide legal help to other inmates. Almost none of them have law degrees, so they are largely self-taught. The courts have held that unless prisons provide reasonable alternatives, they must allow assistance from jailhouse lawyers. Furthermore, the prisons must allow adequate law libraries.

I think jailhouse lawyers could make a wonderful addition to a book. Maybe your hardened con redeems himself by struggling against all odds to prove someone else’s innocence or to improve prison conditions. If you’re considering this plot idea, this handbook might help.

The hole

You’ve heard it mentioned in countless prison movies—the hole, prison slang for solitary confinement—and it turns out, the truth is pretty ugly.

Let’s define the term first. An inmate in solitary confinement will be housed alone. Generally, the only humans he interacts with will be prion guards, and even that will be brief. He will remain in his cell almost all the time, perhaps being permitted out for a brief period to shower or exercise (also by himself). Solitary has other nicknames too, such as adseg (short for administrative segregation). Solitary is often placed in an area called the SHU, for Secure Housing Unit.

Some of the first US prisons used solitary for all inmates. The theory was that prisoners kept alone would have time to think about their erroneous ways and reform themselves. What happened instead was that, deprived of human contact, the prisoners went crazy. Because solitary confinement was also expensive and restricted inmates from doing most kinds of work, it was soon replaced by other prison models.

But solitary remains in use for several purposes: 1. Punishing prisoners for crimes or misconduct committed while they are locked up; 2. protecting vulnerable prisoners from other inmates; 3. restricting suicidal inmates’ access to objects they could use to harm themselves; and 4. segregating inmates determined to be especially risky, such as gang members.

Conditions in solitary vary a great deal. In some cases, they are very poor. The cell may be extremely small and sometimes devoid of everything except some kind of toilet. The inmate may even be naked. Prisoners in solitary are often given little to do with their time.

There are no limits on the length of time someone can spend in solitary. Some have spent decades there. Many advocates argue that this amounts to torture, especially when the prisoners are young or mentally fragile. It’s also poor policy, in that most prisoners in solitary will eventually be freed but will have a sky-high risk of recidivating.

The US uses solitary to a great extent, and some people claim that this amounts to human rights violations, especially when the confinement is long-term.

Punished

The Lord Ynix’ba looked down his long nose at the prisoner. “I find you guilty of stealing the Five Sparkling Dragon Stones of Zenthibon.”

The prisoner shook his head frantically. “No! No, my Lord! You don’t understand! There was this witch, you see, and she—”

“Guilty!”

The prisoner’s shackles rattled as he collapsed to the ground, sobbing. His crying was so loud that Lord Ynix’ba had to wait several minutes before announcing the sentence. The lord tapped his foot impatiently and played with the jewels in his bracelet.

Finally the prisoner was reduced to sniffles, and that was when Lord Ynix’ba spoke again. “I hereby sentence you to the maximum possible punishment—twenty years in Zenthibon Prison!”

With fresh wails, the prisoner was hauled away.

Okay, it’s your fantasy world. If you want to throw your criminals in prison, that’s your affair. But I urge you to think carefully before tossing those poor souls into cells and throwing away the keys.

The truth is, prisons are mostly a modern invention. Incarceration has been used for many hundreds of years, but rarely as a form of punishment. People were locked up in jails (or gaols, if you please) and in institutions such as poorhouses and workhouses, but the primary purpose of locking them up was to hold them until their trials. That’s still one of the main reasons people are kept in jails. Prisoners might also be locked up because they couldn’t pay their debts or because they were destitute and couldn’t support themselves. Again, though, punishment was not the main goal; they were sort of being held as collateral for their own debts.

So how were people punished? For more severe crimes, they were usually executed. Sometimes quickly, sometimes slowly and painfully. Almost always in public. In fact, executions served as a form of entertainment in times and places where entertainment was in short supply.

For less severe offenses, there were other options. Public punishments were common—think stocks and the like. The criminals would face a period of public scorn and humiliation before returning to their homes, families, and livelihoods. Corporal punishment—i.e., physical punishment—was also widely used. Flogging, branding, maiming, etc. Criminals could be made to pay fines. They could be sentenced to slavery or other forms of servitude. They could be banished. When Europeans were colonizing the New World, sometimes criminals were sentenced to transportation, which means they were forcibly taken to America (or later, Australia), where they had to work for a certain number of years before being freed.

But imprisonment—incarceration as punishment—was very uncommon. Why? Well, it’s expensive, it removes the prisoner from the workforce (which perhaps sends his family into poverty), and it keeps the bad guys behind walls, where their punishment isn’t visible and therefore might have little deterrent effect on the rest of society.

Prison as a punishment didn’t become popular until after the American Revolution, when it was touted as a humanitarian reform. “Keep miscreants locked up by themselves,” the argument went, “so they have time to reflect on their wrongdoing and reform themselves. Allow them to be penitent.” Yes, that’s where we get the term penitentiary.

Nowadays. of course, we lock people up all the time, especially in the US. But if you’re writing a historical set before the 18th century, prison probably shouldn’t be the fate of your criminals. And if you’re writing fantasy, sci-fi, or other kinds of speculative fiction, you should think carefully about whether prison as punishment makes sense in your world.

As for Lord Ynix’ba, if he’s decided that stealing those eggs was truly a big deal, our miserable prisoner will likely be fed to the orcs instead.