Abstract
Overt gender discrimination, and the combined failure of Louisiana’s Department of Public Safety and Corrections (DPSC) and Louisiana Correctional Institute for Women (LCIW) prison officials to provide offender counsel substitutes in prisons for women (OCS-W) the same quality legal education and training as provided for those incarcerated in prisons for men, are violations of the Fourteenth Amendment’s Due Process Clause’s key guarantee of the right of access to courts. OCS-W’s do not have the benefit of the quality legal training offered to the system’s prisons for men; this is an impediment to fulfilling their duties and deprives their clients of the right to access the courts. This right is one that should be recognized and respected. Inadequate vindication of this right impedes the special protection afforded to everyone, especially inmates, who are in most need of the right of access to the courts. Louisiana’s prison system offers a gender-biased legal program hidden by illusions of constitutional adherence without consideration of an inmate’s fundamental constitutional guarantee of unencumbered access to the court. All other rights of incarcerated people are illusory without it.
Introduction
This Essay alleges that there is gender discrimination in the legal training program offered in the Louisiana prison system. Specifically, the lack of training for Offender Counsel Substitutes in prisons for women (OCS-W)[1] is manifested in poorly prepared filings and erroneous calculations. This in turn results in far fewer favorable rulings for people in women’s prisons in the judicial system. Never has someone been released from a Louisiana women’s prison after being exonerated by her own efforts or the help of a legal advocate. It is as though every convicted woman in Louisiana is guilty of the charged crime. Yet it is very common to pick up a newspaper or tune in to the evening news and hear of men—such as John Thompson, Juan Smith, Shareef Cousins, Robert Jones, Calvin Duncan, Wilbert Rideau, Archie Williams, and Clyde Charles, and a host of others—who were released from the Louisiana penal system. Some of those named and other unnamed men had assistance from the Innocence Project of New Orleans,[2] and most of them acquired formidable skills in the realm of law through the prison’s array of resources and its legal program, which is implemented through the Department of Public Safety and Corrections (DPSC).
The legal program is coordinated and implemented throughout the state’s prison system by the DPSC’s attorneys; prison officials are merely in a managerial position of the Department’s operation, and differences in legal training between Louisiana’s prisons for men and women are not direct reflections on the prison’s staff.
Several petitions have been filed by OCS-W’s challenging deficiencies in the LCIW’s law library.[3] Of note, a petition was filed in the 19th Judicial Court in the parish of East Baton Rouge, where jurisdiction is vested to hear inmates’ complaints against prison officials.[4] During a court hearing, the defendant’s attorney and presiding judge, both of whom are women, had a conversation about the complexities of women’s comprehension of law. The attorney, who was responsible for the operation of the legal program in every DPSC institution, openly conceded that LCIW’s training was deficient. In the attorney’s rebuttal, she explained the reason for the deficiency was because “women . . . don’t grasp everything because they . . . haven’t gone to law school . . . . I went to law school, and there’s still areas I couldn’t do right now. If you sent me to admiralty . . . I couldn’t do it.”[5]
At that juncture, the judge vigorously nodded her head in agreement. She and the attorney shared a laugh about the difficulty of some areas of law. They continued their conversation about the inability of women to comprehend law.[6] The judge went on to attribute the skills of OCS-M’s housed at the Louisiana State Prison (LSP) to experience acquired from the large volume of cases that they handle, especially DNA cases.[7] The judge’s opinion may have had some substance, but it cannot be disregarded that the state’s OCS-M’s were provided education in that area before receiving any hands-on experience.
LCIW has approximately one-fifth the population of LSP. It is the only state-run prison for women with designations ranging from minimum to maximum custody. Their convictions range from probation violations to drug offenses to first degree murder; sentences range, respectively, from completion of the reentry or substance abuse program to the death penalty. Even with a smaller population, it is inconceivable that DNA retesting would not be beneficial in even one case. If only one person incarcerated in a woman’s prison might be aided by their jailhouse lawyer’s training in DNA research, techniques, and the protocol for appellate preparation, then such training is equally necessary at the prison for women as it is at prisons for men.
With regard to the Department’s attorney’s perspective, it should be noted that neither had the OCS-M’s gone to law school; before classification, however, they were expected to pass the standardized Test for Adult Basic Education (TABE) test with at least a twelfth-grade level, whereas people in the women’s prison were classified regardless of academic scoring just to satisfy the constitutional requirement of having a prison law program. Therefore, one could not be an effective jailhouse lawyer without the benefit of: (1) instruction in the field, and (2) a proven educational ability to receive said instruction. Until recently, academics were not considered for assignment as a jailhouse lawyer at LCIW although the Department’s classification policy always contained that criterion. Nor did the attorney or judge consider that untrained OCS-W’s had to rise to the occasion—or at least fake a stand—in a one-counsel-fits-all environment while their counterparts in men’s prisons work in teams in specific areas. Yet based on the attorney’s admission, the record did establish an important fact: The legal training orchestrated by the DPSC for its only prison for women is discriminatory on the basis of gender. This form of discrimination by the DPSC is arbitrary and capricious.
I. Personal Experience and Observations Demonstrate Gender-Based Discrimination
Federal habeas petitions are sometimes the last chance for the review and relief inmates seek. Habeas corpus is probably the most opportune avenue for pursuit of relief to terminate custody, accelerate the future date of release from custody, or reduce the level of custody. LCIW’s legal training teaches the hierarchy of the court system in a misleading manner that, under ordinary circumstances, would surely grant relief: initial direct appeal;[8] two years for postconviction filing; thirty days to respond to the next court; and one year after the state supreme court ruling to file a habeas writ in federal court. It was not taught nor practiced that the one-year prescriptive period for habeas petitions began at the finalization of a defendant’s direct appeal or thirty days after imposition of sentence if notice of appeal has not been filed in the sentencing court.
LCIW’s legal program has no more than six jailhouse lawyers at any given time. Each of them has to practice, without formal training nor updated resources, nearly every area of law: penal disciplinary, civil, family, state criminal, and federal applications. Their duties include every situation, from misdemeanor traffic offenses to resolution of outstanding warrants, divorces, child custody, postconviction relief filings, and petitions to the U.S. Supreme Court. Naturally, each court has a different system of protocol, and OCS-W’s have to learn each court’s varying standards, usually by trial and error to the client’s detriment.
Each OCS-W maintained a caseload that averaged about one hundred or more clients apiece.[9] The mandatory forty-hour work schedule included a week-long rotation for disciplinary court (conducted three times per week), and a daily rotation for legal rounds to the lockdown areas. On several occasions, OCS-W’s asked prison administrators to classify inmates solely to handle disciplinary court and legal rounds. Those tasks were impositions in that they often preceded disciplinary appeals and petitions for judicial review. Ironically, these were the areas where the LCIW jailhouse lawyers received the most intense training. Yet these duties infringed on time that should have been dedicated to researching and preparing criminal appeals. These matters consumed more time because OCS-W’s had to learn the trade while they plied the tools of the trade.
Comparatively, a district judge in Tennessee held that the jail “violated inmates’ right of access to courts by maintaining an inadequate prison library and by failing to establish any form of legal services, other than counting among its overcrowded population two ‘jailhouse lawyers’”[10] just as LCIW utilized six undertrained jailhouse lawyers to service a prison population of over nine hundred inmates.
During the intake process, a section in the DPSC rule book, which has not been revised since 2014, is cited to new inmates to dissuade them from seeking “sidewalk lawyers,” or inmates who are practicing law but have not gone through DPSC legal training and classified as offender counsel substitutes (OCS). The handbook lists such behavior as a rule violation although there is a clause that allows assistance from non–jailhouse lawyers upon administrative approval.[11] Yet approval is never granted at LCIW. Jurisprudence provides that an inmate other than a jailhouse lawyer may assist another inmate who is otherwise unable to help access the courts himself.[12] But Louisiana inmates who are not classified to the law library suffer disciplinary consequences for assisting other inmates, who are also subject to disciplinary action for using the legal aid of unclassified inmates. Thus, there is no other option available at the women’s state prison in Louisiana aside from enlisting the grope-in-the-dark assistance of inadequately trained jailhouse lawyers.
The U.S. Supreme Court has held that “the fundamental constitutional right of access to the courts requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law.”[13]> The Department’s expectation for inmates in need of legal help to rely solely on untrained jailhouse lawyers does not effectuate that right. DPSC is violating clearly protected provisions of the First Amendment. Prison walls should not impose a barrier separating inmates from the protections of the Constitution, and prison officials are not free to forbid inmates from exercising their constitutional rights, especially when such access is not an interference with the prison’s legitimate penological interests.
II. Gender-Comparative Legal Training for Offender
Counsel Substitutes
A. Legal Training: Louisiana’s Prisons for Women
Upon classification as a jailhouse lawyer, pseudo-training for OCS-W’s begins immediately and lasts for approximately six to eight weeks. The training consists of attending eight separate observations of peer workers as they conduct disciplinary court hearings; eight separate observations of OCS-W’s conducting legal rounds in the lockdown area (which entails mere issuance of blank institutional forms or filings completed by an inmate’s assigned jailhouse worker); or reviewing disciplinary reports. As mentioned, these are observations only in which the trainee OCS-W is not permitted to speak aside from stating their name and prison number during disciplinary court proceedings.
Trainees must also review recordings about various types of procedure ranging from disciplinary court to federal habeas petitions. The tapes were recorded by inmates in LSP’s legal department to broadcast on the prison’s own station. The purpose of the recordings was to inform the prison’s inmate population rather than train future jailhouse lawyers. Is it really possible to train on all the essentials necessary to prepare a postconviction relief application after watching a thirty-minute videotape without first learning constitutional law, and incidentals such as court rules, word limit, page size, margins, and most importantly, provisions for the filing period? As informative as the tapes were, they were not detailed enough to do more than scratch the surface of any legal topic.
An apt analogy for undertrained OCS-W’s is the biblical account in which the downtrodden slaves were tasked with making bricks without straw. Clients have no recourse aside from placing their freedom and futures in the hands of incapable inmates who are far from “educated” in law and epitomize the term “self-taught.” In the midst of preparing a petition, OCS-W’s self-teach themselves during the process to at least halfway meet the petition’s requirements. Over time, they acquire on their own a legal acumen otherwise denied them by the DPSC for no reason other than gender.
To exacerbate the dilemma, the LCIW law library supervisor is a correctional officer who, like the law workers, has no legal training. Additionally, she wears many hats: recreational supervisor, physical therapist, general services library supervisor, coordinator of activities for challenged inmates, and institutional errand-person. The plethora of demands from many duties and her own lack of law knowledge cause frequent inaccessibility and counteract productivity.
B. Legal Training: Louisiana’s Prisons for Men
The legal program at LSP has a proven track record of courtroom success. The prison’s legal program is recognized as having one of the most thorough training curricula in the United States. Similar programs are implemented at other prisons for men within the state. OCS-M’s are labelled as “self-taught,” yet their extensive classroom training includes coordinated instruction, hands-on internships, and mandated continuing legal education.[14]
Legal training for OCS-M’s is regularly updated to improve the quality and effectiveness of jailhouse lawyers, whose program participation occurs in phases. Upon initial classification and careful screening, OCS-M’s are assigned to classes for intensive instruction from law professors, distinguished attorneys, and law students. Students receive daily instruction with in-depth teachings on legal terminology, constitutional law, appellate processes from direct appeal to applications to the U.S. Supreme Court, court protocol, and areas including civil and family law. Accredited courses are offered continuously throughout the OCS-M’s tenure as jailhouse lawyers. Inmates who successfully complete the courses earn advanced collegiate degrees.
Upon graduation from the classroom instruction, OCS-M’s begin an internship under the tutelage of the more proficient jailhouse lawyers. During the internship, trainees may receive legal cases, but they work under the guidance of both experienced peers and knowledgeable supervisors, most of whom attend and participate in the classroom instruction. From start to finish, the progress of a trainee OCS-M is monitored and evaluated. Never do they go it alone or unchecked until the entire training process is complete and the inmate’s ability is demonstrated.
Louisiana’s OCS-M’s are educated; their counterparts in prisons for women are self-taught.
C. Similarities in Legal Training
OCS-W’s receive legal training only after they are assigned to the law library. They work in textbooks via correspondence classes, and attend two hour video visits with an instructor. That minimal training, however, is incomparable to the training that the same DPSC entity offers OCS-M’s. Furthermore, such brief training is generally inadequate to prepare OCS-W’s who handle heavy caseloads, including miscellaneous institutional duties.
Both OCS-M’s and OCS-W’s attend an annual seminar sponsored by the Department. This function is one of the DPSC’s most relied on defenses when alleging that legal training is evenly implemented between the two groups. But the event is merely an assembly of speakers with a question-and-answer session after each speaker. Armed with confidence acquired through training, OCS-M’s actively participate in discussions and represent themselves like real attorneys. In contrast, OCS-W’s, intimidated by their lack of knowledge, quietly observe the event.
III. Effects of Gender Discrimination in the Prison’s Legal Training Program
After six to eight weeks of “training,” OCS-W’s are administratively authorized and required to work independently for assigned clients. Newer jailhouse lawyers are given an influx of new clients until the caseloads are closely distributed in number among workers. There is no consideration of the amount of time needed to prepare or the legal worker’s skills. In this manner of case assignment, new jailhouse lawyers can quickly receive new clients without having learned the essentials of law or procedure. For example, on the issue of plea agreements, clients are often told nothing can be done on their contracted sentences, notwithstanding the fact that research proves that on appeal, plea agreements have the possibility for reversals or reduced sentences.[15]
The same mentality is evident when courts issue time-barred denials. There is a misconception at LCIW that time-barred means all hope is lost. But nearly every inmate—lifer or virtual lifer—released from a prison for men in Louisiana was, at some point in the appeal process, deemed time-barred by state or federal courts. Time-barred only means that the time constraints for a particular petition or process have elapsed. It does not mean, however, that the petitioner cannot try something else. In Wearry v. Cain,[16] the U.S. Supreme Court reviewed Michael Wearry’s capital murder conviction and death sentence. Along the road to relief, Wearry’s appeal was ruled time-barred; yet he sought another route and when his petition finally reached the U.S. Supreme Court, Wearry was granted relief.[17] His conviction was reversed, and the sentence was vacated.[18] The Court, in its opinion, noted that the petition from Wearry was the same as those he had previously submitted. Those petitions were just renamed and reformatted until Wearry found a legal formula that fit the demands of the reviewing courts.
It is well-established that a habeas petitioner may invoke tolling of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) limitations period by proof of an action by the state in violation of the Constitution or federal law.[19] The Court of Appeals for the Fifth Circuit has held that, under certain limited circumstances, an inadequate prison law library may constitute a state-created impediment.[20] Habeas petitioners seeking to toll the limitations period based on an inadequate law library claim must clearly prove that the lack of adequate legal materials actually prevented the timely filing of a habeas petition.[21] There is no guarantee of favorable outcomes when seeking federal habeas review, but it is a constitutional guarantee for everyone, including Louisiana’s inmates in prisons for women, to have full access to the court system. This central right should not be abridged by ill-equipped and insufficiently trained jailhouse lawyers.
Examples of fate-sealing errors committed by unskilled OCS-W’s in Louisiana’s state prison include:
A. Smith v. Rogers[22]: Tanya Marie Tanya Marie Smith, who has more prison time than any other inmate in a women’s prison in the state of Louisiana was convicted of second-degree murder and various firearms and drug-related charges. She filed a writ of habeas corpus with assistance from an unskilled inmate counsel. The petition was dismissed as time-barred.[23] Smith’s matter became the subject of dispute with prison administrators after the federal court failed to recognize the timely receipt of her filing, which supposedly was deposited to mail officials by Smith’s jailhouse lawyers. After the legal worker’s transfer to disciplinary lockdown months later for an unrelated incident, the filing was found in the legal worker’s work area sealed and addressed to the court. When the deputy warden was informed of its finding, the matter was reassigned to another jailhouse lawyer who was given stern instruction to do “whatever” to justify tardiness of the filing as long as there was no inference as to the deputy warden’s knowledge or assign liability to the prison or DPSC officials.
B. McAnulty v. Rogers[24]: McAnulty is another matter in which the habeas corpus petition was denied as time-barred by provisions of 28 U.S.C. § 2244(d). Deborah McAnulty had first been informed of her time-barred status through communication with an OCS-M, who was confined at LSP, amid vehement denials from her OCS-W at LCIW.
C. State ex rel. Moore v. State[25]: In Moore, a successive application for postconviction relief was filed and later ruled as untimely in the district court pursuant to Louisiana Supreme Court precedent.[26]> A posting delay occurred when Demetricy Moore’s assigned jailhouse lawyer used a ten-year-old legal directory, as opposed to the available updated version, to get mailing information for the clerk of court. The clerk to whom the application was directed had been impeached and removed from office at least five years prior to Moore’s filing submission.
D. Starr v. Rogers[27]: Starr was another habeas case in which relief was denied after an initial procedural review deemed Sandra Starr’s filing time-barred. For AEDPA purposes, her judgment of conviction and sentence became final on September 17, 1999, when the Louisiana Supreme Court “denied writs without comment.”[28]. Starr was able to toll limitations during the pendency of her first application for postconviction relief; thereafter, through assurances from her LCIW jailhouse lawyer that it was well within the prescriptive period for filing, more than a calendar year elapsed untolled before Starr filed her habeas writ, which was more than five years later.[29]
E. Posey v. Rogers[30]: Similarly, Ashley Posey filed a petition for writ of habeas corpus challenging her conviction in state court on one count of second-degree murder. The Magistrate’s Report and Recommendation recommended that Posey’s petition be dismissed with prejudice as untimely.span style="font-variant: small-caps;">[31]
Unfortunately for Louisiana’s inmate clients in prisons for women, unfamiliarity with the legal process—whether caused by the client’s illiteracy or ignorance of the law, ignorance of those classified to assist them, or any other such reason during the applicable filing periods—does not merit equitable tolling under the law.[32] That is a fact made clear by the low success rate of appellate petitions, especially habeas writs, prepared by the jailhouse lawyers housed at LCIW. I myself admittedly made a terrible mistake on a client’s case when I applied the erroneous calculation in the matter I was taught by the “seasoned” jailhouse lawyer who was assigned to train new workers; at the time, I had not learned it should have been filed after the state supreme court ruling following direct appeal.
In the criminal appellate matter of Hardy v. Warden,[33] the case was reassigned after the abrupt dismissal of Tanesha Hardy’s originally assigned jailhouse lawyer. It was the first postconviction case to be prepared by the law library’s newest jailhouse lawyer, and its urgency was undeniable. This was indeed a monumental task for me because I had never been trained on constitutional law, which typically constitutes the basis for postconviction relief, sometimes called PCR. Even though a thirty-minute videotape from LSP on postconviction relief specified the guidelines, it was not sufficient education to prepare a petition for a client who had a Louisiana-style “life-until-she-is-dead” sentence. At the time, it had been almost two years since the denial of Hardy’s direct appeal, filed by an attorney appointed through the Louisiana Appellate Project. Thus, her conviction and sentence were finalized, and her file had languished on the desk of the previously assigned “seasoned” jailhouse lawyer who had not scored higher than the eighth-grade academic level on the TABE test.
Every attempt was made to timely prepare the PCR application with a support brief. Instead of working the mandated forty-hour workweek, I worked at least sixty hours a week in a genuine effort to overcome the disadvantage caused by lack of adequate legal training and no concept of constitutional law.<[34] The PCR application was timely filed and subsequently denied by each court. Hardy, however, received mixed decisions from the higher courts. In one such ruling, the panel was split in its decision. Anticipating a federal habeas writ, I began preparation before receiving a denial from the state supreme court. I needed the extra time to learn how to properly prepare the writ. Yet the habeas petition did not make it beyond the initial review. The magistrate judge recommended it for denial as untimely. My application of the erroneous calculation for filing criminal appeals, a calculation akin to family folklore that was handed down from generation to generation of LCIW jailhouse lawyers, was the reason for the denial recommendation.
Similar to Hardy, Bowers v. Louisiana Correctional Institute for Women<[35] was assigned to me after the original jailhouse lawyer was abruptly reclassified, and her denial was received around the same time as Hardy received her time-barred denial. As the jailhouse lawyers are not permitted to discuss and brainstorm on cases, there was no past knowledge of Erica Bowers’s legal situation that I could use in the immediate preparation of her habeas writ, which needed immediate attention. The matter had been reassigned to me less than two weeks before its rushed review, preparation, and filing. In its Report and Recommendation, the court said: “The court is extremely grateful for the time and attention paid to the merits, but they need not be reached; the timeliness defense raised by the State requires dismissal of the petition. It was filed two days late.”[36]
Just before receipt of Hardy’s denial, I used extensive computer-assisted research (a technique which I also learned on my own) to compare the ratio of time-barred denials between Louisiana’s prisons for men and those for women. It became evident from this comparison that which showed a relatively high number of women whose petitions were time-barred, there had to be an error in the OCS-W’s method of calculating the timeframe in which to file habeas petitions. When asked of a seasoned jailhouse lawyer—the designated “senior” worker—why inmates in prisons for women were denied on the federal level more than their counterparts in prisons for men, she replied, “Because the courts are prejudiced against women.” Based on the unhelpful reply from the senior legal worker, who ironically had more than twenty years of experience in the field of law and was assigned to train the inmate staff, the only recourse was to write a federal court for clarification on the issue of timeliness. The courts make it clear that they do not provide legal advice, but they have proven helpful in giving clarification where needed.
Upon receipt of the clerk of court’s clarification, the information was shared with other OCS-W’s. It was suggested that we recalculate our cases and properly determine filing periods. The senior jailhouse lawyer rejected the information and encouraged others to reject it as well. Naturally it would be rejected. No one wanted to be humiliated by their clients and administrators for making mistakes under conditions that they were not properly trained to handle. No one wanted to own up to the fact that nearly all their clients were already time-barred. And it is evident, according to petitions filed and admissions by the DPSC’s attorney, that neither prison administrators nor DPSC officials cared one way or another.
Conclusion
The facts are irrefutable: (1) LCIW’s system violates the rights of inmates who seek meaningful access to the courts and equal protection of the law; and (2) OCS-W’s who may possess a genuine proclivity towards the law are still insufficiently trained and educated to meet the legal needs of the prison’s inmates. One of the rights encompassed within the Due Process Clause of the Fourteenth Amendment is the right of meaningful access to the courts by prisoners. Inmates are still entitled to the Due Process Clause’s protection despite their incarceration and therefore possess the right to be equipped with adequate tools or trained assistance in preparation of their legal matters.
Legal training of incarcerated women classified to the LCIW law program must be comparable to that which is offered throughout the DPSC for incarcerated men. This is necessary to provide incarcerated women with a viable chance to obtain the relief they seek. Before that glass ceiling can be shattered, the DPSC and prison officials must appreciate all the women, from the paralegal to the law clerk to the U.S. Supreme Court justices, who have established their formidable credibility in the once male-dominated realm of law. And they must recognize the fact that incarcerated women are just as capable of grasping legal concepts as their male counterparts.
[1]. Louisiana’s Department of Public Safety and Corrections (DPSC) designates people as female or male based on what is reflected on their government-issued IDs, which often correlates to their sex assigned at birth, regardless of how they currently identify. DPSC is aware of openly transgender people in custody, but has not shared how their housing is assigned. Kate Sosin, Trans, Imprisoned—and Trapped, NBC News (Feb. 26, 2020), https://www.nbcnews.com/feature/nbc-out/transgender-women-are-nearly-always-incarcerated-men-s-putting-many-n1142436 [https://perma.cc/J238-BD5P]. It is likely many trans and nonbinary people are assigned to prisons based on their sex assigned at birth. For this Essay, I try to use language that is respectful of people’s gender identity, though my language does reflect DPSC’s language at times. I will use Offender Counsel Substitutes in prisons for women, or OCS-W, to refer to the jailhouse lawyers in the women’s prisons and Offender Counsel Substitutes in prisons for men, or OCS-M, to refer the jailhouse lawyers in the men’s prisons.
Additionally, Offender Counsel Substitute is the official designation by the DPSC. I use it interchangeably with jailhouse lawyers in this Essay.
[2]. The Innocence Project of New Orleans was founded in 2000 by attorney Emily Maw. About Us, Innocence Project New Orleans, https://ip-no.org/who-we-are/about-us [https://perma.cc/3TX5-3EXF]. However, after more than a decade of applications and assertion, the agency assisted only one incarcerated woman, Bobbie Johnson. See Roxanna Asgarian, Longtime Louisiana Prisoner Who Maintained Her Innocence Dies Less Than Two Years After Her Release, Appeal (Nov. 25, 2019), https://theappeal.org/louisiana-innocence-case-death [https://perma.cc/3YVS-HA4K].
[3]. See, e.g., Mamon v. LeBlanc, No. 11-0048-BAJ-CN, 2011 WL 4591093 (M.D. La. Aug. 29, 2011).
[4]. Bunley v. La. Dep’t of Pub. Safety & Corr., No. 640-087 (La. Dist. Ct. Oct. 19, 2016).
[5]. Evidentiary Hearing Transcript at 14, Bunley v. La. Dep’t of Pub. Safety & Corr., No. 640-087 (La. Dist. Ct. Oct. 19, 2016).
[6]. See id. at 14–15.
[7]. Id. at 14.
[8]. Louisiana’s OCS-W’s are not trained to prepare direct appeals and thus do not know the circumstances under which to file them. Instead, OCS-W’s rely on the following: court assignment of the Louisiana Appellate Project to prepare direct appeals for clients who have harsher sentences, the client’s private counsel (if one is hired), or omission of the direct appellate process entirely. Omission of the first appeal is commonplace at LCIW, and many clients do not realize that direct appeal is an option. Very few clients and even some OCS-W’s appreciate direct appeal as the first step and an important measure in the appellate process.
[9]. LCIW was evacuated on August 16, 2016 and its inmate population is spread among several institutions, including a facility for men. See Emma Discher, One Year After Flood: Evacuated Inmates Restock Wares, Prison Stands Empty, Advocate (Aug. 13, 2017), https://www.theadvocate.com/baton_rouge/news/crime_police/article_aa73b010-77e8-11e7-b64e-53884aec511a.html [https://perma.cc/6YT6-CSE2]. As a result of the smaller population in each area, jailhouse lawyers likewise have reduced caseloads, yet the disproportionate legal training remains the same.
[10]. Turner v. Epps, 842 F. Supp. 2d 1023, 1030 (S.D. Miss. 2012) (citing Gilland v. Owens, 718 F. Supp. 665, 688–89 (W.D. Tenn. 1989), vacated on other grounds, 460 F. Appx. 322 (5th Cir. 2012)).
[11]. See La. Admin. Code tit. 22, § I-341 (F)(b)(iii) (“Counsel substitutes are only those offenders appointed by the warden or designee to assist other offenders with their legal claims . . . . Offenders who are not counsel substitutes may not provide services to other offenders without the approval of the warden or designee.”).
[12]. See Johnson v. Avery, 393 U.S. 483, 487 (1969).
[13]. Bounds v. Smith, 430 U.S. 817, 828 (1977), abrogated by Lewis v. Casey, 518 U.S. 343 (1996).
[14]. See Beth Schwartzapfel, ‘For $12 of Commissary, He Got 10 Years Off His Sentence,’ Marshall Project (Aug. 13, 2015), https://www.themarshallproject.org/2015/08/13/for-12-of-commissary-he-got-10-years-off-his-sentence [https://perma.cc/ATX3-CJZN] (“One of the most well-established of these programs is in Louisiana, where 115 ‘offender counsel substitutes’ serve 19,000 of their fellow inmates. They receive 40 hours of training each year and must prove their chops on a standardized adult education exam to earn the coveted job.”); cf. Ben Wallace, Jailhouse Lawyers, WAFB9 (June 27, 2012), https://www.wafb.com/story/18686488/jailhouse-lawyers [https://perma.cc/C6D4-RMXL]; Alina Hernandez, Tulane Law Students Help Train ‘Substitute’ Counsel, https://law.tulane.edu/news/tulane-law-students-help-train-substitute-counsel [https://perma.cc/TV36-8RPX].
[15]. See, e.g., State v. Jefferson, 838 So. 2d 724 (La. 2003); State v. Stevenson, 41 So. 3d 1273 (La. Ct. App. 2010); State v. Markray, 35 So. 3d 453 (La. Ct. App. 2010).
[16]. 577 U.S. 385 (2016).
[17]. See id.
[18]. Id.
[19]. 28 U.S.C. § 2244(d)(1)(B).
[20]. See Egerton v. Cockrell, 334 F.3d 433, 435 (5th Cir. 2003).
[21]. See Krause v. Thaler, 637 F.3d 558, 561 (5th Cir. 2011); Felder v. Johnson, 204 F.3d 168, 171 n.9 (5th Cir. 2000).
[22]. See Report & Recommendation, Smith v. Rogers, No. 3:14-cv-0482 (W.D. La. Apr. 28, 2014).
[23]. See id. at 1.
[24]. See Judgment, McAnulty v. Rogers, No. 5:14-cv-0389 (W.D. La. May 28, 2014).
[25]. 206 So. 3d 180 (La. 2016).
[26]. State ex rel. Glover v. State, 660 So. 2d 1189, 93 (La. 1995).
[27]. See Report & Recommendation, Starr v. Rogers, No. 3:14-cv-2230 (W.D. La. Aug. 27, 2014).
[28]. Id. at 2.
[29]. See id. at 9–10.
[30]. See Report & Recommendation, Posey v. Rogers, No. 13-285-JWD-RLB (M.D. La. Aug. 2, 2016).
[31]. Id. at 15.
[32]. See Turner v. Johnson, 177 F.3d 390, 391 (5th Cir. 1999) (“[N]either a plaintiff’s unfamiliarity with the legal process nor [a] lack of representation during the applicable filing period merits equitable tolling.”).
[33]. No. 1:14-cv-2782 (W.D. La. Oct. 15, 2014).
[34]. Though we are mandated to work forty hours a week, we receive no financial or tangible compensation for our work.
[35]. See Report & Recommendation, Bowers v. La. Corr. Inst. for Women, No. 10-cv-1274 (W.D. La. July 11, 2013).
[36]. Id. at 2–3.
