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PLN quoted in article about 1969 Johnson v. Avery ruling

Tennessee Bar Association Journal, April 1, 2017.

Remembering Johnson v. Avery, the Jailhouse Lawyer Case

EDITOR'S NOTE: The printed version of this article inadvertently left off the footnote numbers within the body of the text, although the references are there. This version is complete, with the numbers. We regret the omission in the printed version.


Only a few people remember the name of William Joe Johnson, also known as “Joe Writs.”[1] That’s a shame, because he significantly changed the legal landscape for anyone concerned with prisoner rights and access to the courts.

Mr. Johnson was an inmate who helped other inmates with legal pleadings. He was a classic “jailhouse lawyer.” Johnson, who was serving a life sentence for rape, earned a stunning victory before the United States Supreme Court in 1969 in Johnson v. Avery.[2]

The High Court ruled that officials at the Tennessee State Penitentiary in Nashville must remove Johnson from solitary confinement for assisting other inmates with filing legal papers. The court explained that without jailhouse writ-writers like Johnson, many inmates would be denied access to the courts.

Johnson spent 11 months in solitary confinement in the state penitentiary, because he kept defying a rule of the Tennessee State Penitentiary, which provided:

No inmate will advise, assist or otherwise contract to aid another, either with or without a fee, to prepare Writs or other legal matters … Inmates are forbidden to set themselves up as practitioners for the purpose of promoting a business of writing Writs.

Johnson kept filing petitions for writ of habeas corpus for other inmates. After his punishment, he filed suit in federal district court, alleging a violation of his due-process rights.

Lower Court Decisions

In January 1966, U.S. District Court Judge William E. Miller ruled in favor of Johnson. Judge Miller emphasized the importance of jailhouse lawyers in an environment of illiterate prisoners who needed help to get into court. “For all practical purposes, if such prisoners cannot have the assistance of a ‘jail-house lawyer,’ their possibly valid constitutional claims will never be heard in any court,” he wrote. “Without some assistance, their right to habeas corpus in many instances becomes empty and meaningless.”[3]

Judge Miller concluded that Johnson “should be removed from solitary confinement and restored to his status as an ordinary prisoner.”[4]

However, the U.S. Court of Appeals for the Sixth Circuit reversed, showing extreme deference to prison officials. The court declared that “prison administration is a function of the executive branch of the Government and one for which the courts, with their limited experience and facilities, are ill-suited to undertake.”[5]

The appeals court noted that practicing law without a license is a crime and it makes no sense for prison officials to allow an inmate to engage in conduct that could be criminalized outside of prison walls. Finally, the court emphasized that laypersons could not provide the type of skill necessary to handle cases effectively.

Supreme Court Victory

Johnson appealed to the U.S. Supreme Court with the expert assistance of an additional attorney — Karl P. Warden, a law professor at Vanderbilt. Warden assisted Johnson’s original counsel, Pierce Winningham. Warden took center stage in the case when the case reached the U.S. Supreme Court. His son, Nashville-based attorney Karl D. Warden, says of his father: “He was an extremely able attorney concerned with doing justice.”[6]

In his brief, Professor Warden wrote that “the consequence of this prison regulation is that access to federal and state courts is blocked for many prisoners.” He argued that the rule violated both the Due Process and Equal Protection rights of his client. In an amicus brief, the America Civil Liberties Union contended that the regulation violated the First Amendment free-expression rights of inmates.

Warden concluded that the prison rule was “overkill” and appealed to a sense of equity:

There is no equality in a system that allows the rich, the articulate or the literate to have their causes heard but denies or limits in any degree a hearing of the petitions for redress against the government of those who are poor, or illiterate, or inarticulate.

The U.S. Supreme Court ruled in favor of Johnson by a 7-2 vote. Writing for the majority, Justice Abe Fortas ruled that Tennessee could not pass a rule constitutionally that would prohibit illiterate inmates from accessing the courts. Fortas reasoned that the effect of the Tennessee rule was to do just that, as many inmates could not access the court without the help of another inmate. Unless prison officials provided a reasonable alternative method for inmates to access the court, the prison restriction was invalid.

“Tennessee does not provide an available alternative to the assistance provided by other inmates.”[7] In his concurring opinion, Justice William O. Douglas explained that “[w]ithout the assistance of fellow prisoners, some meritorious claims would never the see the light of a courtroom.”[8]


The court’s decision ushered in a new era for prisoners and prison officials. The decision established that prison officials must consider prisoner rights and not enact rules that prohibited inmates from accessing the courts. While the decision was narrow, it has “played a prominent role in bringing about prison reform.”[9]

Unfortunately, more recent court decisions have reflected a mindset not nearly as protective of prisoner rights. “Johnson v. Avery was decided during an era where the Supreme Court actually gave thoughtful consideration to the plight of prisoners and abuses by prison officials,” explains Alex Friedmann, managing editor of Prison Legal News. “That era is long gone … the right established in Johnson is now a pale shadow of what the Justices likely envisioned when they issued that ruling almost 50 years ago.”[10]

“In the decades since Johnson v. Avery, prisoners in most states lack both assistance from other prisoners, counsel or even law library access,” explains Paul Wright, the founder of Prison Legal News.[11]

While prisoner rights remain an uphill battle, jailhouse lawyers remain an undeniable presence. Jailhouse lawyers still play an important role in society. One jailhouse lawyer in New York assisted numerous inmates while incarcerated and even helped reverse a murder conviction when he was released from prison.[12] The Vermont Supreme Court last year acknowledged they are “a well-established fixture in the legal system.”[12]

Jailhouse lawyers are a “well-established fixture” in part because of William Joe Johnson and his U.S. Supreme Court victory.


  1. “Joe Hatcher, ‘Jailhouse Lawyer,’” The Atlanta Constitution, Mar. 2, 1969, at p. 2D.
  2. 393 U.S. 483 (1969).
  3. Johnson v. Avery, 252 F.Supp. 783 (M.D. Tenn. 1966).
  4. Id. at 785.
  5. Johnson v. Avery, 382 F.2d 353 (6th Cir. 1967).
  6. Interview with Karl D. Warden (Jan. 29, 2017).
  7. Johnson v. Avery, 393 U.S. at 488.
  8. Id. at 496.
  9. John W. Palmer. Constitutional Rights of Prisoners at §8.3 (10th ed. 2014).
  10. Interview with Alex Friedmann (Jan. 28, 2017).
  11. Interview with Paul Wright (Jan. 28, 2017).
  12. See Jennifer Gonnerman. “The Jailhouse Lawyer Derrick Hamilton’s Role in the Reversal of a Murder’s Conviction. The New Yorker, 7/8/2016, accessible at
  13. In Re Serendipity Morales, 2016 VT 85, *P19 (No. 16-43)(Aug. 5, 2016).