See MIM(Prisons) new legal resource page
Prisons in Amerika exist as institutions of oppression with more resources than progressives currently have. The courts are also on the side of the oppressors and the criminal injustice system serves imperialism. With this in mind, it is easy to see why it is hard for progressives to win court battles, and why it is particularly hard for prisoners to win. But based on experience, MIM still considers legal battles to be potentially winnable and we are distributing this resource guide because we know that some cases have been won by prisoners who have done the necessary research and leg work. With that said, we recognize that the only way to destroy imperialism is through revolution and we encourage our comrades in prison to work with us in more than just legal struggles.
If your subscription to MIM Notes, or other literature or letters sent to you in prison is being censored, this guide is written to help you. There are not enough progressive lawyers working with us to help everyone fight these battles, but as a prisoner you have the information and resources you need to fight censorship on your own. If you are not already educated about the law and court battles, you will need to do a lot of research, but this is a worthwhile cause and if you win this battle you will be helping both yourself and other prisoners.
FIRST STEP: FIND OUT WHY YOUR LITERATURE IS BEING CENSORED
The prison administration has to tell you why they are withholding your mail. Insist that they tell you what regulation, statute or law your mail violates. They have to detail specifically how your mail violates the rules. Once you have this information, look up the regulation they claim you are violating. Violations could be of several types: prison regulations, state regulations, federal regulations, or constitutional law. There is a Federal code of regulations book and a State code of regulations book that you should be able to reference in your law library. One note on regulations: There is a regulation in all prisons that says prisons can censor material if they have a "legitimate security interest." Many censorship cases of MIM Notes involve fighting prisoncrats who have defined MIM Notes as a security threat. We need to force them to explain this and we need to fight this classification.
If you are not experienced in using the library or if you are intimidated by doing this research on your own, now is the time to try to find legal help. If there are jailhouse lawyers in your prison, ask them for help. If you have your own lawyer, go to him or her, or try to find a friendly lawyer who will help out. We encourage you to learn to do this research for yourself even if you don't have any past experience; it will serve you well in the future. Overcoming intimidation about the legal research may be difficult at first, but it does not take any special knowledge or education to learn how to fight your own legal battles and we have many comrades who serve as inspirations having trained themselves as jailhouse lawyers from scratch. Everyone planning on doing legal research should check out the Prisoners Self Help Litigation Manual if it is in your prison's legal library. This is the BEST resource for prisoners and has general sections on research as well as more specifics on fighting legal battles. Read all sections in this manual that are relevant to you. (If this is not in your library, prisoners can buy it for $29.95 (includes postage and handling); non-prisoners $39.95 plus p & h; Oceana Publications, Inc., 75 Main STreet, Dobbs Ferry, NY 10522, (914) 693-1320.
SECOND STEP: RESEARCH RELEVANT CASE LAW
At this point you need to search for relevant cases or laws regarding the regulation the prison claims you are violating that would support your claim that the prison is wrong. If your case goes to court you will have to decide whether to file in federal or state court (see below), but at this point you should research both federal and state case law. The following are some of the best resources:
THIRD STEP: EXHAUST ALL POSSIBLE REMEDIES WITHIN THE SYSTEM
The next thing you have to do is exhaust all possible remedies within the system. It is important that later you are able to demonstrate that you tried to go through these channels before taking the case to court. This means you have to follow the grievance procedure in your prison or write to the relevant authorities. When you write up your grievance you want to make an argument about why the regulation the prison claims your mail violates does not apply to you. Citing other cases that support your argument about this regulation is a good thing to do too. Be sure you keep copies of everything!
FOURTH STEP: DECIDE WHERE TO FILE YOUR CASE
You need to decide whether to file your case in state or federal court. There are two main things on which you should base this decision: 1) Where is the case law strongest and 2) Which judge is most favorable to prisoners rights. You may also want to consider how fast the court system will deal with your case. You need to do some research into these issues. Talking to jailhouse lawyers and lawyers on the outside who are in your state is a good help. You should have already looked out relevant court cases (cases similar to yours) to see what recent decisions have been in favor of prisoners rights. You can cite relevant federal law and supreme court cases in state court and you can sometimes cite relevant state law in federal court where federal law does not address an issue. To look into judges you can read "Lawyers Weekly" to find out recent info on judges decisions, but the best resource is going to be jailhouse lawyers, lawyers, and local organizations in your state like the ACLU or the National Lawyers Guild.
FIFTH STEP: TRY TO GET LEGAL HELP
At this point you have done a lot of research on your own and it's a good idea to try to get some help from people more familiar with law if you can. This is where MIM can try to help. We have compiled a list of jailhouse lawyers and a few lawyers on the outside willing to help other prisoners. If you exhaust the resources below and still can't find the help you need, write to us and we will try to put you in touch with someone who can help. But before you contact us, try the following:
Note that MIM will not be handing out lists of jailhouse lawyers to prisoners who have not done any research on their case on their own because there are not enough people with legal experience and too many prisoners who need legal help. MIM would rather have legal resources go to the cases that prisoners are most likely to follow through, do research on, and win. (You are welcome to make a case for why you need legal help if you can not do this research yourself.)
SIXTH STEP: FILE YOUR CASE
If you are filing in State court contact the Clerk of Superior Court in your county, or look at the State Rules of Court or The Prisoners Litigation Manual to find out the process you need to follow.
If you are filing in Federal court you need to write to the Clerk of US district court in your district and ask for Civil Rights complaint forms. The court will send you a whole packet of stuff and a letter indicating the process. The Prisoners Litigation Manual gives more details on this.
SEVENTH STEP: THE LEGAL BATTLE BEGINS
In both state and federal cases the defendant will generally file a motion to dismiss the case by writing some legal defense of their actions. You must respond to this with your own memorandum describing why they are wrong and what case law you have backing you up. If you do not do this, there is a good chance your case will be dismissed by the judge. See The Prisoners Litigation Manual for more information on where to go from here.
Note on the importance of follow through Your court case may be a long legal battle and it is important that you follow through on this. Once you have filed a case, what happens has repercussions for other prisoners, not just for yourself. If your case is dismissed because you decided not to respond to the prisoncrat's request to have it dismissed, they will then cite this example in future cases and the judge may be more likely to follow this example and dismiss future similar cases. And even if you do fight the case through to the end, if you don't do a good job of it and lose the case because of lack of adequate research, prisoners filing similar cases may lose because of this precedent you set. For this reason, it is important to do the best job you can in fighting prison repression through the courts.
This resource guide is produced and distributed by MIM. We are compiling information on relevant cases, particularly those that succeed in fighting civil rights violations so that others can benefit from your work so please send us copies of any information that you think would be useful to other prisoners.