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In 1871, the Supreme Court of Virginia infamously stated: “The bill of rights is a declaration of general principles to govern a society of freemen, and not of convicted felons and men civilly dead.” As a result of that civil death, incarcerated people only had rights “such as the law in its benignity accords to them” as “[t]hey are the slaves of the State.” While that is no longer the law, incarcerated people still face a form of civil death through removal from the political process. Obvious manifestations of this civil death include restrictions on voting and the gerrymandering of prison populations. But that is only scratching the surface. Using censorship and cultures of intimidation and reprisal, prisons harshly restrict incarcerated people’s ability to participate in social and political movements. If it were not for the tenacity and bravery of many incarcerated activists, there would be no participation at all.
Lawyers have the ability and duty to mitigate this problem. Doing so is an essential precursor to practicing movement lawyering in the prison context—a practice I believe is necessary. While many definitions exist for movement lawyering, I am partial to Betty Hung’s, which defines the practice as “[l]awyering that supports and advances social movements, defined as the building and exercise of collective power, led by the most directly impacted, to achieve systemic institutional and cultural change.”
This article is split up into five parts. First, I will briefly discuss the dire situation in prisons, as well as the terminology I am using. Second, I will discuss the authoritarian nature of prisons and the mechanisms by which every aspect of life behind bars is controlled by the state. Third, I will provide a very brief overview of free speech and due process rights for incarcerated people. I will then illustrate the importance of taking the voices of imprisoned people seriously through two stories—one from California and one from New York. Lastly, I will explain the moral and practical reasons why I believe lawyers must perform this work.
Danny Zemel *
* Associate Attorney, The Krudys Law Firm, Richmond, Virginia; J.D., University of Richmond School of Law; B.A., The University of Pittsburgh. I would like to thank Sharon Zemel, Katie Zemel, and Liza Garrity for their support and input throughout the process. Yelyzaveta Shevchenko, Juliana Neelley, and Will Amacker provided invaluable editing assistance. The feedback from Mark Krudys was crucial, as was the latitude he provided to work on this project. Alyssa Harrison, and the entire University of Richmond Law Review staff, have been superb to work with and helped make the article what it is. All errors of any kind are my own.