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May 10, 2016

"Litigating from the Prison of the Mind: A Cognitive Right to Post-Conviction Counsel"

The title of this post is the title of this notable new paper authored by Ken Strutin now available via SSRN. Here is the abstract:

This article attempts to draw a picture of the incarcerated without counsel, who are separated from justice by the inhumanity of their imprisonment, the poverty of their information resources and the detriments of their cognitive life.

Part I sets the stage by describing the conditions of confinement, the confined, and the state of pro se personhood.  Part II addresses the reality of petition or perish created by Bounds and Casey.  Part III concentrates on the necessity of a right to counsel borne from the conditions of confinement and the technological, physical and psychological barriers that burden the incarcerated.  Among the most significant barriers to be considered are: (1) legal illiteracy and inferior research media; (2) impaired learning and thinking due to stress of confinement; and (3) cognitive disadvantage engendered by the gap between print and electronic research.

May 10, 2016 at 10:42 AM | Permalink


As the only inmate with a law degree (U.Va. Law School,J.D. 1987) in the Federal prisons where I served 8 years of time, I spent most days in the law library, working on other inmates' cases. Thankfully, Federal prisons have pretty good law libraries, including computerized legal research from DVDs (not the Internet!). I managed to get reduced sentences or release for about 2 dozen inmates, including 14 Mariel Cubans with whom I was incarcerated at FCI - Manchester, Kentucky. They were I.N.S. detainees, who were being held indefinitely, without any Federal criminal convictions. Within 2 weeks of the Sixth Circuit's en banc decision in "Rosales-Garcia v. Holland", 322 Fed. 386 (6th Cir. 2003), I had prepared 14 section 2241 habeas corpus petitions for the Cubans, using bilingual inmate interpreters since the Cubans could not speak English. One Cuban had been held for 17 years as an I.N.S. detainee without a Federal criminal conviction. Two years later, the U.S. Supreme Court agreed with the Sixth Circuit's position in "Clark v. Martinez", 543 U.S. 371 (2005), which is that if I.N.S. detainees cannot be deported to their home country withing 6 months, they must be released back to the streets of America on "immigration parole" and permitted to work and live freely.

The DOJ called my Warden and wanted to know why his Mariel Cubans were the only ones in the Southeast Region of the Bureau of Prisons who were all in Court within 2 weeks of the Sixth Circuit deciding Rosales-Garcia v. Holland. I was locked up in THE HOLE (23+ hour per day lockdown in an 8' x' 12" cell) for six months, "under investigation", without any disciplinary charges. After the U.S. Supreme Court denied certiorari in the Rosales-Garcia case, the 14 Mariel Cubans were released from FCI - Manchester.

Posted by: Jim Gormley | May 10, 2016 10:43:35 PM

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