Harvard Law School’s mission statement is “to educate leaders who contribute to the advancement of justice and the well-being of society.” We cannot advance justice and societal well-being without knowing the reality of what is going outside of our campus and case books. In an effort to bring one of these outside voices to campus, I asked William T. Oree, an incarcerated person and law clerk at Attica Correctional Facility to share his thoughts with the Harvard Law community.
Oree is serving twelve years to life at Attica. He is the founder, writer, and editor of The Prisoner’s Lampoon, a self-published prison comedy magazine; his work has also been published in The Harvard Lampoon. He and his comedy writing partner are shopping a pilot script called PEN * PALS to production companies in Los Angeles. He is the inventor of “jailhouse comedy,” a blend of edgy, often raw humor with a little Shakespeare thrown in for good measure.
Pete Davis, Harvard Law Record (PD): What inspired you to write to Harvard Law School students about indigent defendants and ineffective assistance of counsel?
William T. Oree (WTO): In a nutshell, I have to say mass incarceration. More specifically, the desire to repair our nation’s broken justice system motivated me to make lawyers aware that their normative practices were actually contributing to the fact that the United States locks up more of its citizens than either China or Russia.
Sadly, many of the incarcerated have received sub-par legal services because of defense attorneys who allow considerations of judicial economy to drive their professional and moral obligation instead of the other way around. Unlike medical practitioners, there is no Hippocratic Oath that holds lawyers to a “first do not harm” standard. Moreover, many state and federal courts agree that the standard of effective assistance of counsel should be evaluated in a normative fashion. That is, that courts accept the minimum standards and practices as recommended by the American Bar Association with the understanding that what is minimal is fair and rational. Unfortunately, in all too many cases, the law is neither fair nor rational. It’s hard to avoid seeing this in any other way than as a mechanism by which the courts protect attorneys from malpractice, prioritizing the professional well-being of licensed attorneys over the constitutionally mandated defense of our nation’s citizens.
PD: What would surprise Harvard Law School students about life at Attica? What can you share with us about that that we wouldn’t know by reading an article about Attica?
WTO: Pain! Lots of pain. Not much has really changed in Attica since the riots in 1971.* I don’t want to berate the entire correctional staff for the egregious actions of a few officers. However, I believe that the maltreatment of prisoners is systemic throughout the administration of prisons and jails across the United States. What you’ll probably never read about is the pain and suffering that friends and families endure when trying to visit their loved ones. For example, friends and family may travel hundreds of miles to visit the incarcerated, but when they arrive at Attica, these visitors are subjected to verbal abuse, vigorous searches, and unreasonably long wait times. These deliberate actions are bound to affect people’s willingness to make repeat visits.
Something else you’ll never read about is the prison’s inability to address the correctional needs of the 2,000-plus inmates housed at Attica. The administration’s answer has typically been to keep the population locked up for long periods of times. The result is a cacophony of deafening noise throughout the facility as prisoners yell and bang on their cell doors and walls.
Finally, I might mention that many prisoners leave Attica in a worse condition than when they entered. After all, rehabilitation of a prize commodity—prisoners—is hardly at the top of the list for a system geared in many ways to increase the profits of companies involved in the lucrative mass incarceration trade.
PD: You write a comedy magazine called The Prisoner’s Lampoon. Tell us about it. Do you have a scene you’d like to share?
WTO: My comedy magazine was forged on the backs of the mass incarcerated. It was designed to ease the pain and suffering of mass incarceration by laughing off some of the horrors of prison. This form of comedy is a unique genre—jailhouse—one I created. Jailhouse is zany, edgy, raw, insanely funny, and often abrasive. The ingredients that make up jailhouse comedy come straight out of the elements that form our nation’s justice system. Which is sad.
Writing and performing stand-up comedy in Attica’s prison yards is one thing, but creating a platform for others to write comedy is a different animal. Through serendipity, I saw a TV show called “Last Comic Standing” which featured a Harvard undergraduate named Sierra Katow. I liked her performance and wanted to suggest a collaboration. I wrote her a letter and somehow it got to her. Later, I discovered that she was also an editor for The Harvard Lampoon. Sierra encouraged me to use my comedy to rehabilitate myself. She pushed me to write polite TV scripts in order to perfect my craft. Working with her, I came to see myself as an actual comedy writer, and we even formed a comedy writing team, K.O. Comedy (K for Katow and O for Oree). Who would ever imagine such a collaboration between a Harvard student and a convicted felon?!
Soon after, I met my mentor, Leann Davis Alspaugh, managing editor of The Hedgehog Review, an interdisciplinary cultural commentary journal published by the Institute for Advanced Studies in Culture at the University of Virginia. I humbly told her my story and she decided it was worth a blog post. Ultimately, she became an editorial consultant and designer for the first edition of The Prisoner’s Lampoon, “The Attica Years.” Now you can really read stuff about Attica that you won’t find elsewhere! Today, Leann is a trusted ally, friend, and colleague.
PD: What message do you have for legal professionals? What can we lawyers do to better protect the rights of the incarcerated?
WTO: I’d like lawyers to know that they are responsible for what they do and what they don’t do! In 1954, the Supreme Court determined that segregation in the classroom was unconstitutional. Yet, after almost four years, local governments still were not complying with the law. Why? I believe President Eisenhower said it best when he asserted that it was difficult to send in federal troops to force people to change what was in their hearts, a sort of stubborn idea that the Supreme Court got it wrong in overturning separate but equal practices. As we saw at Central High School in Little Rock, federal troops were indeed called in to uphold the U.S. Constitution.
Lawyers have the skill set to change what is in a person’s heart. They are at the front lines of change, they are the justice system’s foot soldiers, its first responders. All I ask is that they use this power to effect change.
Consider the Thirteenth Amendment. Many commentators have interpreted its wording—“Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”—to provide a sort of loophole, transferring slavery from plantations to prisons, in effect, reinventing slavery by “enslaving” a prison population that is mostly black. I urge the graduating Harvard Law School students to do what they can to close this loophole.
PD: Any other messages to the Harvard Law Record audience?
WTO: I’d like to recommend an essay, “Lawyer Decision Making: The Problem of Prediction” by Marjorie Anne McDiarmid (Wisconsin Law Review 1847, 1992). In this essay, Professor McDiarmid offers three methodologies for effective assistance of counsel. I employ her techniques in my work as a law clerk here at Attica when called on to collaterally attack convictions of fellow prisoners. I have had great success with her methods. I believe that her body of work would greatly assist new attorneys in navigating the system they aim to serve.
In addition, I would implore graduating law students to be on their guard for how bias or prejudice may enter into their work and for where and how such influences may compromise the pursuit of justice. Don’t let what Thorstein Veblen might have called “avaricious transactionalism” be your guide, sending you down the path of possessive individualism and voracious consumerism rather than that of ardent humanism.
Anthony N. Ott (fellow Attica Correctional Facility Law Library Clerk):
As a prison law library clerk, the most troubling issue I’ve encountered is an indigent defendant’s improperly perfected direct appeal brief.
While it’s an axiom that many court assigned attorneys are overworked due to caseloads, delays by the prosecution to stipulate to records on appeal, unnecessary; extensions of time; and even after these delays the briefs that are submitted often contain boilerplate arguments.
Moreover, the U. S. Supreme Court decided in Jones v. Barnes, 463 US. 745 (1983) that an indigent defendant that received assigned counsel doesn’t have the constitutional right to have all non-frivolous issues presented for adjudication by the State courts on appeal. What this
entails is that when I’m assigned to assist a prisoner with their supplemental pro se appeal brief, his meritorious issues don’t warrant judicial review – as a matter of law!
Change is warranted when an assigned appellate attorney becomes aware that an indigent defendant’s legal allegation needs development, and therefore, requires a collateral attack upon his conviction – which consists of post-conviction motions. Unfortunately, the State of New York doesn’t mandate that assigned trial or direct appeal counsel be required to expand the record for appeal using collateral attack vehicles or mechanisms.
When an attorney is vested with an indigent defendant’s liberty, he/she ought to do whatever entails obtaining justice – which may require that an assigned appellate counsel petition the trial court from which the indigent defendant was convicted. This would ensure that indigent defendants get a fair shot at justice by presentation of a comprehensive record for appellate review.
In sum, the proper perfection of indigent defendants’ direct appeals needs to be taken seriously. Every perfected appeal by assigned counsels shoudl be designed with teh same vigor as defendants iwth a retained appellate counsel. Poverty shouldn’t be an excuse for injustice to prevail! To satisfy the Constitution, counsel must function as an advocate for the defendant, as opposed to a friend of the court. Anders v. California, 386 US. 738, 744 (1967). Admittedly, the question I present requires attorneys to look beyond their guarantees. What’s at issue here is the relationship between appellate counsel and defendant – who has ultimate authority to decide which non-frivolous issues, should be presented on appeal. l believe the right to counsel carries with it a right, personal to the defendant, to make that decision, against the advice of the assigned counsel. If all the Sixth Amendment protected was the State’s interest in substantial justice, it would not include such a right. Jones, supra at 757-58 (noting dissenting opinions of Justices BRENNAN and MARSHALL).
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