The Ethics of Assisting Incarcerated People With Collective Action

44 Pages Posted: 26 Jun 2023 Last revised: 7 Apr 2024

See all articles by Daniel Canon

Daniel Canon

Louis D. Brandeis School of Law

Date Written: May 24, 2023

Abstract

This article explores ethical issues pertaining to an attorney’s role in assisting incarcerated clients with collective action, including striking, within prisons. In all fifty states, most concerted activity by prisoners is prohibited by policy, regulation, or statute. This article makes the case that nonviolent collective action is an effective method to promote changes in conditions of confinement—likely more effective than litigation—and is therefore something that civil rights and criminal defense lawyers should assist incarcerated clients with. In some cases, affirmatively advising incarcerated people to organize in the first place may also be desirable. The central questions explored in this article are: given that the activity in question is almost certainly unlawful, can an attorney give such advice safely and ethically? If so, how? In addition to an examination of the applicable ethical rules, the article provides a list of organizing prohibitions for incarcerated people in all fifty states, an example letter discussing organizing activities, and an overview of proposed changes to existing law that would accommodate lawyers who assist in acts of civil disobedience.

Keywords: prison, civil rights, ethics, strike, collective action, civil disobedience

Suggested Citation

Canon, Daniel, The Ethics of Assisting Incarcerated People With Collective Action (May 24, 2023). St. Louis University Law Journal, Vol. 67, No. 2, 2023, University of Louisville School of Law Legal Studies Research Paper Series No. 2024-4, Available at SSRN: https://ssrn.com/abstract=4489823

Daniel Canon (Contact Author)

Louis D. Brandeis School of Law ( email )

Wilson W. Wyatt Hall
Louisville, KY 40292
United States

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