Prisoners’ Rights Lawyers’ Strategies for Preserving the Role of the Courts

BY MARGO SCHLANGER, 69 U. Miami L. Rev. 519 (2015).

Introduction: In 1996, Congress imposed draconian restrictions on the litigated remediation of unconstitutional conditions of confinement in jails and prisons. The Prison Litigation Reform Act (“PLRA” or “Act”),a statute enacting part of the Newt Gingrich “Contract with America,”made it harder for prisoners to bring, settle, and win lawsuits.The PLRA conditioned court access on prisoners’ meticulously correct prior use of onerous and error-inviting prison grievance procedures.It increased filing fees,decreased attorneys’ fees,and limited damages.It subjected injunctive settlements to the scope limitations usually applicable only to litigated injunctions.It made population caps—previously common— far more difficult to obtain.And it put in place a rule inviting frequent relitigation of injunctive remedies, whether settled or litigated.

All of this together has had a very drastic effect on jail and prison litigation. Filings took an immediate dive in 1996 and decreased steadily for a number of years subsequent; more recently, there has been a plateau.And court orders governing jail and prison conditions have grown much rarer.Yet district judges continue to enter and enforce remedies against unconstitutional conditions of confinement. They are able to do this in large part because there remains an active prisoners’ rights bar continuing to litigate in federal district courts.

I have previously written to urge observers to remember that American judges are far from autonomous:

[T]he rules of litigation largely confine judicial response to the record developed and the arguments presented by the parties; for a plaintiff’s judgment, there must be a connection between the order a court issues, and the claims, evidence, and requested relief plaintiffs’ counsel submits. . . . [T]he identity, priorities, litigating strategies, and resources of plaintiffs’ counsel have been of great importance to the shape and success of litigated prison reform.

Judges in prison and jail cases, I argued, have “generally acted by following a path proposed by plaintiffs’ counsel and by building on the foundation laid at trial.”In the years since passage of the PLRA, and faced with the kind of court-stripping Congress attempted with that statute,judges need assistance from the parties more than ever. It is for this reason that this Article about the strategies the PLRA has prompted prisoners’ lawyers to use in injunctive cases fits as part of this Symposium exploring federal district judges’ roles. The strategies comply with the statute’s limits and also allow U.S. district courts to remain a forum for the vindication of the constitutional rights of at least some of the nation’s millions of prisoners. It is my hope that the examples presented below can help counsel and judges in prisoners’ rights cases thread the needle that the PLRA presents. . . . Full Article.

Recommended Citation: Margo Schlanger, Prisoners’ Rights Lawyers’ Strategies for Preserving the Role of the Courts, 69 U. Miami L. Rev. 519 (2015).

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