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Pro Se Tips and Tactics (Consent Decrees)
What A Consent Decree Is
This column discusses so-called "consent decrees" in prison cases. I briefly address the advantages of trying to get a consent decree in certain cases, and current issues regarding consent decrees. This column assumes that either you have filed a case under 42 U.S.C. § 1983 in federal court and the case has gotten beyond the preliminary stages of litigation and is headed for trial, or you already have a consent decree that you want to try to get enforced.
There are two basic ways in which a § 1983 case can be resolved in a prisoner's favor: A judgment by the court after a trial (or summary judgment), or an agreed settlement between the prisoner and the defendants. Agreed settlements may be called many things, but the most usual term is "consent decree," and that is the term I use here.
A consent decree is an agreement that settles a case and states what plaintiffs and defendants must do to put the settlement into effect. Usually if there is going to be a settlement it is worked out before a trial happens, but sometimes settlements are worked out in the middle of trial. In cases in which an injunction against ongoing conditions or practices is an important part of the relief a prisoner or group of prisoners wants, a consent decree will include a list of things prison or jail officials must do to address those conditions or practices. Plaintiffs will usually be asked as part of such a decree to agree that if the decree is complied with, that will end the case.
Consent Decrees Pre-PLRA
At least until enactment of the Prison Litigation Reform Act (PLRA), which I discuss later in this column, defendants in prison cases have often seen advantages in entering into consent decrees in cases in which they thought the prisoners had a good chance to win at trial. Those advantages include being able to avoid an expensive trial while not having to admit that they did anything wrong: The typical consent decree has included language the defendants request saying that they will settle the case and do the things the consent decree calls for, but they do not admit any violation of law.
Plaintiffs also can benefit greatly from consent decrees. Trials are risky, settlements surer: The result of trial is hard to predict, so getting a settlement that addresses the conditions one wants to see changed can provide a certainty that a looming trial cannot.
In addition, at least before PLRA, consent decrees could provide for more or different relief than could be gained by going to trial, so long as the consent decree addressed prison conditions that are of constitutional concern: 'Federal courts may not order States or local governments, over their objection, to undertake a course of conduct not tailored to curing a constitutional violation that has been adjudicated... But we have no doubt that, to 'save themselves the time, expense, and inevitable risk of litigation,' United States v. Armour & Co., 402 U.S. 673, 681 ... (1971), [jail administrators] could settle the dispute over the proper remedy for the constitutional violations that had been found by undertaking to more than the Constitution itself requires (almost any affirmative decree beyond a directive to obey the Constitution necessarily does that), but also more than what a court would have ordered absent the settlement.'' Rufo v. Inmates Of Suffolk County Jail, 502 U.S. 367, 389 (1992)(some citations omitted).
There are other aspects of settlement that can benefit both sides. A judgment after trial is written and imposed by a judge, while the parties write consent decrees (although consent decrees must be approved by a judge). For example, if you go to trial on a case involving conditions in a segregation unit and the judge decides that some of the conditions are unconstitutional, the judge will decide what the defendants must do to fix those conditions. The parties will get to tell the judge what they think should be in the order, but the judge decides what the order will actually say. In addition, an order imposed by a judge will be limited by what the judge can order absent consent (see the quotation above from Rufo). If the parties want to provide for some important needs that each party has that a judge would be unable or unwilling to address in an order, the parties' chosen way to address these problems could be a consent decree. In the example I used earlier in this paragraph, there might be good reasons why the parties settling the segregation conditions case would want to specify when certain activities, such as recreation, will happen in the unit. However, most judges would be very unlikely to specify such details of prison life in a court-imposed order.
Once a consent decree is accepted by the court and entered (put into effect), it has the same effect as a court-imposed order. The defendants must do what it says, and plaintiffs can ask for further orders and even contempt of court if the defendants do not.
Consent decrees that require defendants to continue to do things are, however, subject to being "modified" (changed) by the court. And in deciding whether to modify, federal courts treat court-imposed and consent judgments the same. Courts, including the Supreme Court, have sometimes said that consent decrees are partly like contracts and partly like other court orders, but the Supreme Court in Rufo said that the court order aspect is most important. The Rufo court then went on to say that because consent decrees are basically the same as other court orders, the standard for modifying them is the same as it is for court-imposed orders: Consent decrees may be modified -- no matter what the parties previously agreed to if factual or legal circumstances change significantly or if the public interest requires a change. However, Rufo also makes clear that defendants cannot get a consent decree modified if the legal or factual circumstances the defendants are using to try to get modification were known at the time the decree was entered.
Consent Decrees Post-PRLA
The PLRA contains several provisions that, if they are ultimately upheld by the Supreme Court, could dramatically alter the law of consent decrees. I discuss here two provisions that relate directly to consent decrees in general. I do not discuss every provision of PLRA that could affect consent decrees, and I do not provide detailed legal analysis of the sections discussed, merely enough to highlight the issues.
First, the PLRA states that government officials can be free from a consent decree they agreed to even before PLRA was enacted if the decree does not contain findings or stipulations of constitutional violations, unless current or ongoing violations are found to exist: 'In any civil action with respect to prison conditions, a defendant or intervenor shall be entitled to the immediate termination of any prospective relief if the relief was approved or granted in the absence of a finding by the court that the relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right.
'Prospective relief shall not terminate if the court makes written findings based on the record that prospective relief remains necessary to correct a current or ongoing violation of the Federal right, extends no further than necessary to correct the violation of the federal right, and that the prospective relief is narrowly drawn and the least intrusive means to correct the violation." 18 U.S.C. § 3626(b)(2) & (3).
Courts that have addressed these provisions so far have come to different conclusions. A few courts have found that it is unconstitutional for Congress to try to disturb past consent judgments. See, for example, Hadix v. Johnson, 947 F.Supp. 1100 (E.D.Mich. 1996). Other courts say the provisions are constitutional. See, for example, Plyler v. Moore, 100 F.3d 365 (4th Cir. 1996), cert. denied, 117 S.Ct. 2460 (1997). There is a discussion of many of the cases in Jensen v. County of Lake, 958 F.Supp. 397 (N.D.Ind. 1997). The Supreme Court likely will have to make the final decision on whether existing decrees can be made to just disappear in the way PLRA suggests.
Another PLRA provision impacts the process of trying to negotiate a decree in an ongoing case. 18 U.S.C. § 3626(a)(1) forbids federal courts from approving a consent decree (or court-imposed order), "...unless the court finds that [the] relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal right [of a particular plaintiff or plaintiffs], and is the least intrusive means necessary to correct the violation of the Federal right. The court shall give substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the relief."
This section make the findings necessary in a consent decree and a court-imposed order the same. If this is upheld, then Rufo's clear statement that consent decrees can go further than court-imposed orders will be gone. In order to settle, defendants will likely have to concede to the findings required by PLRA. This removes one of the strongest arguments in favor of settlement, that is, that defendants do not have to admit wrongdoing. After PLRA, defendants might be more willing to gamble on trial, reasoning that if in order to settle they have to concede constitutional violations, they may as well take a chance that the judge will find no violations and order nothing. Thus prisoner plaintiffs may be forced to the uncertainties and expense of trial -- and in many cases the extra obstacles faced by pro se prisoners in trying to prepare for trial while locked up -- in a case that would have settled before PLRA.
The PLRA does contain one exception to the need for the findings and limits on relief in consent decrees. PLRA provides for so-called "private settlement agreements." These are agreements that do not necessarily have to "comply with the limitations on relief" imposed by PLRA on most settlements, but (here's the catch) private settlement agreements cannot be "subject to court enforcement other than the reinstatement of the civil proceeding that the agreement settled." 18 U.S.C. § 3626(c)(2). In other words, you can make an agreement with the defendants to do more than the Constitution or a court would require, but you cannot provide in your agreement for any judicial enforcement, only for reinstatement of your federal civil case if things go wrong. Thus a private settlement agreement is something less than a contract, because most contracts can be enforced at least in state court.
In a case in which the defendants do not feel like honoring a private settlement agreement, this right to reinstatement would obviously not be worth much; reinstatement would simply start the case over, with time having passed and the prisoner having gained nothing. However, depending upon the circumstances in a particular case, you might nevertheless want to seriously consider a private settlement agreement. If you have a strong case and the defendants will not settle because they will not admit to constitutional violations in a settlement, then you may want to go to trial. But if you have a weaker case, and a private settlement agreement will provide for more than PLRA would allow in a consent decree, perhaps a private settlement agreement would be the best option.
Each case is different, and settlement strategy must include consideration of your chances at trial, what the defendants will agree to do in different kinds of settlements, and the likelihood that the defendants will honor a private settlement agreement. Good settlement strategy depends, as it always has, on creativity with the tools at hand. The tools for prisoners in federal court may have gotten a bit duller after PLRA, but there still are some tools and you should think through carefully how best to use them.
[John Midgley is an attorney for Columbia Legal Services in Tacoma, Washington.]
This column discusses so-called "consent decrees" in prison cases. I briefly address the advantages of trying to get a consent decree in certain cases, and current issues regarding consent decrees. This column assumes that either you have filed a case under 42 U.S.C. § 1983 in federal court and the case has gotten beyond the preliminary stages of litigation and is headed for trial, or you already have a consent decree that you want to try to get enforced.
There are two basic ways in which a § 1983 case can be resolved in a prisoner's favor: A judgment by the court after a trial (or summary judgment), or an agreed settlement between the prisoner and the defendants. Agreed settlements may be called many things, but the most usual term is "consent decree," and that is the term I use here.
A consent decree is an agreement that settles a case and states what plaintiffs and defendants must do to put the settlement into effect. Usually if there is going to be a settlement it is worked out before a trial happens, but sometimes settlements are worked out in the middle of trial. In cases in which an injunction against ongoing conditions or practices is an important part of the relief a prisoner or group of prisoners wants, a consent decree will include a list of things prison or jail officials must do to address those conditions or practices. Plaintiffs will usually be asked as part of such a decree to agree that if the decree is complied with, that will end the case.
Consent Decrees Pre-PLRA
At least until enactment of the Prison Litigation Reform Act (PLRA), which I discuss later in this column, defendants in prison cases have often seen advantages in entering into consent decrees in cases in which they thought the prisoners had a good chance to win at trial. Those advantages include being able to avoid an expensive trial while not having to admit that they did anything wrong: The typical consent decree has included language the defendants request saying that they will settle the case and do the things the consent decree calls for, but they do not admit any violation of law.
Plaintiffs also can benefit greatly from consent decrees. Trials are risky, settlements surer: The result of trial is hard to predict, so getting a settlement that addresses the conditions one wants to see changed can provide a certainty that a looming trial cannot.
In addition, at least before PLRA, consent decrees could provide for more or different relief than could be gained by going to trial, so long as the consent decree addressed prison conditions that are of constitutional concern: 'Federal courts may not order States or local governments, over their objection, to undertake a course of conduct not tailored to curing a constitutional violation that has been adjudicated... But we have no doubt that, to 'save themselves the time, expense, and inevitable risk of litigation,' United States v. Armour & Co., 402 U.S. 673, 681 ... (1971), [jail administrators] could settle the dispute over the proper remedy for the constitutional violations that had been found by undertaking to more than the Constitution itself requires (almost any affirmative decree beyond a directive to obey the Constitution necessarily does that), but also more than what a court would have ordered absent the settlement.'' Rufo v. Inmates Of Suffolk County Jail, 502 U.S. 367, 389 (1992)(some citations omitted).
There are other aspects of settlement that can benefit both sides. A judgment after trial is written and imposed by a judge, while the parties write consent decrees (although consent decrees must be approved by a judge). For example, if you go to trial on a case involving conditions in a segregation unit and the judge decides that some of the conditions are unconstitutional, the judge will decide what the defendants must do to fix those conditions. The parties will get to tell the judge what they think should be in the order, but the judge decides what the order will actually say. In addition, an order imposed by a judge will be limited by what the judge can order absent consent (see the quotation above from Rufo). If the parties want to provide for some important needs that each party has that a judge would be unable or unwilling to address in an order, the parties' chosen way to address these problems could be a consent decree. In the example I used earlier in this paragraph, there might be good reasons why the parties settling the segregation conditions case would want to specify when certain activities, such as recreation, will happen in the unit. However, most judges would be very unlikely to specify such details of prison life in a court-imposed order.
Once a consent decree is accepted by the court and entered (put into effect), it has the same effect as a court-imposed order. The defendants must do what it says, and plaintiffs can ask for further orders and even contempt of court if the defendants do not.
Consent decrees that require defendants to continue to do things are, however, subject to being "modified" (changed) by the court. And in deciding whether to modify, federal courts treat court-imposed and consent judgments the same. Courts, including the Supreme Court, have sometimes said that consent decrees are partly like contracts and partly like other court orders, but the Supreme Court in Rufo said that the court order aspect is most important. The Rufo court then went on to say that because consent decrees are basically the same as other court orders, the standard for modifying them is the same as it is for court-imposed orders: Consent decrees may be modified -- no matter what the parties previously agreed to if factual or legal circumstances change significantly or if the public interest requires a change. However, Rufo also makes clear that defendants cannot get a consent decree modified if the legal or factual circumstances the defendants are using to try to get modification were known at the time the decree was entered.
Consent Decrees Post-PRLA
The PLRA contains several provisions that, if they are ultimately upheld by the Supreme Court, could dramatically alter the law of consent decrees. I discuss here two provisions that relate directly to consent decrees in general. I do not discuss every provision of PLRA that could affect consent decrees, and I do not provide detailed legal analysis of the sections discussed, merely enough to highlight the issues.
First, the PLRA states that government officials can be free from a consent decree they agreed to even before PLRA was enacted if the decree does not contain findings or stipulations of constitutional violations, unless current or ongoing violations are found to exist: 'In any civil action with respect to prison conditions, a defendant or intervenor shall be entitled to the immediate termination of any prospective relief if the relief was approved or granted in the absence of a finding by the court that the relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right.
'Prospective relief shall not terminate if the court makes written findings based on the record that prospective relief remains necessary to correct a current or ongoing violation of the Federal right, extends no further than necessary to correct the violation of the federal right, and that the prospective relief is narrowly drawn and the least intrusive means to correct the violation." 18 U.S.C. § 3626(b)(2) & (3).
Courts that have addressed these provisions so far have come to different conclusions. A few courts have found that it is unconstitutional for Congress to try to disturb past consent judgments. See, for example, Hadix v. Johnson, 947 F.Supp. 1100 (E.D.Mich. 1996). Other courts say the provisions are constitutional. See, for example, Plyler v. Moore, 100 F.3d 365 (4th Cir. 1996), cert. denied, 117 S.Ct. 2460 (1997). There is a discussion of many of the cases in Jensen v. County of Lake, 958 F.Supp. 397 (N.D.Ind. 1997). The Supreme Court likely will have to make the final decision on whether existing decrees can be made to just disappear in the way PLRA suggests.
Another PLRA provision impacts the process of trying to negotiate a decree in an ongoing case. 18 U.S.C. § 3626(a)(1) forbids federal courts from approving a consent decree (or court-imposed order), "...unless the court finds that [the] relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal right [of a particular plaintiff or plaintiffs], and is the least intrusive means necessary to correct the violation of the Federal right. The court shall give substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the relief."
This section make the findings necessary in a consent decree and a court-imposed order the same. If this is upheld, then Rufo's clear statement that consent decrees can go further than court-imposed orders will be gone. In order to settle, defendants will likely have to concede to the findings required by PLRA. This removes one of the strongest arguments in favor of settlement, that is, that defendants do not have to admit wrongdoing. After PLRA, defendants might be more willing to gamble on trial, reasoning that if in order to settle they have to concede constitutional violations, they may as well take a chance that the judge will find no violations and order nothing. Thus prisoner plaintiffs may be forced to the uncertainties and expense of trial -- and in many cases the extra obstacles faced by pro se prisoners in trying to prepare for trial while locked up -- in a case that would have settled before PLRA.
The PLRA does contain one exception to the need for the findings and limits on relief in consent decrees. PLRA provides for so-called "private settlement agreements." These are agreements that do not necessarily have to "comply with the limitations on relief" imposed by PLRA on most settlements, but (here's the catch) private settlement agreements cannot be "subject to court enforcement other than the reinstatement of the civil proceeding that the agreement settled." 18 U.S.C. § 3626(c)(2). In other words, you can make an agreement with the defendants to do more than the Constitution or a court would require, but you cannot provide in your agreement for any judicial enforcement, only for reinstatement of your federal civil case if things go wrong. Thus a private settlement agreement is something less than a contract, because most contracts can be enforced at least in state court.
In a case in which the defendants do not feel like honoring a private settlement agreement, this right to reinstatement would obviously not be worth much; reinstatement would simply start the case over, with time having passed and the prisoner having gained nothing. However, depending upon the circumstances in a particular case, you might nevertheless want to seriously consider a private settlement agreement. If you have a strong case and the defendants will not settle because they will not admit to constitutional violations in a settlement, then you may want to go to trial. But if you have a weaker case, and a private settlement agreement will provide for more than PLRA would allow in a consent decree, perhaps a private settlement agreement would be the best option.
Each case is different, and settlement strategy must include consideration of your chances at trial, what the defendants will agree to do in different kinds of settlements, and the likelihood that the defendants will honor a private settlement agreement. Good settlement strategy depends, as it always has, on creativity with the tools at hand. The tools for prisoners in federal court may have gotten a bit duller after PLRA, but there still are some tools and you should think through carefully how best to use them.
[John Midgley is an attorney for Columbia Legal Services in Tacoma, Washington.]
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