by Assistant Professor Margo Schlanger, Reprinted (soft back)

from the Harvard Law Review, Vol. 116, No.6, April 2003; 151 pp.

Review by John E. Dannenberg


Inmate Litigation is a scholarly analysis on the effectiveness of prisoner civil rights litigation filed under 42 U.S.C. § 1983 both before and after the enactment of the Prison Litigation Reform Act (PLRA) in 1996. Assistant Professor Margo Schlanger of the Harvard Law School researched and interviewed literally thousands of sources - even PLN's own editor, Paul Wright - to gain her highly evolved knowledge of when and why prisoners sue as well as the details of the restraints on their ability to marshal legal actions at all-let alone successfully. Professor Schlanger's command of the legal principles of § 1983 litigation, her mastery of statistics and her lucid writing style combine to make this a useful guidebook to inform serious prison litigators - both pro per and bar attorneys _ on how and when prisoner suits might be a worthwhile endeavor. The study is also of interest to the plaintiff's bar in general because the PLRA is the second major piece of "tort reform" legislation enacted at the federal level in decades. Its effect in suppressing meritorious suits, capping attorney fees, eliminating damages awards, terminating consent decrees and imposing administrative exhaustion requirements are touted as a "success" by corporate tort reformers who seek to impose similar limitations on all litigants, especially consumer, employee and product liability plaintiffs.


Using 1995 as the baseline (the last year before the impact of the PLRA on prisoner new federal court filings), Schlanger notes that 40,000 new lawsuits were brought by jail and prison plaintiffs (about 1/5 of the federal civil docket, exclusive of habeas corpus petitions). The success rate in these cases was under 15%. The low success rate and high number of filings were the stimuli that led Congress to pass the PLRA in 1996 - with its $150 filing fee, its administrative remedy exhaustion hurdle and its attorney fee caps that were intended to dissuade prisoner lawsuits. In fact, Schlanger reports that, as a result, new federal filings shrank 43% by 2001, notwithstanding a 23% increase in the prison population. Worse yet, she concludes that the PLRA, whose advertised intent was to curb frivolous litigation, instead intimidated filings for constitutionally meritorious cases by making them harder to bring, let alone win.


In Part I of her study, Prof. Schlanger describes typical prisoner cases, making the important distinction between low merit (i.e., frivolous, or nearly so) and low value (i.e., worthy only of minimal damages) actions. She recalled Sen. Orrin Hatch's call to arms when propounding the PLRA to Congress: "Jailhouse lawyers with little else to do are tying our courts in knots with an endless flood of frivolous litigation." In contrast, Schlanger noted that some prisoners avoid litigation upon seeing jailhouse lawyers being disproportionately disciplined. She found that overall, when federal and state filings are combined, prisoners and non-prisoners have comparable civil litigation rates.


Part II looks at the outcome of the prisoner case docket - how many cases are dismissed, how many are settled, how many are tried, and with what result. Not surprisingly, the results are that prisoners fare worse than other federal civil plaintiffs in all measures of success. Of the post-PLRA cases that survive dismissal and summary judgment motions and are not voluntarily withdrawn, about half - an unexpectedly high number - are settled. And when cases proceed to trial and are won, prisoners win punitive damages in 15% of these victories - a disproportionately large percentage. Prof. Schlanger attributes this result to the high hurdle posed by the law to win at all; if the defendants are guilty of such contumacious behavior, they probably behaved so badly as to also cross the threshold for punitive damages.


The average of prisoner damage awards in 1993 was $18,800, while the median was a mere $1,000; punitive damages averaged $14,406 with a median of $5,000. Prof. Schlanger attributes these results, which are but a fraction of other federal civil case awards, to lack of counsel (the four percent of attorney -represented cases were three times as likely to settle as pro pers, 2/3 more likely to go to trial and 2 ½ times as likely to result in the prisoner winning); prisoners refusing to settle as a matter of "pride" [Editor's Note: an additional factor in settlement refusal by pro se prisoners may be an inability to correct value their cases as well as a refusal by defendants to make appropriate settlement offers]; pro-per sworn testimony losing against that of prison officials; "corrections culture" - the reluctance of prison officials to concede to a prisoner; and known low trial win rates.


Part III summarizes the constrictive statutory provisions of the 1996 PLRA.


Part IV analyzes the impact of the PLRA, reaching the important conclusion that the intervention of tougher procedures was far from neutral in its supposed intent to just dissuade frivolous cases. From 1995 to 1997, filings decreased 33%, while the prison population increased 10%. Some prisoners fled to habeas corpus to avoid the $150 filing fee, but were blocked by Heck v. Humphrey, 512 U.S. 477 (1994) and other procedural hurdles. And the PLRA's exhaustion impediment decreased trials by 50% (to fewer than 500 in 2001). The end result, is that the PLRA discourages even high-merit cases unless they have sufficiently high-value as well to attract attorneys.


Part V looks beyond the filings and outcomes to examine the impact of prisoner litigation on prison and jail administrators. Professor Schlanger parses the record to search for deterrence effects of suits on harsh prison practices: "deterrence" (encouraging compliance with successful court orders), "antideterrence" (shying away from liable misbehavior or offering more than minimal conciliation), and "underdeterrence" (the feeling of prison administrators that because prisoner suit success rates are so low, they shouldn't fear pushing the envelope to violate prisoners' rights).


Part VI concludes with the ominous finding that the PLRA is a dangerous model for litigation "reform," because by suppressing all cases without regard to merit, it tends to throw the baby out with the bath water by not just stripping frivolous cases from making it to the steps of the courthouse door - but indiscriminately condemning the very cases § 1983 was intended to promote. But then, that tends to be the real objective of "tort reformers."


Admittedly, this study is not light reading. But for those who seek to understand how prisoner federal civil rights litigation has worked in the courts and how the PLRA has impacted it, it is hard to imagine a more informed and candid discussion. See: Inmate Litigation, Vol. 116, No.6, April 2003, The Harvard Law Review Association, Cambridge, Massachusetts.

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