Trends in Prisoner Litigation, as the PLRA Enters Adulthood

by Margo Schlanger*

The Prison Litigation Reform Act (PLRA),¹ enacted in 1996 as part of the Newt Gingrich “Contract with America,”² is now as old as some prisoners. In the year after the statute’s passage, some commenters labeled it merely “symbolic.”³ In fact, as was evident nearly immediately, the PLRA undermined prisoners’ ability to bring, settle and win lawsuits.⁴ The PLRA conditioned court access on prisoners’ meticulously correct prior use of onerous and error-inviting prison grievance procedures.⁵ It increased filing fees,⁶ decreased attorneys’ fees⁷ and limited damages.⁸ It subjected injunctive settlements to the scope limitations usually applicable only to litigated injunctions.⁹ It made prison and jail population caps—previously common—far more difficult to obtain.¹⁰ And it put in place a rule inviting frequent relitigation of injunctive remedies, whether settled or litigated.¹¹

The resulting impact on jail and prison litigation has been extremely substantial. In two articles about a decade ago, I presented descriptive statistics showing the PLRA-caused decline in civil rights filings and plaintiffs’ victories,¹² and the likewise declining prevalence of court-ordered regulation of jails and prisons.¹³ More up-to-date information has not been published, so here I update those statistics for use by policymakers, judges and other researchers, and discuss them briefly. I look in Parts I through III at damage actions, using primarily the data compiled by the Administrative Office of the U.S. Courts (the AO) for each federal district court case “terminated” (that is, marked complete by a district court, whether provisionally—say, pending appeal—or finally). These data are discussed in this Article’s Technical Appendix; replication code is also posted online.¹⁴ Part I examines prisoner filings over time and by state. Part II examines outcomes over time and compares outcomes in other case categories. And Part III looks at litigated damages. (Because the AO’s data on damages are error-ridden,¹⁵ Part III supplements the AO database with docket-based research into individual cases.) All three Parts uncover a number of topics that are ripe for additional research.

In Part IV, I move to the topic of injunctive prison and jail litigation—cases in which prisoner plaintiffs seek a change in policy or other aspects of prison conditions. The PLRA was motivated in large part by Republican discontent with plaintiffs’ successes in such litigation,¹⁶ and Part IV demonstrates more comprehensively than prior data that it has succeeded in radically shrinking—but not eliminating—the coverage of such orders.

Filings

The PLRA’s sharp impact on the prevalence and outcomes in prison litigation is clear. Begin with filings. These are affected by numerous PLRA provisions, including: the rule that filing fees are unwaivable for indigent prisoners;¹⁷ the requirement of administrative exhaustion¹⁸ (which discourages lawsuits where such exhaustion has not occurred, since they will almost certainly fail); the attorneys’ fees limits;¹⁹ and the three-strikes requirement compelling frequent lawsuit filers to satisfy filing fees in advance without regard to their ability to pay.²⁰ As before the PLRA, litigation remains one of the few avenues for prisoners to seek redress for adverse conditions or other affronts to their rights. Accordingly, litigation continues—but at a much reduced rate. Table 1 demonstrates. It shows jail and prison populations from 1970 to 2012, along with federal court filings categorized by the courts as dealing with “prisoner civil rights” or “prison conditions.”²¹ Figures A and B present some of the same information in graphic form—Figure A shows filings compared to prison and jail population, and Figure B shows filing rates compared to prison and jail population.

The national trends in Table 1 and Figures A and B are clear. A steep increase in prisoner civil rights litigation combined in the 1970s with a steep increase in incarcerated population. The filing rate slowly declined in the 1980s, but the increase in jail and prison population nonetheless pushed up raw filings. Then, as in the 1970s, the 1990s saw an increase in both jail and prison population and filings rates, until 1995. In 1996, the PLRA immediately transformed the litigation landscape. After a very steep decline in both filings and filing rates in 1996 and 1997, rates continued to shrink for another decade (although the increasing incarcerated population meant that the resulting number of filings increased a bit). Since 2007, filing rates, prison population and filings have all plateaued.

The state-by-state story is far more varied. Table 2 presents the data: it compares 1995 (the year prior to the PLRA) and 2012 (the latest year for which state-by-state jail information—and therefore filing rate information—is available). The first set of columns show the jail and prison population,²⁵ the prisoner civil rights filings in federal district court and the resulting filing rate in 1995. The states are set out in rank order, with Iowa, the state whose prisoners were in 1995 the most litigious, ranked 1. The second set of columns presents the same information for 2012. The third set of columns shows the change over the seventeen-year period, as a simple change and as a percent change—so Iowa’s change from a filing rate of 101.7 to 12.5 federal lawsuits per 1,000 prisoners is shown both as a change of 89.2 (101.7 – 12.5), and 87.7%. Nationwide the filing rate shrank by 14.4 filings per 1,000 prisoners, and by nearly 60%, from 24.6 to 10.2 lawsuits per 1,000 prisoners. For thirty states, the proportional change was that big or bigger, and for most of the rest, nearly as big. But as Table 2 presents, for a few states the change was far smaller. California, in fact, has seen almost no change in its filing rate—although it is alone in that experience. Figure C puts the penultimate columns of Table 2 into a histogram, to make plainer the varied experience of the states.

Figures D and E focus additional attention on the varying effects of the PLRA by state. Figure D presents the six states that have experienced the steepest decline in filing rates since 1995, showing their changed filing rates by year. (So for example, a drop of 10 filings per 1,000 prisoners from the rate in 1995—whatever that rate was—is shown as -10.) Figure E is the same information for the six states that have experienced the shallowest decline.

Figure D’s states look very like the nation as a whole, although the pattern is more pronounced. But Figure E’s patterns are quite different. While the trend lines are not entirely consistent state to state, they generally are U-shaped curves. That is, even in these least-affected states, filing rates declined for some years after the PLRA’s passage. At that point, something—I imagine something different in each state—turned that trend around and caused the filing rate to increase. Future research might uncover what that spur was. We can guess that it was not appellate precedent; the states in question are from the First, Second, Third, Seventh, Eighth and Ninth Circuits—no circuit has more than one state represented in the bottom six.

Outcomes

One might expect that the drastic pruning of the prisoner civil rights docket that occurred beginning in 1996 would tilt the docket toward higher quality cases—so that prisoner success rates would go up. However, I previously demonstrated, using data through 2001, that the PLRA not only made prisoner civil rights cases harder to bring, as illustrated above, but also made them harder to win.³⁰ In particular, prisoners’ cases are thrown out of court for failure to properly complete often-complicated grievance procedures,³¹ or because they do not allege physical injury, which some courts read the PLRA to require for recovery even in constitutional cases.³² Now that we have another decade of data, it’s worth reexamining this issue, to see if trends have continued, moderated or reversed.

New data, presented in Table 3, confirm my earlier conclusions. The table presents outcomes in prisoners’ federal civil rights cases, resolved from Fiscal Year 1988 through 2012, the last year for which data are available. (1988 is chosen as a start date because of federal coding protocol changes prior to that year.) Each row is a year, each column a particular outcome. Scanning the table one column at a time, to detect trends over time, reveals that the courts are becoming less and less hospitable for prisoners’ claims. Column (a) shows filings; column (b) terminations; and column (c) the portion of those terminations that constituted judgments. (Most non-judgments are transfers to another court.) Most remaining outcomes are calculated as a proportion of judgment dispositions. Column (d) is pretrial decisions for the defendant; tracing it through the years shows that after the PLRA, such decisions increased although not overwhelmingly so. On the other side, pretrial victories for the plaintiff, in column (e), have declined, though some of that decline predates the PLRA.³³ Column (f) shows a decline in settlements, much but not all postdating the PLRA. Column (g) shows a similar decline in voluntary dismissals, which are often settlements as well. And column (h) shows a decline in trials, again much of it subsequent to the PLRA. (Plaintiffs’ victories at those decreasing numbers of trials, in column (i), appear not to have changed.) Columns (j) and (k) show the timing of settlements, before or after “issue is joined” (that is, before or after the filing of an answer to the civil complaint). The declining portion of settlements in column (j) suggests that settlements have become harder to come by for plaintiffs. And finally, column (l) sums up the portion of the docket in which it appears plaintiffs may have succeeded in any way, adding together settlements, voluntary dismissals, pretrial victories and victories at trial. Those numbers are down substantially since the early 1990s.

In short, in cases brought by prisoners, the government defendants are winning more cases pretrial, settling fewer matters and going to trial less often. Those settlements that do occur are harder fought; they are finalized later in the litigation process. Plaintiffs are, correspondingly, winning and settling less often, and losing outright more often. Probably not all these changes were caused by the PLRA—several of the trend lines seem to start prior to the statute’s enactment. But given the PLRA’s very definite anti-plaintiff tilt, it seems nearly certain that the statute has caused at least some of the declining access to court remedies demonstrated in Table 3.³⁴

Table 4 next provides some context for the very limited success prisoner plaintiffs experience, setting out the same outcome information but for other categories of cases, all in Fiscal Year 2012. As it shows, only in the other prisoner category—habeas cases and other similar quasi-criminal matters—do plaintiffs fare anywhere close to as badly.³⁵

Prisoner plaintiffs not only lose more often than other plaintiffs—they lose faster. Table 5 sets out the time to disposition for cases filed in district courts, Fiscal Year 1988 to 2011, the last year with full data available.36

Table 6 provides one piece of the explanation, setting out the proportion of cases by type of suit, litigated by plaintiffs without counsel. It shows that prisoner civil rights cases, as one would expect, are overwhelmingly pro se—and at a much higher rate than prior to the PLRA, which drastically limited attorneys’ fees.^{37, 38}

Damages

As the last aspect of my examination of prisoner damage actions, I look at the damages themselves. I previously conducted a study of cases terminated in 1993, and found that (after excluding one very large outlying award) the average damages in cases with trial judgments for prisoner plaintiffs were about $18,800, with a median of a mere $1,000.³⁹ I decided to repeat this study, to see what might have changed in the two decades since. To do this, I examined—using the docket sheet and other court documents—each case coded by the court system as ending with a trial or other litigated judgment in Fiscal Year 2012, the latest data available. The AO’s coding is somewhat imprecise, particularly for the non-trials. Of those cases that met these initial selection criteria, most turned out to be defendants’ victories, and others turned out to be settlements: I excluded both. Table 6 presents the results. As it shows, case results for 2012 are entirely consonant with the 1993 study. Of fifty-eight litigated judgments, the mean award was under $22,000 for trials and under $19,000 for non-trials, with a median of just $1,525 for trials and $7,000 for non-trials. Across all the cases, nationwide litigated damages totaled a mere $1,000,000.⁴⁰

Thus when prisoners do litigate all the way to victory, they tend to win pretty small.

Court Orders

Since the 1970s, court orders have been a major source of regulation and oversight for American jails and prisons—whether those orders entailed active judicial supervision, intense involvement of plaintiffs’ counsel or other monitors, or simply a court-enforceable set of constraints on corrections officials’ discretion.⁴¹ The PLRA altered this system with provisions that promote termination of existing court orders, and others that shortened the life span of new orders.⁴² The impact took some time to manifest, but is now very clear. Table 7 shows the results.⁴³

Columns (a) and (c) show the total number of facilities, and total incarcerated population, for jails and prisons in each census year. Columns (b) and (d) then show the proportion of those totals in which the census responses report court orders. Looking at columns (b) and (d) in the censuses most immediately following the PLRA—1999 for jails and 2000 for prisons—suggests only a very limited impact of the statute. (This is what I reported in 2006, before data from the next iteration of the census became available.) The next census administration is the one where the PLRA’s impact is much more marked: the decline in covered facilities (column (b)) is very large, and the decline in covered population (column (d)) even more so.

And finally, Table 9 emphasizes the new rarity of system-wide court order coverage. The table’s first row lists, by census year, how many states report one or more facilities subject to court order. That number remains substantial. But the second row shows states in which sixty percent or more of the facilities or population are covered by court order—and that row demonstrates that where this kind of system-wide (or close to it) coverage used to be quite common, it is now rare. In 2005 and 2006, respectively, only five states reported system-wide court order coverage of their prisons, and only two states of their jails.^{45, 46}

The point is not that courts are no longer part of the prison and jail oversight ecosystem. In California (of all states) the contrary is obvious—numerous injunctive cases have transformed California’s criminal justice system,⁴⁷ and more changes are underway.⁴⁸ But the PLRA has made such cases far more rare.

Conclusion

In my view, court cases and court-enforceable regulation have since the 1970s been useful correctives to dysfunctions and abuses that frequently occur in our low-visibility jails and prisons. But the practice of prisoner litigation is susceptible to criticism, from the left, that prisoner access to courts offers the appearance but not the reality of justice,⁴⁹ and that court orders have both “contributed to mass incarceration,” by promoting the building of new prisons to reduce overcrowding,⁵⁰ and limited prisoner freedom by enhancing prison bureaucracy.⁵¹ Simultaneously, the critics from the right who got the PLRA passed suggested that prisoner cases are usually frivolous and prison and jail decrees frequently overreaching.⁵² This debate is far beyond the scope of this Article—but perhaps further research will be spurred by publication of these statistics, which demonstrate the kind of variance, over time and location, that researchers might use to shed additional light on how prisoner litigation actually functions. Whichever view is correct, the statistics set out in this Article pose an enormous challenge to us as a polity. Litigation has receded as an oversight method in American corrections. It is vital that something take its place.

* Margo Schlanger is the Henry M. Butzel Professor of Law at the University of Michigan Law School. She is a leading authority on civil rights issues and civil and criminal detention, served on the Vera Institute’s blue-ribbon Commission on Safety and Abuse in America’s Prisons, worked as an adviser on the development of proposed national standards implementing the Prison Rape Elimination Act and testified before the Prison Rape Elimination Commission. She also served as the reporter for the American Bar Association’s revision of its Standards Governing the Legal Treatment of Prisoners, and has been the chair of the Association of American Law Schools sections on Remedies and on Law and the Social Sciences.

Note: This article was initially published in the April 2015 issue of the UC Irvine Law Review (Schlanger, Margo. “Trends in Prisoner Litigation, as the PLRA Enters Adulthood.” UC Irvine L. Rev. 5, no. 1 (2015): 153-79); it is reprinted with permission of the author. It originally included a Technical Appendix with information about the data sources used for the tables and figures, with a link to the full dataset: www.law.umich.edu/facultyhome/‌margoschlanger/Pages/Trends.aspx. According to the Technical Appendix, “Both federal and state prison populations are year-end counts, and are available for all years for all states. Jail population is entirely unavailable for 1971–1977 and 1979, and only national data are available for 1980–1982, 1984–1987, 1991–1992, and 1994–1999. Where available, the figure chosen is the average daily population (because that is the most consistently available data for state-by-state data). But for a few years when average daily population is not available, the mid-year count is used instead. Details are included in the data file itself.”

ENDNOTES

© 2015 by Margo Schlanger. This Article may be copied and distributed for free or at cost to students or prisoners.

* Henry M. Butzel Professor of Law, University of Michigan. Thanks to Grady Bridges for data management assistance and, as always, to Sam Bagenstos for his helpful comments. I wish to acknowledge the generous support of the William W. Cook Endowment of the University of Michigan.

¹ Prison Litigation Reform Act, Pub. L. No. 104‑134, tit. 8, §§ 801–810, 110 Stat. 1321, 1321-66­ to -77 (1996) (codified as amended at 11 U.S.C. § 523 (2012); 18 U.S.C. §§ 3624, 3626 (2012); 28 U.S.C. §§ 1346, 1915, 1915A, 1932 (2012); 42 U.S.C. §§ 1997a–c, e–f, h (2012)). The PLRA was part of the Omnibus Consolidated Rescissions and Appropriations Act of 1996, Pub. L. No. 104‑134, 110 Stat. 1321.

² Newt Gingrich et al., Contract with America 53 (Ed Gillespie & Bob Schellhas eds., 1994) (referring to the PLRA’s predecessor bill, the Taking Back Our Streets Act, H.R. 3, 104th Cong. (1995)).

³ Mark Tushnet & Larry Yackle, Symbolic Statutes and Real Laws: The Pathologies of the Antiterrorism and Effective Death Penalty Act and the Prison Litigation Reform Act, 47 Duke L.J. 1 (1997).

⁴ For in-depth examination of the PLRA’s impact on damage actions, see Margo Schlanger, Inmate Litigation, 116 Harv. L. Rev. 1555 (2003) [hereinafter Schlanger, Inmate Litigation]. For in-depth examination of the PLRA’s impact on injunctive litigation, see Margo Schlanger, Civil Rights Injunctions Over Time: A Case Study of Jail and Prison Court Orders, 81 N.Y.U. L. Rev. 550 (2006) [hereinafter Schlanger, Civil Rights Injunctions]. Note that the subsequent description of the PLRA in this paragraph also appears in my article, How Prisoners’ Rights Lawyers Are Preserving the Role of the Courts, 69 U. Miami L. Rev. (forthcoming 2015).

⁵ 42 U.S.C. § 1997e(a) (“No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.”); see alsoWoodford v. Ngo, 548 U.S. 81 (2006). A good deal has been written about this provision. See,e.g., Margo Schlanger & Giovanna Shay, Preserving the Rule of Law in America’s Jails and Prisons: The Case for Amending the Prison Litigation Reform Act, 11 U. Pa. J. Const. L. 139 (2008); see also, e.g.,Alison M. Mikkor, Correcting for Bias and Blind Spots in PLRA Exhaustion Law, 21 Geo. Mason L. Rev. 573 (2014); Kermit Roosevelt III, Exhaustion Under the Prison Litigation Reform Act: The Consequence of Procedural Error, 52 Emory L.J. 1771 (2003); Giovanna Shay, Exhausted, 24 Fed. Sent’g Rep. 287 (2012); Eugene Novikov, Comment, Stacking the Deck: Futility and the Exhaustion Provision of the Prison Litigation Reform Act, 156 U. Pa. L. Rev. 817 (2008).

⁶ 28 U.S.C. § 1915(b) (excluding prisoners from the ordinary in forma pauperis ability to file without payment of fees); see alsoid. § 1914(a) (setting the fee for a district court civil action at $350).

⁷ 42 U.S.C. § 1997e(d)(3) (capping defendants’ liability for attorneys’ fees in civil rights cases at 150% of the rate paid publicly appointed defense counsel). In addition, the PLRA has been read to further cap defendants’ liability for attorneys’ fees in monetary civil rights cases at 150% of the judgment. Id. § 1997e(d)(2); see, e.g., Robbins v. Chronister, 435 F.3d 1238 (10th Cir. 2006) (en banc) (reversing the district court and disagreeing with appellate panel, holding that this limitation applies even to fees awarded for a lawsuit involving a preincarceration claim).

⁸ 42 U.S.C. § 1997e(e) (“No Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury . . . .”); see,e.g., Hilary Detmold, Note, ‘Tis Enough, ‘Twill Serve: Defining Physical Injury Under the Prison Litigation Reform Act, 46 Suffolk U. L. Rev. 1111 (2013).

⁹ 18 U.S.C. § 3626(a)(1)(A) (2012) (“Prospective relief in any civil action with respect to prison conditions shall extend no further than necessary to correct the violation of the Federal right of a particular plaintiff or plaintiffs. The court shall not grant or approve any prospective relief unless the court finds that such 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.”).

¹⁰ 18 U.S.C. § 3626(a)(3) (setting out procedural and substantive hurdles to obtaining a “prisoner release order”); see alsoPlata v. Brown, 131 S. Ct. 1910 (2011) (affirming imposition of such an order in California).

¹¹ 18 U.S.C. § 3626(b) (allowing defendants in prison conditions cases to periodically seek “termination” of previously entered injunctions).

¹² See, e.g.,Schlanger, Inmate Litigation, supra note 4, at 1583–87, 1660–64.

¹³ See, e.g.,Schlanger, Civil Rights Injunctions, supra note 4, at 576–89.

¹⁴ See Margo Schlanger, Data Appendix:Trends in Prisoner Litigation, As the PLRA Enters Adulthood, U.C. Irvine Law Review (2015),https://www.law.umich.edu////.aspx.

¹⁵ See Theodore Eisenberg & Margo Schlanger, The Reliability of the Administrative Office of the U.S. Courts Database: An Initial Empirical Analysis, 78 Notre Dame L. Rev. 1455 (2003).

¹⁶ See, e.g., 152 Cong. Rec. S14,418 (daily ed. Sept. 27, 1995) (statement of Sen. Hatch in support of S. 1279) (“While prison conditions that actually violate the Constitution should not be allowed to persist, I believe that the courts have gone too far in micromanaging our Nation’s prisons.”).

¹⁷ See 28 U.S.C. § 1915(b) (2012).

¹⁸ See 42 U.S.C. § 1997e(a) (2012).

¹⁹ See id. § 1997e(e).

²⁰ See 28 U.S.C. § 1915(g) (“In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section [that is, in forma pauperis] if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.”).

²¹ Litigation figures are calculated using data released annually by the Administrative Office of the U.S. Courts, available in digital form from the Inter-university Consortium for Political and Social Research at http://www.icpsr.umich.edu/icpsrweb/ICPSR/series/00072/studies. Prisoner population figures come from a variety of publications by the Bureau of Justice Statistics, a component of the U.S. Department of Justice. Sources are set out comprehensively in the Technical Appendix that follows this Article.

²² See infra Technical App. at A, C–E.

²³ See infra Technical App. at A, C–E. Jail population is estimated for 1971–1977, 1979.

²⁴ See infra Technical App. at A, C–E. Jail population is estimated for 1971–1977, 1979.

²⁵ Because state-by-state jail population is not available from 1994 to 1999, the jail population is calculated using a linear interpolation between the 1993 and 2000 figures.

²⁶ See infra Technical App. at A, C–E.

²⁷ See infra Technical App. at A, C–E.

²⁸ See infra Technical App. at A, C–E.

²⁹ See infra Technical App. at A, C–E.

³⁰ See Schlanger, Inmate Litigation, supra note 4, at 1644–64.

³¹ See supra note 5 and accompanying text.

³² See supra note 8.

³³ This variable is sufficiently error ridden, at least in the prisoner litigation data, to counsel against reliance on it. Seeinfra text accompanying Table 7 (discussing high error rates).

³⁴ See infra Technical App. at A.

³⁵ See infra Technical App. at A.

³⁶ See infra Technical App. at A.

³⁷ The table begins with 1996 because that is the first year for which data are available, but the prisoner cases terminated in 1996 were overwhelmingly (eighty-six percent) filed prior to the enactment of the PLRA.

³⁸ See infra Technical App. at A.

³⁹ See Schlanger, Inmate Litigation, supra note 4, at 1603.

⁴⁰ See infra Technical App. at A–B.

⁴¹ See Schlanger, Civil Rights Injunctions, supra note 4, at 552.

⁴² Seesupra notes 10–11.

⁴³ Table 7 is based on data reported by jail and prison officials in the censuses conducted by the Bureau of Justice Statistics every five or six years. Since 1983, the censuses have included questions about the existence of court orders on a variety of (specified) topics. The resulting data are the most comprehensive information available, although the data include demonstrable and important omissions. For example, there has been a court order involving mental health care at every California prison since 1997, and another involving medical care since 2002. For information on the mental health orders, see Coleman v. Brown, No. 2:90-cv-00520 (E.D. Cal.), Civil Rights Litig. Clearinghouse, http://www.clearinghouse.net/detail.php?id=573 (last visited Nov. 1, 2014). For information on the medical decree, see Plata v. Brown, No. 3:01-cv-01351 (N.D. Cal.), Civil Rights Litig. Clearinghouse, http://www.clearinghouse.net/detail.php?id=589 (last visited Nov. 1, 2014); Order Adopting Class Action Stipulation as Fair, Reasonable and Adequate, Plata v. Davis, No. 3:01-cv-01351 (N.D. Cal. June 20, 2002), http://‌www‌.clearinghouse‌.net/‌chDocs/‌public/‌PC-CA-0018-0001‌.pdf(last visited Nov. 1, 2014); and the underlying Stipulation for Injunctive Relief, Plata v. Davis, No. 3:01-cv-01351 (N.D. Cal. June 13, 2002), http://www.clearinghouse.net/chDocs/‌public/‌PC-CA-0018-0005.pdf (last visited Nov. 1, 2014). Yet no California prison reported any court order in the Census responses in 2005. So the data in Table 7 should be taken as indicative of trends, rather than dispositive about any given state or facility.

⁴⁴ See infra Technical App. at F–G.

⁴⁵ I define “system-wide” as reaching sixty percent or more facilities or population in a state, in a given census administration, after private and community-corrections facilities are excluded.

⁴⁶ See infra Technical App. at F–G.

⁴⁷ See,e.g., Brown v. Plata, 131 S. Ct. 1910 (2011); Margo Schlanger, Plata v. Brown and Realignment: Jails, Prisons, Courts, and Politics, 48 Harv. C.R.-C.L. L. Rev. 165 (2013).

⁴⁸ For a description of the Plata litigation’s recent progress, see Plata v. Brown, 3:01-cv-01351 (N.D. Cal.), Civil Rights Litig. Clearinghouse, http://www‌.clearinghouse‌.net/‌detail‌.php‌?id‌‌=589 (last visited Nov. 1, 2014). For descriptions of other ongoing litigated interventions into California’s criminal justice system, see, for example, Ashker v. Brown, 4:09-cv-05796-CW (N.D. Cal.), Civil Rights Litig. Clearinghouse, http://www.clearinghouse.net/detail.php?id‌=12103 (last visited Nov. 1, 2014); Gray v. County of Riverside, 5:13-cv-00444 (C.D. Cal.), Civil Rights Litig. Clearinghouse, http://www.clearinghouse.net/detail.php?id=12729 (last visited Nov. 1, 2014).

⁴⁹ Cf.,e.g., Duncan Kennedy, A Critique of Adjudication (fin de siècle) (1997) (presenting and analyzing this critique more broadly).

⁵⁰ Heather Schoenfeld, Mass Incarceration and the Paradox of Prison Conditions Litigation, 44 Law & Soc’y Rev. 731, 760 (2010).

⁵¹ Malcolm M. Feeley & Van Swearingen, The Prison Conditions Cases and the Bureaucratization of American Corrections: Influences, Impacts and Implications, 24 Pace L. Rev. 433, 466­–­­75 (2004).

⁵² See,e.g., Ross Sandler & David Schoenbrod, Democracy by Decree: What Happens when Courts Run Government (2003); Dennis C. Vacco et al., Letter to the Editor, Free the Courts from Frivolous Prisoner Suits, N.Y. Times, Mar. 3, 1995, at A26 (letter from Attorneys General of New York, Nevada, Indiana, and Washington).

Subscribe today

Already a subscriber? Login