On April 23, 2022, UCLA law professor Sharon Dolovich delivered the keynote address at a Prisoner Rights and Prison Conditions symposium. She cited the challenges faced by attorneys who pursue prisoners’ rights litigation—an area of law “stacked a mile high against plaintiffs”—including numerous and onerous provisions of the Prison Litigation Reform Act, 42 U.S.C. § 1997e. Enacted in 1996, PLRA was intended to reduce frivolous lawsuits filed by prisoners; instead, it chilled all prisoner litigation and limited judges’ authority to order remedies in their cases, irrespective of the merits of their claims.

The courts—from the Supreme Court of the U.S. and down—have established pleading standards and case law adverse to incarcerated plaintiffs, reluctant to credit prisoners’ testimony or evidence while taking the arguments of prison officials at face value. It is often only in the most egregious cases, where the actions of prison staff simply cannot be justified and the evidence against them is overwhelming, that prisoners prevail.

As a result, prison-related litigation is rarely successful—and attorneys who pursue this area of law are “driven by a profound sense of personal mission and derive deep satisfaction from advocating on behalf of a group that society so often regards as undeserving of humane treatment,” Dolovich noted. But their work is vital for the prisoners they represent and for society because it upholds the rights inherent in a constitutional democracy.

Those include the right to be free of abusive government power, including cruel and unusual punishment prohibited by the Eighth Amendment. Specifically, Dolovich identified three areas where attorneys have contributed to strengthening constitutional values.

First, they shed light on dark spaces within prisons rarely seen by the public. Prison walls not only keep prisoners from getting out; they also prevent people on the outside from looking in. Through court pleadings, discovery, site visits and settlement monitoring, attorneys can open a window into prison environments through which reporters and the public can peer. Testimony and evidence produced during trials in prison conditions lawsuits, for example, often get reported by the mainstream news media.

Second, lawyers in prisoners’ rights cases occupy the role of watchdog: “By their presence, they remind corrections officials that there are people who are paying attention and standing ready to challenge abuses,” Dolovich said. For example, she described a Florida case against prison administrators who canceled a contract whereby prisoners could purchase digital music, effectively deleting four million songs they had bought. Attorneys with the Florida Justice Institute intervened, filed suit and eventually prevailed—resulting in compensation to over 11,000 mostly impoverished prisoners.

Third, attorneys who practice prison law “validate the dignity and self-respect of their clients against the prison’s systematic dehumanization of those in custody.” Even when litigation is unsuccessful, the very act of filing a lawsuit—acknowledging the violation of prisoners’ rights—can affirm their humanity. Prisoners who sue want recognition of the abuses they experienced; they want to testify in court and have their voices heard whether they win or lose. Breaking the code of silence among prison officials and exposing what happens behind prison walls can provide moral recognition for the incarcerated of the injustices they bear.

In summary, Dolovich wrote, “by advocating on behalf of the incarcerated, legal advocates increase the ability of people in custody to live free from fear.” The attorneys who practice in this area of law provide invaluable services not only to the incarcerated but also to the legal profession and criminal justice system, as well as the constitutional principles that in theory apply to all Americans, whether imprisoned or not. See: How Prisoners’ Rights Lawyers do Vital Work Despite the Courts, Univ. of St. Thomas Law Journal (2023).  

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