THE JOURNAL OF NIC'S LARGE JAIL NETWORK

Foreword

e

X
c

h
a

1

Inmate Litigation:
Results of a National Survey

13

Responding to Inmates with Mental Illness:
Resources for Jail Administrators

18

National Standards Provide Guidance for
Detention ofAliens

2 'I

Putting Public Health Services
into Practice in the Jaif

28

Corrections Demonstration Project Fosters
Collaboration on HIV in the Community

34

Keeping Cops on the Street with
Regional Processing

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Large

LJN Exchange
Annual Issue 2003

J", This JsslAe

Richard Geaither, National Institute of Corrections Jails Division

Foreword

1

13

Margo Schlanger, Harvard law School

Inmate Litigation: Results of a National Survey

Daniel Souweine, Council of State Governments

Responding to Inmates with Mental Illness:
Resources for Jail Administrators

Staff of the Bureau of Immigration and Customs Enforcement

18

21

28

34

National Standards Provide Guidance for
Detention of Aliens

The Medical Staff of Hampden County Correction Center
and Abt Associates

Putting Public Health Services
into Practice in the Jail

Roberto Hugh Potter, Centers for Disease Control and Prevention

Corrections Demonstration Project Fosters
Collaboration on HIV in the Community

Milton M. Crump, Prince George's County Department of Corrections

Keeping Cops on the Street with
Regional Processing

Inmate
Litigation:
Results of a National Survey

O

ver the summer of 2001, I conducted a survey of jail and prison systems
about experiences with civil litigation brought by inmates. I recently incorporated some of the results of that survey in a comprehensive look at
non-class action federal civil rights litigation brought by inmates (see Margo
Schlanger, Inmate Litigation, 116 Harv. L. Rev. 1555 (2003), available at
http://www.law.harvard.edu/faculty/schlanger/). Here I report in a more focused
way on those results. (There is not room here for comprehensive analysis, but I
hope to publish a fuller discussion in the fall. The survey instrument itself, along
with other relevant information, is available at the same website.)
I distributed the survey to all 50 state prison systems and all the members of
the Large Jail Network. I received responses from over half the agencies in each
category, an acceptable if not stellar response rate. The results reported here are
for 27 state prison systems and 44 large jails (defined, for my purposes, as jails
with an inmate count over 1,000 at midyear 1999). The sample demonstrates
good regional coverage and no major skew as far as size of inmate population.
It’s worth noting, however, that the prison surveys were completed largely by
lawyers, and the jail surveys largely by high-ranking corrections officials (superintendents, sheriffs, and their second and third in commands, judging by the job
titles). This may be important for proper interpretation of the results.

by
Margo Schlanger,
Assistant
Professor of Law,
Harvard Law
School

Amount of Litigation
One of the key questions about inmate litigation is just how often correctional
agencies and their staff are sued. The answer, it turns out (unsurprisingly) varies
by agency—but it varies even more by the type of agency: jail or prison. That is,
although the surveys evidence a good deal of variation among large jails and
among prisons, there is even more difference between the categories.

LJN Exchange 2003

1

The survey asked, “About how many individual inmate lawsuits . . . are filed
against your jurisdiction/facility in a year?” While nearly all the prison responses
reported that their prison systems become defendants in inmate lawsuits
dozens, even hundreds of times each year, jail surveys reported far less litigation. Nearly 90% of the large jails that reported their number of inmate lawsuits
per year reported fewer than 50. Part of the explanation is that jails are smaller
than prison systems, but even controlling for size, jails are sued less than prisons. I used the answers and each agency’s average daily population as reported
to the Bureau of Justice Statistics to compute a litigation rate—annual lawsuits
per 1,000 inmates—for each survey participant. Among the prison sample, the
average annual litigation rate was 27 per 1000 inmates, but for large jails the
corresponding figure was just 7. Table 1, below, more fully sets out the distribution of litigation rates across the responding agencies. The last column of Table 1
demonstrates that the jails with the highest rate of litigation per inmate reported
about the same amount of litigation as the median prison system.

Table 1. Litigation rates—lawsuits per 1,000 inmates per year
10th
percentile

25th
percentile

50th
percentile

75th
percentile

90th
percentile

Large jails (n = 44)

2

3

5

9

18

Prisons (n = 27)

6

12

19

38

71

Interestingly, the results from a similar question about class actions (which
covered 3 years, instead of 1 year) suggest that class actions follow a very different pattern. The median class action litigation rate—that is, the number of class
actions per inmate per year—reported by prison agencies was under 0.5 per
10,000 inmates; for large jails, it was nearly twice as high.

Topics of Litigation
Individual and class action litigation. The survey asked participants to check
off each topic about which their agencies had been sued over the past 3 years.
The reported topics of lawsuits will not be terribly surprising to any experienced
observer. In Table 2, page 3, each column sets out the percentage of facilities
that reported at least one individual or class action lawsuit on a given topic,
followed by the rank of that topic’s incidence in that column. (The topics are
listed in their rank order for individual actions against large jails; blanks indicate
that no survey response listed the topic.)
While there are no major surprises in the table, the first-place ranking of
medical care lawsuits in each column is important. It’s also worth pointing out
that among large jails, crowding and suicide cases rank only seventh—somewhat lower than I, at least, would have predicted. Also, the differences between
jails and prisons are notable. In particular, in non-class action cases, claims
about religion rank far higher in prisons than in large jails (first, compared to
twelfth), as do claims about disciplinary procedures (fourth, compared to

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LJN Exchange 2003

Table 2. Litigation topics—individual and class action lawsuits.
Percentage and (rank) of responding agencies with any litigation on topic.
Large Jail

Prison

Individual
(n = 44)

Class action
(n = 13)

Individual
(n = 27)

Class action
(n = 14)

Medical care

91% (1)

14% (1)

89% (1)

26% (1)

Use of force

80% (2)

89% (1)

19% (3)

Personal injury

70% (3)

81% (4)

Loss or damage to property

66% (4)

Inmate-on-inmate violence

64% (5)

Law library services

41% (6)

Crowding

36% (7)

Suicide prevention

36% (7)

33% (22)

11% (6)

Sanitation/living conditions

32% (9)

59% (13)

4% (17)

Food services/nutrition/diet

30% (10)

2% (6)

Disciplinary procedures

27% (11)

2% (6)

81% (4)

7% (13)

Sex (w/officer)

25% (12)

2% (6)

56% (15)

7% (13)

Religious programs or policies

25% (12)

89% (1)

15% (4)

Other

25% (12)

33% (22)

Search policies

20% (15)

Disciplinary segregation

20% (15)

Visiting, mail, phone

18% (17)

Totality of conditions

18% (17)

Administrative segregation

16% (19)

67% (10)

11% (6)

Security staffing

11% (20)

26% (25)

11% (6)

Recreation

11% (20)

37% (20)

7% (13)

Access to lawyers

11% (20)

44% (19)

11% (6)

Race discrimination

9% (23)

67% (10)

4% (17)

Protective custody

9% (23)

59% (13)

7% (13)

Counseling

9% (23)

33% (22)

15% (4)

Other library services

5% (26)

Gender equity

2% (27)

Fire safety

81% (4)
5% (4)

63% (12)
78% (8)

11% (6)

7% (3)

52% (16)

22% (2)

9% (2)

2% (6)

5% (4)

2% (6)

2% (6)

4% (17)

78% (8)

37% (20)

4% (17)

48% (17)

11% (6)

81% (4)

4% (17)

48% (17)

11% (6)

7% (28)
22% (26)

4% (17)

11% (27)

eleventh), visiting, mail, and phone privileges (fourth, compared to seventeenth),
administrative segregation (tenth, compared to nineteenth), race discrimination
(tenth, compared to twenty-third), and protective custody (thirteenth, compared
to twenty-third). All of these differences make sense in light of the longer period
of time inmates spend in prisons. Note that because prisons are sued more
often, even the low-ranking subjects are still fairly common as topics for lawsuits
among prison systems, though not among large jails. As for the class-action litigation, the surveys reported many fewer such cases, but with topics that recur in
similar patterns, except that crowding ranks noticeably higher.

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3

Table 3. Court order topics—percentage of agencies reporting each court
order topic and (rank)
(Percentages based on total number of agencies reporting any court order)
Large Jail

Prison

Current orders,
as of 2001,
(n = 19)

Lifted orders,
1996 - 2001
(n = 9)

Current orders,
as of 2001,
(n = 18)

Lifted orders,
1996 - 2001
(n = 20)

Crowding

74% (1)

67% (1)

44% (3)

40% (3)

Medical care

68% (2)

22% (2)

56% (1)

65% (1)

Disciplinary procedures

37% (3)

Security staffing

37% (3)

Law library services

32% (5)

Use of force

32% (5)

Administrative segregation

26% (7)

Sanitation/living conditions

26% (7)

11% (3)

Food services/nutrition/diet

26% (7)

11% (3)

11% (17)

35% (5)

Recreation

26% (7)

11% (3)

11% (17)

25% (10)

Religious programs or policies

21% (11)

50% (2)

20% (12)

Visiting, mail, phone

21% (11)

33% (5)

35% (5)

Disciplinary segregation

21% (11)

17% (12)

20% (12)

Counseling

21% (11)

17% (12)

20% (12)

33% (5)

30% (8)
20% (12)

11% (3)

11% (3)

44% (3)

20% (12)

22% (9)

20% (12)

28% (7)

30% (8)

22% (9)

40% (3)

Suicide prevention

21% (11)

6% (21)

15% (19)

Access to lawyers

16% (16)

22% (9)

20% (12)

Search policies

16% (16)

17% (12)

10% (23)

Totality of conditions

16% (16)

17% (12)

45% (2)

Sex (w/officer)

16% (16)

11% (17)

5% (25)

Protective custody

16% (16)

6% (21)

20% (12)

Other

11% (21)

28% (7)

Inmate-on-inmate violence

11% (21)

Fire safety

5% (23)

Other library services

5% (23)

Loss or damage to property

5% (23)

Race discrimination

5% (23)

11% (3)

15% (19)

11% (3)

Gender equity

17% (12)

25% (10)

6% (21)

15% (19)
10% (23)
5% (25)

11% (17)

Personal injury

15% (19)
5% (25)

Court order litigation. At some point since the 1970s many—even most—
corrections agencies have been regulated by the terms of a court order. The
survey results suggest that the topics of these orders are somewhat different
than the topics of lawsuits more generally. Table 3 shows topics of court orders,
dividing them into orders still operative at the time of the survey and those lifted
between 1996 and 2001. It suggests that among both jail and prisons, crowding
in particular is far more common as a topic of court orders than of non-order litigation (that is, crowding ranks far higher in this table than in Table 2).
Disciplinary procedures and security staffing are also more prominent in Table 3
than in Table 2.

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LJN Exchange 2003

Litigation Outcomes
Individual lawsuits. The survey asked whether agencies had, over the past
3 years, settled any inmate case “for more than token damages,” and whether
they had lost any trials in an inmate case in the same period of time. Again,
experiences varied.
Table 4. Individual inmate lawsuit settlements and trial losses
A. No settlements

B. Settlements

1. No trial losses

2. Trial losses

1. No trial losses

2. Trial losses

Large jails (n = 44)

42%

8%

44%

6%

Prisons (n = 27)

25%

4%

17%

54%

Table 4 sets out the full results. The agencies grouped in the first two columns
(headed “A. No Settlements”) reported that over the prior 3 years, they had not
settled even a single individual inmate case. Those in the first column (headed
“1. No trial losses”) had also not lost any cases at trial, while those in the second
column had lost at least one case at trial. The last two columns (headed “B.
Settlements”) are set up similarly and complete the picture.
The difference between the jail and prison samples appears very large. First,
more of the prison systems (71%) than the large jails (50%) reported settling
cases. This may simply be a function of the greater amount of litigation faced by
prison agencies, already discussed. More dramatic, however, is the trial-loss
differential between large jails and prisons: 58% of prison systems reported
losing at least one trial (see A2 + B2, or 4% + 54%), compared to just 14% of
jails (8% + 6%). It seems doubtful that the explanation for this differential is that

Table 5: Topics of individual inmate lawsuit settlements and trial losses
Large jails
(n = 32)

Prisons
(n = 31)

Medical care

11

16

Use of force

11

13

Inmate-on-inmate violence

6

9

Sex (with officer or staff)

6

8

Personal injury

4

12

Overdention

4

1

Suicide

3

4

Loss or damage to property

3

3

False arrest/imprisonment

3

2

Disciplinary procedures

2

4

Search policies

0

3

LJN Exchange 2003

5

jails win their cases more often than prisons—rather, I suspect that jails are more
reluctant to go to trial at all. Similarly, the fact that 44% of large jails have settled
cases without experiencing any trial losses at all supports the reputed disinclination of jail administrators/ lawyers to take cases to trial.
Table 5, page 5, summarizes the topics of the settlements and trial losses; it
lists each topic that appeared more than once in either the jail or prison samples.
As far as the amount of money paid out in settlements, the survey respondents provided less information. Of 27 prison systems, six (6) reported no
non-token losses or settlements; only 11 additional systems provided any information on the amount of damages. Of 44 large jails, 18 reported no non-token
losses or settlements; only 14 additional agencies provided any information on
the amount of damages. Each group had one outlier agency. (A very large prison
system reported about $30 million in damages paid out over 3 years, and a very
large jail system reported about $7 million in damages in the same period.)
Excluding those outliers, the experience reported even by those who characterized their losses as “non-token” was of more modest damages, with large jails
experiencing much larger annual losses than prisons. Table 6 provides details:
Table 6. Individual inmate litigation—annual damages paid
(distribution among responding agencies, excluding outliers)
10th
percentile

25th
percentile

50th
percentile

75th
percentile

90th
percentile

Large jails (n = 14)

$10,000

$25,000

$66,667

$250,000

$633,333

Prisons (n = 11)

$4,703

$12,417

$35,508

$87,657

$130,063

Class actions. The results for similar questions about class actions are also
interesting. Most strikingly, all but one jail that participated in class action litigation over 3 years had also settled at least one class action case (though none
had experienced a class action trial loss), whereas fewer than half the prison
systems that participated in class action litigation either settled or lost a class
action case. This suggests that although class actions are less common among
jails, they may be more consequential.
The results also confirmed that the stakes in class action litigation are quite
high compared to those of individual cases. Those few jurisdictions that reported
the amounts they paid out for damages or attorneys’ fees in class action settlements listed dollar amounts in the hundreds of thousands or even millions.

Table 7. Incidence and termination of court orders—percentage of
respondents

6

Jurisdictions with court orders

Jurisdictions with recent
terminations of court orders

Large jails (n = 44)

41%

15%

Prison (n = 27)

67%

73%

LJN Exchange 2003

Court orders. The survey asked, “Does your facility/jurisdiction currently have
any court orders (including consent decrees or other settlement agreements)
governing any aspect of operations?” and “Has your facility/jurisdiction had any
court orders governing any aspect of operations lifted . . . since 1996?” Court
orders turned out to be very common, as the first column of Table 7, page 6,
demonstrates, and more so among prison systems—41% of jail responses and
67% of prison responses reported current court orders as of 2001. (Note,

Table 8. Litigation-related policy changes described by survey respondents
Individual litigation policy changes
Large jails

Prisons



Revised use of force policy and hardened disciplinary penalties for 
excessive or inappropriate force.

Allowed women inmates to live in a previously all-male minimum
security facility.



Improved access to law library; improved recreation area.



Examined release of inmates who are on psychiatric medications.

Housed inmates in county jails; state supreme court wants faster
movements into prisons.



Changed administrative system to remove final authority from staff. 
Grievances may be forwarded to the county solicitor, who determines 
if civil rights were violated. If so, matter is referred to the complaint

review board and/or county prison board.

Changed use of force policy.

Changed use of force reporting and suicide policy.

Changed transportation rules and policy.

Made adjustments in medical services.

Changed medical practices. Modified use of force, discipline, search,
and other operational policies due to court rulings from other

jurisdictions.













Changed the way in which inmate property is tracked.


Changed medical/mental health intake screening form and practices;

provided access to TDD phones.
Changed critical incident reporting of events, use of videotaping 
incident, and use of restraint chair.




Application of disciplinary sanction for restitution of damaged property.



Changed strip search requirements.



Added a general counsel position at the directors' level.

Changed policy and practice on suicide prevention.
Addressed religious issues.
Changed policy on collection of urine samples.
Changed strip search policy.
Modified property policy.
Removed weight bars from institutions.
Modified the disciplinary process.
Changed policies on religious practices, e.g., providing a religious
exemption to the rule that male inmates must have short hair.
Instigated a liability response unit within Legal Affairs to conduct
litigation management of approx. 2,400 pending inmate civil lawsuits.
Introduced Risk Management component.
Changed bulk rate mail policy.
Modified medical policies.
Changed policies on property retention and destruction.

Class action policy changes
Large jails

Prisons



Revamped medical policies and procedures.



Changed medical care vendors; changed procedures and practices to 
include increasing available HIV medications in the pharmacy,
increasing testing procedures for STDs, and changing dental practices.

Changes involved a population cap and medical services.





Changes involved sexual harassment and hearing impaired inmates
(ADA).



Modified search policies; changed demographic percentages in
housing units.



Changed policy re: use of restraint chair.



Changed strip search procedures; tightened up on times for release.



Began providing public school education in our jail.



Made substantial changes in staffing and method of inmate
supervision.



Improved provision of mental health services for inmates.
Changes involved forced medication; double bunking; medical staffing;
and mental health care.
Changed our publications procedure.
Changes involved contract medical services, policies for AIDS/HIV,
and religious programming to provide contract Muslim services.



Reduced dependency on prison law libraries; fewer materials
available, and inmates have improved access to attorneys. Improved
barbershop sanitation practices.



Changed use of the Inmate Calling System based on a temporary
restraining order. The class in this state court class action was
decertified 11 months later, but the changes remain in place.



Modified female programs and protective segregation policy.

LJN Exchange 2003

7

however, that because reported prison court orders may well apply to just one of
many prisons in the system, this distinction may be somewhat spurious.) What is
more interesting is the second column, which demonstrates that the prisons
were far more likely than jails to get orders lifted—73% of prison systems and
just 15% of jails had seen court orders closed out in the preceding 5 years.

Impact of Inmate Litigation
Operational impact. The survey asked questions about the operational impact
of litigation, directing the questions at individual (non-class action) litigation,
class action litigation, and court orders.
For individual and class actions, the questions were free-form: “Has your
department changed any policies/procedures/practices as a result of individual
inmate [and class action] lawsuits?” About 70% of survey respondents, for both
large jails and prisons, answered yes with respect to individual lawsuits; of those
who reported experience with class action litigation, a similar proportion (slightly
lower for jails) also answered yes. Many provided details, which show that the
changes range from small to quite significant.
Table 8, page 7, paraphrases the changes described by survey respondents.
In both jails and prisons, they can be categorized into three types. First are
changes relating to the management of the litigation itself—litigation staffing by a
new General Counsel, or risk management section; ensuring that evidence is
developed by videotape, and so on. Second are general managerial changes,
designed to improve the administration’s supervision of line staff—augmented
reporting requirements, for example. By far the most common changes reported
are of a third conceptual type: substantive, operational changes. Medical and
mental health care are the most common topics in this category, but use of force,
strip searches, and a few other issues make repeat appearances as well.
The survey also asked about the operational impact of court orders, both
current and recently lifted. Responses are also reported in Table 8. The survey
separated out several possible results—hiring additional personnel, building new
housing areas, reducing population, altering programming, or some other kind of
change. A majority of both responding jails and prisons with court orders
reported hiring additional personnel as a result—both security and medical care
were the common augmented staffing areas. New housing and population reduction were even more prevalent than staffing increases among reporting jails, but
less so among reporting prisons. (Recall, however, that prisons were more likely
to have court orders in the first place.) A majority of prisons with court orders (but
a much smaller portion of jails) reported altering their programming as a result.
Overall impact/burden. The survey asked two initial questions about the
burdens imposed by individual inmate litigation and class action litigation. The
first question asked, “How important is your department’s interest in
avoiding/managing individual inmate [or class action] lawsuits for policy development or other planning?” The second question asked, “How burdensome are

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LJN Exchange 2003

individual [or class action] lawsuits for your department?” The answers, summarized in Table 9, suggest that although litigation is of real importance to both jail
and prison agencies as they develop policy, the burden the litigation poses is
definitely manageable.
Comparing jails and prisons, jail officials apparently tend to attach greater
importance to the litigation and find dealing with it a more significant burden.
(Recall, moreover, that the surveys in the prison sample, but not those in the jail
sample, were filled out by lawyers.) The class action responses, though interesting, should be interpreted with caution, because so few of the survey-takers
answered the questions.

Table 9. Importance and burden of litigation—percentage of survey
respondents and (number)
Importance

Individual litigation

Class action litigation

Burden

Large jails

Prisons

Large jails

extremely

52% (12)

28% (5)

11% (2)

Prisons
5% (1)

quite

30% (7)

28% (5)

50% (9)

27% (6)

somewhat

17% (4)

44% (8)

33% (6)

59% (13)

not very

0% (0)

0% (0)

6% (1)

9% (2)

not at all

0% (0)

0% (0)

0% (0)

0% (0)

extremely

53% (21)

18% (3)

17% (3)

33% (5)

quite

25% (10)

41% (7)

11% (2)

13% (2)

somewhat

13% (5)

29% (5)

28% (5)

27% (4)

not very

5% (2)

6% (1)

17% (3)

13% (2)

not at all

5% (2)

6% (1)

28% (5)

13% (2)

The survey also asked respondents to rate, on a five-point scale, the impact
of their current and recently terminated court orders on inmate behavior, inmate
health, physical plant, staff morale, and overall functioning of their agency (1
being the most negative rating and 5 the most positive). Results for this question
appear in Table 10:

Table 10. Impact of court orders on agency
Large jails
No impact

Prison

Impact rating

No impact

Impact rating

n

n

median

n

n

median

Inmate behavior

5

11

3.7 (4)

10

10

3.5 (3)

Inmate health

3

14

4.0 (4)

5

16

3.9 (4)

Physical plant

4

14

3.9 (4)

5

16

3.8 (4)

Staff morale

2

14

2.9 (3)

5

15

3.5 (4)

Overall functioning

2

15

3.8 (4)

3

18

3.8 (4)

LJN Exchange 2003

9

Survey-takers reported that court orders were largely beneficial to their agencies’ mission. Nearly all the ratings were 3s (the midpoint) or above—only one
respondent rated any of the impacts of court orders as 1, the most negative, and
very few gave even 2 ratings. The one exception is on the ratings on the impact
of court orders on staff morale. Three of 15 jail respondents and 5 of 14 prison
respondents gave court orders a 2 rating on this topic.

Effects of the Prison Litigation Reform Act
Individual and class action litigation. The survey asked about the impact of
the Prison Litigation Reform Act (PLRA) on the total number of lawsuits (individual and class action); the proportions of those lawsuits that are frivolous; and the
burden created by each type of lawsuit. The results were strikingly different for
jails and prisons, with jail survey-takers far more likely to report no impact. Table
11 presents the results. (Because the prison but not the jail surveys were
frequently filled out by lawyers, it is possible that these results are an artifact of
lawyers’ greater sensitivity to the PLRA’s litigation impact, rather than any deep
difference between jails and prisons.)
Table 11. Impact of the PLRA—percentage of respondents who
experienced “no impact”
Large jails
n (% of respondents)

Prisons
n (% of respondents)

No impact on individual lawsuits

21 (48%)

2 (7%)

No impact on class actions

32 (73%)

6 (22%)

Among those survey-takers who did report that the PLRA had changed their
experience, nearly all reported a decrease in number, frivolous proportion, and
burden. The most interesting aspect of these results is that more survey-takers
noticed a decline in the number of lawsuits and the proportion of frivolous cases
than reported a decline in the burden lawsuits posed.
Table 12. Termination status of current court orders
Termination sought,
case is pending

Termination sought,
rejected by court

Termination
not sought

Large jails (n = 17)

18%

12%

71%

Prisons (n = 17)

59%

0%

41%

Court orders. It’s clear that the PLRA has opened up opportunities for agencies
to end the operation of court orders. Of the 18 prison surveys that reported the
legal process by which court orders had been lifted since 1996, two-thirds
reported that “termination [was] sought and granted under the PLRA.” The

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LJN Exchange 2003

remaining third reported that the orders had expired on their own terms or were
terminated because their agencies had been in substantial compliance. Only six
jail surveys answered this question, but their answers were similar: five of the six
reported that termination was under the PLRA; the remaining one reported termination due to compliance.
Nonetheless, as Table 7 demonstrates, a good many orders remain in operation. The survey results provide some insight into why. The survey asked of each
respondent who had reported one or more current order, “Has your facility/jurisdiction recently sought termination of the [current] orders, under the Prison
Litigation Reform Act?” As one might predict from Table 7, substantially more of
the jail respondents reported that their agencies had decided to forego opportunities to get court orders lifted.
Table 12, page 10, presents fuller data. The survey asked respondents whose
jurisdictions had decided not to seek termination to explain why. The answers
sort into three types: (1) the orders are useful to the agency, because they help
to control population or help prevent individual litigation; (2) the orders are not
very onerous to the agency; (3) the PLRA’s termination provisions are not applicable, either because the order is new, or (one can infer) because it is a state
court, state law order not governed by the PLRA. The third category is applicable
to several jail responses, but no prison responses.

Litigation’s Importance to Corrections
Since passage of the PLRA, the federal court civil rights inmate docket has shrunk
by 40%. But the results of this survey establish that litigation remains extremely
important to correctional administrators. It is clear that agencies continue to
respond to the fact and prospect of damage and injunctive actions by seeking to
avoid lawsuits, by hiring various kinds of staff to respond to litigation, and by
reforming policy and supervision in areas that turn out to pose litigation risks.
On the details about how inmate litigation works—its prevalence, topics,
outcomes, and impact—different observers will be struck by different aspects of
the findings. For me, the most interesting results are:
 Problems in medical care are the preeminent topic of litigation and court
orders, for both jails and prisons.
 Jails and prisons report quite different trial experiences: only 14% of large
jails reported trial losses, compared to 58% of prisons.
 Both jails and prison respondents report a fairly low amount of damages
paid annually, but jails report damage levels notably higher than those in
the prison sample.
 Court orders continue to be very prevalent, and prisons are far more likely
than jails to seek termination of the orders.

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 Both jail and prison respondents rated both individual and class action litigation high in importance to their agencies.
 Jail respondents were more likely to consider individual litigation burdensome, but less likely to consider class action litigation burdensome.
 Both jail and prison respondents reported that court orders were largely
beneficial to their agencies’ mission.
 Nearly half of the jail respondents, but hardly any of the prison respondents, reported no impact of the PLRA on the number, frivolous
proportion, and burden posed by individual and class action lawsuits. 
Acknowledgements
The survey described in this article could not have been successful without the
assistance of Richard Geaither, coordinator of NIC’s Large Jail Network, Steve
Ingley, Executive Director of the American Jail Association, and Bill Collins, editor
of the Correctional Law Reporter, or without the support of the Harvard Law
School summer research fund. And of course I am extremely grateful to the large
number of correctional agency officials who gave their time to answering this quite
extensive survey. Harvard Law students Sara Zausmer and Michelle Petersen
provided able research assistance.

For more information:
Margo Schlanger
Asst. Professor of Law
Harvard Law School
1563 Massachusetts
Cambridge, MA 02138
(617) 495-4626
mschlang@law.harvard.edu

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