Prisoners’ Rights Lawyers’ Strategies for
Preserving the Role of the Courts
MARGO SCHLANGER*
This Article is part of the University of Miami Law Review’s Leading from Below Symposium. It canvasses prisoners’ lawyers’ strategies prompted by the 1996 Prison Litigation Reform Act (“PLRA”).
The strategies comply with the statute’s limits yet also allow U.S.
district courts to remain a forum for the vindication of the constitutional rights of at least some of the nation’s millions of prisoners.
After Part I’s introduction, Part II summarizes in several charts the
PLRA’s sharp impact on the prevalence and outcomes of prison litigation, but demonstrates that there are still many cases and situations in which courts continue to play a role. Part III looks at three
methods by which plaintiffs and defendants can jointly obtain injunctive-type relief in prison cases—by crafting stipulations that comply
with the PLRA’s constraints, by structuring the relief as a conditional
dismissal, or by setting up the possibility of state-court enforcement.
Part IV examines plaintiffs’ coping methods for the PLRA’s provisions that ease the path to termination of decrees, whether litigated
or by consent. Two types of preparation for a termination motion
have emerged: First, the parties sometimes agree to stretch out the
remediation period more than the PLRA’s default two years. Second,
plaintiffs have worked to ensure that they are collecting sufficient
information to inform their potentially hurried response to a termination motion. It is my hope that the examples presented below can help
counsel and judges in prisoners’ rights cases thread the needle that
the PLRA presents. More theoretically, the examples demonstrate
that litigation tactics and procedures are dynamic—that rule changes
affect the parties’ bargaining positions but rarely eliminate bargaining altogether.
I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
II. TRENDS IN PRISONER LITIGATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
III. ENTRY OF RELIEF, INCLUDING SETTLEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
A. What the PLRA Requires . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
B. How Parties Continue to Settle Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

520
522
526
526
528

* Henry M. Butzel Professor of Law, University of Michigan. Thanks to Grady Bridges for
data management assistance, and to John Boston and David Rudovsky for comments. And thanks
to the participants in the University of Miami Law Review’s Leading from Below Symposium for
their feedback on the presentation that preceded this Article. Like that Symposium, this Article is
dedicated to Judge Jack Weinstein, who needs less help from lawyers than anyone has any right to
expect. I wish to acknowledge the generous support of the William W. Cook Endowment of the
University of Michigan.

519

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1. ACCEPTABLE STIPULATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2. CONDITIONAL DISMISSAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3. STATE-COURT ENFORCEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
IV. TERMINATION OF PROSPECTIVE RELIEF . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
A. What the PLRA Requires . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
B. How the Prisoners’ Rights Bar Has Responded, and Should Respond . . . .
1. LENGTHENING THE REMEDIAL PERIOD . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2. GATHERING INFORMATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
V. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
APPENDIX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
A. Federal Court Filings (Table 1 & Figure A) . . . . . . . . . . . . . . . . . . . . . . . . .
B. Prison Population (Table 1 & Figure A) . . . . . . . . . . . . . . . . . . . . . . . . . . . .
C. Jail Population (Table 1 & Figure A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
D. Prison Censuses (Table 2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
E. Jail Censuses (Table 2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

528
534
539
541
541
543
544
546
550
552
552
553
554
556
556

I. INTRODUCTION
In 1996, Congress imposed draconian restrictions on the litigated
remediation of unconstitutional conditions of confinement in jails and
prisons. The Prison Litigation Reform Act (“PLRA” or “Act”),1 a statute
enacting part of the Newt Gingrich “Contract with America,”2 made it
harder for prisoners to bring, settle, and win lawsuits.3 The PLRA conditioned court access on prisoners’ meticulously correct prior use of onerous and error-inviting prison grievance procedures.4 It increased filing
1. Prison Litigation Reform Act, Pub. L. No. 104-134, §§ 801–810, 110 Stat. 1321, 1321-66
to -77 (1996) (codified at 11 U.S.C. § 523 (2012); 18 U.S.C. §§ 3624, 3626 (2012); 28 U.S.C.
§§ 1346, 1915, 1915A (2012); 42 U.S.C. §§ 1997–1997h (2012)). The PLRA was part of the
Omnibus Consolidated Rescissions and Appropriations Act of 1996, Pub. L. No. 104-134, 110
Stat. 1321.
2. CONTRACT WITH AMERICA: THE BOLD PLAN BY REP. NEWT GINGRICH, REP. DICK ARMEY,
AND THE HOUSE REPUBLICANS TO CHANGE THE NATION 53 (Ed Gillespie & Bob Schellhas eds.,
1994).
3. 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].
4. 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
Woodford 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); Kermit Roosevelt III, Exhaustion Under the Prison Litigation Reform Act: The
Consequence of Procedural Error, 52 EMORY L.J. 1771 (2003); Alison M. Mikkor, Correcting for
Bias and Blind Spots in PLRA Exhaustion Law, 21 GEO. MASON L. REV. 573 (2014); Eugene
Novikov, Comment, Stacking the Deck: Futility and the Exhaustion Provision of the Prison
Litigation Reform Act, 156 U. PA. L. REV. 817 (2008); Giovanna Shay, Exhausted, 24 FED.
SENT’G REP. 287 (2012).

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PRISONERS’ RIGHTS LAWYERS’ STRATEGIES

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fees,5 decreased attorneys’ fees,6 and limited damages.7 It subjected
injunctive settlements to the scope limitations usually applicable only to
litigated injunctions.8 It made population caps—previously common—
far more difficult to obtain.9 And it put in place a rule inviting frequent
relitigation of injunctive remedies, whether settled or litigated.10
All of this together has had a very drastic effect on jail and prison
litigation. Filings took an immediate dive in 1996 and decreased steadily
for a number of years subsequent; more recently, there has been a plateau.11 And court orders governing jail and prison conditions have
grown much rarer.12 Yet district judges continue to enter and enforce
remedies against unconstitutional conditions of confinement. They are
able to do this in large part because there remains an active prisoners’
rights bar continuing to litigate in federal district courts.
I have previously written to urge observers to remember that American judges are far from autonomous:
[T]he rules of litigation largely confine judicial response to the record
developed and the arguments presented by the parties; for a plaintiff’s
judgment, there must be a connection between the order a court
5. 28 U.S.C. § 1915(b) (excluding prisoners from the ordinary in forma pauperis ability to
file without payment of fees). See 28 U.S.C. § 1914(a) (2012) (setting the fee for a district court
civil action at $350).
6. 42 U.S.C. § 1997e(d)(2)(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. 42 U.S.C. § 1997e(d)(2); see, e.g., Robbins v. Chronister, 435 F.3d 1238
(10th Cir. 2006) (en banc) (reversing district court and disagreeing with appellate panel, holding
that this limitation applies even to fees awarded for a lawsuit involving a pre-incarceration claim).
At least one court has held, however, that the statutory text does not support this latter limitation.
Harris v. Ricci, 8 F. Supp. 3d 583 (D.N.J. Mar. 28, 2014), rev’d in part, Nos. 14-1998, 14-2102,
2014 WL 7389905 (3d Cir. Dec. 30, 2014).
7. 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 or the commission of a sexual act.”). 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).
8. 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.”). See infra Part III.A.
9. 18 U.S.C. § 3626(a)(3) (setting out procedural and substantive hurdles to obtaining a
“prisoner release order”); see also Brown v. Plata, 131 S. Ct. 1910 (2011) (affirming imposition of
such an order in California).
10. 18 U.S.C. § 3626(b) (allowing defendants in prison conditions cases to periodically seek
“termination” of previously entered injunctions). See infra Part IV.A.
11. See infra Table 1.
12. See infra Table 2.

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[Vol. 69:519

issues, and the claims, evidence, and requested relief plaintiffs’ counsel submits. . . . [T]he identity, priorities, litigating strategies, and
resources of plaintiffs’ counsel have been of great importance to the
shape and success of litigated prison reform.13

Judges in prison and jail cases, I argued, have “generally acted by following a path proposed by plaintiffs’ counsel and by building on the
foundation laid at trial.”14 In the years since passage of the PLRA, and
faced with the kind of court-stripping Congress attempted with that statute,15 judges need assistance from the parties more than ever. It is for
this reason that this Article about the strategies the PLRA has prompted
prisoners’ lawyers to use in injunctive cases fits as part of this Symposium exploring federal district judges’ roles. The strategies comply with
the statute’s limits and also allow U.S. district courts to remain a forum
for the vindication of the constitutional rights of at least some of the
nation’s millions of prisoners. It is my hope that the examples presented
below can help counsel and judges in prisoners’ rights cases thread the
needle that the PLRA presents.
II.

TRENDS

IN

PRISONER LITIGATION

The PLRA’s sharp impact on the prevalence and outcomes in
prison litigation is clear, but there are still many cases and situations in
which courts continue to play a role. Two tables will make this point.
Table 1 shows jail and prison populations from 1970 to the present,
along with federal court filings categorized by the courts as dealing with
“prisoner civil rights” or “prison conditions.”16 Figure A presents some
of the same information in graphic form. Most of these cases seek dam13. Margo Schlanger, Beyond the Hero Judge: Institutional Reform Litigation as Litigation,
97 MICH. L. REV. 1994, 2015 (1999).
14. Id. at 2015–16.
15. See, e.g., Vicki C. Jackson, Introduction: Congressional Control of Jurisdiction and the
Future of the Federal Courts—Opposition, Agreement, and Hierarchy, 86 GEO. L.J. 2445 (1998)
(describing the PLRA and two other 1996 statutes, and observing that “[t]his spate of
congressional jurisdiction-stripping imposes what may be the most significant limitations on
federal jurisdiction since those enacted in connection with World War II price controls and draft
legislation”); John Boston, The Prison Litigation Reform Act: The New Face of Court Stripping,
67 BROOK. L. REV. 429 (2001); Giovanna Shay & Johanna Kalb, More Stories of JurisdictionStripping and Executive Power: Interpreting the Prison Litigation Reform Act (PLRA), 29
CARDOZO L. REV. 291 (2007).
16. 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. See Federal Court Cases: Integrated Database Series, ICPSR, http://
www.icpsr.umich.edu/icpsrweb/ICPSR/series/00072/studies (last visited Aug. 30, 2014). 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
Appendix that follows this Article.

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PRISONERS’ RIGHTS LAWYERS’ STRATEGIES

523

ages (although only a sliver succeed in obtaining them17). Table 2 shifts
to injunctive litigation, showing the prevalence of court orders governing conditions of confinement reported in the Bureau of Justice Statistics jail and prison census of the given years.18
TABLE 1: PRISON AND JAIL POPULATION AND PRISONER CIVIL RIGHTS
FILINGS IN FEDERAL DISTRICT COURT, FISCAL YEARS
1970–201219
Prisoner civil rights filings
in federal district court

Incarcerated population

Fiscal
year
of
filing

Total

State
prison

1970
1971
1972
1973
1974
1975
1976
1977
1978
1979
1980
1981
1982
1983
1984
1985
1986
1987

359,555
358,061
356,092
364,211
389,721
413,816
438,000
449,563
454,444
474,589
503,586
556,814
614,914
651,439
678,905
752,603
802,132
853,114

178,654
177,113
174,379
181,396
207,360
229,685
248,883
258,643
269,765
281,233
295,819
333,251
375,603
394,953
417,389
451,812
496,834
520,336

Federal
prison

Jail

20,038
20,948
21,713
22,815
22,361
24,131
29,117
30,920
26,285
23,356
23,779
26,778
27,311
28,945
30,875
35,781
39,781
42,478

160,863
160,000*
160,000*
160,000*
160,000*
160,000*
160,000*
160,000*
158,394
170,000*
183,988
196,785
212,000
227,541
230,641
265,010
265,517
290,300

NonFilings
Total
federal
Federal
per 1000
Filings defendants defendants prisoners
2,245
3,179
3,635
4,665
5,573
6,527
7,096
8,347
10,087
11,713
13,079
16,328
16,809
17,512
18,337
18,485
20,360
22,067

2,092
2,969
3,393
4,257
5,185
6,020
6,702
7,842
9,520
11,149
12,496
15,539
16,075
16,788
17,468
17,658
19,654
21,410

153
210
242
408
388
507
394
505
567
564
583
789
734
724
869
827
706
657

6.2
8.9*
10.2*
12.8*
14.3*
15.8*
16.2*
18.6*
22.2
24.7*
26.0
29.3
27.3
26.9
27.0
24.6
25.3
25.9

17. See Margo Schlanger, Trends in Prisoner Litigation, as the PLRA Enters Adulthood, 4
U.C. IRVINE L. REV. (forthcoming 2015), available at http://ssrn.com/abstract=2506378.
18. Court order data is from the Bureau of Justice Statistics jail and prison censuses, which
attempt a comprehensive census of the nation’s jails and prisons approximately every five years.
Comprehensive information on these sources is set out in the Appendix. The censuses tally
responses from nearly every prison and jail, but those responses omit many known court orders.
For example, there has been a court order involving mental health care at every California prison
since 1997 and one involving medical care since 2002. (For information on the mental health
orders, see Case Profile: Coleman v. Brown, No. 2:90-cv-00520 (E.D. Cal.), CIV. RIGHTS LITIG.
CLEARINGHOUSE, http://www.clearinghouse.net/detail.php?id=573 (last visited Aug. 30, 2014).
For information on the medical decree, see Case Profile: Plata v. Brown, No. 3:01-cv-01351 (N.D.
Cal.), CIV. RIGHTS LITIG. CLEARINGHOUSE, http://www.clearinghouse.net/detail.php?id=589 (last
visited Aug. 30, 2014); the Order Adopting Class Action Stipulation as Fair, Reasonable, and
Adequate, Plata v. Davis, No. 3:01-cv-01351 (N.D. Cal. June 20, 2002), available at http://
www.clearinghouse.net/chDocs/public/PC-CA-0018-0001.pdf; and the underlying Stipulation for
Injunctive Relief, Plata v. Davis, No. 3:01-cv-01351 (N.D. Cal. June 13, 2002), available at http://
www.clearinghouse.net/chDocs/public/PC-CA-0018-0001.pdf.) Yet no California prison reported
any court order in the Census responses in 2005. So the data in Table 2 should be taken as
indicative of trends rather than dispositive about any given state or facility.
19. Sources for all data include the Bureau of Justice Statistics, Administrative Office of the
U.S. Courts. See infra Appendix for all sources and other details.

State
prison
44,205
53,387
58,838
63,930
72,071
80,815
85,500
89,538
95,088
101,755
110,793
125,682
140,064
149,852
158,216
168,144
177,600
186,364
190,844
197,285
198,414
205,087
206,968
214,774
216,915

Federal
prison
336,017
386,845
408,075
422,609
441,899
466,155
479,757
509,828
515,432
556,586
593,808
607,978
598,397
639,941
668,168
688,030
715,660
742,261
772,334
782,592
779,704
749,449
733,775
722,737
745,965

Jail
22,642
23,737
24,051
24,352
28,544
31,693
36,595
39,053
38,262
26,095
24,212
23,512
23,357
22,131
21,988
22,061
21,553
22,484
22,469
21,978
23,555
22,698
22,736
23,362
22,662

21,866
22,804
23,028
23,567
27,723
30,842
35,550
38,022
37,126
25,226
23,304
22,645
22,399
21,224
21,044
20,914
20,337
21,317
21,443
20,825
22,395
21,552
21,614
22,067
21,628

776
933
1,023
785
821
851
1,045
1,031
1,136
869
908
867
958
907
944
1,147
1,216
1,167
1,026
1,153
1,160
1,146
1,122
1,295
1,034

[Vol. 69:519

24.0
22.2
20.9
20.0
22.1
23.0
24.9
24.6
23.4
15.1
13.3
12.4
12.2
11.2
10.8
10.6
10.1
10.3
9.9
9.6
10.2
10.0
10.1
10.5
10.2

NonFilings
Total
federal
Federal
per 1000
Filings defendants defendants prisoners

Prisoner civil rights filings
in federal district court

UNIVERSITY OF MIAMI LAW REVIEW

Total
562,605
629,995
684,544
728,605
778,495
828,566
904,647
989,004
1,032,676
1,074,809
1,111,927
1,155,878
1,177,240
1,179,954
1,209,145
1,225,971
1,244,216
1,261,071
1,297,536
1,316,105
1,324,539
1,319,563
1,314,445
1,290,212
1,266,999

1970

1972

1974

1978

1976

1982

1992

2000

2002

2004

2006

2008

2010

20 12

FIGURE A: PRISONER POPULATION & CIVIL RIGHTS FILINGS
PER 1000 PRISONERS, FISCAL YEARS 1970–2012

?---------~

524

Fiscal
year
of
filing
942,827
1,070,227
1,151,457
1,215,144
1,292,465
1,375,536
1,469,904
1,588,370
1,643,196
1,733,150
1,816,528
1,889,538
1,915,701
1,969,747
2,035,529
2,082,145
2,137,476
2,189,696
2,260,714
2,295,982
2,302,657
2,274,099
2,255,188
2,227,723
2,229,879

Incarcerated population

1988
1989
1990
1991
1992
1993
1994
1995
1996
1997
1998
1999
2000
2001
2002
2003
2004
2005
2006
2007
2008
2009
2010
2011
2012

§

~

~
~
It.
0
~
Filings per 1000 Prisoners
u,
0

§

§

§
§

8
§

8
§
8
§
8
§
0

>
1998

§
::,
"el

I
199'-

§..,,

1994

11

g

1990
~-

:="'.

!:l

~

1986
;,:; 0
- · "O

::,
..,,

1988

~~o
~ g, ~

1984

n":- -:::,
:;;· E.; :,.

~ "O ~

1980

t □I

~

* Indicates estimate because jail population unavailable.

Jail and Prison Population

2015]

PRISONERS’ RIGHTS LAWYERS’ STRATEGIES

525

Table 1 and Figure A show four phases in the history of prisoner population and filings. Prison and jail populations went up, steeply at first and
then at a slower rate, from 1970 to 2005. Since 2005, prison and jail
population has plateaued. The prisoner filing rate has fluctuated more: it
increased steeply from 1970 to 1981, declined from 1981 until 1991,
increased for a few years, and then plunged as a result of the PLRA. It
continued to shrink for some years after that. Since 2007, filing rates,
prison population, and filings have all plateaued.
TABLE 2: CHANGING INCIDENCE OF COURT ORDERS GOVERNING
STATE AND LOCAL FACILITIES20
Year

(a)
Total
facilities

(b)
% Facilities
with orders

1983
1988
1993
1999
2006

3,338
3,316
3,268
3,365
3,282

18%
18%
18%
17%
11%

227,541
336,017
466,155
607,978
756,839

51%
50%
46%
32%
20%

1984
1990
State
1995
Prisons 2000
2005

694
957
1,084
1,042
1,067

27%
28%
32%
28%
18%

377,036
617,859
879,766
1,042,637
1,096,755

43%
36%
40%
40%
22%

Local
Jails

(c)
Total
population

(d)
% Population housed in
facilities with orders

Table 2’s columns (a) and (c) show the total number of facilities and
total incarcerated population, respectively, 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. For both jails
and prisons, Table 2 evidences very substantial continuity in the years
prior to the PLRA. From 1983 or 1984 to 1993 or 1995, respectively,
about half of the nation’s jail inmates, and about forty percent of the
nation’s state prisoners, were housed in facilities subject to court orders.
(See column (d).) Because court orders tended to apply to larger jails
and prisons, in terms of the number of facilities (rather than the number
of prisoners), the coverage reached a bit under one-fifth of jail facilities
and under one-third of prison facilities. (See column (b).) But then came
the PLRA. The effect was muted in the first post-PLRA census for both
jails and prisons, but, during the 2005 and 2006 censuses, only about
twenty percent of state or jail inmates were housed in facilities that
reported a court order, and the numbers were still lower if calculated by
facility, rather than by population. The PLRA, that is, had a very signifi20. Sources for data include the Bureau of Justice Statistics. Data omits Federal prisons/jails
and community corrections. See infra Appendix for all sources and other details.

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cant impact of decreasing—but, importantly, not entirely erasing—the
regulatory impact of litigation on jails and prisons.
In other work, I have explicated the many ways in which the PLRA
made prisoners’ rights cases harder both to bring and to win.21 I focus
next on just two provisions, the first governing entry of and the second
governing termination of prospective relief. It is no surprise that, in the
nearly two decades since passage of the PLRA, the prisoners’ rights bar,
along with the lawyers who represent corrections agencies and officials,
have responded to the PLRA’s requirements by developing new forms
and strategies for settlements. In Parts III and IV, below, I set out the
relevant provisions of the statute and then describe and analyze those
responses.
III.

ENTRY
A.

OF

RELIEF, INCLUDING SETTLEMENT

What the PLRA Requires

Under the PLRA, “prospective relief,” whether resulting from contested litigation or settlement, may “extend no further than necessary to
correct the violation of the Federal right of a particular plaintiff or plaintiffs.”22 District judges asked to “grant or approve any prospective
relief” may not do so “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.”23 Prospective relief is broadly defined to
include “all relief other than compensatory monetary damages . . . .”24
This approach is consonant with the ordinary rules governing contested
entry of injunctions in federal court,25 but it diverges sharply from the
21. See Schlanger, Civil Rights Injunctions, supra note 3, at 589–95; see also Schlanger,
Inmate Litigation, supra note 3, at 1633–64.
22. 18 U.S.C. § 3626(a)(1)(A) (2012); see Elizabeth Alexander, Isn’t It Ironic? The
“Particular Plaintiffs” Provision of the PLRA, 24 FED. SENT’G REP. 229 (2012).
23. 18 U.S.C. § 3626(a)(1)(A). For an exploration of the caselaw on the intrusiveness
requirement, see Kiira J. Johal, Note, Judges Behind Bars: The Intrusiveness Requirement’s
Restriction on the Implementation of Relief Under the Prison Litigation Reform Act, 114 COLUM.
L. REV. 715 (2014).
24. 18 U.S.C. § 3626(g)(7).
25. For pre-PLRA summaries of federal court injunctive standards, see, for example,
Toussaint v. McCarthy, 801 F.2d 1080, 1086–87 (9th Cir. 1986), cert. denied, 481 U.S. 1069
(1987) (Litigated injunction “must be no broader than necessary to remedy the constitutional
violation . . . [and] may order relief that the Constitution would not of its own force initially
require if such relief is necessary to remedy a constitutional violation . . . [but in that event] must
be narrowly tailored to prevent repetition of proved constitutional violations, and must not intrude
unnecessarily on state functions.”). See also, e.g., Dean v. Coughlin, 804 F.2d 207, 213 (2d Cir.
1986); Duran v. Elrod, 760 F.2d 756, 761–62 (7th Cir. 1985). Courts have therefore commented
that the PLRA does not change these requirements for litigated relief. See, e.g., Gilmore v.
California, 220 F.3d 987, 1006 (9th Cir. 2000) (“[I]n the context of contested decrees, then, the

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ordinary rules governing settlements. Were it not for the PLRA, courts
could approve prisoners’ rights settlements, like other settlements, much
more freely, without any finding of a legal violation (indeed, avoiding
such a finding is a primary settlement motive).26 And the terms of those
settlements would be limited only by the mild constraints that they
“spring from and serve to resolve a dispute within the court’s subjectmatter jurisdiction . . . [,] ‘com[e] within the general scope of the case
made by the pleadings,’ . . . further the objectives of the law upon which
the complaint was based,” and are not otherwise unlawful.27 Thus, as the
Supreme Court has explained, settlement terms could rise above the constitutional floor; “a federal court is not necessarily barred from entering
a consent decree merely because the decree provides broader relief than
the court could have awarded after a trial.”28 (In recent years, however, a
number of commentators and legislators have argued that the constraints
imposed by the PLRA should be made more broadly applicable.29)
The PLRA does, however, offer an exclusion from its settlement
scope constraints. “[R]elief,” the statute’s definitional section specifies,
“includes consent decrees but does not include private settlement agreements,”30 which are defined as “agreement[s] entered into among the
parties that [are] not subject to judicial enforcement other than the reinstatement of the civil proceeding that the agreement settled.”31 The statute emphasizes that it does not “preclude parties from entering into a
general standard for granting prospective relief differs little from the standard set forth [in the
PLRA].”); Smith v. Arkansas Dep’t. of Corr., 103 F.3d 637, 647 (8th Cir. 1996) (“[The PLRA]
merely codifies existing law and does not change the standards for determining whether to grant
an injunction.”).
26. In class actions, of course, settlements must be “fair, reasonable, and adequate.” FED. R.
CIV. P. 23(e)(2). This requirement safeguards against settlements that are insufficiently proplaintiff, not against settlements that intrude too deeply into defendants’ affairs. E.g., United
States v. City of Miami, 614 F.2d 1322, 1331 (5th Cir. 1980) (“[C]areful scrutiny is necessary to
guard against settlements that may benefit the class representatives or their attorneys at the
expense of absent class members or shareholders.”).
27. Local No. 93, Int’l Ass’n of Firefighters, AFL-CIO, C.L.C. v. City of Cleveland, 478 U.S.
501, 525 (1986) (citations and internal quotation marks omitted).
28. Id.; see also Rufo v. Inmates of Suffolk Cnty. Jail, 502 U.S. 367, 392 (1992) (“[S]tate and
local officers in charge of institutional litigation may agree to do more than that which is
minimally required by the Constitution to settle a case and avoid further litigation . . . .”).
29. For arguments that restrictions like this should apply more generally to consent decrees in
government cases, see, for example, ROSS SANDLER & DAVID SCHOENBROD, DEMOCRACY BY
DECREE: WHAT HAPPENS WHEN COURTS RUN GOVERNMENT (2003); Ross Sandler & David
Schoenbrod, The Supreme Court, Democracy and Institutional Reform Litigation, 49 N.Y. L. SCH.
L. REV. 915 (2005); Michael T. Morley, Consent of the Governed or Consent of the Government?
The Problems with Consent Decrees in Government-Defendant Cases, 16 U. PA. J. CONST. L. 637
(2014). See also Federal Consent Decree Fairness Act, H.R. 3041, 112th Cong. (2011), available
at http://www.gpo.gov/fdsys/pkg/BILLS-112hr3041ih/pdf/BILLS-112hr3041ih.pdf.
30. 18 U.S.C. § 3626(g)(9) (2012).
31. 18 U.S.C. § 3626(g)(6).

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private settlement agreement that does not comply with the limitations
on relief . . . if the terms of that agreement are not subject to court
enforcement other than the reinstatement of the civil proceeding that the
agreement settled.”32 In addition, remedies for breach of a “private settlement agreement” may be sought in state court.33
B.

How Parties Continue to Settle Cases

Commentators on the PLRA prior to its passage thought the provisions limiting settlements might, in fact, doom all settlements in injunctive cases. For example, then-Senator Joe Biden criticized the PLRA’s
“restrictions on the power of those governments from voluntarily negotiating their own agreements,” arguing that this “would place an even
greater burden on the courts to litigate and relitigate these suits.”34 But,
in fact, the urge to settle is sufficiently powerful that settlements continue. Parties with abundant reasons to reach agreements have three
strategies for getting those agreements approved: craft an acceptable
stipulation, structure their settlement as a conditional dismissal, or anticipate state-court enforcement of the settlement.
1.

ACCEPTABLE STIPULATIONS

The first method for settling an injunctive case under the PLRA is
to obtain the district court’s approval of the consent injunction, consistent with the Act’s requirements. That means obtaining a “find[ing] 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”—following a
number of courts and commentators, I’ll call this a “need-narrownessintrusiveness finding.”35
The obstacle this provision poses to settlement is not so much its
insistence on narrow remedial scope—after all, a settlement agreeable to
both the plaintiffs and the correctional agency they have sued is almost
by definition less “intrusive” than a remedy imposed non-consensually.
To quote one district court, “that the defendants chose to join the plaintiffs in selecting this remedy would seem to mean—and must be taken to
mean—that they understood it to be precisely tailored to the needs of the
occasion, that it is narrowly drawn and least intrusive—in fact not intru32. 18 U.S.C. § 3626(c)(2)(A).
33. 18 U.S.C. § 3626(c)(2)(B).
34. 141 Cong. Rec. S14,611–28 (daily ed. Sept. 29, 1995).
35. E.g., Cason v. Seckinger, 231 F.3d 777, 784 (11th Cir. 2000); Benjamin v. Jacobson, 172
F.3d 144, 150 (2d Cir. 1999); Boston, supra note 15, at 445.

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sive at all.”36 Prisoners’ rights lawyer John Boston’s comprehensive
summary of the case law explains that even courts that give settlement
less weight find “[a]greements between the parties” to be “‘strong evidence,’ if not dispositive, that provisions reflecting those agreements
comply with the needs-narrowness-intrusiveness requirement . . . .”37
The Eleventh Circuit stated the point more generally in an opinion
remanding a longstanding Georgia prison case for the district court to
decide if there remained a “current and ongoing violation” and whether
the challenged relief satisfied the need-narrowness-intrusive standards,
explaining that the PLRA does not undermine the ordinary role of stipulations in civil litigation: “[W]e do not mean to suggest that the district
court must conduct an evidentiary hearing about or enter particularized
findings concerning any facts or factors about which there is not dispute.
The parties are free to make any concessions or enter into any stipulations they deem appropriate.”38
The problem for settlement is, rather, that the PLRA seems to
require a finding of liability—a finding that there has been a “violation
of [a] Federal right” for which correction is “necessary.”39 Such a finding could, like any factual finding in court, rest on a stipulation. But
while correctional agencies seeking approval of an injunctive settlement
are happy to stipulate that that settlement’s scope is appropriate, they are
rarely willing to stipulate in plain language that they have violated the
Constitution or a federal statute. Such a stipulation carries significant
political cost, after all, and could have adverse collateral effects prejudicing the agency in other lawsuits, including damage actions.
36. Morales Feliciano v. Calderon Serra, 300 F. Supp. 2d 321, 334 (D.P.R. 2004) (footnote
omitted), aff’d, 378 F.3d 42, 54–56 (1st Cir. 2004), cert. denied, 543 U.S. 1054 (2005). See also,
e.g., Little v. Shelby Cnty., Tenn., No. 96-2520, 2003 WL 23849734, at *1–2 (W.D. Tenn. Mar.
25, 2003) (“Where the parties in jail reform litigation agree on a proposed remedy, or modification
of a proposed remedy, the Court will engage in limited review for the purpose of assuring
continued compliance with existing orders and compliance with the Prison Litigation Reform
Act. . . . Clearly, the least intrusive means in this case is that advocated by the parties themselves
and determined by the parties and the court-appointed experts as being in the interest of both
inmate and public safety.”).
37. JOHN BOSTON, THE LEGAL AID SOC’Y, THE PRISON LITIGATION REFORM ACT (Sept. 14,
2004), available at http://www.wnylc.net/pb/docs/plra2cir04.pdf (quoting Benjamin v. Fraser, 156
F. Supp. 2d 333, 344 (S.D.N.Y. 2001), aff’d in part, vacated and remanded in part on other
grounds, 343 F.3d 35 (2d Cir. 2003)) (quoting Cason, 231 F.3d at 785 n.8 (noting that
“particularized findings are not necessary concerning undisputed facts, and the parties may make
concessions or stipulations as they deem appropriate”)); accord Clark v. California, 739 F. Supp.
2d 1168, 1229 (N.D. Cal. 2010) (citing parties’ agreement that the agreed to relief met the
statutory requirements); McBean v. City of New York, No. 02-cv-05426, 2007 WL 2947448, at
*3 (S.D.N.Y. Oct. 5, 2007) (weighing parties’ agreement that detailed requirements meet neednarrowness-intrusiveness standard).
38. Cason, 231 F.3d at 785.
39. 18 U.S.C. § 3626(a)(1)(A) (2012).

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Accordingly, parties that want settlements have come up with some
opaque but—at least for many district courts—acceptable formulations
for their stipulations.40 A few of the negotiated provisions that have
passed muster under the PLRA follow:
(a)

Stipulation by statutory citation:
The court shall find that this Stipulation satisfies the requirements of
18 U.S.C.A. § 3626(a)(1)(A) and shall retain jurisdiction to enforce
its terms. The court shall have the power to enforce the Stipulation
through specific performance and all other remedies permitted by
law. Neither the fact of this Stipulation nor any statements contained
herein may be used in any other case or administrative proceeding,
except that Defendants reserve the right to use this Stipulation and
the language herein to assert issue preclusion and res judicata in other
litigation seeking class or systemic relief. When these legal defenses
are raised, Defendants will send copies of such complaints to Plaintiffs’ counsel.41

(b)

Stipulation by statutory quotation:
The parties stipulate, based upon the entire record, that the relief set
forth in this Settlement Agreement is narrowly drawn, extends no
further than necessary to correct violations of federal rights, and is
the least intrusive means necessary to correct violations of federal
rights.42

(c)

Stipulation to necessity to correct “the alleged violation”:
The Court finds that the relief provided in the [Proposed Settlement
Agreement] is narrowly drawn and extends no further than necessary
to correct the alleged violation in conformance with the Prison Litigation Reform Act, 18 U.S.C. § [3626](a)(1).43

40. For a similar discussion of some of these terms, see Elizabeth Alexander, Getting to Yes
in a PLRA World, 30 PACE L. REV. 1672 (2010).
41. Stipulation for Injunctive Relief ¶ 149, Fussell v. Wilkinson, No. 1:03-cv-00704 (S.D.
Ohio Nov. 22, 2005), available at http://www.clearinghouse.net/chDocs/public/PC-OH-00200002.pdf; see also, e.g., Amended Stipulation and Order, Perez v. Tilton, No. 3:05-cv-05241
(N.D. Cal. Aug. 21, 2006), available at http://www.clearinghouse.net/chDocs/public/PC-CA0033-0002.pdf; Stipulated Agreement Between Plaintiffs and Defendants at 1, McClendon v. City
of Albuquerque, No. 6:95-cv-00024 (D.N.M. June 30, 2005), available at http://www.clearing
house.net/chDocs/public/JC-NM-0002-0012.pdf.
42. Settlement Agreement ¶¶ J–K, Duffy v. Riveland, No. 2:92-cv-01596 (W.D. Wash. June
3, 1998), available at http://www.clearinghouse.net/chDocs/public/PC-WA-0003-0004.pdf. See
also, e.g., Consent Order ¶¶ 1–2, Duvall v. Glendening, No. 1:94-cv-02541 (D. Md. Aug. 22,
2004), available at http://www.clearinghouse.net/chDocs/public/PC-MD-0006-0003.pdf.
43. Consent Decree, Order and Judgment Approving and Adopting Proposed Settlement
Agreement ¶ 11, Laurna Chief Goes Out v. Missoula, No. 9:12-cv-00155 (D. Mont. Oct. 31,
2013), available at http://www.clearinghouse.net/chDocs/public/JC-MT-0002-0001.pdf. See also,
e.g., Consent Decree, Order and Judgment at 15, Lozeau v. Lake Cnty., Mont., No. 95-cv-00082

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Stipulation that expressly denies liability:
The relief granted herein is narrowly drawn, extends no further
than necessary to correct a violation of a federal right, and is the least
intrusive means necessary to correct the violation of a federal right.
Nothing in this Order and Agreement, including, specifically,
the stipulation . . . constitutes an admission of liability and undersigned Defendants . . . vigorously dispute that they have violated the
federal rights of Plaintiff . . . or any other adult female inmate. The
stipulation set forth . . . is included expressly to facilitate the parties’
intent to enable the Court to: (a) retain jurisdiction for the desired
term; (b) if necessary, entertain any future motion by North Carolina
Prisoner Legal Services, Inc. [(“NCPLS”)] . . . to enforce the terms of
this Order and Agreement; and (c) serve as the exclusive forum for
any such enforcement. The stipulation . . . , as well as all other representations, commitments, or stipulations in this Order and Agreement, shall have no precedential value and may not be relied on as
precedent in any future claim, without prejudice or limitation, however, to the ability of NCPLS to enforce the terms of this Order and
Agreement.
This Order and Agreement is entered into by the parties as part
of an amicable settlement of disputed claims raised in this action. In
entering into this settlement, Defendants . . . make no admissions of
liability to Plaintiff and voluntarily assume the obligations set forth
herein . . . .44

(e)

Stipulation that “conditions . . . necessitate” remedy:
This Agreement is not intended to impair or expand the right of any

(D. Mont. Oct. 23, 1996), available at http://www.clearinghouse.net/chDocs/public/JC-MT-00010001.pdf; Consent Judgment at 44, Jones v. Gusman, No. 2:12-cv-00859 (E.D. La. Dec. 11,
2012), available at http://www.clearinghouse.net/chDocs/public/JC-LA-0028-0011.pdf (referring
to “the violations of federal rights as alleged by Plaintiffs in the Complaints” and providing “[a]ny
admission made for purposes of this Agreement is not admissible if presented by third Parties in
another proceeding”); Order Approving Settlement Agreement ¶ 4, New Times, Inc. v. Ortiz, No.
1:00-cv-00612 (D. Colo. Aug. 18, 2004), available at http://www.clearinghouse.net/chDocs/
public/PC-CO-0021-0001.pdf.
44. Order and Agreement ¶¶ 2–4, Etters v. Young, No. 5:09-ct-3187 (E.D.N.C. May 21,
2012), available at http://www.clearinghouse.net/chDocs/public/PC-NC-0013-0003.pdf. For more
information on the case, see Case Profile: Etters v. Bennett, No. 5:09-ct-03187 (E.D.N.C.), CIV.
RIGHTS LITIG. CLEARINGHOUSE, http://www.clearinghouse.net/detail.php?id=13820. See also
Etters v. Young, No. 5:09-ct-3187, 2012 WL 1950415, at *2 (E.D.N.C. May 30, 2012); see, e.g.,
Consent Decree, Presley v. Epps, No. 4:05-cv-00148 (N.D. Miss. Mar. 6, 2006), available at
http://www.clearinghouse.net/chDocs/public/PC-MS-0005-0001.pdf; Stipulation and Order ¶ 1,
Duffy v. Riveland, No. 2:92-cv-01596 (W.D. Wash. Aug. 31, 1998), available at http://
www.clearinghouse.net/chDocs/public/PC-WA-0003-0010.pdf; Consent Decree, Order and
Judgment, Makinson v. Bonneville Cnty., No. 4:97-cv-00190 (D. Idaho Apr. 30, 1997), available
at http://www.clearinghouse.net/chDocs/public/JC-ID-0002-0001.pdf; Settlement Agreement at 9,
New Times, Inc. v. Ortiz, No. 1:00-cv-00612 (D. Colo. Apr. 24, 2008), available at http://
www.clearinghouse.net/chDocs/public/PC-CO-0021-0002.pdf.

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person or entity to seek relief against the County or its officials,
employees, or agents, for their conduct. This Agreement is not
intended to alter legal standards governing any such claims.
For the purposes of this lawsuit only and in order to settle this
matter, Defendants stipulate, and this Court finds, that the conditions
at the [Miami-Dade County Corrections and Rehabilitation Department] Jail facilities necessitate the remedial measures contained in
this Agreement, including medical, mental health and suicide
provisions. . . .
The Parties stipulate that this Agreement complies in all respects
with the Prison Litigation Reform Act, 18 U.S.C. § 3626(a). The Parties further stipulate and the Court finds that the prospective relief in
this Agreement is narrowly drawn, extends no further than necessary
to correct the violations of federal rights as alleged by United States
in its Complaint and Findings Letter . . . , is the least intrusive means
necessary to correct these violations, and will not have an adverse
impact on public safety or the operation of a criminal justice system.
Accordingly, the Parties represent, and this Court finds, that the
Agreement complies in all respects with 18 U.S.C. § 3626(a).45

(f)

Stipulation of violation in plain terms (with and without
preclusion language):
For purposes of this lawsuit only and in order to settle this matter, the Defendants stipulate that they have violated certain federal
rights of inmates as alleged in the pleadings. The parties further stipulate and agree that the prospective relief in this Decree is narrowly
drawn, extends no further than necessary to correct these certain violations of federal rights set forth in the Complaint, is the least intrusive means necessary to correct these violations, and will not have an
adverse impact on public safety or the operation of a criminal justice
system. Accordingly, the parties agree and represent to the Court that
the Decree complies in all respects with the provisions of 18 U.S.C.
§ 3626(a), and may serve as the factual and legal basis for a court
order issued pursuant to those provisions.
The issue of liability has not been litigated. The parties ask the
Court to approve this Decree without a full hearing on the merits, on
the basis of the United States’ Complaint and the above stipulation.
This Decree is not intended to have any preclusive effect except
between the parties. Should the issue of the preclusive effect of this

45. Consent Decree ¶¶ 10–12, United States v. Miami-Dade Cnty., No. 1:13-cv-21570 (S.D.
Fla. May 1, 2013), available at http://www.clearinghouse.net/chDocs/public/JC-FL-00210003.pdf. For more information on the case, see Case Profile: United States v. Miami-Dade Cnty.,
No. 1:13-cv-21570 (S.D. Fla.), CIV. RIGHTS LITIG. CLEARINGHOUSE, http://www.clearinghouse.
net/detail.php?id=12950 (last visited Oct. 12, 2014). See also Consent Order, supra note 42, ¶¶
1–2.

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Decree be raised in any proceedings other than this civil action, the
parties agree to certify that this Decree was intended to have no such
preclusive effect.46

(g)

Stipulation to court findings:
Plaintiffs and Defendant jointly stipulate that the Court should make
the findings required for prospective relief under 18 U.S.C.
§ 3626(a)(1)(A) and issue a permanent injunction . . . .47

My personal favorite of these quotations is (e), from the consent decree
that settled the medical and mental health care case brought by the U.S.
Department of Justice against the Miami-Dade County jail, under the
Civil Rights of Institutionalized Persons Act.48 The negotiated language
has several attractive features. First, like all of the settlements except for
(g), it avoids preclusive effect, making settlement more attractive to the
defendant and therefore more available to the plaintiff. Second, the language of the need-narrowness-intrusiveness concession is carefully
phrased. As a number of courts have commented: “Neither the PLRA
nor caselaw requires a plainly worded concession of liability . . . .”49 A
very plain concession—like (f)’s explicit reference to “violat[ion]” of
federal rights—draws attention and concomitant political costs. But the
Miami-Dade consent decree avoids complete opacity, such as (a)’s stip46. Consent Decree ¶¶ 58–60, United States v. Clay Cnty., No. 4:97-cv-00151 (M.D. Ga.
Aug. 20, 1997), available at http://www.clearinghouse.net/chDocs/public/JC-GA-0010-0004.pdf.
For more information on the case, see United States v. Clay Cnty., No. 4:97-cv-00151 (M.D. Ga.
1997), available at http://www.clearinghouse.net/detail.php?id=69. See also, e.g., Settlement
Agreement and Order ¶ 15, Clark v. California, No. 3:96-cv-01486 (N.D. Cal. July 20, 1998),
available at http://www.clearinghouse.net/chDocs/public/PC-CA-0005-0010.pdf (“Defendants
[stipulate] that they have violated the federal rights of plaintiffs in a manner sufficient to warrant
the relief contained herein . . . [and] that the relief set forth herein is narrowly drawn, extends no
further than necessary to correct the violation of the federal rights and is the least intrusive means
necessary to correct the violation of the federal rights.”); Clark v. California, 739 F. Supp. 2d
1168, 1229 (N.D. Cal. 2010) (noting parties’ agreement).
47. Joint Stipulations Supporting Resolution of Class Action ¶ 2, Martinez v. Maketa, No.
1:10-cv-02242 (D. Colo. Mar. 28, 2011), available at http://www.clearinghouse.net/chDocs/
public/JC-CO-0004-0009.pdf. See Martinez v. Maketa, No. 10-cv-02242, 2011 WL 2222129, at
*1 (D. Colo. June 7, 2011) (noting parties’ stipulation that court should make PLRA-required
findings and making such findings); see also Opinion and Order ¶ 5, Jones’el v. Berge, No. 3:00cv-00421 (W.D. Wis. June 24, 2002), available at http://www.clearinghouse.net/chDocs/public/
PC-WI-0001-0007.pdf (making required findings in order separate from order accepting the
parties’ settlement agreement); Settlement Agreement ¶¶ 15.2–15.5, Jones’el v. Berge, No. 3:00cv-00421 (W.D. Wis. Jan. 24, 2002), available at http://www.clearinghouse.net/chDocs/public/
PC-WI-0001-0003.pdf (referring to “alleged” violations and containing both defendants’ denial of
liability and a stipulation that the agreement was consistent with all PLRA requirements).
48. 42 U.S.C. §§ 1997–1997h (2012).
49. Jones v. Gusman, 296 F.R.D. 416, 463 (E.D. La. 2013).

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ulation by statutory citation. It is fairly phrased, if not calculated for
maximum public impact.
2.

CONDITIONAL DISMISSAL

An alternative method for settling an injunctive case is to escape
the limitations the PLRA imposes on “prospective relief” by using what
the statute terms a “private settlement agreement”—defined as an
“agreement entered into among the parties that is not subject to judicial
enforcement other than the reinstatement of the civil proceeding that the
agreement settled.”50 This kind of settlement is available using the ordinary processes for voluntary dismissals under Federal Rule of Civil Procedure 41(a); if the parties intend the district court to maintain
jurisdiction over a case they have settled this way, they can so specify in
the settlement, and that term may be approved by the court as one of
such terms and conditions as the court deems proper.51 (Such terms must
be express.52) Settlements like this are routine in cases seeking damages,
where compliance—payment—is an easily-monitored one-time event.
Even in injunctive matters, private settlements were not unheard of prior
to the PLRA’s enactment.53 But foregoing the ordinary enforcement
50. 18 U.S.C. § 3626(g)(6) (2012). See Ghana v. N.J. State Parole Bd., No. 01-cv-01620,
2011 WL 3608633, at *3 (D.N.J. Aug. 15, 2011) (explaining that absent a consent decree meeting
PLRA prospective relief requirements, plaintiff’s only federal court remedy for breach of a
settlement agreement was reinstatement of the underlying action).
51. FED. R. CIV. P. 41(a)(2). As the Supreme Court explained in Kokkonen v. Guardian Life
Insurance Co. of America, 511 U.S. 375, 381–82 (1994):
When the dismissal is pursuant to Federal Rule of Civil Procedure 41(a)(2), which
specifies that the action “shall not be dismissed at the plaintiff’s instance save upon
order of the court and upon such terms and conditions as the court deems proper,”
the parties’ compliance with the terms of the settlement contract (or the court’s
“retention of jurisdiction” over the settlement contract) may, in the court’s
discretion, be one of the terms set forth in the order. Even when . . . the dismissal is
pursuant to Rule 41(a)(1)(ii) (which does not by its terms empower a district court
to attach conditions to the parties’ stipulation of dismissal) we think the court is
authorized to embody the settlement contract in its dismissal order (or, what has the
same effect, retain jurisdiction over the settlement contract) if the parties agree.
Absent such action, however, enforcement of the settlement agreement is for state
courts, unless there is some independent basis for federal jurisdiction.
See also Hazelton v. Wrenn, No. 08-cv-00419, 2013 WL 1953354, at *1–2 (D.N.H. Apr. 10,
2013) (taking this approach in a case subject to the PLRA), report and recommendation approved,
2013 WL 1953517 (D.N.H. May 9, 2013).
52. See Kokkonen, 511 U.S. at 381–82; York v. Cnty. of El Dorado, 119 F. Supp. 2d 1106,
1109 (E.D. Cal. 2000) (holding that the district court had no jurisdiction over the county’s motion
to terminate because the agreement did not contain language specifying that the district court
would retain jurisdiction, therefore the issue was a matter of contract to be decided by state
courts).
53. See, e.g., York, 119 F. Supp. 2d at 1107 (“The undersigned clearly recalls, and the parties
do not disagree, that the sine qua non for the County’s agreement to settle was the dismissal and
the fact that the settlement was not to be construed as a consent decree.”). Cf. Judgment ¶ 6,

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mechanisms (court process, modification of the order, public shaming
facilitated by the attention often paid to court cases, and contempt) is
generally very unappealing to plaintiffs. Only since 1996, when the
PLRA diminished prisoner-plaintiffs’ bargaining power, has this kind of
settlement grown common in prisoners’ injunctive cases.
The parties used a conditional dismissal, for example, in a case
seeking to improve interpretive and other communication services for
deaf prisoners in Virginia. The settlement agreement provided:
Pursuant to 18 U.S.C. § 3626(c)(2), during the term of the
Agreement, plaintiffs may move the court for reinstatement of the
lawsuit, or may elect to proceed in state court and seek specific performance or institute an action for breach subject to notification as set
forth in paragraph 2 of this Subsection. An action to enforce this
Agreement does not include any action for damages. A Deaf inmate
seeking to enforce this Agreement in state court can only seek to have
a court order [Virginia Department of Corrections] or [Virginia
Department of Correctional Education] to comply with the terms of
this Agreement. . . . This Agreement is a private settlement agreement within the meaning of 18 U.S.C. § 3626.54

The court accordingly “ORDERED that by consent of the parties and
consistent with 18 U.S.C. § 3626(c)(2), the Court shall retain jurisdiction pursuant to Kokkonen v. Guardian Life Insurance Co. of America,
511 U.S. 375 (1994) through October 18, 2015 for the limited purpose
of reinstating this lawsuit under the terms of the Agreement.”55
Rule 41(a) dismissals sometimes specify more comprehensively the
conditions governing reinstatement of the action, requiring adjudication
of non-compliance prior to continuation of the underlying litigation. For
example, the settlement of a state-wide Native American religion case
against New York’s Department of Corrections provided:
[T]he parties will jointly move the Court for entry of an order dismissing this action, pursuant to Fed. R. Civ. P. 23(e) and 41(a)(2),
and will attach a copy of this Stipulation to such motion. This dismissal shall be without prejudice to plaintiffs’ right to move to reinstate
Taylor v. Arizona, No. Civ. 72-21 PHX (D. Ariz. Oct. 19, 1973), available at http://chadmin.clear
inghouse.net/chDocs/public/PC-AZ-0007-0010.pdf (“That all relief sought by plaintiff members
of the class heretofore designated to which they are entitled is granted by this Judgment and that
the class, collectively and individually, is entitled to no other relief under this action.”); Taylor v.
United States, 181 F.3d 1017, 1018 (9th Cir. 1999) (quoting that provision and holding that the
1973 judgment therefore did not constitute prospective relief subject to termination under the
PLRA).
54. Settlement Agreement at 21–22, Minnis v. Johnson, No. 1:10-cv-00096 (E.D. Va. Oct.
18, 2010), available at http://chadmin.clearinghouse.net/chDocs/public/PC-VA-0019-0001.pdf.
55. Order ¶ 2, Minnis v. Johnson, No. 1:10-cv-00096 (E.D. Va. Nov. 16, 2010); Docket Entry
109, Minnis v. Johnson, No. 1:10-cv-00096 (E.D. Va. Nov. 16, 2010), available at http://
chadmin.clearinghouse.net/chDocs/public/PC-VA-0019-9000.pdf.

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the action, . . . within three (3) years from the date the Stipulation is
signed.
If, after sixty (60) days following any meeting [about compliance] . . . , plaintiffs’ counsel believes that defendants are not in “substantial compliance” with the terms of this Stipulation (as defined
herein), plaintiffs’ counsel may request a conference with all parties
before the Honorable Charles J. Siragusa, United States District
Court, concerning the filing of a motion to reinstate this lawsuit . . . . Plaintiffs’ counsel may request such a conference no earlier
than five (5) months from the date this Stipulation is signed by the
parties. Defendants shall be considered to be in “substantial compliance” with the terms of this Stipulation unless defendants’ failures or
omissions to meet the terms of the Stipulation were not minimal or
isolated but were substantially and sufficiently frequent and widespread as to be systemic.
....
The case shall not be reinstated unless the Court finds by clear and
convincing evidence that defendants’ failures or omissions to meet
the terms of the Stipulation were not minimal or isolated but were
substantially and sufficiently frequent and widespread as to be
systemic.56

Under these provisions, if the plaintiffs sought to continue this litigation
based on non-compliance with the settlement, they would first have to
demonstrate that non-compliance to the district judge, and that showing
would win merely the procedural right to continue to litigate, as if the
settlement had never occurred.57
In a system-wide case dealing with solitary confinement of prison56. Rule 41 Voluntary Stipulation of Dismissal Subject to Conditions at 17–18, Hughes v.
Goord, No. 6:97-cv-06431 (W.D.N.Y. July 9, 1999), available at http://www.clearinghouse.net/
chDocs/public/PC-NY-0040-0001.pdf; see also Decision and Order at 7, Hughes v. Goord, No.
6:97-cv-06431 (W.D.N.Y. Sept. 5, 2000), available at http://www.clearinghouse.net/chDocs/
public/PC-NY-0040-0003.pdf (“It is hereby ordered that this action is dismissed as settled, upon
the terms set forth in the stipulation of dismissal [#30], which is incorporated and made a part of
this Decision and Order.”). For more information on the case, see Case Profile: Hughes v. Goord,
No. 6:97-cv-06431 (W.D.N.Y.), CIV. RIGHTS LITIG. CLEARINGHOUSE, http://www.clearinghouse.
net/detail.php?id=887 (last visited Aug. 30, 2014).
57. For an example of a decree in which reinstatement required adjudication of noncompliance, see Order [Adopting Findings and Recommendations], Rouser v. White, No. 2:93-cv00767 (E.D. Cal. Mar. 23, 2004), available at http://chadmin.clearinghouse.net/chDocs/public/
PC-CA-0066-0004.pdf (adjudicating a motion “to enforce a settlement agreement by reinstating
[the original] civil rights action,” and remanding for “an evidentiary hearing, using applicable
standards of contract law, to determine whether the settlement agreement was in fact violated”);
Order [On Motion to Vacate Evidentiary Hearing Date], Rouser v. White, No. 2:93-cv-00767
(E.D. Cal. Aug. 4, 2004), available at http://chadmin.clearinghouse.net/chDocs/public/PC-CA0066-0008.pdf (denying motion to vacate the hearing date); [Proposed] Order, Rouser v. White,
No. 2:93-cv-00767 (E.D. Cal. Aug. 9, 2005), available at http://chadmin.clearinghouse.net/
chDocs/public/PC-CA-0066-0021.pdf (proposing a stipulation to reinstate action). For more
information on this case, see Case Profile: Rouser v. White, No. 2:93-cv-00767 (E.D. Cal.), CIV.

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ers with mental illness, another court took a similar tack, although it
framed the settlement as a stay, rather than a conditional dismissal. This
framing has the advantage of ensuring that the settlement cannot be
viewed as a final judgment, insulating it from appellate challenge. It
may also facilitate ongoing informal supervision.58 The agreement in
that case provided:
If the Court finds that the [Massachusetts Department of Correction] is not in substantial compliance, i.e., is in substantial non-compliance, with a provision or provisions of this Settlement Agreement,
it may enter an order consistent with equitable principles, but not an
order of contempt, that is designed to achieve compliance.59

And then, escalation:
If [the Disability Law Center, Inc.] contends that the Department
has not complied with an order entered under the preceding paragraph, it may, after reasonable notice to the Department, move for
further relief from the Court to obtain compliance with the Court’s
prior order. In ruling on such a motion, the Court may apply equitable
principles and may use any appropriate equitable or remedial power
then available to it.60

Given this provision for enforcement, this agreement reads almost like a
consent decree. But the district court explained in its order approving the
agreement that “to obtain an order providing relief that is enforceable by
contempt, plaintiff must prove not only that a provision of the Agreement has been violated but also that there has been a violation of a federal right, and that the relief ordered is limited only to what is necessary
to remedy that violation as required by the PLRA, 18
U.S.C. § 3626(a)(1)(A).”61
Other settlements that define non-compliance as a prerequisite for
reinstatement of the action assign the evaluation of non-compliance to
experts, rather than the court. In a lawsuit under the Civil Rights of
Institutionalized Persons Act,62 brought by the United States against the
state of Montana, the parties agreed:
Immediately upon execution of this Agreement, the parties shall
jointly move the Court for entry of an Order conditionally dismissing
RIGHTS LITIG. CLEARINGHOUSE, http://www.clearinghouse.net/detail.php?id=13836 (last visited
Aug. 30, 2014).
58. These advantages were highlighted for me by John Boston.
59. Settlement Agreement at 17, Disability Law Ctr. v. Mass. Dep’t of Corr., No. 1:07-cv10463 (D. Mass. Dec. 13, 2011), available at http://www.clearinghouse.net/chDocs/public/PCMA-0026-0004.pdf.
60. Id.
61. Disability Law Ctr. v. Mass. Dep’t of Corr., 960 F. Supp. 2d 271, 277–78 (D. Mass.
2012).
62. 42 U.S.C. §§ 1997–1997h (2012).

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this action, pursuant to Fed. R. Civ. P. 41(a)(2), conditional upon
defendants’ achieving compliance with its terms, and shall attach this
Agreement to such motion. The motion shall request that the case be
placed on the Court’s inactive docket, though the Court shall retain
jurisdiction over the case until a final dismissal with prejudice.
....
If the experts conclude at the end of their fourth evaluation tour
that there remain areas in which defendants have failed to reach substantial compliance, defendants will be in default of this agreement,
and the case shall, upon plaintiff’s motion, be restored to the Court’s
active docket as to those issues affected by defendants[’] failure to
comply.63

And still other agreements allow plaintiffs’ counsel to determine
when non-compliance justifies reinstatement of the action, without
requiring any third-party or judicial agreement. For example, in another
New York case, this one involving transportation of prisoners who use
wheelchairs, the settlement provided:
Following any meeting with the Court as set forth in Paragraph
14 above, Plaintiff’s counsel may file a motion with the Court for an
Order reinstating the issues of this lawsuit which are the subject of
this Voluntary Stipulation of Partial Dismissal. Plaintiff may not file
such a motion without first requesting a pre-motion meeting with the
Defendants and the Court as provided in Paragraphs 13 and 14 above
and, if granted by the Court, participating in such meeting. Plaintiff
shall make such a motion for reinstatement only upon Plaintiff’s
counsel’s good faith belief that there is a failure on the part of
Defendants to comply with the terms of this Voluntary Stipulation
that is more substantial and pervasive than an isolated instance of a
prisoner in a wheelchair being transported in a fashion which is not in
accordance with this agreement.64

Finally, plaintiffs may expressly retain their complete discretion to
reinstate the matter. This was the approach in a jail settlement with the
City of Philadelphia, which provided, simply, “Plaintiffs reserve the
right to reinstate these proceedings during the pendency of the Settlement Agreement.”65
Whatever the language governing reinstatement, it seems that very
63. Stipulated Agreement at 1–2, 13, United States v. Montana, No. 94-cv-90 (D. Mont. Jan.
27, 1997), available at http://www.clearinghouse.net/chDocs/public/PC-MT-0003-0005.pdf.
64. Rule 41 Voluntary Stipulation of Partial Dismissal Subject to Conditions at 6–7, Shariff v.
Goord, No. 6:04-cv-06621 (W.D.N.Y. Oct. 20, 2011), available at http://www.clearinghouse.net/
chDocs/public/PC-NY-0057-0005.pdf.
65. Settlement Agreement at 4, Williams v. City of Philadelphia, No. 2:08-cv-01979 (E.D. Pa.
Apr. 29, 2011), available at http://chadmin.clearinghouse.net/chDocs/public/JC-PA-00340010.pdf.

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few prisoner-plaintiffs have actually sought reinstatement for an allegedly breached settlement. In fact, I have been able to locate only two
such cases,66 after searching both Westlaw and the Civil Rights Litigation Clearinghouse67 and after asking prisoners’ lawyers on a well-populated listserv. I can only speculate about the causes of this scarcity.
Given the demonstrably high prevalence of non-compliance with (de
jure) fully enforceable settlements, documented in thousands of opinions
over the decades, it seems most plausible that compliance with private
settlement agreements is similarly spotty. But perhaps plaintiffs agree to
private settlements more readily when they are very confident about
prospects for compliance, so non-compliance is rarer than in the case of
enforceable agreements. Alternatively, or in addition, perhaps reinstatements are few and far between because threats to seek reinstatement
often succeed in eliciting compliance or something closer to it. Or perhaps reinstatements or efforts to obtain them are occurring, but are simply hard to locate. Clearly, though, reinstatement is not common; it’s
hard for plaintiffs’ counsel to gear up again to pursue a litigation that
was previously settled.
3.

STATE-COURT ENFORCEMENT

Settlements can also qualify as PLRA-defined “private settlement
agreements” if they are subject to state-court enforcement, rather than or
in addition to reinstatement of the federal litigation.68 Many settlements
duly recite state court enforcement as a possible remedy for non-compliance. For example, the settlement in a lawsuit brought by mentally ill
Indiana prisoners provided: “The parties recognize and acknowledge
that this Private Settlement Agreement is intended to be a valid contract
under the laws of the State of Indiana, enforceable in the courts of the
State of Indiana.”69
66. See Case Profile: Rouser v. White, supra note 57; Case Profile: Williams v. City of
Philadelphia, No. 2:08-cv-01979 (E.D. Pa.), CIV. RIGHTS LITIG. CLEARINGHOUSE, http://
www.clearinghouse.net/detail.php?id=13838 (last visited Feb. 25, 2015).
67. CIV. RIGHTS LITIG. CLEARINGHOUSE, http://www.clearinghouse.net (last visited Aug. 31,
2014). The Civil Rights Litigation Clearinghouse, which I founded and head, collects and displays
documents and information relating to large-scale civil rights cases in many categories. PostPLRA private settlement agreements in jail and prison injunctive cases are collected at Special
Collection: Post-PLRA Jail and Prison Private Settlement Agreements, CIV. RIGHTS LITIG.
CLEARINGHOUSE, http://www.clearinghouse.net/results.php?searchSpecialCollection=29 (last
visited Aug. 31, 2014).
68. 18 U.S.C. § 3626(c)(2) (2012).
69. Private Settlement Agreement Between Defendants and Plaintiffs at 2, Mast v. Donahue,
No. 2:05-cv-00037 (S.D. Ind. Jan. 23, 2007), available at http://www.clearinghouse.net/chDocs/
public/PC-IN-0013-0002.pdf. For more information on the case as a whole, see Case Profile:
Mast v. Donahue, No. 2:05-cv-00037-LJM-WGH (S.D. Ind.), CIV. RIGHTS LITIG. CLEARINGHOUSE,
http://www.clearinghouse.net/detail.php?id=5554 (last visited Aug. 30, 2014).

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But typically such recitations are not, it seems, the prelude to actual
ventures into state court to enforce federal settlements. State court is
often an unattractive forum for plaintiffs. (After all, if they preferred
state court, they could have sued there to begin with.70) It has been
argued persuasively that state-court enforcement of a settlement-as-contract is even more unattractive, because of doctrines and inclinations
toward governmental immunity and against specific performance of contracts, as well as state PLRA-analogues and more general deference to
prison administrators.71 Moreover, as the district court noted in a New
York City jail case, the burden of starting over with a new judge, in a
large-scale litigation, is far from small:
[I]t makes little sense that, if a perceived problem with compliance
should arise, short of seeking reinstatement of this action, plaintiffs
can seek relief only in state court under state law. In view of the time
and effort I have spent on this case, including countless hours discussing not only the substantive terms of the Agreement but also its
language, it would be a tremendous waste of resources for the parties
to have to go to state court to seek relief from a state court judge
wholly unfamiliar with the case.72

A 2008 study was unable to find a single example of state enforcement
of a federal prisoners’ rights settlement agreement. I, too, have found no
such report, despite searches using Westlaw, the Civil Rights Litigation
Clearinghouse, and word-of-mouth. (The closest near-exceptions I found
were some early failed attempts by prisoners, who countered termination
of pre-PLRA decrees by arguing that even if the PLRA rendered those
decrees unenforceable in federal court after a termination motion, they
remained enforceable in state court as private contracts. They lost: the
federal courts found that the old decrees did not qualify as private settlement agreements and were fully terminable under 18 U.S.C.
§ 3626(b).73)
In fact, the prospect of reviving a settled federal litigation in state
court, in front of a judge who is new to the dispute, is so daunting to
70. Of course, defendants in a civil rights suit asserting federal rights can also remove that
action to federal court if they so choose. See 28 U.S.C. § 1441(a) (2012) (authorizing defendants
to remove from state court to federal court “any civil action brought in a State court of which the
district courts of the United States have original jurisdiction”).
71. Alison Brill, Note, Rights Without Remedy: The Myth of State Court Accessibility After
the Prison Litigation Reform Act, 30 CARDOZO L. REV. 645 (2008).
72. Ingles v. Toro, 438 F. Supp. 2d 203, 215–16 (S.D.N.Y. 2006).
73. See Benjamin v. Jacobson, 172 F.3d 144, 156 (2d Cir. 1999) (en banc) (“We do not see
any basis for inferring that Congress meant federal consent decrees that are not based on [the
required PLRA findings] to remain in effect and amenable to enforcement in state courts.”), cert.
denied, 528 U.S. 824 (1999); Hazen ex rel. LeGear v. Reagan, 208 F.3d 697, 699 (8th Cir. 2000)
(“We therefore hold that the PLRA prohibits the state-court enforcement, on a contract theory or
otherwise, of federal consent decrees that do not meet the PLRA standards.”).

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litigants that the parties may dictate a requirement of mediation before
the federal judge as a prerequisite to state-court enforcement. For
example:
Plaintiff may . . . elect to proceed in State court and seek specific
performance of the terms of this Agreement; provided, that plaintiff
shall have first sought to resolve any compliance issue through the
meet and confer and mediation procedures set forth in this Section,
and such meet and confer procedures and mediation by [the federal
judge] shall have failed to achieve a resolution.74

IV.

TERMINATION

OF

PROSPECTIVE RELIEF

Once prospective relief that complies with the PLRA’s constraints
on entry is approved—whether based on consent (with the types of stipulations discussed in Part III.B) or after litigation—it becomes far more
vulnerable to frequent challenge than other injunctions.
A.

What the PLRA Requires

The PLRA provides:
In any civil action with respect to prison conditions in which prospective relief is ordered, such relief shall be terminable upon the motion
of any party or intervener . . . [two] years after the date the court
granted or approved the prospective relief; [or one] year after the date
the court has entered an order denying termination of prospective
relief under this paragraph . . . .75

A motion for termination should be granted unless “the court makes
written findings based on the record that prospective relief remains necessary to correct a current and 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.”76 Thus the same need-narrowness-intrusiveness requirements for entry of new relief apply to maintenance of existing relief, with the add-on requirements that the findings
be written and based on a “current and ongoing” civil rights violation. In
addition, a motion to terminate prospective relief leads to an automatic
stay of that relief after 30 days, postponable to 90 days for good cause.77
These statutory rules governing termination of an injunction are
substantially more defendant-friendly than the standards applicable to
74. Private Settlement Agreement at 24, Disability Advocates, Inc. v. N.Y. State Office
Mental Health, No. 02-cv-04002 (S.D.N.Y. Apr. 27, 2007), available at http://www.clearing
house.net/chDocs/public/PC-NY-0048-0002.pdf.
75. 18 U.S.C. § 3626(b)(1) (2012).
76. 18 U.S.C. § 3626(b)(3).
77. 18 U.S.C. § 3626(a)(2)–(3).

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other areas of law. For both litigated and consented injunctions, motions
to modify or dissolve the injunction proceed under Federal Rule of Civil
Procedure 60(b), which provides, in pertinent part:
On motion and just terms, the court may relieve a party or its legal
representative from a final judgment, order, or proceeding for the following reasons: . . . (5) the judgment has been satisfied, released, or
discharged; it is based on an earlier judgment that has been reversed
or vacated; or applying it prospectively is no longer equitable; or (6)
any other reason that justifies relief.78

The Supreme Court has explained that dissolution of an injunction,
whether contested or consented, is appropriate when the defendant has
“complied in good faith with the . . . decree since it was entered,” and
“eliminated to the extent practicable” the “vestiges” of past constitutional violations.79 In addition, while Rule 60(b) requires the dissolution
of a litigated decree if the law changes to make legal what the injunction
forbids,80 consent decrees are more stable. Modifications to consent
decrees “should not strive to rewrite a consent decree so that it conforms
to the constitutional floor.”81 Instead, while consent decree modification
may be “justified based on changes in either law or fact,” the Court has
highlighted the importance of preserving “the finality of such agreements” and avoiding “disincentive[s] to negotiation of settlements in
institutional reform litigation.”82
The point is that in areas outside the ambit of the PLRA, there is no
prospect of annual relitigation of the necessity of consent decrees.
Defendants who want an injunction lifted generally must establish that
they have complied with that injunction, rather than arguing that, irrespective of their compliance, there is no extant violation of the constitutional rights of the plaintiffs. Frequent relitigation of the alleged
violations underlying decrees can distract from efforts to solve the
problems that prompted the decree in the first place, pull plaintiffs’
counsel from their monitoring tasks, and shrink the feasibility of solutions that take more than a year to implement.

78. FED. R. CIV. P. 60(b).
79. Bd. of Educ. of Okla. City Pub. Sch. v. Dowell, 498 U.S. 237, 249–50 (1991); see also
Freeman v. Pitts, 503 U.S. 467, 492 (1992).
80. See, e.g., Pennsylvania v. Wheeling & Belmont Bridge Co., 59 U.S. 421, 431–32 (1855)
(“If, in the mean time, since the decree, this right has been modified by the competent
authority . . . it is quite plain the decree of the court cannot be enforced.”).
81. Rufo v. Inmates of Suffolk Cnty. Jail, 502 U.S. 367, 391 (1992).
82. Id. at 389.

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B.

543

How the Prisoners’ Rights Bar Has Responded,
and Should Respond

Prior to the PLRA, I estimate that there were hundreds of “orphan
decrees” applicable to jails and prisons around the country. These were
decrees entered at some point, presumably mostly in the 1970s and
1980s, whose plaintiffs’ counsel was no longer actively monitoring or
enforcing them.83 I worked on one such jail conditions case, against Jefferson County, Alabama, which included jails in Birmingham and Bessemer, Alabama. The matter had been litigated in the 1980s by both
private plaintiffs’ counsel and the United States, which sided with the
plaintiffs. But by the time a motion to terminate was filed in 1997, it had
been years since either class counsel or the Department of Justice had
done any monitoring at all, much less sought to enforce the aging
decree.84
This kind of neglect obviously undermines the prospects of compliance. Since passage of the PLRA, neglect can also render cases highly
susceptible to termination. After all, the statute provides that defendants
can seek an end of prospective relief at any point beginning two years
after such relief is entered.85 And when a termination motion is filed, the
plaintiffs have an extremely limited amount of time to marshal evidence
opposing it, or suffer, at least, the consequences of an automatic stay and
potentially more permanent loss. If plaintiffs’ counsel are going to be
able to fend off a motion to terminate, they need to prepare well before
the motion is filed, and they need to remain prepared. In the Jefferson
County jail case, it was a mad scramble to arrange a jail tour and review
the documents needed to oppose the termination motion. If the jail
authorities had offered even slight resistance to discovery, the time
likely would have been insufficient.86
83. I have written about such decrees in California jail litigation in particular. See Margo
Schlanger, Plata v. Brown and Realignment: Jails, Prisons, Courts, and Politics, 48 HARV. C.R.C.L. L. REV. 165, 215 (2013).
84. The case was Thomas v. Gloor, No. 77-P-0066-S (N.D. Ala.) (injunction entered Aug. 28,
1978). For a summary of the litigation and a few of the 1997 documents, see Case Profile:
Thomas v. Gloor, No. 77-P-0066-S (N.D. Ala.), CIV. RIGHTS LITIG. CLEARINGHOUSE, http://
www.clearinghouse.net/detail.php?id=11308 (last visited Oct. 14, 2015).
85. Even if defendants agree not to seek termination, an intervenor might do so. See 18
U.S.C. § 3626(b)(1)(A) (2012) (“In any civil action with respect to prison conditions in which
prospective relief is ordered, such relief shall be terminable upon the motion of any party or
intervener . . . .”). Ordinary intervention rules apply: the PLRA’s statutory grant of broad
intervention rights to state and local officials governs only prisoner release orders. 18 U.S.C.
§ 3626(a)(3)(F).
86. Transcript of Proceedings at 17, Thomas v. Gloor, No. 77-P-0066-S (N.D. Ala. Aug. 6,
1997), available at http://www.clearinghouse.net/chDocs/public/JC-AL-0022-0001.pdf. The
posture of this particular case was quirky: the county and state were both defendants, and the
county benefitted from the decree’s requirement that the state promptly pick up sentenced

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In the years since passage of the PLRA, the prisoners’ rights bar
has worked through enough of these scrambles to develop some coping
strategies. Two types of preparation for a termination motion have
emerged: First, the parties sometimes agree to stretch out the remediation period beyond the PLRA’s default two years. Second, plaintiffs’
counsel have worked to ensure that they are collecting sufficient information to inform their potentially hurried response to a termination
motion.
1.

LENGTHENING

THE

REMEDIAL PERIOD

Systemic litigation occurs when there are serious and systemic
problems. Those problems take time to remedy, as settling defendants
will often agree. Accordingly, prisoner-plaintiffs have sometimes succeeded in obtaining prison and jail officials’ agreement to change the
terms on which those officials may seek or obtain termination of a settlement. This kind of agreement may be beneficial for defendants, as well,
because it frees them for a time from responding to plaintiffs’ litigationdriven discovery requests. It’s an open question whether an agreement
that alters the PLRA’s timing or another feature would be binding on the
parties if challenged—perhaps by the defendant correctional system
itself (maybe after an election brings to office a new sheriff or governor
who disagrees with the negotiated deal), or perhaps by some interested
third party with standing to object, if one exists. I think the best answer
is yes, such agreements would be binding; there’s insufficient reason to
take the unusual approach of interpreting the PLRA’s provisions as
unwaivable.87 In any event, such stipulations have rarely if ever been
challenged.
Termination stipulations take a number of approaches. Sometimes,
the parties opt out of the PLRA’s termination provisions altogether, as in
a settlement in the Albuquerque jail litigation:
The Defendants will not file any motion in the future asserting that
this Stipulated Settlement should be terminated under the Prison Litigation Reform Act.88

In other agreements the parties lengthen the period of time prior to a
prisoners and transfer them from jail to prison. Accordingly, it was in the county’s interest to have
the challenged decree remain operative. Id. at 33–36.
87. My thinking is that the situation is similar to that in United States v. Mezzanatto, 513 U.S.
196 (1995), in which the Supreme Court held that a criminal defendant could waive the statutory
rule barring introduction at trial of statements made during plea negotiations. I thank David
Rudovsky for proposing this comparison.
88. Stipulated Settlement Agreement Between Plaintiffs and Defendants at 7, McClendon v.
City of Albuquerque, No. 6:95-cv-00024 (D.N.M. June 30, 2005), available at http://chadmin.
clearinghouse.net/chDocs/public/JC-NM-0002-0012.pdf.

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termination motion. For example, in litigation by deaf or hard-of-hearing
prisoners against the Washington State Department of Corrections:
In order to give the provisions contained herein an opportunity to be
implemented and evaluated, both parties agree not to challenge this
agreement for a period of four years.89

In still other decrees, the parties alter the terms on which termination can
take place, agreeing to a prerequisite of decree compliance. So, for
example, in a case brought by the Prison Legal News and joined by the
U.S. Department of Justice against a South Carolina jail:
Defendants shall provide written notice to the Plaintiffs and the
United States 30 days before filing any motion seeking to modify or
terminate this Consent Injunction. Defendants shall not provide such
notice or file such motion until they have achieved a minimum of one
year of substantial compliance with the provisions of this Consent
Injunction. If Plaintiffs and the United States determine that Defendants have achieved one year of substantial compliance with the provisions of this Consent Injunction, Plaintiffs and the United States
will not oppose a motion filed by Defendants seeking to modify or
terminate this Consent Injunction.90

Or, similarly, in California’s system-wide prison case by prisoners with
developmental disabilities:
Defendants may move to vacate this Settlement Agreement and dismiss the case on the ground that they have substantially complied
with the plan set forth in Appendix A as modified for a period of
three years. Plaintiffs may oppose the motion, and shall have the burden of proving that defendants are not in substantial compliance.91

By imposing a default sunset period on jail and prison decrees, the
PLRA’s termination provisions strengthen the bargaining power of cor89. Settlement Agreement at 5, Duffy v. Riveland, No. C92-cv-1596R (W.D. Wash. June 3,
1998), available at http://chadmin.clearinghouse.net/chDocs/public/PC-WA-0003-0004.pdf; see
also, e.g., Consent Order at 2, Duvall v. Glendening, No. 1:76-cv-01255 (D. Md. Aug. 22, 2002),
available at http://chadmin.clearinghouse.net/chDocs/public/PC-MD-0006-0003.pdf (“Defendants
have agreed that they will neither challenge nor otherwise seek to modify the terms of this Order,
without Plaintiffs’ consent, for a period of 14 months from date of entry.”).
90. Consent Injunction ¶ 56, Prison Legal News v. Berkeley Cnty. Sheriff, No. 2:10-cv-02594
(D.S.C. Jan. 13, 2012), available at http://chadmin.clearinghouse.net/chDocs/public/JC-SC-00030002.pdf.
91. Interim Agreement and Stipulation at 7–8, Clark v. California, No. 3:96-cv-0186 (N.D.
Cal. July 20, 1998), available at http://chadmin.clearinghouse.net/chDocs/public/PC-CA-00050002.pdf; see also, e.g., Stipulation for Injunctive Relief ¶ 261, Fussell v. Wilkinson, No. 1:03-cv00704 (S.D. Ohio May 21, 2008), available at http://chadmin.clearinghouse.net/chDocs/public/
PC-OH-0020-0008.pdf (“Oversight by the Monitor shall continue for five (5) years following the
entry of this Stipulation unless sooner terminated on motion to the Court by the Defendants, and a
finding is made by the Court following a determination on that issue by the Monitor, that
substantial compliance has been achieved on all terms and been maintained for a period of two
years in all areas.”).

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rections officials. But, as the above quotations demonstrate, there are
still circumstances in which defendants agree to a different approach,
whether because they think a longer remediation period is better for its
own sake or because they are able to trade the lengthened remedial term
for something they care about more.
2.

GATHERING INFORMATION

Institutional reform remedies almost always include information
collection provisions, which are crucial for monitoring compliance. But
the PLRA makes fact-gathering even more important—useful not just to
pressure defendants into compliance but to oppose an unwarranted
motion to terminate. If information is sufficiently current and of the right
provenance,92 sometimes it can itself be introduced in court. But even if
not, keeping up to date about what’s going on inside the jail or prison
can help plaintiffs’ counsel prioritize post-motion discovery relating to
issues in the challenged injunction that remain problematic. A number of
methods are helpful, bringing together discovery leads, site inspections,
document production, and client contact. It’s worth quoting at length
some decrees that use these methods.93
One consent decree was negotiated after the district court entered a
preliminary injunction based on plaintiffs’ proof of widespread constitutional violations at the Morgan County Jail, in Alabama.94 The decree
provided, in part:
38. To ensure compliance with this agreement, County Defendants shall provide to Plaintiffs’ counsel each month a complete and
up-to-date census of the Jail population that lists inmates by location,
status (awaiting trial, state convicted, or county convicted), all criminal charges, and length of confinement. County Defendants shall also
provide to Plaintiffs’ counsel on a quarterly basis a complete and upto-date security staffing report that includes staff names and
assignments.
92. The PLRA uses the word “current.” This means at the time the termination motion is
made. An “instantaneous snapshot . . . is impossible,” but the record must be recent. Lancaster v.
Tilton, No. 79-01630, 2007 WL 4570185, at *5 (N.D. Cal. Dec. 21, 2007). Compare id. (record
made over previous thirteen months is adequate), with United States v. Territory of the Virgin
Islands, 884 F. Supp. 2d 399, 418–19 (D.V.I. 2012) (five-year-old findings “too dated,” although,
“if properly updated by current findings, [they] could serve as an appropriate factual foundation”).
93. The Civil Rights Litigation Clearinghouse collects post-PLRA enforceable decrees, many
of which have terms like the ones repeated here. See Special Collection: Post PLRA Enforceable
Consent Decrees, CIV. RIGHTS LITIG. CLEARINGHOUSE, http://www.clearinghouse.net/results.php?
searchSpecialCollection=28 (last visited Sept. 2, 2014).
94. Maynor v. Morgan Cnty., Ala., 147 F. Supp. 2d 1185 (N.D. Ala. 2001). For information
on the case as a whole, see Case Profile: Maynor v. Morgan Cnty., Ala., No. 5:01-cv-00851 (N.D.
Ala.), CIV. RIGHTS LITIG. CLEARINGHOUSE, http://www.clearinghouse.net/detail.php?id=10041
(last visited Oct. 15, 2014).

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39. On a monthly basis for the first year after the effective date
of this order, and on a quarterly basis thereafter, County Defendants
shall provide to Plaintiffs’ Counsel the physician sick call schedule
for the previous month, including the name of each physician who
worked, the actual days he or she was present at the Jail, the actual
number of hours he or she spent at the Jail on each of these days, and
how many patients he or she treated on each of these days. County
Defendants shall provide this information with regard to on-site visits
by the psychiatrist and psychiatric social worker and any other specialist who provides care on-site at the Jail, as well. The nursing
schedule for the previous month, including the name of each nurse
who worked, his or her qualifications (i.e., RN [registered nurse]), the
days and hours he or she actually worked, and the number of patients
he or she saw on each day worked.95

In both paragraphs, the requirement of lists of names and locations
serves several functions: it reveals compliance problems where they
exist; makes compliance reporting less impressionistic and more likely
to be accurate, which itself pressures the defendants to more comprehensive compliance; and provides names of potential interviewees.
The decree continues:
40. Plaintiffs’ counsel shall have reasonable access to Jail
records, Jail inmates, and the Jail facility, including escorted, unannounced walk-through visits of the Jail on a quarterly basis during the
first year following the entry of this Consent Decree, and twice a year
thereafter. Paralegals working directly with Plaintiffs’ counsel shall
have reasonable access to Jail inmates and will be accompanied by an
attorney during any walk-through of the Jail. Class counsel and their
paralegals may bring experts at their own expense on such walkthrough visits. Should class counsel or their paralegals bring a medical expert, the medical expert shall have access to all medical records
and charts kept or created by the Jail. This Consent Decree does not
prevent County Defendants from changing the medical providers who
provide services at the Jail.96

This provision allows plaintiffs’ counsel to maintain a good working
knowledge of what is going on at the jail, and also to maintain relationships with their clients. This last is particularly useful because of an alltoo-common feature of large-scale injunctive litigation, particularly litigation involving closed facilities like jails and prisons—the palpable
separation between the plaintiff class and their lawyers. There are many
methods to bridge this gap: frequent visits and consultations, plaintiffs’
95. Consent Decree Applicable to the Plaintiff Class and the County Defendants ¶¶ 38–39,
Maynor v. Morgan Cnty., Ala., No. 5:01-cv-00851 (N.D. Ala. Sept. 25, 2001), available at http://
chadmin.clearinghouse.net/chDocs/public/JC-AL-0020-0002.pdf.
96. Id. ¶ 40.

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committees, and the like. And there are many reasons for plaintiffs’
counsel to make the effort. Most relevant here is that even if prisoners’
information about conditions at their prison is not wholly accurate, it is
probably far more detailed than their lawyers can easily get by other
methods. At least sometimes, prisoners can tell their lawyers whether
non-compliance with a particular injunctive provision is common or rare
and can identify particular incidents that might warrant further
investigation.
A Georgia jail decree in a case brought by the United States took a
different approach to compliance monitoring, requiring reporting not of
the raw facts of compliance, but of the initiatives undertaken, although
underlying documentation was also required to be maintained:
51. Defendants shall submit quarterly compliance reports to the
United States and the Court, the first of which shall be submitted
within sixty (60) days after the entry of this Decree. Thereafter, the
reports shall be submitted fifteen (15) days after the termination of
each quarter continuing until the Decree is terminated. The reports
shall describe the actions the Defendants have taken during the
reporting period to implement this Decree and shall make specific
reference to the Decree provisions being implemented.
52. Defendants shall keep such records as will fully document
that the requirements of this Decree are being properly implemented
and shall make such records available at the Jail at all reasonable
times for inspection and copying by the United States.
53. Defendants shall submit records or other documents to verify that they have taken such actions as described in their compliance
reports and will also provide all documents reasonably requested by
the United States. As part of this compliance process, documents submitted shall include a daily population count for the Jail, a separate
count of the number of inmates in each cell or dorm, and staffing
levels.
....
55. During the period in which the Court maintains jurisdiction
over this action, the United States and its attorneys, consultants, and
agents shall have unrestricted access to the Jail, Jail inmates, Jail
staff, and documents as necessary to address issues affected by this
Decree. The United States’ unrestricted access shall not conflict with
the orderly operation of the Jail. Nothing in this Decree prohibits discovery pursuant to the Federal Rules of Civil Procedure.97

And for one of the (mammoth) system-wide California prison
cases, plaintiffs’ counsel essentially combined both approaches:
97. Consent Decree ¶¶ 51–53, 55, United States v. Clay Cnty., Ga., No. 4:97-cv-00151 (M.D.
Ga. Aug. 20, 1997), available at http://chadmin.clearinghouse.net/chDocs/public/JC-GA-00100004.pdf.

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15. Monitoring and Access to Information. Defendants shall
provide plaintiffs’ counsel with reasonable access to information sufficient to monitor defendants’ compliance with their plan. Access to
such information shall be provided in the ordinary course of business
from the date this Settlement Agreement is approved by the Court.
Such information shall include, but is not limited to, the following
documents:
a. A monthly report of the identity and location of all identified
members of the plaintiff class;
b. The complete medical, psychiatric and non-confidential central files of the plaintiff class;
c. All internal reviews or audits of defendants’ plan and
programs;
d. All budget change proposals to implement defendants’ plan
or programs;
e. All evaluations of whether prisoners are developmentally
disabled;
f. All analyses and reports concerning the reliability of defendants’ screening instruments; and
g. Documents maintained at individual institutions that are relevant to assessing the state of defendants’ compliance.
16. Plaintiffs shall be able to conduct 33 tours of institutions
housing members of the plaintiff class per year (including multiple
tours of the same institutions), with or without their expert consultants. Such tours shall include access to institutional programs and
classification and disciplinary hearings, housing facilities, recreational yards, and all other areas of the institution normally used by
inmates. Defendants shall make available for interview departmental,
custodial, clinical and program staff that have responsibility for the
care, treatment, safety, classification, housing, discipline and programming of class members. Plaintiffs’ counsel shall be able to have
brief discussions with inmates during the tours and shall be able to
provide prison staff with counsel’s name and address for distribution
to specific inmates. Defendants also shall provide plaintiffs’ counsel
access to confidential interviews with inmates before or after the
tours, as arranged among counsel, during regular business hours
without regard to regular visiting hours and days. Plaintiffs reserve
their right to seek to depose departmental, custodial, clinical, and program staff members.98

Yet another tack is to develop a procedure for independent or
shared development of facts, which are then available for use in a termi98. Interim Agreement and Stipulation ¶¶ 15–16, Clark v. California, No. 3:96-cv-01486
(N.D. Cal. July 20, 1998), available at http://chadmin.clearinghouse.net/chDocs/public/PC-CA0005-0002.pdf.

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nation proceeding. This might be done by a court-approved monitor, a
panel of experts, or some other entity. For example, in an Idaho jail case:
114. The parties agree that an inspection of the existing Bonneville County Jail will be conducted by an independent inspector (preferably the Idaho Sheriffs’ Association Inspection Team—if they will
agree to conduct such inspection and provide a report of their findings) approximately three (3) and six (6) months after the effective
date of this Consent Decree to verify compliance with the agreements
set forth herein.
115. In the event that either of the parties desires verification of
any information pertinent to this Decree during the term of this
Decree, counsel for the parties agree to attempt to develop the necessary information, and if necessary, to select an expert, or other qualified individual, who shall be permitted to make the necessary
inspections and provide the parties and the Court with information
necessary to resolve any questions relevant to this Consent Decree,
Order and Judgment.99

Of course monitoring has always been a feature of institutional reform
litigation. My point here is that use of a monitor, expert panel, or other
non-party inspector can give plaintiffs the ability to respond to a termination motion within the tight statutory time frame.
V.

CONCLUSION

Post-PLRA jail and prison litigation procedures tilt sharply in favor
of defendants, the officials who run the nation’s correctional facilities.
The substantive law, too, is far from prisoner-friendly100 (although this
is well beyond the scope of this short paper). It remains possible, however, for courts to remain a forum in which some necessary prison
reform can take place. The many consent decree provisions quoted in
this paper or cited in its footnotes—and the hundreds more available at
the Civil Rights Litigation Clearinghouse—offer a library of options to
litigants in prison and jail cases affected by the PLRA. More theoreti99. Consent Decree, Order and Judgment ¶¶ 114–15, Makinson v. Bonneville Cnty., No.
4:97-cv-00190 (D. Idaho Apr. 30, 1997), available at http://chadmin.clearinghouse.net/chDocs/
public/JC-ID-0002-0001.pdf; see also Consent Decree, Order and Judgment ¶¶ 65–66, Davis v.
Canyon Cnty., No. 1:09-cv-00107 (D. Idaho Nov. 12, 2009), available at http://chadmin.clearing
house.net/chDocs/public/JC-ID-0005-0004.pdf.
100. Consider, for example, the holdings in Wilson v. Seiter, 501 U.S. 294 (1991), and Whitley
v. Albers, 475 U.S. 312 (1986). In the first, the Court held that the Eighth Amendment’s Cruel and
Unusual Punishment Clause is violated by harmful prison conditions only if prison officials have a
“culpable state of mind.” Wilson, 501 U.S. at 296–302. Even egregious mistreatment or neglect
can pass constitutional muster if it is merely negligent and not “deliberately indifferent.” Id. at
302–04. And in the second case, the Court held that uses of force in prison constitutes cruel and
unusual punishment only if “force was applied . . . maliciously and sadistically for the very
purpose of causing harm.” Whitley, 475 U.S. at 320–21.

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cally, they demonstrate that litigation tactics and procedures are
dynamic—that rule changes affect the parties’ bargaining positions, but
rarely eliminate bargaining altogether.

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APPENDIX
I have posted a compiled file containing state-by-state-by-year data
for: jail population; federal and state prison population; and federal court
prisoner filings (by type of federal/non-federal defendant). The full
panel dataset, which I used to produce this Article’s tables and figures, is
available in a Data Appendix, accessible at http://www.law.umich.edu/
facultyhome/margoschlanger/Pages/Trends.aspx. This published Appendix includes more information about the sources that underlie that posted
dataset.
A.

Federal Court Filings (Table 1 & Figure A)

All filing and outcome figures in this Article are derived from data
by the Administrative Office of the U.S. Courts and cleaned up by the
Federal Judicial Center, the research arm of the federal court system.
These data include each and every case “terminated” (that is, ended, at
least provisionally) by the federal district courts since 1970. The Federal
Judicial Center also publishes periodic reports on the data. My figures
are not from these written reports but are instead based on my compilation and manipulation of the raw data to eliminate duplicates, remands,
etc. The Federal Judicial Center lodges this database for public access
with the Inter-university Consortium for Political and Social Research,
at http://www.icpsr.umich.edu. I used the datasets listed here, pulling the
“civil terminations” data from each. By “prisoner civil rights” I mean
cases with a “nature of suit” code equal to either 550 (prisoner civil
rights) or 555 (prison conditions). I discern no clear distinction between
these two codes. A consolidated codebook for the resulting consolidated
database is posted in the online Data Appendix. Unfortunately, I am unable to post actual data because the Bureau of Justice Statistics has
instructed the ICPSR that the data be available only for restricted use.101
1970 to 2000: FED. JUDICIAL CTR., FEDERAL COURT CASES: INTEGRATED DATA BASE, 1970–2000, ICPSR STUDY No. 8429.
2001: FED. JUDICIAL CTR., FEDERAL COURT CASES: INTEGRATED DATA
BASE, 2001, ICPSR STUDY No. 3415.
2002: FED. JUDICIAL CTR., FEDERAL COURT CASES: INTEGRATED DATA
BASE, 2002, ICPSR STUDY No. 4059.
2003: FED. JUDICIAL CTR., FEDERAL COURT CASES: INTEGRATED DATA
BASE, 2003, ICPSR STUDY No. 4026.
101. Restricted-Use Data Management, ICPRS, http://www.icpsr.umich.edu/icpsrweb/content/
ICPSR/access/restricted/ (last visited Sept. 15, 2014).

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2004: FED. JUDICIAL CTR., FEDERAL COURT CASES: INTEGRATED DATA
BASE, 2004, ICPSR STUDY No. 4348.
2005: FED. JUDICIAL CTR., FEDERAL COURT CASES: INTEGRATED DATA
BASE, 2005, ICPSR STUDY No. 4382.
2006: FED. JUDICIAL CTR., FEDERAL COURT CASES: INTEGRATED DATA
BASE, 2006, ICPSR STUDY No. 4685.
2007: FED. JUDICIAL CTR., FEDERAL COURT CASES: INTEGRATED DATA
BASE, 2007, ICPSR STUDY No. 22300.
2008: FED. JUDICIAL CTR., FEDERAL COURT CASES: INTEGRATED DATA
BASE, 2008, ICPSR STUDY No. 25002.
2009: FED. JUDICIAL CTR., FEDERAL COURT CASES: INTEGRATED DATA
BASE, 2009, ICPSR STUDY No. 29661.
2010: FED. JUDICIAL CTR., FEDERAL COURT CASES: INTEGRATED DATA
BASE, 2010, ICPSR STUDY No. 30401.
2011: FED. JUDICIAL CTR., FEDERAL COURT CASES: INTEGRATED DATA
BASE, 2011, ICPSR STUDY No. 33622.
2012 Terminations: FED. JUDICIAL CTR., FEDERAL COURT CASES: INTEGRATED DATA BASE, 2012, ICPSR STUDY No. 34881.
2012 Pendings: FED. JUDICIAL CTR., FEDERAL COURT CASES: INTEGRATED DATA BASE APPELLATE AND CIVIL PENDING DATA, 2012,
ICPSR STUDY No. 29281.
B.

Prison Population (Table 1 & Figure A)

Both federal and state prison populations are year-end counts and
are available for all years for all states. 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 years when average daily
population is not available, the mid-year count is used instead. Details
are included in the data file itself.
1970: U.S. DEP’T OF JUSTICE, PRISONERS IN STATE AND FEDERAL INSTITUTIONS: 1968–1970, NAT’L PRISONER STATS. BULL., Apr. 1972, at 22
tbl.10c (sentenced prisoners).
1971 to 1973: U.S. DEP’T OF JUSTICE, PRISONERS IN STATE AND FEDERAL INSTITUTIONS ON DECEMBER 31, 1974, NAT’L PRISONER STATS.
BULL., June 1976, at 14 tbl.1 (mostly sentenced prisoners).
1974: U.S. DEP’T OF JUSTICE, PRISONERS IN STATE AND FEDERAL INSTI-

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DECEMBER 31, 1974, NAT’L PRISONER STATS. BULL., June
1976, at 36 tbl.1 (all prisoners).

TUTIONS ON

1975: U.S. DEP’T OF JUSTICE, PRISONERS IN STATE AND FEDERAL INSTITUTIONS ON DECEMBER 31, 1975, NAT’L PRISONER STATS. BULL., app.
II, at 36 tbl.1 (Feb. 1977) (all prisoners).
1976: U.S. DEP’T OF JUSTICE, PRISONERS IN STATE AND FEDERAL INSTITUTIONS ON DECEMBER 31, 1977, NAT’L PRISONER STATS. BULL., at 10
tbl.1 (Feb. 1979) (all prisoners).
1977: U.S. DEP’T OF JUSTICE, PRISONERS IN STATE AND FEDERAL INSTIDECEMBER 31, 1978, NAT’L PRISONER STATS. BULL., at 42
special tbl. (May 1980) (all prisoners in custody).

TUTIONS ON

1978 to 2012: Corrections Statistical Analysis Tool (CSAT)—Prisoners,
BUREAU JUST. STATS., http://www.bjs.gov/index.cfm?ty=NPs (last visited Jan. 15, 2015) (tables available by following Quick Tables, then
Inmates in custody of state or federal correctional facilities, excluding
private prison facilities, December 31, 1978–2013, downloadable at
http://www.bjs.gov/nps/resources/documents/QT_custnopriv_tot.xlsx;
and Inmates in custody of state or federal correctional facilities, including private prison facilities, December 31, 1999–2013, downloadable at
http://www.bjs.gov/nps/resources/documents/QT_custwpriv_tot.xlsx).
C.

Jail Population (Table 1 & Figure A)

Note: 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. I assumed a jail population of 160,000 for
1971 to 1977, based on the figures in 1970 and 1978. I assumed a jail
population of 170,000 in 1979, based on the figures in 1978. As with
prison population, where available, the figure chosen is the average daily
population, but for a few years when average daily population is not
available, and the mid-year count is used instead. Details are included in
the data file itself.
National population only
1980 to 2000: BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE,
CORRECTIONAL POPULATIONS IN THE UNITED STATES (2002), previously
available at http://www.ojp.usdoj.gov/bjs/glance/sheets/corr2.wk1 (on
file with author) (June 30 count).
1980 to 1994: BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE,
CORRECTIONAL POPULATIONS IN THE UNITED STATES, 1994, at 5 (June
1996, NCJ 160091), available at http://www.bjs.gov/content/pub/pdf/

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cpius94a.pdf (downloadable at http://www.bjs.gov/content/pub/sheets/
cpi94a.zip) (June 30 count).
1990 to 1996: BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE,
CORRECTIONAL POPULATIONS IN THE UNITED STATES, 1996, at 20 (Apr.
1999, NCJ 170013), available at http://www.bjs.gov/content/pub/pdf/
cpius96.pdf (June 30 count for all, and average daily population for
1990–1993).
1997 to 1999: BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE,
PRISON AND JAIL INMATES AT MIDYEAR 2000, at 6, available at http://
www.bjs.gov/content/pub/pdf/pjim00.pdf (June 30 count).
2000 to 2013: BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE,
JAIL INMATES AT MIDYEAR 2013—STATISTICAL TABLES (May 2014,
NCJ 245350), available at http://www.bjs.gov/content/pub/pdf/
jim13st.pdf (June 30 count and average daily population).
State-by-state population
1970 Mid-year jail population: LAW ENFORCEMENT ASSISTANCE
ADMIN., U.S. DEP’T OF JUSTICE, NATIONAL JAIL CENSUS 1970, at 10,
tbl.2 (1971) (March count).
1978, 1983, 1988, and 1993: BUREAU OF JUSTICE STATISTICS, U.S.
DEP’T OF JUSTICE, JAIL INMATES, BY SEX, HELD IN LOCAL JAILS (1997),
previously available at http://www.ojp.usdoj.gov/bjs/data/corpop09.wk1
(on file with author) (June 30 count). See also Jail Censuses for those
years (June 30 count and average daily population). See infra Appendix
E: Jail Censuses (Table 2); BUREAU OF JUSTICE STATISTICS, U.S. DEP’T
OF JUSTICE, THE 1983 JAIL CENSUS, at 2 (Nov. 1984, NCJ 95536).
1983: BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, CORRECTIONAL POPULATIONS IN THE UNITED STATES, 1985, at 5 (Dec. 1987,
NCJ-103957), available at http://www.bjs.gov/content/pub/pdf/
cpus85.pdf (June 30 count).
1989: BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, CORRECTIONAL POPULATIONS IN THE UNITED STATES, 1989, at 5, 8 (Oct. 1991,
NCJ-130445), available at http://www.bjs.gov/content/pub/pdf/
cpus89.pdf (June 30 count).
1990: BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, CORRECPOPULATIONS IN THE UNITED STATES, 1990, at 5 (July 1992,
NCJ-134946), available at http://www.bjs.gov/content/pub/pdf/
cpus90.pdf (June 30 count).
TIONAL

1993: BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, CORREC-

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POPULATIONS IN THE UNITED STATES, 1993, at 7 (Oct. 1995,
NCJ-156241), available at http://www.bjs.gov/content/pub/pdf/cpop
93bk.pdf (June 30 count).

TIONAL

2000 to 2012: BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE,
MORTALITY IN LOCAL JAILS AND STATE PRISONS, 2000–2012—STATISTICAL TABLES, at 15 tbl.11 (Oct. 2014, NCJ 247448), available at http://
www.bjs.gov/content/pub/pdf/mljsp0012st.pdf (downloadable at http://
www.bjs.gov/content/pub/sheets/mljsp0012st.zip) (average daily population). Note: The figures for Tennessee and Oklahoma are adjusted in
2010–2012, and for New York in 2012, because Davidson County,
Oklahoma City, and Erie County were omitted from published data in
those years. Thanks to Daniela Golinelli, Chief, Corrections Unit,
Bureau of Justice Statistics, for providing appropriate corrections.
D.

Prison Censuses (Table 2)

1984: BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, CENSUS
OF STATE ADULT CORRECTIONAL FACILITIES, 1984, ICPSR STUDY No.
8444 (last updated Apr. 22, 1997); see also http://www.bjs.gov/content/
pub/pdf/csacf84.pdf.
1990: BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, CENSUS
OF STATE AND FEDERAL ADULT CORRECTIONAL FACILITIES, 1990,
ICPSR STUDY No. 9908 (last updated Dec. 21, 2001); see also http://
www.bjs.gov/content/pub/pdf/csfcf90.pdf.
1995: BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, CENSUS
OF STATE AND FEDERAL ADULT CORRECTIONAL FACILITIES, 1995,
ICPSR STUDY No. 6953 (last updated Apr. 20, 1998); see also http://
www.bjs.gov/content/pub/pdf/Csfcf95.pdf.
2000: BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, CENSUS
OF STATE AND FEDERAL ADULT CORRECTIONAL FACILITIES, 2000,
ICPSR STUDY No. 4021 (last updated July 9, 2004); see also http://
www.bjs.gov/content/pub/pdf/csfcf00.pdf.
2005: BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, CENSUS
OF STATE AND FEDERAL ADULT CORRECTIONAL FACILITIES, 2005,
ICPSR STUDY No. 24642 (last updated Oct. 5, 2010); see also http://
www.bjs.gov/content/pub/pdf/csfcf05.pdf.
E.

Jail Censuses (Table 2)

1983: BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE,
NATIONAL JAIL CENSUS, 1983, ICPSR STUDY No. 8203 (last updated
Feb. 13, 1997); see also http://www.bjs.gov/content/pub/pdf/clj83-

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vol1.pdf, http://www.bjs.gov/content/pub/pdf/clj83-vol2.pdf, http://
www.bjs.gov/content/pub/pdf/clj83-vol3.pdf, http://www.bjs.gov/content/pub/pdf/clj83-vol4.pdf, http://www.bjs.gov/content/pub/pdf/clj83vol5.pdf.
1988: BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE,
NATIONAL JAIL CENSUS, 1988, ICPSR STUDY No. 9256 (last updated
June 24, 1997); see also http://www.bjs.gov/content/pub/pdf/clj88vol1.pdf, http://www.bjs.gov/content/pub/pdf/clj88.pdf.
1993: BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE,
NATIONAL JAIL CENSUS, 1993, ICPSR STUDY No. 6648 (last updated
July 13, 1996).
1999: BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE,
NATIONAL JAIL CENSUS, 1999, ICPSR STUDY No. 3318 (last updated
Aug. 16, 2002); see also http://www.bjs.gov/content/pub/pdf/cj99.pdf.
2006: BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, CENSUS
OF JAIL FACILITIES, 2006, ICPSR STUDY No. 26602 (last updated Jan. 6,
2010); see also http://www.bjs.gov/content/pub/pdf/cjf06.pdf.

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