Trends in Prison Litigation and the PLRA Margo Schlanger U.C. Irvine L. Rev. 2014
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Schlanger, Trends in Prisoner Litigation, DRAFT October 2, 2014, page 1 of 23 Trends in Prisoner Litigation, as the PLRA Enters Adulthood by Margo Schlanger* Forthcoming, U.C. IRVINE L. REV. (2015) The Prison Litigation Reform Act (PLRA), 1 enacted in 1996 as part of the Newt Gingrich “Contract with America,” 2 is now as old as some prisoners. In the year after the statute’s passage, some commenters labeled it merely “symbolic.” 3 In fact, as was evident nearly immediately, the PLRA undermined prisoners’ ability to bring, settle, and win lawsuits. 4 The PLRA conditioned court access on prisoners’ meticulously correct prior use of onerous and error-inviting prison grievance procedures. 5 It increased filing fees, 6 decreased attorneys’ fees, 7 © Margo Schlanger 2014. The article may be copied and distributed for free or at cost to students or prisoners. * Professor of Law, University of Michigan. Thanks to Grady Bridges for data management assistance and as always to Sam Bagenstos for his helpful comments. 1 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 NEWT GINGRICH, DICK ARMEY, AND THE HOUSE REPUBLICANS TO CHANGE THE NATION, CONTRACT WITH AMERICA: THE BOLD PLAN BY REPRESENTATIVE 53 (Ed Gillespie & Bob Schellhas eds., 1994) (referring to the PLRA’s predecessor bill, the Taking Back Our Streets Act). 3 Mark Tushnet & Larry Yackle, Symbolic Statutes and Real Laws: The Pathologies of the Antiterrorism and Effective Death Penalty Act and the Prison Litigation Reform Act, 47 DUKE L.J. 1 (1997). 4 For in-depth examination of the PLRA’s impact on damage actions, see Margo Schlanger, Inmate Litigation, 116 HARV. L. REV. 1555 (2003) [hereinafter Schlanger, Inmate Litigation]. For in-depth examination of the PLRA’s impact on injunctive litigation, see Margo Schlanger, Civil Rights Injunctions Over Time: A Case Study of Jail and Prison Court Orders, 81 N.Y.U. L. REV. 550 (2006) [hereinafter Schlanger, Civil Rights Injunctions]. Note that the subsequent description of the PLRA in this paragraph also appears in my article How Prisoners’ Rights Lawyers Are Preserving the Role of the Courts, U. MIAMI L. REV. (forthcoming 2015). 5 42 U.S.C. § 1997e(a) (“No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.”); see 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. REV. 287 (2012). 6 28 U.S.C. § 1915(b) (2012) (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). 7 42 U.S.C. § 1997e(d)(3) (2012) (capping defendants’ liability for attorneys’ fees in civil rights cases at 150% of the rate paid publically-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) (2012); 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 even 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, No. 08-cv-06282-DRD, 2014 WL 1274085 (D.N.J. Mar. 28, 2014). Electronic copy available at: http://ssrn.com/abstract=2506378 Schlanger, Trends in Prisoner Litigation, DRAFT October 2, 2014, page 2 of 23 and limited damages. 8 It subjected injunctive settlements to the scope limitations usually applicable only to litigated injunctions. 9 It made prison and jail population caps—previously common—far more difficult to obtain. 10 And it put in place a rule inviting frequent relitigation of injunctive remedies, whether settled or litigated. 11 The resulting impact on jail and prison litigation has been extremely substantial. In two articles about a decade ago, I presented descriptive statistics showing the PLRA-caused decline in civil rights filings and plaintiffs’ victories, 12 and the likewise declining prevalence of courtordered regulation of jails and prisons. 13 More up-to-date information has not been published, so here I update those statistics for use by policymakers, judges, and other researchers, and discuss them briefly. I look in Parts I through III at damage actions, using primarily the data compiled by the Administrative Office of the U.S. Courts (the AO) for each federal district court case “terminated” (that is, marked complete by a district court, whether provisionally—say, pending appeal—or finally). These data are discussed in this Article’s Technical Appendix, which follows the main text; replication code is also posted online. 14 Part I examines prisoner filings over time and by state. Part II examines outcomes over time and compares outcomes in other case categories. And Part III looks at litigated damages. (Because the AO’s data on damages are error-ridden, 15 I supplement the AO database with docket-based research into individual cases.) All three Parts uncover a number of topics that are ripe for additional research. In Part IV, I move to the topic of injunctive prison and jail litigation—cases in which prisoner plaintiffs seek a change in policy or other aspects of prison conditions. The PLRA was motivated in large part by Republican discontent with plaintiffs’ successes in such litigation, 16 and Part IV demonstrates more comprehensively than prior data that it has succeeded in radically shrinking—but not eliminating—the coverage of such orders. 8 42 U.S.C. § 1997e(e) (2012) (“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). 9 18 U.S.C. § 3626(a)(1)(A) (2012) (“Prospective relief in any civil action with respect to prison conditions shall extend no further than necessary to correct the violation of the Federal right of a particular plaintiff or plaintiffs. The court shall not grant or approve any prospective relief unless the court finds that such relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right.”). 10 18 U.S.C. § 3626(a)(3) (2012) (setting out procedural and substantive hurdles to obtaining a “prisoner release order”); see also Plata v. Brown, 131 S.Ct. 1910 (2011) (affirming imposition of such an order in California). 11 18 U.S.C. § 3626(b) (2012) (allowing defendants in prison conditions cases to periodically seek “termination” of previously entered injunctions). 12 See, e.g., Schlanger, Inmate Litigation, supra note 4. 13 See, e.g., Schlanger, Civil Rights Injunctions, supra note 4. 14 See http://margoschlanger.net, under “Publications.” {Not posted yet} 15 See Theodore Eisenberg & Margo Schlanger, The Reliability of the Administrative Office of the U.S. Courts Dasabase: An Initial Empirical Analysis, 78 NOTRE DAME L. REV. 1455 (2003). 16 See, e.g., 141 CONG. REC. S14,418 (daily ed. Sept. 27, 1995) (statement of Sen. Hatch in support of S. 1279: “While prison conditions that actually violate the Constitution should not be allowed to persist, I believe that the courts have gone too far in micromanaging our Nation’s prisons.”). Electronic copy available at: http://ssrn.com/abstract=2506378 Schlanger, Trends in Prisoner Litigation, DRAFT October 2, 2014, page 3 of 23 I. Prison Litigation Filings The PLRA’s sharp impact on the prevalence and outcomes in prison litigation is clear. Begin with filings. These are affected by numerous PLRA provisions, including: the rule that filing fees are unwaivable for indigent prisoners; 17 the requirement of administrative exhaustion 18 (which discourages lawsuits where such exhaustion has not occurred, since they will almost certainly fail); the attorneys’ fees limits; 19 and the three-strikes requirement compelling frequent lawsuit filers to satisfy filing fees in advance without regard to their ability to pay. 20 As before the PLRA, litigation remains one of the few avenues for prisoners to seek redress for adverse conditions or other affronts to their rights. Accordingly, litigation continues—but at a much reduced rate. Table 1 demonstrates. It shows jail and prison populations from 1970 to the present, along with federal court filings categorized by the courts as dealing with “prisoner civil rights” or “prison conditions.” 21 Figures A and B present some of the same information in graphic form—Figure A shows filings compared to jail and prison population, and Figure B shows filing rates compared to jail and prison population. 17 See 28 U.S.C. § 1915(b) (2012). 18 See 42 U.S.C. § 1997e(a) (2012). 19 See 42 U.S.C. § 1997e(e) (2012). 20 See 28 U.S.C. § 1915(g) (2012) (“In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section [that is, in forma pauperis] if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.”). 21 Litigation figures are calculated using data released annually by the Administrative Office of the U.S. Courts, available in digital form from the Inter-university Consortium for Political and Social Research at http://www.icpsr.umich.edu/icpsrweb/ICPSR/series/00072/studies. Prisoner population figures come from a variety of publications by the Bureau of Justice Statistics, a component of the U.S. Department of Justice. Sources are set out comprehensively in the Technical Appendix that follows this Article. Schlanger, Trends in Prisoner Litigation, DRAFT October 2, 2014, page 4 of 23 TABLE 1: PRISON AND JAIL POPULATION AND PRISONER CIVIL RIGHTS FILINGS 22 IN FEDERAL DISTRICT COURT, FISCAL YEARS 1970-2012 Fiscal year of filing 1970 1971 1972 1973 1974 1975 1976 1977 1978 1979 1980 1981 1982 1983 1984 1985 1986 1987 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 Incarcerated population Total 357,292 358,061 356,092 364,211 378,466 413,816 438,000 449,563 453,980 474,589 503,586 556,814 614,914 651,439 678,905 752,603 806,063 853,114 942,827 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 2,221,283 State prison 176,391 177,113 174,379 181,396 196,105 229,685 248,883 258,643 269,765 281,233 295,819 333,251 375,603 394,953 417,389 451,812 496,834 520,336 562,605 629,995 684,544 728,605 778,495 828,566 904,647 989,004 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 Federal prison 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 43,712 42,478 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 Jail 160,863 160,000* 160,000* 160,000* 160,000* 160,000* 160,000* 160,000* 157,930 170,000* 183,988 196,785 212,000 227,541 230,641 265,010 265,517 290,300 336,017 386,845 408,075 422,609 441,899 466,155 479,757 509,828 515,432 556,586 593,808 607,978 598,397 639,941 668,168 688,030 715,660 742,261 772,334 782,592 779,704 749,449 733,775 722,737 737,369 Total Filings 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 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 * Estimates (jail population is unavailable for these years). 22 See infra Technical App. at A, C–D. Prisoner civil rights filings in federal district court Nonfederal Federal Filings defendants defendants / 1000 prisoners 2,092 153 6.3 2,969 210 8.9* 3,393 242 10.2* 4,257 408 12.8* 5,185 388 14.7* 6,020 507 15.8* 6,702 394 16.2* 7,842 505 18.6* 9,520 567 22.2 11,149 564 24.7* 12,496 583 26.0 15,539 789 29.3 16,075 734 27.3 16,788 724 26.9 17,468 869 27.0 17,658 827 24.6 19,654 706 25.3 21,410 657 25.9 21,866 776 24.0 22,804 933 22.2 23,028 1,023 20.9 23,567 785 20.0 27,723 821 22.1 30,842 851 23.0 35,550 1,045 24.9 38,022 1,031 24.6 37,126 1,136 23.3 25,226 869 15.1 23,304 908 13.3 22,645 867 12.4 22,399 958 12.2 21,224 907 11.2 21,044 944 10.8 20,914 1,147 10.6 20,337 1,216 10.1 21,317 1,167 10.3 21,443 1,026 9.9 20,825 1,153 9.6 22,395 1,160 10.2 21,552 1,146 10.0 21,614 1,122 10.1 22,067 1,295 10.5 21,628 1,034 10.2 Schlanger, Trends in Prisoner Litigation, DRAFT October 2, 2014, page 5 of 23 FIGURE A: PRISONER POPULATION AND CIVIL RIGHTS FILINGS, FY 1970-FY 2012. 23 FIGURE B: PRISONER POPULATION & CIVIL RIGHTS FILINGS PER 1000 PRISONERS, FY 1970-2012 24 23 See supra note 22. 24 See supra note 22. Schlanger, Trends in Prisoner Litigation, DRAFT October 2, 2014, page 6 of 23 The national trends in Table 1 and Figures A and B are clear. A steep increase in prisoner civil rights litigation combined in the 1970s with a steep increase in incarcerated population. The filing rate slowly declined in the 1980s, but the increase in jail and prison population nonetheless pushed up raw filings. Then, as in the 1970s, the 1990s saw an increase in both jail and prison population and filings rates, until 1995. In 1996, the PLRA immediately transformed the litigation landscape. After a very steep decline in both filings and filing rates in 1996 and 1997, rates continued to shrink for another decade (although the increasing incarcerated population meant that the resulting number of filings increased a bit). Since 2007, filing rates, prison population, and filings have all plateaued. The state-by-state story is far more varied. Table 2 presents the data: it compares 1995 (the year prior to the PLRA) and 2011 (the latest year for which state-by-state jail information— and therefore filing rate information—is available). The first set of columns show the jail and prison population, 25 the prisoner civil rights filings in federal district court, and the resulting filing rate in 1995. The states are set out in rank order, with Iowa, the state whose prisoners were in 1995 the most litigious, ranked 1. The second set of columns presents the same information for 2011. The third set of columns shows the change over the 16 year period, as a simple change and as a percent change—so Iowa’s change from a filing rate of 101.7 to 14.5 federal lawsuits per 1000 prisoners is shown both as a change of 87.2 (101.7-14.5), and 85.7%. Nationwide the filing rate shrank by 14.1 filings per 1000 prisoners, and by nearly 60%, from 24.6 to 10.5 lawsuits per 1000 prisoners. For 30 states, the proportional change was that big or bigger, and for most of the rest, nearly as big. But as Table 2 presents, for a few states the change was far smaller. California, in fact, has seen almost no change in filing rate—although it is alone in that experience. Figure C puts the penultimate columns of Table 2 into a histogram, to make plainer the varied experience of the states. 25 Because state-by-state jail population is not available from 1994 to 1999 jail populations for those years are calculated using a linear interpolation between the 1993 and 2000 figures for each state. Schlanger, Trends in Prisoner Litigation, DRAFT October 2, 2014, page 7 of 23 TABLE 2: CHANGE IN PRISONER FILINGS IN U.S. DISTRICT COURT AND FILING RATES BY STATE, FY 1995-2011 26 1995 State United States Iowa Arkansas Mississippi Nebraska Missouri Virginia Alabama Delaware Louisiana Nevada Arizona Maine Kentucky Indiana Tennessee Pennsylvania Colorado Wyoming Montana Vermont Hawaii Kansas Wisconsin Utah West Virginia South Carolina Washington Connecticut Georgia Illinois Maryland Michigan Oklahoma North Carolina Rhode Island Texas New York Florida South Dakota Alaska Oregon New Mexico Idaho New Jersey New Hampshire Ohio California Minnesota Massachusetts North Dakota 26 2011 Jail and prison pop. Filings 1,588,370 39,053 24.6 8,015 11,786 16,273 4,733 25,883 41,047 31,639 4,799 38,106 11,898 32,628 2,329 22,084 26,922 30,799 63,720 20,278 1,913 2,575 1,245 2,812 12,373 21,275 6,633 6,855 26,927 20,185 15,740 64,977 56,827 32,295 56,049 21,686 39,360 2,854 194,719 103,799 110,948 3,239 2,876 14,327 8,022 4,978 42,701 3,244 57,732 218,145 11,515 19,067 1,112 815 967 1,035 297 1,523 2,166 1,403 205 1,548 475 1,247 87 824 967 1,076 2,114 634 57 76 35 76 333 559 169 169 648 481 370 1,496 1,270 708 1,217 437 760 54 3,597 1,860 1,968 57 50 227 124 75 639 47 746 2,575 124 153 8 101.7 82.0 63.6 62.8 58.8 52.8 44.3 42.7 40.6 39.9 38.2 37.4 37.3 35.9 34.9 33.2 31.3 29.8 29.5 28.1 27.0 26.9 26.3 25.5 24.7 24.1 23.8 23.5 23.0 22.3 21.9 21.7 20.2 19.3 18.9 18.5 17.9 17.7 17.6 17.4 15.8 15.5 15.1 15.0 14.5 12.9 11.8 10.8 8.0 7.2 See supra note 22. Filing rate Rate rank 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 Jail and prison pop. Filing rate Filings 2,227,723 23,362 10.5 13,214 25,216 32,095 8,063 43,635 62,888 44,571 6,546 55,651 19,242 58,537 3,300 40,532 48,005 48,889 100,495 37,998 3,656 4,160 2,053 6,294 18,871 37,641 12,488 19,029 41,898 30,827 19,118 105,943 74,229 36,971 60,995 37,698 64,392 3,032 259,155 90,508 172,361 5,939 6,289 21,532 16,165 11,188 45,042 4,486 72,688 238,496 20,073 22,978 2,496 192 731 440 54 493 625 637 145 975 367 561 31 249 394 615 1,571 379 12 68 13 51 114 312 69 143 463 345 148 1,138 1,421 467 734 188 424 21 1,618 1,394 1,349 44 11 186 73 103 504 45 271 2,811 88 97 13 14.5 29.0 13.7 6.7 11.3 9.9 14.3 22.2 17.5 19.1 9.6 9.4 6.1 8.2 12.6 15.6 10.0 3.3 16.3 6.3 8.1 6.0 8.3 5.5 7.5 11.1 11.2 7.7 10.7 19.1 12.6 12.0 5.0 6.6 6.9 6.2 15.4 7.8 7.4 1.7 8.6 4.5 9.2 11.2 10.0 3.7 11.8 4.4 4.2 5.2 Rate rank 9 1 11 36 16 23 10 2 5 4 24 25 40 29 13 7 22 49 6 38 30 41 28 42 33 19 17 32 20 3 12 14 44 37 35 39 8 31 34 50 27 45 26 18 21 48 15 46 47 43 1995-2011 Rate Change Rank N % change 14.1 57.3% 87.2 53.1 49.9 56.1 47.5 42.8 30.1 20.6 23.1 20.9 28.6 28.0 31.2 27.7 22.4 17.5 21.3 26.5 13.2 21.8 18.9 20.9 18.0 20.0 17.1 13.0 12.6 15.8 12.3 3.2 9.3 9.7 15.2 12.7 12.0 12.2 2.5 9.9 10.2 15.6 7.2 10.9 5.9 3.8 4.5 9.2 0.0 6.4 3.8 2.0 85.7% 64.7% 78.4% 89.3% 80.8% 81.2% 67.8% 48.1% 56.9% 52.2% 74.9% 74.9% 83.5% 77.1% 64.0% 52.9% 68.1% 89.0% 44.6% 77.5% 70.0% 77.6% 68.5% 78.3% 69.5% 54.1% 53.0% 67.1% 53.3% 14.3% 42.4% 44.6% 75.3% 65.9% 63.4% 66.2% 14.0% 55.9% 57.9% 89.9% 45.5% 70.8% 38.9% 25.2% 30.8% 71.1% 0.2% 59.3% 47.4% 27.6% -8 1 -8 -32 -11 -17 -3 6 4 6 -13 -13 -27 -15 2 9 -5 -31 13 -18 -9 -19 -5 -18 -8 7 10 -4 9 27 19 18 -11 -3 0 -3 29 7 5 -10 14 -3 17 26 24 -2 32 2 2 7 Schlanger, Trends in Prisoner Litigation, DRAFT October 2, 2014, page 8 of 23 FIGURE C: PERCENT DECLINE IN PRISONER FILING RATE IN U.S. DISTRICT COURT, FY 1995-2011, BY STATE. Figures D and E focus additional attention on the varying effects of the PLRA by state. Figure D presents the six states that have experienced the steepest decline in filing rates since 1995, showing their changed filing rates by year. (So for example, a drop of 10 filings per 1000 inmates from the rate in 1995—whatever that rate was—is shown as -10.) Figure E is the same information for the six states that have experienced the shallowest decline. Schlanger, Trends in Prisoner Litigation, DRAFT October 2, 2014, page 9 of 23 FIGURE D: DECLINE IN PRISONER FILING RATE IN U.S. DISTRICT COURT, FY 1995-2011, SIX STATES WITH LARGEST DECLINES. 27 FIGURE E: DECLINE IN PRISONER FILING RATE IN U.S. DISTRICT COURT, FY 1995-2011, SEVEN STATES WITH SMALLEST DECLINES. 28 Figure D’s states look very like the nation as a whole, although the pattern is more pronounced. But Figure E’s patterns are quite different. While the trend lines are not entirely 27 See supra note 22. 28 See supra note 22. Schlanger, Trends in Prisoner Litigation, DRAFT October 2, 2014, page 10 of 23 consistent state to state, they generally are U-shaped curves. That is, even in these least-affected states, filing rates declined for some years after the PLRA’s passage. At that point, something— I imagine something different in each state—turned that trend around and caused the filing rate to increase. Future research might uncover what that spur was. We can guess that it was not appellate precedent; the states in question are from the First, Second, Third, Seventh, Eighth, and Ninth Circuits—no Circuit has more than one state represented in the bottom six. II. Prison Litigation Outcomes One might expect that the drastic pruning of the prisoner civil rights docket that occurred beginning in 1996 would tilt the docket towards higher quality cases—so that prisoner success rates would go up. However, I previously demonstrated, using data through 2001, that the PLRA not only made prisoner civil rights cases harder to bring, as illustrated above, but also made them harder to win. 29 In particular, prisoners’ cases are thrown out of court for failure to properly complete often-complicated grievance procedures, 30 or because they do not allege physical injury, which some courts read the PLRA to require for recovery even in constitutional cases. 31 Now that we have another decade of data, it’s worth reexamining this issue, to see if trends have continued, moderated, or reversed. More data, presented in Table 3, confirms my earlier conclusions. The table presents outcomes in prisoners’ federal civil rights cases, resolved from Fiscal Year 1988 through 2012, the last year for which data is available. (1988 is chosen as a start date because of federal coding protocol changes prior to that year.) Each row is a year; each column is a particular outcome. Scanning the table one column at a time, to detect trends over time, reveals that the courts are becoming less and less hospitable for prisoners’ claims. Column (a) shows filings; column (b) terminations; and column (c) the portion of those terminations that constituted judgments. (Most non-judgments are transfers to another court.) Most remaining outcomes are calculated as a proportion of judgment dispositions. Column (d) is pretrial decisions for the defendant; tracing it through the years shows that after the PLRA, such decisions increased although not overwhelmingly so. On the other side, pretrial victories for the plaintiff, in column (e), have declined, though some of that decline predates the PLRA. 32 Column (f) shows a decline in settlements, much but not all post-dating the PLRA. Column (g) shows a similar decline in voluntary dismissals, which are often settlements as well. And column (h) shows a decline in trials, again much of it subsequent to the PLRA. (Plaintiffs’ victories at those decreasing numbers of trials, in column (i), appear not to have changed.) Columns (j) and (k) show the timing of settlements, before or after “issue is joined,” (that is, before or after the filing of an answer to the civil complaint). The declining portion of settlements in column (j) suggests that settlements have become harder to come by for plaintiffs. And finally, column (l) sums up the 29 See Schlanger, Inmate Litigation, supra note 4, at 1644–64. 30 See supra note 5. 31 See supra note 8. 32 This variable is sufficiently error-ridden, at least in the prisoner litigation data, to counsel against reliance on it. See text accompanying Table 6, discussing high error rates. Schlanger, Trends in Prisoner Litigation, DRAFT October 2, 2014, page 11 of 23 portion of the docket in which it appears plaintiffs may have succeeded in any way, adding together settlements, voluntary dismissals, pretrial victories, and victories at trial. Those numbers are down substantially since the early 1990s. In short, in cases brought by prisoners, the government defendants are winning more cases pretrial, settling fewer matters, and going to trial less often. Those settlements that do occur are harder fought; they are finalized later in the litigation process. Plaintiffs are, correspondingly, winning and settling less often, and losing outright more often. Probably not all these changes were caused by the PLRA—several of the trend lines seem to start prior to the statute’s enactment. But given the PLRA’s very definite anti-plaintiff tilt, it seems nearly certain that the statute has caused at least some of the declining access to court remedies demonstrated in Table 3. Schlanger, Trends in Prisoner Litigation, DRAFT October 2, 2014, page 12 of 23 TABLE 3: OUTCOMES IN PRISONER CIVIL RIGHTS CASES IN FEDERAL DISTRICT COURT, FY 1995-2012. 33 Outcomes, as % of judgment dispositions (a) Fiscal Year 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 33 Filings 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 See supra note 22. (b) Terminations 24,077 24,714 24,864 24,877 28,357 31,893 36,098 41,201 42,522 34,982 29,938 26,561 25,176 24,572 24,245 23,653 23,181 23,712 24,846 23,630 25,097 24,454 24,781 24,760 24,673 (c) (d) (e) Judgments Pretrial decisions for deft. Pretrial decisions for plaint. (as % of terminations) 96.5% 96.5% 96.0% 95.0% 94.9% 95.1% 94.9% 94.8% 95.0% 96.0% 95.9% 94.7% 93.7% 93.9% 93.9% 93.6% 92.8% 92.5% 93.6% 92.5% 92.2% 91.9% 91.3% 90.4% 90.9% 83.2% 82.1% 82.7% 82.1% 80.2% 81.2% 80.9% 83.5% 84.5% 83.8% 85.2% 86.5% 86.3% 87.0% 87.9% 88.0% 86.0% 85.0% 83.2% 82.0% 85.3% 87.0% 85.9% 85.8% 84.9% 1.1% 1.0% 1.1% 0.9% 1.2% 1.0% 0.8% 0.7% 0.6% 0.7% 0.5% 0.5% 0.4% 0.4% 0.4% 0.6% 0.4% 0.3% 0.3% 0.2% 0.5% 0.5% 0.5% 0.4% 0.5% (f) Settlements 7.1% 7.3% 7.6% 7.7% 7.6% 6.8% 7.2% 6.2% 5.5% 5.4% 5.2% 4.7% 4.2% 3.9% 3.6% 3.8% 3.8% 3.8% 3.9% 3.8% 3.7% 4.2% 4.8% 4.9% 5.0% (g) Voluntary dismissals 4.0% 5.1% 5.0% 6.1% 7.5% 8.0% 7.2% 6.5% 6.3% 6.8% 6.0% 5.2% 5.7% 5.7% 5.6% 5.1% 4.8% 4.4% 4.0% 4.7% 4.6% 5.3% 5.2% 5.4% 5.4% Timing of settlements, as % of settlements/ vol. dismissals (h) (i) Plaintiffs’ trial victories (j) Before issue Trials (as % of trials) joined 3.6% 3.7% 3.4% 3.1% 3.3% 2.8% 2.9% 2.5% 2.5% 2.8% 2.5% 2.4% 2.4% 2.1% 1.8% 1.4% 1.4% 1.2% 1.2% 1.3% 1.2% 1.3% 1.3% 1.2% 1.3% 13.6% 14.0% 16.6% 15.2% 12.1% 15.3% 13.1% 10.7% 9.5% 10.7% 8.6% 12.1% 13.6% 14.0% 8.8% 14.1% 13.2% 10.0% 12.9% 9.4% 15.1% 13.1% 14.4% 11.6% 11.9% 58.5% 52.3% 48.8% 52.1% 60.2% 60.0% 53.8% 61.3% 61.8% 61.2% 60.7% 56.7% 54.0% 53.9% 55.2% 53.2% 55.4% 53.4% 54.3% 56.7% 53.2% 51.2% 47.6% 49.5% 50.6% (k) After issue joined 41.5% 47.7% 51.2% 47.9% 39.8% 40.0% 46.2% 38.7% 38.2% 38.8% 39.3% 43.3% 46.0% 46.1% 44.8% 46.8% 44.6% 46.6% 45.7% 43.3% 46.8% 48.8% 52.4% 50.5% 49.4% (l) All plaint. successes (as % of judgments) 12.6% 13.9% 14.3% 15.2% 16.8% 16.2% 15.6% 13.7% 12.7% 13.2% 12.0% 10.7% 10.7% 10.3% 9.8% 9.7% 9.2% 8.7% 8.4% 8.9% 9.0% 10.2% 10.7% 11.0% 11.1% Schlanger, Trends in Prisoner Litigation, DRAFT October 2, 2014, page 13 of 23 Table 4 next provides some context for the very limited success prisoner plaintiffs experience, setting out the same outcome information but for other categories of cases, all in Fiscal Year 2012. As it shows, only in the other prisoner category—habeas cases and other similar quasi-criminal matters—do plaintiffs fare anywhere close to as badly. TABLE 4: OUTCOMES IN FEDERAL DISTRICT COURT CASES BY CASE TYPE, FY 2012. 34 Timing of settlements, as % of settlements/ vol. dismissals Outcomes (as % of judgments) (a) (b) (c) (d) (e) Judgments Pretrial decisions for deft. Pretrial decisions for plaint. (as % of Fiscal Year Filings Terminations terminations) (f) Settlements (g) Voluntary dismissals (h) (i) Plaintiffs’ trial victories Trials (as % of trials) (j) (k) Before issue joined After issue joined (l) All plaint. successes (as % of judgments) All 278,442 271,572 87.9% 41.7% 6.8% 32.6% 14.5% 1.1% 43.4% 42.2% 57.8% 54.4% Habeas, quasi-crim. 26,241 27,245 89.9% 90.2% 2.1% 2.2% 2.3% 0.4% 35.9% 77.0% 23.0% 6.7% Prisoner civil rights 22,662 24,673 90.9% 84.9% 0.5% 5.0% 5.4% 1.3% 11.9% 50.6% 49.4% 11.1% Bankruptcy 3,778 2,934 86.8% 52.2% 6.6% 8.6% 8.3% 0.2% 75.0% 56.0% 44.0% 23.7% Immigration 1,742 1,821 92.9% 57.4% 2.1% 10.5% 27.1% 0.2% 100.0% 77.1% 22.9% 40.0% Civil rights 19,707 20,661 92.3% 48.8% 1.9% 32.9% 12.7% 3.1% 28.3% 26.4% 73.6% 48.4% Statutory actions 49,846 48,888 84.4% 29.3% 7.8% 26.2% 23.3% 0.7% 64.3% 51.3% 48.7% 57.7% 5,714 5,253 79.0% 39.0% 17.9% 24.0% 17.9% 0.8% 48.5% 45.3% 54.7% 60.1% Civil rights empl. 16,261 16,984 92.8% 37.7% 1.1% 45.0% 13.9% 1.8% 34.3% 16.5% 83.5% 60.7% Torts (nonproduct) 18,051 19,580 85.6% 31.8% 2.2% 46.6% 16.0% 2.7% 52.6% 21.3% 78.7% 66.2% U.S. Plaintiff 14,055 14,609 89.9% 28.5% 38.4% 15.4% 16.9% 0.3% 63.2% 60.2% 39.8% 70.9% Contract 23,859 26,358 88.0% 25.0% 12.1% 40.5% 20.3% 1.6% 68.9% 29.0% 71.0% 73.9% Product liability 22,942 43,914 83.6% 24.1% 0.1% 64.5% 11.0% 0.2% 30.8% 59.6% 40.4% 75.7% Labor and empl. 18,752 18,652 93.8% 19.0% 15.7% 43.7% 20.5% 0.8% 59.3% 37.0% 63.0% 80.3% Other 34 See supra note 22. Schlanger, Trends in Prisoner Litigation, DRAFT October 2, 2014, page 14 of 23 Table 5 provides one piece of the explanation, setting out the proportion of cases, by type of suit, litigated by plaintiffs without counsel. It shows that prisoner cases, as one would expect, are overwhelmingly pro se—and at a much higher rate than prior to the PLRA, which drastically limited attorneys’ fees. TABLE 5: PRO SE LITIGATION IN U.S. DISTRICT COURTS, CASES TERMINATED SELECTED FISCAL YEARS 35 Case Category 1996 2000 Contract 2.5% 2.6% Torts (nonproduct) 5.4% 6.0% Product liability 0.8% 1.5% Civil rights 29.8% 30.1% Civil rights employment 16.3% 20.3% Prisoner civil rights 83.3% 95.6% Labor and employment 2.9% 3.8% Statutory actions 6.0% 6.5% U.S. Plaintiff 3.4% 1.3% Habeas, other quasi-criminal 71.8% 84.1% Bankruptcy 12.8% 18.2% Immigration Other 11.8% 19.7% Total 26.9% 26.2% Total w/o prisoner or habeas cases 7.8% 8.6% 2006 3.7% 8.7% 1.5% 32.7% 19.2% 96.5% 3.0% 6.4% 4.6% 84.8% 19.0% 13.6% 25.0% 8.2% 2012 4.4% 12.6% 1.1% 34.6% 19.8% 94.9% 2.9% 8.2% 13.2% 88.8% 20.5% 35.4% 14.5% 26.1% 10.5% III. Damages in Prison Litigation As the last aspect of my examination of prisoner damage actions, I look at the damages themselves. I previously conducted a study of cases terminated in 1993, and found that (after excluding one very large outlying award) the average damages in cases with trial judgments for prisoner plaintiffs were about $18,800, with a median of a mere $1000. 36 I decided to repeat this study, to see what might have changed in the two decades since. To do this, I examined—using the docket sheet and other court documents—each case coded by the court system as ending with a trial or other litigated judgment in Fiscal Year 2012, the latest data available. The AO’s coding is somewhat imprecise, particularly for the non-trials. Of those cases that met these intial selection criteria, most turned out to be defendants’ victories, and others turned out to be settlements: I excluded both. Table 6 presents the results. As it shows, case results for 2012 are entirely consonant with the 1993 study. Of 58 litigated judgments, the mean award was under $22,000 for trials and under $19,000 for non-trials, with a median of just $1525 for trials and $7000 for non-trials. Across all the cases, nationwide litigated damages totaled a mere $1,000,000. 35 See supra note 22. 36 See Schlanger, Inmate Litigation, supra note 4 at 1603. Schlanger, Trends in Prisoner Litigation, DRAFT October 2, 2014, page 15 of 23 TABLE 6: PRISONER CIVIL RIGHTS LITIGATED VICTORIES, FY 2012 37 (EXCLUDES SETTLEMENTS) Plaintiffs Wins Injunctive matters <= $1000 $1001-13,000 25,000-80,000 $100,000 + Total damages awarded Cases with damages Average damages per case Median damages per case Trials 36 4 15 8 7 2 $700,908 32 $21,903 $ 1,525 Non-trials 21 3 3 12 2 1 $339,862 18 $18,881 $7,000 All 57 7 18 20 9 3 $1,040,770 50 $20,815 $4,185 Thus when prisoners do litigate all the way to victory, they tend to win pretty small. IV. Court Orders Since the 1970s, court orders have been a major source of regulation and oversight for American jails and prisons—whether those orders entailed active judicial supervision, intense involvement of plaintiffs’ counsel or other monitors, or simply a court-enforceable set of constraints on corrections officials’ discretion. 38 The PLRA altered this system with provisions that promote termination of existing court orders, and others that shortened the life span of new orders. 39 The impact took some time to manifest, but is now very clear. Table 7 shows the results. 40 37 See infra Technical App. at B. 38 See Schlanger, Civil Rights Injunctions, supra note 4, at 552. 39 See supra notes 10–11. 40 Table 7 is based on data reported by jail and prison officials in the censuses conducted by the Bureau of Justice Statistics every five or six years. Since 1983, the censuses have included questions about the existence of court orders on a variety of (specified) topics. The resulting data is the most comprehensive information available, although it includes demonstrable and important omissions. For example, there has been a court order involving mental health care at every California prison since 1997, and another involving medical care since 2002. For information on the mental health orders, see Coleman v. Brown, No. 2:90-cv-00520 (E.D. Cal.), CIVIL RIGHTS LITIG. CLEARINGHOUSE, http://www.clearinghouse.net/detail.php?id=573. For information on the medical decree, see Plata v. Brown, No. 3:01-cv-01351 (N.D. Cal.), CIVIL RIGHTS LITIG. CLEARINGHOUSE, http://www.clearinghouse.net/detail.php?id=589, and the Order for 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-0018-0005.pdf; and the underlying Stipulation for Injunctive Relief (June 13, 2002), 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 7 should be taken as indicative of trends rather than dispositive about any given state or facility. Schlanger, Trends in Prisoner Litigation, DRAFT October 2, 2014, page 16 of 23 TABLE 7: INCIDENCE OF COURT ORDERS, LOCAL JAILS AND STATE PRISONS, 1983-2006 41 Local Jails State Prisons Year 1983 1988 1993 1999 2006 1984 1990 1995 2000 2005 (a) Total facilities 3,338 3,316 3,268 3,365 3,282 694 957 1,084 1,042 1,067 (b) Facilities w/ orders 18% 18% 18% 17% 11% 27% 28% 32% 28% 18% (c) (d) Total Population housed in population facilities w/ orders 227,541 51% 336,017 50% 466,155 46% 607,978 32% 756,839 20% 377,036 43% 617,859 36% 879,766 40% 1,042,637 40% 1,096,755 22% Columns (a) and (c) show the total number of facilities, and total incarcerated population, for jails and prisons in each census year. Columns (b) and (d) then show the proportion of those totals in which the census responses report court orders. Looking at columns (b) and (d) in the censuses most immediately following the PLRA—1999 for jails and 2000 for prisons—suggests only a very limited impact of the statute. (This is data I reported in 2006, before data from the next iteration of the census was available.) The next census administration is the one where the PLRA’s impact is much more marked: the decline in covered facilities (column b) is very significant, and the decline in covered population (column d) even more so. And finally, Table 8 emphasizes the new rarity of system-wide court order coverage. The table’s first row lists, by census year, how many states report one or more facilities subject to court order. That number remains substantial. But the second row shows states in which 60% or more of the facilities or population are covered by court order—and that row demonstrates that where this kind of system-wide (or close to it) coverage used to be quite common, it is now rare. In 2005 and 2006, respectively, only 5 states reported system-wide court order coverage of their prisons, and only 2 states of their jails. 42 41 42 See infra Technical App. at E–F. See also margoschlanger.net[location unknown]. I define “system-wide” as reaching 60% or more facilities or population in a state, in a given census administration, after private and community-corrections facilities are excluded. Schlanger, Trends in Prisoner Litigation, DRAFT October 2, 2014, page 17 of 23 TABLE 8: SYSTEM-WIDE COURT ORDER COVERAGE, BY STATE 43 1983 Local Jails (n = 47) 1988 1993 1999 2006 1984 State Prisons (n = 51) 1990 1995 2000 2005 States with any court orders 44 46 43 43 39 43 44 41 30 25 Total states with systemwide orders* 8 8 9 3 2 11 14 16 12 5 ● ● ● ● ● ● ● ● ● ● ● ● ● System-Wide Court Order Coverage Alaska Arizona ● Arkansas California ● Colorado Connecticut Delaware District of Columbia ● Florida ● Georgia Illinois ● Indiana Kansas Louisiana ● Minnesota Mississippi Montana New Hampshire New Jersey ● New Mexico New York ● North Carolina Ohio Oregon Rhode Island South Carolina South Dakota Tennessee Texas Utah West Virginia ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● See supra note 41. ● ● ● ● ● ● ● * States in which the proportion of the states’ non-private, non-community corrections facilities reporting court orders, or the proportion of incarcerated population in those facilities, is greater than 60%. 43 ● ● ● ● ● ● ● ● ● ● ● Schlanger, Trends in Prisoner Litigation, DRAFT October 2, 2014, page 18 of 23 The point is not that courts are no longer part of the prison and jail oversight ecosystem. In California (of all states) the contrary is obvious—numerous injunctive cases have transformed California’s criminal justice system, 44 and more changes are underway. 45 But the PLRA has made such cases far more rare. Conclusion In my view, court cases and court-enforceable regulation have since the 1970s been useful correctives to dysfunctions and abuses that frequently occur in our low-visibility jails and prisons. But the practice of prisoner litigation is susceptible to criticism, from the left, that prisoner access to courts offers the appearance but not the reality of justice, 46 and that court orders have both “contributed to mass incarceration,” by promoting the building of new prisons to reduce overcrowding, 47 and limited prisoner freedom by enhancing prison bureaucracy. 48 Simultaneously, the critics from the right who got the PLRA passed suggested that prisoner cases are usually frivolous and prison and jail decrees frequently overreaching. 49 This debate is far beyond the scope of this Article—but perhaps further research will be spurred by publication of these statistics, which demonstrate the kind of variance, over time and location, that researchers might use to shed additional light on how prisoner litigation actually functions. Whichever view is correct, the statistics set out below pose an enormous challenge to us as a polity. Litigation has receded as an oversight method in American corrections. It is vital that something take its place. 44 See, e.g., Brown v. Plata, 131 S.Ct. 1910 (2011); Margo Schlanger, Plata v. Brown and Realignment: Jails, Prisons, Courts, and Politics, 48 HARV. C.R.-C.L. L. REV. 165 (2013). 45 For a description of the Plata litigation’s recent progress, see Civil Rights Litigation Clearinghouse, Plata v. Brown, 3:01-cv-01351-TEH (N.D. Cal.), http://www.clearinghouse.net/detail.php?id=589. For descriptions of other ongoing litigated interventions into California’s criminal justice system, see, e.g., Civil Rights Litigation Clearinghouse, Ashker v. Brown, 4:09-cv-05796-CW (N.D. Cal.), http://www.clearinghouse.net/detail.php?id=12103; Civil Rights Litigation Clearinghouse, Gray v. County of Riverside, 5:13-cv-00444 (C.D. Cal.), http://www.clearinghouse.net/detail.php?id=12729. 46 Cf., e.g., DUNCAN KENNEDY, A CRITIQUE OF ADJUDICATION (FIN DE SIÈCLE) (1997) (presenting and analyzing this critique more broadly). 47 Heather Schoenfeld, Mass Incarceration and the Paradox of Prison Conditions Litigation, 44 LAW & SOC’Y REV. 731, 760 (2010). 48 Malcolm M. Feeley & Van Swearingen, The Prison Conditions Cases and the Bureaucratization of American Corrections: Influences, Impacts and Implications, 24 PACE L. REV. 433, 466–75 (2004). 49 See, e.g., Dennis C. Vacco, Frankie Sue del Papa, Pamela Fanning Carter & Christine O. Gregoire, Letter to the Editor, Free the Courts from Frivolous Prisoner Suits, N.Y. TIMES, Mar. 3, 1995, at A26 (letter from Attorneys General of New York, Nevada, Indiana, and Washington); SANDLER & SCHOENBROD, supra note 16. Schlanger, Trends in Prisoner Litigation, DRAFT October 2, 2014, page 19 of 23 Technical Appendix I have posted a compiled file containing state-by-state-by-year data: • Jail population • State prison population • Federal prison population • Federal court prisoner filings (by type of federal/non-federal defendant) This full panel dataset is available at {URL TK}, and was used to produce Tables 1-2, and Figures A-E. This Technical Appendix includes more information about the sources that underlie that dataset, and also the data used for the remaining tables and figures. Both federal and state prison populations are year-end counts, and are available for all years for all states. Jail population is entirely unavailable for 1971-1977 and 1979, and only national data are available for 1980-1982, 1984-1987, 1991-1992, 1994-1999, and 2012. Where available, the figure chosen is the average daily population (because that is the most consistently available data for state-by-state data). But for a few years when average daily population is not available, the mid-year count is used instead. Details are included in the data file itself. A. Federal court filings, outcomes, and other characteristics (Tables 1-6, Figures A-E) Case filing and outcome figures in Tables 1-5 are derived from data by the Administrative Office of the U.S. Courts (the AO) 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, which maintains it at http://www.icpsr.umich.edu. I used the following datasets, pulling the “civil terminations” data from each. For more detail and replication code see {URL TK}. 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. 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 have not been able to ascertain any clear distinction between these two codes. A consolidated codebook for the resulting consolidated database is posted at {URL TK}. • • • • FEDERAL JUDICIAL CENTER, FEDERAL COURT CASES: INTEGRATED DATA BASE, 1970– 2000, ICPSR STUDY NO. 8429 (last updated Apr. 25, 2002). FEDERAL JUDICIAL CENTER, FEDERAL COURT CASES: INTEGRATED DATA BASE, 2001, ICPSR STUDY NO. 3415 (last updated June 19, 2002). FEDERAL JUDICIAL CENTER, FEDERAL COURT CASES: INTEGRATED DATA BASE, 2002, ICPSR STUDY NO. 4059 (last updated Oct. 8, 2004). FEDERAL JUDICIAL CENTER, FEDERAL COURT CASES: INTEGRATED DATA BASE, 2003, ICPSR STUDY NO. 4026 (last updated June 17, 2004). Schlanger, Trends in Prisoner Litigation, DRAFT October 2, 2014, page 20 of 23 • • • • • • • • • • FEDERAL JUDICIAL CENTER, FEDERAL COURT CASES: INTEGRATED DATA BASE, 2004, ICPSR STUDY NO. 4348 (last updated Nov. 4, 2005). FEDERAL JUDICIAL CENTER, FEDERAL COURT CASES: INTEGRATED DATA BASE, 2005, ICPSR STUDY NO. 4382 (last updated Mar. 17, 2006). FEDERAL JUDICIAL CENTER, FEDERAL COURT CASES: INTEGRATED DATA BASE, 2006, ICPSR STUDY NO. 4685 (last updated Mar. 15, 2007). FEDERAL JUDICIAL CENTER, FEDERAL COURT CASES: INTEGRATED DATABASE, 2007, ICPSR STUDY NO. 22300 (last updated June 18, 2008). FEDERAL JUDICIAL CENTER, FEDERAL COURT CASES: INTEGRATED DATA BASE, 2008, ICPSR STUDY NO. 25002 (last updated June 29, 2009). FEDERAL JUDICIAL CENTER, FEDERAL COURT CASES: INTEGRATED DATA BASE, 2009, ICPSR STUDY NO. 29661 (last updated Nov. 26, 2012). FEDERAL JUDICIAL CENTER, FEDERAL COURT CASES: INTEGRATED DATA BASE, 2010, ICPSR Study No. 30401 (last updated Nov. 26, 2012). FEDERAL JUDICIAL CENTER, FEDERAL COURT CASES: INTEGRATED DATA BASE, 2011, ICPSR STUDY NO. 33622 (last updated Jan. 8, 2013). FEDERAL JUDICIAL CENTER, FEDERAL COURT CASES: INTEGRATED DATA BASE, 2012, ICPSR STUDY NO. 34881 (last updated Mar. 18, 2014). FEDERAL JUDICIAL CENTER, FEDERAL COURT CASES: INTEGRATED DATA BASE APPELLATE AND CIVIL PENDING DATA, 2012, ICPSR 29281 (last updated Mar. 19, 2014) (I used these data for pending civil cases). B. Case Outcomes and Damages (Table 6) Table 6 began using information in the AO data described above, in the terminations data for Fiscal Year 2012. I made two lists of prisoner civil rights cases in that dataset. For the first column in the table, I took the thirty-six cases in which the disposition code indicated a trial judgment in plaintiff’s favor (disp = 7, 8, or 9, and judgefor = 1 or 3). The second column includes other, non-trial, cases in which judgment was listed as in plaintiff’s favor (judgefor = 1 or 3). For each case on either list, I examined the docket, available via the federal court’s Public Access to Court Electronic Records system, and relevant court documents to determine both whether the AO-coded outcome was correct and the actual damages awarded, if any. I was able to find all but one of the cases. Table 6 includes only cases in which the outcome was in fact a litigated plaintiffs’ judgment, omitting many cases in which defendants won or the outcome was a settlement. I list the actual damages, which frequently differ from the AO-coded damages. C. State Prison Population (Tables 1 & 2, Figures A-E) 1970: Prisoners in State and Federal Institutions: 1968–1970, NAT’L PRISONER STATISTICS BULL. (U.S. Dep’t of Justice, D.C.) Apr. 1972, at 22. 1971 to 1974: Prisoners in State and Federal Institutions on December 31, 1974, NAT’L PRISONER STATISTICS BULL. (U.S. Dep’t of Justice, D.C.) June 1976, at 14. 1975: Prisoners in State and Federal Institutions on December 31, 1975, NAT’L PRISONER STATISTICS BULL. (U.S. Dep’t of Justice, D.C.) Feb. 1977, at 36 app. 2. 1976 & 1977: Prisoners in State and Federal Institutions on December 31, 1977, NAT’L PRISONER STATISTICS BULL. (U.S. Dep’t of Justice, D.C.) Feb. 1979, at 10. Schlanger, Trends in Prisoner Litigation, DRAFT October 2, 2014, page 21 of 23 1978 to 2012: U.S. DEP’T OF JUSTICE, BUREAU OF JUSTICE STATISTICS, Corrections Statistical Analysis Tool (CSAT)—Prisoners, http://www.bjs.gov/index.cfm?ty=nps (follow “Quick Tables” hyperlink; then follow “Inmates in custody of state or federal correctional facilities, excluding private prison facilities, December 31, 1978-2012,” available 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, 1999-2012,” available at http://www.bjs.gov/nps/resources/documents/QT_custwpriv_tot.xlsx. D. Federal Prison Population (Tables 1 & 2, Figures A-E) National population only (Tables 1 & 2, Figures A-E) For national federal prison population, the sources are the same as for state prison population, part C, supra. State-by-state population (Table 2, Figures C-E) Federal prison state-by-state population is not average daily population; the data are for prisoner counts, usually for the end of September. Full details available with the dataset itself. 1970-1993: U.S. Dep’t of Justice, Federal Bureau of Prisons, Statistical Report (annual): Table A-2 (1970-1983) Table 10 (1987) Table 12 (1988-1989) Table A13 (1990-1993) 1994-2012: BOP Inmate Population by Institution (includes privately managed institutions, but not community corrections). Federal Bureau of Prisons spreadsheet provided June 13, 2014, by Jennifer Batchelder, Supervisory Research Analyst, Office of Research and Evaluation, Federal Bureau of Prisons, on file with author. E. Jail Population (Tables 1- 2, Figures A-E) Note: No data available for 1971-1977 and 1979. 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. National population only 1980-2000: 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 for jails, Dec. 31 count for prisons, and Jan. 1 count for paroles). 1980-1994: 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/cpius94a.pdf (see also http://www.bjs.gov/content/pub/sheets/cpi94a.zip) (June 30 count). 1990-1996: BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, CORRECTIONAL POPULATIONS IN THE UNITED STATES, 1996, at 20 (April 1999, NCJ 170013), available at Schlanger, Trends in Prisoner Litigation, DRAFT October 2, 2014, page 22 of 23 http://www.bjs.gov/content/pub/pdf/cpius96.pdf (June 30 count for all, and average daily population 1990-1993). 1997-1999: 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). 2000-2013: BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, JAIL INMATES AT MIDYEAR 2013—STATISTICAL TABLES at tbl. 1 (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); F, infra; BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, THE 1983 JAIL CENSUS, at 2 (November 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 (October 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, CORRECTIONAL POPULATIONS IN THE UNITED STATES, 1990, at 5 (July 1992, NCJ-134946), available at http://www.bjs.gov/content/pub/pdf/cpus90.pdf (June 29 count). 1993: BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, CORRECTIONAL POPULATIONS IN THE UNITED STATES, 1993, at 7 (October 1995, NCJ-156241), available at http://www.bjs.gov/content/pub/pdf/cpop93bk.pdf (Dec. 31 count). 1994 to 1999: Because state-by-state jail population is not available from 1994 to 1999, jail population for those years is calculated using a linear interpolation between the 1993 and 2000 figures for each state. 2000-2011: BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, Mortality in Local Jails and State Prisons, 2000-2011 – Statistical Tables at 17 (Aug. 2013, NCJ 242186), available at http://www.bjs.gov/content/pub/pdf/mljsp0011.pdf and downloadable at http://www.bjs.gov/content/pub/sheets/mljsp0011.zip) (average daily population). Note: the figures for Tennessee and Oklahoma are adjusted in 2010 and 2011, because Davidson County and Oklahoma City were omitted from published data in those years. Thanks to Daniela Golinelli, Chief, Corrections Unit, Bureau of Justice Statistics, for providing appropriate corrections. Schlanger, Trends in Prisoner Litigation, DRAFT October 2, 2014, page 23 of 23 F. Prison Censuses (Table 7 & 8) 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. G. Jail Censuses (Tables 7 & 8) 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-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/clj83-vol5.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/clj88-vol1.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.