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April 26, 2021

"Slamming the Courthouse Door: 25 years of evidence for repealing the Prison Litigation Reform Act"

The title of this post is the title of this notable new report from the Prison Policy Initiative authored by Andrea Fenster and Margo Schlanger. Here is how it gets started:

Twenty-five years ago today, in 1996, President Bill Clinton signed the Prison Litigation Reform Act.  The “PLRA,” as it is often called, makes it much harder for incarcerated people to file and win federal civil rights lawsuits.  For two-and-a-half decades, the legislation has created a double standard that limits incarcerated people’s access to the courts at all stages: it requires courts to dismiss civil rights cases from incarcerated people for minor technical reasons before even reaching the case merits, requires incarcerated people to pay filing fees that low-income people on the outside are exempt from, makes it hard to find representation by sharply capping attorney fees, creates high barriers to settlement, and weakens the ability of courts to order changes to prison and jail policies.

When the PLRA was being debated, lawmakers who supported it claimed that too many people behind bars were filing frivolous cases against the government.  In fact, incarcerated people are not particularly litigious. Instead, they often face harsh, discriminatory, and unlawful conditions of confinement — and when mistreated, they have little recourse outside the courts. And when incarcerated people do bring lawsuits, those claims are extremely likely to be against the government since nearly all aspects of life in prison are under state control.  While prison and jail officials may occasionally feel overwhelmed by these lawsuits, cutting off access to justice ensures only that civil rights violations never reach the public eye, not that such violations never occur.

The PLRA should be repealed.  It was bad policy in the 1990s — an era full of unfair, punitive, and racist criminal justice laws — and allowing it to continue today is even worse policy.

April 26, 2021 at 12:05 PM | Permalink


More than jail and prison officials, Federal Judges complained about the number of pro se inmate Habeas Corpus filings before the PLRA was enacted 25 years ago. Pre-PLRA, it is my memory that about one out of every 4 civil lawsuits pending in American Federal District courts was a Habeas Corpus Motion (2254, 2255) or Petition (2241). The Judges just felt overwhelmed by the number of habeas corpus filings they had to deal with. Many pro se filings aren't worth the paper they are written on and are a waste of time. Here in the Eastern District of Kentucky, there is a Pro Se Law Clerk who screens all pro se habeas corpus filings, and gives a recommendation to the Judges about whether they should be permitted to proceed forward or be dismissed.

Posted by: Jim Gormley | Apr 26, 2021 1:22:56 PM

Jim, That's what happens when your own Government wants to throw everyone in prison, they are still sending people to prison for drugs that are pulled from the air and sent away for decades, what did they expect?

Posted by: Randy Cowan | Apr 26, 2021 2:01:16 PM

Racist! Is there anything racism cannot do?

One thing Fenster and Schanger get right is that it is to stop frivolous lawsuits. It doesn’t deny an inmate the right to sue, just has them go through proper procedures and exhaust all other means of recourse in the system.

I worked as a teacher and a grievance director in the NYS prison system and there are 500 grievances filed over getting the end crust part of the bread on a sandwich for every legitimate civil rights abuse.

* Yes, the end crust grievance was real, he won, and the system started using the crusts for bread pudding in order to not violate the inmate’s “civil rights.”

Posted by: TarlsQtr | Apr 27, 2021 5:02:42 PM

Basic economics suggests that a filing fee is a sensible way to cut back on frivolous lawsuits. A lawsuit has value to the prisoner; therefore, it is reasonable for the prisoner to pay for it. I don't like the idea of limiting attorney fees however. If a lawsuit is legit, attorneys should be able to charge for it.

Posted by: William C Jockusch | Apr 27, 2021 10:29:32 PM

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